Greenelm Pty Ltd and City Of Swan
[2010] WASAT 142
•4 OCTOBER 2010
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: GREENELM PTY LTD and CITY OF SWAN [2010] WASAT 142
MEMBER: MR D R PARRY (SENIOR MEMBER)
MR J JORDAN (MEMBER)
HEARD: 8, 9 AND 10 JUNE 2010 AND 29 JUNE 2010 - WRITTEN SUBMISSIONS FILED ON 7, 9, 16 AND 30 JULY 2010
DELIVERED : 4 OCTOBER 2010
FILE NO/S: DR 440 of 2009
BETWEEN: GREENELM PTY LTD
Applicant
AND
CITY OF SWAN
RespondentJEFF McGLINN
ROBYN McGLINN
Intervenors
Catchwords:
Town planning Development application Transport depot General Rural zone Discretionary use 35 prime movers, 70 trailers and 30 dollies 3.34 hectares of hardstand Office, workshops and storage sheds Seven day operation Whether consistent with zone objectives Whether development is a 'rural activity' Whether development is 'compatible support servic[e] to meet the needs of the rural community' Whether development would 'not prejudice rural amenities and ... promote the enhancement of rural character' Impact on amenity Character Scale and intensity Impact on adjoining Arabian show horse stud Noise Concern about horses being injured when responding to sudden noise Extremely unlikely impact Lightspill Dust
Legislation:
City of Swan Local Planning Scheme No 17, cl 1.3(a), cl 4.2, cl 4.2.23, cl 4.2.23(b), cl 4.3.2, Sch 1
Planning and Development Act 2005 (WA), s 252(1)
State Administrative Tribunal Act 2004 (WA), s 37(3)
Result:
Development application refused
Category: B
Representation:
Counsel:
Applicant: Mr MJ Hardy
Respondent: Mr CA Slarke
Intervenors : Mr MC Hotchkin
Solicitors:
Applicant: Hardy Bowen
Respondent: McLeods
Intervenors : Hotchkin Hanly
Case(s) referred to in decision(s):
Attwell and City of Albany [2009] WASAT 38
Del Giacco and City of Melville [2008] WASAT 134
Finlayson and City of Joondalup [2009] WASAT 47
Fryer and City of Subiaco [2006] WASAT 199
Hopkins & Anor and Town of Vincent [2007] WASAT 149
Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100 (2005) 39 SR (WA) 119
Phil Lukin Pty Ltd and Lowe Pty Ltd and Shire of Busselton [2006] WASAT 124
Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74 (2006) 150 LGERA 116
Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
This case concerned a development application for a transport depot on a General Rural zoned property on Great Northern Highway about six kilometres south of the Bullsbrook townsite in the district of the City of Swan. The transport depot would accommodate 35 prime movers, 70 trailers and 30 dollies, would have 55 employees and would operate from 5 m to 10 pm Monday to Saturday and 7 am to 10 pm Sunday. Approximately 3.34 hectares of hardstand was proposed, mostly in the form of open paved areas, and also to accommodate a workshop, office, two storage sheds and a 50,000 litre diesel storage tank and fuel pump.
The Tribunal determined that the proposed transport depot warrants refusal in the exercise of planning discretion because, having regard to the objectives of the General Rural zone, the development is inappropriate in the zone, and because it would have an adverse impact on the amenity of the locality.
The development is neither a rural activity nor a compatible support service to meet the needs of the rural community. The relevant rural community encompasses the inhabitants and businesses located in the rural areas of the district of Swan and contiguous local government districts. The principal focus of the proposed development was not on meeting the needs of the inhabitants and businesses located in this area, but rather, on meeting the needs of the inhabitants and businesses located in a vast geographic area of the State, by transporting goods across that area.
The proposed development would prejudice rural amenities and would not promote the enhancement of rural character. It would also have an adverse impact on the amenity of the locality. While there are four non-agricultural uses on five properties within 1.25 kilometres of the site, the locality has a prevailing rural character and, in particular, is characterised by pastures with houses and farm buildings set well back from the highway. Because of its urban character, the very significant scale of hardstand and buildings, and the very significant intensity of use, in terms of the number of vehicles and the hours of operation, the development would involve a noticeable adverse effect on the present and likely future rural character of the locality. The proposal would be entirely discordant in character and visually intrusive when viewed from adjoining and adjacent properties, Great Northern Highway and topographically higher properties to the east. The degree of impact would be significant and adverse.
The Tribunal also determined that, if otherwise acceptable, the development could not be lawfully or appropriately approved in the absence of a satisfactory road safety audit. However, if the application were otherwise acceptable, the Tribunal would have given the applicant the opportunity to obtain and present a road safety audit in the context of the present proceeding, provided that the applicant would have paid the other parties' reasonable professional costs of reviewing and responding to the audit and any further hearing.
Finally, the Tribunal considered whether the likely noise, light and dust impacts of the proposed development on an adjoining Arabian show horse stud would warrant refusal of the application. The owners of the horse stud were given leave to intervene in the proceeding. The Tribunal determined that the likely impacts would not warrant refusal. While the intervenors were concerned about horses being injured when responding to sudden impact noise, the Tribunal found that this is extremely unlikely, given the existing high noise environment, the propensity of horses to habituate to new noises within a day, and the calming role of foals' mothers. In relation to light, the development would have an acceptable impact, because the area to be developed would be set back by 100 metres from the stud property and because the lighting could be conditioned to mitigate lightspill. Finally, dust generation would not warrant refusal, because the development would be extensively paved and would be well set back from the stud property.
