GASENG PETROLEUM (CHRISTMAS ISLAND) and SHIRE OF CHRISTMAS ISLAND
[2005] WASAT 208
•16 AUGUST 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)
CITATION: GASENG PETROLEUM (CHRISTMAS ISLAND) and SHIRE OF CHRISTMAS ISLAND [2005] WASAT 208
MEMBER: JUDGE J CHANEY (DEPUTY PRESIDENT)
HEARD: 29 JUNE 2005
DELIVERED : 16 AUGUST 2005
FILE NO/S: RD 449 of 2005
BETWEEN: GASENG PETROLEUM (CHRISTMAS ISLAND)
Applicant
AND
SHIRE OF CHRISTMAS ISLAND
Respondent
Catchwords:
Town planning - Transport depot - Whether in conflict with future planning for area - Future plan in infancy - Plan inconsistent with existing town planning scheme
Legislation:
Nil
Result:
Application approved subject to conditions
Category: B
Representation:
Counsel:
Applicant: Mr P Borelli (Planner)
Respondent: Mr G Prince (Planner)
Solicitors:
Applicant: Self-represented
Respondent: Self-represented
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary
The applicant, Gaseng Petroleum (Christmas Island) Pty Ltd (Gaseng) has sought review of a decision of the Shire of Christmas Island refusing approval for the establishment of a transport depot. It is proposed to locate the depot on a coastal site on Christmas Island which Gaseng leases from the Commonwealth of Australia. There are currently two fuel storage tanks and related infrastructure situated on the land. The Council of the respondent refused the application on five grounds. In the large part, the reasons for refusal rely on the respondent's future vision for the site as embodied in the Shire's draft local planning strategy for the area. The existing operative planning instruments are inconsistent with that vision for the future, and there do not appear to be any alternative sites from which Gaseng could continue to provide an important service to the Christmas Island community.
In the Tribunal's view, little weight should be given to the Shire's local planning strategy, given that the strategy is in its infancy. The proposed development is consistent with the zoning of the site, and given the limited tenure of the applicant, the Tribunal has formed the view that the proposal would not significantly hinder the Shire’s long term objectives for the area. The Tribunal considers that the application should be approved, subject to conditions specified by the respondent.
The existing site
The application site is located close to the foreshore on the western side of Gaze Road. It has an area of 2339 metres squared. The land is owned by the Commonwealth of Australia. Constructed on the land are two fuel storage tanks approximately eight metres high. These are used for storing unleaded petrol which is brought to the island by ship and then piped to the tanks for storage prior to being piped to the nearby petrol station for distribution. Gaseng is the island's only petrol supplier and the petrol station is the only one on the island. The remainder of the application site is vacant.
To the north of the site, also on the western side of Gaze Road, is a police station and shops. To the south, a community hall and service station are located on the western side of Gaze Road. Further south is the port facility at Flying Fish Cove which comprises very substantial construction of what appears to be, from the photographs supplied, substantial loading and storage infrastructure.
On the opposite side of Gaze Road there is a fire pump house, several semi-detached single storey residential buildings, a tourist centre and a supermarket.
The storage tanks on the application site are located towards the western end of the lot. A substantial vacant area of the lot extends between the tanks and Gaze Road.
The Gaseng lease expires in 2015.
The proposal
In addition to the storage and distribution of unleaded petrol, Gaseng distributes diesel fuel by tanker truck from a storage facility located some distance from the application site. That site is not owned or leased by Gaseng but is distributed to the service station and other customers by the use of Gaseng's two tanker trucks. Currently those trucks are parked, when not in use, on the land on which the Flying Cove port facility is located. Gaseng also has an office on that land.
It was not an issue in the proceedings that Gaseng has been required by the Commonwealth to vacate the office on the port site, and remove the trucks from that area as from July 2005. The Commonwealth has apparently not enforced that requirement pending the outcome of these proceedings.
Gaseng's position is that, apart from the application site, there is no site available to it on Christmas Island to house its trucks.
The applicant's proposal is for the construction of a single storey building, approximately six metres in height with a pitched roof. The building will occupy about 204 metres squared comprising a garage area for two trucks, a small office and a storage and amenity area. In addition, it is proposed to construct a four car carport and associated landscaping.
The walls and roof of the building are to be colour bond cladding painted "surf mist" in colour. The external elevations of the building have been designed to present facades with different components that have the effect of reducing the bulk appearance of the structure.
