Hanson Construction Materials Pty Ltd and City of Vincent - [2017] WASAT 156

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: HANSON CONSTRUCTION MATERIALS PTY LTD and CITY OF VINCENT [2017] WASAT 156

MEMBER: JUDGE D R PARRY (DEPUTY PRESIDENT)
MR P DE VILLIERS (MEMBER)

HEARD: 16, 17, 20 AND 21 NOVEMBER 2017

DELIVERED : 13 DECEMBER 2017

FILE NO/S: DR 229 of 2017

BETWEEN: HANSON CONSTRUCTION MATERIALS PTY LTD
Applicant
AND
CITY OF VINCENT
Respondent

FILE NO/S :DR 235 of 2017

BETWEEN :HOLCIM (AUSTRALIA) PTY LTD
Applicant
AND
CITY OF VINCENT
Respondent

Catchwords:

Town planning Development applications Concrete batching plants East Perth 'Call in' by Minister for Planning Tribunal report and recommendations to Minister Concrete batching plants in operation at or near sites for 50 years and 30 years Plants relocated in 1996/1997 owing to resumptions for construction of Graham Farmer Freeway and approved to operate for 16 years and then for a further five years Local planning framework outdated Five year approvals for operation of concrete batching plants granted in 2012 in order to enable finalisation of strategic and statutory planning framework for sites and locality Whether permanent approvals should be granted Whether draft local planning framework proposing to zone sites 'Special Use' for 'Concrete Batching Plant' sufficiently final and certain for Tribunal to recommend permanent approvals Whether term of approvals should be extended beyond 16 October 2018 and, if so, what term should be imposed Appropriate period for finalisation of local planning framework and for relocation of concrete batching plants to ensure continuity of supply of concrete to Perth Central Business District if local planning framework will zone sites for residential or mixed use development Tribunal informed after hearing and before publication of the report that acting Minister for Planning decided to zone sites 'Mixed Use' with 'Concrete Batching Plant' only permitted as an 'Additional Use' until 30 June 2024 Parties indicated that they did not wish to make any further submissions and that acting Minister for Planning's decision is evidence before Tribunal

Legislation:

City of Perth City Planning Scheme No 2
Draft City of Vincent Local Planning Scheme No 2, cl 4.16, Sch 4, Map 4
East Perth Development Scheme, cl 5.3, cl 5.18.1, cl 5.18.2
Metropolitan Region Scheme
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), reg 10(2), reg 10(4), Sch 1 (model provisions), cl 4, cl 16, cl 21, Sch 2 (deemed provisions), cl 67(a), cl 67(b)
Planning and Development Act 2005 (WA), s 87(2), s 87(4), s 245(2), s 246, s 246(1), s 246(2), s 246(2)(b), s 252(1), s 257A(2), s 257A(3), s 257B(2)
State Administrative Tribunal Act 2004 (WA), s 27(2), s 51(1)

Result:

Tribunal recommended to Minister for Planning to vary time limit on development approvals (Condition 1) from 16 October 2018 to 13 December 2025 and to delete and substitute condition concerning environmental management plans (Condition 3) to require annual reviews and inclusion of any addenda necessary to address specific matters identified by operator or City of Vincent between annual reviews

Summary of Tribunal's decision:

Hanson Construction Materials Pty Ltd and Holcim (Australia) Pty Ltd have operated concrete batching plants in East Perth for 50 years and 30 years, respectively. Time limited development approvals were granted for the operation of the plants in 1996 (by the East Perth Redevelopment Authority) and in 2012 (by the Minister for Planning, on the recommendation of the Tribunal).
Hanson and Holcim each applied to the City of Vincent for permanent development approvals for the operation of the plants. The City granted time limited development approvals expiring on 16 October 2018 and imposed other conditions. Hanson and Holcim each sought review by the Tribunal of the City's decision in relation to their development application. They each sought permanent development approvals or, alternatively, an extension of the term of their approval. They also sought the deletion and replacement of a condition concerning an environmental management plan with a condition also requiring annual reviews of the environmental management plan and the inclusion of addenda necessary to address matters identified between annual reviews.
The Minister for Planning, the Hon Rita Saffioti MLA, formed the opinion that each of the applications for review raises issues of such State and regional importance that it would be appropriate for it to be determined by the Minister. The Minister therefore 'called in' both applications for review under s 246(2) of the Planning and Development Act 2005 (WA) (PD Act) and directed the Tribunal, under s 246(2)(b) of the PD Act, to hear each application but, without determining it, refer it with recommendations to the Minister for determination.
The Tribunal heard both applications for review together over four days on 16, 17, 20 and 21 November 2017. The Tribunal received 31 exhibits and heard or received evidence from 12 witnesses. The Tribunal reserved its report and proceeded to prepare and finalise its report on the basis of the evidence and submissions presented at the hearing. The Tribunal intended to publish the report on 8 December 2017.
On the basis of the evidence and submissions presented at the hearing, the Tribunal came to the view and intended to report to the Minister that the draft local statutory planning framework in the draft City of Vincent Local Planning Scheme No 2 (LPS 2) proposing to zone the sites 'Special Use' for 'Concrete Batching Plant' is not sufficiently final and certain to warrant approval of the proposed developments in perpetuity. The Tribunal intended to report and recommend that the correct and preferable decision as at the date of its report is to vary the condition limiting the term of each development approval so that it expires on 16 October 2027, rather than on 16 October 2018. The Tribunal considered that this extended term was appropriate and reasonable, because it would enable the local planning framework to be finalised and, if the ultimate zoning of the sites is for residential or mixed use development, rather than for Concrete Batching Plant, then it would allow Hanson and Holcim sufficient time to relocate without compromising current production capacity for concrete in Perth, particularly for developments in the Perth Central Business District (CBD).
Late in the afternoon on 7 December 2017, the Tribunal received a letter by email from the State Solicitor's Office indicating that the acting Minister for Planning in relation to the draft LPS 2, the Hon Ben Wyatt MLA (Minister Wyatt), had made a decision to require draft LPS 2 to be modified to zone the sites 'Mixed Use' and to only permit 'Concrete Batching Plant' use of the sites as an 'Additional Use' until 30 June 2024. The Tribunal convened a directions hearing on 12 December 2017 at which the parties indicated that they did not wish to present any further evidence or submissions and that the correspondence concerning Minister Wyatt's decision on draft LPS 2 is to be taken into account as evidence in these proceedings.
Given that it is now likely that the sites the subject of these proceedings will be zoned 'Mixed Use', the Tribunal reported and recommended to the Minister that, on the evidence before it, the correct and preferable decision is to vary the condition limiting the term of each development approval so that it expires eight years after the Tribunal's report, that is on 13 December 2025, rather than on 16 October 2018. The Tribunal considers that this extended term is appropriate and reasonable, because it would allow Hanson and Holcim sufficient time to relocate without compromising current production capacity for concrete in Perth, particularly for developments in the CBD.
The Tribunal also reported and recommended to the Minister that the condition concerning the environmental management plan should be deleted and replaced with a condition requiring annual reviews of the environmental management plan and the inclusion of addenda to address matters identified between annual reviews. The Tribunal considers that the proposed substituted condition is appropriate and reasonable, because it would ensure ongoing review and management of the environmental impacts of the developments.