Introduction
In 1965, Mr Joseph Hawkins commenced a transport business, JJ Hawkins & Co Pty Ltd (JJ Hawkins & Co), with one truck that he drove. Over the next 45 years, Mr Hawkins gradually expanded JJ Hawkins & Co to the point that it now operates 35 prime movers, 70 trailers and 30 dollies. JJ Hawkins & Co transports predominantly rural and extractive products and materials, including grain, timber, sawdust, manure, fertiliser, limestone blocks, lime sand, clay, gravel, stone, gypsum and shellgrit, throughout an area radiating approximately 1,000 kilometres from Perth and including Esperance, the Wheatbelt, the Goldfields and the North West. However, Mr Hawkins estimated that 40% to 50% of pickup or delivery on transport jobs is within the Perth metropolitan region. Most of JJ Hawkins & Co's work in the Perth metropolitan region involves pickups with delivery in the country, although the company also picks up and delivers roof tiles within the Perth metropolitan region. The company also owns and leases front end loaders, bulldozers, rock crushers and mobile screening plant that generally stay out on sites. Additionally, about 10% of the business involves servicing the chicken industry by cleaning out sheds and installing new sawdust. Mr Hawkins indicated that, in recent times, the chicken industry has been relocating from the Wanneroo and Swan local government areas to the Shires of Gingin and Chittering.
From 1965 to 1986, JJ Hawkins & Co operated from premises in Wanneroo. In 1986, the company moved to a 6,000 square metre property in Landsdale. Subsequently, an adjoining 8,000 square metre lot was leased to accommodate the growing transport fleet. However, these combined properties are now operating at capacity. Consequently, Mr Hawkins, with the assistance of Mr Oscar Drescher, a consultant town planner, looked for a sufficiently large property that could be developed as a transport depot for JJ Hawkins & Co. Greenelm Nominees Pty Ltd (Greenelm), of which Mr Hawkins is also a director, purchased No 2023 (Lot 20) Great Northern Highway, Bullsbrook (site) for this purpose.
Site
The site is located approximately six kilometres south of the Bullsbrook townsite and approximately 31 kilometres north of the Perth Central Business District. The site is located a short distance to the east of the prolongation of the southern runway of the Pearce Royal Australian Air Force (RAAF) base. An RAAF sign located adjacent to the northwestern corner of the site states 'AIRCRAFT NOISE AREA'.
The site has an eastern frontage of approximately 205 metres to Great Northern Highway and an area of 10.7866 hectares. The site is relatively flat and mostly cleared rural land currently used to agist horses. To the north, the site adjoins a similarly sized rural property with a residence located centrally. To the west, the site adjoins Ellen Brook, which is a Conservation Category Wetland and classified as Bush Forever 296. To the south, the site adjoins part of an Arabian show horse stud owned and operated by Mrs Robyn McGlinn and Mr Jeff McGlinn which is known as Mystica Arabians. Mystica Arabians also includes larger adjacent properties to the east of Great Northern Highway and to the west of Ellen Brook. The part of the Mystica Arabians landholding that adjoins the southern boundary of the site is operated as a single paddock known as the 'mares' paddock'. Mystica Arabians uses the mares' paddock for pregnant mares that are artificially inseminated in a facility to the west of Ellen Brook and for their foals.
The site and the areas to its north and south are zoned General Rural under the City of Swan Local Planning Scheme No 17 (LPS 17 or Scheme). The area to the east of Great Northern Highway, which rises sharply to an escarpment to the east, is zoned Landscape under LPS 17. The area bounded by Ellen Brook to the east and the Perth Geraldton railway line to the west, south of Warbrook Road, is generally zoned Special Use and partly reserved as a wildlife sanctuary under LPS 17, in order to protect the habitat of the critically endangered Western Swamp Tortoise (Psuedemydura umbina).
Mr Hawkins explained that the site was selected as the location for JJ Hawkins & Co's transport depot for several reasons. Firstly, Great Northern Highway is one of the major highways servicing the Perth metropolitan region and the northwest of the State. Approximately 60% of the company's fleet currently uses Great Northern Highway daily. Mr Hawkins also anticipated that the company will be moving into servicing the northwestern mining and gas fields. Secondly, Mr Hawkins considered the site 'to be a fairly central location from which to operate a truck depot servicing the metropolitan area and also the rest of the State'. He said that the site is well located to service the agricultural and wheatbelt areas where the company transports lime sand, fertiliser and grain. Thirdly, the site is sufficiently close to Perth for the delivery of parts for the maintenance of the truck fleet. Fourthly, the site is strategically located for servicing the chicken industry which, as noted earlier, is relocating to the Shires of Gingin and Chittering. Fifthly, there are five properties within approximately 1.25 kilometres of the site that are used for nonagricultural purposes. These uses are discussed in the reasons below. Finally, the site is located proximate to the RAAF base which is used both night and day for training air force pilots and commercial pilots.
Proposed development
In February 2009, Greenelm applied to the City of Swan (City or Council) for development approval under the Metropolitan Region Scheme and LPS 17 to establish a transport depot on the site. The development application proposes that approximately 3.34 hectares of the site would comprise hardstand, mostly in the form of open paved areas used for vehicle manoeuvring or parking, and also to accommodate the following buildings and structures:
•workshop for servicing vehicles with an area of 1,000 square metres and with a wall height of 6.4 metres;
•office with an area of 360 square metres and a wall height of 3.5 metres;
•two storage sheds with areas of 1,200 square metres and wall heights of 8 metres; and
•a 50,000 litre diesel storage tank and fuel pump.
The development is proposed to have 55 employees with a car park located close to Great Northern Highway. The development also includes electric fences and a gate.
The site would be used to park JJ Hawkins & Co's prime movers, trailers and dollies and also its front end loaders, bulldozers, rock crushers and mobile screening plant when between jobs. The site would also be used for the servicing and wash down of these vehicles and equipment. The storage sheds would be used for storing clean sawdust sourced from the southwest and shellgrit sourced from Shark Bay. The sawdust and shellgrit are used by the company to service the chicken industry.
