DOWNER EDI WORKS PTY LTD and CITY OF GOSNELLS - [2009] WASAT 201

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: DOWNER EDI WORKS PTY LTD and CITY OF GOSNELLS [2009] WASAT 201

MEMBER: MR J JORDAN (MEMBER)
MR P CURRY (SESSIONAL MEMBER)

HEARD: 20 AND 21 JULY 2009

DELIVERED : 19 OCTOBER 2009

FILE NO/S: DR 119 of 2009

BETWEEN: DOWNER EDI WORKS PTY LTD
Applicant
AND
CITY OF GOSNELLS
Respondent

Catchwords:

Town planning Development application Refusal Bitumen emulsion plant Noxious industry General Industry zone Discretionary Use - Use requires works approval and licensing under Environmental Protection Act 1986 (WA) - Difference between manufacture of bitumen emulsion and asphalt Site adjacent to public open space and Residential zone No generic buffer for use Site and use specific study required to determine separation distance - Environmental management plan prepared - Expert evidence of planners and scientists - Conditions

Legislation:

City of Gosnells Town Planning Scheme No 6, cl 1.6, cl 4.2, cl 10.4, cl 11.2, Sch 1,
Environmental Protection (Noise) Regulations 1997 (WA), Sch 1
Environmental Protection Act 1986 (WA), Pt IV, Pt V, s 3, s 38(1), s 37B, s 38(5)(j), s 41
Environmental Protection Regulations 1987 (WA), Sch 1
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 241(1)(a), s 252(1)

Result:

The application for review is dismissed
The refusal of the City of Gosnells of the application for development approval for a bitumen emulsion plant at 5 Marion Road, Maddington, issued 24 March 2009, is affirmed

Category: B

Representation:

Counsel:

Applicant: Mr N Ellery & Mr C Earnshaw
Respondent: Mr D McLeod & Mr I McLeod

Solicitors:

Applicant: Corrs Chambers Westgarth
Respondent: McLeods

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

Canning Mews Pty Ltd v City of South Perth (2005) 41 SR WA 79
Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR WA 296

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Downer EDI Works Pty Ltd applied to the Tribunal for review of the refusal by the City of Gosnells to grant planning approval for a bitumen emulsion plant at No 5 Marion Road, Gosnells.
The City of Gosnells refused the application because it considered a buffer greater than the existing 80 metres was required between this noxious industry and residences in the locality. The City of Gosnells said it had not been demonstrated that the residents would not experience detrimental impacts on their amenity from the proposed use.
The applicant said that additional work required on its environmental management plan would establish that the use could be developed with the existing buffer without any adverse effect on the amenity of the residential area. The applicant made submissions in support of allowing the development, subject to conditions that required completion of the studies addressing the unresolved environmental aspects of the development.
The Tribunal found that, as there was no generic buffer prescribed for the use under adopted policies, there was a need for sitespecific studies to determine whether the existing separation distances were acceptable.
The scientific expert witnesses called by the parties found the information in the applicant's environmental management plan to be inadequate because it was incomplete or based on methods that were not sufficiently explained or reliable. The Tribunal concluded that as the information provided was inadequate, it could not be used to determine whether, as required by the town planning scheme, the proposed development would be consistent with maintaining the amenity of the locality and the compatibility of the use with its setting.
The Tribunal considered it significant that the Environmental Protection Authority still had to determine the level of environmental assessment required for the use and the Department of Environment still had to consider an application for a works permit. The Tribunal was of the view that more must be known about the environmental impact of the use, whether as a result of the assessments under the Environmental Protection Act 1986 (WA) or from the additional work on the environmental management plan. The Tribunal would then be able to consider what would be the impact of the development on the local environment and the amenity of neighbouring uses and determine whether the development might be granted planning approval.
The Tribunal concluded that it would not be consistent with orderly and proper planning to grant an approval for the development subject to conditions that require additional environmental assessment when that additional work might reach conclusions that would otherwise have resulted in a planning approval not being granted. In the circumstances of this case, the Tribunal has found that additional environmental work by the applicant is required before consideration can be given to whether a planning approval might be granted.
The Tribunal decided to dismiss the application.

Introduction

These proceedings involve an application brought by Downer EDI Works Pty Ltd (applicant), pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), for review of a decision of the City of Gosnells (respondent/Council/City) made on 26 March 2009 to refuse an application for planning approval for a bitumen emulsion plant at No 5 (Lot 24) Marion Road, Maddington (site).

Site and locality

The site is more particularly described as Lot 24 on Plan 10855, being the land contained in Certificate of Title Volume 1378 Folio 74. It has an area of 1.755 hectares and a frontage of 107.6 metres to Marion Road at the southeast frontage. The site is 463.1 metres deep with a rear boundary also of 107.6 metres. At the rear, the site abuts a reserve within which is Bickley Brook. Bickley Brook is a permanent stream that flows from the Darling Scarp to the Canning River. Through urban areas, Bickley Brook runs as a deeply incised drain. Adjacent to Bickley Brook is a local open space reserve which has vegetation along the brook, and play equipment and seating. Adjoining the open space is Oliphant Street and Bark Circle which provide access to single dwellings in the residential zoned area beyond, about 80 metres from the site boundary. On the lot abutting to the northeast is a transport depot, and to the southwest an iron and steel heavy manufacturing works.
At the front of the site is a large building containing offices and a workshop, mainly for the maintenance of vehicles used in road paving. There is parking at each side of the building and in the front setback. To the rear of that building are various other buildings associated with the road construction business carried on by the applicant and spaces marked for the parking of trucks. At the rear of the site is a shed containing a washdown bay for the applicant's vehicles. The area used for parking and between the buildings is bituminised. There is an area adjacent at the northeast boundary which is currently unpaved and comprises simply levelled sand.
The Tribunal conducted a viewing of the site, the open space reserve and the residential area during the course of the hearing, accompanied by counsel and several of the witnesses.