Category: B

Representation:

DR 229 of 2017

Counsel:

Applicant: Mr PG McGowan
Respondent: Mr KM Pettit SC

Solicitors:

Applicant: Clayton Utz
Respondent: McLeods

DR 235 of 2017

Counsel:

Applicant: Ms PE Cahill SC
Respondent: Mr KM Pettit SC

Solicitors:

Applicant: Squire Patton Boggs
Respondent: McLeods

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

CEMEX Australia Pty Ltd and Town of Vincent [2008] WASAT 153
Hanson Construction Materials Pty Ltd and City of Vincent [2013] WASAT 11
Hanson Construction Materials Pty Ltd and Town of Vincent [2008] WASAT 71
Hanson Construction Materials Pty Ltd and Town of Vincent [2009] WASAT 138
Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117
Paintessa Developments Pty Ltd and Town of East Fremantle [2014] WASAT 81
Terra Spei Pty Ltd and Shire of Kalamunda [2015] WASAT 134
WA Plantation Resources Pty Ltd and City of Bunbury [2005] WASAT 194

REPORT AND RECOMMENDATIONS OF THE TRIBUNAL:

Introduction

Hanson Construction Materials Pty Ltd (Hanson) has operated a concrete batching plant at or near No 71 (Lot 200) Edward Street, Perth (Hanson site) for about 50 years. Holcim (Australia) Pty Ltd (Holcim) (and predecessor companies) has operated a concrete batching plant at or near No 120 (Lot 1001) Claisebrook Road, Perth (Holcim site) for about 30 years. The Hanson site and the Holcim site (which are collectively referred to in this report as 'the sites' or 'the concrete batching plants') are located approximately 230 metres apart in the Claisebrook Precinct of East Perth, about 2 kilometres north of the Perth Central Business District (CBD).
The resumption of parts of the former Hanson and Holcim properties for the purposes of construction of the Graham Farmer Freeway in the mid-1990s resulted in the need to relocate the concrete batching plants elsewhere on those properties. On 24 January 1996 and on 26 June 1996, the East Perth Redevelopment Authority (EPRA) granted development approval under the East Perth Redevelopment Scheme (EPRS) for the construction and operation of the Holcim and Hanson concrete batching plants, respectively, in their current locations. Both development approvals limited the term of the approval. The term of the Hanson development approval was limited to 26 June 2012 and the term of the Holcim development approval was limited to 16 October 2012.
There have been five previous proceedings in this Tribunal concerning the concrete batching plants:
•Proceeding DR 450 of 2007 involved an application by Hanson under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) for review of the decision of the Town (now City) of Vincent (City or Council) to refuse development approval for an extension of the approved hours of operation of its concrete batching plant so as to permit (occasional) night time operations in order to facilitate construction of major developments in the CBD. The Minister for Planning and Infrastructure, the Hon Alannah MacTiernan MLA (Minister MacTiernan), made a submission to the Tribunal under s 245(2) of the PD Act in which she indicated that she considered that the application involved matters 'which may have a substantial effect on the future planning and development of the area', stated that it is 'important when determining this matter to consider what impacts the reduced flexibility in operating times of the plant may have on it remaining at that site, and what impact would result from locating the plant further from the CBD thus increasing travel distances, carbon emissions and potential for traffic conflict on our roads', and requested the Tribunal to give 'due regard to the broader issues of our State's long-term economic and environmental sustainability when making its decision on the subject application': Hanson Construction Materials Pty Ltd and Town of Vincent [2008] WASAT 71 (Hanson 2008) [33]. In Hanson 2008, the Tribunal granted development approval for the extended hours of operation subject to the conditions, including a condition limiting the term of the approval to 26 June 2012 (in order to coincide with the expiry of the substantive development approval for the Hanson concrete batching plant).
•Proceeding DR 13 of 2008 involved an application by CEMEX Australia Pty Ltd (formerly Rinker Australia Pty Ltd) trading as READYMIX (a predecessor company of Holcim) under s 252(1) of the PD Act for review of the decision of the Council to refuse development approval for an extension of the approved hours of operation of the Holcim concrete batching plant so as to permit (occasional) night time operations in order to facilitate construction of major developments in the CBD. Minister MacTiernan considered that the application for review raised issues of such regional importance that it was appropriate for the application to be determined by the Minister and therefore 'called in' the application for determination by the Minister under s 246 of the PD Act and, under s 246(2)(b) of the PD Act, directed the Tribunal to hear the application but, without determining it, to refer it with recommendations to the Minister for determination. In CEMEX Australia Pty Ltd and Town of Vincent [2008] WASAT 153 (Holcim 2008), the Tribunal recommended that the Minister should grant development approval for the extended hours of operation subject to conditions, including a condition limiting the term of the approval to 16 October 2012 (in order to coincide with the expiry of the substantive development approval for the Holcim concrete batching plant).
