GOLDFIELD VILLAGES PTY LTD and CITY OF KALGOORLIE BOULDER - [2023] WASAT 6

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION:   GOLDFIELD VILLAGES PTY LTD and CITY OF KALGOORLIE BOULDER [2023] WASAT 6
MEMBER:   JUDGE H JACKSON, DEPUTY PRESIDENT
MS M CONNOR, MEMBER

HEARD:   27 AND 28 SEPTEMBER 2022
DELIVERED          :   13 FEBRUARY 2023
FILE NO/S:   DR 55 of 2022
DR 84 of 2022

BETWEEN: GOLDFIELD VILLAGES PTY LTD
Applicant
AND
CITY OF KALGOORLIE BOULDER
Respondent

Catchwords:

Town planning – Development application – Characterisation of proposed land use – Workforce accommodation – Whether consistent with objectives and purposes of Service/Light Industry zone – Review of conditions of approval – Time limited condition – Local planning policy – Whether purpose of policy proper planning purpose – Weight to be given to policy – Whether cogent reasons to depart from policy

Legislation:

City of Kalgoorlie-Boulder Local Planning Scheme No. 1, cl 1.6, cl 2.3, cl 3.6, cl 3.12, cl 3.16(5), cl 6.6
Mining Act 1978 (WA)
Planning and Development Act 2005 (WA), s 88(2)(a), s 252(1), s 252(2)
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 1, Sch 2, cl 3, cl 4, cl 13(5), cl 67(2), cl 72
State Administrative Tribunal Act 2004 (WA), s 31, s 51, s 57

Result:

Each application for review is dismissed and the respondent's decision is affirmed in each case

Category: B

Representation:

Counsel:

Applicant	:	Mr M A Etherington
Respondent	:	Mr C A Slarke

Solicitors:

Applicant	:	HWL Ebsworth Lawyers
Respondent	:	McLeods

Cases referred to in decision:

Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council (1970) 123 CLR 490
Barwell Nominees Pty Ltd and City of Wanneroo [2007] WASAT 156
Bathurst City Council v PWC Properties Pty Ltd (1998) 195 CLR 566
BP Australia Pty Ltd v City of Perth (1994) 10 SR (WA) 110
Citta Hobart Pty Ltd v David Cawthorn [2022] HCA 16; (2022) 96 ALJR 476
City of Swan v West Australian Shalom Group Inc [2017] WASC 217
Clay v City of Nedlands [2012] WASC 402
Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433
Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522; (1991) 74 LGRA 68
Fawcett Properties Ltd v Buckingham Shire Council [1961] AC 636
Fix WA Pty Ltd v City Of Armadale [2019] WASC 356
GrainCorp Operations Ltd v Liverpool Plains Shire Council (2013) 194 LGERA 83; [2013] NSWCA 171
Hoskin v Greater Bendigo City Council [2015] VSCA 350 (2015) 48 VR 715; (2015) 212 LGERA 362
Kaard and City of Nedlands [2005] WASAT 2
Koltasz Smith & Partners v Western Australian Planning Commission (2000) 23 SR (WA) 266
Marshall v Metropolitan Redevelopment Authority [2015] WASC 226
McCabe Street Joint Venture and City of Fremantle (2009) 61 SR (WA) 9; [2009] WASAT 37
Newbury District Council v Secretary of State for the Environment [1981] AC 578
Pinder Architects Pty Ltd v City of Stirling (1996) 92 LGERA 165
Re Drake v Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634
Reid v Western Australian Planning Commission [2016] WASCA 181
Ridgecity Holdings Pty Ltd and City of Albany [2006] WASAT 187
Van der Feltz v City of Stirling [2009] WASC 142; (2009) 167 LGERA 236
Vespoli and City of Stirling [2013] WASAT 161
Wemyss and City of Canning [2012] WASAT 64
Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

Goldfield Villages Pty Ltd (applicant) owns land in South Boulder upon which it wants to establish workers' accommodation.
The City of Kalgoorlie-Boulder (City or respondent) has granted development approval for that to occur but, consistent with its recently approved policy, has imposed a condition limiting that approval for five years.
The applicant seeks a review of that condition; it asks that the condition be deleted so that the development approval is without time limit.
For the reasons that follow, we have determined that the respondent's decision should be affirmed – condition four, limiting the approval to a period of five years, should be imposed.

The applicant

The applicant was incorporated in mid–2021 with the objective of establishing a means to service the accommodation needs of workers of MLG Oz Ltd (a company controlled by Mr Murray Ian Leahy), Topdrill Pty Ltd (a company controlled by Mr Timothy Edward Topham) and Rangecon Pty Ltd (a company controlled by Mr Nicholas McFarlane Hicks).
Each of Mr Leahy, Mr Topham and Rangecon Pty Ltd hold a 1/3rd shareholding in the applicant.

The subject land

The land, the subject of these proceedings, was, at the time of the initial application, known as Lots 1461 – 1468 (No. 203 – 209) Vivian Street, South Boulder. Condition 12 of the development approval granted by the respondent required amalgamation of the eight lots. That has occurred and the land is now known as Lot 72 (160) Vivian Street, South Boulder (Land).[1]
[1] Statement of Ben Doyle dated 18 September 2022 (Doyle Statement), para 20.
The Land is regular (rectangular) in shape and has an area of 1.7 hectares. It is currently vacant.
Save for a very small portion in its bottom south-west corner, the Land is currently zoned Service/Light Industry under the City of Kalgoorlie‑Boulder Local Planning Scheme No. 1 (LPS1 or Scheme). The bottom south-west corner is reserved for Public Purpose – Airport.[2]
[2] The relevant Scheme map (No. 8 of 8) shows the south-western corner of the Land in yellow with black cross‑hatching, which is also the marking for the land on which the Kalgoorlie Airport is located immediately to the south of the Land. The Legend to the relevant Scheme map shows yellow with black cross-hatching as the Airport Zone. No such zone is shown in the Scheme text and we have proceeded on the basis that the Legend is incorrect and the airport land and the south-west corner of the Land is reserved for Airport Purposes. That was the position taken by the respondent at the hearing (ts 13 – 14, 27 September 2022) and the applicant did not take a different position.
The Land is proposed to be zoned Light Industry under the draft City of Kalgoorlie‑Boulder Local Planning Scheme No. 2 (Draft Scheme). The Draft Scheme was provided to the Western Australian Planning Commission (Commission) on 29 July 2022 for approval.
The experts agreed that the locality within which the Land sits includes the Kalgoorlie-Boulder Airport to the south and west, land occupied by the Eastern Goldfields Regional Prison generally to the east and the generally vacant land to the north, which includes the Kalgoorlie‑Boulder Pistol Club and a single house.[3]
[3] ts 72, 27 September 2022.
The land within the locality is subject to a mixture of zonings and reservations under LPS1. The land occupied by the airport is reserved for Airport purposes and the land occupied by the prison is reserved for Public Purpose – Corrective Services. To the immediate north of Vivian Street there is a strip of land reserved for Parks and Recreation, but otherwise the land to the north of the Land is zoned Future Urban.
Under the Draft Scheme the land within the locality will remain zoned and reserved as it is under LPS1 save for the land to the north of the Land which is proposed to be zoned Light Industry (with no 'buffer' of Parks and Recreation land to the immediate north of Vivian Street).

