Fero Group Pty Ltd and City of Swan

Case •

[2008] WASAT 255

•

3 NOVEMBER 2008

No judgment structure available for this case.

FERO GROUP PTY LTD and CITY OF SWAN [2008] WASAT 255



STATE ADMINISTRATIVE TRIBUNALCitation No:[2008] WASAT 255
PLANNING AND DEVELOPMENT ACT 2005 (WA)
Case No:DR:153/20083 JULY 2008, FINAL SUBMISSION 5 AUGUST 2008
Coram:MR J JORDAN (MEMBER)3/11/08
28Judgment Part:1 of 1
Result: Application for review allowed
Conditional approval granted for a transport depot
B
PDF Version
Parties:FERO GROUP PTY LTD
CITY OF SWAN

Catchwords:
Town planning
Development
Refusal
Transport depot
Rural zoning
Existing gravel hardstand, storage shed, office and ablutions
Turnaround track
Previously noise and disturbance impacts on local residents
Particular development proposal not generic use
Impact of proposed transport depot on rural character and amenity
Type and frequency of vehicles
Consistency with rural zoning objectives
Consistency with draft strategy
Orderly and proper planning

Legislation:
City of Swan Local Planning Scheme No 17, cl 4.2, cl 4.2.23, cl 10.2
Dangerous Goods (General) Regulations 2007 (WA)
Environmental Protection (Noise) Regulations 1997 (WA)
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 252(1)

Case References:
Nil

Orders
The orders of the Tribunal are:,1. The application for review is upheld and the refusal for the City of Swan to grant an application for an approval to commence development of a transport depot at Lot 61 Railway Parade, Bullsbrook is set aside.,2. Development approval is granted for a transport depot on Lot 61 Railway Parade, Bullsbrook subject to the following conditions:,(i) The development is identified by reference to the following plans (copies attached): ,(a) 'Development Site Plan' prepared by Dystra Planning, dated August 2007 with the stamp City of Swan approved plan No 1 of 1 file number DA­413/2006 at its meeting held on 19 March 2008;,(b) 'Figure 5 Proposed Drainage Improvements' (hand written heading) prepared by Spectrum Survey and Mapping, dated 8 October 2005; and,(c) 'Access Upgrade' prepared by Porter Consulting Engineers, drawn February 2007 reference 07­1­6/2­A1, stamped 'Revised plan' hand dated 20 November 2007 with handwritten annotations and amendments to the proposed upgrades to the crossover and Railway Parade.,(ii) The existing shed, lean­to structure, office and ablutions, driveway and gravel hardstand area only shall be used as part of the transport depot.,(iii) This approval is for development that falls within the transport depot use class of the City of Swan Local Planning Scheme No 17 and incorporates:,• Land and/or buildings used for the transfer of goods from one road motor vehicle to another such vehicle for hire or reward;,• The storage for goods on site for only such time as required for them to be transferred from the delivery vehicle to the vehicle removing the goods;,• Road motor vehicles no larger than a semitrailer;,• No road trains being permitted to use or park on the site; and,• No maintenance or repairs on vehicles or associated machinery to be undertaken on site.,(iv) The number of truck movements per week is to be no more than 10 with a movement consisting of one trip to and one trip from the site.,(v) The truck depot is to operate only between the hours of 7 am to 5 pm Monday to Saturday, unless otherwise approved by the Council of the City of Swan.,(vi) Vehicle access onto the site shall be restricted to that shown on the plan referred to as (i)(a) above and no vehicle shall queue on Railway Parade waiting to enter the site.  ,(vii) The transport depot shall be kept in a neat and tidy condition at all times to the satisfaction of the City of Swan.,(viii) The transport depot shall be conducted so as to not cause a dust nuisance to neighbours. ,(ix) The applicant/owner must maintain a 50 metre buffer between the wetland, its dependent vegetation and any development on the site.,(x) Stormwater drainage plans shall be submitted and works undertaken to the satisfaction of the City of Swan's engineering services prior to the commencement of the transport depot.,(xi) Transport depot use shall not commence until such time as the conditions imposed on City of Swan decision No DA­413/2006, dated 19 March 2008 for the approval of the related lean­to, gravel hardstand and transportable office have been complied with sufficient to enable use of those facilities to commence.  ,(xii) Prior to the commencement of the transport depot on the site, a landscaping plan must be submitted to the City of Swan for approval.  The landscaping plan shall cover all sides of the gravel hardstand area so that activities on the side can be screened from view from adjoining neighbours and the street.,(xiii) All landscaping must be completed in accordance with the approved detailed landscaping plan, prior to the commencement of the transport depot and all landscaping is to be maintained on­site thereafter to the satisfaction of the City of Swan.,(xiv) The crossover shall be upgraded and lanes widened in accordance with the amended plans identified at (i)(c) above prior to the commencement of the transport depot to the satisfaction of the City of Swan's engineering services.,(xv) Prior to the commencement of the transport depot, the applicant/owner is to provide a report, certified by a suitably qualified engineer, on the structural adequacy of the existing gravel hardstand area, accessway and parking area for use as part of a transport depot.,(xvi) Any adjustment to power poles, manholes, drainage, sumps, service pits or similar required as a consequence of this approval is to be arranged by the applicant/owner at his/her own expense, prior to works commencing on the site.,(xvii) The applicant/owner shall obtain approval from the Department of Industry and Resources for the storage of chemical/dangerous goods in accordance with Dangerous Goods (General) Regulations 2007 and provide a copy of the approval to the City of Swan.,(xviii) External lighting shall comply with the requirements of AS4282 ­ Control of Obtrusive Effects of Outdoor lighting.