•Proceeding DR 405 of 2008 involved an application by Hanson under s 252(1) of the PD Act for review of the decision of the Council to refuse development approval for an additional storage silo for the storage of flyash (to be incorporated into concrete mixes as a substitute for cement). The development approval was sought until 26 June 2012 to coincide with the expiry of the substantive development approval for the Hanson concrete batching plant. In Hanson Construction Materials Pty Ltd and Town of Vincent [2009] WASAT 138 (Hanson 2009), the Tribunal granted conditional development approval for the additional storage silo.
•Proceeding DR 235 of 2011 involved an application by Holcim under s 252(1) of the PD Act for review of the deemed refusal by the Council of a development application for the continued operation of and additions and alterations to the Holcim concrete batching plant so as to permit the use to continue beyond 16 October 2012.
•Proceeding DR 264 of 2011 involved an application by Hanson under s 252(1) of the PD Act for review of the deemed refusal by the Council of a development application for the continued operation of and additions and alterations to the Hanson concrete batching plant so as to permit the use to continue beyond 26 June 2012.
The Minister for Planning, the Hon John Day MLA (Minister Day), considered that the applications for review in DR 235 of 2011 and DR 264 of 2011 both raised issues of such State or regional importance that it was appropriate for the applications to be determined by the Minister and therefore 'called in' the applications for determination by the Minister under s 246 of the PD Act and, under s 246(2)(b) of the PD Act, directed the Tribunal to hear the applications but, without determining them, to refer them with recommendations to the Minister for determination. In Hanson Construction Materials Pty Ltd and City of Vincent [2013] WASAT 11 (delivered on 1 and 2 March 2012) (Hanson and Holcim 2012), the Tribunal recommended to the Minister that the Minister should grant conditional development approval to each of the development applications, including, by condition 1, limiting the term of each approval to 16 October 2017.
On 21 May 2012, Minister Day accepted the Tribunal's report and recommendations and pursuant to s 246 of the PD Act granted conditional development approval to both development applications subject to the conditions recommended by the Tribunal, including, by condition 1, limiting the term of each approval to 16 October 2017.
On 12 April 2017, about six months before the expiry of the development approvals granted by Minister Day, Hanson and Holcim both applied to the City for development approval to enable the continued operation of the concrete batching plants in perpetuity. The development applications were advertised for public comment. Eightyone submitters opposed the Hanson development application and four submitters supported it and 82 submitters opposed the Holcim application and three submitters supported it.
At a special council meeting held on 12 July 2017, the Council granted development approval to both of the development applications subject to conditions including the following:
Hanson approval
1.Term of Approval
This approval is granted for a term expiring on 16 October 2018;
…
3.Environmental Management Plan
3.1The development must be carried out in accordance with the Environmental Management Plan prepared by Strategen Environmental Consultants dated August 2014, or any revised Environmental Management Plan approved by the City;
3.2Within 28 days of this approval the applicant shall lodge with the City a revised Environmental Management Plan that requires all truck traffic associated with the development to access and egress the Claisebrook Precinct via Edward Street to Lord Street and to not utilise Claisebrook Road north of Caversham Street unless such truck movements are to provide local supplies of concrete within the Claisebrook Precinct[.]
…
(Exhibit 4.2, page 1374)
Holcim approval
1.Term of Approval
This approval is granted for a term expiring on 16 October 2018;
…
3.Environmental Management Plan
3.1The development must be carried out in accordance with the Environmental Management Plan prepared by Holcim Australia dated June 2016 or any revised Environmental Management Plan approved by the City;
3.2Within 28 days of this approval the applicant shall lodge with the City a revised Environmental Management Plan that requires all truck traffic associated with the development to access and egress the Claisebrook Precinct via Edward Street to Lord Street and to not utilise Claisebrook Road north of Caversham Street unless such truck movements are to provide local supplies of concrete within the Claisebrook Precinct[.]
…
(Exhibit 19.2, page 1183)
On 14 July 2017, Hanson commenced proceeding DR 229 of 2017 seeking review by the Tribunal, under s 252(1) of the PD Act, of the decision of the Council to grant conditional development approval. On 25 July 2017, Holcim commenced proceeding DR 235 of 2017 seeking review by the Tribunal, under s 252(1) of the PD Act, of the decision of the Council to grant conditional development approval. In particular, both Hanson and Holcim challenge conditions 1 and 3 imposed by the Council. Hanson and Holcim both seek the deletion of condition 1, thereby converting the approval from one that is time limited to one that would operate in perpetuity. Hanson and Holcim also seek the substitution of an alternative for condition 3 which would enable annual reviews of each concrete batching plant's environmental management plan and the inclusion in the environmental management plan of any addenda necessary to address any specific matter identified by either the operator or the City between annual reviews.