The application, its assessment and approval

In October 2021, the Applicant submitted an application for development approval for a workforce accommodation village[4] on the Land.
[4] In fact, while the application described the proposal as 'essential workforce accommodation', the application stated that it was the applicant's understanding that the respondent would consider the application under 'either a "Dwelling – Transportable" definition … or under a "Dwelling – Group/ Multiple Housing/Serviced Apartment" definition.' Respondent's Section 24 Bundle of Documents dated 16 August 2022 (Respondent's Bundle) pages 3, 7 and 9. The correct characterisation of the landuse is a matter to which we return below.
In summary, the proposed development comprises:
(a) a 302 person accommodation village consisting of 75 x 4 person accommodation buildings and 1 x 2 person universally accessible accommodation building;
(b)5 x laundry buildings for use of patrons only and 1 x Laundry/linen building;
(c)1 x toilet block;
(d)dry mess building for patrons only;
(e)administration/store and gymnasium building;
(f)bin storage area;
(g)associated development such as maintenance/storage buildings and water tanks;
(h)construction of 39 on-site parking bays including 2 x ACROD bays and 54 on-street parking bays and 2 bus bays; and
(i)landscaped garden areas.
The application was advertised for public submissions between 4 January 2022 and 18 January 2022 to nearby landowners, and from 27 January 2022 to 10 February 2022 on the respondent's website.
The respondent's officers recommended that the application be approved subject to conditions which included a five year time limit. The Council of the respondent considered the application at its meetings of 14 and 28 February 2022 without making a final determination with respect to the application.
At its meeting of 14 March 2022, the Council resolved, in effect:[5]
–that the proposed use is not consistent with the objectives and purposes of 'Service Light Industry' zone and is not, therefore, permitted; and
–for a report to be provided to the respondent's Council for the implications on the Draft Scheme in relation to workforce accommodation.
[5] Respondent's Bundle, page 123.
The Council gave the following reasons for going against the officer recommendation:
(a)the land use proposed is not incidental or ancillary to light industrial land use; and
(b)the use is not compatible with the setting or locality as it creates a land use conflict between residential and light industry.
On 28 March 2022 the applicant commenced review DR 55 of 2022 pursuant to s 252(2) of the Planning and Development Act 2005 (WA) (PD Act) with respect to the respondent Council's decision as to the permissibility of the workforce accommodation use.
On 30 March 2022 the respondent issued a notice of determination refusing development approval for the reasons that: '(1) the proposal land use is inconsistent with the objectives and purpose of the Service Light Industry zone; and (2) the proposed land use is not permitted.'[6]
[6] Respondent's Bundle, pages 150 – 151.
On 20 May 2022 the applicant commenced review DR 84 of 2022 pursuant to s 252(1) of the PD Act with respect to the decision to refuse development approval.
Pursuant to an invitation made by the Tribunal under s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) on 3 June 2022, the respondent's Council on 27 June 2022 reconsidered its decision with respect to the permissibility of the use and resolved in the following terms:
… in accordance with Clause 3.6(b) of Local Planning Scheme No. 1 that the land use "Workforce Accommodation" may be consistent with the objectives and purposes of the "Service Light Industry" zone.[7]
[7] Original underlining. The notice of the Council's determination was issued on 4 July 2022: Respondent's Bundle, page 161.
Pursuant to a further invitation made by the Tribunal under s 31 of the SAT Act, the Council on 25 July 2022 reconsidered its decision with respect to the application for development approval and resolved to grant the approval subject to 26 conditions; condition 4 of which was in the following terms:
This approval is valid for five (5) years from the date of occupancy. Following expiry of this period, all development works must be demolished, materials removed from the site unless a further development approval is granted by the City.[8]
[8] Respondent's Bundle, page 163.

The issues

On one view, the only issue before the Tribunal is whether to impose a time limiting condition on the approval (and, if so, for how long).
However, in our view, the following issues properly arise and must be determined:
1.What is the proper characterisation of the proposed landuse?
2.If the landuse is 'workforce accommodation' (and therefore a use not listed under the Scheme) is it 'consistent with the objectives and purposes of the particular zone' pursuant to cl 3.6 of the Scheme?
3.If the landuse 'may be' consistent with the objectives and purposes of the zone, should the approval be time limited having regard to the relevant planning regime including, in particular, Local Planning Policy – Workforce Accommodation (LPP 09)?
4.The following sub-issues arise as to the third issue above:
(a)the weight to be given to LPP 09; and
(b)whether there are proper planning grounds to depart from the terms of LPP 09.

The relevant planning regime

LPS1/ Scheme

The objectives of the Scheme are set out in clause 1.6 as follows:
To ensure and promote the orderly and proper development of land while securing the amenity of and the best living and working environment for the residents of the City, and to direct and control the development of the Scheme area in such a way as shall promote and safeguard the health, safety and convenience and economic and general welfare of its inhabitants and the amenities of every part of the City.
As noted above, save for the south‑west corner, which is reserved for Airport purposes, the Land is zoned Service/Light Industry under LPS1. Clause 2.3 of LPS1 provides that where an application is made for development approval on reserved land, the respondent 'shall have regard to' the purposes for which the land is reserved and shall confer with the relevant authority.
The Kalgoorlie-Boulder airport is owned and operated by the respondent.[9] There was no suggestion that the south-west corner of the Land was required for airport purposes or that the grant of development approval would compromise the airport's operations. The respondent raised no concerns in this regard. Neither did the Department of Planning, Lands and Heritage in its submission.[10] Accordingly, we have proceeded on the basis that the Airport reserved land in the south‑west does not pose an impediment to approval and is otherwise irrelevant to our consideration.
[9] Doyle Statement, paras 26 – 27.
[10] Unconfirmed minutes of the meeting of the Council of the respondent, 14 February 2022; Respondent's Bundle, page 102.
Workforce accommodation is a use not listed in the Scheme. Clause 3.6 of the Scheme relevantly provides:
USES NOT LISTED
If the use of the land for a particular purpose is not specifically mentioned in the Zoning Table the Council may:
(a) determine that the use is consistent with the objectives and purposes of the particular zone and is therefore permitted;
(b) determine, by absolute majority, that the proposed use may be consistent with the objectives and purposes of the zone and require the procedures set out in clause 6.6 to be complied with before considering an application for planning approval; or
(c) determine that the use is not consistent with the objectives and purposes of the particular zone and is therefore not permitted.'
The objectives of the Industrial zones are set out at cl 3.12 of the Scheme as follows:
INDUSTRIAL ZONES
(a) To nurture existing and encourage new industries compatible with the amenity of the City.
(b) To facilitate diversification of industry to provide greater local economic stability and a range of employment opportunities.
Clause 3.12 also includes development standards for landscaping and building facades within the Industrial zones, but those issues do not arise in these proceedings.