Planning controls effecting the site
The application site is located within the commercial zone pursuant to the Shire of Christmas Island Town Planning Scheme No 1 (TPS 1). It was common ground that the proposed use comprises a "transport depot" as defined in TPS1. A transport depot is an "AA" use within the commercial zone. An "AA" use is a use not permitted unless the Council has granted planning approval.
Clause 6.5.1 of TPS1 identifies a number of matters to which the Council is to have regard in considering an application for planning approval. They are:
"(a)the provisions of this scheme;
(b)any relevant proposed new town planning scheme of the Council or amendment; insofar as it can be regarded as seriously entertained planning proposals;
(c)any approved Statement of Planning Policy of the Commission;
(d)any other policy of the Commission or any planning policy adopted by the Government of the State of Western Australia;
(e)any planning policy, strategy, or plan adopted by the Council under the provisions of clause 8.6 of this Scheme;
(f)the preservation of any object or place of heritage significance;
(g)the requirements of orderly and proper planning;
(h)the preservation of the amenities of the locality;
(i)any other planning considerations which the Council consider relevant;
(j)any relevant submissions or objections received on the application;
(k)the impact of proposals on natural heritage values and places of natural significance;
(l)the conservation of natural heritage values and places of natural heritage significance."
Although, as the applicant points out in its submissions, certain regional policies within the state planning policy framework are applicable to this application, the respondent does not suggest that the proposed development contravenes the objects of any relevant statements of planning policy. The Tribunal agrees that there are no inconsistencies between the objectives of those policies and the proposed development.
The respondent's reasons for refusal
The respondent gave five grounds for refusing application, and relied upon those grounds at the hearing of this application for review. Those grounds were:
(a)the development is ancillary to the existing non‑compliant use of the area as fuel storage and thereby intensifies the non compliant use;
(b)the site is susceptible to adverse weather conditions as demonstrated by severe undermining of the fuel storage tanks during a previous storm event;
(c)the development is inconsistent with the Shire's local planning strategy for the area;
(d)the development will have adverse impacts on the open space and low intensity development envisaged in the proposed local planning strategy;
(e)the development is not suited to the foreshore area.
Of the 12 matters enumerated in cl 6.5.1 of the scheme which require consideration, Mr Prince, the respondent's manager of planning, identified that the grounds for opposing the development related to two of those matters. They were "the requirements of orderly and proper planning" and "any other planning considerations which the Council considers relevant". I agree with that characterisation of the grounds for refusal, and that there is nothing in the remaining 10 matters to which regard must be had which would lead to refusal of the application.
Does the development intensify an existing non‑compliant use
According to Mr Prince, the existing fuel tanks are a remnant development that existed prior to the adoption to TPS1. Apparently there has been lobbying by the respondent with the Australian Government and its agencies to have the fuel tanks relocated since as long ago as 1985. Relocation is apparently contemplated in the future. There is no suggestion that any timeframe has been put on relocation. As earlier mentioned, the applicant's lease of the site including the tanks does not expire until 2015. The Shire is concerned that, if the proposed transport depot is constructed, the prospects of securing the removal of the fuel tanks will be reduced.
The applicant submits and I agree, that the proposed development and the proposed used are not ancillary to the existing fuel depot use of the site. The transport of fuel by the trucks parked on the land will not include transport of the fuels stored in the storage tanks. That is unleaded petrol which is piped to the nearby petrol station. The use of the land as a transport depot is independent of the presence of the fuel tanks on the site. The question of their removal is unrelated to the use of a different portion of the land as a transport depot. The first ground of refusal misconstrues the nature of the application for development.
Susceptibility of the site to adverse weather conditions
I was told that in 1988 there was a cyclone which undermined the fuel tanks on the application site and caused significant damage to buildings located just south of the application site on the western side of Gaze Road. It is clear from photographs produced at the hearing that remedial works have been undertaken to repair that damage around the area of the tanks.
The proposed structures are to be located to the east of the tanks approximately 55 metres from the shoreline. The platform upon which the fuel tanks are located is approximately 30 metres from the shoreline. The proposed development has, I was told by the planners for the applicant, been designed and is proposed to be constructed to the appropriate standards necessary to withstand severe adverse weather conditions in accordance with the building regulations.