Summary
The City of Swan issued two decisions on an application by Fero Group Pty Ltd for approval to commence development at Lot 61 Railway Parade, Bullsbrook, just west of the RAAF Pearce Air Base.  One decision was to refuse the proposed development of a transport depot.  The second was to grant conditional retrospective approval for the existing hardstand area, shed extension and on-site office.  The City of Swan was concerned that the proposed development would have an adverse impact on the local amenity, would be in conflict with the objectives for the rural zone and was premature while strategic planning was still being undertaken.,The application before the Tribunal was for review of the refusal of the transport depot.  The Tribunal identified that the application was for a transport depot with limited truck size, number of truck movements and operating hours and not for a generic transport depot that would change over time as feared by the City of Swan.,In addressing the issues the Tribunal found that a transport depot would not be consistent with the objectives of the rural zoning and might potentially be inconsistent with the Draft Bullsbrook Townsite and Rural Strategy if the strategy were finally adopted in the present form.  The Tribunal formed the view however, that implementation of the strategy would be unlikely for some time because the locality identified for future transport depots required rezoning, subdivision, ecological assessment and preparation of development guidelines.  The strategy did recognise non­rural uses in the rural zones and transport depots will continue to be a discretionary use in rural localities until the local planning scheme is reviewed at some future time.  The Tribunal concluded that it would be unreasonable for all applications to be refused without first being assessed on their merits until the strategy and revision of scheme provisions were sufficiently advanced to be determinative factors.,The Tribunal concluded that the proposed transport depot would be consistent with orderly and proper planning and would have an impact on local character and amenity within acceptable limits because of the limited intensity of the use, the use to be made of the existing infrastructure and the landscaping proposals.,The Tribunal decided to allow the application for review and to grant conditional approval for the proposed transport depot.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : FERO GROUP PTY LTD and CITY OF SWAN [2008] WASAT 255 MEMBER : MR J JORDAN (MEMBER) HEARD : 3 JULY 2008, FINAL SUBMISSION 5 AUGUST 2008 DELIVERED : 3 NOVEMBER 2008 FILE NO/S : DR 153 of 2008 BETWEEN : FERO GROUP PTY LTD
    Applicant

    AND

    CITY OF SWAN
    Respondent

Catchwords:

Town planning - Development - Refusal - Transport depot - Rural zoning - Existing gravel hardstand, storage shed, office and ablutions - Turnaround track - Previously noise and disturbance impacts on local residents - Particular development proposal not generic use - Impact of proposed transport depot on rural character and amenity - Type and frequency of vehicles - Consistency with rural zoning objectives - Consistency with draft strategy - Orderly and proper planning


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Legislation:

City of Swan Local Planning Scheme No 17, cl 4.2, cl 4.2.23, cl 10.2


Dangerous Goods (General) Regulations 2007 (WA)
Environmental Protection (Noise) Regulations 1997 (WA)
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 252(1)

Result:

Application for review allowed


Conditional approval granted for a transport depot

Category: B


Representation:

Counsel:


    Applicant : Mr D Caddy (Acting as Agent)
    Respondent : Mr E Turner (Acting as Agent)

Solicitors:

    Applicant : TPG Town Planning & Urban Design (Town Planners)
    Respondent : Turner Master Planners Australia (Town Planners)



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

Nil

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REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 The City of Swan issued two decisions on an application by Fero Group Pty Ltd for approval to commence development at Lot 61 Railway Parade, Bullsbrook, just west of the RAAF Pearce Air Base. One decision was to refuse the proposed development of a transport depot. The second was to grant conditional retrospective approval for the existing hardstand area, shed extension and on-site office. The City of Swan was concerned that the proposed development would have an adverse impact on the local amenity, would be in conflict with the objectives for the rural zone and was premature while strategic planning was still being undertaken.

2 The application before the Tribunal was for review of the refusal of the transport depot. The Tribunal identified that the application was for a transport depot with limited truck size, number of truck movements and operating hours and not for a generic transport depot that would change over time as feared by the City of Swan.

3 In addressing the issues the Tribunal found that a transport depot would not be consistent with the objectives of the rural zoning and might potentially be inconsistent with the Draft Bullsbrook Townsite and Rural Strategy if the strategy were finally adopted in the present form. The Tribunal formed the view however, that implementation of the strategy would be unlikely for some time because the locality identified for future transport depots required rezoning, subdivision, ecological assessment and preparation of development guidelines. The strategy did recognise non­rural uses in the rural zones and transport depots will continue to be a discretionary use in rural localities until the local planning scheme is reviewed at some future time. The Tribunal concluded that it would be unreasonable for all applications to be refused without first being assessed on their merits until the strategy and revision of scheme provisions were sufficiently advanced to be determinative factors.

4 The Tribunal concluded that the proposed transport depot would be consistent with orderly and proper planning and would have an impact on local character and amenity within acceptable limits because of the limited intensity of the use, the use to be made of the existing infrastructure and the landscaping proposals.

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5 The Tribunal decided to allow the application for review and to grant conditional approval for the proposed transport depot.


Introduction

6 These proceedings involve an application brought by Fero Group Pty Ltd (applicant), pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), for review of the refusal by the City of Swan (City, Council or respondent) on 19 March 2008 to grant development approval for a proposed transport depot at Lot 61 Railway Parade, Bullsbrook (site).




Site and locality

7 The site has an area of 13.96 hectares, a frontage of 183.2 metres to Railway Parade at the eastern end and a depth of 759.4 metres. It is relatively flat, low lying and cleared of natural vegetation except for an area extending about 250 metres from the western boundary around a conservation category wetland. Set back about 140 metres from the front boundary and about 20 metres off the southern boundary is a Colorbond storage shed with an attached enclosed lean­to structure together totalling 870 square metres in floor area. Between that shed and the southern boundary are a transportable site office and an ablution block. Beside and extending about 150 metres to the west of the shed, is an existing graded gravel hardstand about 80 metres wide with an area of about 1.656 hectares. Looping about 170 metres to the west of the gravel hardstand is a limestone turning track. A bitumen driveway extends from Railway Parade to the front of the transportable office and shed.

