Cloghan and Shire Of Harvey - [2015] WASAT 33

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: CLOGHAN and SHIRE OF HARVEY [2015] WASAT 33

MEMBER: MR J JORDAN (MEMBER)

HEARD: 10 FEBRUARY 2015

DELIVERED : 27 MARCH 2015

FILE NO/S: DR 287 of 2014

BETWEEN: KEVIN CLOGHAN
Applicant
AND
SHIRE OF HARVEY
Respondent

Catchwords:

Town planning Development Relocation of building envelope on rural residential lot Existing buffer to abattoir Buffer centred on original effluent ponds Proposed building envelope inside existing buffer New effluent disposal ponds developed further away from site Whether original effluent disposal ponds decommissioned Proximity to Forrest Highway

Legislation:

Greater Bunbury Region Scheme
Planning and Development Act 2005 (WA), s 252(1)
Shire of Harvey District Planning Scheme No 1, cl 2.1, cl 6.3, cl 6.3.2, Sch 2, Sch 4, cl 4.4(b)(vii)
Environmental Protection Act 1986 (WA)

Result:

Application for review dismissed
Decision of local government to refuse the application to relocate the building envelope affirmed

Summary of Tribunal's decision:

This matter involved the refusal of the local government to approve the relocation of a building envelope on Lot 1 Lofthouse Drive, Leschenault. Lot 1 was mostly within a 500 metre buffer, measured from an odour source at an abattoir located to the east. As required by the relevant planning controls, the allocated building envelope on Lot 1 was located outside the abattoir buffer.
The applicant argued that the odour source had been or was being relocated and the buffer should now be measured from a different location. Lot 1 would no longer be within 500 metres of the odour source and the building envelope could be relocated to a better site on the lot.
The Tribunal found that the evidence of correspondence between the parties and the relevant environmental agencies was equivocal and, in part, contradictory. The Tribunal could not be confident that the current odour source on the abattoir site had been decommissioned and there had been established a basis for considering that the buffer should be drawn differently. The Tribunal concluded that the proposed building envelope would therefore be within the established abattoir buffer and could not be supported.
The Tribunal dismissed the application for review.

Category: B

Representation:

Counsel:

Applicant: In Person
Respondent: Mr N Dowling (Acting As Agent)

Solicitors:

Applicant: N/A
Respondent: Shire of Harvey

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

This matter involved an application by Mr Kevin Cloghan (applicant) pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) for review of the refusal of the Shire of Harvey (Shire or respondent) to grant planning approval for the relocation of the building envelope on No 96 (Lot 1) Lofthouse Drive, Leschenault (site).

Site and locality

The site was created in 2008 when the Western Australian Planning Commission granted approval for the subdivision of former Lot 101 into the site and Lot 2. Lot 2 has an area of about 2.2 hectares.
The site has an area of 1.83 hectares, with frontage to Lofthouse Drive at the western end and a common boundary with the Forrest Highway road reserve at the eastern end. The site is between 140 and 180 metres deep. At the western end of the site the water table is close to ground level. The site rises to the east with a high point about 50 metres from the eastern boundary.
To the north the site joins a reserve for conservation. To the south and west are rural residential lots similar in size to the site. The two lots immediately to the south and others in the vicinity have a house built on them.
To the east of the site on the opposite side of Forrest Highway, on the corner of Rosamel Road and the highway, is Lot 300 which has developed on it the Goodchild Abattoirs Pty Ltd (abattoir). The distance from the eastern boundary of the site to the abattoir buildings is about 500 metres and to the holding paddocks about 450 metres. To the east of the abattoir buildings is a series of new effluent disposal ponds that have been or are nearing completion. To the west of the abattoir buildings are two ponds, a larger rectangular pond, and, adjacent to the south-eastern corner of this pond, a smaller oval shaped pond. From the eastern boundary of the site to the western edge of the oval pond is about 400 metres.

Planning framework

The site is zoned Rural in the Greater Bunbury Region Scheme and 'Special Rural-Landscape Protection' under the Shire of Harvey District Planning Scheme No 1 (DPS 1).
Significant in this matter is that the Shire has defined a buffer extending 500 metres from the western end of the oval pond on the abattoir site. This buffer cuts an arc through the site at between 25 and 55 metres from the Lofthouse Drive boundary.
As provided for in Sch 4.4 Area 4 – Cathedral Avenue, Leschenault of DPS 1, when the site and adjoining Lot 2 to the south were created by subdivision in 2008, a building envelope was defined for each lot. The allocated building envelope for the site and all other affected lots in the zone lies outside the defined 500 metre abattoir buffer. For the site, the allocated building envelope is about 1,300m², and is about 65 metres wide and between 8 and 25 metres deep. The envelope is 20 metres from the Lofthouse Drive boundary, 20 metres from the two side boundaries, and abuts the edge of the 500 metre abattoir buffer.
Significant in this matter is the 'Environmental Protection Authority Guidance for the Assessment of Environmental Factors: Separation Distances Between Industrial and Sensitive Land Uses' No 3 June 2005 (Guidance Statement No 3). Appendix 1 of Guidance Statement No 3 lists for an abattoir, a generic buffer distance in metres of '500 to 1000, depending on size'. Guidance Statement No 3 at cl 4.2 provides general guidance on separation distances 'in the absence of site specific technical studies'.
Also relevant is the Western Australian Planning Commission State Planning Policy No 4.1 'State Industrial Buffer Policy' (SPP 4.1). 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.

