CLOGHAN and SHIRE OF HARVEY - [2019] WASAT 111

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION:   CLOGHAN and SHIRE OF HARVEY [2019] WASAT 111
MEMBER:   MR S WILLEY, MEMBER
HEARD:   DETERMINED ON THE DOCUMENTS
DELIVERED          :   14 NOVEMBER 2019
FILE NO/S:   DR 135 of 2019
BETWEEN:   KEVIN ALPHONSUS JOHN CLOGHAN
Applicant
AND
SHIRE OF HARVEY
Respondent

Catchwords:

Practice and procedure - Abuse of process - Re-litigation of previously determined matter - Town planning - Development application - Building envelope - Proximity to abattoir - Odour buffer - Odour - Previous application dismissed by the Tribunal - No change in applicable planning framework

Legislation:

Environmental Protection Act 1986 (WA), Pt 5
Greater Bunbury Region Scheme
Interpretation Act 1984 (WA), s 56(2)
Planning and Development (Local Planning Scheme) Regulations 2015 (WA), Sch 2
Planning and Development Act 2005 (WA)
Planning and Environment Act 1987 (Vic), s 87(1)(d)
Shire of Harvey District Planning Scheme No 1, cl 4.4, cl 5.3.2, cl 5.3.9, Sch 4
State Administrative Tribunal Act 2004 (WA), s 47, s 47(3)

Result:

Proceeding dismissed as abuse of process

Summary of Tribunal's decision:

In 2014 Kevin Cloghan (applicant) sought approval from the Shire of Harvey (respondent) to relocate his building envelope on Lot 1 Lofthouse Drive, Leschenault (Lot 1).

The western portion of Lot 1 is within the odour buffer of an abattoir located on Lot 26 (or Lot 300) Rosamel Road. The Shire of Harvey District Planning Scheme No 1 required the building envelopes for dwellings be located outside of the odour buffer for the abattoir.

The respondent refused the application to relocate the building envelope to the eastern portion of Lot 1 (such that the building envelope would have been within the odour buffer). The applicant sought a review from the Tribunal. In March 2015 the Tribunal dismissed the application for review as there was no basis to conclude the odour buffer was not required or was otherwise not appropriate.

In 2019 the applicant again applied to relocate the building envelope on Lot 1 to the eastern portion of Lot 1 (within the odour buffer). The respondent again refused the application. The applicant sought a further Tribunal review.

The respondent alleged that the 2019 proceedings were an abuse of process on the basis that the applicant was seeking to re-litigate an issue that had been previously determined by the Tribunal.

The Tribunal reviewed the relevant planning framework and noted that it had not changed since 2015. While there is some evidence that an effluent pond within the abattoir has been decommissioned since 2015, there was no basis to conclude that the odour buffer was no longer needed.

The Tribunal found that the 2019 proceedings sought to re-litigate a matter that had been determined in circumstances where there had been no material change in the applicable planning framework. The Tribunal concluded that to allow the proceedings to continue would bring the administration of justice into disrepute and would undermine the public interest in the finality of litigation. The proceedings were dismissed as an abuse of process.

Category: B

Representation:

Counsel:

Applicant	:	N/A
Respondent	:	N/A

Solicitors:

Applicant	:	N/A
Respondent	:	N/A

Case(s) referred to in decision(s):

Cloghan and Shire of Harvey [2015] WASAT 33
Corp and Town of Cambridge [2019] WASAT 65; (2019) 97 SR (WA) 252
Erujin Pty Ltd and Western Australian Planning Commission (No 2) [2011] WASAT 50; (2011) 75 SR (WA) 42
Erujin Pty Ltd and Western Australian Planning Commission [2010] WASAT 29; (2010) 70 SR (WA) 69
Erujin Pty Ltd v Western Australian Planning Commission [2010] WASC 326
Scutti v City of Wanneroo [2018] WASCA 175; (2018) 53 WAR 417; 232 LGERA 395
The Match Group v Metropolitan South West Joint Development Assessment Panel [2014] WASCA 50; (2014) 200 LGERA 227
van der Feltz and City of Vincent [2017] WASAT 153