Hanson and Holcim presented evidence from qualified and experienced expert witnesses demonstrating that the concrete batching plants operate in an acceptable manner in terms of air quality, noise and traffic: for Hanson Mr Darren Walsh, an environmental scientist (Exhibit 11), Mr Jeremy Mitchell, an environmental scientist and environmental auditor (Exhibit 12), Mr Matthew Gorski, an environmental scientist (Exhibit 13) and Mr Rodney Ding, a transport planner and traffic engineer (Exhibit 10); and for Holcim Mr Nigel Ball, an expert with experience in carrying out environmental monitoring programs (Exhibits 24.1 and 24.2) and Mr Donald Veal, a transport planner and traffic engineer (Exhibit 27). Their evidence was not questioned or contradicted and we accept it. The Council did 'not seek to contest this matter on the grounds related to either applicant's performance on dust, noise or traffic management and … did not cross-examine on those matters' (City's closing submissions; T: 306; 21.11.17).
The sole issue in dispute in these proceedings is whether condition 1 imposed by the City on each development approval should be:
•deleted, thereby allowing the approved developments to continue in perpetuity (as contended by Hanson and Holcim); or
•varied by extending the term of each development approval beyond 16 October 2018 (as contended, in the alternative, by Hanson and Holcim); or
•affirmed, thereby requiring each approved development to cease on 16 October 2018 (unless a further development approval is obtained by that date) (as contended by the City).
It is common ground between the parties that if condition 1 is deleted or varied to extend the term of each development approval, then condition 3 should be varied as proposed by Hanson and Holcim. It is also common ground that if condition 1 is affirmed, then condition 3 as imposed by the Council should also be affirmed.
The Minister for Planning, the Hon Rita Saffioti MLA (Minister), has formed the opinion under s 246(1) of the PD Act that each of the applications for review raises issues of such State and regional importance that it would be appropriate for it to be determined by the Minister. The Minister therefore 'called in' both applications for review under s 246(2) of the PD Act and directed the Tribunal, under s 246(2)(b) of the PD Act, to hear each application but, without determining it, refer it with recommendations to the Minister for determination.
Pursuant to s 51(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), the Tribunal directed that proceedings DR 229 of 2017 and DR 235 of 2017 are to remain as separate proceedings, but be heard and determined together, and that evidence in one proceeding is to be evidence in the other proceeding.
The hearing of the applications for review took place on 16, 17, 20 and 21 November 2017. The Tribunal comprised a judicial member and a member who is a town planner and architect. The Tribunal received 31 exhibits and heard or received evidence from 12 witnesses, including three expert town planning witnesses who gave concurrent expert evidence in a panel session.
This document comprises the Tribunal's report to the Minister under s 246(2)(b) of the PD Act.
Section 27(2) of the SAT Act states as follows:
The purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review.
As discussed below, in our view, the correct and preferable decision in relation to whether condition 1 should be deleted ultimately turns on whether a draft local planning scheme zoning the sites 'Special Use' for 'Concrete Batching Plant' and precluding residential development on adjoining and adjacent properties to provide a commercial and light/service industrial transition area between the concrete batching plants and existing and future residential development, is sufficiently final and certain so as to warrant approval of the proposed developments in perpetuity.
As discussed below, in our view, on the basis of the evidence and submissions presented at the hearing, this local statutory planning framework is not sufficiently final and certain to warrant approval of the proposed developments in perpetuity. On the basis of the evidence and submissions presented at the hearing, the Tribunal intended to report and recommend to the Minister that the correct and preferable decision is to vary condition 1 so that the term of each development approval is for 10 years expiring on 16 October 2027. The Tribunal considered that this extended term was appropriate and reasonable, because it would enable the local planning framework to be finalised and gazetted and, if (as the City has resolved and suggests should occur) the ultimate zoning of the sites is for residential or mixed use development, rather than Special Use for Concrete Batching Plant, then the approvals should permit a sufficient time (which according to the evidence we accept will be up to eight years) to enable Hanson and Holcim to decommission the existing concrete batching plants and to establish and commission new concrete batching plants to ensure that the current production capacity for concrete in Perth, in particular for developments in the CBD, is able to be maintained.
As also discussed below, the Tribunal was informed after it had reserved its report and prior to its publication that the acting Minister for Planning in relation to the draft statutory local planning framework, the Hon Ben Wyatt MLA, had made a decision to require the modification of the draft local planning scheme to zone the sites 'Mixed Use' and to only permit 'Concrete Batching Plant' use of the sites as an 'Additional Use' until 30 June 2024. Given that it is now likely that the sites will be zoned 'Mixed Use', the Tribunal considers that the correct and preferable decision is to vary condition 1 so that the term of each development approval expires eight years from the date of this report. The Tribunal considers that this extended term is appropriate and reasonable, because it would enable Hanson and Holcim to decommission the existing concrete batching plants and establish and commission new concrete batching plants to ensure that the current production capacity for concrete in Perth, in particular for developments in the CBD, is able to be maintained.
Finally, as discussed below, the Tribunal reports and recommends to the Minister that condition 3 should be deleted and replaced with a condition requiring annual reviews of the environmental management plan and the inclusion of addenda to address matters identified between annual reviews.

