DI TRENTO and SHIRE OF NORTHAM

[2017] WASAT 121

DI TRENTO and SHIRE OF NORTHAM [2017] WASAT 121

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2017] WASAT 121
Published:	18/09/2017
Act:	PLANNING AND DEVELOPMENT ACT 2005 (WA)
Case No:	DR:21/2017	Heard:	11 MAY AND 20 JUNE 2017
Coram:	MS M CONNOR (MEMBER)	Delivered:	28/08/17
No of pages:	13	Judgment Part:	1 of 1
Result:	Application for review dismissed Decision of respondent affirmed
Category:	B
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Parties:	PEPPINO DI TRENTO SHIRE OF NORTHAM
Catchwords:	Town planning Development application Material recycling facility Rural zone Preliminary issue Whether proposed development capable of approval Whether proposed development classified as 'industry extractive', 'industry ­ light' or 'industry general' under local planning scheme
Legislation:	Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 1, Sch 2, cl 76(2) Shire of Northam Local Planning Scheme No 6, cl 3.3.1, cl 3.3.2, Sch 1, Table 1, Table 4 State Administrative Tribunal Act 2004 (WA), s 31
Case References:	Clay and City of Nedlands [2012] WASAT 193 GMF Contractors Pty Ltd and Shire of Serpentine-Jarrahdale [2006] WASAT 353 Humich and City of Gosnells [2008] WASAT 298 Stargaze Assets Pty Ltd and City of Swan [2016] WASAT 106 Terra Spei Pty Ltd and Shire of Kalamunda [2015] WASAT 134
Orders	For the above reasons, the Tribunal makes the following orders:,1. The proper land use classification of the proposed development under the Shire of Northam Local Planning Scheme No 6 is 'industry - general' or 'industry - light'.,2. The proposed development is not capable of approval under the Shire of Northam Local Planning Scheme No 6.,3. The application for review is dismissed.,4. The decision made by the respondent on 23 December 2016 to refuse to grant development approval for a Materials Recycling Facility on Lot 10 (No 425) Eadine Road, Clackline is affirmed.
Summary	Mr Peppino Di Trento applied to the Tribunal for review of a decision of the Shire of Northam to refuse to grant development approval for a material recycling facility on Lot 10 (No 425) Eadine Road, Clackline.,A threshold issue arose for determination as to the proper classification of the proposed use for the purposes of the Shire of Northam Local Planning Scheme No 6(LPS 6 or Scheme).  The question being, whether the proposed use was properly classified as 'industry ­ general' or 'industry ­ light', as contended by the respondent, or 'industry ­ extractive' as contended by the applicant.,The Tribunal found that the proper classification of the proposed development under LPS 6 is 'industry ­ general' or 'industry ­ light'.  It was unnecessary for the Tribunal to determine whether the proposed development was properly classified 'industry ­ general' or 'industry ­ light' for the purposes of LPS 6 as both these use classes are designated 'X' uses (not permitted by the Scheme) in the Rural zone in the Zoning Table of the LPS 6.  It followed that given these use classes are designated as 'X' uses in the Rural zone the proposed development was not capable of approval under LPS 6 and as such, the application for review was dismissed and the decision of the Shire of Northam to refuse development approval affirmed.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : DI TRENTO and SHIRE OF NORTHAM [2017] WASAT 121 MEMBER : MS M CONNOR (MEMBER) HEARD : 11 MAY AND 20 JUNE 2017 DELIVERED : 28 AUGUST 2017 PUBLISHED : 18 SEPTEMBER 2017 FILE NO/S : DR 21 of 2017 BETWEEN : PEPPINO DI TRENTO

Applicant

AND

SHIRE OF NORTHAM
Respondent

Catchwords:

Town planning - Development application - Material recycling facility - Rural zone - Preliminary issue - Whether proposed development capable of approval - Whether proposed development classified as 'industry - extractive', 'industry ­ light' or 'industry - general' under local planning scheme

Legislation:

Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 1, Sch 2, cl 76(2)

Shire of Northam Local Planning Scheme No 6, cl 3.3.1, cl 3.3.2, Sch 1, Table 1, Table 4
State Administrative Tribunal Act 2004 (WA), s 31

Result:

Application for review dismissed

Decision of respondent affirmed

Summary of Tribunal's decision:

Mr Peppino Di Trento applied to the Tribunal for review of a decision of the Shire of Northam to refuse to grant development approval for a material recycling facility on Lot 10 (No 425) Eadine Road, Clackline.