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

Mr Kevin Cloghan (applicant) seeks approval to relocate his building envelope on Lot 1 (HN 96) Lofthouse Drive, Leschenault (Lot 1) (2019 Proposal). The Shire of Harvey (Shire or respondent) refused the 2019 Proposal. The applicant has applied to the Tribunal for a review of the Shire's decision.
A preliminary issue has emerged. That issue is whether the proceedings should be dismissed as an abuse of process pursuant to s 47 of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
In 2015 the applicant applied to the Tribunal for a review of the Shire's refusal to relocate the building envelope on Lot 1. After a final hearing, the application for review was dismissed: Cloghan and Shire of Harvey [2015] WASAT 33 (Cloghan 2015).
The Shire submits that the 2019 Proposal is an abuse of process on the basis that it is an attempt by the applicant to re‑litigate a matter that has been determined in circumstances where the applicable planning framework has not changed since Cloghan 2015.
After reviewing the background to this matter, in the context of the 2019 Proposal, the Shire's submission should be accepted. The applicant is seeking to re‑litigate a matter that has previously been determined by the Tribunal in circumstances where there has been no relevant change to the planning framework.
To allow these proceedings to continue would bring the administration of justice into disrepute and would undermine the public interest in the finality of litigation: van der Feltz and City of Vincent [2017] WASAT 153 at [23] (van der Feltz). It follows that the 2019 Proposal should be dismissed as an abuse of process.

Background

This background is drawn largely from [2] to [4] of Cloghan 2015.
Lot 1 was created in 2008 via a subdivision approved by the Western Australian Planning Commission (WAPC Ref S135098). Lot 1 has an area of 1.83 hectares and fronts Lofthouse Drive on its western boundary. Lot 1's eastern boundary is shared with the Forrest Highway. The depth of Lot 1 varies from 140 metres to 180 metres.
At the western end of Lot 1, the water table is close to the ground level. The ground level rises toward the east. Lot 1's high point is approximately 50 metres from its eastern boundary. As I understand it, the applicant seeks to relocate the building envelope on account of the water table levels in the eastern moiety of Lot 1.
North of Lot 1 is a conservation reserve. To the south and west are rural residential lots which are a similar in size to Lot 1. There are dwellings on many lots in this locality including on the lots south of Lot 1.
East of Lot 1, on the opposite side of the Forrest Highway, at the corner of the Forrest Highway and Rosamel Road, is an abattoir. The abattoir is located on Lot 26 Rosamel Road (however, more recent background documents refer to the abattoir being located on Lot 300, Rosamel Road). Until 2018 the abattoir was operated by Goodchild Abattoirs Pty Ltd (Goodchild Abattoirs).
The buildings associated with the abattoir are approximately 500 metres from the eastern boundary of Lot 1 and the holding paddocks are approximately 450 metres. East of the abattoir buildings are a series of six effluent ponds. At the time of Cloghan 2015 these were described as 'new': at [5]. There are two effluent ponds west of the abattoir buildings. One is a large rectangular pond; the other is a smaller oval shaped pond. The eastern boundary of Lot 1 is approximately 400 metres from these ponds.