The proposed hours of operation at the site are 5 am to 10 pm Monday to Saturday and 7 am to 10 pm Sunday. However, Mr Hawkins indicated that vehicles typically depart in the early morning, between 5 am and 9 am, and return in the afternoon and early evening, generally by 7 pm, although, in some cases of distant travel, up to 10 pm. Mr Hawkins estimated that about twothirds of the company's transport vehicles would be at the depot overnight from Monday to Saturday, while the rest would be in regional locations. Most of the other vehicles and equipment would generally remain out on sites. He said that, although the depot would be available for servicing vehicles on Sundays, 'there is very little truck movement at the depot [on Sundays] other than a vehicle that may be returning from a long haulage delivery out in the country'.
Greenelm and JJ Hawkins & Co also propose to implement a revegetation plan prepared by Tranen Revegetation Systems. The revegetation plan has four principal elements. Firstly, the revegetation plan includes a 0.4 hectare swale revegetation area on the western side of the site approximately 50 metres east of the boundary with Ellen Brook. It is proposed to create two drainage basins in this area to capture water run off from the hardstand on the site. The basins would be planted to stabilise and remove nutrients that are discharged from the site. Secondly, a 0.9 hectare buffer revegetation area is proposed to be located between the swale revegetation area and Ellen Brook. The buffer revegetation area would be fenced off and maintained as a dry land/wetland habitat in order to enhance the attributes and functions of Ellen Brook. Thirdly, vegetation screening areas are proposed along the southern boundary with the mares' paddock of Mystica Arabians and along the eastern boundary adjacent to Great Northern Highway. A 3 metre firebreak is proposed along the southern boundary with a 5 metre wide landscaped screen to its north planted at a rate of one plant per square metre. The existing single treeline vegetation at the Great Northern Highway boundary would be supplemented by a 4 metre wide screen planted at the rate of two plants per square metre with a native tree and large shrub mix in order to achieve a dense visual screen. Finally, a bund screening area is proposed along the northern boundary of the site where Greenelm's consultant acoustics engineer, Lloyd George Acoustics, has recommended a 5 metre tall bund to mitigate noise impact on the residence located centrally on the adjoining property to the north.
The development application was notified for public submissions. The City received 53 submissions of which nine were in favour of the proposal and 44 were against it. However, 26 of the 44 objectors do not live within proximity of the site.
On 14 October 2009, the Council accepted the advice of its statutory planning officer, Mr Lorenzo Santoriello, to refuse the development application. On 16 November 2009, Greenelm sought review of the Council's decision under s 252(1) of the Planning and Development Act 2005 (WA).
On 23 December 2009, the Tribunal granted leave to Mr and Mrs McGlinn under s 37(3) of the State Administrative Tribunal Act 2004 (WA) to intervene in the proceeding 'in relation to the impact of the proposed development on the use of [the Mystica Arabians property] as an Arabian horse stud, including the keeping, conditioning and breeding of horses'.
Issues for determination
The following six issues arise for determination in this review:
1)What weight should be given to the draft Bullsbrook Townsite and Rural Strategy (BTRS) in assessing the proposed development?
2)Whether the proposed development is consistent with the objectives of the General Rural zone of LPS 17.
3)Whether the proposed development would have an adverse impact on the amenity of the locality.
4)Whether the proposed development is consistent with orderly and proper planning.
5)Whether the proposed development would give rise to an unacceptable road safety risk.
6)Whether the likely impacts of the proposed development on Mystica Arabians and in particular on the mares' paddock warrant refusal of the application.
The Tribunal will address each of these issues in turn.
What weight should be given to the draft BTRS?
On 3 September 2008, the Council adopted the BTRS and forwarded it to the Western Australian Planning Commission (Commission) for endorsement. However, Mr Santoriello gave evidence that the BTRS is currently 'on hold' while the Commission progresses its wider strategic planning for the Perth and Peel regions. Mr Santoriello also said that the BTRS did not result from a Commission initiative and there is no present indication either as to the Commission's attitude to the document or a timeframe in which it might be adopted.
The BTRS states that it 'represents an overall strategic vision and a comprehensive land use plan'. The site and land to the north, south and west are located in the General Rural 2 precinct under the BTRS. In this precinct, transport depots are identified as an 'undesirable land use'. The BTRS contains a specific Rural Transport precinct in the northern sector of the local government area.
Mr CA Slarke, counsel for the City, submitted that the Tribunal should give the BTRS the same weight in this review as if it were a local planning policy adopted under the Scheme. However, as Mr MJ Hardy, counsel for Greenelm, observed, the BTRS appears to be in the nature of a strategy rather than a local planning policy. Furthermore, it is not clear what status the BTRS will have in the planning framework, even assuming that it is ultimately endorsed.
Given that the BTRS did not result from a Commission initiative, has been 'on hold' for the past two years and there is no indication whatsoever as to the Commission's attitude towards it or as to a timeframe for its adoption, the Tribunal considers that it should be given no weight in this review.
Is the proposed development consistent with the objectives of the General Rural zone?
A 'transport depot' is identified as a 'D' use in the General Rural zone under the zoning table of LPS 17. This designation 'means that the use is not permitted unless the local government has exercised its discretion by granting planning approval': cl 4.3.2 of LPS 17. Clause 4.2 of the Scheme states as follows:
The objectives of the zones are set out under the respective headings in this clause. Without limiting their application to any discretionary decision, it is intended that the objectives will be applied by Council to determine the appropriateness in a particular zone of discretionary uses, or those uses not listed in the Zoning Table.
Clause 4.2.23 of the Scheme states as follows:
The objectives of the General Rural Zone are to
(a)facilitate the use and development of land for a range of productive rural activities which will contribute towards the economic base of the region;
(b)provide for a limited range of compatible support services to meet the needs of the rural community, but which will not prejudice the development of land elsewhere which is specifically zoned for such development;
(c)ensure the use and development of land does not prejudice rural amenities and to promote the enhancement of rural character;
(d)ensure that development and land management are sustainable with reference to the capability of land and the natural resource values.
