GMF Contractors Pty Ltd and Shire Of Serpentine-Jarrahdale

[2006] WASAT 353

GMF CONTRACTORS PTY LTD and SHIRE OF SERPENTINE-JARRAHDALE [2006] WASAT 353

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2006] WASAT 353
Act:	PLANNING AND DEVELOPMENT ACT 2005 (WA)
Case No:	DR:292/2006	Heard:	22 NOVEMBER 2006
Coram:	MR D R PARRY (SENIOR MEMBER) MS M CONNOR (MEMBER)	Delivered:	1/12/06
No of pages:	27	Judgment Part:	1 of 1
Result:	Application for review dismissed Decision to refuse development approval for a waste transfer and recycling station on Pt Lot 54 King Road, Oldbury affirmed
Category:	B
PDF Version

Parties:	GMF CONTRACTORS PTY LTD SHIRE OF SERPENTINE-JARRAHDALE
Catchwords:	Town planning Development application Waste transfer and recycling station Crushing of waste building and demolition materials and mulching of green waste Classification of proposed use Whether proposed development is an "Industry" Whether proposed use involves the carrying out of any process in the course of trade or business for gain Meaning of "for gain" Whether proposed use classified as "Industry Light" Whether measures to mitigate emission of noise and dust are relevant in determining whether proposed use classified as "Industry Light" Whether proposed development consistent with purpose and intent of Rural zone Whether proposed development compatible with existing and proposed character of locality Whether noise emissions would have detrimental effect on amenity Whether proposed development would have adverse effect on streetscape by virtue of uncharacteristic appearance of significant earthen bunds Whether past conduct of applicant in relation to use of site is relevant to planning assessment of proposed development Words and phrases: "article", "for gain", "Industry", "Industry Light"
Legislation:	Environmental Protection (Noise) Regulations 1997 (WA) Health Act 1911 (WA), s 186(1), Sch 2 Metropolitan Region Scheme Planning and Development Act 2005 (WA), s 252(1) Shire of Serpentine-Jarrahdale Town Planning Scheme No 2, cl 1.9, cl 2.3.3, cl 3.2.2, cl 3.2.3, cl 3.2.5, cl 5.10.1, cl 6.3, cl 6.4.2
Case References:	ACR Trading Pty Ltd & Anor v Fat-Sel Pty Ltd & Anor (1987) 11 NSWLR 67; (1987) 54 LGRA 177 Re Shire of Swan; ex parte Saracen Properties Pty Ltd (1999) 105 LGERA 343 Land Alliance Pty Ltd v City of Belmont (2005) 39 SR (WA) 119 Mirvac Mandurah Pty Ltd and City of Mandurah [2006] WASAT 44
Orders	1. The application for review is dismissed.,2. The decision of the respondent to refuse a development application for a waste transfer and recycling station at Pt Lot 54 King Road, Oldbury is affirmed.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : GMF CONTRACTORS PTY LTD and SHIRE OF SERPENTINE-JARRAHDALE [2006] WASAT 353 MEMBER : MR D R PARRY (SENIOR MEMBER)

MS M CONNOR (MEMBER)

HEARD : 22 NOVEMBER 2006 DELIVERED : 1 DECEMBER 2006 FILE NO/S : DR 292 of 2006 BETWEEN : GMF CONTRACTORS PTY LTD

Applicant

AND

SHIRE OF SERPENTINE-JARRAHDALE
Respondent

Catchwords:

Town planning - Development application - Waste transfer and recycling station - Crushing of waste building and demolition materials and mulching of green waste - Classification of proposed use - Whether proposed development is an "Industry" - Whether proposed use involves the carrying out of any process in the course of trade or business for gain - Meaning of "for gain" - Whether proposed use classified as "Industry Light" - Whether measures to mitigate emission of noise and dust are relevant in determining whether proposed use classified as "Industry Light" - Whether proposed development consistent with purpose and intent of Rural zone - Whether proposed development compatible with existing and proposed character of locality - Whether noise emissions

(Page 2)

would have detrimental effect on amenity - Whether proposed development would have adverse effect on streetscape by virtue of uncharacteristic appearance of significant earthen bunds - Whether past conduct of applicant in relation to use of site is relevant to planning assessment of proposed development - Words and phrases: "article", "for gain", "Industry", "Industry Light"

Legislation:

Environmental Protection (Noise) Regulations 1997 (WA)

Health Act 1911 (WA), s 186(1), Sch 2
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 252(1)
Shire of Serpentine-Jarrahdale Town Planning Scheme No 2, cl 1.9, cl 2.3.3, cl 3.2.2, cl 3.2.3, cl 3.2.5, cl 5.10.1, cl 6.3, cl 6.4.2

Result:

Application for review dismissed

Decision to refuse development approval for a waste transfer and recycling station on Pt Lot 54 King Road, Oldbury affirmed

Category: B

Representation:

Counsel:

Applicant : Mr PG McGowan
Respondent : Mr CA Slarke

Solicitors:

Applicant : Paiker & Overmeire
Respondent : McLeods

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

ACR Trading Pty Ltd & Anor v Fat-Sel Pty Ltd & Anor (1987) 11 NSWLR 67; (1987) 54 LGRA 177

(Page 3)

Re Shire of Swan; ex parte Saracen Properties Pty Ltd (1999) 105 LGERA 343

Case(s) also cited:

Land Alliance Pty Ltd v City of Belmont (2005) 39 SR (WA) 119
Mirvac Mandurah Pty Ltd and City of Mandurah [2006] WASAT 44

(Page 4)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 GMF Contractors Pty Ltd conducts an earthmoving, bitumen paving, land clearing and demolition business which involves the removal and disposal of non­organic and organic waste materials as part of its business. The company disposes of the waste materials by taking them to landfill sites. However, landfill has become expensive and landfill sites have become more limited and situated further away from development sites. The company also requires road base as part of its business.

2 The company lodged a development application for a waste transfer and recycling station on a rural property to enable it to crush approximately half of the non-organic waste it removes from sites and to mulch all of the organic waste it removes. The company intended to use all the product of the crushing process for road base in its business and to give away or landfill the mulch.