Proposed development and the refusal

Proposed is the relocation of the allocated building envelope on the site about 25 metres to the northeast, to higher land some 47 metres from the Forrest Highway boundary and 15 metres from the northern boundary. The applicant's sketch shows dimensions of the proposed envelope to be 20 metres wide and 20 metres deep. The respondent, in its statement of issues facts and contentions, said it would 'entertain an increase of the existing building envelope for a further 1,400m² of nonhabitable floor space within the buffer area to provide for nonhabitable outbuildings and onsite effluent disposal'. The total building envelope would then be 2,699m². The applicant did not seek to amend his application for review to request this as an alternative outcome. The Tribunal did not therefore need to consider the variation to the existing building envelope. The parties could discuss their suggestions at some other time if they wish to do so.
The respondent refused the application 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.

Issues

From the submission of the respondent, on what it considered to be the issues, and the response of the applicant, the issues can be stated as follows:
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.

Discussion

There was no dispute between the parties that the proposed building envelope was superior to the existing envelope as a house site. This was because it was elevated, away from the high water table and provided better views towards the Leschenault Inlet. However, the relocation of the building envelope has been refused because it would be situated within the buffer to the abattoir as currently defined. This leads to the discussion of the issues.

Issue 1 Whether the abattoir should have an overriding influence on the decision to maintain the current buffer

The evidence of the respondent was that on 10 July 2014, the Shire received an email from the abattoir saying it 'would not like to see any changes to the buffer zone as it stands' and including the comment:
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.
Mr Neville Dowling, the Shire's planner who gave evidence, interpreted this comment as indicating that the abattoir wished to keep the existing buffer zone 'so as not to compromise its operations'.
The applicant said he found it mysterious that the respondent appeared to be a spokesperson for the abattoir. It appeared to the applicant that the abattoir simply wanted the status quo to remain to avoid any controversy. He said the buffer zone was not a matter that should be determined by the abattoir operator, Goodchild Abattoirs Pty Ltd, but was for the Shire to determine.
The Tribunal would comment that it is the fact of the presence of the abattoir that determines whether a buffer is required. If there was no abattoir there would be no need for a buffer. Guidance Statement No 3 and SPP 4.1 require that a buffer to an abattoir be considered and defined, and this has occurred.
The applicant is correct in that a responsible authority cannot simply hand over to the abattoir the task of defining the buffer, but the Tribunal does not consider that has happened in this instance. In determining the buffer size and from where it should be measured, it is quite proper for the responsible authority to ask for and have regard to comments by the abattoir operator on how the abattoir operates and where various elements of its operations are located. Proper planning would require these enquiries be made even if the abattoir operator had no opinion to offer on a buffer.
The abattoir's comments are relevant, but, more particularly, the determining factor would be an objective assessment of how the abattoir currently operates and the source of the emissions. This leads to a consideration of the second issue.

Issue 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

Although the ponds are to be decommissioned, there was no evidence that there was no legal agreement in place that states that the ponds will be decommissioned and, if so, when. The applicant said he understood there was a 'works order' in place to require decommissioning of the western ponds but there was no evidence to support this.
This issue overlaps with issue 6 below and will be discussed further there.

Issue 3 Whether it is fair and equitable that the proponent be granted a building envelope within the 500 metre buffer distance whereas the other nearby landowners have already had to comply with building outside the proclaimed buffer

The Tribunal notes that at present all building envelopes are outside the 500 metre buffer distance as currently drawn. The evidence of the respondent was that other owners had complied with the requirement to build within their allocated building envelope outside the 500 metre buffer and at present the applicant also has the same restriction imposed upon him. The Tribunal agrees it might not be fair and equitable if the applicant was allowed to simply ignore the buffer and place a building envelope closer to the abattoir if there was no basis for doing so.
The applicant has taken the opportunity to argue that the buffer should be reconsidered so that none of the lots west of Forrest Highway are affected. This was because he considered the abattoir now only uses, or should be using, effluent ponds east of the abattoir buildings.
If the buffer is to be redefined, there is no good reason why the applicant should not then be allowed to relocate his allocated building envelope, if it was still to comply with the required separation distance from the odour source at the abattoir. It would make no sense that the applicant should be required to build 500 metres from a particular point on the abattoir site simply because other landowners were required to do so at a previous time when the buffer was measured from that point. This relates to whether the buffer should be measured from a different location within the abattoir site, and this is discussed further in issue 6 below.

