G & G Corp Asset Management Pty Ltd and Presiding Member of the Metropolitan East Joint Development Assessment Panel
[2018] WASAT 9
•6 FEBRUARY 2018
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: G & G CORP ASSET MANAGEMENT PTY LTD and PRESIDING MEMBER OF THE METROPOLITAN EAST JOINT DEVELOPMENT ASSESSMENT PANEL [2018] WASAT 9
MEMBER: JUDGE D R PARRY (DEPUTY PRESIDENT)
HEARD: 16 JANUARY 2018
DELIVERED : 6 FEBRUARY 2018
FILE NO/S: DR 93 of 2017
BETWEEN: G & G CORP ASSET MANAGEMENT PTY LTD
Applicant
AND
PRESIDING MEMBER OF THE METROPOLITAN EAST JOINT DEVELOPMENT ASSESSMENT PANEL
RespondentCITY OF SWAN
Submitter
Catchwords:
Town planning Preliminary issue Land use classification Development application Filling and rehabilitation of former sand quarry Development application includes crushing and screening of construction and demolition waste materials Crushing and screening will result in material which is suitable for filling and rehabilitation of site and also material which is not suitable for filling and rehabilitation of site Filling and rehabilitation innominate or unlisted land use whereas 'IndustryGeneral' and 'IndustryLight' are prohibited land use classes under zoning of site 'IndustryGeneral' and 'IndustryLight' involve 'premises used for the ... processing ... of goods ...' Whether any part of proposed development is properly classified as 'IndustryGeneral' or 'IndustryLight' or whether whole of proposed development is properly classified as a 'use not listed' Whether crushing and screening of construction and demolition waste materials involves 'the ... processing ... of goods ...' Whether crushing and screening of construction and demolition waste materials is a component or element of filling and rehabilitation use Whether crushing and screening of construction and demolition waste materials is incidental, ancillary or subservient to filling and rehabilitation use Conditions of development approval Whether Tribunal can impose condition to transform a proposed land use which is prohibited into an incidental activity which does not require development approval Words and phrases: 'goods', 'processing'
Legislation:
City of Swan Local Planning Scheme No. 17, cl 4.3.3, cl 4.4.2, Sch 1 Pt A, Sch 1 Pt B
Planning and Development (Development Assessment Panels) Regulations 2011, reg 18, reg 18(2)
Planning and Development Act 2005, s 242, Pt 14
State Administrative Tribunal Act 2004 (WA), s 31
Planning and Development (Local Planning Schemes) Regulations 2015, Sch 2 (deemed provisions) cl 68(2), cl 73
Result:
A part of the proposed development, namely the crushing and screening of construction and demolition waste materials, is properly classified as 'IndustryGeneral' or 'IndustryLight' under the City of Swan Local Planning Scheme No. 17. The whole of the proposed development is not properly classified as a 'use not listed'.
Application for review dismissed and decision to refuse development approval affirmed.
Summary of Tribunal's decision:
G & G Corp Asset Management Pty Ltd sought review of the refusal of its development application for filling and rehabilitation of a former sand quarry using construction and demolition waste materials to be brought to and, in part, crushed and screened at the site. The development application proposed that up to 50,000 tonnes of construction and demolition waste materials, including excavated rock, top soil, sand, gravel, clay, building rubble, bricks, concrete and road base materials, are to be brought to the site annually. The development application anticipated that 60 per cent (30,000 tonnes per annum) or more of the construction and demolition waste materials to be brought to the site would be homogenous clean sand fill that is suitable for filling the site (although unusable waste materials, such as wood, plastic and metal, may need to be removed from it) and that up to 40 per cent (20,000 tonnes per annum) of the construction and demolition waste materials to be brought to the site would need to be processed by crushing and screening. The planning report that accompanied the development application stated that the crushing and screening would 'generate material that is suitable for filling the site' and 'will also result in material that is not suitable for filling the site' and that this crushed and screened, but unsuitable material, would be removed from the site during processing or stockpiled separately.
On the joint application of the parties, the Tribunal made the following order:
'The issue as to whether any part of the proposed development is properly classified as 'IndustryGeneral' or 'IndustryLight' under the City of Swan Local Planning Scheme No. 17, or whether the whole of the proposed development is properly classified as a 'use not listed', is to be determined by the Tribunal as a preliminary issue in the proceedings.'
The land use classes 'IndustryGeneral' and 'IndustryLight' are both prohibited in the General Rural zone under the City of Swan Local Planning Scheme No. 17, which includes the site the subject of the development application, whereas filling and rehabilitation is an innominate or unlisted use under the Scheme which is capable of approval. The Tribunal answered the preliminary issue as follows:
'A part of the proposed development, namely the crushing and screening of construction and demolition waste materials, is properly classified as 'IndustryGeneral or 'IndustryLight' under the City of Swan Local Planning Scheme No. 17. The whole of the proposed development is not properly classified as a 'use not listed'.'
The Tribunal determined that the crushing and screening of construction and demolition waste materials proposed in the development application is properly classified as 'IndustryGeneral' or 'IndustryLight', because it falls within the meaning of the term 'industry' in the land use definitions in the Scheme, it is not a cottage, extractive, mining, noxious, rural or service industry and, contrary to G & G Corp's primary submission, it is not properly classified as a component or element of the innominate or unlisted land use of filling and rehabilitation and, contrary to G & G Corp's alternative submission, it is not properly characterised as incidental, ancillary or subordinate to the filling and rehabilitation use of the site. Rather, the proposed crushing and screening of construction and demolition waste materials at the site is a separate and distinct industrial land use.
The crushing and screening of construction and demolition waste materials is a significant and central element of the proposed development. As this part or aspect of the proposed development is prohibited under the Scheme, the Tribunal determined that the development application should be refused.
Category: B
Representation:
Counsel:
Applicant: Mr J Skinner
Respondent: Mr IA Repper
Submitter: Mr CA Slarke
Solicitors:
Applicant: LSV Borrello Lawyers
Respondent: State Solicitor's Office
Submitter: McLeods
Case(s) referred to in decision(s):
Boyd and Town of Vincent [2007] WASAT 93; (2007) 52 SR (WA) 125
BP Australia Pty Ltd v City of Perth (1994) 10 SR (WA) 110
GMF Contractors Pty Ltd and Shire of SerpentineJarrahdale [2006] WASAT 353; (2006) 48 SR (WA) 1
Gull Petroleum (WA) Pty Ltd v Nashville Investments Pty Ltd [1999] WASCA 12; (1999) 102 LGERA 431
Hanson Construction Materials Pty Ltd and Town of Vincent [2008] WASAT 71
Ho v Greater Dandenong City Council [2012] VSC 165; (2012) 188 LGERA 424
Lizzio v Ryde Municipal Council [1983] HCA 22; (1983) 155 CLR 211; (1983) 51 LGRA 114
Northcote Food Wholesalers Pty Ltd v Northcote City Council (1994) 84 LGERA 54
Pacific Seven Pty Ltd v Knox City Council (1993) 11 AATR 325
Stargaze Asset Pty Ltd and City of Swan [2016] WASAT 106
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
G & G Corp Asset Management Pty Ltd (G & G Corp) seeks review, pursuant to reg 18(2) of the Planning and Development (Development Assessment Panels) Regulations 2011(WA) (DAP Regs), of the decision of the Metropolitan East Joint Development Assessment Panel (DAP) to refuse G & G Corp's development application for filling and rehabilitation of a former sand quarry at Lot 501 Adelaide Street, Hazelmere (site) using construction and demolition waste materials to be brought to and, in part, crushed and screened at the site. An application for review under reg 18 of the DAP Regs is a planning review proceeding under Pt 14 of the Planning and Development Act 2005 (WA) (PD Act).