3 The Tribunal determined that the proposed development constitutes an "Industry" within the meaning of the local planning scheme, because it involves the carrying out of a process in the course of business for gain, for and incidental to the breaking up or demolition of an article. The process is for gain, because it significantly reduces the quantity of non­organic waste and the volume of organic waste the company needs to landfill and secures convenient and timely supply of required raw materials.

4 The Tribunal determined that the proposed use is not "Industry Light" within the meaning of the Scheme, because it is not an industry in which the processes carried on will not cause any injury to or adversely affect the amenity of the locality by reason of noise and dust. Proposed measures to mitigate the impacts of noise and dust generated by the process are not relevant in determining whether the proposed use satisfies the definition of "Industry Light". The proposed use is properly classified as "Industry General", which is a use not permitted on the site. The development application was, therefore, refused.

5 The Tribunal also determined that, if the proposed use were capable of approval, it would warrant refusal in the exercise of discretion. In particular, the industrial character of the proposed use is inconsistent with the general rural character and the predominant rural uses in the locality, the company did not present a scientific assessment of dust impact and the proposal is likely to detrimentally affect acoustic amenity.

(Page 5)

6 Finally, the Tribunal considered whether the identity and past conduct of an applicant for development approval in relation to land use is relevant to the planning assessment of a proposed development. This is an issue of wider significance. The Tribunal determined that the identity and past conduct of an applicant is irrelevant. However, an objective assessment of a proposed development may be informed by evidence of previous land use of a site which is probative as to whether the proposal is likely to be reasonably capable of operating consistently with applicable planning controls and in an acceptable manner. The focus of the enquiry in such circumstances is not on the identity or conduct of the applicant for development approval, but rather on the manner in which the use has taken place in the past and its environmental planning consequences.

The site and locality

7 These proceedings involve an application by GMF Contractors Pty Ltd (GMF), pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), for review of the decision of the Shire of Serpentine-Jarrahdale (Shire or Council) to refuse a development application for approval of a waste transfer and recycling station on Pt Lot 54 King Road, Oldbury (site) (DA).

8 The site has an area of 34.9251 hectares. The site has frontages of approximately 590 metres to King Road to the west, approximately 700 metres to Jackson Road to the north­west, approximately 730 metres to a property to the east which contains a model aeroplane club, and approximately 610 metres to a Water Corporation drain to the south-east. The drain separates the site from two properties used for special rural (residential) and low intensity pasture/grazing purposes.

9 The site is relatively flat and low-lying (approximately 10 metres AHD) over the southern two-thirds rising gently towards the north from approximately 10 metres AHD to a maximum of approximately 14 metres AHD in the north-western corner. The majority of the site is currently used for grazing cattle, although, because of the topography and soil condition, the majority of the site is inundated during the winter and spring months. The northern part of the site contains remnant native vegetation, which is classified as Bush Forever, and a wetland, which is classified as an Environmental Protection Policy Lake.

10 The site is zoned "Rural" under both the Metropolitan Region Scheme and the Shire of Serpentine-Jarrahdale Town Planning Scheme No 2 (TPS 2 or Scheme) and is contained within the "Rural Policy Area" under the Shire of Serpentine­Jarrahdale Rural Strategy (Rural Strategy).

(Page 6)

11 The general character of the locality of the site is rural and the predominant land uses involve rural purposes, including grazing of cattle and horses, special rural (residential), plant nurseries including wildflower production, market gardens, turf farming, a poultry farm, a timber processing facility (classified as "Industry Rural" under the Scheme) and two sand mining operations. The other uses in the locality are a landfill, timber yard and recycling facility located approximately 400 metres to the east of the site, the model aeroplane club located on the property immediately to the east, a machinery and transport depot, and a machinery scrapping, repair and sales facility located on the adjacent property across Jackson Road from the site. However, Ms Meredith Kenny, the Shire's senior statutory planner, gave evidence that a fairly exhaustive search of the Council's records has shown no approval for the machinery scrapping, repair and sales use on the adjacent property and the Council has determined to take compliance action against the landowner.

GMF's business

12 GMF has conducted an earth moving, bitumen paving, land clearing and demolition business in the Perth metropolitan region for approximately 30 years. In any given month, GMF works on 50 or 60 projects. In its business, GMF is required to remove and dispose of both non­organic and organic waste materials. On average, GMF removes and disposes of approximately 6000 cubic metres of non­organic waste per month, comprising concrete bricks, limestone, rubble, gravel and granite. GMF is also required to dispose of filling sand which averages approximately 20 000 cubic metres per month. In its land clearing operations, GMF is required to remove and dispose of approximately 500 cubic metres of trees per month.

13 At present, all non-organic waste removed by GMF is taken to landfill sites where it is buried. GMF endeavours, if at all possible, to use sand that it has excavated in other projects. However, sand that cannot be used in other projects is taken to landfill sites. Organic waste is either buried on site or taken to landfill sites.

14 Mr Albert Biagioni, a Director of GMF, gave evidence that "[t]he cost of landfill is becoming expensive and landfill sites are becoming more limited and situated further away from the metro area of Perth thus adding unnecessary costs to the disposal of waste". However, at present, "[s]ubstantial waste material which could be recycled are simply buried".

(Page 7)

15 In addition, GMF requires quantities of road base as part of its business. At present, GMF needs to purchase materials for road base from suppliers such as quarries.

Proposed development

16 The proposed development involves the creation of a fenced, raised and level surface of approximately 8000 square metres in area for the waste transfer and recycling facility. This area would be set back approximately 110 metres from King Road, 280 – 380 metres from Jackson Road, 330 metres from the eastern property boundary and 180 ­ 220 metres from the Water Corporation drain. The DA is silent in relation to the extent to which the 8000 square metre area is proposed to be raised. Mr Biagioni said in evidence that this area would be raised by between 0.5 metre and 1.0 metre.

17 For noise mitigation purposes, the DA proposes an approximately 90.0 metre long, 5.0 metre high earthen bund along the western edge of the raised work area facing King Road, an approximately 95 metre long, 4.0 metre high earthern bund along the southern edge of the area facing the Water Corporation drain, and approximately 100 metre long, 4.0 metre high earthen bunds, with an overlapping section for truck entry and exit, along the northern edge of the area. However, Mr Tim Reynolds, an acoustics engineer who gave evidence on behalf of GMF, said that, because the work area will be raised by 0.5 ­ 1.0 metre, the actual heights of the proposed earthen bunds would need to be up to 6.0 metres relative to ground level to the west of the facility and up to 5.0 metres relative to ground level to the north and south of the facility.