A threshold issue arose for determination as to the proper classification of the proposed use for the purposes of the Shire of Northam Local Planning Scheme No 6(LPS 6 or Scheme). The question being, whether the proposed use was properly classified as 'industry ­ general' or 'industry ­ light', as contended by the respondent, or 'industry ­ extractive' as contended by the applicant.
The Tribunal found that the proper classification of the proposed development under LPS 6 is 'industry ­ general' or 'industry ­ light'. It was unnecessary for the Tribunal to determine whether the proposed development was properly classified 'industry ­ general' or 'industry ­ light' for the purposes of LPS 6 as both these use classes are designated 'X' uses (not permitted by the Scheme) in the Rural zone in the Zoning Table of the LPS 6. It followed that given these use classes are designated as 'X' uses in the Rural zone the proposed development was not capable of approval under LPS 6 and as such, the application for review was dismissed and the decision of the Shire of Northam to refuse development approval affirmed.

Category: B

Representation:

Counsel:

Applicant : Mr L Barnett
Respondent : Mr T Hockley

Solicitors:

Applicant : Taylor Burrell Barnett Town Planning & Design
Respondent : Allerding & Associates

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

Clay and City of Nedlands [2012] WASAT 193
GMF Contractors Pty Ltd and Shire of Serpentine-Jarrahdale [2006] WASAT 353
Humich and City of Gosnells [2008] WASAT 298
Stargaze Assets Pty Ltd and City of Swan [2016] WASAT 106
Terra Spei Pty Ltd and Shire of Kalamunda [2015] WASAT 134

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

1 Taylor Burrell Barnett Town Planning and Design, on behalf of Di Trento Demolition Pty Ltd, made application to the Shire of Northam (respondent, Council or Shire) for a proposed materials recycling facility on Lot 10 (No 425) Eadine Road, Clackline (subject land).

2 The Council at its meeting of 21 December 2016 resolved to refuse to grant development approval for an unlisted use for a 'Materials Recycling Facility' on the subject land for the following reasons:

1) Council determined that the application did not fit within the definition for rural zoning as defined in Local Planning Scheme No 6. It was believed that this application would be more suitable at an alternative site (i.e.industrial).

2) Concerns were also raised in relation to the intersection at Coach Road and Great Eastern Highway.

3) Council wanted to establish a precedent for future/similar applications.

3 Mr Peppino Di Trento (applicant), on 16 January 2017, made application under the Planning and Development (Local Planning Schemes) Regulations 2015 (LPS Regulations), Sch 2 cl 76(2) to have the decision reviewed.

4 As a part of the proceedings in this matter, the parties engaged in mediation process, which resulted in clarification of certain points and additional information being submitted. The Tribunal, pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA), invited the respondent to reconsider its decision in light of the further information.

5 On reconsideration of the matter at its meeting of 15 March 2017, the respondent affirmed its previous decision and gave the following reasons for refusal:

1. That a materials (demolition) recycling facility falls under the land use category industry general and the proposal is inappropriate having regard to the purposes for which the land is zoned and clause 3.2.8 (objectives of the Rural zone) of the Shire of Northam Local Planning Scheme 6.

2. The proposal is inconsistent with the orderly and proper planning of the locality.

3. The proposal would be detrimental to the rural amenity of the area for the following reasons:


3.1 The proposal will increase the risk to public safety due to an increase in the number of heavy vehicles using the intersection at Old Coach Road and Great Eastern Highway in order to access the site.

3.2 The proposal is likely to result in a nuisance and decrease the amenity of residents abutting the site.

6 The matter proceeded to final hearing.

Subject land

7 The subject land is more particularly described as Lot 10 on Plan 11253 comprised in Certificate of Title Volume 1422 Folio 239. There are no easements or encumbrances registered on the title.

8 The subject land is approximately 98.417 hectares in area and currently contains two outbuildings, a disused animal stockyard, some water tanks and two dams. The land is currently used for growing pasture and for extractive industry uses (sand and gravel). An extractive industry license was approved in 2003 and will expire in 2024.

The proposal

9 The applicant proposes to establish a facility for processing and recycling of inert building material such as aggregate which can be used for a number of purposes, for example, road base. As a part of the recycling process, gravel extracted from the existing quarry will be blended with the recycled material as a bonding agent. According to the applicant's representative, it is estimated that 'somewhere in the order of 5% to 10% of the natural material [gravel] will be part of the overall process'. It is anticipated that the annual through put will be less than 1,000 tonnes per annum.