As indicated in the statement of agreed facts set out below, following mediation in the proceedings, G & G Corp lodged an amended development application with the DAP. The amended development application is referred to in these reasons as 'the development application'. The development application proposes the filling and rehabilitation of the site using 'homogenous clean sand fill' sourced from construction and demolition waste materials brought to the site.
The development application proposes that up to 50,000 tonnes of construction and demolition waste materials, including excavated rock, top soil, sand, gravel, clay, building rubble, bricks, concrete and road base materials, are to be brought to the site annually. Based on G & G Corp's experience, the development application anticipates that 60 per cent (30,000 tonnes per annum) or more of the construction and demolition waste materials to be brought onto the site would be suitable for filling (that is, it would be 'homogenous clean sand fill') without crushing or screening, although unusable waste materials, such as wood, plastic and metal, may need to be removed from it.
However, based on the experience of G & G Corp, the development application also anticipates and proposes that up to 40 per cent (20,000 tonnes per annum) of the construction and demolition waste materials to be brought to the site would need to be processed by crushing and screening at the site. The planning report accompanying the development application states that the crushing and screening would 'generate material that is suitable for filling the site' and 'will also result in material that is not suitable for filling the site' and that this crushed and screened, but unsuitable material, would be removed from the site during processing or stockpiled separately.
Although the planning report accompanying the development application states that '[n]o material, including the material that is not suitable for filling the site following crushing/screening, will be sold from the site', material resulting from the crushing and screening process that is not suitable for filling the site would be able to be used productively by G & G Corp or, with its agreement, by others, elsewhere. Based on G & G Corp's experience, the development application anticipates and proposes that 'no more than 30 per cent of the material brought to the site would be removed from the site'. This includes the material resulting from the crushing and screening process that is not suitable for filling the site.
Pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA), the Tribunal invited the DAP to reconsider its decision following the lodgement of the amended development application. The DAP affirmed its earlier decision to refuse development approval for the following reason:
The subject land is zoned 'General Rural' and that part of the application that proposes the receipt of demolition waste from sources external to the site and involves the processing, crushing and screening of materials for transport off site for reuse or alternate uses is properly classified as a form of 'IndustryGeneral', which is an 'X' use and is not permitted in this zone.
On the joint application of G & G Corp and the presiding member of the DAP, the Tribunal subsequently made the following order:
The issue as to whether any part of the proposed development is properly classified as 'IndustryGeneral' or 'IndustryLight' under the City of Swan Local Planning Scheme No. 17, or whether the whole of the proposed development is properly classified as a 'use not listed', is to be determined by the Tribunal as a preliminary issue in the proceedings.
The Tribunal made programming orders requiring the parties to file a statement of agreed facts and an agreed bundle of documents in relation to the preliminary issue and listed the preliminary issue for hearing. The Tribunal granted the City of Swan (City) leave to make submissions in relation to the preliminary issue under s 242 of the PD Act. G & G Corp, the presiding member of the DAP and the City each filed written submissions and made oral submissions at the hearing of the preliminary issue.
Background
The statement of agreed facts in relation to the preliminary issue, which also helpfully sets out relevant provisions of the City of Swan Local Planning Scheme No. 17 (LPS 17 or Scheme), is as follows:
1.The land in question is Lot 501 Adelaide Street, Hazelmere (Lot 501). …
2.Lot 501 is zoned 'Urban Deferred' under the Metropolitan Region Scheme (MRS) and 'General Rural' under the City of Swan Local Planning Scheme No. 17 (LPS17).
3.On 5 May 2009 and 20 July 2009[,] respectively, planning approval was granted by the [Western Australia Planning Commission] under the MRS and by the City of Swan under LPS17 for development on Lot 501 comprising the rehabilitation of Lot 501 by the filling of the void of a former sand quarry with clean fill and inert material, as a usenotlisted under LPS17 (Existing Approvals). …
4.Information provided as part of the application for the Existing Approvals included reference to the crushing and screening of material taking place on Lot 501 for the purposes of producing material for the filling of the property. That information proposed a mobile crusher being brought periodically to the site, anticipated as twice a month for a few days at a time, to ensure that material to be used for the top one metre of fill was not oversized. There is no condition of the Existing Approvals referring to the crushing or screening of materials.
5.On 7 June 2016, the City issued a written direction under section 214 of the Planning and Development Act 2005 (WA), alleging that development was being carried out on Lot 501 other than in accordance with the Existing Approvals and required that the Applicant either make a fresh application for planning approval in relation to Lot 501, or cease development on Lot 501.
6.Without agreeing that development was being carried out on Lot 501 other than in accordance with the Existing Approvals, but rather than either ceasing development on Lot 501 or applying to review the issue of the written direction, on or about 5 August 2016, the Applicant made an application for planning approval under LPS17 for an altered form of rehabilitation of Lot 501 (2016 Development Application).
7.On 16 March 2017, the Respondent resolved to refuse the 2016 Development Application.
8.On 22 March 2017, the Applicant applied to the Tribunal to review the Respondent's refusal of the 2016 Development Application.
9.Following mediation, on 17 July 2017 the Application [sic] lodged an amended application for development approval (Amended Development Application), supported by a Revised Dust Management Plan lodged subsequently on 11 August 2017, for reconsideration by the Respondent. …
10.On 14 September 2017, the Respondent resolved to refuse the Amended Development Application. …
11.On 20 October 2017, the Tribunal ordered that the issue as to whether any part of the proposed development is properly classified as 'Industry-General' or 'Industry-Light' under LPS17, or whether the whole of the proposed development is properly classified as a 'use-not-listed' is [to] be determined as a preliminary issue.
The proposed development
12.Details of the intended operation of the development (Proposed Development) are contained in Part 4 of the Amended Development Application and several of its attachments: Attachment 3 (Methodology), 4 (Proposed Site Plan), 5 (Proposed Finished Ground Level) and 8 (Proposed Management Plan).
13.The Proposed Development will facilitate the rehabilitation of Lot 501 arising from the previous sand extraction activities.
