| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : GREENWOOD and WESTERN AUSTRALIAN PLANNING COMMISSION [2010] WASAT 10 MEMBER : MS M CONNOR (MEMBER) HEARD : 4 & 5 NOVEMBER 2009 DELIVERED : 29 JANUARY 2010 FILE NO/S : DR 105 of 2009 BETWEEN : KARL STEPHEN GREENWOOD SUZANNE MICHELLE GREENWOOD
Applicants
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords: Town planning - Subdivision - Land zoned 'General Rural' - Sensitive land use - Located within 1,000 metre buffer area from quarry - Dust emissions - Health risks from dust exposure - Wind speed and direction - Dust exceedences - Precautionary principle - Departure from planning framework - Precedent - Access arrangement for landlocked portion of land - Costs Legislation: City of Gosnells Town Planning Scheme No 6, cl 4.2
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Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 239(2)(a), s 251(1)
State Administrative Tribunal Act 2004 (WA), s 46, s 47, s 48, s 48(1), s 87(1), s 87(2), s 87(3), s 88, s 88(1), s 88(2) Result: The application for review is dismissed
The decision of the respondent is affirmed
Each party is to pay its own costs of the proceedings Category: B
Representation: Counsel:
Applicants : Mr J Algeri (Representative)
Respondent : Mr S Allerding (Representative)
Solicitors:
Applicants : Algeri Planning & Appeals
Respondent : Allerding & Associates
Case(s) referred to in decision(s):
Citygate Properties Pty Ltd and City of Bunbury [2005] WASAT 53; (2005) 38 SR WA 246
Nicholls and Western Australian Planning Commission (2005) 149 LGERA 117
Shark Bay Tuna Farms Pty Ltd and Executive Director, Department of Fisheries (WA) [2005] WASAT 206
WA Developments Pty Ltd and Western Australian Planning Commission [2008] WASAT 260
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REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision 1 Mr and Mrs Greenwood applied to the State Administrative Tribunal for review of the decision of the Western Australian Planning Commission refusing approval to subdivide No 77 Hayward Road, Martin into two freehold lots of 1.0686 hectares and 7,162 square metres in area. 2 In essence, this case concerned whether subdivision of the subject land was acceptable given that it was located within the 1,000 metre buffer area from the Cemex quarry. 3 The Tribunal was not satisfied that there was sufficient evidence to dispel the concerns raised relating to the health risks associated with dust exposure from the quarry operation and considered that until such time as further studies had been undertaken in the vicinity of the subject land to demonstrate that a lesser distance than the 1,000 metre buffer area would not result in unacceptable health risk, the proposed subdivision should not be supported. 4 The Tribunal also determined that there was no cogent and adequate reason in the circumstances of this case as to why the planning principles that found expression in the relevant planning policies should be departed from and the proposal approved. The application for review was dismissed and the decision of the respondent affirmed. 5 Finally, the Tribunal rejected an application by Mr and Mrs Greenwood for the Western Australian Planning Commission to pay $4,200 in costs for additional work or loss of income incurred by its representative and witness. The Tribunal considered that its general approach in planning matters, under which each party pays its own costs, should not be departed from in the circumstances of this case and each party should pay its own costs.