LPP 09

The Council of the respondent resolved on 22 November 2021 to prepare a draft workforce accommodation planning policy pursuant to the power to prepare local planning policies in cl 3 of the deemed provisions.[11] That date is shortly after the receipt of the application with which we are concerned.
[11] The 'deemed provisions' are contained within Schedule 2 of the Planning and Development (Local Planning Schemes) Regulations2015.
The Council resolved to proceed with the policy on 27 June 2022. The terms of the resolution indicate that the Council was under the mistaken understanding that such a policy must be approved by the Commission.[12]
[12] Respondent's Statement of Issues, Facts and Contentions dated 15 August 2022 (Respondent's Statement), para 24.
Instead, cl 4(5) of the deemed provisions provides that a local planning policy has effect upon publication by the local government. That occurred on 20 September 2022; a week prior to the hearing of this matter.[13]
[13] ts 12, 27 September 2022. Although this evidence was 'given from the bar table', the applicant did not object and, indeed, proceeded on the basis that LPP 09 had been published and was, therefore, in force.
LPP 09 provides:
The purpose of this policy is to guide assessment and decision-making on development applications for workforce accommodation.
The overarching objective of this policy is to manage the development of workforce accommodation with a longer-term aim to maximise the residential workforce and ensure that, where workforce accommodation is provided, it is designed appropriately and contributes to the City's vision to be a place people call home.
The specific objectives of this policy are to:
a) Support fixed-duration major construction projects where it can be substantiated that employment and/or accommodation cannot be locally sourced.
b) Discourage the construction of work camps or short-stay facilities used only to accommodate fly-in-fly-out (FIFO) employees/contractors.[14]
c) Achieve reciprocal benefits for the local community and business from an integrated workforce accommodation facility.
d) Provide guidance and performance criteria to enable the preparation of applications by proponents and the assessment of proposals by the City.
e) Enable occupants of the accommodation facility to integrate with the community, local businesses and City services.
f) Acknowledge that workforce accommodation is by its [sic] nature, a temporary land use and that planning controls will be used to limit the period of use.[15]
g) Post the use period for a workforce accommodation facility; a new land use is pre-planned and transition occurs seamlessly and in a timely manner.
[14] Underlining added.
[15] Underlining added.
LPP 09 includes various definitions, including the following:
'Workforce Accommodation' as defined by the Model Scheme Text (sic), Planning and Development (Local Planning Schemes) Regulations 2015, means premises which may include modular or relocatable buildings, used -
1. Primarily for the temporary accommodation of workers engaged in construction, resource, agricultural, or other industries on a temporary basis; and
2. Any associated catering, sporting and recreation facilities for the occupants and authorised visitors.
That definition is not the same as that which is contained in the Model provisions for local planning schemes (Model Provisions)[16] in that the underlined word does not appear in the Model Provisions definition. The implications of this are addressed below.[17]
[16] The Model Provisions are set out in Schedule 1 of the Planning and Development (Local Planning Schemes) Regulations 2015.
[17] The Model Provisions definition also includes the word 'for' as the first word in paragraph (b). There are also differences in the capitalisation of the first word in paragraphs (a) and (b). Nothing appears to turn on these differences.
Under the heading 'Background', LPP 09 refers to the State Planning Strategy 2050 (WAPC 2014), Statement of Planning Policy No. 3 – Urban Growth and Settlement (WAPC 2006) (SPP 3) and the Goldfields-Esperance Regional Planning and Infrastructure Framework (WAPC 2012) (Framework).[18] It then describes the 'incorporation of workforce accommodation in a community' as a 'complex issue'. It says that the need for workforce accommodation is 'always changing' and that experience shows that it can be quickly established to accommodate 'sharp spikes in demand'. It says that it should 'therefore be managed' which, it says:
… has implications for any existing or proposed workforce accommodation development. The primary implications are that workforce accommodation should be subject to a time limited approval to allow for their need to be reviewed over time and that any workforce accommodation proposal should be justified based on demonstrated need.
[18] The applicant relies upon the State Planning Strategy and the Framework, each of which is described in more detail below. No other mention was made of SPP3 and we will not refer to it again.

LPP 09 then identifies four main categories of workforce accommodation (construction workforce, major projects; construction workforce, general projects and sub-contractors; periodic maintenance shutdown, major projects; operation workforce). It then says:
The Council's preference is for workers to be accommodated in more integrated forms of Kalgoorlie-Boulder townsite based accommodation wherever possible, preferably housing. Operational workers are employed on a long term basis and ideally from a local community perspective, these workers should be residential. There should at least be plans or options for these workers to transition to residential.
While Council's preference is clear, where FIFO operational workers are to be accommodated on a long term basis, Council expects their accommodation to be: of a high standard; suitably integrated with surrounding development and the community; and not a typical camp design or layout appropriate to an isolated/remote camp.
Under the heading 'Council Position', the respondent's 'position on Workforce Accommodation' is set out as follows:
(a)The Council acknowledges the critical role Workforce Accommodation can play during the construction phase of major resource projects and to accommodate peak short-term workforce requirements associated with maintenance shut downs;
(b)The Council's preference is for operational workers to be based in the Kalgoorlie-Boulder townsite, and the City will work with industry and the State Government to pursue options to increase residential workforce numbers;
(c)The Council's aspiration is for workforce accommodation to be met, as much as possible, through residential, hotel or motel accommodation;
(d)The Council is committed to helping to grow and develop the local community and the local economy. Workforce accommodation facilities incur a relative loss of contribution to the community compared to a residential workforce;
(e)It is Council's intention for all workforce accommodation to transition towards a residential workforce. Accordingly, workforce accommodation is approved on a temporary basis in all cases. The intention to transition over time towards a residential workforce should be shared;[19]
(f)Only Workforce Accommodation developments that are sufficiently integrated into the community shall receive longer term approval provided they meet the requirements of this policy; and
(g)The Council believes a community contribution should be made by Workforce Accommodation proponents at the time of initial approval as there is a relative loss of community service and benefit in approving Workforce Accommodations due to association with FIFO working arrangements.
[19] Underlining added.
Finally, under the heading 'Policy Measures', LPP 09 sets out measures under four headings: Time Limited Approvals; Need; Location; and Design. For present purposes it is necessary only to set out the text in relation to Need and Time Limited Approvals:
Time Limited Approvals
Workforce Accommodation is by its definition a temporary land use and therefore, unless otherwise specified below, planning approval will be conditioned for the use to cease within a specified time-period.
• Workforce accommodation deemed as lawful prior to policy adoption will be subject to a time-limited planning approval if there is an increase in gross floor area or number of beds.
• Planning approval will not exceed a period greater than five (5) years, inclusive of any renewal or extension.
• Workforce accommodation built for a specific project shall have time-limited planning approval generally in accordance with its duration.
• Development applications are required to identify the period for which they are seeking planning approval.
• 12 months prior to the expiry of the planning approval the landowner must provide to Council for approval a site decommissioning program or a plan to transition to a permanent land use.
• At the conclusion of the approved timeframe, the planning approval will expire.
Need
Proposals for new workforce accommodation facilities, requests to extend approval periods for existing workforce accommodation facilities or proposals to increase the number of beds associated with existing facilities must be accompanied by information that demonstrates need.
Major projects that require review of workforce demands should be the catalyst for review of workforce practices. The potential for existing settlements to accommodate workers should be considered as part of the workforce model for any such project. As such, the need for additional beds must be considered against the capacity of existing settlements to meet the accommodation demands. The following provisions guide how need will be assessed:
• A proponent of new workforce accommodation, or an increase in the number of beds for an existing facility, must demonstrate a need for the development, as part of their proposal. The need for beds must be demonstrated in the context of workforce accommodation provision across the City and across industry demands.
• Proponents must demonstrate liaison with the City and evaluation of options regarding capacity in local housing and land supply markets, prior to applying for workforce accommodation facilities associated with major projects.
• Assertions that there is adequate demand for workforce accommodation to support business investment which are not substantiated with demonstrable demand are not accepted as the basis for demonstrating need for workforce accommodation.
• Advocating for new workforce accommodation in conjunction with a reduction of workforce accommodation beds elsewhere, is insufficient by itself to demonstrate need for workforce accommodation.
• Evidence of occupancy, contracts or bookings may contribute to the demonstration of demand for workforce accommodation.
• Assessment of workforce accommodation proposals must consider the cumulative impacts of multiple workforce accommodation developments on the sustainability and liveability of affected towns and the City generally.