Sites and locality

The sites are located within Precinct 15: Claisebrook Road North (Precinct 15) under the EPRS. Precinct 15 is bounded by Lord Street to the west, the Graham Farmer Freeway and railway line and marshalling yards to the south and east and Summers Street to the north. The Hanson site is the southernmost property in Precinct 15 and the Holcim site is located at the south-eastern edge of Precinct 15.
The Hanson site is located on the corner of Edward Street and Lord Street and abuts the Graham Farmer Freeway on the southern boundary. It has no direct vehicular or pedestrian access to Lord Street or to the Graham Farmer Freeway and has two vehicular access and egress points on Edward Street.
The Holcim site is located on the corner of Claisebrook Street and Caversham Street in a small pocket immediately north of a railway reserve to the south and east. Abutting the railway reserve is a dual use pathway and the Graham Farmer Freeway.
The City contends that Precinct 15 is currently characterised as 'a mixed use area with commercial, light industrial and residential land uses as well as the [Hanson and Holcim concrete batching plants]' (Exhibit 3 [8] and Exhibit 18 [8]). However, for reasons which follow, we accept the evidence of Mr Stephen Allerding, a consultant town planner called by each of Hanson and Holcim, that the predominant land uses in the locality of the Hanson site and in the immediate locality of the Holcim site are 'commercial and light/service industrial, with some residential and [m]ixed [u]se development' (Exhibit 9 [57] and Exhibit 25 [61] – [65]).
There are only two residential properties in the immediate vicinity of the Hanson site which are a pair of original semidetached houses at Nos 3436 Edward Street. As noted in Hanson 2008[13], although these houses are located just across Edward Street from the vehicular access road into the site, 'they also face the Graham Farmer Freeway and the railway marshalling yards beyond'.
The uses immediately across Claisebrook Road from the Holcim site are all commercial and the current uses in the block across Caversham Street from the Holcim site are all commercial with the exception of one mixed use development. In addition, there is an existing development approval for a nine storey mixed use development, including 59 single bedroom multiple dwellings and 57 two bedroom multiple dwellings, at Nos 150, 152 and 158 Claisebrook Road across Caversham Street from the Holcim site. That development approval was granted by the Metro West Joint Development Assessment Panel (DAP) on 25 September 2014 and was extended by the DAP for two years on 18 August 2016, but has not been commenced.
The two northernmost blocks of Precinct 15 on Summers Street and at the intersection of Summers Street and Lord Street comprise a significant amount of residential development, with all but one of the properties fronting Summers Street comprising residential developments. Three residential or mixed use developments have also been approved and constructed in the central part of Precinct 15 to the north of Edward Street and to the west of Claisebrook Road since 2013, namely a four storey building with eight multiple dwellings and home office at No 17 Gladstone Street, a three storey mixed use development with three commercial tenancies and five multiple dwellings at No 119 Claisebrook Road and a four storey building with 15 multiple dwellings at No 159 Claisebrook Road.
Despite the predominantly residential development at the northern end of Precinct 15 and the construction of three developments adding 28 multiple dwellings in the central part of Precinct 15 over the last few years, the current predominant land uses in the locality of the Hanson site and in the immediate locality of the Holcim site are commercial and light/service industrial, with some residential and mixed use development, and is not correctly characterised as a mixed use area with commercial, light industrial and residential land uses.