18 Mr Biagioni indicated that it would not be viable to transport all of the non-organic and organic waste material that GMF removes from projects to the site. Mr Biagioni estimates that approximately 3000 cubic metres of non­organic waste materials (approximately half of the non­organic waste materials removed by GMF), approximately 1500 cubic metres of the sand (approximately 7.5% of the sand removed by GMF) and approximately 500 cubic metres of organic waste materials (equivalent to all of the trees removed by GMF as part of its land clearing operations) would be transported to the site each month for sorting and recycling. The materials are proposed to be brought to the site by contractor trucks with load capacities ranging from 10 to 35 tonnes. The quantity of material which Mr Biagioni estimates would be transported to the site equates to approximately 10 trucks into the facility each day, six days a week.

(Page 8)

19 The facility is proposed to operate from 7 am to 7 pm Monday to Saturday. In addition to contractor vehicles, a crusher, tub grinder, front end loaders and a water tanker are proposed to operate at the site.

20 According to the DA, "materials not suitable for recycling, which cannot be mulched and on-sold (green waste) or that which cannot be recycled and on­sold will be placed in a 'skip' bin and covered by a thin layer of sand. It will then be removed from the site within 1 – 2 day". This material would be sent to a licensed landfill.

21 Mr Biagioni gave evidence that, if the DA is approved, GMF intends to operate from the site as follows:

"All non-organic rubble will be sorted so that all material capable of crushing will be crushed, stockpiled and re-used by GMF for purpose of construction of tracks, roads and car parks.

Any products not capable of being recycled would only then be sent to a landfill.

Sand will also be stockpiled and used in construction as and when required.

Green waste will be mulched and offered to the public and landscapers for their use.

Any crushing will only take place upon sufficient material being received from time to time at the property.

A mobile crusher will be hired for purposes of crushing.

Sorting will be done by full time employees to be engaged on site.

Similarly once sufficient quantities of trees are received a mobile tub grinder will be hired for purposes of mulching. The crusher and the mulcher will only be used when sufficient quantities of waste materials are deposited on the property. The crusher and mulcher will not be operating on a daily basis."

22 In oral evidence, Mr Biagioni said that GMF would hire a crusher when approximately 2000 cubic metres to 3000 cubic metres of non­organic material had been delivered to the site. Mr Biagioni indicated that it is possible to crush 5000 cubic metres of non-organic waste in about a week. Detailed evidence was not presented in relation to
(Page 9)

capacity of crushers. However, based on Mr Biagioni's evidence, it appears that the crusher would be hired and brought to the site approximately monthly and would operate for approximately three days each time.

23 The DA was received by the Shire on 29 May 2006. In November 2003, GMF had lodged a substantially similar development application for a waste transfer and recycling station with the Shire (2003 DA). The 2003 DA was publicly advertised by the Shire in 2004. The public notification resulted in 31 letters of objection and two letters in support of the proposal. The 2003 DA was refused by the Shire in February 2005. Because the 2003 DA and current DA are substantially similar, the Shire did not advertise the current DA.

24 The DA was refused by the Shire on 4 August 2006 in accordance with the assessing officer's recommendation. The five reasons for refusal were as follows:

"1. The use comprises 'sorting of building materials and crushing of building materials', as described in the application, and therefore falls within the definition of 'Industry General'. As per Table 1 of the Shire of Serpentine­Jarrahdale Town Planning Scheme No. 2, the land use 'Industry General' is prohibited in the Rural zone and the Council does not have any discretion to approve a use which is specifically prohibited in a particular zone.

2. The proposed use is contrary to the purpose and intent of the Rural zone, which is to allocate land to accommodate the full range of pursuits and associated activities conducted in the Scheme Area.

3. The development may be detrimental to the amenity of the occupiers of the nearby dwelling houses, by reason of the noise resulting from the equipment required to be used to carry out the proposed use.

4. The nature of the proposed use is incompatible with the existing and future character of the area as envisaged by the Shire of Serpentine­Jarrahdale in their Rural Strategy.

(Page 10)

5. The industrial nature of the proposed business may adversely affect the streetscape of King Road, which is predominantly rural in character."

Issues

25 The Shire has raised the following five issues for consideration in the review:

1. Is the proposed use properly classified as "Industry General", "Industry Light" or a use not listed under TPS 2?

2. If the proposed use is permissible under TPS 2, is it:


(a) consistent with the purpose and intent of the Rural zone;

(b) compatible with the existing and proposed future character of the locality as contemplated by the Rural Strategy; and

(c) consistent with the strategic planning for future industrial land identified in the document Potential Sites for Employment Generating Land within the Shire of Serpentine-Jarrahdale (the Industrial Land Report)?


3. If the proposed use is permissible under TPS 2, would the noise emissions generated detrimentally affect the amenity of neighbouring properties?

4. If the proposed use is permissible under TPS 2, would the proposal adversely affect the streetscape of King Road?

5. Is the past conduct of GMF in relation to use of the site relevant to the planning assessment of the proposed development?

Is the development application capable of approval?

26 Clause 3.2.3 of the Scheme states that "[w]here no symbol appears in the cross reference of a use class against a zone in the Zoning Table a use of that class is not permitted in that zone". As no symbol appears in the cross reference of the use class "Industry General" against the Rural zone, use of the site as "Industry General" is prohibited.

(Page 11)

However, the symbol "SA" appears in the cross reference of the use class "Industry Light" against the Rural zone in the Zoning Table, meaning that the Council may, at its discretion, permit "Industry Light" use after notice of the application has been given in accordance with cl 6.3: cl 3.2.2.

27 Clause 3.2.5 of the Scheme states as follows:

"If the use of land for a particular purpose is not specifically mentioned in the zoning table and cannot reasonably be determined as falling within the interpretation of one of the use categories the Council may:

(a) determine that the use is not consistent with the objectives and purpose of the particular zone and is therefore not permitted; or

(b) determine that the proposed use may be consistent with the objectives and purpose of the zone and thereafter follow the advertising procedures of Clause 6.3 in considering an application for planning consent."