8 Railway Parade is a local rural distributor road constructed to a sealed standard with unsealed shoulders and open drains on each side. Lots to the north and the south and across Railway Parade are rural holdings, mostly cleared and used for grazing and horse breeding. Running parallel to and adjacent to Railway Parade is the Midland Railway. Beyond the rural properties along the eastern side of the road is the RAAF Pearce aerodrome.

9 On 4 July 2008, the Tribunal member viewed the site in the company of representatives of the parties.




Background and the proposed development

10 In 1996 planning approval was granted for the storage shed on the site. That approval included a condition that the site not be used as a transport depot. In 1998 the respondent granted development approval for


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    the ablution block. The premises were then used as a storage yard by the previous owners and the lean­to addition to the shed, gravel hardstand area and transportable site office were developed without approvals. The use 'storage yard' is not a permitted use in the General Rural zone under the City's town planning scheme. When the current owners became aware of this, the tenant was directed to cease the use and material stored has nearly all been removed.

11 In July 2006 the then owners applied to the City for development approval for a transport depot. In December 2006 there was a change to the current owners. A fresh application for development approval was received by the City in October 2007 for essentially the same development. It was said the use would generally involve seven to 10 truck movements per week (the applicant clarified that a truck movement was considered to be an arrival and a departure) and four to five normal passenger vehicle visits per day. At the hearing it was said the largest truck would be a semitrailer and no road trains would use the site. The hardstand would be used for loading, unloading, temporary storage of vehicles, equipment and goods to be loaded. The application plans for the proposed development included the site access, lean-to addition to the storage shed, site office, hardstand and turning track. The plans of the development agreed between the parties and subsequently filed with the Tribunal for consideration included annotations by officers of the City to clarify what was proposed for the road improvements at the crossover and drainage. The plans are:

    a) Development site plan dated August 2007 and stamped 'approved' by the City of Swan on 19 March 2008;

    b) Figure 5 Proposed drainage improvements annotated on plan prepared by Spectrum Survey and Mapping; and

    c) Proposed upgrades to the crossover and Railway Parade annotated on plan (reference A-A1) prepared by Porter Consulting Engineers dated February 2007 and stamped 'Revised Plan' and dated 20 November 2007.


12 At its meeting on 19 March 2008, the respondent issued two decisions. One decision was a conditional retrospective approval to commence development for the existing lean­to, gravel hardstand and transportable office on the site. The second decision was a refusal of the proposed transport depot. The application to the Tribunal is for review of
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    the respondent's refusal to grant development approval of the transport depot.




Planning framework

13 The site is zoned 'General Rural' under the City of Swan Local Planning Scheme No 17 (LPS 17) and 'Rural' under the Metropolitan Region Scheme.LPS 17 includes the following definition:


    'Transport depot' means land and/or buildings used for the transfer of goods or persons from one road motor vehicle to another such vehicle for hire or reward, or for the storage of goods delivered by road transport, and includes the maintenance, repair, garaging or parking or storage of such vehicles.

14 Under the zoning table of LPS 17 a transport depot is a 'D' use which means that it is not permitted unless the local government has exercised its discretion by granting planning approval.

15 Clause 10.2 of LPS 17 sets out matters to which it is required to have regard to when considering an application for planning approval.


    (a) the aims, objectives 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;

    (c) any approved statement of planning policy of the Commission;

    (d) any approved environmental protection policy under the Environmental Protection Act 1986;

    (e) any relevant policy or strategy of the Commission and any relevant policy adopted by the Government of the State;

    (f) any Local Planning Policy adopted by the council under cl 2.4 … and any other plan or guideline adopted by the local government under the Scheme;

    …

    (j) whether there would be a detrimental impact on the streetscape;

    (k) the compatibility generally of a use or development within its setting;

    …


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    (n) the likely effect of the proposal on the natural environment and any means that are proposed to protect or mitigate impacts on the natural environment;

    (o) the preservation of the amenity of the locality;

    (p) 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;

    (q) whether the proposed means of access to and egress from the site are adequate and whether adequate provision has been made for the loading, unloading, manoeuvring and parking of vehicles;

    (r) the amount of traffic likely to be generated by the proposal, particularly in relation to the capacity of the road system in the locality and the probable effect on traffic flow and safety;

    …

    (w) whether adequate provision has been made for the landscaping of the land to which the application relates and whether any trees or other vegetation on the land should be preserved;

    …

    (z) any relevant submission received on the application;

    (za) the comments or submissions received from any authority consulted under cl 10.1.1;

    (zb) any other planning consideration the local government considers relevant.


16 On 8 September 2008, after advertising, the City endorsed its draft 'Bullsbrook Townsite and Rural Strategy' (Draft Bullsbrook Strategy). It is yet to be considered by the Western Australian Planning Commission (Commission). The site is within 'General Rural 1' of the Land Management Precincts of the Draft Bullsbrook Strategy. This classification extends to most rural land west of the airbase and north and south of the site. The principal policy objective for General Rural 1 includes maintaining significant rural land holdings 'to ensure support for the local economy, the viability of rural land use throughout the area and the retention of the rural character of the region'. Land uses considered undesirable in General Rural 1 include industrial, transport depots and those uses, including commercial and residential, normally suitable for an urban area.

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The refusal

17 The respondent refused the application for development approval for the transport depot for the following reasons:


    (a) Whilst acknowledging that the use class of a Transport Depot is a 'D' use in the 'General Rural' zone under the City's LPS 17 (which is a discretionary use) nonetheless it is considered inappropriate in this location as it would have an impact on the rural amenity of the surrounding areas;

    (b) It is considered that the proposed use is not consistent with some of the general objectives of the General Rural zone, which amongst other things, is 'to ensure the use and development of land does not prejudice rural amenities, and to promote the enhancement of rural character'.

    (c) It is considered premature as the City's proposed Bullsbrook Townsite and Rural Strategy is currently being considered for the public advertising stage and has yet to provide some adopted guidance for future land use in the West Bullsbrook area.