Objective (a) 'facilitate the use and development of land for a range of productive rural activities … '
The proposed development is not consistent with objective (a) of the zone. As Mr Drescher conceded, a transport depot is not a 'rural activity'. The adjective 'rural' is defined in The Macquarie Dictionary (4th ed, 2005) (The Macquarie Dictionary) at 1241 as follows:
1. of, relating to, or characteristic of the country (as distinguished from towns or cities), country life, or country people; rustic. 2. living in the country. 3. of or relating to agriculture: rural economy.
A transport depot is not an activity that is 'of, relating to, or characteristic of the country (as distinguished from towns or cities)'.
Mr Hardy made two submissions in relation to objective (a). Firstly, he submitted that the operation of the transport depot 'will contribute toward the economic base of the region, of which the local government district of the respondent forms part'. However, objective (a) refers to 'a range of productive rural activities which will contribute toward the economic base of the region' (emphasis in bold added). As a transport depot is not a rural activity, the fact that it may contribute towards the economic base of the region is irrelevant for the purposes of objective (a). Secondly, Mr Hardy submitted that 'the objective as expressed in paragraph (a) is not limited to use and development of land but the facilitation of the use and development of land' and that 'transport facilities may effect that facilitation'. However, this submission misconstrues the meaning of objective (a) which is an objective of the zone to 'facilitate the use and development of land for a range of productive rural activities' (emphasis in bold added). The objective does not extend to encouraging other forms of development which facilitate productive rural activities. As noted by Mr Slarke in his submissions, the possibility of permitting uses which facilitate productive rural activities is contemplated by 'compatible support services' referred to in objective (b).
Objective (b) 'provide for a limited range of compatible support services to meet the needs of the rural community … '
As Mr Hardy submitted, 'the provision of transport services may be properly categorised as a "compatible support service" for the purposes of paragraph (b) of the objectives'. However, because of the scale of the transport services proposed, namely, 35 prime movers, 70 trailers and 30 dollies, and their broad geographical focus, the proposed transport depot in this case is not consistent with objective (b).
The noun 'community' is relevantly defined in The Macquarie Dictionary at 300 as follows:
1. all the people of a specific locality or country: the new transport service is for the benefit of the whole community. 2. a particular locality, considered together with its inhabitants: a small rural community.
Read in the context of a local planning scheme that applies to the local government district of the City (cl 1.3(a) of LPS 17), the expression 'the rural community' in cl 4.2.23(b) of the Scheme means the inhabitants and businesses located in the rural parts of the local government area and contiguous local government areas. We note that this was the view expressed by Mr Drescher.
In order for a support service, such as a transport service, to be consistent with objective (b), its principal focus must be on providing its service to meet the needs of the inhabitants and businesses located in the rural areas of the district of Swan and contiguous local government districts, although it may also incidentally serve a wider area. However, the proposed development does the very opposite. Its principal focus is on meeting the needs of the inhabitants and businesses within a vast geographic area of the State by transporting goods across that area, although it may also incidentally transport goods to or from the rural areas of the City and contiguous local government districts. As Mr Slarke submitted, 'to the extent that the proposed transport depot provides any support services to meet the needs of the relevant rural community, it is coincidental at best'. Furthermore, the scale of the development is plainly excessive to meet the needs of the relevant rural community.
The proposed development is therefore not consistent with objective (b) of the zone.
Objective (c) 'ensure the use and development of land does not prejudice rural amenities, and to promote the enhancement of rural character'
Greenelm conceded that the proposed use and development of the site does not promote the enhancement of rural character. It contended, however, that the proposed transport depot would not 'prejudice rural amenities'. Schedule 1 of LPS 17 defines 'amenity' to mean 'all those factors which combine to form the character of an area and include the present and likely future amenity'.
Mr Santoriello gave evidence that 'the existing amenity of the locality of the site is pleasantly rural and characterised by pastures with houses and farm buildings set well back from the highway'. Mr Santoriello carried out a detailed locality analysis of 89 properties within two kilometres of the site and found that only four properties in that area (3.37%) are not 'typically rural'.
In contrast, Mr Drescher focused on 'a radius of 1 1.25 kilometres, where there are a number of … nonagricultural activities … '. In particular, Mr Drescher referred to developments that he described as 'feedlot/stockfeed', 'sawmill and pallet plant' and 'grain dehulling plant', on the western side of Great Northern Highway to the north of the site, and to two quarries on the eastern side of Great Northern Highway, one to the northeast and one to the southeast of the site. Mr Drescher considered that these nonagricultural uses in proximity to the site 'would not make the transportation depot out of place'.
However, as Mr Slarke submitted:
The various uses referred to by Mr Drescher are not comparable to the proposed transport depot in relation to their scale or intensity, nor as to their impact on the amenity of the locality. While the uses referred to may have industrial type elements, they are either in the nature of rural industries or are uses which are typically found within rural areas. Their effect on amenity, both individually and cumulatively, does not extend beyond that which is tolerable in a rural location, and does not alter the prevailing rural character.
The 'feedlot/stockfeed' development is, as Mr Santoriello suggested, a typical rural use. The 'sawmill and pallet plant' has approvals as a turf farm, sawmill and four storage sheds and a workshop. While there appear to be questions as to whether the land is being used in conformity with relevant approvals, as Mr Santoriello observed, the development 'is considered to have a low intensity at present'. The 'grain dehulling plant' is a rural industry treating a rural product, namely, lupins. Furthermore, the approval of that development limits it to the use of two trucks and to a maximum of eight to 14 truck movements per day during daylight hours only. In contrast, the proposed development would generate up to approximately 110 car movements and 70 truck movements per day, and the proposed hours of operation are between 5 am and 10 pm Monday to Saturday and between 7 am and 10 pm Sunday.
In relation to the quarries, while extractive materials are not rural products (Attwell and City of Albany [2009] WASAT 38 (Attwell) at [27]), 'excavated materials are usually obtained in country areas, rather than in urban areas' (Attwell at [27]) and quarries are not unexpected in many rural areas of the State.
