Empire Grazing Pty Ltd and Shire Of Bridgetown-Greenbushes - [2010] WASAT 102

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: EMPIRE GRAZING PTY LTD and SHIRE OF BRIDGETOWN-GREENBUSHES [2010] WASAT 102

MEMBER: MR P McNAB (MEMBER)

HEARD: 30 NOVEMBER 2009, 27 AND 28 JANUARY 2010 AND 23 MARCH 2010

DELIVERED : 13 JULY 2010

FILE NO/S: DR 263 of 2007
DR 205 of 2009

BETWEEN: EMPIRE GRAZING PTY LTD
Applicant
AND
SHIRE OF BRIDGETOWN-GREENBUSHES
Respondent

Catchwords:

Town planning Development application Extractive industry Raw materials Gravel and sand extraction Rural area Use not prohibited but requiring Shire approval Objections from neighbours concerning preservation of rural lifestyle Amenity concerns regarding dust, noise and traffic impact Objector with autistic child affected by proposal Extent to which personal concerns can be taken into account by decisionmaker EPA deciding to not formally assess application Whether applicant discharged onus of supplying sufficient data on environmental aspects for decision to be made Whether applicant could satisfactorily address regulatory concerns Application for review allowed given scale and relatively low impact of proposed operation Approval given for 10 year operation Conditions to be imposed limiting environmental and amenity impacts

Legislation:

Environment Protection (Noise) Regulations 1997 (WA)
Extractive Industries Local Law
Shire of Bridgetown-Greenbushes Town Planning Scheme No 4

Result:

Application for review allowed, conditional approval given

Category: B

Representation:

Counsel:

Applicant: Mr MJ Hardy
Respondent: Mr PL Wittkuhn

Solicitors:

Applicant: Hardy Bowen
Respondent: McLeods Barristers & Solicitors

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

AGC Earthmoving Group Pty Ltd and Shire of Mundaring [2008] WASAT 151
Felmar Garden Supplies v Mt Alexander SC (1996/34076) [1998] VICCAT 173
KT Taylor and KB Ainslie v Waratah Wynyard Council and SM Leonard [2006] TASRMPAT 208
PMR Quarries Pty Ltd and City of Mandurah [2010] WASAT 87
Whitsunday Crushers Pty Ltd v Hume CC [1998] VCAT 618

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The Shire of BridgetownGreenbushes refused to give its approval to the applicant, Empire Grazing Pty Ltd, for two gravel and sand extractive industries proposed for rural areas in the Shire.
The Shire was concerned about the environmental and amenity impacts of the proposals in terms of issues such as dust, noise, road use and area water management. Various objectors in the locality shared these concerns. However, the Shire's planning framework contemplated the possibility of extractive industries operating in these areas.
After a lengthy review process (including an extensive site visit) the State Administrative Tribunal concluded that the proposals could be characterised as relatively small in scale, and could be appropriately managed to minimise environmental and amenity impacts. Although there would be some impact on residents in the locality, this was insufficient to warrant outright refusal of the proposals.
In reaching its decision in this case, the Tribunal had regard to some recent Tribunal decisions, as well as the position with respect to extractive industries interstate. The Tribunal concluded that, compared with the time frames, size and nature of the operations conditionally approved in these other cases, the applicant's proposals in this review were relatively low-impact. The Tribunal also found that the planning framework tended to favour the 'regulated exploitation of such basic raw materials', given the critical social, community and economic demands for them.
Accordingly, the Tribunal determined that conditional approval should be given to the applicant's proposals.

Introduction

The Tribunal has before it two reviews in respect of two related applications for planning approval for gravel and sand extractive industries. The Shire of BridgetownGreenbushes (Shire or respondent) has refused to give its approval under its town planning scheme to Empire Grazing Pty Ltd (Empire or applicant) to permit the development or use for such extractive industries of the various parcels of land making up the applications.
The first of these operations is proposed to be located on Lot 3 Polina Road, Kangaroo Gully in the Shire. This proposal will be referred to in these reasons as 'Polina'. The second development (which will be likewise referred to as 'Burbank') is proposed for Nelson Locations 768 and 2178 Fellows Road, Sunnyside in the Shire.
The two locations are, by the Tribunal's calculations, approximately 7 kilometres apart and located in rural areas. Polina (located approximately 7 kilometres east of Bridgetown) will extract only gravel, and Burbank (when measured to the gravel pit, approximately 13 kilometres southeast of Bridgetown) will extract both gravel and sand at two different locations, themselves approximately 2.5 kilometres apart the smaller sand pit located to the east of the gravel pit.
The final proposals (as marked on the two detailed marked up aerial maps, received as Exhibit 44 and Exhibit 45) show Polina's gravel pit boundary at approximately 4 hectares in area and Burbank's gravel pit at approximately 2.9 hectares in area (Nelson Location 768, to the west) with Burbank's sand pit at 1.5 hectares in area (Nelson Location 2178, to the east).
These maps are also important for demonstrating, amongst other things, the applicant's final position in relation to a number of critical matters. These include: the precise size of the operation by reference to maximum pit sizes (referenced to exact survey points relative to an ontheground survey); the corresponding setbacks from the property boundaries; the fourstage gravel extraction proposed for Polina; the indicated transport routes for both operations; the noise attenuation bunds (each 6 metres high) proposed for Polina (eastern side thereof) and Burbank (gravel pit, western side thereof); and the location of the nearest habitable dwellings for all locations (such properties are identified below).
The Tribunal has conducted a lengthy hearing into the proposals, including an extensive site visit organised by the parties.
For the reasons that follow, the Tribunal has concluded that conditional approval should be given to the applicant's proposals.