Applicable planning framework

Lot 1 is zoned 'Rural' in the Greater Bunbury Region Scheme and 'Special Rural and Landscape Protection' under the Shire of Harvey District Planning Scheme No 1 (DPS 1).
Clause 5.3.2 of DPS 1 provides that:
The provisions for controlling subdivision, land uses and development relating to specific Special Rural Zones will be as laid down in Schedule 4 to the Scheme and future subdivision will accord with the Plan of Subdivision for the specified area referred to in the Schedule and such plan of subdivision shall form part of the Scheme.
Clause 5.3.9 of DPS 1 also states that:
In addition to such other provisions of the Scheme as may affect it, any land which is included in a 'Special Rural Zone' shall be subject to those provisions as may be specifically set out against it in Schedule 4 entitled 'Additional Requirements ‑ Special Rural Zone'.
Item 4.4 of Sch 4 (Area 4) to DPS 1 establishes a range of controls for the development of land on Cathedral Avenue, Leschenault for special rural purposes. These scheme provisions apply to Lot 1.
Included within Area 4 of Sch 4 are provisions which deal specifically with the lots that were created from Lots 21 and 24. These provisions were inserted into DPS 1 via amendment 17 which was gazetted on 22 January 1999. The relevant provisions include:
Subdivision and Development Criteria
(a)Subdivision shall generally be in accordance with the Structure Plan (Plan No. 94‑93‑06) dated October 1998, attached to the Scheme Amendment Report (Amendment No 17).
(b)The following criteria and setbacks shall apply in establishing Building Envelopes:
…
(viii)all building envelopes are to be located outside the 500 metre off‑site industrial buffer area established for the abattoir works on Lot 26 Rosamel Road, Parkfield.
…
(q)Prospective purchasers of lots affected by the 500 metre off‑site industrial buffer established for the abattoir located on Lot 26 Rosamel Road, Parkfield, are advised that there is a potential for land within this buffer to be affected by the abattoir operations, primarily by odours, and that no residential or other sensitive uses will be permitted within this buffer area.
Plan No 94‑93‑06 includes an indicative subdivision of (then) Lot 101 into two lots (including the land that would become Lot 1). Lot 101 is bordered by a series of small circles which are denoted on the plan to mean:
… [the creation of these] proposed lots [is] dependent upon detailed engineering and environmental justification at the time of subdivision including the accurate location of a 500m buffer from the abattoir effluent ponds located on 26 Rosamel Road, Parkfield.
Pursuant to the subdivision of Lots 21 and 24 an odour buffer was established. The odour buffer, as it applied to then Lot 101, would not have allowed a building envelope on what is now Lot 1.
However, at the time that Lot 101 was subdivided to create Lot 1 (and Lot 2) (via WAPC Ref S135098) the buffer area was adjusted to allow a building envelope to be provided on Lot 1. The current odour buffer was approved by the Shire on 24 April 2008 at the time that the subdivision of Lot 101 was being proposed.
The building envelope for Lot 1 is 1299m² and is located on its western‑side, outside the odour buffer.
The applicable planning framework also includes the Environmental Protection Authority's 'Guidance for the Assessment of Environmental Factors: Separation Distances between Industrial and Sensitive Land Uses' No. 3 June 2005 of Western Australia (GS 3). Appendix 1 of GS 3 requires a generic buffer distance for an abattoir of '500 – 1000 metres, depending on size'.
The existing odour buffer for the abattoir is a generic 500 metres based on GS 3.
The Western Australian Planning Commission has prepared Statement of Planning Policy No 4.1 – State Industrial Buffer Policy (SPP 4.1). As the Tribunal noted in Cloghan 2015 at [10]:
… Clause 1.3 of the background information of SPP 4.1 requires the local government to include consideration of a buffer around uses such as an abattoir, having regard to the guidance of the Environmental Protection Authority and the Western Australian Planning Commission (WAPC). The principles of SPP 4.1 at paragraph 2 and again at clause 4.5 include that, once defined, the boundary of a buffer should not be varied unless justified in a scientifically based study.

Materials before the Tribunal

The question of whether the 2019 Proposal is an abuse of process was raised at the initial directions hearing of this matter.
Pursuant to the Tribunal's orders both parties filed submissions and supporting materials on the question whether the 2019 was an abuse of process. The Tribunal also had the applicant's materials that were filed with the review application.