Furthermore, each of the nonagricultural uses referred to by Mr Drescher either involves no physical structures (in the case of the quarries) or significantly less hardstand and buildings than is proposed in the development application for the site.
Mr Drescher also referred to the vegetation screening areas that are proposed and expressed the opinion that the screening would mitigate any prejudice to rural amenities. However, in the short to medium term, the significant scale of the development would be clearly apparent, both from adjoining and adjacent properties and from the road. Even in the long term, as Mr Santoriello observed, the screening may not be entirely effective from these locations. Furthermore, even if the physical structures were ultimately screened from these locations, the significant scale of the development in terms of vehicular movements would still be apparent. Finally, as Mr Santoriello observed, the screening that is proposed is likely to be ineffective, even in the long term, when the property is viewed from the area to the east of Great Northern Highway. As noted earlier, these properties rise sharply to an eastern escarpment. Given the topography of this area and the extensive hardstand and the scale of the buildings that are proposed in the development application, the development would be clearly apparent from these properties. In this regard, the Tribunal had the benefit of a view from the Mystica Arabians property to the east of Great Northern Highway. While it is correct, as Mr Hardy submitted, that the Landscape zoning of the area to the east of Great Northern Highway is concerned to protect the visual characteristics of the landscape falling within that zone, nevertheless, the rural amenities enjoyed by the properties to the east of Great Northern Highway include the amenity of the locality as described by Mr Santorielli, namely, 'pleasantly rural and characterised by pastures with houses and farm buildings set well back from the highway'.
As noted earlier, 'amenity' includes not only the present but also the 'likely future amenity'. Mr Drescher referred to a proposed transport depot development on the property adjoining the site to the north that was recommended for approval by the City's assessing officer, but was withdrawn prior to consideration by the Council. Mr Drescher described the previously proposed development on the adjoining property as 'strikingly similar' and 'identical' to the presently proposed development for the site. However, the development proposed for the adjoining site was not approved and, if it were ever resubmitted, it would have to be considered by the Council on its merits, having regard to the zone objectives discussed in these reasons. Furthermore, the proposal for the adjoining property was of a notably lesser scale and intensity than the proposed development in this case. The presently proposed development involves double the operating hours, almost double the number of employees and three times the number of truck movements in comparison to the previous proposal for the adjoining site. While the paved area of the previous proposal for the adjoining site was larger than the paved area of the proposed development, the overall scale of the proposed development is significantly greater.
The proposed use and development of the site would certainly prejudice rural amenities. As Mr Santoriello said, 'the appearance and activity of a largescale transport depot would be out of character and have an unacceptable impact on the local amenity'. Because of its urban character, the very significant scale of hardstand and buildings, and the very significant intensity of the use, in terms of the number of vehicles and the hours of operation that is proposed, the development would involve a noticeable and significant adverse effect on the present and likely future rural character of the locality.
The proposed development is, therefore, not consistent with objective (c) of the zone.
Objective (d) 'ensure that development and land management are sustainable with reference to the capability of land and the natural resource values'
Greenelm commissioned Environ Australia Pty Ltd to prepare an environmental management report in relation to the proposed development. Greenelm also instructed Ms Tamara Smith, an environmental scientist, to undertake an independent review of the environmental management report. Ms Smith gave evidence that 'there are adequate measures proposed in the Environmental Management Report … to address general pollution and habitat protection for the development of the transport depot' and that 'the development can be managed in an environmentally sensitive manner, in accordance with Western Australian government guidelines, such that pollution levels would not significantly increase[,] and ground and surface water on/adjacent to the [site] will not be adversely affected by the development'.
Ms Smith's evidence was not seriously challenged and no contrary qualified evidence was called by the other parties. Based on Ms Smith's evidence, the Tribunal finds that the proposed development is consistent with objective (d) of the zone.
Is the proposed development appropriate having regard to the zone objectives?
As noted earlier, cl 4.2 of LPS 17 states that 'it is intended that the [zone] objectives will be applied by Council to determine the appropriateness in a particular zone of discretionary uses … '. Having regard to the Tribunal's findings that the proposed development is inconsistent with objectives (a), (b) and (c) of the zone, the transport depot that is proposed in this case is plainly inappropriate.
Will the proposed development have an adverse impact on the amenity of the locality?
In light of the Tribunal's analysis in relation to objective (c) of the General Rural zone above, the proposed development will clearly have an adverse impact on the amenity of the locality. In Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296, the Town Planning Appeal Tribunal observed at 304 that 'the determination of the amenity of the locality is a question of fact and consists of three parts: the existing amenity, the manner in which the proposed use will affect the existing amenity and the degree of impact on the locality'. The existing (and likely future) amenity is pleasantly rural and characterised by pastures with houses and farm buildings set well back from the highway. The manner in which the proposed development will affect the existing amenity is by introducing a large-scale urban development with very significant built form and very significant intensity of use into an otherwise generally rural environment. The proposed development would be entirely discordant in character and visually intrusive when viewed from adjoining and adjacent properties, Great Northern Highway and topographically higher properties on the eastern side of the road. The degree of impact on the locality would be significant and adverse because of the scale of the development, the intensity of use, and the location of the site at a topographically lower level than the properties to the east of the road.
Is the proposed development consistent with orderly and proper planning?
As the proposed development is inconsistent with objectives (a), (b) and (c) of the General Rural zone and is, therefore, inappropriate in its proposed location, it is not consistent with orderly and proper planning of the locality.
Road safety risk
The City called Mr Franz Winkler, a road safety auditor and consultant, to give evidence. Mr Winkler has 35 years' experience in road safety and crash investigation. He has undertaken over 100 fatal crash investigations for Main Roads WA and has carried out several hundred road safety audits, both in relation to road designs and existing roads, for Main Roads WA, various local government authorities and developers.