History of the approvals and review process

The parties have agreed on a chronology of events (Exhibit 3). It is unnecessary to reproduce that document (or even excerpts of it) here, except to note some matters of immediate relevance.
The first matter to be noted is the length of time that the proposed developments have taken to wind their way through the regulatory and approvals process. Both applications were initially filed separately with the Shire back in 2006. Reviews in this Tribunal were filed in 2007 (Polina) and 2009 (Burbank). This lengthy time frame includes attempts by the Tribunal to have the matter settled, in effect, through private negotiation between the parties, and by the reconsideration of additional or reworked information supplied by the applicant at various points along the way. Necessary public consultation has added to this process.
Next, and importantly, I note that the Environmental Protection Authority (EPA) decided, first in 2007 (Polina) and then in 2008 (Burbank), that it would not subject either application to 'formal environmental impact assessment'. Finally, by June 2009, in respect of Burbank, a sixth iteration of the Environmental Management Plan (EMP) a key operational document had been prepared; for Polina, in early 2008, a revised EMP had been submitted to the Shire.
As will be seen in the next section of these reasons, over this long period Empire has, from time to time (including during the hearing), and in response to matters raised by the Shire both formally and informally supplied more detailed information or modified its proposals whether by reducing their scope or, generally speaking, increasing the regulatory obligations that it has been prepared to undertake in order to obtain approval for its proposals. Indeed, during the hearing, Mr Wittkuhn, counsel for the respondent, was moved to remark (emphasis added):
In terms of just getting back briefly to the final version of the application, what we [that is, the Shire] … find ourselves doing is, as a sort of a rearguard action, trying to invent conditions as we go along, not on the basis that they will cure all problems and remove all cause of objection, but simply on the basis that if the [T]ribunal decided to approve whatever it decided to approve, then these are the conditions we think would give the best chance of the matter being satisfactorily mitigated. So that's very much a catch up approach. You know, the [S]hire's concerns in that regard have been well documented and already outlined in some length. (T:4, 27.1.10)
Notwithstanding these observations, no real prejudice seems to have flowed to the respondent in defence of its position in the Tribunal. And I note this unchallenged exchange between the Tribunal and Mr Hardy, counsel for the applicant:
HARDY, MR:   … Now, the first and most immediate consequence of doing that [providing during the hearing 'a more accurate delineation of the boundaries of the actual excavation'] is that it will then enable there to be an accurate calculation of the distance between the edge of the working excavation and relevant residences.
McNAB, MR:    Yes. But doesn't it affect the other experts, particularly noise and environmental …
HARDY, MR:   No, because assumptions have been made by each of those witnesses about where the location is. My understanding of the evidence, and perhaps it's something that can be fleshed out when the experts give their evidence, is that the distances between the exact coordinates and the generalised coordinates don't make any substantive difference to the proposition.
I should mention that the Shire's position echoes another point made by the respondent's counsel about important environmental issues in the case. This deals with what I have elsewhere called the discharge of the 'practical onus' resting on the proponent. Hence, Mr Wittkuhn's final address drawing attention to the 'lack [of] basic data' (T:88, 23.3.10) and his specific example in respect of water issues (T:87, 23.3.10):
Where one does not [know] or where sufficient separation [between the excavation and the water table] has not been proved, as we say is the applicant's onus here, then one does not have the circumstances where you can say that this presents an acceptable risk [warranting approval].
I will return to this issue below.

Key aspects of the proposals

With respect to Polina, in 2006, the applicant sought to remove 150,000 cubic metres of gravel. By 2008 and this is also the current proposal the total sought to be extracted had been reduced to 55,000 cubic metres of gravel, with a maximum of 15,000 cubic metres of gravel extraction per year. The proposal is that this task is to be completed over 10 years in four stages of more or less 1 hectare each going, according to the latest plan tendered, from north to south, that is, heading away from Polina Road.
As for Burbank, over a 10 year time frame, 58,000 cubic metres of gravel are proposed for extraction, and 24,700 cubic metres of sand. The gravel will be taken in a threestage process with a maximum extraction of 10,000 cubic metres of gravel taken annually and some 5,000 cubic metres of sand.
Neither proposal involves any onsite blasting or crushing, although screening will take place onsite.
The Polina land is partly cleared, but is otherwise vacant rural land. The nearest habitable dwelling is 973 metres in an easterly direction, namely Ms Howat's house. For Burbank, the nearest habitable dwelling (the Browns' residence) is 576 metres towards the northwest from the western gravel pit. Burbank 'is currently used as a blue gum plantation' and the land 'to the east and south is [S]tate forest, with the remaining surrounding properties being used for general agriculture'.
Further operational details of the applicant's proposals may be found in the respondent's consolidated minute of proposed conditions, especially draft condition 3 (see Exhibit 41) and in the helpful summary prepared by Mr Wittkuhn, described as 'Respondent's Overview of Key Data …' (Exhibit 19). That first document (Exhibit 41) also incorporates the final position of the applicant upon a number of regulatory issues; I will return to that document as necessary below.

Are the proposals 'low impact'?