Introduction 6 Mr and Mrs Greenwood (applicants) made an application to the Western Australian Planning Commission (respondent or WAPC), on 4 October 2007, for approval to subdivide No 77 (Lot 2) Hayward Road, Martin (subject land) to create two freehold lots. Proposed Lot 1 is 1.0686 hectares in area and has a 70.44 metre frontage to Rushton Road. Proposed Lot 2 is 7,162 square metres, has a 69.42 metre frontage to Hayward Road and includes a small portion of land (1,265 square metres) (Page 4)
on the south east side of a drainage reserve that dissects the proposed lot (refer to Attachment 1). 7 The respondent refused the application on 26 February 2009 for the following reasons: 1. The application proposes the intensification of a sensitive land use, as defined by State Planning Policy 2.4, within 1000 metres of a basic raw materials extraction area. The policy states there should be a presumption against the introduction of sensitive land uses which could be adversely affected by existing or potential future extractive industries unless appropriate measures can be taken to ameliorate the adverse impacts. 2. The subject land is located within a 1000 metre buffer area defined in the City of Gosnells Foothills Rural Strategy in which the intensification of sensitive land uses is opposed. 3. Approval of the application would be in conflict with the above guidelines and policies and would set an undesirable precedent for the further subdivision of land in the locality and intensification of sensitive land uses. 8 The respondent also provided the following advice to the applicants: 1. As a result of a recent study into the impacts of dust emissions from the Cemex (formerly Readymix/Rinker) quarry the Western Australian Planning Commission has resolved to maintain a 1000 metre buffer around the quarry operation area. Any proposals for the introduction or intensification of sensitive land uses within the buffer area will require the proponent to demonstrate that both impacts from and to the relevant quarry operation are managed to the satisfaction of relevant authorities. The study showed dust emission levels in the study area exceeded national standards established by the Environmental Protection Council. The recommendations made and adopted by the Western Australian Planning Commission were supported by the Department of Environment and Conservation and the Department of Health. 9 The applicants, on 24 March 2009, made application under s 251(1) of the Planning and Development Act 2005 (WA) (PD Act) to have the decision reviewed. (Page 5)
Subject land 10 The subject land is more particularly described as Lot 2 on Diagram 49777 comprised in Certificate of Title Volume 1436 Folio 988 and is 1.7848 hectares in area. 11 The subject land is rectangular in shape with dual frontage to Hayward Road and Rushton Road. A narrow watercourse, known as Ellis Brook, traverses the subject land. Ellis Brook lies inside a drainage reserve that is 45 metres wide, splitting the subject land into two distinct areas. A small footbridge on the subject land provides pedestrian access over Ellis Brook. 12 Improvements on the land include a dwelling and two sheds, located on the portion of land fronting Hayward Road amongst some mature and small tress and a small horse stabling facility, located south of Ellis Brook. 13 A power line easement running in a northsouth direction over the subject land is granted to the former State Electricity Commission of Western Australia. The land within this easement is vacant other than an existing power pole that supports above ground power lines, which is located near the drainage reserve. This easement would restrict development on the proposed lots. 14 The subject land is situated between 750 metres and 1,000 metres from an existing hard rock quarry to the south and southeast, which is currently operated by Cemex. The quarry operation involves extraction, crushing and stockpiling.
Planning framework 15 The subject land is zoned 'Rural' in the Metropolitan Region Scheme (MRS) and 'General Rural' under the City of Gosnells Town Planning Scheme No 6 (TPS 6 or Scheme), as are surrounding properties. Nothing in either the MRS or TPS 6 prohibits the subdivision of the subject land. TPS 6 does not make any specific provision for rural subdivision or recommend a minimum lot size for the 'General Rural' zone. The objective of the 'General Rural' zone, at cl 4.2 is: To provide for a range of rural pursuits which are compatible with the capability of the land and retain the rural character and amenity of the locality. (Page 6)
16 The respondent and the City of Gosnells (City) have prepared a number of planning instruments that are relevant in the consideration and determination of this matter, and include the following: i) MRS and TPS 6; ii) Statement of Planning Policy No 1: State Planning Framework (SPP 1) - This policy unites existing State and regional policies, strategies and guidelines within a central framework to provide a context for decisionmaking on land use, subdivision and development in Western Australia. It informs decisionmakers in the planning process on those aspects of State level planning policy which are to be taken into consideration, and given effect to, in order to ensure integrated decisionmaking across all spheres of planning. The plans, policies and strategies that form the State Planning Framework are listed in Part B of SPP 1. The relevant policies listed