Mr Winkler recommended that a road safety audit should be undertaken before the proposed development is considered for approval. Mr Winkler pointed out that the entry to the proposed development is on the inside of a long curve from south to north. He explained that this physical road configuration would result in vehicles travelling north in the left hand lane being 'masked' from vehicles exiting the site and vice versa. Mr Winkler also gave evidence that the site distance for vehicles approaching the site from the south is 'marginal'. The Austroads Rural Road Design Guidelines utilise a two and a half second desirable reaction time. This reaction time equates to a stopping distance of 259 metres at a speed of 110 kilometres per hour. While the speed limit in this section of Great Northern Highway is 100 kilometres per hour, Mr Winkler explained that:
Because of the nature of the road, the long straights and sweeping bends, there is a high probability that vehicles will be travelling higher than the posted speed limit and I have allowed for a 10% increase over and above the posted limit as being the operating speed.
Mr Winkler also explained that it is significant that the proposed development would operate outside daylight hours and that there are no streetlights in the area. He said that the point of awareness for drivers may change at night so that a greater than two and a half second reaction time may be appropriate equating to a greater stopping sight distance. Mr Winkler said that, in light of the circumstances of the site and the nature of the proposed development, 'a road safety audit could show that [satisfactory] sight distances are not achievable without realigning … Great Northern Highway'.
Greenelm did not present any evidence from a witness with expertise in road safety. Rather, it relied on Mr Drescher's evidence that Greenelm's consultant engineers, Porter Consulting, had advised 'that there is good sight distance to the north along Great Northern Highway of some 600 metres, and in excess of 300 metres of clear sight distance to the south'. Mr Drescher and Mr Hardy also emphasised that, although consulted in relation to the proposed development, Main Roads WA did not require a road safety audit. Mr Hardy also submitted that, if the Tribunal is of the view that an audit is necessary or desirable, then that can be adequately dealt with by condition and should not result in refusal of the development application.
As the Tribunal has previously observed, it 'should, in relation to matters of public health and safety, adopt a precautionary approach': Fryer and City of Subiaco [2006] WASAT 199 at [103]; see also Hopkins & Anor and Town of Vincent [2007] WASAT 149 at [38] and Finlayson and City of Joondalup [2009] WASAT 47 at [33]. Having regard to Mr Winkler's experience and essentially uncontested evidence, the physical configuration of the road in the location of the site, the transport based nature of the development and its operation before and after daylight hours in an area without street lights, a precautionary approach to public safety requires a satisfactory road safety audit. Furthermore, in the context of a transport depot generating up to 180 vehicle movements per day in a high speed environment, road safety is a central aspect of the development, not merely an incidental aspect that can be lawfully and appropriately left as the subject of a condition of approval: see Phil Lukin Pty Ltd and Lowe Pty Ltd and Shire of Busselton [2006] WASAT 124 at [85].
The Tribunal finds that the proposed development, if otherwise acceptable, could not lawfully or appropriately be approved in the absence of a satisfactory road safety audit. However, if the application were otherwise acceptable, the Tribunal would have given Greenelm and JJ Hawkins & Co the option of obtaining and presenting a road safety audit within the context of the present proceeding. The Tribunal would only have allowed this if Greenelm had undertaken payment of the other parties' reasonable professional costs of reviewing and responding to the road safety audit and of any further hearing.
Impact on Mystica Arabians
Mr and Mrs McGlinn commenced Mystica Arabians as a hobby in 1994 with four Arabian horses and since then have developed it into an internationally awardwinning Arabian show horse stud, currently with about 30 Arabian horses. Mr and Mrs McGlinn have spent a significant amount of money in establishing and expanding their facility. Mrs McGlinn gave evidence that a wellbred Arabian horse can sell for between $300,000 and $5,000,000. One of their horses which they purchased in 2007 for $1,000,000 is now worth $10,000,000 on the international market.
Mr and Mrs McGlinn have also established a reproductive facility for the breeding of Arabian show horses on the part of their property to the west of Ellen Brook. All Mystica Arabians' horses are bred by artificial insemination. Mystical Arabians currently breeds up to 15 or 20 foals a year using both Arabian mares and nonArabian recipient mares which are used as surrogates. This year, 15 foals are expected at the stud, 12 from Arabian show horses carrying their own offspring and three from recipient mares. The breeding season is from August to February. After insemination at the facility, a pregnant mare is placed in the mares' paddock. Foaling takes place in the mares' paddock, usually between 12 pm and 6 am. Foals usually spend about five months with their natural or surrogate mother, at which time they are weaned and removed from the mares' paddock. As noted earlier in these reasons, the mares' paddock adjoins Great Northern Highway and is a short distance to the east of the southern prolongation of the runway at the Pearce RAAF base.
Mr and Mrs McGlinn called Mr Giacomo Capacci, a professional Arabian horse trainer based in Tuscany, Italy, who gave evidence by telephone. Mr Capacci has over 15 years' experience in training Arabian horses and has won a number of awards. Mr Capacci explained that the Arabian horse is 'one of the most intelligent and sensitive breeds'. He said that:
An Arabian can be easily shocked by the smallest things, such as the sound of a car or truck travelling alongside a fence. When shocked, an Arabian will react neurotically. It will not think about anything other than how to run away. Once a horse is shocked and starts running around, the other horses will follow. It often takes a while for all the horses to calm down.
In my 15 years of experience, I have seen many Arabians run through fences and injure themselves as a result of being shocked by loud and sudden noise.
Mr and Mrs McGlinn also presented evidence from Dr Mario Zerlotti, a veterinarian specialising in equine reproduction and embryo transfers and a judge of the Brazilian Association for Arabian Horses. Dr Zerlotti practises in Texas, United States of America and also gave evidence by telephone. Dr Zerlotti raised three concerns in relation to the impact of the proposed development on Mystic Arabians, namely, noise, light and dust. Dr Zerlotti's evidence was supported by that of Mr Todd Buckley, Mystica Arabians' stud manager.