28 The terms "Industry General" and "Industry Light" are defined by cl 1.9 and Appendix 1 of the Scheme, unless the context requires otherwise, as follows:

"Industry General – means an industry other than a cottage, extractive, hazardous, light, noxious, rural or service industry."

"Industry Light – means an industry:

(i) in which the processes carried on, the machinery used, and the goods and commodities carried to and from the premises will not cause any injury to, or will not adversely affect the amenity of the locality by reason of the emission of light, noise, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water or other waste products; and

(ii) the establishment of which will not or the conduct of which does not impose an undue load on any existing or projected service for the supply or provision of water, gas, electricity, sewerage facilities, or any like services."

(Page 12)

29 The term "Industry" is defined, unless the context requires otherwise, as follows:

"Industry – means the carrying out of any process in the course of trade or business for gain, for and incidental to one or more of the following:

(i) the winning, processing or treatment of minerals;

(ii) the making, altering, repairing, or ornamentation, painting, finishing, cleaning, packing or canning or adapting for sale, or the breaking up or demolition of any article or part of an article;

(iii) the generation of electricity or the production of gas;

(iv) the manufacture of edible goods;

and includes, when carried out on land upon which the process is carried out and in connection with that process, the storage of goods, any work of administration or accounting, or the wholesaling of goods resulting from the process, and the use of land for the amenity of persons engaged in the process, but does not include:

(i) the carrying out of agriculture;

(ii) sitework on buildings, work or land;

(iii) in the case of edible goods the preparation of food for sale from the premises;

(iv) panel beating, spray painting or motor vehicle wrecking."

30 Mr CA Slarke, counsel for the Shire, contends that the proposed use is properly classified as "Industry General" under the Scheme, because it is an industry other than a cottage, extractive, hazardous, light, noxious, rural or service industry. Consequently, the proposed use is not permitted under cl 3.2.3 of the Scheme and must be refused approval.

31 Mr PG McGowan, counsel who appeared on behalf of GMF, submits that the DA is "somewhat unique" and that the proposed use does not readily fall within the definition of "Industry" or within any of the

(Page 13)

definitions of the subcategories of "Industry" under the Scheme. Mr McGowan, therefore, submits that the proposed use is a use not listed and not reasonably falling within the interpretation of one of the use categories and must, therefore, be determined in accordance with cl 3.2.5 of the Scheme. Alternatively, Mr McGowan submits that if the proposed use is classified as an "Industry", it is excluded from the definition of "Industry General", because it falls within the definition of "Industry Light". Mr McGowan concedes that, if the proposed use is an "Industry", and is not "Industry Light", then it is "Industry General", because it does not fall within the definitions of "Industry Cottage", "Industry Extractive", "Industry Hazardous", "Industry Noxious", "Industry Rural" or "Industry Service". It is unnecessary to set out each of these other subcategories of "Industry". It is sufficient to record that the proposed use could not possibly fall within the definition of any subcategory of "Industry", other than "Industry General" or "Industry Light".

32 Mr Slarke submits that the proposed use falls within the definition of "Industry", because it involves "the carrying out of [a] process in the course of trade or business for gain, for and incidental to … the breaking up or demolition of any article". Mr McGowan submits that the proposed use does not fall within the definition of "Industry", because, while the process may be carried out in the course of trade or business, it is not carried out "for gain". Mr McGowan relies on the evidence of Mr Biagioni that "the use if approved will not be opened to the public and will only be used for GMF's use" and neither the crushed nor mulched product of the process will be sold to the public.

33 Mr Slarke submits that it is clear on the evidence that the process for or incidental to the breaking up or demolition of non-organic and organic waste products at the site would be carried out by GMF "for gain". Mr Slarke emphasises the statement in the DA set out at [20] above and the following statements:

"A waste transfer facility will enable demolition and earthworks materials to be screened and processed with inappropriate landfill material (including green waste to be mulched) being separated and either sold or sent to an appropriate facility."

"Whilst the proposal provides obvious cost benefits to GMF through economies of scale, it also accords with the recommendations of the Select Committee on Recycling and Waste Management Report (1995) by presenting an opportunity to reduce the amount of recyclable material going to landfill."

(Page 14)

"Apart from the objectives of GMF Contracting in minimising their cost and maximising their return through the economic use and reuse of material, the development application has been lodged with the knowledge that such proposals enjoy the support from State and particularly the various environment bodies."

34 Mr Slarke cross examined Mr Biagioni on these statements. Mr Biagioni explained that the words "on-sold" and "sold" are to be understood in an accounting sense. GMF does not intend to sell the mulch, but rather to give it away to landscapers and to dispose of the rest to landfill. Mr Biagioni indicated that the proposed grinding reduces the organic waste to a volume of 20%. In relation to the non­organic waste, Mr Biagioni explained that the product of the proposed crushing process carried on at the site would only be used by GMF for road base, but "the actual cost is exactly the same as if I bought it from the quarry". Mr Biagioni conceded that the process will "complement" GMF's business and that the "convenience of having material is a cost benefit to me". In particular, while the process would not involve a saving of money in relation to the cost of purchasing equivalent road base from a quarry, it would save time and ensure convenient supply.

35 The noun "gain" is relevantly defined in The Macquarie Dictionary (Macquarie (Sydney), 4th ed, 2005) at page 579 as "profit; advantage". A process may be carried out in the course of trade or business "for gain" whether or not the product of the process is sold to the public. In this case, the breaking up or demolition of both the organic and non-organic waste at the site is a process in the course of trade or business for gain, because it involves a significant reduction in the volume of organic waste which GMF would need to landfill with a consequent reduction in expense, a significant reduction in the quantity of non-organic waste that GMF would need to landfill with a consequent reduction in expense, and securing convenient and timely supply of raw materials for GMF's business. The reduction in the volume or quantity of materials that GMF needs to landfill involves profit, because it reduces cost. Even if, as Mr Biagioni said, the actual cost of the crushing process is exactly the same as if he were to buy the product of the process from the quarry, his evidence clearly shows that the process involves an advantage to GMF in terms of convenience and timely supply.

36 The Tribunal finds that the proposed use constitutes an "Industry", because it involves the carrying out of a process in the course of business for gain for the breaking up or demolition of articles or parts of articles

(Page 15)

and the associated storage of goods. In this regard, the noun "article" is relevantly defined in The Macquarie Dictionary at page 74 as "any thing". The noun "goods" (in the plural) is relevantly defined at page 611 as "articles of trade; wares; merchandise, especially that which is transported by land". Although the products used in the process are waste materials, they are relevantly "goods", as is the product created by the process.