10 The plant for the facility is to be set up within the existing gravel extraction area and includes the following machinery: crusher, excavator, digger and trucks. The mobile primary jaw plant processes materials and incorporates a conveyor that stockpiles processed material.

11 It is intended that semitrailers (typical 18m³ trucks) will deliver inert building material from the Perth metropolitan area and Perth region to be deposited within the northern part of the existing gravel extraction area for processing and stockpiling so that the extraction for gravel can continue in the southern part of the extraction area. The material to be delivered to site will be non­hazardous and free of potential contaminants or chemicals.

12 Once sufficient material is accumulated, the plant will then be operated as required in order to efficiently process material. It is expected that this would take approximately three to four hours at a time. The stockpiles could also be loaded onto the trucks that off load material for processing, therefore, trucks could enter full and exit either empty or full.

13 The proposed truck route to and from the site is via the intersection of Great Eastern Highway and Old Coach Road, then along Eadine Road entering the subject land via the existing gravel crossover and traversing the site using the existing gravel road to the gravel extraction area. The trucks used for the purpose of collecting and delivering the materials will fall within the Main Roads Western Australia's (MRWA) definition of a General Access (as of right) Vehicle, which may operate statewide. It is anticipated that there would be an average of eight truck movements per day (in and out combined), together with staff vehicle movements.

14 A bund, approximately 4 metres high, is proposed around the perimeter of the existing gravel extraction area. The applicant suggests that the bund may be shifted over time having regard for gravel extraction, or for the depositing of processed materials. The bund is proposed to be constructed from materials sourced from the land, such as gravel resources and may utilise some of the processed material. The purpose of the bund is to provide visual relief by screening the deposited material and the plant, as well as, providing dust and noise mitigation.

15 The intended hours of operation are from Monday to Saturday 7 am to 7 pm, which relates more to trucks arriving/departing the site, as the plant is only intended to be operated as sufficient material is accumulated. It is intended that the facility will be staffed by one plant operator, an on-site labourer and truck drivers.

Land use classification

16 A threshold issue arises for determination in this review as to the proper classification or characterisation of the proposed use for the purposes of Shire of Northam Local Planning Scheme No 6 (LPS 6 or Scheme), in particular, whether the proposed use is properly classified as 'Industry - General' or 'Industry - Light' for the purposes of LPS 6, as the Shire contends, or as a 'Industry ­ Extractive' for the purposes of LPS 6, as the applicant contends. It was agreed by the parties that as this issue could be determinative as to whether planning approval could be granted for the proposed development, this issue should be determined prior to the consideration of the substantial merits of the application.

17 These terms are defined in Sch 1 of LPS 6 as follows:

'industry ­ general' means an industry other than a cottage, extractive, light, mining, rural or service industry;

'industry ­ light' means an industry ­

(a) in which the processes carried on, the machinery used, and the goods and commodities carried to and from the premises do not cause any injury to or adversely affect the amenity of the locality;

(b) The establishment or conduct of which does not, or will not, impose an undue load on any existing or proposed service for the supply or provision of essential services;

'industry ­ extractive' means an industry which involves the extraction, quarrying or removal of sand, gravel, clay, hard rock, stone or similar material from the land and includes the treatment and storage of those materials, or the manufacture of products from those materials on, or adjacent to, the land from which the materials are extracted, but does not include industry ­ mining[.]

18 The term 'Industry', which is incorporated into the definition of 'Industry ­ General', 'Industry ­ Light' and 'Industry ­ Extractive', is defined in Sch 1 of LPS 6 as follows:

'industry' means premises used for the manufacture, dismantling, processing, assembly, treating, testing, servicing, maintenance or repairing of goods, products, articles, materials or substances and includes premises on the same land used for ­

(a) the storage of goods;

(b) the work of administration or accounting;

(c) the selling of goods by wholesale or retail; or

(d) the provision of amenities for employees,

incidental to any of those industrial operations[.]

19 It is common ground between the parties, and plainly the case, that the proposed development falls within the definition of 'industry' under the Scheme. The proposed development is 'premises use for the manufacture … processing … of goods [or] product …'.

20 The parties further agreed that, if the proposed development is not properly classified as 'industry - extractive', within the meaning of that term under LPS 6, then it falls within the definition of 'industry ­ general' or 'industry ­ light', which are prohibited land uses in the Rural zone: see cl 3.3.1, cl 3.3.2 and Note 4 of LPS 6.