Planning framework

The site is zoned 'Industrial' under the provisions of the Metropolitan Region Scheme (MRS). Under the City of Gosnells Town Planning Scheme No 6 (TPS 6), the site is within, but at the north-western edge of, a 'General Industry' zone. Adjoining the rear of the site is a 'Watercourse' reserve under TPS 6 about 20 metres wide that contains Bickley Brook. Between the watercourse reserve and Oliphant Street is a 'Local Open Space' reserve about 40 metres wide. Beyond Oliphant Street, the zoning is 'Residential' under TPS 6.
Clause 4.2 'Objectives' of TPS 6 states that the objective for the General Industry zone is:
To provide for manufacturing industry, storage and distribution of goods and associated uses, which[,] by the nature of their operation[,] should be separated from residential areas.
The proposed bitumen emulsion plant is a noxious industry under TPS 6. In Sch 1 of TPS 6 is the interpretation:
'Industrynoxious' means an industry which is subject to licensing as 'Prescribed Premises' under the Environmental Protection Act 1986 (as amended).
The Environmental Protection Act 1986 (WA) (EP Act) sets out at s 3 terms used which include 'prescribed premises' which are 'premises prescribed for the purposes of Part V' of the EP Act. Schedule 1 of the Environmental Protection Regulations1987 (WA), created pursuant to the EP Act, specifies premises prescribed for the purposes of Pt V of the EP Act, and includes, at item 36, premises where bitumen is mixed for use at other places. The proposed use is thereby subject to licensing as prescribed premises under Pt V of the EP Act. The noxious industry use class has the designation 'A' within the General Industry zone in the zoning table of TPS 6. An 'A' land use means:
The use is not permitted unless the local government has exercised its discretion by granting planning approval after giving special notice in accordance with clause 10.4.
Special notice has been granted, as required by cl 10.4 of TPS 6, and this involved informing nearby owners and occupiers who are likely to be affected by the granting of a planning approval and advertising the proposed use by newspaper notices and signs.
At cl 1.6 of TPS 6, the following aims are set out:
(a)To provide for a range of housing in neighbourhoods with a community identity and high levels of amenity.
…
(c)To encourage the development of business which will strengthen the economic base of the district and provide convenient and efficiently located employment to the community.
(d)To ensure the orderly and proper use and development of land within the District.
(e)To protect and enhance the quality of the urban and rural living environments of the District, and to provide for such expansion as is consistent with the maintenance of the services and amenities of the District required by the community.
(f)To promote the health, safety, convenience and the economic and general welfare of the community.
(g)To ensure the use and development of land does not result in significant adverse impacts on the physical and social environment.
…
(j)To assist in the effective implementation of regional plans and policies including the State Planning Strategy.
Clause 11.2 of TPS 6 provides that, in considering an application for planning approval, due regard is to be had to such items in a list as are, in the opinion of the local government, relevant to the use or development the subject of the application. Relevant to the issues in this matter are:
(a)the aims and provisions of the Scheme and any other relevant town planning schemes operating within the Scheme area (including the Metropolitan Region Scheme);
(b)the requirements of orderly and proper planning including any relevant proposed new town planning scheme or amendment, or region scheme or amendment, which has been granted consent for public submissions to be sought;
(c)any approved statement of planning policy of the Commission;
…
(e)any relevant policy or strategy of the Commission and any relevant policy adopted by the Government of the State;
…
(i)the compatibility of a use or development with its setting;
…
(l)the likely effect of the proposal on the natural environment and any means that are proposed to protect or to mitigate impacts on the natural environment;
…
(n)the preservation of the amenity of the locality;
(o)the relationship of the proposal to development on adjoining land or on other land in the locality including but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the proposal;
…
(y)any relevant submissions received on the application;
…
(za)any other planning consideration the local government considers relevant.
The Western Australian Planning Commission (Commission) has adopted State Planning Policy 4.1 (SPP 4.1). Pursuant to s 241(1)(a) of the PD Act, the Tribunal must have 'due regard' to State planning policy. SPP 4.1 objectives are:
(1)To provide a consistent Statewide approach for the definition and securing of buffer areas around industry, infrastructure and some special uses.
(2)To protect industry, infrastructure and special uses from the encroachment of incompatible land uses.
(3)To provide for the safety and amenity of land uses surrounding industry, infrastructure and special uses.
(4)To recognise the interests of existing landowners within buffer areas who may be affected by residual emissions and risks, as well as the interests, needs and economic benefits of existing industry and infrastructure which may be affected by encroaching incompatible land uses.
Clause cl 2 of SPP 4.1 sets out principles which relevantly include:
(1)Industries, infrastructure and special uses requiring offsite buffer areas are an important component of economic growth in Western Australia and are essential for the maintenance of our quality of life. These facilities and associated buffer areas must be planned for.
(2)Offsite buffer areas shall be defined for new industry, infrastructure and special uses where necessary to comply with accepted environmental criteria. Offsite buffer areas shall also be defined for established industry and infrastructure to comply with accepted environmental criteria where there are existing land use conflicts or where there is the potential for land use conflicts to occur.
…
In relation to offsite buffers, cl 3.2 of SPP 4.1 states:
Offsite buffer areas may be required for the following categories of industry, major infrastructure and special uses
…
•noxious industry;
…
Offsite buffer areas should be defined and secured as early as possible in the planning stages for new facilities and the expansion/upgrading of existing facilities to ensure the protection and longterm security of the industry/infrastructure, including associated rail/rail/pipeline transport routes. Offsite buffer areas should also be determined and secured for established industry and infrastructure where there are existing or potential land use conflicts with this facility.
The definition and securing of offsite buffer areas is important to
•provide certainty for industry, encouraging continuing investment in the State;
…
•ensure that the buffer provides adequate protection for the interests of surrounding landowners.
Clause 4.2 of SPP 4.1 states:
The following types of environmental criteria shall be applied on a site or area-specific basis by the developer for the purpose of determining the size of buffer areas and for protecting buffer areas from inappropriate uses. These include:
•risk (individual and societal);
•air quality (e.g. dust, sulphur dioxide);
•noise; and
•odour.
The Commission published in July 2004 Draft Statement of Planning Policy 4.1 State Industrial Buffer (Draft SPP 4.1 2004) which was advertised as a replacement for SPP 4.1 and which is referred to in the discussion below. The Commission has also published another version of Draft Statement of Planning Policy 4.1 - State Industrial Buffer, in July 2009, which reflects the content of Draft SPP 4.1 2004.
The Environmental Protection Authority (EPA) has adopted Guidance for the Assessment of Environmental Factors (in accordance with the Environmental Protection Act 1986) Separation Distances between Industrial and Sensitive Land Use No 3 (June 2005) (EPA Guidance Statement No 3). At cl 3.2, the EPA Guidance Statement No 3 states that it was prepared to complement and assist the implementation of SPP 4.1. The EPA Guidance Statement No 3 provides advice on the use of generic separation distances or buffers between industrial and sensitive land uses to avoid conflicts between incompatible land uses. Appendix 1 of the EPA Guidance Statement No 3 lists industries, identifies impacts under the headings of 'gaseous', 'noise', 'dust', 'odour' and 'risk', and sets down a separation, or buffer, distance in metres. A bitumen emulsion plant is not included in Appendix 1.