State planning strategy (WAPC 2014)

The State Planning Strategy was published in June 2014. It is divided into three parts – Economic development; Physical infrastructure; and Social infrastructure.
Section 1.1 of Economic development is concerned with 'the resources economy'. Under the heading 'State challenges: Regional attractiveness', is the statement:
The attractiveness of regional living and settlements remains a challenge for the resources sector. Improving housing affordability, investment in infrastructure, including multi-use infrastructure, creating attractive places and the delivery of key services will enable a level of liveability that retains families, as well as attracting and growing a regional workforce.
Section 1.5 of Economic development is headed 'Remote settlements'. Under the heading 'Overview', a 'remote settlement' is defined to include 'informal towns, remote road houses, Aboriginal communities, workers' camps, tourist camps and remote aerodromes'. Under the heading 'State challenges' the State Planning Strategy sets out a range of challenges associated with providing infrastructure and other services to remote settlements. It is then said:
In addition, many regional towns have permanent workers' camps that are integrated into the social and economic life of the town. Such camps provide a catalyst for investment into a range of social services.
However, most workers' camps are based on the premise of a fly‑in‑fly‑out (FIFO) workforce, which is a workforce that lives elsewhere but resides at the camp for the duration of a working term.
Balancing the needs of a region and its people with the operational imperatives of the resources sector … presents a range of challenges and opportunities.
Table 7, which immediately follows the above text, is titled 'A strategic approach to planning for remote settlements'. It provides, as an outcome for 2050 – 'Remote settlements have the capacity to accommodate and support FIFO workforces where relevant' and includes three aspirations:
·All remote settlements that cater to FIFO have an acceptable level of support;
·The number and type of services provided for FIFO workforces in a remote settlement is comparable to similarly sized settlements elsewhere in the State; and
·All permanent workers' camps have the required physical and social infrastructure.
For Social infrastructure, under the heading 'State challenges', it states:
The provision of adequate social infrastructure and related services is also needed to support workforce accommodations that focus on the health and well-being of FIFO workers. The closer the distance between where FIFO workers live and work, the easier it becomes to promote the liveability of regional towns and centres.
Section 3.2 of Social infrastructure is headed 'Affordable living'. The 'State challenges' section includes the following statement:
The high demand for housing, coupled with building and infrastructure costs, particularly in the regions, means affordability is an ongoing challenge that impacts on the ability of some communities to attract and retain a stable population and a skilled workforce. … In some regional areas, local affordability, housing issues and construction costs are creating labour market difficulties and discouraging people from moving to areas where there is demand for labour. The planning and development of compact structures, government buildings and housing precincts can be designed to include the capacity for transient workforce accommodation across the service, mining and agricultural sectors.

Goldfields-Esperance Regional Planning and Infrastructure Framework (WAPC 2012)[20]

[20] The Framework was not included in either the Respondent's Bundle or the Applicant's Bundle of Documents dated 23 August 2022 (Applicant's Bundle). It was tendered separately as Exhibit No. 7.

The Objectives of the Framework include to 'provide the regional context for land-use planning' decisions, 'identify the priority actions required to enable comprehensive regional planning and to guide local planning processes'.
Section 2 is headed 'Key drivers'. Section 2.1.1 is headed 'Mining'. The section includes the following:
In recent times there has been an increasing reliance on fly-in fly-out (transient) workforces to service resource projects in Western Australia including a number of current and proposed projects in the Goldfields‑Esperance region. Fly-in fly-out workforces help accommodate constantly changing labour requirements, particularly for specialist skills and during the construction stages of projects. However, as those employment opportunities associated with the ongoing operations of resource projects are generally more long-term in nature, it would be preferable from a community-building perspective to increase the amount of mine workers living in the region.
Section 3 is headed 'Strategic directions'. Section 3.2 'Activity centres' includes the strategy: 'encourage fly-in fly-out workers to reside in the region'.

Position Statement – Workforce Accommodation

As the applicant notes in its Statement of Issues, Facts and Contentions (Applicant's SIFC), State Planning Policy 1 – State Planning Framework (Nov 2017) provides that the State Planning Framework includes position statements, as '[a] Statement setting out the policy position of the WAPC with respect to a particular matter'.[21]
[21] Applicant's SIFC, para 10.
The Commission published Position Statement – Workforce Accommodation in January 2018.
Its purpose includes to 'provide guidance to local governments on the role of the local planning framework in the planning and development of workforce accommodation'.
Clause 2 (Position Statement) includes the following:
Where practicable, workforce accommodation should be provided in established towns, in locations suitable to its context, to facilitate their ongoing sustainability.
Clause 3 (Background) includes the statement that '[w]orkforce accommodation is common throughout regional Western Australia and is particularly evident in the Pilbara and Goldfields'.
Clause 4 (Development Requirements) states that development arrangements for workforce accommodation is covered by three key legislative instruments – the PD Act, the Mining Act 1978 (WA) and State Agreement Acts. The section then states that:
The decisions of when, how and where to accommodate workers are complex, and may be influenced by factors such as the global economy and Commonwealth taxation arrangements. …
These factors can impact the regional development aspirations of local communities, who seek other ways to influence the arrangements governing workforce accommodation, including the land use planning system. The table below summarises the parameters:
Under the [PD Act] planning decision-makers can:

Control

Not Control

1.   Where a planning application is required, the terms of an approval related to:

(a)   timeframe

(b)     setbacks

     …

(c)   any other land use planning matters relevant to the site

2.   Where a planning application is required, the ability to approve/refuse a proposal considering local planning scheme requirements.

1.     Any matters specified by a Statement Agreement Act.

2.         …

3.     That workforce accommodation needs to be met by permanent accommodation rather than 'camps'.

4.     That workforce accommodation be located in a town rather than a minesite.

…

7.     …

Clause 5, under the heading 'Planning and Development Act 2005', includes that:
Where the requirement for development approval under the [PD Act] applies, a local government has the ability to control the location, permissibility, terms of operation and development standards of workforce accommodation through its local planning scheme and other local planning instruments. Generally, proposals for workforce accommodation for operational workforces that are outside the jurisdiction of the Mining Act or State Agreement Acts should be located in a town and integrated with town services, in so far as practicable.
Clause 6.3, under the heading 'Local planning policies', includes that: '[w]here scheme provisions are not required, local planning policies can also provide guidance on workforce accommodation and be consistent with this Position Statement'.

Draft Scheme

The Draft Scheme, intended to replace LPS1, was prepared and advertised from July to December 2020, following which the respondent's Council considered the submissions received at its 26 July 2021 meeting and gave the Draft Scheme conditional support subject to further advertising.
Submissions received during the further advertising period were considered at the Council's 27 June 2022 meeting at which it was resolved to forward the Draft Scheme to the Commission.[22]
[22] The Draft Scheme was forwarded to the WAPC on 29 July 2022.
At the time of our decision, the Commission has not yet determined to approve or otherwise the Draft Scheme, which provides that Workforce Accommodation (which is defined consistently with LPP 09, i.e. differently to the Model Provisions) will be a 'D' use (discretionary) in the Light Industry zone, within which the Land is located.
The aims of the Draft Scheme (cl 9) include to:
(a) ...
…
(c)provide for a range of accommodation choices that meets the needs and aspirations of the community;
…
(e)encourage the development of businesses that will strengthen the economic base of the City;
…
(h)nurture new economic development opportunities through flexible land use planning controls;
…
(i)manage land use planning and development so that it does not diminish the mineral resources sector.
The objectives of the Light Industry zone (cl 16) are:
(a)to provide for a range of industrial uses and service industries generally compatible with urban areas, that cannot be located in commercial zones;
(b)to ensure that where any development adjoins zoned or developed residential properties, the development is suitably set back, screened or otherwise treated so as to not detract from the residential amenity.