It is convenient at this point to consider the scale of what the applicant proposes, particularly in the context of similar matters recently dealt with in the Tribunal. For this purpose, and at this point in the reasons, it will be necessary to refer to elements of the planning framework, a topic otherwise discussed below.
During his final address to the Tribunal, Mr Hardy referred to the proposed operations as '[c]ollectively … modest in scale', and that 'individually they are small' (T:79, 22.3.10).
The tenor of his case was that the proposals are contemplated by the planning framework; that they are of relatively low impact; and that they are otherwise capable of management on extensive conditions regulating such matters as noise; dieback control; water management; dust management; haulage arrangements; and site rehabilitation. Indeed, the applicant has agreed to the bulk of suggested conditions as to such matters: see Exhibit 41 (draft conditions).
AGC Earthmoving Group Pty Ltd and Shire of Mundaring [2008] WASAT 151 (AGC) dealt with an extractive industry, described as follows:
The proposal covers 8 hectares of the site (approximately 4% of the subject land). Excavation of the river sand ('sand mining') is proposed to be by way of a bulldozer and frontend loader only; its subsequent removal by truck (in busy periods some 50 trips per day) is contemplated for a fixed period of five years. 100,000 to 150,000 cubic metres per year is expected to be mined.
This proposal was approved by the Tribunal on extensive conditions, principally because of its 'its scale and relatively limited impact' (at [94]).
In that case, understandable objections had been received from neighbours concerning the preservation of their rural lifestyle; amenity concerns regarding dust, noise, and traffic impact were also canvassed. In KT Taylor and KB Ainslie v Waratah Wynyard Council and SM Leonard [2006] TASRMPAT 208, these observations were made concerning extractive industries and questions of neighbours' amenity (at [10]):
… It is clear that both mining and quarrying are activities that are expressly contemplated, in fact encouraged, in the zone. This is hardly surprising. The zone is one set aside for rural industry. Industry necessarily involves productive economic activity. Such activity is often, if not always, associated with a degree of impact upon residential amenity.
See also the extract from Felmar Garden Supplies v Mt Alexander SC (1996/34076) [1998] VICCAT 173 (Felmar) set out below.
And, very recently, in PMR Quarries Pty Ltd and City of Mandurah [2010] WASAT 87 (PMR), conditional approval was given by the Tribunal for an extractive industry (limestone and sand quarrying) located on a 90 hectare site albeit the site of a former quarry on the basis that it, too, had, amongst other things, a 'relatively small impact' (at [10], and see [83], citing AGC). Opposition to that development raised similar amenity and environmental concerns, as were raised in AGC and in this case.
In PMR, the Tribunal announced that it would give its approval upon conditions and publish its reasons later. The consequential procedure adopted by the Tribunal in order to produce the best planning outcome, a course adopted with the consent of the parties and with their active participation, was as follows (at [11] [13]):
… [The] Tribunal indicated that the efforts of the parties should [now] be directed to working out what [the] fixed period [of approval] should be, and otherwise regulating the operation and ameliorating the environmental and amenity impacts (such as they were) by the formulation of comprehensive conditions.
To this end Mr Curry, a member of the Tribunal (and an expert in his own right) as originally jointly constituted to hear the matter, was expressly released with the consent of the parties, but without prejudice to his ability to participate in these reasons (or indeed, if necessary, to rule upon any outstanding conditions) to facilitate through mediation this process of the formulation of appropriate conditions. This process, as often happens, took several months of negotiation. We note that the experts' evidence and concerns (see below) were, in effect, fed back into the final regulatory outcome through this extended process.
The parties and their legal representatives are to be congratulated on their participation in this process which has saved both time and money, focused effort on the real issues to be determined and produced, arguably, a better planning outcome.
As will appear below, in order to produce the best possible planning outcome in this case, particularly for residents in the areas affected, I intend to replicate part of this process in this review.
In AGC, the Tribunal dealt with the 'central question' of rural amenity, and the position of the rural residents who objected, as follows (at [91], emphasis added):
Even allowing for the fact that rural areas are not immune from noise and related issues ('Rural areas generate a variety of "externalities" mainly noise and dust emissions. One cannot expect to reside in such a zone and necessarily expect a quiet and serene rural environment.': MarleyDuncan v Corporation of the Town of Gawler [2003] SAERDC 28 at [21] cited in Self and Shire of SerpentineJarrahdale [2005] WASAT 140 at [62]), the objectors [in AGC] still remain troubled that their 'idyllic' lifestyle might be affected by an activity (here an extractive industry) which they see as wholly counter to the notions of rural living, especially in an area such as here where the subject land forms a 'quiet rural culdesac'. However, it is wellsettled that the noise and other nuisances that may be expected from the class of potential activities permitted or contemplated (if approved) in rural areas produces no absolutes in favour of objecting residents: see, for example, the discussion of 'rural amenity' in Townsend and Shire of Donnybrook/Balingup [2005] WASAT 276 at [54] [59].
Both of these cases (AGC and PMR) also drew attention to the role played by State Planning Policy 2.4 Basic Raw Materials (SPP 2.4), a State Policy applicable to those cases. In PMR, the Tribunal said, at [35] [37]:
In [AGC], at [18], the Tribunal observed as follows:
Importantly, [SPP 2.4] has application to the matters under review. That policy is premised upon the notion that a 'ready supply of basic raw materials close to established and developing parts of the metropolitan region is ... essential in keeping down the costs of land development and contributing to affordable housing.': cl 3.1. At cl 3.4.5 of that policy the following statement appears ... :
'3.4.5 The policy is designed to facilitate the extraction of basic raw materials close to the major markets in the metropolitan region and to avoid sensitive development close to basic raw material resources which could otherwise inhibit extraction of the resource. The policy also recognises the importance of ensuring the extraction of basic raw materials occurs with minimum detriment to the local amenity and environment ... and in a manner which allows for future use and development consistent with long-term planning intentions for the area.'
Later in its reasons in the same case, at [93], the Tribunal observed '[c]ritically, such an exercise of judgment [in balancing the factors for and against a proposal for extraction in a rural area, the decisionmaker] must also take into account the broadly facilitative premises of State Planning Policy 2.4' (emphasis added).
We are satisfied that, subject to a consideration of the other evidence, the planning framework in this case by itself would not stand in the way of PMR's proposal. Indeed, arguably, the planning framework is generally supportive of such proposals.