Current planning framework

The identification of the applicable current local planning framework for Precinct 15 is somewhat complicated, because there have been three different planning authorities for this area since 2001, namely EPRA, the City of Perth and the Town (now City) of Vincent. For the reasons explained by the Tribunal in Hanson 2008 [35] – [42], the effective and applicable local planning framework in Precinct 15 was at that time (and remains) the EPRS. As the Tribunal said in Hanson 2008 [39], this is because, following the transfer of planning responsibility over Precinct 15 from EPRA to the City of Perth in January 2002, the EPRS text was effectively incorporated into the City of Perth City Planning Scheme No 2 (CPS 2). Since the transfer of planning responsibility over Precinct 15 from the City of Perth to the Town (now City) of Vincent in January 2007, the local planning framework regulating development in Precinct 15 has remained the EPRS text incorporated into CPS 2.
Clause 5.18.1 of the EPRS sets out the following Statement of Intent for Precinct 15:
Within this Precinct, commercial, retail, service and light industrial uses compatible with residential use will be supported, including uses providing services to the businesses and residents of the central and inner city.
The [East Perth Redevelopment] Authority intends that there should be an improvement in the general level of amenity of the Precinct, with the improved presentation and maintenance of private properties and the public domain, and a progressive reduction in the incidents of those industrial activities incompatible with other uses, including residential development.
(Exhibit 4.1, page 46 and Exhibit 19.1, page 46)
Clause 5.18.2 of the EPRS provides that 'Preferred Uses' in Precinct 15 are commercial, service and light industry, retail and residential uses and that 'Contemplated Uses' are community and recreation uses (see also cl 5.3).
In Hanson 2008, the Tribunal held [49] ‑ [50] as follows:
Contrary to Mr Allerding's opinion, a concrete batching plant is not a Preferred Use nor is it even a Contemplated Use in Precinct 15. A concrete batching plant is not light industry, but rather is general industry, because, without ameliorative measures, the processes carried on will cause injury to or prejudicially affect the amenity of the locality by reason of the emission of noise, dust or otherwise: see GMF Contractors Pty Ltd and Shire of Serpentine-Jarrahdale [2006] WASAT 353; (2006) 48 SR (WA) 1 and definition of 'light industry' in Sch 1 of the EPRS.
However, cl 5.2.4 of the EPRS contemplates approval of uses that are neither Preferred Uses nor Contemplated Uses, after appropriate advertising for public submissions and consultation in accordance with cl 2.9 of the EPRS, and after due consideration of the matters referred to in cl 2.10 of the EPRS. The Town undertook appropriate advertising for public submissions and consultation in accordance with cl 2.9 of the EPRS. Clause 2.10 of the EPRS sets out matters for consideration including 'the requirements of orderly and proper planning' and 'the preservation of the amenity of the area'.
The City undertook appropriate advertising for public submissions and consultation in accordance with cl 2.9 of the EPRS in relation to the development applications the subject of these proceedings. Consequently, concrete batching plant use of the sites may be approved in the exercise of planning discretion under the current local planning framework.
The sites are each zoned 'Urban' under the Metropolitan Region Scheme (MRS). Although the sites are not zoned 'Industrial' under the MRS, it is common ground between the parties that concrete batching plant use of the sites has and may be approved in the exercise of planning discretion under the MRS. Indeed, the Council granted development approval to the subject development applications under the MRS as well as under the EPRS (as have other planning consent authorities in relation to development applications for concrete batching plant use of the sites, namely EPRA, the City of Perth, the Tribunal and Ministers MacTiernan and Day).
This is consistent with the provisions of the Economic and Employment Lands Strategy: non-heavy industrial (April 2012) (EELS) (Exhibit 4.2, Tab 10 and Exhibit 19.2, Tab 10) prepared by the Department of Planning (Department) and the Western Australian Planning Commission (Commission). EELS is a high level strategic planning document for industrial development in the Perth Metropolitan and Peel Regions. Under the heading 'Zoning for industry', EELS states at follows at page 7:
It is important to recognise that industrial type activities are not restricted to only occurring on land which has been zoned 'industry' under a scheme. An example of this is land used for industrial activities within the City of Belmont. Within the upper northern portion of its local government boundary, exists a light industry area, zoned 'light and service industry' under the local planning scheme. Under the MRS, this area is zoned 'Urban'. In this particular instance, the land was considered to be suitable for these lighter forms of industrial use given the specific characteristics of the area and its relationship to adjoining land uses.
By allowing industry in ''urban'' zones is necessary to avoid adverse impacts upon neighbouring areas, particularly residential areas. Appropriate buffer zones are typically utilised in such cases to separate incompatible land uses.
The strategy identifies potential locations where industrial type uses may be suitable. It represents the State Government's blueprint for future industrial land use planning, in the Peth metropolitan and Peel regions. The areas identified in this strategy only indicate the extent of the investigation area, and do not represent the proposed development area or the likely extent of the rezoning of this area to industrial.
(Exhibit 4.2, page 756 and Exhibit 19.2, page 756)
Under 'key points' in relation to zoning for industry under the MRS, EELS states as follows at page 8:
Industrial land use activities should not be restricted to occurring just on land zoned 'Industry' under a Region Scheme. Local town planning scheme provisions can also manage land use activities dependant on local issues and the local context.
(Exhibit 4.2, page 757 and Exhibit 19.2, page 757)
Key Objective 3 of EELS at page xv is 'To appropriately protect existing industrial land to sustain long‑term industrial activities'. The 'Key aim' of this objective is:
To protect and preserve industrial sites, particularly those considered to have State and regional significance and are located within the inner and middle sectors.
(Exhibit 4.2, page 745 and Exhibit 19.2, page 745)
In discussing 'supply challenges and issues', EELS states as follows at pages 31 32:
Expanding upon these identified pressures and challenges, the key industry stakeholders expressed the following current issues for industrial land development:
…
•Impacts on supply chain efficiencies with the incurring of higher operational costs due to further distances from suppliers, clients etc. (e.g. travel costs) and impediments on product quality because of additional distance needing to be travelled (i.e. concrete); and
•The constant threat from residential encroachment and the subsequent restrictions being imposed on occupiers (e.g. concrete batching plants in East Perth). This is particularly true for those industries located within the central sub-region.
(Exhibit 4.2, pages 780 781 and Exhibit 19.2, pages 780 ‑ 781)
(Emphasis added)
Specifically in relation to the central sub-region, which includes the sites, EELS states at page 37 as follows:
This sub-region represents the engine room of the metropolitan area in terms of generating the highest employment self-sufficiency and highest economic value associated with existing industrial areas. However, the landscape is quickly changing, as industrial land is being occupied by higher end commercial uses. Other industrial users and activities, particularly in the inner region close to the CBD, are being forced to relocate, as land becomes more and more valuable and sought after for residential and office uses. According to the Property Council of Australian Suburban Office Development Survey, 43,500m² of commercial office space was developed on industrially zoned land between 2007 and 2010.
Due to these other high end competing uses, such as residential and commercial, the land stock is under extreme pressure and if no intervention is taken to protect the remaining industrial land parcels the land stock will be dramatically reduced. An example of this conflict between competing uses is the concrete batching plants located in East Perth. The local authority wishes to have the batching plants relocated to enable urban zoning to occur and subsequent residential development to take place. However, there is an important need for industrial land to be located within close proximity of the central city and, where located adjacent to primary arterial routes into and out of the city, these land uses should be protected and preserved.
There remains limited ability within the Central sub-region to capably cater for any future growth, as most industrial sites are already nearing capacity. Any future demand will have to be met by other sub-regions within Perth and Peel.
(Exhibit 4.2, page 786 and Exhibit 19.2, page 786)
(Emphasis added)