In relation to noise, Greenelm and JJ Hawkins & Co commissioned Ms Rebecca Donovan, an acoustics engineer with Lloyd George Acoustics, to prepare a noise impact assessment report in relation to the proposed development. Mr and Mrs McGlinn commissioned Mr George Watts, an acoustics engineer with Herring Storer Acoustics, to undertake a peer review of the Lloyd George Acoustics noise impact assessment. Although Mr Watts initially raised a number of concerns and queries in relation to the noise impact assessment, following the conferral between the experts in the absence of the parties and their representatives, as required by the Tribunal's usual orders, in their joint witness statement, Mr Watts and Ms Donovan agreed that:
With the operational practices as described in the [Lloyd George] Acoustics report and the adoption of a noise management plan, it is considered that noise from the transportation depot can be managed to comply with the [Environmental Protection (Noise) Regulations 1997 (WA)], with the degree of noise control required to comply with the Regulations dependent on the assumptions of influencing factor calculations and the paddock location to the south.
Nevertheless, Mr Michael Hotchkin, counsel for Mr and Mrs McGlinn, crossexamined Ms Donovan at some length in relation to the methodology of the noise impact assessment. Ultimately, Mr Hotchkin's questioning exposed only one inadequacy, although not a significant one, namely, Ms Donovan's failure to include employees' cars in the analysis. We accept Ms Donovan's evidence that the noise impact assessment has modelled noise conservatively and the inclusion of employees' cars would not materially alter its results. An important point emphasised by Ms Donovan in her evidence was that the horses in the mares' paddock are already exposed to a high noise environment, with noise in the order of 60 dB(A), due principally to the major road adjoining the paddock, whereas the proposed development would result in exposure to noise in the order of 40 dB(A) over part of the mares' paddock. Ms Donovan also pointed out that ambient noise levels in this location do not differ significantly from day to day and that noise levels are relatively constant throughout the day up to 10 pm.
The key concern in relation to noise raised by Dr Zerlotti, Mr Buckley and Mr Capacci related to sudden impact noise. Greenelm relied on the evidence of Dr David Pascoe, a veterinarian specialising in equine reproduction, who practises in Queensland. In relation to sudden noises, Dr Pascoe gave the following evidence:
Well, I think if we understand the horse from its wild perspective, its survival depends entirely on a flight and fright mechanism. So when it hears a noise, its instinct is to move away from it. In doing so, it will also seek for higher ground, if it's available, and it does that, so it can then view what's made the noise. Now, a horse when it hears a noise will run. If you watch them[,] they will turn into the noise when they get away from it, to see what it was and what it was caused by. So they have both a hearing and a visual association with sounds. Once they associate the sight and the sound, then when they hear it again, they have a lesser response to it, and they eventually get to a point and this can be as quick as one day to where they're quite happy that the noise is no longer a threat to them. They then in a strange way, which I probably can't explain, that noise is filed away.
Dr Pascoe described this process as 'habituation' to noise and to types of noise. Prior to giving oral evidence, Dr Pascoe spent an hour and a quarter at the site. He noted that there was 'a very heavy volume of traffic' and that 'it's very noisy, certainly way noisier than you'd expect for most roads'. Dr Pascoe said that, despite the heavy noise, the horses in the mares' paddock 'basically didn't lift up their heads from grazing' and that 'they weren't affected by the noise'.
In the concurrent evidence panel discussion between Dr Pascoe, Dr Zerlotti and Mr Capacci, Dr Zerlotti essentially agreed with Dr Pascoe that horses in the mares' paddock would habituate to noises emanating from the proposed development within about a day. However, Dr Zerlotti said:
When it comes to a $1,000,000 foal, I think one day is way too much time for them to get hurt and for them to react, if they're going to, even if they're going to react and look back to see what it was. Any reaction to noise or any flight reaction for a young foal that's worth over $1,000,000[,] it's too much. If it's one day, if it's one reaction, or if it's one day of reaction, that's too much.
In response, Dr Pascoe gave the following evidence:
A newborn foal, if it gets a fright, the first place it will run to is its mother for support. It won't race around the paddock. They are bonded with their mothers. They run to their mothers and that's where they go. If the mother is happy with the sound, she'll stay still. The foal will settle. It would [be] an extremely rare event to see a foal take off on its own accord as a very young animal.
When asked whether, in his experience, Dr Pascoe's evidence in this respect applies to an Arabian show horse foal, Dr Zerlotti replied:
It can apply for most of the time, but some of them will do not and plus, what if it doesn't have a mother? What if it's a weany [weaned?] foal [whose mother] is not in the paddock?
Dr Pascoe's evidence in relation to the habituation of horses, including Arabian show horses, to noises was supported by Ms Donovan. Ms Donovan has 30 years' experience with horses, including Arabian horses. Ms Donovan has owned Arabian horses. She gave the following evidence:
Studies of animals, both native and domestic, tend to show that animals either habituate to or avoid man-made noise. Horses generally habituate to the noise, and as such[,] paddocks are often located within close proximity of heavily trafficked roads or rail corridors. In this case, the paddocks adjoin the Great Northern Highway, and the horses are frequently exposed to high vehicle noise levels, with trucks making up a high percentage of the overall vehicles.
The Tribunal is satisfied, on the evidence of Dr Pascoe, which was supported by the evidence of Ms Donovan and was ultimately essentially agreed with by Dr Zerlotti, that the likely impact of the proposed development on Mystica Arabians in terms of noise would not warrant refusal of the application. It is extremely unlikely that Mystica Arabians' horses would be injured responding to noises emanating from the proposed development, given the high noise environment, the propensity of horses to habituate to new noises within a day and the calming role of foals' mothers in the mares' paddock. Specifically in relation to Dr Zerlotti's residual concern, it is extremely unlikely that a foal that has been with its mother in the mares' paddock for five months would not have been exposed to the range of noises emanating from the development.