14.The Proposed Development involves the acceptance of construction and demolition waste at Lot 501. Material to be accepted will include excavated rock, topsoil, sand, gravel, clay, building rubble, bricks, concrete, road base materials and other materials.
15.Material deemed unsuitable for filling at the time of acceptance will be removed from Lot 501.
16.A crusher and screen is to be used for size reduction and separation of material. It is expected that no more than 40% of the material brought to Lot 501 would require crushing.
17.Where materials are generated through the on-site processing of construction and demolition material that are not suitable for filling the site, they will be removed during processing, or stockpiled separately. Materials that do not meet minimum permeability requirements will be removed. Should stockpiled material that is suitable for filling the site reach quantities that exceed the capacity for filling at that time, the material may be transported off-site. No more than 30% of the material brought to Lot 501 would be removed from the site.
LPS 17
18.The following land use definitions are contained within Part B of Schedule 1 of LPS17:
'industry' means premises used for the manufacture, dismantling, processing, assembly, treating, testing, servicing, maintenance or repairing of goods, products, articles, materials or substances and includes the use of premises on the same land used for
(a) the storage of goods;
(b) the work of administration or accounting;
(c) the selling of goods by wholesale or retail: or
(d) the provision of amenities for employees;
incidental to any of those industrial operations;
'industrygeneral' means an industry other than a cottage, extractive, light, mining, noxious, rural or service industry;
'industrylight' means an industry
(a)in which the processes carried on, the machinery used, and the goods and commodities carried to and from the premises do not cause any injury to or adversely affect the amenity of the locality; and
(b)the establishment or conduct of which does not, or will not, impose an undue load on any existing or proposed service for the supply or provision of essential services[.]
19.Industrygeneral and industrylight are marked as 'X' uses in the zoning table (clause 4.3) of LPS17 [in relation to the General Rural zone]. By clause 4.3.2, "'X' means a use that is not permitted by [LPS17]".
20.Clause 4.4.2 of LPS17 deals with uses-not-listed as follows:
If a person proposes to carry out on land any use that is not specifically mentioned in the Zoning Table and cannot reasonably be determined as falling within the type, class or genus of activity of any other use class the local government may
(a)determine that the use is consistent with the objectives of the particular zone and is therefore permitted;
(b)determine that the use may be consistent with the objectives of the particular zone and thereafter follow the advertising procedures of clause 9.4 in considering an application for planning approval; or
(c)determine that the use is not consistent with the objectives of the particular zone and is therefore not permitted[.]
21.Clause 4.3.3 of LPS17 deals with incidental uses and provides as follows:
Notwithstanding any provisions to the contrary under the scheme, a change in the use of land from one use to another is permitted without any requirement for planning approval if:
…
(b)the change is to an incidental use that does not change the predominant use of the land, and complies with all the relevant development standards and requirements applicable under the Scheme including any requirements applicable under any current planning approval pertaining to the land[.]
and Part A of Schedule 1 of LPS17 contains the following general definitions:
'incidental use' means a use of premises which is ancillary and subordinate to the predominant use;
'predominant use' means the primary use of premises to which all other uses carried out on the premises are subordinate, incidental or ancillary.
It is also common ground between the parties that, insofar as the proposed development involves the filling and rehabilitation of the site, it is a 'use that is not specifically mentioned in the Zoning Table and cannot reasonably be determined as falling within the type, class or genus of activity of any other use class' and is, therefore, properly classified as an innominate or unlisted use for the purposes of cl 4.4.2 of LPS 17.
As indicated in the introduction above, the development application is supported by a planning report. The planning report is a detailed document prepared by Rowe Group (Rowe report). Sections 4.21 to 4.2.4 of the Rowe report concern 'indicative rehabilitation methodology', 'physical structures and plant', 'materials to be received' and 'removal of materials not suitable for filling'. These sections state as follows:
4.2.1Indicative Rehabilitation Methodology
The proponent has engaged Wave International Civil Engineers to document the methodology for the proposed filling of the site with construction and demolition material (included as Attachment 3). An extract from the document detailing the methodology is included below:
a)The existing pit floor should be cleared and any uncontrolled fill, concrete and vegetation removed and disposed of.
b)All fill material should be homogenous clean sand fill to avoid differential settlement across the site. As far as practical, the site should be filled as a single 'cell', in layers not exceeding 300mm, where conventional compaction equipment is used. The lift depth can be increased through the use of dynamic impact equipment, although vibration monitoring will be required to ensure there is no impact on the adjacent residential structures. Filling of the site in multiple small cells to the final level should be avoided as far as practical due to the possibility of material and compaction variability. In deeper areas, more than 1.5m below the finished surface, fill 'cells' can be used to manage material movement across the site and maintain working space.
c)Material should meet the minimum permeability requirements (5m/day) stated in the earthworks specification. The use of impermeable materials, such as silty sand, certain impermeable types of [construction and demolition (C&D)] material (such as roadbase, crushed concrete or other) should be avoided to prevent a locally perched groundwater condition from developing. The use of such materials can be re-considered when the final land use is known and the ultimate surface drainage strategy is known. Where such materials are generated through the on-site processing of C&D material, it should be removed from site during processing, or stockpiled separately.
d)Where C&D material is brought to site for processing the applicable DER material test requirements must be adhered to and all the necessary QA procedures followed.
As demonstrated above, the approach to be taken is intended to ensure that the quality of filling will enable a broad range of future land uses to be undertaken on the site. As described in items b) and c) above, it is recommended that minimum permeability requirements be achieved and that recycled clean sand be used for fill where the final land use is not known.
The use of construction and demolition material represents the most cost effective and environmentally sustainable method of filling the site, in that it allows for the recycling and productive use of the material. The anticipated quantity of materials to be received and processed on site is detailed below, together with confirmation of matters referred to in the advice from the State Solicitor's Office dated 26 May 2017:
•The quantity of material to be brought to the site would be subject to market conditions and the availability of material. It is expected that the quantity of material received would be no greater than 50,000 tonnes per annum.
•The content of the construction and demolition material received at the site is dependent upon the works occurring within the Perth Metropolitan Area. In order to maintain supply of material and fill to the site in a timely fashion, certain types of material may be received in larger quantities than is required at that time. This material is then stockpiled for future use.
•The amount of material stored onsite will vary according to the volume of material brought to site and the areas being filled at the time. This is managed carefully by the site manager as there is a need to allow room for machines to operate.
•The type of material to be received is described in detail in section 4.2.3 below. The nature of the operation is such that the operator can exercise a measure of control over the type of material to be received, which will enable the operator to exclude materials that will be clearly unsuitable for filling the site, which will be necessary in order to meet the criteria set out in section 4.2.4 below regarding the removal of material from the site.
•Material that is required to be crushed/screened will vary depending on the material available in the market. There will be instances where material received at the site will require no crushing and other times when crushing will be required. We expect that no more than 40% of the material brought to site would require crushing.
•As described in detail in section 4.2.4 below, no more than 30% of the material brought to the site would be transported offsite.