    (d) Approval of Transport Depot in this part of Bullsbrook would create a precedent bearing in mind that Council has acknowledged that there is a need for identification of suitable areas for transport depot.





Issues

18 From the list of issues set out by the parties, the Tribunal considers that the following issues are relevant to the determination of this matter:


    1) Whether uncertainty associated with the proposed transport depot, in terms of the number, type and frequency of vehicles, allows a reasonable assessment of the proposal, the potential future use of the site and its impact on the locality;

    2) whether the proposed transport depot would be consistent with the LPS 17 objectives for the General Rural Zone;

    3) whether the proposed transport depot would adversely impact on the local character and on the amenity of the locality and the neighbours;

    4) whether the proposed transport depot would be consistent with the Draft Bullsbrook Strategy; and


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    5) whether the proposed transport depot would be in conflict with the orderly and proper planning of the locality.




Whether uncertainty associated with the proposed transport depot, in terms of the number, type and frequency of vehicles, allows a reasonable assessment of the proposal, the potential future use of the site and its impact on the locality

19 It was the submission of Mr Ed Turner, a planner appearing for the respondent, that the proposal represented what was a nominal or 'hypothetical' use. The ultimate use of the site could therefore be different from that currently proposed with an incremental increase from 10 trucks per week possibly with additional infrastructure to ensure the use remained viable. The result would be a greater impact on the locality.

20 Ms Claire Murray, a planner called as a witness by the applicant, said that the applicant understood that if it used the site in association with its business or if the use was operated by a third party with a lease agreement, the site could only be used consistent with the application, conditions imposed on an approval and the definition of a transport depot under LPS 17. Any change from the approved use would require a fresh application. In her submission the City has the ultimate control to prevent any 'creep' in use of the site.

21 Mr Robert Franco, a director of the applicant who appeared before the Tribunal, said the firm provided services to the mining and construction industries, including anti­corrosion treatment, ground transport products, construction and facility maintenance. He said his preference was for an average of 10 movements per week as on occasion there may be more or less movements depending upon orders. Over what period the average would be determined remained unclear. Mr Franco said he understood that if the number approached 15 movements, a fresh application would be required.

22 The Tribunal considers that the application made was not simply for a transport depot that might or might not at some time of the applicant's choosing contain all of the activities that would keep the use within the definition of a transport depot under LPS 17. The Tribunal considers that the proper approach to this matter, consistent with planning principles, is to consider it as an application for a particular use that is quite properly included within the use class 'transport depot' of LPS 17. Having been included within that use class, the application is then conveniently identified as being for a transport depot. An application for a use with a different level of intensity, perhaps involving transfer of persons and repair of vehicles, for example, might also fit within the same use class


(Page 10)
    and for convenience would also be labelled as an application for a transport depot. This would clearly not be the same transport depot as the proposal. If approval is considered appropriate then conditions are imposed to ensure the particular form of the use applied for commences and to ensure that there does not evolve a variation on the use, which might still fit within the use class but which has not been considered by the decision­maker.

23 The Tribunal considers that it is possible to make a reasonable assessment of this proposal, the future use of the site and the impact the use will have on the neighbours. This is because the application was for a transport depot of a particular intensity, as set out above, that included particular hours and days of operation, excluded road trains and included a certain number of movements per week to move goods. The Tribunal was not convinced that, if the use were allowed, the number of movements should be an average as suggested by Mr Franco. It was acceptable that the daily average might be two truck movements, but the weekly total of 10 was applied for and will be assessed.

24 Mr Leadbetter, a neighbour on the opposite side of Railway Parade who appeared as a witness, said any policing of an approval would have to be by the neighbours and this would be unreasonable. The Tribunal considers that if this use were allowed, compliance with the approval would be policed by the City the same as it polices any development approval.




Whether the proposed transport depot would be consistent with the LPS 17 objectives for the General Rural zone

25 The matters to which it is necessary to have regard, listed at cl 10.2 of LPS 17, include the objectives of LPS 17. Clause 4.2 of LPS 17 states:


    The objectives of the zones are set out under the respective headings in this clause. Without limiting their application to any discretionary decision, it is intended that the objectives will be applied by Council to determine the appropriateness in a particular zone of discretionary uses, or those uses not listed in the Zoning Table.

26 Ms Murray said that the proposed use was appropriate as it would satisfy the four objectives for the General Rural zone. Mr Turner said the proposed transport depot was not appropriate because it failed to satisfy three of the four objectives and on the fourth was neutral.

(Page 11)



27 The first General Rural zone objective at cl 4.2.23(a) of LPS 17 is to:

    (a) facilitate the use and development of land for a range of productive rural activities, which will contribute toward the economic base of the region;

28 Mr Turner said that the proposed use did not satisfy this objective because it did not involve rural production. Ms Murray was of the opinion that a transport depot could support productive rural activities and contribute to the economic base of the region because it might involve the transportation of rural machinery, equipment, feed and animals by truck.

29 The Tribunal has formed the view that the proposed development does not satisfy objective (a) of the General Rural zone because it is not apparent that it would facilitate the use and development of land in the region for a range of productive rural activities. It might be that a future operator might provide transport for rural produce such as cattle or hay, but this possibility is also considered unlikely to facilitate productive rural activity. Local rural activities have operated without a specific local transport depot and the general purpose of this transport depot is in the main long distance trucking.

30 The second objective at cl 4.2.23(b) of LPS 17 is to:


    (b) provide for a limited range of compatible support services to meet the needs of the rural community, but which will not prejudice the development of land elsewhere which is specifically zoned for such development;

31 Mr Turner said the proposed use also failed the second objective for the General Rural zone. It would not support the local rural community and would prejudice the development of zoned land where transport depots were a permitted use. More suitable localities planned for transport depots were closer to main transport routes such as Great Northern Highway or near Muchea.