Furthermore, to the extent that there remained a difference of opinion between Dr Pascoe, on the one hand, and Dr Zerlotti, Mr Capacci and Mr Buckley on the other hand, the Tribunal prefers the evidence of Dr Pascoe. Unlike Dr Pascoe, Dr Zerlotti has never been to Mystica Arabians or the site and, therefore, does not have firsthand experience as to the nature of the locality and the noise environment. While Mr Capacci visited Mystica Arabians in December 2009, he said that there was 'not so much [traffic] when I was there'. Mr Capacci's experience of the local noise environment was clearly not characteristic, because he said that he had 'never seen a horse breeding or training farm, anywhere in the world, that was not located in a quiet place in the countryside' and that 'it is my view that [Mystica Arabians] was one of the best locations in the world to have a horse farm'. It appears that Mr Buckley's concerns were based to a large extent on having viewed the operation of another transport depot in which he heard 'very sharp, sudden noises'. However, based on Mr Hawkins' evidence and the assumptions made in the noise impact assessment, the operation viewed by Mr Buckley is not comparable to the proposed development.
In Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74 (2006) 150 LGERA 116, Barker J observed as follows at [52] [53]:
In Inghams Enterprises Pty Ltd v Kira Holdings Pty Ltd & Anor (1996) 90 LGERA 68, Cole JA held in the New South Wales Court of Appeal at [70] [71] as follows:
'It is not, however, any part of the function of [a development] authority (or the court when acting in substitution for the authority) … to be concerned, as his Honour was, with the prospect that the holder of the land adjoining the proposed development could or should be expected to make adjustments to its land use to accommodate the new development.'
It is fundamental to orderly and proper planning that a proposed development should generally provide appropriate mitigation for its impacts within its site and not require adjoining developments to 'make adjustments' (to borrow Cole JA's words) or limit the development potential of adjoining land below that reasonably contemplated by the zoning and planning controls. However, there are exceptions to this general principle, for example where the applicable zoning and planning controls reasonably contemplate certain impacts across boundaries (see, for example, Big Country Australia Pty Ltd and Shire of SerpentineJarrahdale [2006] WASAT 10 at [55] [59]) or use of public land or facilities either with or without payment (see, for example, Randall and Town of Vincent [2005] WASAT 129 at [128] [129]).
In our opinion, a further exception to this general principle is, such as in the present case, where a perceived impact is extremely unlikely to occur. It would, in itself, be contrary to orderly and proper planning to require a development to have to mitigate an extremely unlikely impact on an adjoining property.
Finally, in relation to noise, we note that, as the Tribunal said in Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100 (2005) 39 SR (WA) 119 at [39]:
Compliance with the [Environmental Protection (Noise) Regulations 1997] does not necessarily mean that the noise does not constitute an adverse impact on the existing amenity of the locality in a planning sense.
(See also Del Giacco and City of Melville [2008] WASAT 134 at [37]).
However, in the circumstances of this case, involving development on rural land adjoining a major highway, compliance with the Noise Regulations is reasonable and adequate to ensure that a proposed development does not have an unacceptable impact on acoustic amenity.
In relation to light, Mr Buckley gave evidence that, being lightsensitive, pregnant mares usually foal between 12 am and 6 am. He said that, during this time, it is important that the mare is not exposed to excessive light which may adversely impact upon the mare and unborn foal. Dr Zerlotti raised concerns about the impact of lighting on reproductive capacity more broadly. However, the area of the site that is proposed to be developed for the transport depot is set back approximately 100 metres from the common boundary with the mares' paddock. Furthermore, Ms Smith gave evidence that there are different shading options that can be employed to mitigate light spill. She referred to work that has been done in relation to the Gorgon gas project in the northwest of the State to mitigate light spill on endangered turtles. Finally, Dr Pascoe gave the following evidence in relation to the impact of light from the proposed development on horses in the mares' paddock:
So unless the lights were directly in the paddock and providing that level of light [about 200 lux], there would actually be no effect on the horses one way or the other. It wouldn't be detrimental to their reproductive performance and it wouldn't potentially help them either … It's off the paddock and it's actually separated by a good hundred metres, looking at the site. … so it would have nil effect.
The Tribunal is satisfied on this evidence that the proposed development would have an acceptable impact on Mystica Arabians in relation to light.
Finally, Dr Zerlotti referred to potential health problems for horses from dust. However, as Dr Pascoe emphasised, the area for the proposed development would be extensively paved and would be well separated from the common boundary. Based on Dr Pascoe's evidence, the Tribunal is satisfied that the proposed development would not give rise to an unacceptable impact on Mystica Arabians in terms of dust generation.
It follows that the likely impacts of the proposed development on Mystica Arabians would not warrant its refusal.
Conclusion
The proposed transport depot development warrants refusal in the exercise of planning discretion because, having regard to the objectives of the General Rural zone, the development is inappropriate in the zone and because it would have an adverse impact on the amenity of the locality. The development is neither a rural activity nor a compatible support service to meet the needs of the relevant rural community. Rather, the proposal involves an urban development, the principal focus of which would be to transport goods throughout a vast geographic area. Furthermore, the proposed development would prejudice rural amenities and would not promote the enhancement of rural character. The locality of the site has a rural character, although there are four nonagricultural uses on five properties within 1.25 kilometres of the site. The proposed development would prejudice rural amenities because of its urban character, the very significant scale of hardstand and buildings, the very significant intensity of the use, in terms of the number of vehicles and the hours of operation, and the prominence of the site in the landscape.
Orders
The Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision of the respondent made on 14 October 2009 to refuse development approval for a transport depot at No 2023 (Lot 20) Great Northern Highway, Bullsbrook is affirmed.
I certify that this and the preceding [82] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR D R PARRY, SENIOR MEMBER
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