•Subject to the proviso referred to in section 4.2.4 below, all material received at the site which is suitable for filling the site, either without processing or after processing by crushing/screening, will be used for the filling of the site.
As to the uncertainty referred to above regarding the application of the landfill levy, at the time of lodging this application that uncertainty continues to apply to any filling of the site in accordance with this methodology, but is expected to be resolved shortly by clarification from the State Government. This methodology has been devised in order to allow the filling of the site to be undertaken in accordance with the operation of a new approval without attracting the application of the landfill levy, following this clarification.
4.2.2Physical Structures and Plant
All structures on site are to be temporary in nature, consisting of the following:
•Office;
•Toilet;
•Store room;
•lunch room;
•work shop; and
•Crusher
4.2.3Materials to be received
The site will receive material sourced from construction and demolition activities. The current approval permits the filling of the site with clean fill and inert materials which are defined as 'Clean Fill' and 'Type 1 Inert Wastes' by 'Landfill Waste Classifications and Waste Definitions 1996 (As Amended)' (Department of Environment, 2005).
The current approval permits materials to be accepted at the site from building and construction, demolition, excavation, drill material/sand and dredging sites. These materials include excavated rock, topsoil, sand, gravel, clay, building rubble, bricks, concrete and road base materials. Hazardous materials will not be accepted into the site. Materials brought to the site will be sorted and unacceptable materials will be removed. This will also include recovered components such as steel pieces, timber logs (if any) or other material deemed unsuitable for filling.
Further the current approval permits the use of a crushing and screening plant in order to ensure that oversized material will not be used as fill.
A waste inventory is maintained by the operator to monitor and record the types and quantities of each load of waste received at the premises, in accordance with the requirements of the licence issued by DER.
4.2.4Removal of materials not suitable for filling
As indicated in section 4.2.1 above, some material received at the site will require processing by crushing/screening in order to generate material that is suitable for filling the site, which will also result in material that is not suitable for filling the site.
Where materials are generated through the onsite processing of C&D material that are not suitable for filling the site, they will be removed from site during processing, or stockpiled separately.
In addition, as illustrated within Figure 2 of the WAVE Methodology (included as Attachment 3 of this Report), the space available for stockpiled material on the site is limited. Should stockpiled material that is suitable for filling the site reach quantities that exceed the capacity for filling at that time, the material may be transported off-site.
As previously stated, in any event, no more than 30% of the material brought to the site would be removed from the site.
No material, including the material that is not suitable for filling the site following crushing/screening, will be sold from the site.
(Emphasis in bold added)
Legal principles concerning land use classification of two or more activities
The legal principles in relation to land use classification where two or more activities are proposed on a single development site are not in dispute.
Gull Petroleum (WA) Pty Ltd v Nashville Investments Pty Ltd [1999] WASCA 12; (1999) 102 LGERA 431 (Gull Petroleum) concerned, in part, the proper land use classification for the proposed development of a 24 hour service station and convenience store at Great Eastern Highway in Burswood. The Full Court of the Supreme Court of Western Australia (Steytler J, Kennedy J [1] and Ipp J [2] agreeing) held as follows [52]:
[I]t seems to me that each proposal must be looked at on its own merits. The classification of the proposed uses should not be carried out either in a mechanical or in an arbitrary way. If, in a particular case, the manner in which two uses are to be combined on a particular site makes it inappropriate to categorise the resulting use as a dual use with each use falling within a definition in the Scheme, perhaps because the proposed manner of combining the two uses so changes the character of one or both of them that it or they can no longer sensibly be taken to fall within the definition or definitions in the Scheme, then there should be no such categorisation. Where, on the other hand, the character of each use remains unaffected by the fact that one site is shared between them there is no reason why the categorisation of each use should be any different than if each had been effected from its own site. If either use is unacceptable within the particular location it would not be approved. That consequence would not be altered by the fact that another, permitted, use would be effected from the same site.
The Court observed [53] that '[t]his kind of approach appears to have been adopted by the [Town Planning Appeal] Tribunal in BP Australia Pty Ltd v City of Perth.' The Court then set out an extract from the decision of the Town Planning Appeal Tribunal in BP Australia Pty Ltd v City of Perth (1994) 10 SR (WA) 110, 114 which included the following:
A single development application can be considered for different and distinct uses on the one site and it is important not to lump independent uses into one dominant use for the purpose of classification. The law is stated by Glass JA in Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 at 161 (cited with approval by Gibbs CJ in Lizzio v Ryde Municipal Council (1983) 155 CLR 211 at 217; 51 LGRA 114 at 117):
'Where the whole of the premises is used for two or more purposes none of which subserves the others, it is, in my opinion, irrelevant to enquire which of the multiple purposes is dominant.'
In Gull Petroleum the Court held as follows [55] [56]:
[I]t seems to me that the development application should appropriately be classified as one for distinct uses on the same site, being "shop" in the area marked as such on the plans and in the fast food sales area and "service station" in that part of the site to be used as such.
There was no objection to the classification of the "shop" area as such and nor was there any objection to the classification of the service station area as such if the fast food sales area was not lumped in with it. Moreover there could not, I think, have been any objection to the fast foods sales area being classified as giving rise to a "shop" use if it had operated from separate, but adjacent premises. The sole problem consequently centred around the fact that the fast food outlet shared a room and cashier's desk with the area used to operate the service station. That fact cannot, in my opinion, have the result that the fast food sales use which, had it been carried out from separate premises, would have been classified as a "shop" use should no longer be classified as such. Nor can it have the result that the service station use has been so altered as to mean that it should no longer be categorised as such. The fact that the fast food outlet and service station share a cashier does nothing to alter the character of the fast food outlet as that of a shop or that of the service station as a service station. Nor does the fact that fast food is sold from a site used also for a service station alter the character of either the fast food outlet or the service station. There remain, in my opinion, two distinct uses, each maintaining its essential characteristics and neither of which subserves the other (cf Lizzio v Ryde Municipal Council (1983) at 217; 117).
As indicated in the statement of agreed facts set out above, cl 4.3.3 of LPS 17 authorises 'the change [of use] … to an incidental use that does not change the predominant use of the land, and complies with all the relevant development standards and requirements applicable under the Scheme …', without development approval, and Pt A of Sch 1 of LPS 17 sets out definitions of the terms 'incidental use' and 'predominant use'. The term 'incidental use' means 'a use of premises which is ancillary and subordinate to the predominant use' and the term 'predominant use' means 'the primary use of premises to which all other uses carried out on the premises are subordinate, incidental or ancillary'.