in SPP 1 are: • Statement of Planning Policy No 2.4 - Basic Raw Materials (SPP 2.4) - This policy sets out the matters which are to be taken into account in considering zoning, subdivision and development applications for extractive industries and zoning, subdivision and development applications in the vicinity of identified basic raw material resource areas. The parties agreed that the Cemex quarry is identified as a key extraction area in this policy. Before determining an application for a sensitive land use, such as residential or rural residential within 1,000 metres of a basic raw material extraction area, cl 6.3.2 of SPP 2.4 requires that the Commission and/or local government consider: • the significance of the resource in terms of whether it is a key extraction area, priority resource area or extraction area; and • the likely effects of vehicular traffic, noise, blasting, dust and vibration arising from the extractive industry on the proposed use or development. (Page 7)
Clause 6.3.2 further states that 'there should be a presumption against the introduction of sensitive land uses which could be adversely affected by existing or potential future extractive industries unless appropriate measures can be taken to ameliorate the adverse impacts. • Statement of Planning Policy 4.1 - State Industrial Buffer Policy (SPP 4.1) - One of the objectives of this policy is to protect industry, infrastructure and special uses from the encroachment of incompatible land uses (cl 1(2)). Clause 2 of the SPP 4.1 sets out principles which relevantly include: (1) Industries, infrastructure and special uses requiring off-site buffer areas are an important component of Western Australia and are essential for the maintenance of our quality of life. These facilities and associated buffer areas must be planned for. … (3) Once an off-site buffer area is defined, the boundary should not be varied unless justified in a scientifically based study (eg the impacts of industry/infrastructure should be maintained within the buffer and it should not be encroached upon by sensitive uses) (also referenced in cl 4.5). (4) It is essential that once an off-site buffer is defined, it must be recognised in a town planning scheme. … Clause 3.2 of SPP 4.1 identifies that offsite buffer areas may be required for resource processing industry and extractive industry. One of the identified reasons for defining and securing of off-site buffer areas is to ensure that the buffer provides adequate protection for the interests of surrounding landowners. The implementation section of SPP 4.1 refers to a Generic Industrial Buffer Distance Review by the (Page 8)
Department of Environmental Protection, and states that this, together with the Appendices to the policy, form the primary guide to the need for buffers. The Environmental Protection Authority (EPA) has adopted Guidance for the Assessment of Environmental Factors (Guidance Statement No 3) - Separation Distances between Industrial and Sensitive Land Use (June 2005) (GS No 3). Clause 3.2 of GS No 3 explains that it was prepared to complement and assist the implementation of SPP 4.1. GS No 3 provides advice on the use of generic separation distances or buffers between industrial and sensitive land uses to avoid conflicts between incompatible land uses. Appendix 1 of GS No 3 lists industries, identifies impacts under the headings of 'gaseous', 'noise', 'dust', 'odour' and 'risk', and sets down a buffer, distance in metres. Noise, dust and risk are identified as impacts for the industry 'Extractive industries - hard rock, Darling Scarp' and a 1,000 metre buffer distance is identified as the default separation distance in the absence of site specific technical studies. Clause 4.4.1 of GS No 3 provides that: Where the separation distance is less than the generic distance, a scientific study based on site- and industryspecific information must be presented to demonstrate that a lesser distance will not result in unacceptable impacts. Clause 4.4.3.2 of GS No 3 further states that: Where a separation under consideration is less than in the table, it is recommended that a new project does not proceed in the absence of site-specific investigations and a report demonstrating that the separation distance will meet acceptability criteria and that enforceable management techniques will be applied to ensure an appropriate environmental outcome. • Statement of Planning Policy No 2.5 - Agriculture and Rural Land Use Planning (2002) (SPP 2.5) - This policy applies to all rural land in (Page 9)
Western Australia. The implementation of the four key objectives embodied in SPP 2.5 is envisaged through the preparation of planning schemes, local planning strategies and policies. This policy together with Development Control Policy DC 3.4 - Subdivision of Rural Land (DC 3.4) forms the basis for determining applications for the subdivision of rural land. • DC 3.4 - Subdivision of Rural Land - DC 3.4 sets out the principles that are to be used by the respondent in its determination of applications for the subdivision of rural land. This policy guides the subdivision of rural land to achieve the four key objectives of SPP 2.5. The policy advocates that the subdivision of rural and agricultural land for closer settlement and more intensive agricultural uses should be properly planned through the preparation of regional and local planning strategies and provided for in local planning schemes prior to