Mr Prince accepted in his written statement that "it is possible to facilitate this type of development up closer to the roadway with reduced building lines set backs allowing vehicular parking and landscaping to be located between the structures and the foreshore away from the wave fall zone and foreshore failure areas". The structures proposed in this application are set quite close to Gaze Road, although the depth of the main building is some 20 metres. The set back of the proposed development from the shoreline is relatively consistent with the set backs of the buildings located to both the north and south of the site.
I was given no information as to how exceptional the cyclone conditions of 1998 were, but it can at least be inferred that similar conditions have not been repeated in the past 17 years.
Given the location of the proposed development on the site, and given that the building will be designed and constructed so as to withstand adverse weather conditions, in my view the susceptibility of the site to adverse weather conditions is not a basis to refuse the application.
Shire's local planning strategy
In December 2004, consultants prepared a local planning strategy for the whole of Christmas Island.
The summary of major issues contained in Pt 2 of the local planning strategy recites that "the local planning strategy has the ability to contribute significantly to facilitating land use management and developing a shared, long term strategic vision for the Island. It is considered imperative that the local planning strategy adopt an approach of "taking a fresh view" of future land use planning on the Island, predicated not on its past or present but on its future". The summary also recites that "it is anticipated that the local planning strategy will lead to a major enhancement of the Shire of Christmas Island Town Planning Scheme providing greater long term direction, facilitating the sustainable development of the Island and adapting the processes of land use, management to better suit the unique cultural and urban fabric of the Island."
As those observations confirm, the local planning strategy is designed to address long term objectives for planning on Christmas Island. The local planning strategy has not yet been adopted by the Council of the respondent. Once adopted, it would then be referred to the Western Australian Planning Commission and the Minister for Territories in the Commonwealth Government for approval and endorsement. It is, thus, in its very early stages of development. The process of adoption of the local planning strategy is likely to take some considerable time, and then be followed by a further, probably substantial, period of implementation by way of a new town planning scheme or amendments to TPS1. In the circumstances, it would be wrong to place significant weight on the local planning strategy by comparison to the existing planning scheme.
Under the local planning strategy, the current use of the northern portion of the application site is shown as public open space. That is an error because the site is zoned commercial. As the applicant points out, other than by way of compulsory acquisition of the land, this site will continue to be subject to an existing commercial lease until 2015. What might happen after that time is impossible to predict. If, by then, a satisfactory alternative site for the storage tanks is identified and the material provisions of the local planning strategy have been adopted by the Minister for Territories, the Australian Government may remove the tanks and not renew the applicant's lease. However, that is all a matter of speculation.
The local planning strategy identifies the subject site as "Town Park". Whether the application site would have been so identified if the proper zoning were appreciated by the consultants is not clear. As the applicant observes, any desired future use of the land for public open space is not reflected in TPS1 given that the commercial zoning of the land permits a range of uses and developments without the need for a planning permit.
It is a fact that there is no other land presently available to the applicant to use in the manner contemplated in this proposal. The trucks provide an undoubtedly important service to the Island. The proposed use is contemplated by the existing town planning scheme. In my view, given the infancy of the local planning strategy, it should not provide a basis for refusing the present application. Given the realistic timeframe during which the objectives of a local planning strategy might ultimately be implemented, and given the limited term of the lease from the Commonwealth which the applicant enjoys, it cannot be concluded that the long term vision for this location, if it remains as contemplated by the local planning strategy, would be seriously impeded in practicable terms.
Impacts on open space and low intensity development
To a certain extent, the respondent's concern in relation to this ground of refusal turns upon the expectation that the local planning strategy will ultimately be adopted. For reasons referred to in relation to the previous ground, I think that is to give too much weight to the local planning strategy.
Mr Prince said however that the Shire had consistently only given consent to building development in this location that is away from the foreshore and low visual impact from the roadway. He expressed concerned that the proposed development would be approximately six metres in height giving it an impact consistent with a two storey development. From Gaze Road, however, the proposed development presents as a single storey structure with a pitched roof which reaches six metres at its ridge. It does not present as a two storey structure. Away from the road, where the trucks are proposed to be garaged, the structure has a flat roof which appears from the plans to be approximately 4.5 metres high. The building is to be finished in a colour selected to complement the local environment. I do not accept that the building would be substantially out of context with the surrounding developments or would be unduly prominent. The presentation to the street will undoubtedly be ameliorated by the proposed landscaping. One of the conditions agreed to by the parties, if the development were to be approved, is that the final landscaping plan would be determined in consultation with the Shire, and landscaping is required to be maintained at all times. In my view, the proposed development will not have an adverse effect on the foreshore area or the other buildings in the locality.