Issue 4 - Whether it is appropriate to allow the building envelope to be located closer to Forrest Highway

The respondent pointed out that the relocated building envelope would come within 50 metres of the highway road reserve. Forrest Highway is the main route from Perth to Bunbury and carries 'a large volume of passenger and heavy road freight vehicles'. It was also said by the respondent that the traffic would increase in volume over time. The Shire wants to keep the building envelope 'well distanced' from Forrest Highway. Mr Dowling acknowledged that there were building envelopes closer than 40 metres to the highway further to the south. He said the concern of the respondent was mainly an amenity issue and that there would be less potential for noise and vibration in any dwelling the further it was built away from the highway.
Mr Cloghan emphasised the presence of other building envelopes in the locality closer to Forrest Highway and said that he was conscious of any potential impact when he chose the proposed building envelope site. He did not consider that any house built on the proposed envelope would be noticeably affected by noise and vibration from the highway.
The Tribunal has accepted that a distance of not less than 50 metres from the highway reserve would be sufficient to ameliorate any impact on a house from noise and vibration of traffic on the highway. The location of the proposed envelope would also be consistent with the location of other envelopes that earlier were deemed acceptable by the respondent.

Issue 5 - Whether the proposed building envelope addresses the requirements for a 'place of landscape value' in Sch 2 - cl 2.1 of DPS 1

The respondent listed this as an issue, but failed to develop any argument about whether the proposal is in conflict with any particular provision of cl 2.1 of Sch 2 of DPS 1.
The site is within an area of landscape value known as the 'coastal lowlands'. Clause 2.1 of Sch 2 of DPS 1 lists matters to be considered when subdivision or development is proposed, including impact on vegetation and topography. There was nothing in the respondent's submissions that argued that the proposed site for the relocated building envelope would have any undue impact on either existing vegetation or the topography, or any other consideration listed in cl 2.1 of Sch 2 of DPS 1.
The respondent also stated that the site was subject to the provisions of cl 6.3 'Special Rural Development Requirements' of DPS 1. More particularly, cl 6.3.2 states:
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.
The respondent then went on the state that the site was therefore subject to the provisions of Sch 4.4 Area 4 - Cathedral Avenue, Leschenault of DPS 1. Most specifically the reference by the respondent is to cl 4.4(b)(viii) which states that:
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 respondent noted that Lot 26 is now Lot 300 Rosamel Road, Parkfield.
The Tribunal notes that the building envelope on the site satisfies Sch 4 cl 4.4(b)(viii) because it is outside the currently defined 500 metre offsite abattoir buffer. If the buffer were to be re drawn as submitted by the applicant, the proposed building envelope would be outside the redrawn buffer and so again satisfy Sch 4 cl 4.4(b)(viii). The question is whether the abattoir buffer should be redrawn. This feeds into matters raised in issue 6.

Issue 6 - Whether the advice received from the Department of Environmental Regulations since 2011 has varied and whether it supports the location of the abattoir buffer

Documents filed by the Shire reveal that in 1998 the Shire adopted a structure plan for the subdivision of the locality, which included the site, that became known as the Leschenault Parklands Estate. A note on the 1998 structure plan stated that a line drawn on the plan denoted 'the approximate location of a 500 metre buffer for the abattoirs' and that 'the exact location of the buffer is to be determined by survey at the subdivision stage'.
At a time after 1998, unknown to the Tribunal, the subdivision was completed and it included Lot 101. Allocated building envelopes were defined as part of that subdivision approval. On 23 November 2007 the Environmental Protection Authority wrote to the applicant concerning special rural subdivision of Lot 101 Lofthouse Drive, Parkfield. That letter included the advice:
While the proposal is outside the 500m odour buffer from the new abattoir treatment ponds, it is within the 500m buffer from existing treatment ponds. It is the understanding of the EPASU that the long term plans for these existing ponds are for them to become backup winter storage ponds rather than treatment ponds at the abattoir. On this basis it is accepted that a 500m buffer from the existing old ponds is not necessary.
The proposed residences within the proposed special rural subdivision will need to be separated from any incompatible land use by an adequate buffer as described in the EPA's Guidance Statement No 3 'Separation Distances between Industrial and Sensitive Land Uses'. The EPA recommends that generic separation distances are maintained unless adequate site-specific studies have been carried out that demonstrate that a lesser distance will not cause unacceptable impact. …