subdivision (cl 3.1). iii) Draft City of Gosnells Foothills Rural Strategy (2004) (draft FRS or Strategy) - This strategy has been adopted by the City of Gosnells (City) but has not, as yet, been endorsed by the WAPC. The draft FRS has been prepared taking into account the regional policies mentioned above, and provides a link between the regional objectives and the local planning that is required to provide and manage the implementation of these objective. In particular, SPP 4.1 and SPP 2.4 have been used to assist in determining the buffer area around the Cemex quarry and a 1,000 metre buffer area has been applied. Figure 8C of draft FRS identified the Operation Buffer and Memorial Area for the Cemex quarry (refer to Attachment 2). The Strategy does not support the subdivision of land within the buffer areas due to the potential for impacts on sensitive uses. The subject land is located within the buffer area and in 'Rural Planning Precinct No 3 Tonkin Highway East' (Precinct 3). Lots of less than 1.0 hectares are not supported in this precinct. The draft FRS identifies objectives and corresponding strategies for each of the (Page 10)
identified precincts. The relevant objective and corresponding strategies that relate to Precinct 3 and therefore the subject land are as follows: Objective 4 - To protect and manage land uses within the Precinct. Strategies - … 2. Recommend a minimum lot size of 1.0 ha; … 5. Minimise the potential for land use conflicts through the appropriate location of land uses. 6. Not support any sensitive use within a quarry buffer area. …
Issues 17 The following four principal issues arise for determination in relation to this matter: 1) Whether the proposed subdivision is acceptable given that it is located within the 1,000 metre buffer from the Cemex quarry as identified in SPP 2.4, SPP 4.1 and the EPA's Guidance of the Assessment of Environmental Factors - Separation of Distances between Industrial and Sensitive Land Uses. 2) Whether the proposed subdivision is inconsistent with SPP 2.5, DC 3.4 and draft FRS, and if so, should the policies be departed from in the circumstances of this case. 3) Whether the proposed subdivision will set an undesirable precedent for subdivision of sensitive land within the 1,000 metre quarry buffer. 4) Whether the proposed subdivision is consistent with orderly and proper planning. 18 The Tribunal will address each of these issues in turn. The Tribunal was assisted by a view of the subject land during the course of the hearing. (Page 11)
Whether the proposed subdivision is acceptable given that it is located within the 1,000 metre buffer area from the Cemex quarry as identified in SPP 2.4, SPP 4.1 and the EPA's Guidance of the Assessment of Environmental Factors - Separation of Distances between Industrial and Sensitive Land Uses 19 The respondent asserted that it is not appropriate, in this instance, to depart from the soundly based planning framework that has been formulated to protect existing and future extractive industries from the encroachment of incompatible land uses. This framework advocates a presumption against subdivision within a defined buffer area unless it can be scientifically demonstrated that a lesser distance will not result in unacceptable impacts. The respondent maintained that the applicants failed to demonstrate scientifically that a lesser distance is acceptable and contended that the risk associated with dust emanating from the quarry was of sufficient concern to warrant refusal of the application. 20 The respondent relied on the results of dust monitoring within the quarry buffer from the following two sources: (Page 12)
21 The applicants contended that the sitespecific circumstances of the subject land supported departure from the planning framework as the additional lot resulting from the proposed subdivision would not be adversely affected by the quarry operations as the subject land is located to the north of the quarry on the outer limits of the 1,000 metre buffer area and is less likely to be affected by dust emissions due to the prevailing east-southeast winds in the locality. The applicants submitted that sitespecific testing or monitoring was not necessary for this application to be approved as the likely impacts of the quarry on the subject land could be extrapolated from existing monitoring data. 22 The parties called a number of experts to give evidence on buffer distances, dust emissions, air quality, wind patterns and health risks. The respondent called Dr Martin Matisons, who is Principal Toxicologist of Environmental Health Hazards Unit of Department of Health WA and Ms Constance Dewan, a Senior Environmental Officer of Department of Conservation and Environment (DEC). Mr Neil Salisbury, who is an environmental consultant with 13 years experience, was called on behalf of the applicants. 23 Dr Matisons told the Tribunal that inert dust particles will impact on 'sensitive receptors' and that there is substantial evidence demonstrating the link between exposure to PM and increased risk of cardiac and respiratory disorders. He explained that particles larger than PM10 are usually caught in the nose and throat and expelled, while PM10 and smaller particles are breathed into the lungs and that health effects are seen at very low levels and increase steadily as the particle concentration increases. He also explained that measuring PM10 in ambient air provided a good approximation of the exposure of a population to outdoors PM and that one method of reducing community exposure to dust emission was through the implementation of buffer zones for known polluters, such as extractive industries. 24 Ms Dewan, in her witness statement, explained the rationale for buffers as follows: Buffers are designed to prevent industrial activities and sensitive receptors from encroaching in close proximity to each other so as to prevent health and nuisance impacts on sensitive receptors that may arise from industrial activities. The buffers must not only consider current emissions but must also consider impact of proposed future expansion at the quarry sites. Encroachment of sensitive receptor on the buffer may limit the potential of the quarry to complete planned expansion. (Page 13)