Proposed development

The applicant applied for, and had granted by the Tribunal, leave to have approved development shown on plans GA 0353 _1 and GA 0353 _2 Revision I dated 27 February 2009 (Exhibit 21 plans). Proposed is plant for the manufacturing of bitumen emulsion and polymer modified bitumen to be housed in a steelframed shed covered in Colorbond metal sheeting. The shed floor area would be 23 metres by 39 metres. The Exhibit 21 plans had no elevations. The applicant said the walls and roof would be as on the original plans in the application, dated 15 August 2008, with walls to a height of 5.65 metres and the ridge to a height of 8.94 metres. Attached at the rear would be an opensided, roofed lean-to 14.075 metres by 10 metres.
Tankers delivering bitumen to the plant and taking away the manufactured products would enter and leave via a crossover to Marion Road and use a 12 metre wide driveway adjacent to the northeast boundary of the site. This crossover and driveway would be separate from the truck and parking area crossovers on the Marion Road frontage.
The leanto would be set back 10 metres from the rear boundary, with the shed 24 metres from the rear boundary. The shed would be set back 10 metres from the northeast side boundary. Within the shed would be small rooms for an office, plant control and a laboratory. The shed would mostly be occupied by tanks for storing, at about 160 degrees Celsius, the products required for the manufacture of the bitumen emulsion and polymer modified bitumen and for the storage of those products when created. Within the leanto would be points for receiving the bitumen and for dispensing the bitumen products to tankers for use offsite. The Exhibit 21 plans indicate that, initially, up to 570 tonnes of bitumen and bitumen emulsion processed products could be stored, with three additional storages marked as 'future', bringing storage capacity to 750 tonnes. Expected annual production volume would be 20,000 tonnes when fully developed.
The shed floor would be concrete constructed to create a bund within the shed walls. A sealed slab would extend past the walls of the shed to the loading and unloading area. Drainage of these two areas would include valves to control flow and would connect into the water treatment facility already on the site. The remainder of the surrounds would be bitumen sealed, and graded to ensure internal runoff and roof water drain to the internal drainage system.
Mr Kevin Housham, the slurry/emulsions manager for the applicant who appeared as a witness, summarised the processes for the manufacture of bitumen emulsion and bitumen modified polymers. This process was said to include:
•Heated raw bitumen is delivered to the site in sealed tanker trucks of 25,000 litres, unloaded via sealed pipes and stored onsite within tanks at about 160 - 180 degrees Celsius. The bitumen is cooled to approximately 160 degrees Celcius prior to use in the manufacturing process.
•Bitumen (about 60%), water (about 37%) and emulsifiers with either caustic soda or hydrochloric acid, depending upon the product required (about 3%), are metered to a colloid mill to produce bitumen emulsion.
•Polymer modified bitumen is produced by adding to the bitumen in the colloid mill selected polymer granules, depending upon the required characteristics of the product. This process takes place at about the same temperature as bitumen emulsion manufacture.
•The bitumen emulsion produced is stored on-site in sealed containers at about 160 degrees Celsius. Polymer modified bitumen is stored in sealed containers at between 120 and 160 degrees Celsius.
•The two different products are loaded via sealed pipes to 25,000 litre tankers, which might also tow a trailer, for use off site.
•When in full production, there would be one to two tankers per day delivering bitumen and one to two tankers taking away the manufactured products.

The refusal

At its ordinary meeting of 24 March 2009, the respondent refused the application for planning approval for the following reasons:
1.The Environmental Protection Authority Guidance Statement 3 specifies a recommended buffer distance of 1,000 metres between asphalt plants and sensitive land uses such as Residential zoned land. With respect to the proposal, the applicant has not satisfactorily demonstrated that surrounding residents as close as 80 metres to the proposed plant will not experience negative or detrimental impacts as a result of the proposal.
2.The proposal is inconsistent with orderly and proper planning due to the proximity of the proposed bitumen plant in relation to residential land uses. The proposal may be better suited to a central location within a general industry zone.

Issues

The following issues were agreed by the parties:
1)Whether the location of a noxious industry under TPS 6 is appropriate:
a)at the periphery of the relevant industrial zone;
b)adjoining the Bickley Brook watercourse;
c)immediately adjacent to land reserved and used for public recreation; and
d)within 80 metres of residences and a residential zone.
2)Whether the information provided by the applicant is reliable and adequate.
3)Whether there is significance in the fact that the EPA environmental assessment of the proposal is under appeal.
The applicant disputed that the nearby residences were within 80 metres of the proposed development, preferring the distance measured from the shed and not the site boundary.

Discussion

The Tribunal has found that the issues identified did not lend themselves to sequential consideration. The evidence and submissions presented and the conclusions drawn for one issue have influenced the Tribunal's consideration of the other issues.
Central to the deliberations in this matter is the Environmental Management Plan (EMP) prepared by the applicant to support an application to the Department of Environment (DoE) for a works approval required for a bitumen emulsion plant under Pt V of the EP Act.
Issue 2 focussed directly on the EMP and its relevance to planning considerations, but the conclusions drawn are relevant to the Tribunal's consideration of issues 1 and 3.