Overview of the parties' cases

The respondent's case is, essentially, in two parts.
First, it is contended that LPP 09 applies to the application; that LPP 09 provides for a time limited approval; and there is no sound reason why that policy position ought to be departed from.
Secondly, it is contended that the proposed land use is, essentially, a residential one which is inconsistent with the long-term use of the Land and the other land surrounding it, most of which is currently zoned Future Urban and which, under the Draft Scheme, will be zoned Light Industry.
The applicant's case is also, fundamentally, in two parts.
First, the applicant contends that LPP 09 ought to be given little weight because, it is submitted, the policy is based on an erroneous view that the land use is, of its nature, temporary and because the policy lacks a proper planning purpose.
Secondly, the applicant contends that the facts of the case are such as to justify a departure from the terms of LPP 09 because of the need for the facility. To that end, the applicant called three lay witnesses, being the directors of the applicant, and an expert economist, Mr Duane.

Issue no. 1 - characterisation of the proposed land-use

As noted above, the cover letter to the application stated that the applicant understood that the respondent considered the proposed land use to be 'Dwelling – Transportable' or 'Dwelling – Group / Multiple Housing / Serviced Apartment'.
Mr Craig Slarke, counsel for the respondent, addressed the 'Dwelling‑Transportable' definition in opening submissions, albeit on the basis that it was a matter of 'passing interest'.[23]
[23] ts 8 – 10, 27 September 2022.
'Dwelling-Transportable' is an 'AA' use in the Service/Light Industry zone in LPS1 but there is no definition of the term in the Scheme. There is, however, a definition of 'transportable structures/dwellings', which unhelpfully defines the term by reference to the nature of the structure, rather than in landuse terms.
However, the defined term is not otherwise used in the Scheme, although in relation to the Safety Exclusion Zone, which lies adjacent to and provides a buffer for the Super Pit, cl 3.16(5) (under the heading 'Residential Development') provides that no new residential development will be permitted in that Zone other than a caretaker's accommodation or 'mining workforce accommodation comprising temporary, transportable accommodation'.[24]
[24] ts 8 – 10, 27 September 2022; LPS1, cl 3.16(5).
It is true that the proposed accommodation buildings for the current proposal are transportable.
It is also true that the proposed land use has a residential component (as to which see below).
However, in our view, the proposed land use does not involve a 'dwelling', the Scheme definition of which involves the concept of permanent human habitation, which is a concept consistent with the ordinary meaning of the term.[25]
[25] See e.g. Clay v City of Nedlands [2012] WASC 402 at [32] – [34]; Fix WA Pty Ltdv City Of Armadale [2019] WASC 356 at [86] – [90].
The accommodation structures are intended to be used as temporary accommodation for fly-in fly-out (FIFO) workers; regardless how long those workers spend there, it cannot be suggested that they will be permanent residents.
For this reason, we are of the view that the proposed land use does not fall within the definition of 'Dwelling – Transportable'. For the same reason, we are of the view that it would be incorrect to characterise the proposed land-uses as 'Dwelling – Group' or 'Dwelling – Multiple', both of which are prohibited uses in the Service/Light Industry zone.

The Scheme's definition of Serviced Apartments[26] may appear, on a first reading, to be sufficiently broad to encompass the proposed development. It is a remarkably broad definition such that it would include many other and disparate uses such as student accommodation. It also has very considerable overlap with the Scheme's definition of 'holiday accommodation'.
[26] Schedule 1 to LPS1 provides that serviced apartment means a building or portion of a building being used or intended, adapted or designed, and furnished and equipped to be used for the purpose of human habitation as a temporary basis, for which laundry and cleaning services are provided, 'with or without ancillary amenities'.
There are two aspects of the definition that allows, in our view, a finding that the proposed land use does not fall within the definition.
Firstly, the definition speaks of a 'building' or a portion of 'a building', both terms/phrases using the indefinite article to indicate the singular. That seems to accord with the orderly meaning of the term 'apartment' as being essentially, a unit within a single building. That is not the case here.
Secondly, the definition speaks of the provision of 'laundry and cleaning services'.
The evidence in this regard is limited to the description of the proposed development (and the associated plans) as including 'five Laundry buildings for use of patrons only' and one Laundry/linen building.
The only relevant evidence is that the five Laundry buildings and their contents will be available only for workers to use during their stay.[27]
[27] ts 61 – 62, 27 September 2022.
It may also be the case, but we do not know, that the Laundry/linen building will be used by the applicant's staff or contractors to launder linen for changeover of shifts (i.e. someone will launder bedding and change it in each bedroom between shifts) and that someone will clean each unit upon changeover.
But even if that is correct (and we repeat that there is no evidence in that regard), it remains unclear whether such 'laundry and cleaning services' would suffice to satisfy the relevant definition; that is, it is unclear whether the definition intends such services to be provided while someone is in occupation or only upon changeover.
It seems to us more likely that the definition is referring to the provision of laundry services over and above the ordinary cleaning and laundering that must occur upon one occupant vacating a room/suite and another taking up occupation.
If that is correct, then the proposed use appears not to fall within the definition on the basis that there is no evidence that laundry and cleaning services (as opposed to the provision of laundry buildings for use by occupants) are provided for the benefit of workers during their shift.
Mr Algeri, an expert town planning consultant who was called on behalf of the respondent, opined that the proposed land-use is properly characterised as workforce accommodation.[28]
[28] Witness Statement of Joe Algeri dated 19 September 2022 (Algeri Statement), para 49.
The evidence of Mr Doyle, who is also an expert town planning consultant and who was called by the applicant, proceeded on the basis that the proposed land-use is properly characterised as workforce accommodation.[29]
[29] Doyle Statement, paras 29, 64 – 65.
Each expert witness, however, noted that the definition of workforce accommodation contained in LPP 09 (and the Draft Scheme) was different to that contained in the Model Provisions.[30]
[30] The definition contained in LPP 09 and the Draft Scheme is set out above at para 37.
The definition in the Model Provisions is as follows:
workforce accommodation means premises, which may include modular or relocatable buildings, used –
(a)primarily for the accommodation of workers engaged in construction, resource, agricultural, or other industries on a temporary basis; and
(b)for any associated catering, sporting and recreation facilities for the occupants and authorised visitors.
We will return below to the consequences, if any, that flow from the slightly different wording in LPP 09 and the Draft Scheme.
Staying with the definition in the Model Provisions, an issue arises as to the precise meaning of the defined term or, more specifically, the role played by the word 'temporary' in the definition. In closing,[31] Mr Slarke spoke of four possible senses in which the term might be used in the definition being:
(a)that the workers who stay in the facility do so on a temporary basis or an intermittent basis so that it is not their permanent place of residence;
(b)that the workers who stay in the facility may be engaged in one of the industries mentioned in the definition (i.e. they are employed or engaged in that industry) on a temporary basis, in the sense that their employment is not permanent, suggesting something in the nature of part-time or casual employment. Mr Slarke acknowledged that this sense didn't really work but said that, 'grammatically it could work';[32]
(c)that the premises itself is used for workers' accommodation only temporarily, i.e. from time to time; and
(d)that the workers who stay in the facility are engaged in an industry (that is, employed) on a temporary basis, in the sense that their employment is not permanent because the project that they're working on is not permanent.
[31] ts 149, 28 September 2022.
[32] The transcript records this as 'dramatically it could work' but it seems likely that is an error.
We agree that each of those senses is possible, or available, grammatically but given that the definition purports to describe a land use, the only sensible alternatives are the first and third.
The fourth sense might work. However, while a particular construction job might be described as 'temporary', and while the need for a particular workforce for certain resource tasks (e.g. shut-down) and agricultural tasks (e.g. fruit-picking) may be temporary, it seems to us that neither of those industries can properly be described as 'temporary' in a landuse planning sense.
Equally, while the second sense might work, if that was the intention, it would have been made much clearer had 'workforce accommodation' been defined as 'the temporary use of premises …'.
The third sense is preferable to the second and fourth senses in that it defines the use of land but the essence of that definition is the temporary use of land.
That seems an unlikely construction in that a temporal limit on the use of land is something which tends to be imposed by condition[33] rather than being something inherent in, or essential to, the use itself.
[33] cl 72 of the deemed provisions.
It is true that the meaning of the first sense could have made clearer by shifting the word 'temporary' as follows:
·workforce accommodation means premises, which may include modular or relocatable buildings, used:
(a)primarily for the temporary accommodation of workers engaged in construction, resource, agricultural, or other industries ~~on a temporary basis~~; and
(b)…
But despite that, in our view, the definition is to be understood in the first sense – that the accommodation is provided for workers engaged in construction, resource, agricultural or similar industries and that each worker stays in the accommodation only a temporary basis.
That was the construction which Mr Etherington, counsel for the applicant, encouraged us to adopt.[34]
[34] ts 41, 27 September 2022.
Importantly, such an approach appears to us to conform to the commonly understood nature of such accommodation, which is typically used for FIFO workers in which workers stay for a couple of weeks at a time before having a number of weeks away but may do so repeatedly for years at a time.
Construing the definition in this way is also entirely consistent with the proposed use of the facility, according to the evidence of the three directors of the applicant – Mr Hicks,[35] Mr Leahy,[36] and Mr Topham.[37]
[35] Witness Statement of Nicholas McFarlane Hicks dated 16 September 2022 (Hicks Statement), paras 15 and 22.
[36] Witness Statement of Murray Ian Leahy dated 19 September 2022 (Leahy Statement), paras 55 – 56.
[37] Witness Statement of Timothy Edward Topham dated 19 September 2022 (Topham Statement), para 29.
Accordingly, we are of the view that the proposed landuse, the subject of the application, is 'workforce accommodation' as that term is defined in the Model Provisions and as construed above.
Construing the definition in such a way has the result that, contrary to the terms of LPP 09, there is nothing about the landuse that is, inherently, temporary. Again, we will return to that issue below.