SPP 2.4 does not extend to the Shire: see SPP 2.4 Pt VIII, detailing the extent of the application of that policy to specified local governments.
However, the demand for raw materials referred to in SPP 2.4 is not, of course, limited to the metropolitan area and to those adjoining Shires that SPP 2.4 captures.
In Whitsunday Crushers Pty Ltd v Hume CC [1998] VCAT 618, one of the relevant planning instruments applied by the Victorian Tribunal in that case adopted this position (emphasis added):
Considerable potential exists throughout the area for the extraction of mineral and stone resources. Such activities are generally opposed by farmers and rural residents of the area due to the potential for adverse amenity impacts. While such concerns are recognised, a responsibility also exists to protect the potential for mineral and stone resources to be extracted in the future in appropriate locations.
In this case, the Shire's own Extractive Industry Policy (TP.15) notes that 'one of the major demands for gravel, sand and other extracted material is for subdivisional works (particularly rural residential in this Shire)'. Moreover, the same policy contemplates that the policy may not apply in circumstances where the Shire itself, 'utilising its [statutory powers] elects to take gravel, sand, stone or earth that in its opinion is required for the making or repairing of a thoroughfare, bridge, culvert, fence or gate'. It is trite to observe that rural roads (both public and private) are often made of, and are maintained with, gravel, and that other basic raw materials might be needed for rural road construction.
According to Westmore Corporation Pty Ltd and Shire of Chittering [2008] WASAT 290, at [14], the rural Shire of Chittering, which is covered by SPP 2.4, has enacted a town planning scheme which has provision for 'Special Control Area[s] Basic Raw Materials', with the following aim (emphasis added):
Extraction of essential materials for roads and construction are to be permitted in areas where they will not adversely affect living environments, the landscape quality or contribute to land degradation problems during and after operations …
This brief discussion, applied to the uncontested facts of this case, leads to, I think, at least three important propositions propositions that create potential difficulties for aspects of the respondent's case:
1)Compared with the time-frames, size and nature of the operations approved in both AGC and PMR, the applicant's proposals in this review are likewise modest in scale and are relatively lowimpact.
2)When properly interpreted, the planning framework, as a matter of principle, will, where possible and speaking generally, favour regulated exploitation of such basic raw materials, given, amongst other things, the critical social, community and economic demands for such resources.
3)Such 'regulated exploitation' can often be achieved by the application of extensive conditions aimed at ameliorating the amenity and the environmental impacts of extractive industries.
Critically, the finding in proposition 1 above necessarily means that all relevant evidence received in this case must be assessed against the Tribunal's overriding view of the objective size and scale of the applicant's proposal. Similarly, the concerns reflected in some of the objectors' and experts' evidence must be adjudged against proposition 2 and proposition 3 above. And, Mr Wittkuhn's charge of unacceptable risk because of gaps in important data must be, I think, at least in part, determined by the same criteria.