Issue 1: Whether the location of a noxious industry under TPS 6 is appropriate:

(a)at the periphery of the relevant industrial zone;
(b)adjoining the Bickley Brook watercourse;
(c)immediately adjacent to land reserved and used for public recreation; and
(d)within 80 metres of residences and a residential zone

Issue 1 is essentially about whether the existing separation distances are appropriate between the proposed noxious industry and adjoining and nearby nonindustrial uses, which are not in the General Industry zone and which might be sensitive uses. The respondent's submissions developed from its contention that it is fundamental to the notion of zoning in planning that:
a)certain uses should be separated from others;
b)industrial uses should be separated from nonindustrial uses; and
c)the most extreme case where separation is predicated is that between noxious industries and residential uses.
The respondent made reference to the objective of the General Industry zone at cl 4.2 of TPS 6, which referred to providing for industrial uses which should be separated from residential areas. Also cited were the objectives of SPP 4.1, which are directed to securing buffers around industry to protect the industry from encroachment by incompatible uses and to provide for the safety and amenity of land uses surrounding industry that may be affected by emissions and risks. The respondent said a buffer could not be provided on site, so, consistent with SPP 4.1, cl 3.2 there must be an appropriate off-site buffer, and this could not be provided for the proposed development.
Clause 4.2 of SPP 4.1 refers to studies of risk, air quality, noise and odour for the purpose of determining the size of buffer areas and for protecting buffer areas from inappropriate uses. Draft SPP 4.1 2004 refers to a buffer area as 'the area within which sensitive land uses are prohibited or special measures are necessary to ameliorate the impacts of industry …'. Also stated at cl 2 of Draft SPP 4.1 2004 is:
Buffer areas are not an alternative to control at the source and high standards of environmental management by industry and infrastructure providers. Buffer areas should be considered as an additional measure to assist in the minimisation of offsite impacts from industry on sensitive and other land uses.
…
A technical analysis, which will determine the nature and level of emissions from the industry and the site context, should ideally be undertaken to evaluate proposals and determine appropriate buffer areas.
The EPA Guidance Statement No 3, prepared to assist in the implementation of SPP 4.1, does not include a generic buffer for a bitumen emulsion plant in Appendix 1. The parties discussed the relevance of the buffer distance of 1,000 metres set down for an asphalt works with Mr Tim Price, the planner who appeared as a witness for the respondent, saying that 1,000 metres should be the starting point for consideration of an appropriate buffer for the proposed use because of the common use of bitumen.
The Tribunal formed the view that an asphalt works is not directly comparable to the proposed bitumen emulsion plant. Mr Housham explained an asphalt works as including trucks dumping loads of aggregate on stock piles and loaders moving aggregate to loader bins. Aggregate is heated to 200 degrees Celsius and then mixed with hot or cold bitumen, which creates odour. Asphalt is then loaded into trucks giving off blue smoke and noise. The manufacture of asphalt does not occur in sealed containers. Appendix 1 of the EPA Guidance Statement No 3, lists asphalt as having noise, dust and odour impacts.
The use of bitumen at high temperature is the common element between the proposed use and an asphalt plant. The potential impact of the proposal is associated with vehicle movements, the pumping of the materials and, if the plant is not constructed and operated correctly, the potential for odour from emissions and pollution from spillages and wastewater management processes.
Mr Jordan Ennis, the town planner called by the respondent, noted the absence of a generic buffer for a bitumen emulsion plant in the EPA Guidance Statement No 3, and said in the joint statement of planning experts that he:
… is of the view that SPP 4.1 and SPP 4.1 (July 04) are relevant to the application for review as the SPP 4.1 policies provide direction and guidance on the determination of separation distances, and the compatibility of land uses.
… is of the view that SPP 4.1 calls for site specific separation/buffer studies where no generic buffer distances prescribed under the Environmental Protection Authority Guidance for the Assessment of Environment Factors – Separation Distances between Industrial and Sensitive Land Uses No 3 apply. The applicant has complied with this provision through the assemblage of the EMP.
The EMP is considered more particularly under Issue 2, which is concerned with whether the information supplied by the applicant is reliable and adequate. As set out under Issue 2, the scientific experts called by the parties conferred and found the information in the EMP to be inadequate. This was because it was incomplete or based on insufficiently reliable methods. The applicant's submission was that scientific and environmental standards to be identified in the additional work to be done on the EMP would demonstrate that the 90 metres between the structures proposed and the residences would be a sufficient buffer.
Item (a) of Issue 1 is concerned with whether it is appropriate to locate a noxious industry at the periphery of the relevant industrial zone. The Tribunal has concluded that it would not be appropriate to locate the proposed noxious industry at the periphery of the General Industry zone until the further work on the EMP the scientists consider necessary is done to identify and model the impacts that the development is likely to have on the neighbouring uses. Until the required additional work on the EMP can identify how environmental concerns might be addressed, the Tribunal is of the view that it is not able to determine whether it would be possible to impose planning controls that would maintain the amenity of the neighbouring sensitive uses.
In respect of item (b) of Issue 1, whether it is appropriate that the noxious use be located adjoining Bickley Brook, the Tribunal considers that the site works could readily ensure that there would be no uncontrolled surface runoff from the site to the brook. More significant, in terms of impact on the brook and groundwater are the wastewater systems for yard and roof runoff, and for spillage and cleansing associated with the manufacturing plant.
The applicant described for yard and roof runoff a system where there would be capture of 'first flush' for diversion to the existing on-site water treatment plant, with subsequent flow going into the drains and then into the brook, as with the existing system. Wastewater from cleaning spillages, scrubbing gaseous emissions and from the manufacturing process would be directed to the water treatment plant, with treated water to be discharged to the sewer under an existing licence.
A breakdown in either of these two proposed wastewater control systems might result in pollutants entering local drains and then Bickley Brook. This would occur whether the site was adjacent to the brook or more distant, because the General Industry zone is in the Bickley Brook catchment. The Tribunal considers proximity to Bickley Brook is not a factor that would be determinative of this issue. There would be a similar impact on Bickley Brook from the failure of wastewater treatment systems on more distant sites.
In respect of item (c) of Issue 1, the respondent said that the local recreation reserve included play equipment, and should also be considered a sensitive land use and be buffered from noxious industry. The applicant referred to the definition at Appendix 1 of SPP 4.1, which includes as a sensitive use 'major recreational areas', arguing that the open space near the site was not 'major'.
The Tribunal notes that Draft SPP 4.1 2004 does not mention open space when listing sensitive uses at cl 2, and states, at cl 5.1, that:
…
Compatible land uses and other less sensitive land uses or activities (eg some commercial enterprises and public open spaces) may be located within the buffer areas and provide a transition between industry and the sensitive land uses.
However, the EPA Guidance Statement No 3 at cl 7 defines 'sensitive land use' as:
land use sensitive to emissions from industry and infrastructure. Sensitive land uses include residential development … playgrounds …
'Separation distance' is defined as:
the shortest distance between the boundary of the area that may potentially be used by an industrial land use, and the boundary of the area that may be used by a sensitive land use.
The nearby public recreation reserve includes a playground and not simply an open space for general recreation. The Tribunal is inclined to consider the open space with its playground as a sensitive use. Under this interpretation, the separation distance between the site and the sensitive use of reserve with the playground is only the approximately 20 metre width of the Bickley Brook drainage reserve. The Exhibit 21 plans indicate a setback distance of 10 metres between the boundary of the site and the emulsion loading facilities lean-to. The Tribunal is of the view that the starting point in planning terms is that it is not appropriate to have the proposed use within this distance of the playground unless it can be established by the environmental assessment of the EMP that the open space might be an acceptable use within the buffer.
In respect of item (d) of Issue 1, residential dwellings are a sensitive use by definition at Appendix 1 of SPP 4.1. The residences and residential zone would be about 80 metres from the proposed noxious industry site. No buffer is prescribed, and SPP 4.1 and the EPA Guidance Statement No 3 refer to the need for sitespecific studies to determine whether the noxious industry can be located on the site without an adverse environmental impact. Again, as discussed further under Issue 2, more work needs to be done on the EMP before a planning decision can be made on the appropriateness of the separation between the proposed development and the neighbouring uses. Until that work has advanced to the point of being able to identify whether planning conditions could be imposed to protect local amenity, then a cautious approach to allowing the development on the site is considered necessary by the Tribunal.