It is important to recognise that dust from the quarries can travel well beyond the buffer and that the buffer does not mark a sharp transition between acceptable impact and unacceptable impact but was designed as the best estimate at which impacts from an industry can be acceptably managed. 25 Mr Salisbury argued that the 1,000 metre buffer distance was a generic buffer that there had not been any studies done to define a region specific buffer distance and as such, the buffer was not accurate as it did not take into account a number of parameters within the study area. He submitted that generic buffer distances should only be used as a tool with additional site/regionalspecific buffer definition studies undertaken to identify risks and define an appropriate buffer. Ms Dewan pointed out that GS No 3 recognises that the buffer distances specified are generic distances and provides for a reduction in buffer distances if scientific evidence is produced that demonstrates a lesser distance will not result in unacceptable impacts. As there had been no sitespecific evidence produced by the applicants, Ms Dewan was not able to support a reduction in the buffer distance as there was no certainty as to the impacts of the quarry on the subject land. 26 The experts agreed that the potential sources of dust from the quarry included the open pit (haulage, loading, blasting and pit retention), the processing plant (crusher, conveyors and load out), stockpiles and haulage roads. The experts also agreed that the wind direction that would have the most impact on the subject land, in terms of dispersing dust from the quarry operation, was the arc from the south to the southeast. It was further agreed that Site 2 was more representative of the wind conditions at the subject land than the other two monitored sites. 27 The monitoring data gathered from Site 2, for the period December 2004 to June 2006, showed that PM10 concentrations were not in compliance with the National Environment Protection Measure (NEPM) standard of 50 micrograms per cubic metre being exceeded less than the goal of five times in one year, for the calendar years of 2005 and 2006. According to the data, exceedences were recorded 10 times during 2005 and seven times in 2006. The conclusion drawn in the Gosnells Dust Study was that existing background particulate sources influenced PM10 concentrations measured at Site 2. The data collected by DEC for Site 2 from December 2007 to August 2009 showed seven exceedences in 2008 and one in the calendar year 2009 to August. 28 Mr Salisbury viewed the reduction in the 2009 exceedences as a positive and argued that such a dramatic reduction could be due to both (Page 14)
prevailing conditions and better management of the quarry operations. He also submitted that a number of the exceedences experienced at Site 2 during the 2005/2006 periods were due to regional emissions such as bushfires and planned burns rather than source specific activities. It was accepted that the exceedences experienced in 2008/2009 were not related to any bush fire events. In response, Ms Dewan pointed out that the data collected for 2009 was not for the full calendar year and therefore could not be relied upon and that it could not be assumed that as there were no exceedences at a particular site, that there were no exceedences else in the buffer area. As far as bush fires and the like contributing to some the exceedences in 2005/2006, Ms Dewan agreed, but explained that the intent was to manage cumulative emissions and their impacts on a sensitive receptor and therefore, the NEPM goal of five allowable exceedences per year allowed for extreme natural events such as bush fires and should not be used as a goal for individual industries. 29 The Gosnells Dust Study analysed wind speed and direction for all three monitoring sites and found that: … Site 1 (Background) and Site 2 (School) exhibit very similar wind speed throughout the morning but differ quite dramatically during the afternoon, Lower wind speeds were experienced throughout the day at Site 3 (Boundary). … [t]he predominant wind regime consists of south-southeast in the morning, then shifting through the southerly quadrants in the afternoon to a south-southwesterly at 3 pm, and heading back towards the southsoutheast at 8 pm. This type of day constitutes by far the majority of days recorded during the monitoring period. In addition, it can be seen that both Site 1 (Background) and Site 2 (School) exhibited very similar wind patterns throughout the morning but differed quite dramatically during the afternoon. 30 Figures 8.2 and 8.3 contained in the Gosnells Dust Study graphically illustrate, by hour of the day, wind speed and direction for the three monitoring sites. Figure 8.2 indicates that the wind speeds for Site 2 are fairly consistent from 1 am to 5 pm, at around 3.2 metres per second, then falling to about 2.2 metres per second at 8 pm and increasing again to 3.2 metres per second between 8 pm to 12 midnight. Figure 8.3 indicates that the predominant wind direction for Site 2 consists of southsoutheast winds in the morning shifting to south in the afternoon and early evening, and back to the southsoutheast at around 8 pm. 31 Ms Dewan also provided seasonal and annual wind roses, and wind roses for days when exceedences were recorded for the 2008/2009 (Page 15)