Issue no. 2 – is the proposed landuse consistent with the objectives and purposes of the service/light industry zone?

As is noted above, while the defined term 'workforce accommodation' is contained in the Model Provisions, it does not appear in the text of LPS1 and it is, therefore, a Use Not Listed for the purposes of the cl 3.6 of the Scheme.
Clause 3.6 requires a determination be made as to whether or not the proposed landuse 'is', 'may be' or 'is not' 'consistent with the objectives and purposes' of the relevant zone.
Mr Etherington opined that the question of consistency might be said to be somewhat binary – a proposal either is, or is not, consistent with an objective.[38] Nonetheless, cl 3.6 provides for a third option – that a proposal may be consistent.
[38] ts 164 – 165, 28 September 2022.
Before addressing the question, it is necessary to explain why it is necessary to do so, particularly in circumstances where the applicant takes no issue with the respondent's determination at its meeting of 27 June 2022, that the proposed landuse 'may be' consistent with the objectives and purposes of the Service/Light Industry Zone.
As noted above, the respondent's determination occurred pursuant to a reconsideration (per the Tribunal's invitation to do so under s 31 of the SAT Act) of its earlier determination of 14 March 2022, at which it determined that the proposed landuse was not consistent with the objectives and purposes of the zone.
Following that earlier decision, proceedings DR 55 of 2022 were commenced pursuant to s 252(2) of the PD Act, which challenged that determination.
Despite the determination of 27 June 2022, DR 55 of 2022 remains on foot; no application has been made for leave to withdraw or for the application to be otherwise dismissed. By order made 10 June 2022 DR 55 and DR 84 were consolidated pursuant to s 51 of the SAT Act. Notwithstanding this, the two separate matter numbers continued to be used. Whether these were one or two proceedings, the issue of jurisdiction in relation to the permissibility of the landuse must, in our view, be determined.
That is so for at least three reasons.
First, the respondent's case is that the issue is inextricably associated with the issue of the time limited condition.
That appears to have been the (oral) evidence of Mr Algeri.
In his written statement (at para 47), Mr Algeri said that cl 3.6 'is no longer relevant' because of the Council's 27 June 2022 resolution. However, in answer to a question from Mr Etherington whether the workforce accommodation use was inconsistent with the zone objectives, he answered that the proposed use wasn't inconsistent '[a]bsent consideration of any conditions … [b]ecause my view is that it was correct for the application to be conditionally approved'.[39]
[39] ts 101 – 102, 28 September 2022. See also ts 119, 28 September 2022 in which he said the same thing about the orderly and proper development of land.
It was also the submission made by Mr Slarke who submitted:
We don't attempt to say that the use is entirely antithetical to those objectives. Certainly not if it is approved or [sic 'as'?] time limited. It becomes problematic in the longer term if it prevents the use of either this site or neighbouring sites for industrial purposes. That would then do the opposite of objective [cl 3.12(a)].[40]
[40] ts 164, 28 September 2022.
For the applicant, Mr Doyle's evidence was that the use is consistent with the zone's objectives and Mr Etherington made the same submission.[41]
[41] ts 164 – 165, 28 September 2022.
The second reason is that, if the proposed land use is characterised as one which 'is not' consistent with the zone's objectives, cl 3.6(c) of the Scheme provides that it is not permitted, which gives rise to questions of the Tribunal's jurisdiction, even if the proceedings were limited in their scope to the question of the time limited condition.
It is true that the application under DR 84 of 2022 is an application for review of condition 4 only. It is also true that the Tribunal (and its predecessor) has previously held that under a 'conditions appeal' the Tribunal will not ordinarily embark on a review of the merits of the approval as a whole.[42]
[42] Koltasz Smith & Partners v Western Australian Planning Commission (2000) 23 SR (WA) 266 at [47]; Kaard and City of Nedlands [2005] WASAT 2 at [27].
Nonetheless, as the High Court recently reiterated in Citta,[43] the Tribunal has a duty to ensure that a matter before it 'is and remains within its jurisdiction to hear and determine'.[44]
[43] Citta Hobart Pty Ltd v David Cawthorn [2022] HCA 16; (2022) 96 ALJR 476 (Citta).
[44] Citta at [15].
If the proposed landuse is not permitted, it must be refused; the question as to whether or not condition 4 should be imposed must be secondary to the question whether or not the application can be approved at all. Both Mr Slarke and Mr Etherington agreed that that was so.[45]
[45] ts 11 – 12 (Mr Slarke) and ts 25 – 26 (Mr Etherington), 27 September 2022.
The third reason is that the question as to the consistency of the proposed development with the zone's objectives under LPS1 may and, indeed, must be expressed in relation to the Draft Scheme by asking whether the proposed development is consistent with the orderly and proper planning of the land and its locality.[46]
[46] See, for example, the submission discussed immediately below at para 138.
The Draft Scheme is plainly 'seriously considered' and much of both parties' submissions proceeded on the basis that the locality surrounding the Land would in future be zoned Light Industry rather than the current predominant zoning to the north of Future Urban.
We have, therefore, given considerable weight to the proposed zoning of the Land and of much of its locality in the Draft Scheme.
For convenience's sake we repeat the current zone's objectives as set out in cl 3.12 of LPS1 below:[47]
(a) To nurture existing and encourage new industries compatible with the amenity of the City.
(b) To facilitate diversification of industry to provide greater local economic stability and a range of employment opportunities.
[47] We note that despite cl 3.6 (which speaks of the zone's objectives and purposes), cl 3.12 contains no 'purposes' of the Industrial Zones.
In our view, and consistent with submissions from both parties, those objectives should be construed very broadly.
Despite making that submission, Mr Slarke also submitted that the objectives are concerned with industrial zoned land. So, where cl 3.12(a) speaks of nurturing existing and encouraging new industries, it is, he submitted, speaking of doing so within industrially zoned land and where cl 3.12(b) speaks of facilitating diversification of industry, it is speaking of facilitating the diversification of industry within industrially zoned land, not land outside such zoning.[48]
[48] ts 163 – 164, 28 September 2022.
Mr Etherington, on the other hand, noted that by their terms, neither paragraph to cl 3.12 was limited to industrially zoned land but, rather, for example, paragraph (a) spoke of the amenity of the City as a whole. He said that the objectives must be construed 'most broadly'.[49]
[49] ts 164 – 165, 28 September 2022.
We accept and agree with Mr Slarke's further submission that any nurturing or diversification of industry achieved by this proposal is likely to occur within the mining industry and, therefore, not on industrially zoned land.
However, we also accept Mr Etherington's submission that the objectives are sufficiently broad to encompass a proposed landuse within an industrial zone which nurtures existing or encourages new industries or facilitates the diversification of industry on land that is not zoned for industrial purposes.
On that basis, it might be said that the proposed landuse is consistent with the objectives. However, we also agree with Mr Slarke's broader contention; that the proposed landuse may, if it is not time limited, prevent the use of the Land or other nearby land for industrial purposes. As noted above, he submitted that if that were to occur, it would 'do the opposite of objective [cl 3.12(a)]' and we agree.[50]
[50] ts 164, 28 September 2022.
That conclusion requires some further explanation.