32 Ms Murray said that a transport depot was consistent with objective (b). This was because it would operate in a manner compatible with trucks transporting feed, machinery and equipment generated by agricultural, cattle and horse breeding uses permitted in the General Rural zone. The proposed use might offer the same service.

33 Ms Murray was also of the opinion that because a transport depot was a discretionary use it must be contemplated for the zone. It could


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    therefore be approved without prejudicing the development of land elsewhere in which a transport depot is also permitted.

34 The Tribunal considers that as a use, the regular movement of non­agricultural goods by semitrailer from a transport depot bears little comparison with the incidental truck movements of rural activities. The possibility that hay or animal carting might be offered by a future tenant is the only real connection.

35 The designation of the proposed use as a discretionary use in the zone is not considered to lead to the conclusion that it is a use that should be allowed merely because it is not prohibited. There are a number of 'D' uses for the rural zone in the zoning table of LPS 17 and the planning merits of each would need to be assessed before they could be allowed. The Draft Bullsbrook Strategy includes transport depots as an undesirable land use in General Rural 1 precinct within which the site is located. It includes a specific rural transport precinct on Great Northern Highway. Transport depots are also discretionary in the Highway Service and General Commercial zones of LPS 17 and are permitted in the General Industrial zone. The Tribunal is of the view that, while it was not evident that this proposed transport depot would prejudice development in those other locations, it was necessary that there be a clear basis for allowing the proposed use on the site.

36 Clause 4.2.23(c) of LPS 17 states that the third objective of the General Rural zone is to:


    (c) ensure the use and development of land does not prejudice rural amenities, and to promote the enhancement of rural character;

37 This aspect of the development is considered below as a separate issue. It can be stated at this point, however, that Mr Turner was of the view that the proposed use failed to meet this objective because it would diminish the amenity of the area and would not enhance rural character. Ms Murray said that the manner in which the proposed use will be developed and operated will have no adverse impact. The Tribunal formed the view that the proposed use might not enhance rural character, but would not unduly prejudice amenity.

38 The fourth objective of the General Rural zone at cl 4.2.23(d) of LPS 17 is to:


    (d) ensure that development and land management are sustainable with reference to the capability of land and the natural resource values.

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39 On the fourth objective, Mr Turner said that the impact of the proposed use was neutral because it had no relationship with land capability and would not affect the existing wetland at the rear of the site. Ms Murray said the proposed use would satisfy objective (d) because it would not adversely impact on land capability or natural resources. The landowner had committed to implementing the drainage system with a retention basin as recommended by the City. She pointed out that, when consulted, the Department of Environment and Conservation did not object to the proposal because the transport depot would be outside a 50 metre buffer around the conservation category wetland and its dependent vegetation at the western end of the site.

40 The Tribunal agrees that the fourth objective was not a concern. Land capability would not change because of the existing improvements on the site and the proposed use would be separated from the wetland.

41 If the objectives for the General Rural zone were the only test, the appropriateness of the proposed use would be in question. As the witnesses for both parties said, in addition to the objectives of the General Rural Zone, cl 10.2 of LPS 17 sets out additional matters to which it is necessary to have regard. The relevant matters are addressed in the issues to follow.




Whether the proposed transport depot would adversely impact on the local character and on the amenity of the locality and the neighbours

42 Mr Turner and Ms Murray disagreed as to whether the proposed use would have a cumulative adverse impact on local character and therefore on the amenity of the locality. They both referred to the definition for amenity in LPS 17 which states:


    'Amenity' means all those factors which combine to form the character of an area and include the present and likely future amenity.

43 Mr Turner described the existing amenity as pleasant rural characterised by pasture with houses and farm buildings set well back from Railway Parade. Local residents had a reasonable expectation that their amenity would be protected. Mr Turner said a transport depot had no connection to the area. The appearance and activity of a transport depot would be out of character and have an unacceptable impact on the local amenity. He expressed the view that non­rural based development such as the proposed use would increase pressure for new development which would further change the rural character of the area. The only exceptions that imposed on the rural character were occasional high speed
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    vehicles on Railway Parade, occasional aircraft noise from the airbase and occasional train noise from the railway line.

44 Ms Murray was of the view that the proposed use would not have an unacceptable impact on local character. It would be set back further from Railway Parade than buildings on most other properties at 140 metres, would be 185 metres from the house to the north and over 300 metres from dwellings on Lot 9 and Lot 111 on the eastern side of Railway Parade. Vegetation buffers would be provided. She considered the general character of the use would be consistent with agricultural activity in the locality which involves storage of vehicles, equipment and goods and the movement of produce by truck.

45 The Tribunal also had the benefit of statements from Councillor Kevin Bailey and Mr Anthony Anderson, neighbours adjoining to the north who both appeared as witnesses. Councillor Bailey said he had knowledge of trucking depots and that large trucks travelling to and from the site would create unacceptable noise levels because of multiple gear changes and the need to run for some time after arrival to cool down turbochargers. Conversely, trucks would need to warm up before leaving to build up air to release brakes. He also said there would be further noise generated by loading and unloading and hitching and unhitching trailers.

46 Mr Anderson operates a horse breeding stud on Lot 60 abutting to the north and adjoining Lot 59. He said that his experience at the end of last year was of up to five semitrailers a day moving in and out and loading and unloading containers. This had created noise which had disturbed him, his family and his mares and foals. He was concerned that there would again be such noise. Both he and Cr Bailey also expressed concern about disturbance after hours and on weekends and said the proposed use would not be consistent with what they considered to be the character of the surrounding properties and the locality.

47 The Tribunal had no submissions from noise experts. Mr Turner expressed the view that even though he could not quantify the full extent of noise impact, he considered that local residents and users of the locality would be disturbed by noise associated with trucks as they had described.