Issue 2: Whether the information provided by the applicant is reliable and adequate

The applicant provided planning and environmental information in the form of submissions and the evidence of expert witnesses in support of its application for review of the respondent's refusal. There was no dispute with the reliability and accuracy of planning information provided by the applicant concerning zoning, the proposed use being a discretionary use, the layout, materials, location of the use on the site, including building footprint and access and vehicle movements.
It was common ground between the planning experts, Mr Ennis for the applicant, and Mr Price for the respondent, that the proposed development could, with appropriate conditions, satisfy the development standards of parking, setback, landscaping and vehicle access for an industrial development in the General Industry zone. In respect of issue 2, the information in regard to those planning requirements can be considered adequate. Mr Price made the comment that a shed of the size and materials proposed would reasonably be expected to be found in the zone when viewed from neighbouring zones.
Critical to this matter is the requirement under TPS 6 to have due regard to, in particular, the preservation of the amenity of the locality (cl 11.2(n)) and the compatibility of the use or development with its setting (cl 11.2(i)).
The planning witnesses said in their joint expert report that:
If it is scientifically demonstrated that the proposed development complies with all relevant environmental and health requirements and that the surrounding residents to the proposed development will not experience negative or detrimental impacts which exceed the adopted environmental or health provisions as a result of the proposal, the proposed land use is acceptable and may be supported.
Mr Price went on to say when examined at the hearing that, because of the proximity to existing sensitive land uses, a buffer would most likely be required, though none is prescribed. He considered the off-site buffer inadequate, and there was no potential for an onsite buffer.
While the general planning standards of TPS 6 common to development in the General industry' zone might be addressed by conditions of approval, questions of reliability and adequacy arose when it was necessary to address, as is required under TPS 6, the impact of the proposed use on the amenity of the locality and the compatibility of the use with its setting. The site is at the periphery of the General Industry zone. The locality includes neighbouring industrial uses within that zone, but also to be considered is the proximity of the use to the neighbouring recreation reserve with its playground and residences within the neighbouring residential zone.
Mr Ennis disagreed with Mr Price. In his witness statement, Mr Ennis said:
It is my view that the 'General Industry' zone is intended by the respondent to accommodate all industrial land uses within the City and acknowledges that these land uses require appropriate separation from residential and/or other sensitive land uses. In this instance the matter of separation and the determination of sufficient separation distances have been dealt with through the EMP and the recommendations of the EMP.
Mr Ennis's view was that SPP 4.1 calls for sitespecific separation/buffer studies where no generic buffer distance is prescribed under the EPS Guidance Statement No 3 and the applicant has complied with this provision through the preparation of the EMP.
The EMP was the subject of examination and conferral by expert witnesses called by the parties. The applicant called as expert witnesses Mr Carel van der Westhuizen, an expert in environmental assessments, management programs and environmental engineering, and Mr Michael O'Brien, an expert in ventilation and air quality. The respondent called as witnesses Dr Peter Forster, an expert in emissions, air pollution and chemical processes, and Dr Owen Pitts, an expert in emissions and air quality. These experts also made reference in their joint witness statement to conversations between Mr Sasho Temelovski for the applicant, and Dr David Collins for the respondent, who are both noise experts.
The experts conferred, having regard to the EMP and the witness statements of each other. Their deliberations concentrated on emission controls, dispersion modelling, health impact assessment, community complaints, water issues and noise. Proposed lighting of the development was not raised as a concern. Counsel for the applicant said of this consultation:
As with any application, effect on amenity issues is a relevant consideration and we accept that this is squarely before the Tribunal and you have had lengthy evidence about that. …
We submit that the clear consensus of the evidence from the experts on the varying issues, odour, emissions generally, noise, water management, is that there is further work to be done in terms of development of the methodology and the analysis to support the EMP.
Counsel for the applicant went on to say, however:
But there is no evidence at all, no suggestion from anyone that the environmental and health issues that go to amenity cannot or should not be able to be addressed.
The Tribunal has noted that, in effect, the evidence of Dr Forster and Dr Pitts was not that the issues with the environmental assessment could not be addressed, but that they did not know whether they could until more work was done that was reliable.
The assessment of possible pollutant and odour emissions conducted for the EMP identified gaseous pollutants and gas spaetciation that would likely be found in the emissions from bitumen processing, tankerage activities and product storage on the site. Bitumen is a volatile organic compound (VOC) and produces polycyclic aromatic hydrocarbon (PAH). Odour emissions would occur with the venting of the storage tanks and the processing equipment inside the shed as raw material and product displaced the air within the containers. The respondent raised as a concern continuous or uncontrolled emission events, accidents or spillages and other plausible worst case scenarios relevant to the assessment process being included in the modelling.
Odour modelling was included as Appendix M of the EMP which stated that the bitumen plant operations as proposed were not likely to cause odour impact beyond the boundary of the site, provided the appropriate pollution and odour control measures were implemented. The modelling used was questioned by the experts. The four experts discussed at the hearing such matters as the number of vents that should be included in any modelling, the diameter of vents and exit volumes of emissions. There was an agreement between the experts on the need to model odour emissions from the proposed plant prior to employing any pollution control devices, and on the need to appropriately use measurements from the applicant's Bickley Road bitumen emulsion facility. Also discussed were whether the odour emissions from the existing water treatment plant on the site needed to be quantified to determine if this was a significant source of odours and whether emissions from the truck washdown shed were included and overestimated.