The planning framework

The decision to be made in this case is primarily governed by the Shire of BridgetownGreenbushes Town Planning Scheme No 4 (TPS 4) and its subsidiary policy, TP.15. Both instruments must, however, as I have indicated, be interpreted and applied against the particular planning principles dealing with comparable extractive industries in rural areas that I have discussed above.
It is common ground that, in both cases, the various parcels of land are zoned under TPS 4 as Rural 2 General Agricultural. Importantly, an 'Extractive Industry' is a use in such a zone which might be approved by the Shire or on review by the Tribunal, having regard to any relevant matter specified in TPS 4. As I have already indicated, being a use expressly contemplated for the zone necessarily has a bearing on reasonable amenity expectations.
Any approval given to the applicant would need to take into account the separate, but interrelated, regulatory regime under the Shire's Extractive Industries Local Law. However, approval under that local law is not before the Tribunal in these proceedings and that local law is only, at best, indirectly relevant to this review.
The Shire's related policy TP.15, which has already been mentioned, accurately foretold the scene for this case, as follows (emphasis added):
Although onsite [extractive industry] works have the potential to cause land use conflict and nuisance via noise, dust, visual amenity and drainage implications, perhaps the greatest conflict with nearby land owners generally occurs when the extracted material is transported off the site. The problem is exacerbated by the fact that one of the major demands for gravel, sand and other extracted material is for subdivisional works (particularly rural residential in this Shire). Therefore the transported material generally has to pass through existing residential and ruralresidential areas to arrive at the development front.
By encouraging subdividers to extract their gravel requirements from the subdivision site (if the resource is identified and easy to extract) the conflict between haulage operations and lifestyle of nearby residents will be reduced.
TP.15 thereafter sets down specific and extensive requirements for the assessment of any proposal and the regulation of it, were approval for it to be subsequently given.
In my view, TP.15 is entirely consistent with the point made in proposition 3 above concerning 'regulated exploitation' of basic raw materials; unsurprisingly, the draft conditions (Exhibit 41) in this case reflect the framework of TP.15.
Thus, first under TP.15, a 'haulage plan' must be produced, and the policy requires the following in that regard:
All applications for 'Extractive Industry Standard' [which, under TP.15, is the proposal before the Tribunal] will be required to submit a haulage plan showing the main 'local road' transport routes intended to be used for transport of the extracted material, in all directions from the site to the main arterial routes. This report is to provide the following detail:
Type and configuration of vehicles to be used for transporting material;
Expected number of trips per day (or over longer time period if use is proposed to be more intermittent)[;]
Main destinations for extracted material (to allow determination of expected transport routes and assessment of implications thereto);
Any self imposed restrictions (eg. restricted transporting days or hours)[;]
Any recommended road upgrading or improvements required to accommodate traffic associated with transport of material.
No exemptions to submittal of a haulage plan will be granted except where the subject land directly fronts one of the following regional roads (and the only egress from the Shire of Bridgetown extraction site is via one of these roads): SouthWestern Highway, Brockman Highway [and] BridgetownBoyup Brook Road.
In considering the application for Planning Approval, and more specifically the haulage plan, Council can elect to impose conditions relating to impact of haulage vehicles on public roads. Examples of such conditions are:
Upgrading of a road if the Council determines that its current standard is insufficient to cater for the expected volume and type of haulage vehicles;
Time restrictions applicable to specific roads (eg school bus routes)[;]
Prohibitions on the use of specific roads (if alternative routes exist)[.]
Next, an applicant must submit a 'noise assessment report' as follows:
… This report is to be prepared in accordance with Department of Environmental Protection guidelines and includes assessment of buffer distances from nearby dwellings and any vibration implications. Council may exempt applicants from providing this report where an internal buffer (to EPA requirements) can be fully provided within the boundaries of subject land (including contiguous land holding).
Further, there is the need for the creation of an EMP which is required to address the following matters (accompanying notes omitted):
a)Extent of clearing required to accommodate works;
b)Proposed drainage measures to protect the excavation or associated disturbed areas, and to manage runoff[;]
c)Proposed measures to minimise dust generation as a consequence of extraction activities and onsite vehicle movement;
d)Proposed measures to minimise spread of dieback;
e)Proximity to Public Water Source Areas;
f)Proximity to State Forest or Conservation Areas;
g)Proximity to and impact upon environmental quality of Blackwood River and major tributaries;
h)Proximity to and impact upon European heritage sites (refer Municipal Inventory) and Aboriginal heritage sites;
i)Proposed rehabilitation (staged) of the affected land; and
j)Assessment of whether EPA referral of the application will be required.
Speaking generally, the measures in TP.15 were addressed in the expert evidence given in this Tribunal reflecting earlier attempts by Empire to comply with the policy's requirements for information and plans.
Finally, I should mention that the EPA's Guidance for the Assessment of Environmental Factors Separation Distances Between Industrial and Sensitive Land Uses No 3 does not, according to the respondent, recommend any particular buffer distance in cases such as this (see Appendix 1, 'Extractive industries … no blasting conducted', recommending instead that it be dealt with on a 'case by case' basis).

Summary of the main issues

In light of the issues discussed in both the AGC and PMR cases, and consistent with the issues identified from the extracts of TP.15 reproduced above, the following main issues, in summary, presented themselves in this case:
1)The impact of the proposed haulage routes.
2)The impact of dust from the onsite operations and the movement of trucks.
3)The related noise impacts.
4)Whether any relevant aspect of the environment would be at risk.
I turn first to the evidence of the objectors ('lay witnesses') who, amongst other matters, mostly raised these same issues in their evidence to the Tribunal and in their earlier submissions to the Shire.