These provisions of LPS 17 give statutory expression and force to the established planning law concept that an incidental, ancillary or subordinate activity to a dominant land use is not in itself a land use requiring development approval, but rather is 'considered to be part and parcel of the primary use': Pacific Seven Pty Ltd v Knox City Council (1993) 11 AATR 325, 329 (Victorian and Civil Administrative Tribunal (Member H Gibson)) (Pacific Seven). The concept of incidental, ancillary or subordinate activity (often incorrectly referred to as 'incidental use' see below) has a wellrecognised meaning in planning law and is clearly used in that sense in cl 4.3.3 and the definitions of 'incidental use' and 'predominant use' in Pt A of Sch 1 of LPS 17.
The leading Australian authority in relation to this concept is Lizzio v Ryde Municipal Council [1983] HCA 22; (1983) 155 CLR 211; (1983) 51 LGRA 114 (Gibbs CJ, Murphy, Wilson & Brennan JJ agreeing).
For some years, Mr and Mrs Lizzio supplemented their family income by selling flowers from their residential property in suburban Sydney. The flowers were grown by Mr and Mrs Lizzio and by their adjoining neighbour on their properties. Mr and Mrs Lizzio sold, on average, 55 to 60 bunches of flowers a week under a beach umbrella placed inside the front boundary of their property.
The local authority brought civil enforcement proceedings in the New South Wales Land and Environment Court to restrain Mr and Mrs Lizzio from selling flowers from their property. The Land and Environment Court granted an injunction on the basis that selling flowers constituted a use of land for a prohibited purpose under the applicable planning scheme. Mr and Mrs Lizzio unsuccessfully appealed to the New South Wales Court of Appeal. They then sought and obtained special leave to appeal to the High Court of Australia.
At each stage, Mr and Mrs Lizzio contended that their selling of flowers was not in breach of the planning scheme for two reasons. Their first reason was that it was 'merely incidental or subordinate to the use of the land for the purpose of a dwellinghouse, and was not distinct or separate therefrom, so that it remained true to say that the land was used only as the site of a dwellinghouse' (215; 115).
The High Court addressed and rejected this argument as follows 216; 116 117:
The first argument, that the land was used for the purposes of a dwelling-house and nothing more, takes as its starting point the judgment of the Court of Appeal in Foodbarn Pty Ltd v Solicitor-General [(1975) 32 LGRA 157] where Glass JA said [161]:
'It may be deduced that where a part of the premises is used for a purpose which is subordinate to the purpose which inspires the use of another part, it is legitimate to disregard the former and to treat the dominant purpose as that for which the whole is being used. Doubtless the same principle would apply where the dominant and servient purposes both relate to the whole and not to separate parts.'
Obviously a person who is entitled to use land for the purpose of a dwelling-house may use it for incidental purposes, such as garaging his car or housing his boat. No doubt in some circumstances a householder who on an isolated occasion used his land for the purpose of making sales from a stall might be held to be doing no more than using his land for the purposes of a dwelling-house. For instance, if a householder allowed his land to be used annually as the site for a fete to raise money for some charitable purpose, the use of the land in that way might be regarded as simply incidental to its use for the purposes of a dwelling-house. The question is one of fact and degree. Having regard to the regularity and extent of the activities involved in selling the flowers, and to the fact that some of the flowers were grown on other land, there is no reason to disagree with the decision reached in the courts below that the use of the land in the present case could not be regarded as merely incidental to its use for the purposes of a dwelling-house. In those circumstances, some further remarks of Glass JA in Foodbarn Pty Ltd v Solicitor-General [161] become apposite:
'Where the whole of the premises is used for two or more purposes none of which subserves the others, it is, in my opinion, irrelevant to inquire which of the multiple purposes is dominant. If any one purpose operating in a way which is independent and not merely incidental to other purposes is prohibited, it is immaterial that it may be overshadowed by the others …'
It should be noted that although the terminology of 'incidental use' and 'ancillary use' is commonly adopted in the cases (and in planning schemes, such as LPS 17), as Member Gibson astutely observed in Pacific Seven 329, this terminology is incorrect:
It has always been recognised that land may be used for more than one use. Land can also be used for more than one activity. However, not all activities constitute separate uses in their own right. Sometimes activities will be ancillary or incidental to the primary use of the property, in which case they will not constitute a separate use but are considered to be part and parcel of the primary use. Whilst these are commonly termed 'ancillary uses', the word 'use' in this context is a misnomer. They are really activities which are an ancillary part of the primary use.
This passage was endorsed by the Supreme Court of Victoria (Macauley J) in Ho v Greater Dandenong City Council [2012] VSC 165; (2012) 188 LGERA 424 [80].
Finally, as the Supreme Court of Victoria (Teague J) held in Northcote Food Wholesalers Pty Ltd v Northcote City Council (1994) 84 LGERA 54, 67:
[T]here is no single test to determine dominant against ancillary, and that different criteria, themselves not readily susceptible of classification, perhaps relating to appearance or association, perhaps of a planning nature (like traffic or parking), perhaps of a monetarily quantitative nature (like revenue), perhaps of a geographically quantitative nature (like scale) are looked to as appropriate in the circumstances of each case.
Is any part of the proposed development properly classified as 'IndustryGeneral' or 'IndustryLight' under LPS 17 or is the whole of the proposed development properly classified as a 'use not listed'?
Mr Julius Skinner, counsel for G & G Corp, submits that the proposed crushing and screening operations on the site are 'properly classified as a component or element of the use not listed for the filling and rehabilitation of [the site]' (written submissions [7]). Alternatively, Mr Skinner submits that, if the proposed crushing and screening operations 'are properly classified as a separate "industry" use, they are an incidental use as defined in LPS 17, being ancillary or subordinate to the predominant use of the filling and rehabilitation of [the site]' (written submissions [8]). Mr Skinner summarised the issues raised by G & G Corp's submission as follows:
The issue, in a nutshell, is whether the crushing and screening operations are a separate industry use or a component or element of the filling and rehabilitation use which it's not in dispute that constitutes a use not listed under City of Swan's LPS 17.
And, … there's a related issue … which is … if the crushing and screening operations are properly considered to be a separate use, are they nevertheless an incidental use to the filling and rehabilitation such that they wouldn’t require planning approval under the scheme. …
(T:3; 16.01.18)
Mr Skinner acknowledged that:
… [t]here's a significant degree of overlap, in terms of determining whether it is a separate use at all, or, if it is a separate use, whether it's an incidental use.
(T:25; 16.01.18)
In contrast, Mr Ian Repper, counsel for the presiding member of the DAP, submits that 'the processing of the construction and demolition waste to produce end products, some of which will be suitable and predominantly used for filling the site, some of which will be removed … is a separate process that could and does easily stand alone … [to the filling and rehabilitation use]' (T:31; 16.01.18). Mr Repper submits that this activity 'is properly characterised as an industrial use' (T:28; 16.01.18).
Mr Craig Slarke, counsel for the City, also submits that the proposed development involves 'industrial activities' (T:46; 16.01.18) constituting a separate land use to filling and rehabilitation of the site. Furthermore, Mr Slarke submits that the 'scale and planning consequences … militate against characterising the industrial activity as incidental' (T:46; 16.01.18).