Cloghan 2015: the application and the Tribunal's reasons

The basis of the review application in Cloghan 2015 was that the applicant sought to relocate the building envelope on Lot 1 about 25 metres to the north‑east of what is higher land. The new building envelope was proposed to be 47 metres from the eastern boundary of Lot 1 and 15 metres from its northern boundary.
The revised building envelope was approximately 20 metres wide by 20 metres deep.
The reviewable decision that formed the basis of Cloghan 2015 was made by the Shire on 22 July 2014. The Shire refused the application to relocate the building envelope for the following reasons:
1.The Goodchild Abattoir wishes to maintain the existing buffer in order to protect its operations;
2.There is no set time for the decommissioning of the western ponds on the Abattoir site and there is also no formal commitment to the Shire of Harvey that they may not be utilised again in the future; and
3.Nearby and adjacent properties that lie within the buffer area have been required to comply with the 500 metre buffer requirement in relation to the location of building envelopes.
In Cloghan 2015 the Tribunal's reasons for decision addressed the following issues (at [13]):
1)Whether the abattoir should have an overriding influence on the decision to maintain the current buffer.
2)Whether the western effluent ponds have been decommissioned and whether there is a legal agreement in place that states that the ponds will be decommissioned.
3)Whether it is fair and equitable that the proponent be granted a building envelope within the 500 metre buffer distance whereas other nearby landowners have already had to comply with building outside the proclaimed buffer.
4)Whether it is appropriate to allow the building envelope to be located closer to Forrest Highway.
5)Whether the proposed building envelope addresses the requirement for a 'place of landscape value' in Sch 2 ‑ cl 2.1 of DPS 1.
6)Whether the advice received from the Department of Environmental Regulation since 2011 has varied and whether it supports the location of the abattoir buffer.
In Cloghan 2015 the Tribunal heard evidence from the Shire's planner. Included in the evidence was an email from the operator of the abattoir in the following terms (at [15]):
We still have an anaerobic treatment pond on the western side of the abattoir still in use which I would consider a primary odour source at the abattoir. It will be decommissioned sometime in the future but I cannot give a date to when this is going to happen.
The applicant's central argument in Cloghan 2015 was that it was not for the abattoir operator to determine the odour buffer. Rather, it was a matter for the Shire to determine.
The Tribunal noted that it was the presence of the abattoir that determined whether a buffer was required, not the opinion of the abattoir operator. The Tribunal agreed that the buffer was a matter for the Shire to determine: Cloghan 2015 at [18] ‑ [19].
The Tribunal also found that while there may be a future intent to decommission the effluent ponds west of the abattoir buildings, there was no certainty or agreement as to when that might happen: Cloghan 2015 at [21].
In terms of the impacts arising from the Forrest Highway, the Tribunal considered a buffer of not less than 50 metres from the highway reserve would be sufficient to manage any noise and vibration caused by traffic on the highway: Cloghan 2015 at [28].
In dealing with Issue 6, the Tribunal set out the relevant background to the establishment of the odour buffer for the abattoir as it affected (then) Lot 101.
The Tribunal commented at [35] of Cloghan 2015 that:
In 2008, a sketch prepared for the subdivision of Lot 101 (WAPC reference 135098), showed all but a small triangle in the south-western corner of Lot 101 to be within the 500 metre abattoir buffer. A planning report prepared for the Shire's Development Services Committee meeting of 22 July 2014 recounts that in 2008, the Council did not support subdivision of Lot 101 into two lots. The report states:
Contrary to Council's position, the Department of Environment had agreed to reduce the odour buffer to its current location and hence the WAPC resolved to approve the subdivision of Lot 101 into two Lots on 28 July 2008.
That approval included the allocated building envelopes as currently defined for the site and abutting Lot 2.
The Tribunal discussed the fact that there was an anaerobic treatment pond west of the abattoir buildings that was considered to be the 'primary odour source'. As set out at [31], the abattoir operator sent an email on 10 July 2014 in which it was explained that the pond would be decommissioned at 'some point in the future' but the operator could not give a date as to when: Cloghan 2015 at [39].
The Tribunal reviewed the licences for the abattoir issued under the Environmental Protection Act 1986 (WA) (EP Act) and noted that, at condition 10, reference was made to the maintenance of wastewater storage and ponds and a related plan depicts the ponds east of the abattoir as wastewater ponds. No reference was made to these ponds being decommissioned: Cloghan 2015 at [40].
At [42] in Cloghan 2015 the Tribunal commented that:
Each of the parties, in support of their respective positions, was able to direct the Tribunal to correspondence between themselves and either the Environmental Protection Authority or what is now the Department of Environmental Regulation, in which statements are made about: the use of the oval shaped pond; whether or not the oval shaped pond has been decommissioned; the location on the abattoir site that might now be considered as the source of odour; and from where the buffer might be measured.
The Tribunal notes that the respective authors of the emails and letters from the EPA and DER have not been unequivocal, and the various comments made are, in part, contradictory The Tribunal was also not assisted by the authors of the emails and letters not being called as witnesses. It would also appear that the comments might be based on what it was expected might happen, and perhaps should happen, but there was no confirmation in any of the correspondence that, in fact, the western oval shaped pond was no longer in use and was no longer a source of odour. The Tribunal had no other evidence that the oval shaped pond had ceased use as an anaerobic water treatment site or that it was being decommissioned. There was, in fact, no actual evidence that the abattoir was under a specific obligation that this was required and, if it was, by what particular date it was to be completed.
The Tribunal considered that, in an overall sense, the evidence from the environmental regulator was not clear. It was also the case that there was no direct evidence provided in relation to what was happening at the abattoir. The Tribunal concluded that all that the evidence actually suggested was what might, or perhaps even should, happen in relation to the effluent ponds and the question of odour.
Ultimately, the Tribunal was not satisfied that it was appropriate to conclude that there was any basis to measure the 500 metre odour buffer from a different source. The Tribunal commented that it may be that the odour source for the abattoir will be changing, but there is nothing to show that this had yet happened: Cloghan 2015 at [43].
The Tribunal determined that the correct and preferable decision was to dismiss the application for review: Cloghan 2015 at [45].