48 Mr Turner, Mr Leadbetter and Cr Bailey were of the view that vehicles turning into and out of the site would obstruct traffic and the additional trucks on Railway Parade would have an adverse impact on the local character and amenity. Mr Turner pointed out that to reach


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    Great Northern Highway, the trucks would have to travel about 6.5 kilometres north through the West Bullsbrook townsite and via Rutland Road. To the south the access would be about 7 kilometres via Walbrook Road. Mr Turner considered that the proper approach to planning for transport depots was to select a site close to the highway so there would be no need for additional trucks on local roads. This point might be mitigated if there were no more than 10  trucks per week, but he was concerned that there would ultimately be more trucks.

49 Ms Murray said that the use must comply with the Environmental Protection (Noise) Regulations 1997(WA) and the use could only operate after hours and on Sundays and public holidays with the City's approval. No road trains would use the site and the 10 truck movements per week would be hardly noticed among the trucks already travelling on Railway Parade. She considered that this low intensity of use and the applicant's commitment to upgrade the existing crossover where it entered Railway Parade would result in there being no adverse impact on the local amenity in terms of traffic flow and safety. Ms Murray said that there may be some change to the existing character in respect of various individual elements that contribute to amenity. She considered, however, that the cumulative effect would not result in an adverse impact.

50 The Tribunal notes that the present amenity includes a site that is not just pasture but which has the now approved existing 870 square metre shed, ablution block, office and 1.66 hectare of hardstand. The change in local character and the impact on the current and future amenity will result from how these improvements are used. The applicant clarified that it considered a truck movement to be an arrival and a departure. Ten truck movements would therefore be 20 trips, 10 to and 10 from the site. Clearly the impact on the local amenity would increase with the number of truck movements. The respondent says 10 are too many, the applicant says that number is acceptable. The Tribunal has formed the view that a truck depot on this site with up to 10 truck movements over six days, with normal operating hours and vegetation screening would still be within the threshold of an acceptable impact on the local amenity.




Whether the proposed transport depot would be consistent with the Draft Bullsbrook Strategy

51 The Draft Bullsbrook Strategy was endorsed by the Council on 8 September 2008. It is yet to be considered by the Commission. The Draft Bullsbrook Strategy includes a Rural Transport land management


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    precinct. This comprises two lots near to each other with a combined area of about 130 hectares at the junction of Wandena Road with Great Northern Highway. The lots are at the City of Swan northern boundary about 6 kilometres north of Bullsbrook and about 4 kilometres south of a planned Muchea employment node. The Rural Transport precinct is said to be suitable for transport depots because of the nearby main traffic routes and the character of surrounding land uses. Action identified as required for the Rural Transport precinct are the rezoning of one of the lots, an assessment of the subdivision potential of the two lots and related studies of ecological values and potential development guidelines. Also said to be required on the issue of transport depots is a review of the statutory framework of LPS 17.

52 The site is within the General Rural 1 precinct of the Draft Bullsbrook Strategy, as are most rural zoned lots west of Great Northern Highway and north and south of the site. The principal policy objective for General Rural 1 is that significant rural land holdings should be maintained 'to ensure the support of the local economy, the viability of rural land use throughout the area and the retention of the rural character of the region'. Land uses listed as undesirable include industrial activities, transport depots and uses normally suitable for an urban area. Listed among 'major opportunities' is 'retaining rural properties along the main transit route (Great Northern Highway) allows the rural character to remain within the study area'. Mr Turner said the proposed use would be inconsistent with the objectives of the General Rural 1 precinct.

53 Ms Murray said the proposed use was consistent with the intent of the Draft Bullsbrook Strategy. No subdivision was proposed and the use would not threaten existing agricultural uses or vegetation. She was of the opinion that the setbacks from adjoining lots and the low intensity of the proposed use would result in a character consistent with general rural activities elsewhere in the precinct that included storage of vehicles, equipment and machinery and the movement by truck of goods such as livestock or grain.

54 The Tribunal would comment that it is not persuaded by Ms Murray's submission that a specifically created transport depot, the purpose of which is to generate truck movements, has the same characteristics as a rural use with incidentally generated truck movements. The Draft Bullsbrook Strategy does recognise, however, lots used for non­rural activity scattered throughout the General Rural precinct and it is arguable that the site could be considered one of these because the existing improvements are essentially non­rural in character.

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55 The Tribunal notes that a transport depot outside the Rural Transport precinct, including on Great Northern Highway, might be inconsistent with the ultimate planning objective of the Bullsbrook Strategy, if the strategy is finally implemented as now proposed. The Tribunal is of the view, however, that because of the steps that first have to be completed, it is likely to be a considerable time before the two lots in the Rural Transport precinct are available for the development of transport depots and LPS 17 is amended as it affects transport depots in rural areas. It is because of the unknown period that will elapse that the Tribunal has concluded that it would be unreasonable to merely refuse and not consider the merits of all proposals for transport depots elsewhere in the Draft Bullsbrook Strategy area. At this stage in the preparation of the Draft Bullsbrook Strategy, the circumstances are considered to be such that the merits of the proposal can be considered.


Whether the proposed transport depot would be in conflict with the orderly and proper planning of the locality

56 Mr Turner was of the view that the proposal would be in conflict with orderly and proper planning. He said it would be in conflict with the LPS 17 objectives for the General Rural zone, particularly because it would not facilitate or support productive rural activity and would have an adverse impact on the local rural character and amenity. He considered it to be not good planning for a transport depot to be in a rural area a considerable distance from Great Northern Highway, the main transport route. The proposal would also ultimately be in conflict with the planning objectives of the Draft Bullsbrook Strategy.

57 Ms Murray was of the view that the proposed use was consistent with orderly and proper planning. She said that LPS 17 did not prohibit the use in the General Rural zone, subdivision was not proposed, local rural activity need not be affected and a transport depot might provide a local service. She considered the proposed use would not have any impact on local character and amenity because of the proposed setbacks, vegetation buffers and low intensity of use.