Sub-issue no. 2(a) – is the proposed landuse 'residential'?

In answering that question in resolving this issue, it is important not to allow form to prevail over substance.
We are not concerned here with whether the proposed landuse falls within a particular (and prohibited) land-use concept, which was the situation in both Graincorp[51] and Shalom Group,[52] which considered Graincorp but where the prohibited land‑use was also subject to a particular definition which was not the case in Graincorp.
[51] GrainCorp Operations Ltd v Liverpool Plains Shire Council (2013) 194 LGERA 83; [2013] NSWCA 171 (Graincorp).
[52] City of Swan v West Australian Shalom Group Inc [2017] WASC 217.
Rather, at issue is the respondent's contention that 'as a general proposition residential uses are not compatible with industrial uses or an industrial zone' and therefore the proposed use (which, the respondent submits is a residential use) ought not to be permitted without a time limit.[53]
[53] ts 22, 27 September 2022.
In cross‑examination, Mr Doyle was asked whether he agreed that the proposed landuse was residential. He said that, in common parlance, 'people sleep there and – and reside there for the term of their swing', but, he said, he 'would not, in a planning sense, say it is a residential use'.[54] That was because of aspects of what he saw as indicators of a 'true' residential landuse that are absent from the proposal; workers will not be permitted to receive or entertain guests, they will not be able to personalise their living space, there are limited forms of private recreation available, and quite limited forms of storage for personal items all of which, Mr Doyle emphasised, made any accommodation temporary.[55]
[54] ts 75, 27 September 2022.
[55] ts 77, 27 September 2022.
The 'transient' nature of each worker's occupation of the accommodation in the facility was the central proposition relied upon by the proponent in Graincorp[56] which concerned a FIFO facility for mine workers in an agricultural zone, in which 'residential buildings' were prohibited, although that term was not defined.
[56] Graincorp at [121].
The NSW Court of Appeal held that that transience was insufficient to 'detract from the residential character of the facility'. Ward JA, with whom Beazley P and Sackville AJA agreed, said that:
The fact that workers will stay elsewhere (unless they are otherwise homeless or peripatetic) during the periods when they are not at the workforce accommodation facility does not mean that during the period they are in occupation at the facility it is not performing a residential function.[57]
[57] Graincorp at [122].
There are very many similarities between the current proposal and that in Graincorp, although the latter was significantly larger (~1500 occupants) and also provided for greater private recreation facilities:
[In addition to] a commercial kitchen and restaurant, with seating for up to 250 persons; [there is] a "crib" room, where occupants can prepare and eat their own meals; a TV room; a gymnasium; tennis courts; pool; and "dedicated green space" for outdoor recreation.[58]
[58] Graincorp at [21].

We are also satisfied that there will very often be a demand, albeit one which will fluctuate, for accommodation for a FIFO workforce and that each of the three witnesses honestly believes that the current boom will continue for more than the five year timeframe provided for by condition 4.
However, it ought to be uncontroversial that predictions as to the future are necessarily uncertain and, indeed, the evidence of Mr Duane was that predicting the peaks and troughs of demand for labour, and associated peaks and troughs of demand for housing, with any certainty was impossible.
We also note the history of the Land.[104] Mr Algeri's unchallenged evidence was that it was occupied by a workers' camp between 1987 and 2000 but has lain vacant ever since.[105] In our view, that reinforces the fluctuating 'need' for such a facility.
[104] Clause 67(2)(w) of the deemed provisions.
[105] Algeri Statement, para 19. Attachment JA5 to Mr Algeri's witness statement includes a plan, which does not appear to bear any endorsement or other stamp of approval. The attachment also includes an application for, and a grant of, development approval that appears to allow an extension of whatever was originally approved. It may be that the original approval continues to subsist. But as we have no indication before us as to what was approved (if anything was, in fact, approved at all), the relevant statutory regime under which it was approved and what (if anything) was in place and which provided for the ongoing operation of such an approval despite subsequent changes to the relevant regime, we are unable to express any more concluded view. In any event, neither party raised the possibility of the ongoing validity of such an 'approval'.
Given that, what is the relevance of 'need' in these proceedings?
LPP 09 provides that an applicant for a workforce accommodation facility must demonstrate that it is needed. But the respondent did not suggest that 'need' was an issue in dispute and we didn't understand the applicant to rely on the evidence to that end.
Rather, we understand that the evidence as to need supports a submission to the effect that the need is so great, and will extend for so long, that the time limited condition ought not to be imposed.
But such an approach cannot succeed in circumstances where, as we have just stated, LPP 09 requires that the need for the facility is demonstrated as a necessary pre-condition to approval.
That is because, in the absence of the policy, it would not be necessary for the applicant to demonstrate that the facility is needed. Certainly, it is not a matter expressly identified in cl 67(2) of the deemed provisions as one which must be considered. And, as general proposition, evidence as to commercial need (as opposed to the need for a facility that will provide public services such as drug rehabilitation facilities or a hostel for the homeless) is not generally considered a matter to be given much weight.[106]
[106] BP Australia Pty Ltd v City of Perth (1994) 10 SR (WA) 110. Also see Pinder Architects Pty Ltd v City of Stirling (1996) 92 LGERA 165 at [171] – [175].
In such circumstances, the policy's requirement that an applicant must demonstrate need has the result that, in our view, any evidence of need cannot then be relied upon as a basis upon which the Tribunal might depart from, or otherwise not apply, the terms of the policy.
Accordingly, the evidence of need is not such to persuade us to depart from the terms of the policy.

Evidence as to need as critique of policy position

There is another possible basis on which the evidence as to need, and particularly the expert evidence as to need, might be considered, and that is as a critique of LPP 09. Although we did not understand the applicant to make this submission, we address it out of an abundance of caution.[107]
[107] Strictly speaking, this issue should be addressed in the previous section but it is convenient to address it here as it concerns need.
The fluctuating need for FIFO accommodation, the uncertainties as to when the peaks and troughs of that need might hit, and the very limited ability to control the factors driving need and its fluctuations were all matters that warranted, and appear to have received, consideration by the respondent in the preparation of LPP 09.
The result reflects the considered position of the respondent.
Of course, that position was not the only one open to it. The issues involved are, plainly, complex enough for there to be room for a variety of views different to that reflected in the policy.
But that does not mean that the position taken by the respondent in LPP 09 was not open to it or, even, should not have been taken. As we have said, the policy position adopted by the respondent in LPP 09 was, in our view, reasonably open to it.
It is not for this Tribunal to seek to critique LPP 09 unless we are of the view (which we are not) that it does not represent proper planning principles, is inconsistent with the Scheme, which it is not, or is in some other way untenable.