The 2019 Proposal

Applicant's submissions

The applicant submits that the 2019 Proposal is based on 'new' information that has come to light since Cloghan 2015 was determined on 27 March 2015.
The materials put forward by the applicant include the current licence (L5423/1990/15) which expires on 20 September 2020 (2015 Licence). The Licence was issued by the Department of Water and Environmental Regulation on 24 September 2015.
The other 'new' information that the applicant identified, is that as at August 2018, administrators appear to have been appointed for Goodchild Abattoirs.
The applicant was also concerned about the overall conduct of both Goodchild Abattoirs and the Shire. He says the Shire employed a meat inspector but then had closed‑door meetings in relation to the operation of the abattoir.
On 6 June 2019 the Shire refused the 2019 Proposal for the same reasons outlined in Cloghan 2015, namely that:
1)The Goodchild Abattoir wishes to maintain the existing buffer in order to protect its operations.
2)There is no set time for the decommissioning of the western ponds on the Abattoir site and there is also no formal commitment to the Shire of Harvey that they may not be utilised again in the future.
3)Nearby and adjacent properties that lie within the buffer area have been required to comply with the 500 metre buffer requirement in relation to the location of building envelopes.

Respondent's submissions

The Shire submits that the 2019 Proposal is an abuse of process as it is an attempt to re‑litigate issues that have already been determined: Erujin Pty Ltd and Western Australian Planning Commission [2010] WASAT 29; (2010) 70 SR (WA) 69.
The Shire submits that the planning framework is unchanged from the framework that applied in Cloghan 2015. Furthermore, the Shire submits that the planning framework precludes the Shire from granting approval to the 2019 Proposal. In particular the Shire highlights the following criteria and setbacks (from Sch 4 to DPS 1) shall apply to development on Lot 1:
(viii)all building envelopes are to be located outside the 500 metre off-site industrial buffer area established for the abattoir works on Lot 26 Rosamel Road, Parkfield.
The Shire agrees that the abattoir is not currently tenanted. However, the Shire submits that the current absence of a tenant from the abattoir is irrelevant as the use 'abattoir' remains a permitted use on Lot 300.
The Shire submits that the question of the odour buffer was considered in detail in Cloghan 2015 and the matter was dismissed. The Shire submits that there has been no change in the applicable planning framework and the 2019 Proposal should be dismissed as an abuse of process.

Abuse of process: applicable principles

Section 47 of the SAT Act states as follows:
(1)This section applies if the Tribunal believes that a proceeding ‑
(a)is frivolous, vexatious, misconceived or lacking in substance; or
(b)is being used for an improper purpose; or
(c)is otherwise an abuse of process.
(2)If this section applies, the Tribunal may order that the proceeding be dismissed or struck out and make any appropriate orders.
(3)The Tribunal's powers to act under subsection (2) are exercisable only by a legally qualified member.
(4)The Tribunal may act under subsection (2) on the application of a party or on its own initiative.
I am a legally qualified member for the purposes of s 47(3) of the SAT Act.
The concept of an abuse of process offers protection against attempts to re‑litigate matters. Even where estoppel does not strictly arise, an attempt to re-litigate a matter that has been decided in an earlier proceeding may constitute an abuse of process: Erujin Pty Ltd v Western Australian Planning Commission [2010] WASC 326 at [54] (Allanson J) (Erujin 2010).
Even though the Tribunal is not a court, the principles relating to an abuse of process are applicable to the Tribunal: Erujin2010 at [55] ‑ [56].
So long as the issue of law or fact which has been determined in the earlier judgment can be identified, the court and the parties may be protected against an abuse of process by way of attempted re-litigation of the issue already judicially determined: Erujin2010 at [54].
In van der Feltz the applicants (Mr and Mrs van der Feltz) sought review of a decision of the City of Vincent (City) to refuse to grant them development approval for the construction of a carport. Following a contested final hearing, the Tribunal dismissed the application for review and affirmed the City's decision to refuse development approval.
Some three weeks after the Tribunal's decision to dismiss the review, the applicants lodged a further application seeking approval for the same development. When their second development application was also refused, a further review application was lodged with the Tribunal.
The Tribunal determined that the second review process lodged by Mr and Mrs van der Feltz was an abuse of process as it was an attempt to re-litigate a decided matter. The proposed development in the second review proceeding was the same as the proposed development in the first review. The planning framework had not changed and there was no other significant or substantial change in circumstances.
Judge Parry found that to allow the second review proceeding to continue would bring the administration of administrative justice into disrepute and he dismissed the proceeding as an abuse of process: van der Feltz at [43].
In Erujin Pty Ltd and Western Australian Planning Commission (No 2) [2011] WASAT 50; (2011) 75 SR (WA) 42 (Erujin 2011), in finding that the a review constituted an abuse of process, the Tribunal noted that 'the Tribunal [had previously] made a final decision in terms of the consent orders and the circumstances have not changed in any material way' and therefore 'it would bring the administration of administrative justice into disrepute to allow the current proceedings to continue': at [41].