58 Ms Murray and Mr Turner also referred to what use the retrospectively approved structures on the site might be put to if not a transport depot. Mr Turner said that the respondent had generously granted retrospective approval for the existing structures because of the investment made in them, but was firmly of the view that they would be most appropriately used for rural pursuit­related purposes or rural industries. Ms Murray said that the approved improvements on the site


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    were not suited to the limited number of allowable rural­related uses and rural industry would have a greater impact than the proposed use.

59 At the hearing, the parties only discussed other uses in general terms, noting that there are other permitted and discretionary uses in the zone, some compatible and some not compatible with neighbouring rural uses. No rural pursuit was identified that could make full use of 1.66 hectares of hardstand. The Tribunal would make the comment, however, that whether or not the shed and hardstand are optimally used should not be the determining factor. The Tribunal is required to consider whether the transport depot use applied for is acceptable in the circumstances.

60 The Tribunal considers that the existing hardstand and associated buildings distinguish the site and give it a particular character. The addition of the proposed transport depot will add to the impact of the site, but if the development is appropriately conditioned, the Tribunal considers that the impact on local amenity would remain within acceptable limits. The zoning provides for consideration of a transport depot as a discretionary use and the Draft Bullsbrook Strategy if implemented will recognise lots not rural in character throughout the strategy area. The conclusion has been reached that a transport depot of the intensity proposed on this site would be consistent with the orderly and proper planning of the locality.




Conclusion

61 On the first issue, the Tribunal found that the application was not for a generic transport depot. It was for a use that fell within the transport depot use class. The use would be of a particular intensity that would be operated in an identified manner. A reasonable assessment could therefore be made of the future use of the site and the impact on the locality.

62 The second issue was whether the proposed transport depot is consistent with the four objectives for the General Rural zone at cl 4.2.23 of LPS 17. The first objective for the General Rural zone is to facilitate the use and development of land for a range of productive rural activities which will contribute toward the economic base of the region. The Tribunal formed the view that the proposed development does not satisfy the first objective of the General Rural zone because it would not necessarily facilitate this outcome.

63 The second objective is to provide for a limited range of compatible support services to meet the needs of the rural community, but which will


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    not prejudice the development of land elsewhere which is specifically zoned for such development. The Tribunal is of the view that, while it was not evident that this proposed transport depot would prejudice development in other locations in which a transport depot might be located, the evidence was that the use only might provide a support service for the local rural community.

64 The third objective for the General Rural zone is concerned with the impact of the proposal on the local character and amenity. As set out below, this was dealt with as a separate issue.

65 The fourth objective of the General Rural zone is to ensure that development and land management are sustainable with reference to land capability and natural resource values. The Tribunal found that the fourth objective was not a concern. The capability of the site would not change because of the existing improvements and there would be no impact on the wetland.

66 The Tribunal concluded that if the objectives for the General Rural zone were the only test, the appropriateness of a transport depot would be in question. Clause 10.2 of LPS 17, however, lists matters in addition to the objectives of the General Rural zone for consideration. These were addressed as part of the deliberations on the other issues.

67 The third issue was whether the proposed transport depot would adversely impact on the local character and on the amenity of the locality and the neighbours. The Tribunal noted that the present amenity includes the now approved existing hardstand and buildings on the site. There is also some existing truck movements from local land uses on Railway Parade and noise from the air traffic associated with the airbase. The Tribunal formed the view that a truck depot at the setbacks proposed with 10 truck movements over six days, with normal operating hours and vegetation screening would still be within the threshold of an acceptable impact on the local character and amenity.

68 The fourth issue was whether the transport depot would be consistent with the Draft Bullsbrook Strategy. The Draft Bullsbrook Strategy has been adopted by the respondent but has not yet been endorsed by the Commission. It will include a Rural Transport land management precinct for transport depots, but the site will be within the General Rural 1 precinct within which transport depots are listed as undesirable.

69 The Tribunal is of the view that a proposal for a transport depot on the site might be inconsistent with the Bullsbrook Strategy if the strategy


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    were fully in place. The strategy, however, does recognise lots used for non­rural activity scattered throughout the General Rural precinct and it is arguable that the site is such a lot because of the existing improvements. The Tribunal formed the view that it will be a considerable time before the Rural Transport precinct is available for transport depots. This is because there first has to be completed a rezoning, ecological studies, subdivision, the preparation of development guidelines and a review of LPS 17 provisions that affect the location of transport depots. The Tribunal considers that because of the likely delay it would be unreasonable at this stage in the preparation of the Draft Bullsbrook Strategy to merely refuse and not consider the merits of proposals for transport depots elsewhere in the Draft Bullsbrook Strategy area.

70 The final issue considered was whether the proposed transport depot would be in conflict with the orderly and proper planning of the locality. The Tribunal considers that the existing hardstand and associated buildings distinguish the site and give it a particular character. The Draft Bullsbrook Strategy will recognise non­rural uses, such as that existing on the site on rural lots. The General Rural zoning provides for consideration of a transport depot as a discretionary use. The conclusion has been reached that a transport depot of the intensity proposed on this site would be consistent with the orderly and proper planning of the locality.


Conditions

71 The respondent provided a schedule of conditions, without prejudice to its position, it would want imposed if the Tribunal were minded to allow the proposed development. Of 25 conditions the applicant took issue with nine, particularly those that were a repetition of conditions imposed by the respondent on the development approval of the hardstand and ancillary buildings.

72 Of concern to the Tribunal is the applicant's submission that the definition of a transport depot under LPS 17 'be relied upon to dictate those activities permitted' as part of an approval. The first aspect of this concern is the use of the site for storage. The respondent requested a condition that storage be prevented. The approval of the improvements also included a condition that the subject property not be used as a 'storage yard'. The use 'storage' is prohibited in the General Rural zone under LPS 17, and the City previously required unlawful storage on the site to cease.  The definition of a transport depot includes, as an alternative to the transfer of goods, the storage of goods delivered by road. The Tribunal


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    considers that because of the potential impact on the rural character both approvals should make it clear that storage of goods as an activity is not allowed.