Is LPP 09 untenable because it 'responds' to the application?

One possible basis on which it might have been said that LPP 09 was untenable is its very close chronological association with the application.
As noted above, the application for development approval was lodged with the respondent on 8 October 2021 and on 22 November 2021 the Council of the respondent determined to prepare a workforce accommodation planning policy. The application for approval and the development of the policy occurred, more or less, throughout the same period so that, as noted previously, the policy took effect only a matter of days prior to the hearing of this matter.[108]
[108] In McCabe Street Joint Venture and City of Fremantle (2009) 61 SR (WA) 9; [2009] WASAT 37 at [88] the Tribunal said that the chronology 'strongly indicate[d]' that the policy was 'in substance responsive to the structure plans' in question. In Vespoli and City of Stirling [2013] WASAT 161 at [44] where the chronology alone appears to have been sufficient to conclude that the policy was responsive to the application but where the issue was raised and the respondent, at least, had an opportunity to make submissions.
In Ridgecity[109] at [35], the Tribunal (Chaney DP, Parry SM and Connor M) held:
The Tribunal would generally give little weight to a policy which is in substance responsive to a particular pending development application. Self‑evidently, a development application to which a policy is responsive was formulated in the context of a planning regime which did not include the policy. The fact that the development application is capable of amendment, or is subsequently amended, is not in point.
[109] Ridgecity Holdings Pty Ltd and City of Albany [2006] WASAT 187 (Ridgecity).
Other than the chronology, no evidence in this regard was given by any of the witnesses. Equally, no submissions were made by Mr Etherington and, indeed, the matter was not raised in the Applicant's SIFC.
Accordingly, to give little weight to the policy on this basis would be to deprive the respondent of procedural fairness as it has not been given the opportunity to address the issue.
But in any event, we would be loath to apply the Ridgecity principle in this case for at least four reasons.
First, although the chronology suggests that LPP 09 is a response to the application, we repeat that the evidence is that the respondent has 'long held a position' opposed to FIFO and that in 2019 it resolved to develop a plan to 'combat' FIFO.[110]
[110] Respondent's Bundle, page 177 and see paras 202 and 252 above.
Secondly, as we have previously held, LPP 09 is supported by and consistent with higher level policy documents that discourage the entrenchment of workforce accommodation for FIFO workers.
Thirdly, LPP 09 applies to the municipality as a whole; it doesn't just apply to the Land and its locality.[111]
[111] Ridgecity at [36].
Fourthly, LPP 09 has a significant degree of complexity compared to other policies which have been the focus of criticism in this regard. What is in issue here (time limits) is but one aspect of the policy; a time limited condition is an important aspect of the policy position reflected in LPP 09 but it is far from the only one. In that regard it can be contrasted with a policy that, for example, imposes a strict height limit in regard to a small area of land in response to a particular proposed development.

Conclusion as to whether there is a basis to depart from the policy

For all of these reasons, we are not satisfied that there is a proper basis in this case to depart from the recommended course of action as set out in LPP 09 as to the imposition of a time limited condition.

Timeframe

As we have mentioned previously, the terms of LPP 09 provide for a time limit of five years for any approval of a workforce accommodation facility.
Mr Slarke acknowledged that that timeframe was somewhat arbitrary.[112]
[112] ts 16, 27 September 2022.
We agree, although that does not amount to a criticism. To a large degree, any timeframe is likely to be somewhat arbitrary.
Mr Slarke noted that five years was the time period mandated by the PD Act for a review of each local planning scheme.[113] That is so but, in our view, there is an insufficient relationship between the two matters to justify the policy's timeframe.
[113] PD Act, s 88(2)(a).
There was also in evidence an analysis by Mr Algeri of policies adopted by other municipalities which seek to control workforce accommodation.
Mr Algeri's evidence was that of the six considered policies, all said that time limits should apply to workforce accommodation, four of them set time limits, of which one set a time limit of 10 years and the others set a time limit of five years. None of the policies appear to provide an explanation or justification of their chosen time limit and the same criticism of arbitrariness can therefore (it would appear) be levelled at these other policies.
Mr Hicks' witness statement, at para 38, says that the proposed development wasn't intended to be dismantled after five years and that, had the applicant been aware of a time limited condition, the design would have been more 'basic'.
Under cross‑examination he expanded on that evidence by indicating that the design would have included less landscaping, fewer amenities and poorer quality equipment, such as in the gym.[114]
[114] ts 63, 27 September 2022.
It is, however, difficult to accept that the proposed design would have been less sophisticated had the applicant been aware of the prospect of a five year time limit.
That is so for at least two reasons. First, the design is very basic and, as was accepted by Mr Hicks in cross‑examination, is constituted by plans taken from other workforce accommodation facilities, i.e. it is not 'bespoke'. Secondly, Mr Hicks' own evidence described a number of aspects of the proposed development, including the laundry and gym as 'must-haves'.[115] That is, they 'must' be included due to workers' expectations regardless of the longevity of the development.
[115] ts 61 – 62, 27 September 2022.
As such, there is, in our view, no evidence that provides a sufficient basis to warrant departure from the five year timeframe set out in the policy.
We do have concern that the five year time limit is expressed in the policy as being inclusive of any extension or renewal. Expressed in that way it unlawfully purports to fetter the future discretion of the respondent (or Tribunal in its stead).[116]
[116] Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433 at [25].
Any application made at the end of the five year time period to extend or renew the approved landuse must be made in light of all the facts and circumstances, including the relevant policy framework, at the time. If LPP 09 remains in place, and in those terms, it must be taken into account, but the terms of the policy now cannot foreclose an extension/renewal in five years' time.
But, despite those provisions, we note that the terms of condition no. 4 expressly anticipates that 'a further' development approval may be granted.
We therefore see no reason to depart from the terms of the policy, notwithstanding its somewhat arbitrary nature in this regard.

Design

Finally, we must address the applicant's submission that the design of the facility reflects its intention that the facility remain on the Land in perpetuity and that, had a time limited condition been anticipated the design would have reflected that; i.e. the quality would not have been so high.
Mr Hicks gave that evidence in his statement and was cross‑examined on it.[117]
[117] ts 63 – 64, 27 September 2022.
Mr Hicks was unable to provide any level of appropriate detail as to what differences there would have been in the design of the facility had it been designed for a five year workforce. That is consistent with our review of the approved plans. As noted above at para 286, those plans show a proposed facility that is, with the greatest of respect, best described as basic and/or functional.

Conclusion

For these reasons, we are of the view that the correct and preferable decision in DR 55 of 2022 is that the proposed development of the Land for the purposes of workforce accommodation 'may be' consistent with the objectives of the Service/Light Industry zone but only if it is time limited.
We are also of the view that the correct and preferable decision in DR 84 of 2022 is that condition 4, which imposes a five year timeframe on the proposed development, ought to be imposed.
We therefore affirm the decision of the respondent in each case.

Orders

In each proceeding the decision of the respondent is affirmed:
(a)in DR 55 of 2022, the proposed development of the Land for the purposes of workforce accommodation 'may be' consistent with the objectives of the Service/Light Industry zone; and
(b)in DR 84 of 2022, the development approval granted 25 July 2022 is subject to condition 4 which time limits the approval for a period of five (5) years from the date of occupancy.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
RM
Associate to Deputy President Judge Jackson
13 FEBRUARY 2023