For the reasons which follow, in my view, the answer to the preliminary issue is that part of the proposed development, namely the crushing and screening of construction and demolition waste materials, is properly classified as 'IndustryGeneral' or 'IndustryLight' under LPS 17 and the whole of the proposed development is not properly classified as a 'use not listed' under the Scheme. A major part of the proposed development is, therefore, prohibited in the General Rural zone under the Scheme and the proposed development should consequently be refused consent.
The crushing and screening of construction and demolition waste materials proposed in the development application is properly classified as 'IndustryGeneral' or 'IndustryLight', because it falls within the meaning of the term 'industry' in the land use definitions in Pt B of Sch 1 of LPS 17, it is not a cottage, extractive, mining, noxious, rural or service industry and, contrary to G & G Corp's primary submission, it is not properly classified as a component or element of the innominate or unlisted land use of filling and rehabilitation and, contrary to G & G Corp's alternative submission, it is not properly characterised as incidental, ancillary or subordinate to the filling and rehabilitation use of the site. Rather, in my view, the proposed crushing and screening of construction and demolition waste materials at the site is a separate and distinct industrial land use to the filling and rehabilitation of the site.
Both land use definitions of 'industrygeneral' and 'industrylight' in Pt B of Sch 1 of LPS 17 are premised on the activity constituting an 'industry'. The crushing and screening of construction and demolition waste materials proposed in the development application falls within the meaning of the term 'industry' in Pt B or Sch 1 of LPS 17, because it involves 'premises used for the … processing … of goods …'. The verb 'to process' is relevantly defined in The Macquarie Dictionary (6th ed, 2013) at page 1170 as meaning 'to treat or prepare by some particular process, as in manufacturing'. The noun 'goods' (in the plural) is relevantly defined at page 639 as 'articles of trade; wares; merchandise, especially that which is transported by land'. As the Tribunal held in GMF Contractors Pty Ltd and Shire of SerpentineJarrahdale [2006] WASAT 353; (2006) 48 SR (WA) 1 (GMF) [36], construction and demolition waste materials which are proposed to be processed by crushing are 'goods', as are the products created by processing them by crushing.
As indicated earlier, the definition of 'industrygeneral' in the Scheme is 'an industry other than a cottage, extractive, light, mining, noxious, rural or service industry'. It is common ground that the crushing and screening of construction and demolition waste materials proposed in the development application does not involve a cottage, extractive, mining, noxious, rural or service industry. Is it unnecessary to set out the definitions of those land use classes in the Scheme. The common ground position of the parties is plainly correct.
It is unnecessary, in the circumstances of this case, to decide whether the crushing and screening of construction and demolition waste materials proposed in the development application falls within the land use definition 'industrylight'. Although it is likely that the crushing and screening proposed in the development application does not satisfy para (a) of the definition of that term ('in which the process carried on, the machinery used, and the goods and commodities carried to and from the premises do not cause any injury to or adversely affect the amenity of the locality') (see GMF [37] [47]), the parties did not address this question, no doubt because both 'IndustryGeneral' and 'IndustryLight' are prohibited land use classes in the General Rural zone under LPS 17.
In my view, contrary to G & G Corp's primary submission, the crushing and screening of construction and demolition waste materials proposed in the development application is not properly classified as a component or element of the filling and rehabilitation innominate or unlisted land use, which is also proposed in the development application, but rather is a separate and distinct land use in the circumstances of this case. I have come to this view for the following two reasons.
First, crushing and screening of construction and demolition waste materials involves different, or at least additional, amenity and environmental impacts to filling and rehabilitation of land. As Mr Slarke submits on behalf of the City, 'there are planning consequences associated with crushing and screening, most obviously the noise and dust emissions, which just do not occur, or at least do not occur to anywhere near like the same extent, from filling' (T 46; 16.01.18).
Secondly, as indicated earlier, the Rowe report states that the proposed crushing and screening activity will both 'generate material that is suitable for filling the site' and 'will also result in material that is not suitable for filling the site' (section 4.2.4).
As discussed in section 4.2.1 of the Rowe report, G & G Corp engaged Wave International Civil Engineers to document the methodology for the proposed filling of the site with construction and demolition material. The methodology developed by the engineering consultant restricts the material to be used for rehabilitation to 'homogenous clean sand fill' and requires that '[m]aterial should meet the minimal permeability requirements (5m/day) stated in the earthworks specification'. It also states that '[t]he use of impermeable materials, such as silty sand, certain impermeable types of [construction and demolition] material (such as road base, crushed concrete or other) should be avoided' and that '[w]here such materials are generated through the onsite processing of [construction and demolition] material, it should be removed from the site during processing, or stockpiled separately'.
As indicated earlier, the Rowe report anticipates that up to 30 per cent (or up to 15,000 tonnes annually) of the construction and demolition materials brought to the site would be removed from the site. It is common ground that the upto30percent would comprise three potential categories of material. 'Category A' (as identified by Mr Skinner in his submissions for G & G Corp) would comprise material not suitable for fill, such as wood, plastic and metal, which would be removed from the construction and demolition waste materials brought to the site prior to filling (if the waste material were otherwise 'homogenous clean sand fill') or prior to crushing and screening. 'Category B' (as identified by Mr Skinner) comprises material which has been crushed and screened, but is not suitable for filling the site. 'Category C' (as identified by Mr Skinner) comprises material that has been crushed and screened and is suitable for filling the site, but which cannot be accommodated in the stockpiles on the site, because of site constraints.
It is common ground that although Category C is a possibility, particularly in the future as the rehabilitation progresses, it is unlikely to occur to any significant extent, because it would make little sense to produce excessive quantities of materials for filling the site, have to remove them because of site constraints, have to store them elsewhere, and then have to bring them back to fill the site. As Mr Skinner said:
… it's unlikely it's going to be an unusual circumstance, but it certainly is a possibility as filling commences and carries on that there will be site constraints and the ability to stockpile suitable material onsite, and it may have to be removed from the site to be stored elsewhere …
(T:10; 16.01.18)
Therefore, it is likely that the upto30percent of the construction and demolition waste materials that the development application contemplates would be removed from the site comprises principally Category A and Category B materials. There is a dispute between G & G Corp and the City as to what proportion of the upto30percent of construction and demolition materials that would be removed from the site would fall within each of those categories. G & G Corp submits that the 'overwhelming majority' of material to be removed from the site would fall within Category A, because 'we're only going to be crushing and screening material which, of its nature, is going to be suitable for fill' once it has been crushed and screened and therefore 'the waste proportions of that [i.e. Category B] … will be relatively small' (T:47; 16.01.18). In contrast, the City submits that the 'overwhelming majority' would fall within Category B, because G & G Corp can exercise control over the construction and demolition materials to be brought to the site and can exclude Category A material from being received at the site. On the basis of this assumption, the City contends that the upto30percent of material which may be removed from the site constitutes up to threequarters of the construction and demolition materials received at the site that would be crushed and screened.