73 A second aspect of concern arising from a general reliance on the definition of a transport depot was maintenance of trucks on site. The applicant's statement of issues, facts and contentions at 12(f) (exhibit 9) and paragraph 6.7.3(m) of Ms Murray's witness statement (exhibit 6) said that there would be no maintenance on site. The respondent drafted a condition reflecting this and expressing concern about potential oil and petrol spillage. The submission of the applicant at the hearing, however, was that the respondent's recommended condition was contrary to the definition of a transport depot and was seen to be onerous. The Tribunal considers that the intent of the respondent's condition should remain because of the absence of information on the suitability of the gravel hardstand for this activity and how oil and petrol spills would be accommodated.

74 Further recommended conditions objected to were concerned with drainage of the hardstand and buildings, a retention basin and an effluent disposal system. The approval of the hardstand and buildings included the same conditions. The Tribunal considers that if the approval conditions for the improvements are completed before the transport depot use commences then the conditions need not be repeated.

75 A final condition was concerned with a submission on how the improvements came to be in place and certification that they were to appropriate standards. This condition was imposed on the approval of those improvements and is not required again. Conditions have been imposed that ensure the hardstand and building approval is first satisfied and then a transport depot of a scale and intensity appropriate for those improvements and the locality is commenced. If the applicant wishes in the future to make any material changes to the approved use, these must be the subject of a fresh application to the City.




Orders

76 The orders of the Tribunal are:


    1. The application for review is upheld and the refusal for the City of Swan to grant an application for an approval to commence development of a transport depot at Lot 61 Railway Parade, Bullsbrook is set aside.

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    2. Development approval is granted for a transport depot on Lot 61 Railway Parade, Bullsbrook subject to the following conditions:

      (i) The development is identified by reference to the following plans (copies attached):

        (a) 'Development Site Plan' prepared by Dystra Planning, dated August 2007 with the stamp City of Swan approved plan No 1 of 1 file number DA­413/2006 at its meeting held on 19 March 2008;

        (b) 'Figure 5 Proposed Drainage Improvements' (hand written heading) prepared by Spectrum Survey and Mapping, dated 8 October 2005; and

        (c) 'Access Upgrade' prepared by Porter Consulting Engineers, drawn February 2007 reference 07­1­6/2­A1, stamped 'Revised plan' hand dated 20 November 2007 with handwritten annotations and amendments to the proposed upgrades to the crossover and Railway Parade.


      (ii) The existing shed, lean­to structure, office and ablutions, driveway and gravel hardstand area only shall be used as part of the transport depot.

      (iii) This approval is for development that falls within the transport depot use class of the City of Swan Local Planning Scheme No 17 and incorporates:


        • Land and/or buildings used for the transfer of goods from one road motor vehicle to another such vehicle for hire or reward;

        • The storage for goods on site for only such time as required for them to be transferred from the delivery vehicle to the vehicle removing the goods;

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    • Road motor vehicles no larger than a semitrailer;

    • No road trains being permitted to use or park on the site; and

    • No maintenance or repairs on vehicles or associated machinery to be undertaken on site.

    (iv) The number of truck movements per week is to be no more than 10 with a movement consisting of one trip to and one trip from the site.

    (v) The truck depot is to operate only between the hours of 7 am to 5 pm Monday to Saturday, unless otherwise approved by the Council of the City of Swan.

    (vi) Vehicle access onto the site shall be restricted to that shown on the plan referred to as (i)(a) above and no vehicle shall queue on Railway Parade waiting to enter the site.

    (vii) The transport depot shall be kept in a neat and tidy condition at all times to the satisfaction of the City of Swan.

    (viii) The transport depot shall be conducted so as to not cause a dust nuisance to neighbours.

    (ix) The applicant/owner must maintain a 50 metre buffer between the wetland, its dependent vegetation and any development on the site.

    (x) Stormwater drainage plans shall be submitted and works undertaken to the satisfaction of the City of Swan's engineering services prior to the commencement of the transport depot.

    (xi) Transport depot use shall not commence until such time as the conditions imposed on City of Swan decision No DA­413/2006, dated 19 March 2008 for the approval of the related lean­to, gravel hardstand and transportable office

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    have been complied with sufficient to enable use of those facilities to commence.
    (xii) Prior to the commencement of the transport depot on the site, a landscaping plan must be submitted to the City of Swan for approval. The landscaping plan shall cover all sides of the gravel hardstand area so that activities on the side can be screened from view from adjoining neighbours and the street.

    (xiii) All landscaping must be completed in accordance with the approved detailed landscaping plan, prior to the commencement of the transport depot and all landscaping is to be maintained on­site thereafter to the satisfaction of the City of Swan.

    (xiv) The crossover shall be upgraded and lanes widened in accordance with the amended plans identified at (i)(c) above prior to the commencement of the transport depot to the satisfaction of the City of Swan's engineering services.

    (xv) Prior to the commencement of the transport depot, the applicant/owner is to provide a report, certified by a suitably qualified engineer, on the structural adequacy of the existing gravel hardstand area, accessway and parking area for use as part of a transport depot.

    (xvi) Any adjustment to power poles, manholes, drainage, sumps, service pits or similar required as a consequence of this approval is to be arranged by the applicant/owner at his/her own expense, prior to works commencing on the site.

    (xvii) The applicant/owner shall obtain approval from the Department of Industry and Resources for the storage of chemical/dangerous goods in accordance with Dangerous Goods (General) Regulations 2007 and provide a copy of the approval to the City of Swan.


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    (xviii) External lighting shall comply with the requirements of AS4282 ­ Control of Obtrusive Effects of Outdoor lighting.


    I certify that this and the preceding [76] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

    ___________________________________

    MR J JORDAN, MEMBER


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