The objectors' evidence

In relation to Polina, the Tribunal received objectors' witness statements and other material from Mr Carlton, Ms Hamence, Ms Howat, Mr Ranieri, Ms Walsh and Mr Austin. In respect of Burbank, statements were received from Mr Bebbington, Mr Brown and Mr FraserGillard. Mr Bebbington's statement is a comprehensive assessment by him of the impact of the proposals.
The site visit put their statements into context, and Exhibit 15, prepared by Mr Wittkuhn, is a useful summary of their observations, concerns and special domestic or commercial interests.
Sensibly, none of these witnesses were crossexamined by the applicant's counsel; these statements may be accepted.
However, I have already cautioned that the objectors' evidence must be viewed in the light of three matters: first, that the applicable zoning contemplates the possibility of the use under consideration here, and that it necessarily follows that this 'has a bearing on reasonable amenity expectations'. Secondly, given the size and scale of the proposed operations ('low impact') the starting point will generally be whether the operation can be managed in a way that leads to 'regulated exploitation' of the resource involved.
And, as I have noted above, gravel is a valuable resource, and demand in the Shire for basic raw materials is recognised by the Shire itself. Thus, gravel from the applicant's operations might well end up on the very roads used by both Empire's trucks and the objectors themselves.
As has been indicated, I hold that, like similar cases elsewhere in other rural areas, there seems to be no reason in principle why the proposed operations cannot be adequately managed to minimise their impact on the locality. In other words, the objectors' concerns, legitimate as they are, unfortunately do not, by themselves, displace the case for planning approval for an operation conducted on relevant conditions. However, as I have indicated, the objectors' elected representatives (the Shire) will have a final chance to negotiate the best possible outcome in terms of the conditions of approval, conditions which will be directed at minimising the impact on those living in the locality of both operations.
I especially recognise the disappointment that this decision will bring to Mr Brown and his partner, Janet, who have a young, autistic son who is likely to be extremely hypersensitive to the noise of trucks and associated operations, even at a considerable, and elevated, distance. His family management and arrangements will be affected by the outcome of this case. However, planning law recognises an extremely limited role for taking such 'personal considerations' into account. Thus, it has been observed that 'it would be a rare case in which personal hardship would make the difference': see the discussion in Leslie A Stein, Principles of Planning Law (OUP, 2008) at 170 172.
The further facilitated negotiation on the best regulatory regime will, however, look to see whether anything further can be reasonably done to accommodate the Brown family's difficult and special position.
Finally, I should mention Mr Ranieri's intention to one day build a residence and operate an equestrian tourism business on land that he owns, namely Lot 1992 Polina Road. The western boundary of that lot adjoins the subject land at Polina. Empire's attitude to that probability is expressed in the following concession, properly made, by its counsel:
[I]n the case of Mr Ranieri, his objection is that he will build a house at some point of time and that there will be an [adverse] effect [on his amenity and business expectations]. The applicant readily concedes that it is now and will continue to be bound by the application of the [noise] regulations and [that] there is no principle of first come, first served or some other form of priority given to [the] first in time. If and when there is a residence constructed on the Ranieri property then it will be an obligation of the applicant to ensure that appropriate noise mitigation measures are put in place to ensure that the regulations themselves are not breached. [T:81 82, 22.3.10]
Mr Wittkuhn, on the other hand, submitted that it was 'not orderly and proper planning to approve [the application] when the probabl[e] effect is that it could only be acceptably accommodated with [a] very significant bund, which in itself is likely to represent a eyesore' (T:91, 22.3.10).
Mr Ranieri's intentions, whether taken singularly or collectively with other amenity concerns, are insufficient to warrant refusal of the development. The bund is itself a necessary regulatory response to protecting the amenity of the area from excessive noise emissions. Matters such as its exact placement, subsequent removal and vegetation cover (factors aimed at reducing its visual impact) are essentially matters for conditions.
In conclusion, I draw attention to the Victorian Tribunal's observations in Felmar about the impact of quarrying operations on neighbouring rural residents, comments which are also apposite to the smaller operations being proposed here (emphasis added):
A feature of any extractive industry application is that one must take the resource where one finds it …While in this appeal we were advised that there are other potential sources of supply of stone in this locality, we accept that their utilisation is constrained by stone quality and ownership.
Quarries are also the sort of land use … that not many people would choose to live near. In the case of the present quarry, there are a number of neighbours to the site who would potentially be affected by its operations.
We understand that those neighbours would like to maintain their present peaceful rural lifestyle completely unaltered. However, a rejection of the proposal [on] the basis of some change to amenity cannot be sustained. The quarry can only be rejected if it were to unreasonably impinge on the neighbours.
In broad terms, we are of the view that the surrounding residences are sufficiently distant from the proposed quarry operations that if the quarry is managed correctly, it will not unreasonably alter residential amenity. That is not to deny that from time to time the occupiers of neighbouring properties may notice some dust in the distance, … [and] encounter quarry trucks on the road. However, in our view, none of these effects are sufficiently severe or frequent that they warrant refusal of the application.
See also the extracts from KT Taylor and KB Ainslie v Waratah Wynyard Council and SM Leonard [2006] TASRMPAT 208 and AGC, set out above.
The Victorian Tribunal's comments in Felmar on the extractive industry operation being 'managed correctly' (above) will, of course, be the key to minimising many of the concerns raised by both the neighbours and some of the experts. It is to that latter group that I now turn my attention.

The expert evidence

The Tribunal heard from a series of experts covering noise, road haulage matters, planning and environmental issues. Such evidence was given orally in joint witness sessions as follows, commencing with the two noise experts.

Noise

Mr Reynolds (engaged by the applicant) and Mr Della Gatta (engaged by the respondent) were noise experts, although only Mr Reynolds did actual noise modelling of the proposed sites. For this reason, I would favour Mr Reynolds' evidence over that of his expert colleague, where any material disagreement existed between them, including any disagreement as to the inputs into or assumptions underlying that modelling. However, in any event, they both agreed that the proposed operations could be made compliant with the Environmental Protection (Noise) Regulations 1997 (WA). They appear to have had some disagreements on the following matters:
1)On the likely impact on the Browns' residence at Polina (although there was agreement on what steps could be taken to ameliorate any such problem).
2)Whether the noise management plan should extend to incidental 'behaviour noise' activities.
3)Whether certain speed limitations should apply near Polina.
4)The height of Burbank's bund.
5)Whether the operating hours should have any flexibility.
The applicant's final position (see the marked up aerial maps, received as Exhibit 44 and Exhibit 45) seems to have addressed any concerns as to recommended bund heights. The remaining matters (including any issue, if any, as to the precise construction of the bunds or any related matter) go to the future negotiation of conditions. I have dealt with particular amenity concerns affecting current or future neighbours, above.
In short, there is nothing in the respondent's case on this issue that would warrant refusal of the proposals.

Transport

I turn next to the question of the haulage management plan and related transport issues. In this regard, the Tribunal heard from two traffic engineers: Mr Lorimer (called by the applicant), and Mr Brooksby (called by the respondent).
Their complex evidence covered matters such as the proposed haulage routes; the status of various roads; vehicle sizes and movements; potential interaction with school buses; dust prevention measures; road upgrades, maintenance and contributions; and speeds and gradients. Their views were, to some degree, clouded by them being, it seems, at cross-purposes as to how daily vehicle movements should be estimated or determined.