Analysis and disposition

The 2015 Licence

The 2015 Licence includes the following summary (at page 3):
All wastewater and contaminated stormwater from the abattoir and livestock holding yards is directed into the site wastewater treatment system (WWTS). The WWTS has been recently upgraded via works approval W5595/2014/1 to include a tertiary treatment stage to improve the quality of treated water. The WWTS comprises a primary and secondary screening system, a HDPE lined aerobic wastewater treatment pond, six clay lined facultative ponds and a reverse osmosis treatment plant. Treated water is transferred to storage tanks for reuse on site as wash down water for the holding yards. Wastewater may also be collected from the final facultative pond for offsite disposal to a licensed facility due to shut down or malfunction of the WWTS. As a result of the WWTS upgrade, Goodchild has been able to decommission the unlined anaerobic pond which was previously the first stage in the wastewater treatment process. A hydrogeological assessment of the site in 2011 identified a plume of elevated nutrient concentration which is attributed to seepage from the unlined anaerobic pond and the previously clay lined aerobic pond.
Key issues associated with operation of the facility include odour emissions, solid waste management and wastewater management. There are numerous odour sources within the abattoir although historically the WWTS has been the primary odour source. Decommissioning of the anaerobic pond has removed the primary odour contributor; however correct management of the WWTS and other odour generating activities is essential to minimise odour emissions as the premises is located within the recommended separation distance for sensitive land uses.
An aerial photograph on page 13 of the 2015 Licence shows the various components of the abattoir. West of the abattoir buildings is the rectangular aerobic pond. The oval‑shaped pond is not identified as having any function connected with the abattoir. The 2015 Licence includes the following 'improvement' condition which related to odour:
The Licensee shall submit a Closure Report following completion of the decommissioning of the anaerobic pond. The report shall include details of the volume of waste removed from the pond, the disposal location for waste removed from the pond, and the rehabilitation methods used to decommission the facility.
These improvements were required to be completed by 31 March 2016.
In the 2015 Licence decision table, under the heading 'Odour', the following is set out:
Emission: Odour emissions may be generated from the WWTS, solid waste storage areas, and general abattoir and livestock holding activities conducted on the premises. Impact: Nuisance impacts on neighbouring residences. The closest residence is approximately 400 m southwest of the premises boundary and 600m south west of the aerobic wastewater treatment pond. Historically DER has received occasional odour complaints potentially regarding the premises although these have not been substantiated due to other odour sources in the area. DER has received a number of odour complaints from residences in the adjacent subdivision in 2015 although the odour source has not been confirmed as either the abattoir or another source. The anaerobic pond has historically been the most significant source of odour on site. Controls: The upgraded WWTS has been designed to improve the quality of treated wastewater resulting in a reduced likelihood of odour emissions associated with wastewater treatment. The upgraded system includes the addition of aerators in the facultative ponds to increase the rate of nutrient breakdown and reverse osmosis treatment to improve the final quality of the treated water. Upgrade of the system has enabled the licensee to decommission the old anaerobic pond which was the primary source of odour for the premises. Since its decommissioning there have not been any odour complaints which have been directly attributed to activities on the premises. Solid wastes are stored on site for minimal amount of time with daily removal to licenced premises for disposal. Previous licence L5423/1990/14 included condition 1 requiring that odour emissions did not impact on persons not on the premises.
The 2015 Licence was granted after Cloghan 2015 was determined. Based on the commentary set out in the 2015 Licence it would appear that there has been a change in operations at the abattoir. That commentary suggests that an anaerobic pond has been decommissioned and it is possible that the now decommissioned pond was the pond that had been identified as the 'primary source of odour' at the abattoir for the purposes of the odour buffer under DPS 1.
The applicant's materials also include a Works Approval (W5595/2014/1) under Pt 5 of the EP Act which relates to the upgrading of the wastewater treatment system at the abattoir. The works identified also include reference to the decommissioning of the anaerobic pond. The works approval was issued on 15 May 2014 (prior to Cloghan 2015) and expired on 18 May 2017.