37 Mr Slarke submits that the proposed use does not fall within the definition of "Industry Light", because it is an industry in which the processes carried on and the machinery used will cause injury to or will adversely affect the amenity of the locality by reason of the emission of noise and dust. Mr Slarke submits that, on its proper interpretation, the definition does not permit proposed ameliorative measures to be taken into account in determining whether a proposed use falls within the definition. Mr Slarke submits that the definition focuses on the processes involved in the industry and that it is not possible to transform something which is otherwise "Industry General" into "Industry Light" by taking ameliorative measures. In support of his submission, Mr Slarke relies on the decision of the New South Wales Court of Appeal in ACR Trading Pty Ltd & Anor v Fat-Sel Pty Ltd & Anor (1987) 11 NSWLR 67; (1987) 54 LGRA 177.

38 ACR Trading Pty Ltd & Anor v Fat-Sel Pty Ltd was an appeal from a decision of the Land and Environment Court of New South Wales in which the Court restrained Fat-Sel Pty Ltd from carrying on its business of "receiving, storing and processing grease waste disposal" on the basis the use was classified as an "offensive or hazardous industry" as defined in the planning instrument and was, therefore, prohibited development. The term "offensive or hazardous industry" was defined to mean, unless the context or subject matter otherwise indicated or required, " … an industry which, by reason of the processes involved or the method of manufacture or the nature of the materials used or produced, requires isolation from other buildings". The trial judge, Bignold AJ, specifically found that:

"There was no evidence of the emission of unpleasant or offensive odours from the plant involved in the challenged activity. The absence of such emissions no doubt is to be explained because of the sealed or enclosed nature of the processing plant including its associated anti-pollution devices."

(Page 16)

39 Kirby P, with whom Samuels JA and Hunt AJA agreed, observed and held at 74 – 75; 185 – 186 as follows:

"Pointing to the totally contained activities carried on, with absolutely no evidence of emission of odour or other pollutants, the appellants argue that they passed each of the tests laid down. Theirs was not an activity which required (that is, for planning purposes) isolation from other buildings. Their activities could just as readily be close to other buildings because none of the processes involved, methods of manufacture or nature of the materials used or produced were such as to 'require' isolation. This was because of the procedures which the appellants had adopted . …

The difficulty for the appellants is that the ordinance does not refer to the activities of a particular development except, relevantly, by reference to the industry of the developer. ... [L]ooking at the ordinance in its plain terms, both in the phrase 'offensive or hazardous industry'and in the definition itself ('means an industry which') the emphasis is upon the 'industry'. It is not upon the particular activities of the buildings or works used. Nor does it appear to contemplate sub-branches of an industry. What is required is a classification of the 'industry' in which the activities impugned may most readily be classified. Obviously such classifications involve a degree of arbitrariness. Or, at least, of arguable categorisation. The criteria mentioned in the definition are stated in the alternative. In judging the 'industry', it is sufficient if any one of the three criteria is such as to require isolation from other buildings. The definition does not read 'an industry which, by reason of the way in which it is conducted … requires isolation from other buildings'. It is expressed in perfectly general terms. It is pivoted on the words 'industry'."

40 The decision of the New South Wales Court of Appeal in ACR Trading Pty Ltd v Fat-Sel Pty Ltd has been followed by the Full Court of the Supreme Court of Western Australia in Re Shire of Swan; ex parte Saracen Properties Pty Ltd (1999) 105 LGERA 343. In Shire of Swan; ex parte Saracen Properties Pty Ltd, the Full Court determined that it was reasonably open to the Shire to classify a proposed brick and tile factory as a "noxious industry" under the relevant planning
(Page 17)

scheme. The term "noxious industry" was defined to mean "an industry in which the processes involved constitute an offensive trade within the meaning of the Health Act 1911 … ". Section 186(1) of the Health Act 1911 (WA) defined "offensive trade" as a trade specified in Sch 2. Schedule 2 included "any trade, business, process or manufacture whatsoever causing effluvia, offensive fumes, vapours or gases, or discharging dust … or other impurity, or any noxious or offensive trade, business or manufacture and any trade that, unless preventative measures" were adopted, might become "a nuisance to the health of the inhabitants of the district".

41 Murray J, with whom Parker J agreed, held at 352 as follows:

"To my mind a natural reading of the relevant part of the definition of an offensive trade in Sch 2 for the purpose of the meaning of a noxious industry in the Town Planning Scheme, would make it such an industry, including a trade and manufacture, where the industrial processes or manufacture involved would create emissions of various kinds – solid (including dust), liquid or gaseous – which are or may become, unless preventative measures are taken, a nuisance to the health of the inhabitants of the district. It is right, I think, to say that it is the industry or manufacture that must be so categorised and not the particular processes employed, but it should not be overlooked, I think, that Sch 2 makes it clear that the industry or trade includes the 'process or manufacture' involved in carrying it on."

42 Having referred to ACR Trading Pty Ltd v Fat-Sel Pty Ltd, his Honour continued:

"In my opinion the same sort of approach is appropriate where one is considering whether an industry is noxious because it is an offensive trade within the meaning of the Health Act, Sch 2. It is the relevant features of the industrial processes to which one must have regard, not the particular measures which are or may be adopted for dealing with those aspects of the process or manufacture which would cause the industry to be classified as noxious or offensive."

43 Mr McGowan submits that ACR Trading Pty Ltd v Fat-Sel Pty Ltd and Re Shire of Swan; ex parte Saracen Properties Pty Ltd are distinguishable for three reasons. First, those cases concerned
(Page 18)

"offensive or hazardous industry" or "noxious industry", not "Industry Light". Second, "Industry Light" does not involve a narrow band of uses such as "offensive or hazardous industry" or "noxious industry". Third, the definition of "Industry Light" requires a qualitative assessment of whether the processes will or will not cause any injury to or will or will not adversely affect the amenity of the locality, which qualitative assessment can only be undertaken if one takes into account ameliorative measures.