On the evidence before the Tribunal, I am unable to determine whether the majority of the upto30percent of material that may be removed from the site falls within Category A or Category B. Although G & G Corp only intends to crush and screen material that, of its nature, is going to be suitable for fill once it has been crushed and screened, both the methodology developed by Wave International Civil Engineers and the Rowe report anticipate that the proposed crushing and screening (of material that, of its nature, is going to be suitable for fill) would produce both material that is suitable for filling the site and material that is not suitable for filling the site. Although there is logic in the City's submission, it is likely that even if restrictions were placed on the type of material received at the site, the material will include items such as wood, plastic and metal which cannot be crushed and screened and therefore would have to be removed.
Ultimately, I am left with the statement in the Rowe report that the proposed crushing and screening will both 'generate material that is suitable for filling the site' and 'will also result in material that is not suitable for filling the site'. In my view, this dual outcome of the crushing and screening process precludes it from being properly classified as an element or component of the filling and rehabilitation use. Rather, it is a separate and distinct industrial land use which would produce both homogenous clean sand fill that G & G Corp can utilise in filling the site and material which is not suitable for filling the site but which, although not able to be sold from the site, could be productively utilised elsewhere.
Furthermore, in my view, because of the amenity and environmental impacts, the outcome and the scale of the operation, the proposed crushing and screening of construction and demolition waste materials on the site is not properly characterised as an incidental, ancillary or subordinate activity or, in terms of the language of cl 4.3.3 of LPS 17, as an 'incidental use' to the use of the site for filling and rehabilitation.
In terms of the amenity and environmental impacts, as discussed earlier, crushing and screening of construction and demolition waste materials involves planning consequences, in terms of noise and dust emissions, which do not occur, or do not occur to the same extent, in filling and rehabilitating a site.
In terms of the outcome, as also discussed earlier, the crushing and screening would produce both material that is suitable for filling the site and material that is not suitable for filling the site.
In terms of scale, the development application anticipates and proposes the crushing and screening of up to 40 per cent of the construction and demolition materials received at the site or up to 20,000 tonnes of material a year. In my view, the scale of the crushing and screening, both as a proportion of the materials received at the site (up to 40 per cent) and in absolute terms (up to 20,000 tonnes a year) is so significant as to preclude it from being characterised as merely an incidental, ancillary or subordinate activity, or as an 'incidental use' under LPS 17, to filling and rehabilitation of the site (even ignoring the amenity and environmental impacts and the production of material that is not suitable for filling the site).
The crushing and screening is not 'part and parcel of' the filling and rehabilitation use, to borrow Member Gibson's words in Pacific Seven. Rather, it is a separate and distinct land use.
Mr Skinner submits that the proposed crushing and screening is an 'incidental use' under LPS 17, because it is 'solely for the purpose of improving the compaction or drainage of material that is otherwise suitable for filling, and is only then used for the purpose of filling the site …' (T:25; 16.01.18). However, as indicated earlier, the proposed crushing and screening would produce both material that is suitable for filling the site and material that is not suitable for filling the site. In any case, as discussed earlier, the impacts, outcome and scale of the proposed crushing and screening are such that it cannot be classified as an 'incidental use' under LPS 17.
Mr Skinner also submits that 'there's no magic in that 40 per cent' (T8; 16.01.18.) and that, if required, the scale or scope of the crushing and screening could be limited by the Tribunal by the imposition of a condition of development approval. Similarly, Mr Skinner submits with respect to the anticipation in the development application that up to 30 per cent of construction and demolition materials received at the site may be removed from the site that 'there may well be the capacity to either impose a lesser amount through conditions or to set other limits …' (T:18; 16.01.18).
However, a condition of development approval cannot transform a prohibited use into a use which the planning authority may consider approving or into an 'incidental use' which does not require development approval.
It is for the applicant for development approval to formulate and propose in its development application the development for which it seeks approval. The planning authority is then required to classify the proposed land use under the applicable planning scheme and, if it is capable of approval under the scheme, to assess the proposed development on its merits and to determine the application by:
(a)granting development approval without conditions; or
(b)granting development approval with conditions; or
(c)refusing to grant development approval.
(cl 68(2) of the deemed provisions for local planning schemes in Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regs) (deemed provisions)).
If the planning authority determines that the proposed development is properly classified as falling within a use class that is designated by the symbol 'X' in the Zoning Table of the applicable planning scheme in respect of the zoning of the site (meaning, under cl 4.3.2 of LPS 17 and cl 18(2) of the model provisions for local planning schemes in Sch 1 of the LPS Regs, 'that the use is not permitted by this Scheme'), then the proposed development is prohibited under the applicable planning scheme and must be refused consent. The planning authority may not grant development approval, with or without conditions, to a prohibited use. It may therefore not impose a condition of development approval seeking to transform a prohibited use into a use which can be approved or into an incidental activity or 'incidental use' under LPS 17 which does not require development approval.
On the other hand, if the planning authority determines that the proposed development is capable of approval under the scheme, and merits the granting of conditional development approval in the exercise of planning discretion, then it may impose conditions on its approval in order to regulate and mitigate the impacts of the carrying out of the proposed and approved development.
Furthermore, a conditional development approval for an 'incidental use' under LPS 17 is arguably a nullity, because if, as cl 4.3.3 of LPS 17 provides, 'a change in the use of land from one use to [an incidental use that does not change the predominant use of the land] is permitted without any requirement for planning approval', development approval cannot be sought or granted for it.
Mr Skinner also made reference to the facts set out in the statement of agreed facts [4] that information provided as part of the application for the existing development approvals 'included reference to the crushing and screening of material taking place on [the site] for the purposes of producing material for the filling of the property' and that no condition of development approval was imposed on the existing development approvals 'referring to the crushing or screening of materials'. Mr Skinner submits:
We've got an existing approval on this site, granted by the City of Swan, for rehabilitation that clearly includes some aspect of crushing and screening. And, more importantly, we've got the other approval that's referred to in [Stargaze Asset Pty Ltd and City of Swan [2016] WASAT 106 (Stargaze)], also part of the City of Swan.
That includes there's an approval for rehabilitation as a use not listed that included crushing and screening, particularly where that was limited to material to be used on the site. So the [C]ity has clearly taken the view, on at least those two occasions, that this is matter of dealing with or the crushing and screening of that nature is not a separate industry use. It can be considered a part and parcel of a rehabilitation use.