21 The Tribunal agrees with the parties' joint position. It is unnecessary to set out the definitions of 'industry - cottage', 'industry - mining', 'industry ­ rural' or 'industry - service' in Sch 1 of the Scheme as the proposed development does not fall within any of those definitions.

What is the proper land use classification

22 In support of its case, that the proposed use is properly classified as 'industry ­ extractive', the applicant relies on the evidence of Mr Michael Willcock, a town planning consultant.

23 In his witness statement at paragraph 22 under the heading 'Industry ­ extractive', Mr Willcock makes the following comments:

…

The land has an approval for 'Industry ­ extractive', and it is reflected in the Local Planning Strategy for such a use. There is removal of sand and gravel occurring.

… the machinery used for the 'materials recycling facility' use is the same machinery required for the 'Industry - extractive' use.

…

The application [involves] using the gravel resource on-site, which would be blended with the recycled material. This would more closely align with the definition which in its second part says 'manufacture of products from those materials' …

The application [involves] manufacturing a product that includes gravel sourced from the site. This loosely links to the definition.

24 At paragraphs 23 to 26 of his witness statement, Mr Willcock discusses the definitions of 'resource recovery centre' and 'industry' as contained in Sch 1 of the LPS Regulations and proffers the opinion that 'without comparable land uses in LPS 6, it is reasonable to separate the two land uses and it would be appropriate to assess it as an unlisted use'.

25 However, during the course of the final hearing while giving oral evidence, Mr Willcock agreed that the proposed use falls within the definition of 'industry' under the Scheme and because of the following characteristics of the proposed use, which involves:

• the manufacturing of a product using gravel extracted from the subject land (under an approved extractive industry license) co-mingled with inert building material;

• the use of equipment which is the same equipment that would be used in an extractive industry land use;

• the use of an existing extractive ­ industry area; and

• the use of the pit itself for the storage of the inert building material;

26 the proposed use more specifically falls within the 'industry ­ extractive' definition.

27 Mr Willcock acknowledges that the extracted material represents a minor component of the overall product proposed to be produce on-site but did not consider the ratio of inert building material to extracted material, (being 90% to 95% inert building material to 10% to 5% extracted material) to be an issue as he contends that the definition does not say that the 'manufacture of products' primarily needs to be comprised wholly of the extracted material and such, could be comprised of a mix of materials.

28 The applicant asserts that the proposed use should be properly classified as 'industry ­ extractive' as the nature of the operation is visibly and physically similar to other extractive industries in that it uses similar machinery, principally machinery such as a front-end loader, crushing plant and trucks to bring the material to and from site. Further, the material recycling facility operating hours and volume of truck movements would not differ from that normally expected for an active quarry and the material will be stockpiled within the quarry and therefore not externally visible. In addition, the availability of the raw material gives a clear purpose for the activity to be located on-site as it provides a ready and reliable source of co-mingling material which is necessary for mixing with the recycled materials to form saleable recycled products and therefore gives a clear connection between the extraction and manufacturing activities.

29 The applicant distinguishes the proposed development from other recycling facilities previously determined by the Tribunal to be 'industry ­ general' as none of those operations involved the use of extracted material on-site as a part of the manufacturing process: see GMF Contractors Pty Ltd and Shire of Serpentine-Jarrahdale [2006] WASAT 353, Terra Spei Pty Ltd and Shire of Kalamunda [2015] WASAT 134 and Stargaze Assets Pty Ltd and City of Swan [2016] WASAT 106. The applicant submits that proposed development both fits the 'industry - extractive' definition and provides a logical purpose for the facility being located at the quarry site.

30 Ms Amanda Butterworth, a town planning consultant, was called on behalf of the respondent to give evidence in respect to this issue. Ms Butterworth held the view that the proposed development more likely fits within the 'industry ­ general' definition of the Scheme given the types of machinery to be used, although she was not able to entirely exclude the 'industry ­ light' definition due to the limited detail provided regarding the machinery used and processes involved in manufacturing of the products. She did not consider that it was essential to definitively determine whether the proposed use was properly classified as 'industry ­ general' or 'industry ­ light' as both land use categories are designated as 'X' (not permitted) uses in the Rural zone, and therefore prohibited uses.