The basis of the Tribunal's decision in Cloghan 2015

At [27] to [43] of these reasons, I have set out a summary of the Tribunal's reasons in Cloghan 2015. In evaluating an assertion of abuse of process it is important to identify the discretion that was being exercised by the Tribunal in Cloghan 2015.
Without intending any criticism of Cloghan 2015, I do not consider that Issue 1 (being whether the abattoir should have an overriding influence on the decision to maintain the buffer) was an issue that was actually before the Tribunal.
Pursuant to DPS 1, the Tribunal has no role in establishing the buffer for the purposes of item 4.4 of Sch 4. The discretion being exercised by the Tribunal in Cloghan 2015 was whether it was the correct and preferable decision to allow the building envelope to be relocated. The issue of how the buffer was to be established was not the reviewable decision before the Tribunal.
As I had occasion to mention in Paterson (at [66]), the Tribunal is a creature of statute and only has authority to exercise the jurisdiction arising under the enabling statute read together with the SAT Act; see also The Match Group v Metropolitan South West Joint Development Assessment Panel [2014] WASCA50; (2014)200LGERA 227 at [20] ‑ [23] (Pullin, Newnes and Murphy JJA).
It follows that the Tribunal's comment at [44] in Cloghan 2015 that 'there is no basis for shifting the 500 metre buffer as it affects [Lot 1]' was a conclusion in relation to an issue that, while relevant, was not the reviewable decision before it in any formal sense.
The actual decision that forms the basis in Cloghan 2015 at [43] is that there was no basis to conclude that the odour source within the abattoir had changed such as to enable the building envelope to be relocated.

The Shire's consideration of the 2019 Proposal

The materials before the Tribunal include the Shire's Notice of Determination of the 2019 Proposal. It is plain from that determination that the Shire is aware of the 2015 Licence. Nevertheless, the report notes that:
The evaporation pond identified as the Odour Source closest to [Lot 1] in the original Department of Environmental Conservation correspondence dated 23 May 2008 has not yet been decommissioned.