And, again, taking the approaching broad view is that that should encourage the [T]ribunal in taking a similar approach with this application. …
(T:22; 16.01.18)
However, the Tribunal is not bound by any land use classification decision made by an original decisionmaker in relation to a reviewable decision (Boyd and Town of Vincent [2007] WASAT 93; (2007) 52 SR (WA) 125 [16]); much less so is it bound by a land use classification decision made by a former decisionmaker in relation to the development site or by a decisionmaker in relation to other land in the same scheme area. Certainly, the Tribunal may have regard to relevant decisions of earlier planning decisionmakers in relation to development of the site the subject of proceedings, as a matter of orderly and proper planning, particularly in terms of the principle of consistency in decision making: see Hanson Construction Materials Pty Ltd and Town of Vincent [2008] WASAT 71 [47] [54]. However, each land use classification decision and each planning assessment decision must be made by the planning authority (and the Tribunal on review) having regard to the particular development as formulated and proposed in the development application before it and the facts and circumstances of the case.
The scale of the crushing and screening contemplated when the existing development approvals were sought appears to be less than what is now proposed. The information provided as part of the application for the existing development approvals proposed that there would be a mobile crusher brought periodically to the site, anticipated as twice a month, for a few days at time, rather than a crusher being located at the site and crushing up to 20,000 tonnes of construction and demolition waste materials a year.
In Stargaze, the Tribunal was called upon to determine a preliminary issue as to whether a proposed amendment to a development approval in relation to land in the Landscape zone of LPS 17 was properly classified as a use involving 'industry' as defined in the Scheme. The existing development approval in that case purported to authorise the crushing and screening of construction and demolition waste materials and the use of the resulting end product to fill and rehabilitate the land. The application before the Tribunal was to amend the development approval to take the end product from the land and use it to fill and rehabilitate other land. The Tribunal determined that the proposed amended development was properly classified as use of the land for 'industry' and therefore prohibited (as falling within the land use classes of 'IndustryGeneral' or 'IndustryLight' under LPS 17). In its reasons, the Tribunal said the following [31] [32]:
On the face of it, the activities allowed under the existing development approval involve the processing of demolition and construction waste so as to create an end product. Putting aside for a moment what the end product is and what it is intended to be used for, the use of the site for such an activity falls squarely into the definition of 'industry' in LPS 17. The same activity (crushing and screening demolition and construction waste to create an end product) was considered to be properly characterised as 'industry' under a local planning scheme which defined that term in the same way as in LPS 17 in Terra Spei Pty Ltd and Shire of Kalamunda [2015] WASAT 134, at [32] (Terra Spei).
However, it would seem that the respondent, at the relevant time, considered that the activities contemplated by the existing development approval, if done for the purpose of creating fill to rehabilitate the site, were of such a character that this use of the site no longer fit within the meaning of 'industry' for the purposes of LPS 17. While I have some hesitation in accepting this, the correctness or otherwise of the respondent's characterisation of the land use authorised by the existing development approval is not strictly before the Tribunal. However, what is before the Tribunal is the proper characterisation of those same activities done for the purpose of creating fill not just to rehabilitate the site, but also to rehabilitate other land on an ongoing basis.
The Tribunal in Stargaze was correct to express 'some hesitation' in accepting the apparent view of the City at the time it granted the existing development approval that the crushing and screening of construction and demolition waste materials, if done for the purpose of creating fill to rehabilitate the land, was of such a character as to no longer fit within the meaning of the term 'industry' in LPS 17. However, the Tribunal was also correct in determining that 'the correctness or otherwise of the [City's] characterisation of the land use authorised by the existing development approval is not strictly before the Tribunal'. Nor is the correctness or otherwise of the City's land use classification when it granted the existing approval in relation to the site or when it granted the approval in relation to the Stargaze land before the Tribunal in this case.
For the reasons set out earlier, in my view, in the circumstances of this case, the proposed development, insofar as it involves the crushing and screening of up to 20,000 tonnes of construction and demolition waste materials a year, falls within the meaning of 'industry' under LPS 17, is not properly classified as a component or element of the (also) proposed filling and rehabilitation of the site, and is not an 'incidental use' to the proposed filling and rehabilitation use under LPS 17. The apparent view of the City at the time it granted the existing approval in relation to the Stargaze land and the existing development approvals in relation to the site do not warrant a different conclusion.
Finally, although G & G Corp does not contend that the development application proposes a composite use of the nature discussed in Gull Petroleum [52] (T:58; 16.01.18), for completeness, I have considered whether the development application proposes a composite innominate use combining both aspects of the proposal. In my view, although the industrial use of crushing and screening construction and demolition waste materials and the innominate use of filling and rehabilitation are proposed in the same development application to take place on the same site, and although some of the product of the crushing and screening would be utilised in the rehabilitation of the site, the manner in which these uses are to be combined does not make it inappropriate to classify or categorise the result as dual uses. To borrow the words of Steytler J in Gull Petroleum [56], they are and 'remain … two distinct uses, each maintaining its essential characteristics and neither of which subserves the other'.
Conclusion
The crushing and screening of construction and demolition waste materials proposed in the development application involves a separate and distinct land use, which is properly classified as 'IndustryGeneral' or 'IndustryLight' under LPS 17, and is not properly classified as a component or element of the filling and rehabilitation land use which is also proposed in the development application to take place on the site. Furthermore, given its impacts, outcome and scale, the industrial use proposed is not incidental, ancillary or subordinate to the filling and rehabilitation use and is therefore not an 'incidental use' within the meaning of cl 4.3.3 of LPS 17.
The preliminary issue is therefore answered as follows:
A part of the proposed development, namely the crushing and screening of construction and demolition waste materials, is properly classified as 'IndustryGeneral or 'IndustryLight' under the City of Swan Local Planning Scheme No. 17. The whole of the proposed development is not properly classified as a 'use not listed'.
Clause 73 of the deemed provisions states as follows:
Development approval may be granted
(a)for the development for which the approval is sought; or
(b)for the development for which the approval is sought, except for a part or aspect of that development specified in the approval; or
(c)for a part or aspect of the development for which approval is sought that is specified in the approval.
Although the Tribunal is authorised by cl 73 of the deemed provisions to approve the part or aspect of the development for which approval is sought involving the filling and rehabilitation of the site and to refuse the part or aspect of the development for which approval is sought involving the crushing and screening of construction and demolition waste materials, the crushing and screening part or aspect is a significant and central element of the proposed development. Indeed, it appears from the statement of agreed facts [5] [6] that the development application was made in order to regularise this element or, as Mr Skinner said in his submissions, 'to clarify and legitimise the use going forward' (T:4; 16.01.18). As this central part or aspect of the proposed development involves a land use which is prohibited, the development application should be refused.
Orders
For these reasons, I make the following orders:
1.The preliminary issue is answered as follows:
A part of the proposed development, namely the crushing and screening of construction and demolition waste materials, is properly classified as 'IndustryGeneral or 'IndustryLight' under the City of Swan Local Planning Scheme No. 17. The whole of the proposed development is not properly classified as a 'use not listed'.
2.The application for review is dismissed.
3.The decision made by the Metropolitan East Joint Development Assessment Panel on 14 September 2017 to refuse development approval for DAP Application reference DAP/16/01094 is affirmed.
I certify that this and the preceding [67] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE D R PARRY, DEPUTY PRESIDENT
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