monitoring period for Site 2. The wind roses clearly showed that the predominant and strongest winds were from the east (towards Site 2) with wind speed and frequency in the arc from the south to the south-east (toward the subject land) relatively low in frequency and strength in comparison. Mr Salisbury argued that given the winds that affect the subject land are significantly less in frequency and intensity than the winds that affect Site 2, it is likely that the subject land will experience lower dust emissions than Site 2. He further submitted that the terrain and vegetation between the subject land and the quarry would further assist in diluting the dispersion of dust toward Lot 2. 32 Ms Dewan submitted that the monitoring data shows that there are periodic dust excursion from the quarry into the nearby community and that the evidence relating to wind direction indicates that there is potential for exposure of the subject land to dust from the quarry, particularly in the summer months when there is very dry conditions and higher potential for exposure. She accepted that the impacts from the quarry on the subject land may be less than those experienced at Site 2 but stressed that without monitoring in the vicinity of the subject land there was no certainty. She considered that until further monitoring had been undertaken in the vicinity of the subject land to demonstrate that there would be no unacceptable exceedences, the buffer distance should stand. 33 Dr Matisons submitted that based on the current scientific evidence on the adverse health effect of dust, the available dust monitoring data from the quarry and the available exposure information there was insufficient information to warrant a conclusion of no acceptable risk within the buffer zone. He considered that as there was uncertainty in relation to the effect of dust exposure on the residents living in the buffer zone, the precautionary principle should be observed and further subdivision of land within the 1,000 metre buffer zone should not be supported. 34 The applicants referred to a number of previous decisions by various bodies, dating from 2004 to 2007, relating to similar applications for subdivision of land within both the Cemex and Boral buffer areas. These previous cases, although helpful in providing historical context to decisionmaking in this area, highlight the lack of scientific evidence and understanding of the effects of the dust emissions from the existing quarries on the surrounding environment. This case is different in that there has been a serious attempt at analysing the available monitoring data to extrapolate the impacts of dust exposure from the quarry on the subject land. (Page 16)
35 The Tribunal considers that there is some merit in Mr Salisbury's argument that there is likely to be less exposure to dust from the quarry at the subject land than at Site 2. However, as there has been no monitoring of the land to the north/north-west of the quarry (in the direction of the subject land), there is no certainty as to the level of exposure of dust from the quarry on the subject land and no ability to assess the potential health risks to residents. In addition, the evidence collected from the Gosnells Dust Study and the DEC monitoring of Site 2 clearly suggests that there is potential for exposure of the subject land to dust from the quarry operations. Further, there is no doubt that there are health risks associated with exposure to PM10 particulates, even at relatively low levels and therefore the risk posed is both serious and in practicable terms, irreversible, since once the land is subdivided the owner of the newly created lot would have a right to erect a dwelling on that lot. Given the scientific uncertainty as to the health risks from exposure to dust particulates emanating from the quarry, application of the precautionary principle (see WA Developments Pty Ltd and Western Australian Planning Commission [2008] WASAT 260) would suggest refusal of the application. In this instance, it is not that the proposed development might cause some as yet undefined risk to the physical environment, but that by allowing the subdivision occupants of any subsequent development on the land may be exposed to unacceptable levels of dust emissions from the quarry which would result in increased health risks. Even without regard to that principle, the Tribunal is not satisfied that there is sufficient evidence to displace the environmental concerns relating to the dust exposure and until such time as further studies are undertaken in the vicinity of the subject land to demonstrate that a lesser distance than the 1,000 metre buffer area will not result in unacceptable health risks, the proposed subdivision should not be supported.