Their evidence needs to be read in conjunction with the proposed draft conditions (Exhibit 41) mostly agreed between the parties which refers to some operational details on-site; route restrictions and some speed limits; prohibitions on transport during school bus day movements; truck movement numbers (generally '20 in, 20 out'); dust suppression measures; and road signage and road upgrades.
Mr Hardy's view of the more or less consensus position reached by the experts was as follows:
[T]he most noticeable feature of the way in which the traffic experts gave their evidence was the extent of the agreement which they reached in relation to the prospective use, the relationship of the intensity of the use to other users [using] the roads, and the expected degree of contribution that ought to be made in the event that there was a perceived detrimental impact on the roads as a consequence of that use. [T80, 22.3.10]
In summary, Mr Wittkuhn expressed, on behalf of the respondent, concern about the following transport matters:
1)Land use conflicts and the 'sensitivity of receptors', as demonstrated by the objectors' evidence.
2)Whether, if the applicant's case were to be based on 40 movements, that would amount to 'a 100 per cent increase on the current degree of usage'. He submitted:
Rural roads as a whole tend to be adequate but far from ideal, given the rate of contribution levels and where a new use comes in which would give rise to a 100 per cent increase, it's not unreasonable to say that that generally is generated by the need that is generated [sic] by that use. [T:95, 22.3.10]
3)Whether the management regime was inadequate because it had 'too many variables, there's too much left to human nature, there's too much left to goodwill'. In this regard, Mr Wittkuhn relied upon the views of the respondent's consultant planner, Mr Allerding.
In the result, I am not persuaded that any of these matters are sufficient to warrant refusal of the applicant's proposals. In essence, and consistent with what I have already said earlier, I generally agree with Mr Hardy's final submission, itself largely consistent with the tenor of the traffic experts, which was as follows (emphasis added):
The applicant has made it clear that all loads will be covered, and that if there is dust created as a consequence of traffic movement, then that dust will be created by the movement of the vehicle on the road rather than from loads blowing from the backs of the vehicles themselves. We say in relation to that that the regime for traffic management, including the identification of issues, is appropriate and satisfactory for an enterprise of this scale. Again, recognising that it is a modest operation in and of itself. [T:81, 22.3.10]
The process of negotiation as to outstanding conditions will bed down the exact number of permitted vehicle movements as well as any other reasonable proposals (if any) to minimise amenity impacts on neighbouring properties.