44 The Tribunal does not consider that the decisions are distinguishable for the reasons advanced by Mr McGowan. The definition of "offensive or hazardous industry" considered in ACR Trading Pty Ltd v Fat-Sel Pty Ltd and the definition of "noxious industry" considered in Re Shire of Swan; ex parte Saracen Properties Pty Ltd was each expressed in a similar way to the definition of "Industry Light" in the Scheme. Notwithstanding the ordinary meaning of the words "offensive", "hazardous" and "noxious", the definitions were not restricted to a narrow band of uses. The NSW definition was expressed in general terms. Although the list of "offensive trades" in Sch 2 of the Health Act 1911 included specific trades, the relevant words of the definition considered by the Full Court related to a general category. Each definition involved a qualitative assessment of the effects of the processes carried on within the industry. The enquiry as to whether the processes involved or the method of manufacture or the nature of the materials used or produced requires isolation from other buildings implicitly involves the same qualitative assessment as is required in relation to "Industry Light" under the Scheme. The principal or perhaps only reason why isolation from other buildings is required is because of injury to or adverse affect on the amenity of the locality. Similarly, the enquiry under the definition of "noxious industry" involves a qualitative assessment of the nature required under the Scheme.

45 The Tribunal considers that the reasoning in ACR Trading Pty Ltd v Fat-Sel Pty Ltd is equally apposite in relation to the definition of "Industry Light" in the Scheme. However, without authority, the Tribunal would have come to the same conclusion for three reasons. First, the focus of the definition is plainly on an "industry". Second, "the processes carried on" in an industry do not include measures to mitigate the impacts of the processes. Third, as Kirby P observed in ACR Trading Pty Ltd v Fat-Sel Pty Ltd at 74; 185, "[t]he whole purpose of planning law is to ensure the rational utilisation and development of the environment". In this context, a specific purpose of land use zoning is to enable landowners and the wider community to know what land uses are capable of approval. It would be contrary to these purposes for an

(Page 19)

industry which, because of the processes carried on, the machinery used and the goods and commodities carried to and from the premises, is not "Industry Light" to be transformed into "Industry Light" by ameliorative measures or for "Industry Light" to be transformed into "Industry General" by the failure of ameliorative measures.

46 The Tribunal finds that the proposed use is an industry in which the processes carried on, namely the crushing of waste building or demolition materials, will cause injury to and will adversely affect the amenity of the locality by reason of dust and noise. The Guidance for Assessment of Environmental Factors - Separation Distances between Industrial and Sensitive Land Uses No. 3 (June 2005) (EPA Guidance) identifies the impacts of industry involving crushing of waste building or demolition materials as noise and dust. The EPA Guidance identifies a generic separation distance between industries involving the crushing of waste building or demolition materials and sensitive land uses, such as residences, of 1000 metres. Clause 4.4.1 of the EPA Guidance states that "[w]here the separation is less than the generic distance, a scientific study based on site- and industry-specific information must be presented to demonstrate that a lesser distance will not result in unacceptable impacts". In this case, there are 10 residences within 1000 metres of the proposal, of which eight are within 650 metres. Two of the residences are located 300 metres from the proposal. GMF has not presented a scientific study, based on site- and industry-specific information, to demonstrate that the lesser distances to 10 residences will not result in unacceptable impacts. Mr Matthew Zuvela, a consultant town planner who gave evidence on behalf of GMF, also conceded that there would be potential for dust to be generated by the proposed development. The DA proposes a number of measures to mitigate dust impact. Mr Zuvela suggested others. The impacts identified in the EPA Guidance, the absence of a scientific study and the fact that dust mitigation measured are proposed demonstrate that the proposed industry will cause injury to and will adversely affect the amenity of the locality by reason of dust.

47 The proposed industry will also plainly cause injury to and will adversely affect the amenity of the locality by reason of noise. As noted earlier, significant physical works are proposed in the form of earthen bunds in an effort to mitigate noise. As discussed below, the acoustic engineering evidence indicates that these significant works are not sufficient, in themselves, to achieve compliance with the Environmental Protection (Noise) Regulations 1997 (WA) (Noise Regulations). However, the fact that such physical works are proposed in an effort to

(Page 20)

mitigate noise demonstrates that the proposed industry will cause injury to and will adversely affect the amenity of the locality by reason of noise.

48 As the proposed use constitutes an "Industry" and does not satisfy the definition of "Industry Light", it falls within the definition of "Industry General". It follows that the proposed use is not permitted under cl 3.2.3 of the Scheme and that the decision of the Shire to refuse development approval should be affirmed.

If the development application is capable of approval, should it be approved in the exercise of planning discretion?

49 As the proposed development is not permitted under the Scheme, it is not capable of approval in the exercise of planning discretion. A merit assessment does not arise. However, as considerable evidence and argument was directed to the merits of the application, and as one aspect of this argument is of wide significance in planning assessment, the Tribunal will briefly address the merits. Having regard to the matters for consideration in cl 6.4.2 of the Scheme, the Tribunal considers that, if the proposed development were capable of approval under the Scheme, development approval should be refused in the exercise of discretion for the following reasons.

Is the proposed development consistent with the purpose and intent of the zone and compatible with existing and future character of the locality?

50 The Shire contends that the proposed use is not consistent with the purpose and intent of the Rural zone, which is "to allocate land to accommodate the full range of rural pursuits and associated activities conducted in the Scheme Area": cl 5.10.1. The term "rural pursuits" is not defined. As Mr McGowan submits, the range of uses capable of approval in the zone informs the meaning of the expression "full range of rural pursuits". It follows that the purpose and intent of the zone, as presently drafted, is of no assistance; it simply confirms that the range of land uses which are capable of approval under the zoning table can take place within the Rural zone. If it is not the Shire's intention, cl 5.10.1 requires amendment.

51 However, the Shire's further or alternative contention that the proposed use is not compatible with the existing and proposed future character of the locality as contemplated in the Rural Strategy is correct. The Rural Strategy identifies "Industry (Heavy, Light, Noxious)" as "undesirable" land uses in the Rural Policy Area. In the overview for this area, the Rural Strategy states that the "protection of rural

(Page 21)

lifestyle, of agricultural production, and rural character are very significant, but not necessarily over-riding objectives in the use and development of land".