These provisions of EELS are an appropriate springboard to the next section of this report concerning the development of a new planning framework for the sites (and adjoining and adjacent properties) which the Tribunal said in previous proceedings concerning the sites needs to occur before consideration can be given to whether permanent approvals of the concrete batching plants should be granted. EELS was published after the Tribunal delivered its report and recommendations in Hanson and Holcim 2012 and before its report and recommendations were accepted by Minister Day. EELS is a recent, relevant and highly significant strategic planning document for the purposes of these proceedings. Not only does EELS specifically contemplate industrial use of land zoned Urban under the MRS where '[l]ocal planning scheme provisions can … manage land use activities dependent on local issues and the local context' (page 8), but it plainly, specifically identifies the Hanson and Holcim concrete batching plants ('the concrete batching plants located in East Perth') as 'land uses [which] should be protected and preserved' (page 37).
As EELS states, it 'represents the State Government's blueprint for future industrial land use planning' (page 7). As will be seen in the next section of this report, the strategic 'blueprint' for protection and preservation of the sites as concrete batching plants was at the time of the hearing, on the evidence before the Tribunal, reflected in a proposed 'Special Use' zoning of the sites for 'Concrete Batching Plant' and the creation of a commercial and light/service industrial transition area to separate the concrete batching plants from existing and future residential developments under a draft local planning scheme.