The experts agreed that only anecdotal information was available as to the efficiency of the proposed water bath system as an emission control system, and commented on the claimed level of reduction in odour emissions not being supported by verifiable and validated data. The experts found that the information on design and operation of emission controls in the EMP and associated documentation were insufficient to demonstrate the performance claimed by the applicant.
Odour dispersion modelling done had used meteorological data from the Mount Lawley meteorological station. The experts accepted that the meteorological information for Caversham would better represent data for the locality because of its proximity to the scarp. Dr Pitts' statement emphasised that use of a different source of meteorological data would affect odour contours, as would the use of a less coarse modelling grid resolution to identify odour concentrations within 100 metres of the site. Mr O'Brien had done some revised modelling but the experts agreed that the results to date could not be considered as representative of the likely odour impacts from the proposed facility. Additional items identified by the experts that required consideration were the potential length of exposure to odours and the potential concentration of emissions because of the significance of these to the physical effect on neighbours and their psychological reaction to odour.
The initial odour modelling report had interpreted data from community surveys to support the conclusion that current operations on the site did not cause any adverse impact on the nearby community. The conferral report of the expert witnesses indicated agreement that the witness statements of the five neighbours who were called by the respondent at the hearing were evidence of odour nuisance impacts from the existing facility. Dr Forster expressed the view that, had odour diaries been provided to residents and the data reviewed and validated, there would be a clearer and more technically sound understanding of the existing impacts from the plant in respect of odour from emissions.
The Tribunal is of the view that consultation with the community, as identified by the expert witnesses for the purposes of the EMP, might well assist in the planning assessment of the proposed development. This is because it is established planning practice that, in determining impact of a development on a local amenity, there is required a comparison between existing amenity and the likely change in future amenity and then determining whether or not that change is acceptable: Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR WA 296 [22]. Establishing existing amenity is an objective assessment 'assisted' by the views of residents: Canning Mews Pty Ltd v City of South Perth(2005) 41 SR WA 79 at [48].
The Tribunal heard evidence on whether a health impact assessment was required for the proposal. Mr van der Westhuizen said a health impact assessment was not part of the EMP because of the absence of any direction requiring such an assessment from the DoE. It was common ground that bitumen is a VOC and PAH emissions from bitumen were a potential source of carcinogenic compounds, which was a cause for concern. Mr van der Westhuizen said, however, that the level and concentration of emissions was too low to have a health impact. Mr van der Westhuizen said that a health impact screening study in response to the conferral of technical expert witnesses concluded that a further health impact assessment was not required. The experts called by the respondent said that independent verification was required before it could be determined that a complete health impact assessment was not necessary.
The Tribunal noted that objective 3 of SPP 4.1 is:
To provide for the safety and amenity of land uses surrounding industry, infrastructure and special uses.
As it was not common ground between the experts that a health assessment study was not required, the Tribunal formed the view that until this was clear, caution was required in determining that objective 3 of SPP 4.1 had been satisfactorily addressed.
Onsite water management was a subject of conferral by the experts. The proposed development would have wastewater from the manufacturing process, including from cleaning within the shed and from the water baths used to clean emissions from the containers used for storage and for manufacture of the products. There would also be roof runoff, and runoff from the paved surfaces and access ways to and around the shed.
The applicant proposed a wastewater strategy that would include integration with the existing wastewater treatment system on the site. Wastewater resulting from the manufacturing process would be directed to the existing water treatment plant adjacent to the truck washdown area on the site. After treatment to remove solids, VOCs and any other pollutants, water that could be used in the vehicle washdown shed and the bitumen emulsion process would be recycled. The remainder would be discharged into the Water Corporation sewer as a variation of an existing licence. Water from the roof and hardstand areas would be captured in the drainage system, with the 'first flush' diverted to the water treatment system and the remainder being discharged to Bickley Brook, as occurs with the existing drainage system.
The respondent raised as a concern potential for spillage in the processing area within the shed and also in the vicinity of the loading and unloading area outside the shed. The applicant said that the EMP required the shed to be constructed so that it was effectively a bunded area with the capacity to store 110% of the largest capacity tank, or 25% of the total volume of the tanks within the shed. The shed and the unloading area would have drains with valves that could be closed to trap any spillages for treatment. In addition, the remainder of the paved area surrounding the shed would be so constructed that it would effectively act as a bunded area so that any runoff was kept within the area of the development for disposal in the wastewater management system. The applicant said the wastewater management system would ensure wastewater and any spillages did not directly enter Bickley Brook or the sewer system in any unacceptable amounts before steps could be taken to manage the situation.
Dr Forster raised the need for measurements of the existing water quality in Bickley Brook to establish a baseline for assessment of the potential impact of discharges from the proposed facility. Mr van der Westhuizen advised that these measurements would commence as part of the monitoring program planned for when construction of the proposed facility commences.
The experts agreed that detail of the wastewater management system was required to demonstrate 'proof of concept', and this would include a geotechnical report and detailed engineering design. The Tribunal is required under cl 11.2(l) of TPS 6 to have regard to the impact of the proposal on the natural environment and means of protection or mitigation. The conclusion drawn by the Tribunal is that the 'proof of concept' required would assist in addressing that requirement.
A noise impact assessment was undertaken as part of the applicant's EMP. Among the recommendations made for noise control were limiting hours of operation and the construction of a 2.2 metre high noise barrier fence along the rear boundary and a short section of the side boundary. The experts agreed that there were questions arising from the method of measuring background noise, including there being one measurement period, the location of the measurement collection point and absence of reference to validation of the method. Also missing were references to wind speed and direction and the discounting of influencing factors because of the distance of the noisesensitive premises from the source.
The noise experts conferred and had conversations with the other scientific experts but were not present at the hearing. From those exchanges, it was put to the Tribunal that a 2.8 metre high noise barrier wall along the rear and northeast boundaries might achieve an acceptable outcome. There was not, however, a common position on the method to be used to model the noise impact, and, at the hearing, noise barrier fence heights of up to 3.3 metres were mentioned. The development, if it were to proceed, would be required to comply with the Environmental Protection (Noise) Regulations 1997 (WA) in any event. The Tribunal considered inadequate, however, information available that illustrated what measures would be required to achieve the required noise standards and whether the impact of any structural measures would be acceptable in planning terms.
In respect of issue 2, the Tribunal has formed the view from the examination of the expert witnesses, as discussed above, that the information provided by the applicant was not adequate. The applicant's planning witness relied on the outcome of the EMP as the site-specific investigation that he said would confirm the development would have no adverse impact on the amenity of the neighbouring residential uses. The scientific experts found the information in the EMP to be inadequate because it was incomplete or based on methods that were not sufficiently explained or reliable. The Tribunal concluded that the information provided could not be used to determine that the development would be environmentally acceptable. From this, the Tribunal found that because it was inadequate, the information could not be used to support a finding that the proposed development would be consistent with maintaining the amenity of the locality and the compatibility of the use with its setting as required by TPS 6 and SPP 4.1.