In 2008, a sketch prepared for the subdivision of Lot 101 (WAPC reference 135098), showed all but a small triangle in the southwestern 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
In a letter from the Department of Environment and Conservation (DEC) signed by Mr Neville Welsh, Regional Leader - Industry Regulation South-west Region dated 5 October 2011, the applicant was informed that the role of DEC in the planning process was to provide advice to the decision-making authority and any request for comment on an application for subdivision should come from that decision-making authority. The letter indicated that DEC based its advice to local governments on Guidance Statement No 3. DEC acknowledged that recommended buffer distances from industrial premises to residential areas 'may be reduced based on the outcome of site specific studies'. Mr Welsh said he was 'not aware of any site specific studies that have been undertaken to support a reduction in the abattoir buffer'. Mr Welsh went on to state:
I note that you were requesting DEC provide 'written support that the buffer to the abattoir no longer applies' without providing relevant information on which an assessment and recommendation can be made. As outlined above, in considering advice on these matters, DEC refer to the Guidance Note recommended buffer distance. At this stage, based on the information at hand, and in the apparent absence of site specific studies to support the claim, cannot support a claim that the buffer no longer applies. [sic]
In an email dated 20 June 2014 Mr Neville Hartup, an officer of the Department of Environmental Regulation (DER), wrote to Mr Dowling of the Shire stating:
The primary odour source at the abattoir is currently the active wastewater treatment ponds to the east of the abattoir buildings, which in DER's view is the point where any buffer should be calculated from.
The western pond was decommissioned in 2009 and has since been relined, but is not currently in use. Following an upgrade of the wastewater treatment system, expected to be completed by 2015, this pond will receive treated wastewater in the final stages of the process with a water quality expected to conform to drinking water guidelines, and is therefore no longer considered to be an odour source.
Following on from that email, on 9 October 2014, Mr Hartup sent an email to Mr Simon Hall, an officer from the Shire, stating:
The anaerobic pond at the abattoir should have been decommissioned long before now. This was a commitment made by Goodchild as part of their closure plan for the wastewater ponds and wastewater system upgrade, which is subject to a current works approval and is nearing completion. DER would have significant concerns if the anaerobic pond is not decommissioned by the end of 2014 and would consider this matter further if this is indeed the case.
At the end of the day though, the generic buffers provided an EPA Guidance Statement No 3 are to be used as guides only in the absence of site specific information and DER acknowledges the Shire as the planning authority, has sole discretion and final say in determining what (if any) buffer should apply from a planning perspective. …
It is appropriate, at this point, to mention again the comments of Goodchild Abattoirs Pty Ltd in its email to the Shire of 10 July 2014, set out in full above, in which it said that the abattoir still has an anaerobic treatment pond west of the abattoir which was considered a 'primary odour source'. The abattoir said the pond would be decommissioned 'sometime in the future', but it could not give a date when that would happen.
Put into evidence was a copy of the License for Prescribed Premises dated 20 September 2012 (licence) issued under the Environmental Protection Act 1986 (WA), for the abattoir. The licence, at condition 10, refers to maintenance of wastewater storage and ponds, and a plan depicts the ponds east of the abattoir as wastewater ponds. The plan shows the western ponds, but there is no other direct reference to the use or the decommissioning of them in the licence.
The Tribunal notes that the buffer for the abattoir is at the lowest end of the generic buffer distance listed in Table 1 of Guidance Statement No 3. There would be two methods in which the location of the buffer as it affects the site could be changed. The first of these would be a variation of the buffer distance based upon the findings of a site specific technical study as provided for in both Guidance Statement No 3 and SPP 4.1. There has been no site specific scientifically based study on which reconsideration of the buffer could be based. The second means by which the impact of the buffer on the site could be altered is if the point from which the existing 500 metre buffer is measured. In this locality it was established when the Parkland estate was first subdivided that the buffer was to be measured from the odour source. This was established as the western edge of the oval shaped pond to the west of the abattoir buildings.
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.
In the circumstances, having regard to the evidence filed and the submissions of the parties, the Tribunal is not satisfied that the 500 metre buffer should now be measured from a different source. It might well be that the odour source is changing, but there is nothing to show that this has yet happened.
In the circumstances, the Tribunal has concluded that there is no basis for shifting the 500 metre buffer as it affects the site. It therefore follows that it would be inconsistent with the provisions of DPS 1, Guidance Statement No 3 and SPP 4.1 to allow the relocation and the building envelope proposed by the applicant.
The Tribunal has therefore decided to dismiss the application.

Orders

1.The application for review is dismissed.
2.The decision of the Shire of Harvey dated 1 August 2014 to refuse to grant planning consent to relocate the allocated building envelope of Lot 1 Lofthouse Drive, Leschenault is endorsed.

I certify that this and the preceding [45] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J JORDAN, MEMBER