52 Mr Zuvela considers that it is "illogical that a use deemed to be undesirable for the Rural zone in a Council Rural Strategy is permitted on discretion within the same authority's Town Planning Scheme". However, as Mr Slarke correctly submits, it is a legitimate role of policy to guide the exercise of discretion under a planning scheme. Assuming that the proposed use is permissible subject to discretion, it is inconsistent with the policy control. The question the Tribunal must address is why the planning objectives which find expression in the policy should not be applied in the particular circumstances of the case. Mr Zuvela did not provide any reason. The Tribunal considers that there are three sound planning reasons why the planning objectives reflected in the policy should not be departed from in the circumstances of the case.

53 First, as noted earlier, although there are 10 residences within the generic separation distance of 1000 metres stated in the EPA Guidance, GMF has not provided a scientific study based on site- and industry­specific information to demonstrate that a lesser distance, as little as 300 metres in the case of two residences, will not result in unacceptable impacts in relation to dust. The Tribunal does not accept Mr McGowan's submission that "dust can only be dealt with on a management basis". It is plain, given the physical proximity of the proposal to 10 residences and a property adjacent to the site across King Road which could be developed with a residence, that dust is a fundamental issue which must be addressed in the manner contemplated in the EPA Guidance.

54 Second, for reasons discussed below, the Tribunal is not satisfied that the proposal would have an acceptable acoustic impact.

55 Third, the Tribunal accepts Ms Kenny's evidence that "there is no facility of this type in the locality" and that the proposed facility "is foreign to rural amenity". Although there may be areas within the Rural zone where the general character and predominant land use pattern could accommodate a waste transfer and recycling facility, the Tribunal considers that the proposal would be incompatible with the existing and proposed future character of the immediate locality.

56 Finally in relation to this issue, each party relied on aspects of the Industrial Land Report. However, although the Council received the report, which its Executive Manager, Planning and Regulatory Services

(Page 22)

described as "preliminary work", at its meeting on 19 December 2005, the Council did not adopt the report and did not advertise it. Rather, the Council resolved that "further studies be undertaken as part of the preparation of the Shire's new Local Planning Strategy including demand analysis and an assessment of environmental, social and economic implications for employment generating land in the Shire". The strategic planning recommendations in the Industrial Land Report are not at present a seriously-entertained planning proposal and are not, therefore, relevant in the assessment of the DA. Even if the recommendations in the Industrial Land Report were a seriously-entertained planning proposal and, therefore, relevant in this review, only minimal weight could be given to them, given that implementation of the recommendations is uncertain and hardly imminent.

Is the noise impact of the development acceptable?

57 The Tribunal considers that, if the proposed use were permissible under TPS 2, the noise emissions generated would be likely to detrimentally affect the amenity of neighbouring properties. Mr Reynolds and Dr Paul Keswick, an acoustics engineer who reviewed Mr Reynolds' noise assessment and who gave evidence on behalf of the Shire, agree that noise emission from trucks and from mobile equipment such as front end loaders and the water tanker, will achieve compliance with the Noise Regulations, if the earthen bunds referred to earlier are in place and if appropriate speed limits are placed on trucks operating within the site. The acoustics experts agree that noise from the tub grinder and crusher has the potential to exceed the Noise Regulations. However, they also agree that if the sound power levels of the tub grinder and crusher are able to be reduced by 5 dB(A) and if the sound power level of the front end loaders is able to be reduced by 3 dB(A), when compared with the standard sound power level for these items, the proposal would satisfy the Noise Regulations.

58 Dr Keswick has two concerns in relation to whether the development is likely to satisfy the Noise Regulations. First, he is concerned that the tub grinder and crusher, which as noted earlier would be hired on an as needed basis, would not have their sound levels properly adjusted as required in order to satisfy the Noise Regulations. Dr Keswick considers that there is a "fairly high likelihood" that the sound power levels in hired equipment will fall out of compliance. He describes this as a common problem with hired equipment. Second, Dr Keswick is concerned about the exceedance of noise levels due to impulsive noise from the crusher or tub grinder if large waste or difficult to crush or mulch items bog up this

(Page 23)

machinery or if inappropriate material is passed through. Although Dr Keswick has no specific experience with the particular tub grinder which would be used, he made enquiries in relation to it, and he has considerable experience of crushers. He said that when large or difficult items of waste materials are placed into crushers, they make a "large impulsive noise".

59 Mr Reynolds concedes that it would be necessary to measure the sound power level of a crusher and tub grinder each time these items of equipment are brought to the site in order to ensure that they satisfy the maximum allowable sound power levels to achieve compliance with the Noise Regulations. However, Mr Reynolds considers that compliance is "mainly a management issue". If necessary, shrouding, which is sheet metal internally lined with insulation, can be affixed to the equipment. Alternatively, mobile screens could be used to mitigate noise impact if the sound power level of equipment exceeds the maximum allowable level. Mr Reynolds also considers that large or difficult items of waste materials are likely to slow the crusher down, rather than result in impulsive noise.

60 Given that the tub grinder and crusher would be hired on an as needed basis and that the particular items of equipment brought to the site may, therefore, be different from time to time, it is unlikely that shrouding will take place. As the maximum allowable sound power levels for the tub grinder and crusher in order to meet the Noise Regulations are less than the standard sound power levels, there is a fairly high likelihood that the sound power levels of these items would fall out of compliance over time, the same items may not be brought to the site on each occasion and, if it were determined that the sound power levels have fallen out of compliance, appropriate placement of screens would be required, the Tribunal does not consider that compliance with the Noise Regulations is likely. Furthermore, the Tribunal prefers the evidence of Dr Keswick over Mr Reynolds in relation to the potential for impulsive noise from large or difficult to crush items, because of Dr Keswick's personal experience with crushers. If impulsive noise occurs, there would be exceedence of the Noise Regulations.

61 Mr McGowan emphasises that the crusher would not operate continuously on the site, but only when sufficient quantities of materials have accumulated. As noted earlier, based on Mr Biagioni's evidence, the crusher is likely to operate about three days a month. It is unclear how often the grinder would be used, although clearly it would not be in continuous operation. Nevertheless, when these items of equipment would be used in the proposed development, it is likely the

(Page 24)

Noise Regulations would be exceeded. Compliance with the Noise Regulations is a necessary, but in some cases not sufficient criterion, to ensure that the noise emissions from a proposed development would not have an unacceptable acoustic impact on the locality. In the circumstances, if the proposed use were permissible, it would warrant refusal because the noise emissions generated are likely to detrimentally affect the amenity of neighbouring properties.