Issue 3: Whether there is significance in the fact that the EPA environmental assessment of the proposal is under appeal

The proposed development was referred to the EPA for environmental impact assessment under s 38(1) of the EP Act by a third party in 2008. The respondent could not consider referring the application to the EPA because, whether or not it considered the development to be a 'significant proposal' as defined in s 37B of the EP Act, pursuant to s 38(5)(j) of the EP Act, a proposal cannot be referred to the EPA more than once. On 14 January 2009, the EPA determined the referral as 'not assessed', because the development would be dealt with under Pt V of the EP Act, which deals with works approvals for 'prescribed premises'. This EPA decision was appealed (Environmental Appeal 028 of 2009) by the third party to the Minister for the Environment (Minister). On 1 July 2009, the Minister upheld the appeal by the third party to the extent that the matter was remitted to the EPA for the making of a fresh decision as to whether or not the proposal should be assessed. The Minister's determination in Appeal 028 of 2009 includes the comment:
In remitting the proposal to the EPA, it is expected that the proponent will need to demonstrate whether the 80 metre separation distance between the proposed bitumen emulsion plant and nearby residential areas is sufficient to meet noise, dust, and air quality standards, particularly odour. It is also reasonable to expect that the proponent will consult with the local community during this process.
The Tribunal notes that, as the matter was referred to the EPA by a third party and not the respondent, the Tribunal is not precluded from determining the matter under s 41 of the EP Act.
It is the contention of the respondent that, in addition to other considerations, any consideration of the development proposal should be approached with special caution when the proposal remains in front of the EPA for assessment.
It was the submission of the applicant that development will be the subject of a relatively rigorous and extensive set of environmental approvals and assessments, whether this is as a result of the matter being remitted to the EPA under Environmental Appeal 028 of 2009, or as part of the works approval process and ongoing licensing and monitoring under Pt V of the EP Act. It was said that the Tribunal can therefore have comfort that the development will not commence or continue without the appropriate environmental approvals under the EP Act being in place. As far as that is relevant, it will ensure that there will be no adverse impact from the development on the amenity of the neighbouring residential uses.
The Tribunal has formed the opinion, set out in the discussion on Issue 1 and Issue 2 above, that because of the inadequacies in the environmental information provided with the EMP, the Tribunal is not able to establish what impact the proposed development will have on the neighbouring sensitive uses. Additional work is required on the EMP. An EMP is central to an assessment under Pt V of the EP Act, which has not yet occurred. In addition, the EPA's consideration of the level of environmental assessment is yet to be completed.
The Tribunal considers it significant that the matter still requires reconsideration of possible assessment level by the EPA. The Tribunal is of the view that a cautious approach is warranted in the circumstances. More must be known about the impact of the proposed development on the local environment and the amenity of neighbouring uses, whether this occurs as a result of an environmental assessment under Pt IV of the EP Act under a works approval assessment or as a result of the additional work on the EMP being independently verified. The Tribunal would then have the necessary comfort when considering whether a planning approval might be granted, and if so, what conditions might be imposed.

Additional comment in respect of conditions of approval suggested by the parties

The applicant made submissions that a sitespecific study would demonstrate that the proposed use could be allowed without adverse impact on the environment and the amenity of the neighbouring residences. The applicant said more modelling and more work on the EMP can and should be done, but the evidence of its experts was that it can be done to the satisfaction of the City. That, in the applicant's submission, lends itself to granting the application with conditions.
As ordered by the Tribunal, the respondent supplied a schedule of conditions, without prejudice to its position, that it would want imposed should the development be allowed. One of the respondent's suggested conditions read:
The applicant submitting a revised environmental management plan which demonstrates that the proposed plant would operate without risks to the environment or the amenity of the adjacent residential locality, to the satisfaction of the Director Governance of the respondent.
The applicant said that this condition was unnecessarily broad, and suggested an alternative condition that would address the inadequacies in the environmental assessment of the proposed development. The condition listed what the applicant considered was required and the sources of the appropriate scientific standards. Listed were, in summary:
•a revised odour control management plan;
•monitoring and annual reporting of odour emissions;
•a revised noise management plan; and
•a health impact assessment screening which, if it indicated further investigation of health impact is required, that it be undertaken.
The applicant considered that the EMP provided sufficient arrangements for the disposal of industrial wastewater. The respondent disagreed, pointing to the comments of its experts on the absence of information on how the disposal of industrial wastewater would be integrated with the existing wastewater treatment system.
The Tribunal considers that it would not be consistent with orderly and proper planning for a planning approval to be granted with the form of condition suggested by either the respondent or the applicant. The items in the suggested conditions are fundamental to an approval and are not those that might be addressed while the development proceeds.
The Tribunal acknowledges that there are circumstances where, for example, design issues might need to be addressed prior to the issue of a building licence or management issues finalised prior to the occupancy of a building or a use commencing. Examples such as particular materials and colours to be used in construction or use of a parking area would be such conditions. In this instance, the matters yet to be properly addressed are fundamental to whether the development would be acceptable in planning terms. The matters listed are not severable from the development. If they cannot be satisfactorily resolved, the problems that arise could be fatal to the development in planning terms. It might also be that the consequence of studies carried out would be to require the development being altered to a degree that a planning approval that has been issued might not have otherwise been forthcoming. The reliance in the conditions on the satisfaction of a council officer might result in an impasse on whether or not a study is acceptable or whether a planning condition the officer might want imposed as a consequence of the studies is reasonable.
The Tribunal is only able to consider imposing conditions of planning approval that have precision, are relevant to the planning circumstances, are enforceable, and are reasonable in all other aspects. The items listed for additional work should be dealt with to a degree sufficient to establish what the impact of the development will be and what planning controls it would require. A decision could then be made on whether the resultant impact on the environment and the amenity of the neighbouring uses was or could be made acceptable. If so, then the use could be allowed, subject to planning conditions that were certain, relevant, had a planning purpose, able to be implemented and enforceable. The Tribunal has formed the view that it does not have before it information that would allow it to make such a decision.