Why the 2019 Proposal is an abuse of process

Since the Tribunal's decision in Cloghan 2015 the planning framework, as it relates to Lot 1, has not changed in any material way. The only significant change would be the commencement of the 'deemed provisions' that are part of Sch 2 to the Planning and Development (Local Planning Scheme) Regulations 2015 (WA) on 19 October 2015. However, the 'deemed provisions', which now form part of DPS 1, have no direct bearing on the 2019 Proposal.
It is still the case that under item 4.4 of Sch 4 to DPS 1, the building envelopes are to be located outside of the 500 metre buffer that has been adopted. The Court of Appeal has confirmed that the provisions of a local planning scheme, which have the force of law, can validly require development to conform to an instrument that does not form part of the scheme: Scutti v City of Wanneroo [2018] WASCA 175; (2018) 53 WAR 417; 232 LGERA 395 at [125] (Buss P, Murphy JA and Allanson J) cited in Corp and Town of Cambridge [2019] WASAT 65; (2019) 97 SR (WA) 252 at [26].
While the Tribunal in Cloghan 2015 did not direct its mind as to whether there was any discretion to approve a building envelope in a manner contrary to item 4.4 of Sch 4, if the 2019 Proposal were to proceed any further, that would be a matter that I would need to consider.
The use of the word 'shall' in item 4.4 of Sch 4 indicates that compliance with the established buffer operates as a mandatory requirement: s 56(2) of the Interpretation Act 1984 (WA). Likewise, cl 5.3.2 and cl 5.3.9 of DPS 1 are expressed to make it a mandatory requirement that development comply with the requirements set out in Sch 4 to DPS 1. It is at least arguable that there is no reviewable decision unless and until the adopted odour buffer is amended. However, as I am dealing with the question of abuse of process, that is not an issue on which I need to reach a concluded view.
The odour buffer that affects Lot 1 has not been amended since Cloghan 2015. That buffer that was established in following the WAPC's decision to approve the subdivision of Lot 101 in 2008. Condition 6 (read together with advice note iii) of the WAPC's subdivision approval (S135098) require that buffers for the proposed lots be 'outside of the 500 metre off‑site industrial buffer area established for the abattoir'.
I find that there is no basis that would justify the Tribunal's reconsideration of this issue at this time.
I agree with the applicant that it appears that there may have been a change to the abattoir's operations since Cloghan 2015. However, a change in the internal operations of the abattoir does not, of itself, constitute a change in the applicable planning framework. In fact, the planning framework has not changed at all. Furthermore, there is no clarity or certainty as to the planning implications, if any, that would arise from any changes within the abattoir.
If the applicant considers that the odour buffer is no longer required or could be amended, it is open to him to seek to demonstrate that the basis on which the odour buffer was established has changed. As the Tribunal noted in Cloghan 2015, the applicant could prepare a site specific study on odour that may provide a sound basis on which to modify the current buffer requirement which, consistent with GS 3, is set at a generic 500 metres.
Indeed, as was noted by the Tribunal in Cloghan 2015 (at [10]), SPP 4.1 provides that an industrial buffer should not be varied unless justified in a scientifically based study.
The fact that the abattoir is not currently tenanted and that the operator is in financial administration are not relevant consideration. The use of Lot 300 for the purposes of an abattoir remains a permitted use.
The commentary included in the 2015 Licence may be a cause for some optimism for the applicant. However, at the present time, the 2015 Licence has not resulted in any changes to the applicable planning framework and nor has the applicant produced a site specific report which would suggest that the existing odour buffer could be said to be redundant, outdated or obsolete.
So far as the Shire is concerned, the pond which is the odour source for the establishment of the buffer has not been decommissioned. There is therefore, at present, no basis on which it would be appropriate to revisit the issue of whether the building envelope for Lot 1 should be relocated.
Having regard to Allanson J's analysis in Erujin 2010 at [54], the issue that has been determined, from which the Shire ought to be protected from re‑litigation, is that there is no basis to find that the existing odour buffer is redundant, outdated or obsolete. That was the Tribunal's ultimate finding in Cloghan 2015 and it remains the case.
As was the case in Cloghan 2015, the materials before the Tribunal do not establish the precise locations, or the status of, the odour sources within the abattoir. Even if the odorous pond has been decommissioned it may remain a potential odour source at some future point. The future planning and requirements of the abattoir, a land use that existed prior to Lot 1 being created, are not known.
I therefore find that even if the odorous pond has been decommissioned this, of itself, is an insufficient basis on which to revisit the building envelope issue at this time.

Conclusion

For the reasons set out, I find that the 2019 Proposal is an abuse of process as it is an attempt to re‑litigate a matter that was previously determined by the Tribunal in circumstances where the applicable planning framework has not changed in any material way. It follows that the correct and preferable decision is that these proceedings be dismissed as an abuse of process.
To allow the 2019 Proposal to continue would bring the administration of administrative justice into disrepute as it would undermine the public interest in the finality of litigation: van der Feltz at [23]; Erujin2011 at [41].

Finally, it is appropriate to observe that there can be little doubt the abattoir is an important commercial activity for the Shire and the broader region. However, the abattoir does generate off-site impacts including odour. While these proceedings should be dismissed, I do consider that the Shire, if it has not done so already, should inform itself as to the current and future needs of the abattoir so that the planning arrangements for this locality are known and are certain.

Orders

1.Pursuant to s 47(1) of the State Administrative Tribunal Act 2004 (WA) this proceeding is dismissed as an abuse of process.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR S WILLEY, MEMBER
14 NOVEMBER 2019