Suitability to the foreshore area
The final ground of refusal was that the development is not suited to the foreshore areas. In elaborating on that ground, Mr Prince said that "it has been considered that the reservation of the foreshore should be set aside for development that enables or enhances enjoyment of the open space for the benefit of the community and tourists to the Island. The use of the foreshore for essential services such as fuel stations and semi-industrial buildings should be considered only in the absence of suitable alternative locations." Two things may be said about those observations. The first is that the land is zoned commercial, a zoning which permits of developments that could not be said to "enable or enhance enjoyment of the open space for the benefit of the community and tourists". The second is that, as Mr Prince observes, the only alternate locations for such a development that have been identified are to be found in a light industrial area, which is apparently due for release in 12 to 18 months, and another site, that would require rezoning, opposite the application site. Rezoning would itself take a very substantial period of time. Given the urgency of the applicant's present need for premises there is an "absence of suitable alternative locations". The circumstances which, on the Council's own view, should give rise to a consideration of foreshore development such of that proposed, do exist in this case.
The question of the development's suitability at the foreshore is really answered in the earlier discussion in these reasons.
Conclusion
For the foregoing reasons, I am of the view that the application for review should be allowed, and a proposed development should be approved. The applicant was asked to provide, without prejudice to its position, a set of conditions which it would require if the application were approved, and it has provided those conditions. The respondent, through its planner, has indicated that the proposed conditions are acceptable.
Orders
Accordingly, the Tribunal makes the following orders:
1.the application be allowed.
2.approval be granted to the respondent for the erection of a transport depot on Lot 487 in DP 219654 Gaze Road Settlement subject to the following conditions:
1.prior to any construction or site works commencing a Building Licence is to be obtained from the Shire of Christmas Island;
2.the building and all works associated with the building must comply with all of the provisions of the Building Code of Australia applicable to its classification;
3.the proposed development shall be carried out in accordance with the plans and specifications submitted with the application and endorsed by the Shire, except as modified by these conditions of approval;
4.landscaping is to be carried out on the development in accordance with the development proposal or as amended in consultation with the Shire, prior to the occupation of the premises. The landscaped area is to be maintained at all times;
5.the applicant is advised that assessment and approval of this application by the Shire does not guarantee that the development will comply with the provisions of the Federal Disability Discrimination Act. The development is to be amended to provide access to closet accommodation and access to and within the premises complies with the Act and Australian Standard AS1428 Parts 1, 2, 3 and 4, Design for Access and Mobility;
6.all driveways, access corridors and car parking areas shall be constructed, paved, graded and drained to the Shire’s standards prior to the occupation and use of the development. Details of the proposed access to and from Gaze Road are to be submitted to Council prior to construction of the driveways;
7.the driveway and manoeuvring areas are to be completed prior to occupation of the development;
8.no advertising structures shall be erected and no advertising material shall be affixed or displayed on any building or land without the prior approval of council;
9.construction, demolition and associated work shall be carried out only between the times stated as follows:-
Mondays to Fridays ‑ 7.00am to 6.00pm.
Saturdays ‑ 8.00am to 1.00pm
Sundays & public holidays ‑ no construction work to take place;
10.any excavation/fill is to be suitably retained. Where retaining walls are to be used the design shall be submitted to the Shire for consideration prior to the commencement of any construction work. Any retaining wall having an effective height of 1.0 metres or more is to be designed and/or certified by a practicing structural engineer as adequate;
11.sediment control measures are to be erected and maintained during the entire construction process. The control measures shall be capable of preventing the transportation of sediment off the site during adverse weather conditions;
12.the street number of the property shall be clearly visible in a prominent position to facilitate easy identification by commercial vehicles and emergency services; and
13.a detailed drainage design for the disposal of roof and surface water from the site (including any natural runoff currently entering the site) and connection to existing drainage systems shall be submitted to the Shire prior to the commencement of any construction works.
I certify that this and the preceding [36] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE J CHANEY, DEPUTY PRESIDENT
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