31 Further, Ms Butterworth considered that the proposed use did not fall within the 'industry ­ extractive' land use category for the following reasons. Firstly, the applicant submitted the application on the basis that the proposed use was separate and additional to the extractive industry activity occurring on-site. Secondly, the planning approval sought by the applicant was for 'the processing of inert building materials' and not an application to manufacture products from the materials extracted from the land under the existing extractive industry. Thirdly, the ratio of 90% to 95% inert building material to 10% to 5% of materials extracted from the subject land to manufacture the product does not satisfy the contemplation of the 'industry ­ extractive' definition as the predominant material used in the manufacture of the product is transported to site. Under cross­examination, Ms Butterworth did accept that the 'industry ­ extractive' definition would permit a minor component of the materials used in the manufacturing of products could be sourced from off-site.

Tribunal's findings

32 Table 1 ­ Zoning Table (Zoning Table) of the Scheme identifies a number of industry land uses, which are defined in Sch 1 ­ Dictionary of defined words and expressions of LPS 6. For the most part, the industry land use categories are contingent on the activity falling within the definition of 'industry'. The 'industry' definition identifies the overarching activities that are common elements necessary in order to permit the identification of a particular subcategory of the industry land use. The subcategories identify the more specific nature of the land use and go to the heart of the industry's operation.

33 The 'industry ­ extractive' definition, as defined in LPS 6, identifies the characteristic of the industry as involving extraction, quarrying or removal of raw material from the land and links activities identified in the 'industry' definition (such as treatment, storage and manufacturing) to 'those materials' on the land from which the materials are extracted.

34 In essence, for a use to be characterised as an 'industry - extractive' the heart of that use has to be the extraction, quarrying or removal of raw material and the use of that material, otherwise, it just becomes another industry use. As articulated in Humich and City of Gosnells [2008] WASAT 298, at [38], '[u]ltimately, the classification of a use for the purposes of land use planning involves questions of fact and degree'.

35 The documentation submitted with the Application for Development Approval sought for the proposed development, that being a 'Material Recycling Facility', to be 'considered to be separate, and additional, to the Extractive Industry activity that is undertaken on-site'.

36 If the material recycling facility is characterised as a distinct and separate land use, the operation does not involve the extraction of material from the land; it just uses material that has been extracted from the land by another separate and distinct land use, that being the extractive - industry. For an 'industry' to be characterised as an 'extractive ­ industry' for the purposes of LPS 6, it must involve the 'extraction … of … gravel … from the land'. In this context, the proposed development would not satisfy the first limb of the 'industry ­ extractive' definition and therefore could not be properly classified as 'industry - extractive'.

37 The alternate is to consider the material recycling facility and the approved extractive industry as integral activities of the industry use. No evidence was adduced by the applicant about the cumulative impacts of two separate operations, which could suggest that the operations are integral or just an omission on the applicant's part.

38 The proposed industry use as described cannot be properly classified as 'industry ­ extractive' as the fundamental character of the operation is not focused on the extraction of gravel and the manufacture of products from those materials, but on the processing of materials brought to the site which, as a convenience, involves the use of extracted material from the subject land that could otherwise be brought to the site, as a minor component of the overall process in the manufacture of products.

39 The applicant's argument that the nature of the operations are visibly and physically similar to other extractive industries does not assist as the question is one of fact and degree; attention must be directed to the nature of the activity, its scale and the regularity and extent of the activities involved: see Clay and City of Nedlands [2012] WASAT 193.

40 Therefore, the Tribunal finds that the proper classification of the proposed development under LPS 6 is 'industry ­ general' or 'industry ­ light'. It is unnecessary for the Tribunal to determine whether the proposed development is properly classified 'industry ­ general' or 'industry ­ light' for the purposes of LPS 6 as both these use classes are designated 'X' uses (not permitted by the Scheme) in the Rural zone in the Zoning Table of the Scheme. It follows that given these use, classes are designated as 'X' uses in the Rural zone the proposed development is not capable of approval under LPS 6 and as such, the application for review should be dismissed and the decision of the Council to refuse development approval should be affirmed.

Orders

For the above reasons, the Tribunal makes the following orders:

1. The proper land use classification of the proposed development under the Shire of Northam Local Planning Scheme No 6 is 'industry ­ general' or 'industry ­ light'.

2. The proposed development is not capable of approval under the Shire of Northam Local Planning Scheme No 6.

3. The application for review is dismissed.

4. The decision made by the respondent on 23 December 2016 to refuse to grant development approval for a Materials Recycling Facility on Lot 10 (No 425) EadineRoad, Clackline is affirmed.

I certify that this and the preceding [40] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MS M CONNOR, MEMBER