Is the visual impact of the development acceptable?

62 Because of its long boundary to King Street and flat topography, the majority of the site is highly visible from the public domain. Ms Kenny is concerned that the proposal would have an adverse visual effect, particularly in the short to medium term until vegetation at the boundaries is able to develop into an adequate screen. Ms Kenny considers that revegetation of the proposed earthen bunds would be difficult and they would, therefore, provide there own adverse impact on the amenity of the area by reason of their appearance and potential dust generation. In contrast, Mr Zuvela considers that the earthen bunds will be able to be compacted, stabilised and vegetated and that they will, therefore, have the effect of maintaining visual amenity from King Road.

63 Although Mr Slarke did not characterise the impact of the development on streetscape and visual amenity as a determinative issue, the Tribunal considers that the proposed earthen bunds would have a significant detrimental visual impact on the streetscape and landscape character of the locality. The proposal would introduce a continuous structure with a length of approximately 90 metres and an effective height of 6.0 metres into a flat rural landscape in which there appear to be no structures which are remotely similar. Even if the bunding were able to be vegetated, at least until sufficient screen vegetation is able to be established along the King Street frontage of the site, the proposed bunding would be a prominent and discordant visual element which would adversely affect the streetscape and visual character of the locality.

Is the past conduct of an applicant for development approval relevant to planning assessment of a proposed development?

64 The Shire contends that GMF's alleged failure to comply with an existing development approval and its failure to comply with a request to cease alleged unlawful use of the site and carry out rehabilitation are relevant matters for consideration in relation to whether development approval should be granted for the proposed use. The existing approval, which GMF contends has not been substantially commenced, is for the

(Page 25)

use of a 4000 square metre fenced portion of the site as a machinery storage depot, including a caretaker's dwelling. The alleged unlawful land use involves stockpiling demolition waste on the site.

65 Ms Kenny considers that where self-regulation and on site management are critical to ensuring that the amenity impact of use is acceptable, the identity of the operator is relevant and important. It is particularly so in this case, where the facility is proposed to be used only by GMF. The Shire's experience with GMF does not give Ms Kenny confidence that compliance with all requirements will be achieved.

66 Mr McGowan submits that the development application is to be determined objectively on the basis of the relevant planning considerations. He notes that it is open to the Council to take appropriate proceedings for criminal or civil enforcement of planning law.

67 Planning law "is concerned with the use of land – not with the identity of the user": per Cripps J in Moslem Alaway Society Ltd v Canterbury Municipal Council (1983) 51 LGRA 79 at 82. Development approval is not personal to an applicant for approval, but rather runs with the land. Furthermore, where an applicant for development approval has undertaken unlawful development on a site, it is open to the responsible authority to take appropriate compliance action.

68 The identity of an applicant for development approval and its previous conduct in relation to development, including use, of a site, is irrelevant in relation to a planning assessment of a proposed development of the site. As Mr McGowan submits, the planning assessment of a proposed development is to be undertaken objectively on the basis of the relevant planning considerations. However, this objective enquiry may be informed by evidence of previous development, including use, of the site and its consequences. For example, in objectively assessing a development application for approval to an extension of trading hours or an increase in the number of patrons permitted at licensed premises, evidence of the prior operation of the development and its impacts on the locality is likely to be relevant and important. What is relevant and important in such circumstances is not the identity of the operator or its conduct, but rather the manner in which the use has taken place in the past and its environmental planning impacts. This evidence may demonstrate that the proposed use is not likely to be reasonably capable of operating in accordance with planning controls or in an acceptable manner.

(Page 26)

69 In this case, GMF's alleged failure to comply with an existing approval and its attitude to a request to cease allegedly unlawful use of the site and to carry out rehabilitation is irrelevant to the planning assessment as to whether the DA should be approved and, if so, subject to what conditions.

Conclusion

70 The Tribunal has determined that the proposed development of a waste transfer and recycling station is not permitted on the site and must, therefore, be refused approval. The proposed use constitutes an "Industry" within the meaning of TPS 2, because it involves the carrying out of a process in the course of business for gain, for and incidental to the breaking up or demolition of any article or part of an article and the associated storage of goods. The proposed use is not "Industry Light" within the meaning of TPS 2, because it is not an industry in which the processes carried on will not cause any injury to or not adversely affect the amenity of the locality by reason of noise and dust. The proposed use is properly classified as "Industry General", which is a use not permitted in the Rural zone.

71 The Tribunal has also determined that, if the proposed use were capable of approval under the Scheme, the DA would warrant refusal in the exercise of planning discretion. In particular, the proposed use is not compatible with the existing and likely future character of the locality as contemplated in the Rural Strategy, because the industrial character of the proposal is inconsistent with the general rural character and the predominant rural uses in the locality. Further, GMF has not presented a scientifically based assessment of dust impact to show that the proposal would not have a detrimental impact on residential premises, although 10 residences are located within the generic buffer distance of 1000 metres stated in the EPA Guidance, and the proposal is unlikely to satisfy the Noise Regulations and would, therefore, detrimentally affect the amenity of neighbouring properties. Furthermore, the proposal would adversely affect the streetscape and landscape character of the locality by introducing a substantial, uncharacteristic and discordant bunding structure into a flat rural environment in a prominent location.

72 Finally, the Tribunal has determined that the identity of an applicant for development approval and its previous conduct in relation to use of the site the subject of the application is irrelevant to the planning assessment of a proposed development. However, an objective assessment of a proposal may be informed by evidence of the previous use of a site which

(Page 27)

is probative as to whether the proposal is likely to be reasonably capable of operating consistently with applicable planning controls and in an acceptable manner. The focus of the enquiry in such circumstances is not on the identity or conduct of the applicant for development approval, but rather on the manner in which land use has taken place in the past and its environmental planning consequences.

Orders

73 The Tribunal makes the following orders:

1. The application for review is dismissed.

2. The decision of the respondent to refuse a development application for a waste transfer and recycling station at Pt Lot 54 King Road, Oldbury is affirmed.

I certify that this and the preceding [73] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MR D R PARRY, SENIOR MEMBER