Whether the proposed subdivision is inconsistent with SPP 2.5, DC 3.4 and the draft FRS, and if so, should the policies be departed from in the circumstances of this case 36 In light of the Tribunal's findings in relation to the first issue, it is strictly unnecessary to consider the remaining issues. However, as considerable evidence and submission was directed to these issues, the Tribunal will address them. 37 The regional planning framework supports a presumption against subdivision of rural land unless it is specifically provided for in a town planning scheme, an endorsed local planning strategy or an endorsed local rural strategy. The draft FRS has not, as yet, been endorsed by the (Page 17)
respondent, but has advanced sufficiently in the planning process to be considered, by the parties and the Tribunal, as a 'seriously entertained' planning proposal. 38 While the draft FRS recognises the possibility for further subdivision in Precinct 3 (minimum 1 hectare lot size), support is contingent on land capability/suitability and buffer areas. The draft FRS does not support any sensitive use within the quarry buffer area. No evidence was provided by either party in relation to land capability/suitability. Further, the proposal is inconsistent with the strategies identified for objective 4 of Precinct 3 for the following reasons: 39 Setting aside the findings in relation to issue 1 above, the question here is whether the substantive merits of this particular case support a departure from SPP 2.5, DC 3.4 and draft FRS. 40 Mr Carter, a planning consultant engaged to give evidence on behalf of the applicants, considered the subject land to be unique and distinguishable from other lots in the locality due to the existence of the drainage reserve that traverses the subject land. Mr Carter submitted that if it was not for the drainage reserve, which is a result of ad hoc planning by the City of Gosnells in an effort to provide a walking trail to Ellis Brook Falls, then the subdivision of the subject land would meet the recommended lot size for Precinct 3. He also argued that although the lot size of proposed Lot 2 is less than the recommended lot size, the visual impact would be same as other lots in the locality as the drainage reserve would form part of the wider landscape associated with the lot and would not detract from the rural amenity or landscape character of the locality. Furthermore, he considered the proposed subdivision to be consistent with the settlement patterns of the street block. 41 In relation to the buffer requirements, Mr Carter argued that although the subject land was located on the outer extent of the buffer area as identified in the draft FRS, the buffer distance should not be treated as an 'impenetrable wall' and a flexible approach should be adopted in its (Page 18)
application, taking account of the prevailing winds in the locality and the dust monitoring evidence. He considered that placing a memorial on the titles notifying future owners that the lots are within 1 kilometre of a quarry would be appropriate as 'the quarry is not visible from the subject [land] and there are too many assumptions to conclude that there are known dust impacts on the subject [land]'. 42 On this issue, the Tribunal is of the view that if the subdivision was contingent only on a reduction in the lot size recommendation, there may be an argument to depart from the planning framework and support the application. However, the draft FRS clearly advances the regional policies of protecting key extractive industries from conflicting land uses by ensuring that sensitive uses that could be adversely affected by the quarry are not located within the identified buffer areas. The subdivision is clearly inconsistent with this objective and there is no cogent and adequate reason, in the circumstance of this case, to support a departure from the current planning framework and support a further sensitive use within the quarry buffer area.
Whether the proposed subdivision will set an undesirable precedent for subdivision of sensitive land within the 1,000 metre quarry buffer 43 The circumstances in which precedent is a relevant consideration in a planning assessment has been detailed in Nicholls and Western Australian Planning Commission (2005) 149 LGERA 117 (Nicholls) at [74]. 44 Although the applicants argued that there is limited potential for further subdivision and development in the locality, the evidence indicates that there are several other lots in the immediate vicinity of the subject land that are subject to the same planning framework as the subject land, where a similar type of application to that which is now before the Tribunal could be proposed. The Tribunal is of the view that in this case, each of the criteria as set out in Nicholls is met; the proposed subdivision, for the reasons expressed above, is 'not unobjectionable' and given the lot sizes in the immediate locality, there is more than a mere chance or possibility that there may be later undistinguishable applications. Therefore, adverse planning precedent is a relevant consideration and as such the subdivision should not be supported. (Page 19)
Whether the proposed subdivision is consistent with orderly and proper planning 45 The respondent contended that the lot configuration was undesirable and contrary to orderly and proper planning as the subdivision, due to the dissection of proposed Lot 2 by a drainage reserve, results in the creation of a portion of the lot that is landlocked without legal access arrangements being established for that portion of land. 46 Mr Carter explained that the reason for the subdivision as shown was to enable the existing stable, which is located south of the drainage reserve, to be included with the existing dwelling on proposed Lot 2. It was Mr Carter's understanding that the drainage reserve was reserved for 'Recreation' under TPS 6 and that reservation would provide some legal access rights to the owner of the subject land. He later admitted that the drainage reserve was in fact zoned 'General Rural' under TPS 6 and conceded that the owners of Lot 2 would not have exclusive use or rights over the drainage reserve. 47 The Tribunal shares the respondent's concerns and considers the subdivision to be contrary to orderly and proper planning as insufficient arrangements have been made to ensure legal access to the landlocked portion of Lot 2.