Conclusion

The respondent referred to the absence of consideration by the applicant of alternative sites for the bitumen emulsion plant. The applicant said it was not required to assess other sites. The Tribunal accepts that there may be other lots suitable for a bitumen emulsion plant, which is a noxious industry, more distant from residential zoning, but the applicant is seeking to have the plant approved for the site. The task of the Tribunal is to determine whether or not the refusal of the application for the proposed bitumen emulsion plant by the respondent might be set aside and a planning approval granted.
Issue 1 was concerned with the appropriateness of the location of the proposed noxious industry. The EPA Guidance Statement No 3, which provides generic buffer distances for industrial uses in Appendix 1, does not include bitumen emulsion plants. SPP 4.1 and the EPA Guidance Statement No 3 require in such circumstances, site and usespecific studies to determine what buffer is required, if any. Relevant to the consideration of this issue was whether the applicant's EMP was adequate to constitute such studies.
Item (a) of Issue 1 was whether the proposed noxious use was appropriately located at the periphery of the General Industry zone. The Tribunal formed the view that, until the necessary additional work required on the EMP is advanced to the point where it can be determined that the impact on the amenity of the neighbouring sensitive uses was acceptable or might be addressed by appropriate conditions of development approval, it is not appropriate that the proposed noxious industry be located at the periphery of the General Industry zone.
With item (b) of Issue 1, the Tribunal concluded that the site being located adjoining Bickley Brook was not an issue that would be determinative of the matter. Failure of wastewater treatment systems on more distant sites within the General Industry zone, which is in the Bickley Brook catchment, would have a similar impact on Bickley Brook.

Item (c) of Issue 1 refers to the site being adjacent to land reserved for public recreation. The Tribunal concluded that, because the recreation reserve was not simply open space but included a playground, the starting point in planning terms is that it is not appropriate to have a noxious use within about 30 metres, unless sitespecific studies determine that the noxious industry can be located on the site without an adverse environmental impact on the reserve.
The Tribunal has drawn the same conclusion as drawn for item (c) in respect of item (d) of Issue 1, which is concerned with the noxious industry being within about 80 metres of residences and a residential zone.
More work needs to be done on the EMP, or an equivalent environmental assessment carried out, before a planning decision can be made on the adequacy of the separation between these neighbouring sensitive uses and the proposed development. The Tribunal considers a cautious approach to allowing the development on the site is necessary until work on the EMP has advanced to the point where it can be determined whether a planning approval might be considered, and what conditions might be necessary to ensure the proposed use can proceed without adverse impact on the environment and the amenity of the neighbouring sensitive uses.
Issue 2 was concerned with whether the information provided by the applicant was reliable and accurate. The applicant's planning witness relied on the outcome of the EMP as the site-specific investigation that he said would confirm the development would have no adverse impact on the amenity of the neighbouring residential uses.
The scientific experts found the information in the EMP to be inadequate, because it was incomplete or based on methods that were not sufficiently explained or reliable. The Tribunal concluded that the information provided could not be used to determine that the development would be environmentally acceptable. From this, the Tribunal found that, because it was inadequate, the information could not be used to support a finding that the proposed development would be consistent with maintaining the amenity of the locality and the compatibility of the use with its setting as required by TPS 6 and SPP 4.1. The findings in respect of Issue 2 influenced the outcome of the Tribunal's findings in both Issue 1 and Issue 3.
Issue 3 was whether there is any significance in the fact that the EPA environmental assessment of the proposal is under appeal. In July 2009, the Minister upheld Environment Appeal 028 of 2009, against the EPA's decision that environmental assessment of the development was not required. The Minister remitted the proposal to the EPA to make a fresh decision, which was to include having regard to whether the separation distance from the nearby residences was sufficient.
The Tribunal is of the view that it is significant that the proposed use still requires a decision by the EPA to determine any environmental assessment level and consideration as an application for a works approval under Pt V of the EP Act. The Tribunal considers that a cautious approach is warranted in the circumstances. More must be known about the impact of the proposed development on the local environment and the amenity of neighbouring uses, either as a result of an environmental assessment under Pt IV of the EP Act, an assessment as a works approval application or the additional work required on the EMP, before considering whether the development might be allowed.
A further and significant consideration by the Tribunal was of the conditions the parties suggested be imposed, should the Tribunal be minded to allow the development. Both parties included a recommended condition that would require the applicant to complete the studies identified by the scientific experts as being required to make the EMP adequate and of sufficient reliability. The applicant's recommended condition was more precise as to what studies were to be undertaken and which established standards had to be addressed.
The Tribunal concluded that it would not be consistent with orderly and proper planning to approve a development, subject to conditions that required management plans to be prepared and studies to be undertaken that might reach conclusions fatal to the development being granted planning approval. The outcome of the studies and the content of the management plans would assist the Tribunal in deciding whether planning approval might be granted in the circumstances of this case, and if it were granted, what planning conditions might be imposed.
From the conclusions it has reached following its consideration of the evidence and submissions in this matter, the Tribunal has decided to dismiss the application for review.

Orders

1.The application for review is dismissed.
2.The refusal of the City of Gosnells of the application for development approval for a bitumen emulsion plant at No 5 Marion Road, Maddington, issued 24 March 2009, is affirmed.

I certify that this and the preceding [109] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J JORDAN, MEMBER