Environmental

The environmental experts' evidence was in this review the most complex of this class of evidence and produced, arguably, the least consensus amongst the experts.
The Tribunal heard from two environmental scientists: Ms Davey (engaged by the applicant) and Mr Rikli (engaged by the respondent), and from a hydrogeologist, Dr Thorpe (also engaged by the respondent).
These experts collectively offered opinions on matters connected with the latest versions of the two EMPs; issues to do with surface water and groundwater assessment and protection; dieback issues; and dust issues. (These were the main issues; peripheral issues to do with native vegetation, clearing, fauna and fire protection were not seriously in issue between the parties.)
The applicant's position may be summarised as follows:
1)The proposed activities do not, in themselves, contaminate any land. To the extent that some event connected with extraction might contaminate land then a management plan to deal with any event or incident (for example, 'spill management') and a buffer of, say, 2 metres between the maximum water table level and the base of the excavation would be appropriate. Mr Hardy said that Ms Davey's solutions should be preferred because they were relevantly 'pragmatic' and 'proportionate'.
2)Although the applicant has undertaken some preliminary water table investigations, Empire would be prepared to take certain steps. Mr Hardy said:
Now, here steps were taken by the digging of pits to identify where the groundwater may be and the consensus of the experts was that it was some way less than perfect. Dr Thorpe, in his suggestions in relation to the identification of the highest groundwater and therefore the identification of an appropriate buffer indicated that cased bores should be sunk to identify that. Again, having regard to the scale of this exercise and the location of each of these prospective pits, if there is an appropriate identification of groundwater at its highest level and if there is to be an appropriate identification of a buffer, say two metres, then we would suggest, with respect, that they are matters which can fortify an applicant once an applicant has an approval.
It has often been the case that the [T]ribunal has had to grapple with propositions where an identification of a risk and ameliorative steps to be taken with respect to that risk are understood and accepted to be unduly onerous in advance, but not necessarily unduly onerous if an applicant has an approval with which to fortify themselves against the expenditure of those funds, and this is just such an example. [T:84, 22.3.10]
3.Dieback and dust management issues can be regulated by appropriate management techniques and plans.
On dust management, it is worth recording here the views of the consultant planner, Mr Paull, called by the applicant. He concedes that he is not a 'dust expert' but offers the following views based upon his expertise:
The [a]pplicant has agreed to ensure that all trucks and trailers carting loads of gravel are covered.
Dust emissions may be generated by a number of causes, of which the operations proposed by the [a]pplicant and truck movements associated with those operates [sic] are but one.
•If approval is granted, a condition requiring the use of water tankers to wet down: the surface of trafficable areas within the Polina and Burbank [l]and and to maintain the integrity of the road surfaces; and
•the excavation area, and its working face, on the Polina and Burbank [l]and; and
•trucks and trailers carting loads of gravel prior to leaving the Polina and Burbank [l]and would be acceptable and consistent with customary practice when dealing with extractive industries.
The generation of dust associated directly with the excavation works on the Polina and Burbank [l]and is likely to be minimal[,] given that:
•no blasting works form part of the excavation works;
•the excavation works are proposed to be behind a proposed 4 [metre] high bund [now, 6 metres] which will assist in reducing the speed of winds entering the excavation area and act as a filter or barrier for airborne dust particles; and
•due to the buffering characteristics of the surrounding remnant vegetation on [the] Polina [l]and and the Blum [sic] Gum plantation on the Burbank [l]and which will similarly assist in reducing the speed of winds entering the excavation area and act as a filter or barrier for airborne dust particles.
The respondent's position on groundwater commences with a general recommendation by the EPA for a separation from the water table. Further, para 19 of the Water Quality Protection Note No 15, 'Extractive Industries near Water Resources' (Department of Water, 2009) was indirectly applied by the respondent to justify a recommended 2 metre buffer or separation zone.
And, as has already been mentioned, the respondent's main argument, backed by its experts, relies upon a lack of adequate data and unacceptable risk to the environment in relation to this issue (extending even to bore water and other water entering a nearby national park). The position is further strengthened, so Mr Wittkuhn argues, when combined with the risk of a 'serious' spill incident (an event conceded as a possibility by Ms Davey).
Again, like the criticism offered as to transport regulation by a management plan, it is suggested that reliance on 'good will' is 'insufficient insurance' to prevent dieback spread. Presumably, the respondent's position is the same in relation to dust suppression measures. In any event, the respondent draws attention to the video material collected by an objector showing dust generated by trucks on gravel roads and to Mr Rikli's views on the extensive vertical and horizontal dust spread (however generated).
Crucial to making a decision on resolving these conflicts will be the position of the applicant's chief witness in this field, Ms Davey. Her experience, particularly in directly relevant government regulatory advice and decisions, led the Tribunal to put the issue directly to Mr Wittkuhn in the following exchange:
McNAB, MR: But doesn't Mrs Davey's evidence sort of accord with the way things are done? I mean, the other gentlemen's standards [the respondent's experts] are so extremely desirable but is there any evidence that the EPA or anybody else really insists on that level for these sorts of approvals? I mean, she seems to be reasonably experienced in mining and elsewhere in terms of giving approvals or signing off approvals. It's been called 'pragmatic' by Mr Hardy, but maybe that is the standard.
WITTKUHN, MR: Her evidence could be called pragmatic if the point had been reached where the depth of groundwater had been established to the [T]ribunal's satisfaction. Then we can talk about pragmatic and we can say that having regard to that and having regard to this level of usage, yes, there is still a residual possibility that if things go very badly there could be contamination of the groundwater, but that's a risk that is recognised in the industry as an acceptable risk. What we lack here is the basic data concerning that separation, although in the case of Polina we have, quite to the contrary, the sandpit in particular, affirmative evidence that there isn't a separation. [T:88, 22.3.10]
The Tribunal found Ms Davey to be an impressive witness with directly relevant regulatory experience. She is a consultant and Department of Environment and Conservation 'accredited dieback interpreter'. She has had, in fact, 14 years' environmental management experience and, importantly, from 2003 to 2007, she worked as a State Government Environmental Inspector in relation to mining approvals. Her expert view of the proposals, in effect, as relevantly 'low impact' and prima facie capable of conditional approval, accords generally with the Tribunal's view. In this context, her evidence should be, with respect, preferred to those of the other expert witness, where there is a difference of opinion.
Given Ms Davey's evidence; the applicant's concession to commit to a process for 'an appropriate identification of groundwater at its highest level'; the Tribunal's views on the effectiveness of the other proposed management plans; and the process of further negotiation of the final form of the conditions in this case, there is nothing in the respondent's case on environmental issues that persuades me that the applications should be refused.

Planning

The two planners who gave evidence, Mr Paull and Mr Allerding, have already been mentioned above at relevant points in these reasons. Both witnesses, in general, tended to reflect the divisions of the other experts in the case. Overall, Mr Paull's views and judgments tend to accord with the Tribunal's views (including previous Tribunal decisions) and the findings set out above. Accordingly, his evidence should be, with respect, preferred to Mr Allerding's, where there is a material difference of opinion. His conclusions on various matters indicate that, from a planning point of view, conditional approval to the proposals should be given.

Conclusions

Despite Mr Wittkuhn's careful, thorough and fair agitation of all of the relevant evidence in his client's favour (and his corresponding meticulous attention to detail, for which I am particularly grateful), I am not persuaded, for the reasons given above, that there is anything of substance, including an assessment of risk, that leads me to doubt that planning approval should not be given.
At various points above, the Tribunal has raised the question of the further negotiations between the parties that will be needed in respect of the operating conditions. Since the hearing of this matter, the Tribunal has published extensive extractive industry conditions in PMR (see the Schedule thereto). Here, not all of the draft conditions have been agreed to and there are unresolved matters (including, for example, how the applicant's concession in respect of groundwater investigations is going to be implemented).
Like both the AGC and PMR cases, the parties will be directed to now put their efforts into producing a suitable set of conditions. If these cannot be negotiated out in good faith, then Mr Curry of this Tribunal will be available, in the first instance, to assist with mediation.

Orders

For the reasons set out above, the orders of the Tribunal are:
1.The applications for review are allowed.
2.The decisions under review are set aside and substituted in their place will be two decisions to give planning approval for the applicant's extractive industries for 10 years (to run from a date specified in the conditions), upon conditions to be finalised or agreed upon by the parties and endorsed by the Tribunal within 28 days or such further time as the Tribunal allows, and being conditions negotiated in good faith and not inconsistent with conditions already agreed to or otherwise inconsistent with these reasons (unless varied by consent or by the Tribunal).
3.The parties have liberty to apply for directions.

I certify that this and the preceding [97] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P McNAB, MEMBER