Costs 48 The applicants seek an order that the respondent pay $4,200 for a total of 21 hours additional work or loss of income stemming from the events that followed after the matter was programmed for final hearing by the Tribunal. The applicants expressed their application for costs against the respondent with reference to s 88 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) and cited the following subsections of s 48(1) of the SAT Act: (a) failing to comply with an order of direction of the Tribunal without reasonable excuse; ... (c) asking for an adjournment the need for which is attributed to a failure described in paragraph (a) or (b); (d) attempting to deceive another party or the Tribunal; (e) vexatiously conducting the proceeding. (Page 20)
49 The applicants contended that the respondent acted in a manner that was prejudicial to the applicants, in seeking a delay in the preparation of documents in order for the Statutory Planning Committee of the respondent to reconsider the reviewable decision and then not presenting a report to that committee. The applicants submitted that the action taken by the respondent resulted in additional work and loss of income by the applicants' agent and witness. Further, the applicants claimed that the application by the respondent under s 239(2)(a) of the PD Act, seeking a direction from the President that the parties may be represented by a legal practitioner was a frivolous and opportunistic application. 50 The application for costs under s 88 of the SAT Act is misconceived, as s 88(1) makes plain, s 88 is concerned with 'costs of, or incidental to, a proceeding of the Tribunal, other than costs of a party' (emphasis added). Section 88(2) confers power on the Tribunal to order that a party pay all or any of these costs. In other words, s 88 enables the Tribunal to make an order requiring a party to pay the Tribunal's cost of a proceeding, not another party's cost of a proceeding and as such, the reference to s 46, s 47 and s 48 under s 88 is not relevant in determining costs against another party. 51 The applicants' application for cost against the respondent is made in effect, pursuant to s 87(2) of the SAT Act. 52 Section 87(1) of the SAT Act provides that, unless otherwise specified in that Act, the enabling Act or an order to the Tribunal, parties bear their own costs in Tribunal proceedings. However, s 87(2) of the SAT Act confers a discretion on the Tribunal to make an order for the payment by a party of all or any of the costs of another party, unless otherwise specified in an enabling Act. The relevant enabling Act, the PD Act, does not restrict the discretion conferred by s 87(2) of the SAT Act. Where costs are to be awarded, the Tribunal may also make an order for compensation in accordance with s 87(3): The power of the Tribunal to make an order for the payment by a party of another party includes the power to make any order for the payment of an amount to compensate the other party for any expenses, loss, inconvenience, or embarrassment resulting from the proceeding was brought. 53 The Tribunal's established practice in relation to the exercise of its discretion as to costs in review proceedings is that normally each party should bear its own costs of the proceedings: Citygate Properties Pty Ltd and City of Bunbury [2005] WASAT 53; (2005) 38 SR WA 246; Shark (Page 21)
Bay Tuna Farms Pty Ltd and Executive Director, Department of Fisheries (WA) [2005] WASAT 206. 54 Although the actions of the respondent resulted in a relatively small increase in the amount of hours expended by the applicants' representatives, the delaying of the preparation of the Statement of Issue, Fact and Contention (SIFC) by the respondent was consensual and did not jeopardise the final hearing dates. It was open to the applicants to press for the preparation of the SIFC by the respondent allowing the applicants to proceed with their case as planned, while the respondent was reviewing its position in relation to the matter. On the face of the submissions, the Tribunal considers there was a genuine review of the matter by officers of the Department for Planning. 55 The Tribunal does not support the applicants' claim for costs for the additional work undertaken by their representative in defending the s 239(2) application made by the respondent. The respondent was entitled to raise the issue and have the President determine whether the parties may be so represented. Although the President did not form the opinion that the planning issues in this application warranted representation by a legal practitioner, the Tribunal does not consider the application made by the respondent to have been unreasonable given the issues that where agitated by the parties. 56 The Tribunal does not consider that it should depart from its usual practice in relation to costs in the circumstances of this case and that each party should pay its own costs.
Orders 57 For the above reasons, the Tribunal makes the following orders: (Page 22)
Attachment 1 (Page 23)
Attachment 2 (Page 24)
Attachment 3 |