Towards a new local planning framework

Mr Allerding gave the following evidence which was not questioned or contradicted and which we accept:
the planning reflected in the EPRS is now outdated, having been replaced in the remaining EPRA precincts by East Perth Redevelopment Scheme No 2.
(Exhibit 9 [73] and Exhibit 25 [77])
Mr Allerding also gave the following evidence, which was not seriously questioned or contradicted, and which we accept:
Further, the planning principles upon which the EPRS was based involved replacing underutilised industrial land in favour of increasing residential densities. These principles predate Directions 2031 [Directions 2031 and beyond metropolitan planning beyond the horizon (August 2010); Exhibit 4.2, Tab 8 and Exhibit 19.2, Tab 8] and EELS and represent a broadbrush approach for a significantly wider urban renewal area.
Therefore, the planning principles that are reflected in the EPRS should be applied with caution.
Orderly and proper planning now requires [the] consideration of strategically significant industry and key infrastructure assets in the area and the principles under Directions 2031, Perth & Peel @ 3.5 Million [(May 2015); Exhibit 4.2, Tab 12 and Exhibit 19.2, Tab 12] and EELS.
More contemporary planning approaches place particular importance on uses that require both proximity to regional transport corridors (in the present case for the onsite receipt of aggregate from regionally located quarries and the offsite transport of concrete) and directly support activity within the Perth CBD. Higher density achieved through infill development is also supported throughout the central subregion rather than just within or adjacent to the Perth CBD.
(Exhibit 9 [74] ‑ [77] and Exhibit 25 [78] ‑ [81])
In its reasons and reports in the five previous proceedings concerning the concrete batching plants, the Tribunal has also reflected on the current local planning framework regulating development of the sites being outdated and has said, and reiterated, that it is necessary for appropriate and considered strategic and statutory planning to occur in relation to the sites before consideration can be given to permanent approval of concrete batching plant use on the sites.
In Hanson 2008 the Tribunal concluded its reasons as follows [80]:
It is also sensible for the approval of the extended hours of operation to lapse at the same time as the approval of the underlying development. This will enable the Town and relevant State authorities to develop, in consultation with Hanson and the community, an appropriate strategic planning framework for future development of the site, having regard to its locational characteristics and local and regional planning considerations.
In Holcim 2008 the Tribunal said the following in the conclusion of its report to the Minister for Planning [101]:
Finally, the town planning evidence suggests that it will take between two and three years for a new local planning framework to be brought into effect in relation to the locality. The approval of extended hours of operation until the underlying development approval for the plant lapses in 2012 will enable the Town and relevant State authorities to develop, in consultation with CEMEX and the community, an appropriate strategic planning framework for future development of the site, having regard to its locational characteristics and local and regional planning considerations. It is in the interests of orderly and proper planning, both at a local and regional level, that the new planning framework is in place well before the development approval for the current use of the site expires.
(Emphasis added)
In Hanson 2009, the Tribunal [31] quoted Holcim 2008 [101] (set out in the immediately preceding paragraph) and expressed the understanding from the evidence in that case that [41]:
In any event, the overall approval for the use of the site as a batching plant expires in June 2012 by which time it is likely that the relevant authorities will have decided the future direction of the area for planning purposes.
In its report to the Minister for Planning in Hanson and Holcim 2012, the Tribunal said [18] 'we draw attention to the central views of the Tribunal which appear in [Holcim 2008]'. The Tribunal then quoted what the Tribunal had said in Holcim 2008 [101] and placed particular emphasis on the words 'to develop, in consultation with CEMEX and the community, an appropriate strategic planning framework for future development of the site, having regard to its locational characteristics and local and regional planning considerations'. The Tribunal then observed in Hanson and Holcim 2012 [19] as follows:
It is true that the 'strategic planning framework for future development of the site' is yet to materialise, but work continues in that direction …
In its report in Hanson and Holcim 2012, the Tribunal then said the following in relation to the duration of approval that it recommended to the Minister for Planning in relation to the Hanson concrete batching plant [22] [31]:
As we have stated, the central matters to be resolved are whether or not a condition should be applied to limit the life for renewal of the approval of the Hanson concrete batching plant and, if the approval is to be so limited, for how long should that approval be limited.
The Tribunal is of the opinion, for the reasons that follow, that a limit of five years should be imposed on the Hanson operation. The principal materials relevant to the Tribunal's considerations are, in summary, as follows:
1.The planning framework, both statutory and policy-based, pertaining to the use of concrete batching plants.
2.The documented decisions regarding the planning of the locality by the responsible planning authorities.
3.The advice by Ministers and, more lately, the Commission, in respect of the possible State and regional importance of concrete batching plants, particularly in relation to the Central Business District of Perth's building environment.
However, in the view of the Tribunal, the Government's policy framework is yet to be final or definitive in respect of the recognition of concrete batching plants in the Claisebrook/East Perth precinct, and whether they should be, in effect, preserved because of their State or regional importance.
We acknowledge that there are indications that such importance may well be recognised at some future date when certain draft instruments are finalised. But, this has not occurred to date. Those draft instruments are: the draft Industrial Land Strategy 2009: Perth and Peel; the draft Central Metropolitan Perth Sub-regional Strategy 2010; and the draft Capital City Planning Framework 2011.
We acknowledge that State planning agencies, in their policies, have tended to support the contention that the precinct, apart from the concrete batching plants, should be redeveloped for higher density, mixed use residential and commercial land use around the Claisebrook railway station transport node. These policies include State Planning Policy No 1 - State Planning Framework Policy; State Planning Policy 4.2 - Activity Centres for Perth and Peel; Development Control Policy 1.6 - Planning to Support Transit Use and Transit Orientated Development; the Liveable Neighbourhoods 2007 policy; and Directions 2031 and Beyond 2010 framework.
All of these policies suggest that, apart from these concrete batching plants, there can be, or will be, higher density mixed use residential and commercial land use around the railway station. Accordingly, the City and the Commission have both documented support for mixed use in the area by conditional approval to progress Amendment 29 to TPS 1. The Commission seeks only, in effect, to 'subtract' and protect the Hanson and Holcim concrete batching plants from this rezoning.
To some degree then, there is a possible conflict in the strategic planning in light of the detailed planning for the precinct. In other words, the extent to which the 'excised' areas should be immunised from the otherwise agreed strategic planning framework remains an unresolved and 'contestable' issue.
In the absence of an unequivocal strategic recognition of the State and regional importance of these concrete batching plants, it could be contended that the plants are incompatible and inappropriate to the amenity of an intensified mixed residential and commercial area. For example, new concrete batching plants are not usually permitted within 500 metres of residential development. The Tribunal acknowledges the high level of concern manifested in the residents' and others' observations concerning the daytoday amenity impacts of the plants.
In the opinion of the Tribunal, this conflict needs to be resolved at the strategic level before it is orderly, proper and safe to grant permanent and irreversible approval for the Hanson concrete batching plant to remain in its present location. The time taken to finalise and reconcile the relevant strategies may well be now relatively short. If such matters are resolved, as has been indicated, then there is nothing to prevent the applicant from applying for the five-year limitation to be removed from the site. That application would be determined on its merits.
Given the interests of the various parties, the most reasonable course at this juncture would be to recommend to the Minister for Planning a grant of continued approval, but one limited to a period of five years. This is a reasonable timeframe to accommodate short-term planning and associated implementation measures. For example, this would allow a suitable period of time for both the Commission and the Government to finalise the draft Industrial Land Strategy 2009 and the draft Capital City Planning Framework 2011. The applicant would, at least, in the meantime, have five years' certainty of continued supply to its customers, and the continued redevelopment of the precinct could commence with confidence in the knowledge that an orderly and proper process leading to a final decision on the future of the concrete batching plants could be made under the auspices of the final Industrial Land Strategy and other relevant policies.
(Emphasis added)
In Hanson and Holcim 2012, the Tribunal said [51] that 'the central reasoning applicable in [the Hanson] review is also applicable to the issues as ultimately characterised by the Tribunal in Holcim'. Therefore, the Tribunal's reasoning in relation to the duration of the Holcim approval, which it also recommended should be extended for five years, was the same as its reasoning in relation to the duration of the Hanson approval.
Thus, the Tribunal has made it clear in each of the five previous proceedings concerning the sites that it is in the interests of orderly and proper planning, both at a local and regional level, that the new planning framework be put in place well before the development approvals for the sites expire and that this is necessary to resolve potential land use conflicts between concrete batching and residential uses at the strategic level 'before it is orderly, proper and safe to grant permanent and irreversible approval for the Hanson [and Holcim] concrete batching plant[s] to remain in [their] present location[s]' (Hanson and Holcim 2012 [30]).
As indicated earlier, Minister Day accepted the Tribunal's recommendations in Hanson and Holcim 2012 and, on 21 May 2012, granted conditional development approval for the use of the sites as concrete batching plants for a term expiring on 16 October 2017. In his reasons for decision in relation to both applications, Minister Day said that he accepted 'the result and the reasons for the recommendations of the Tribunal' and then said the following:
In summary, the Minister has determined that [Hanson and Holcim] be given conditional approval to operate for a further five years, during which time the necessary strategic planning framework should be finalised to indicate clearly the ultimate development intent for the subject lands.
Similarly, in his letters to Hanson and Holcim dated 22 May 2012 enclosing his determinations, Minister Day said that 'I agree with the Tribunal's recommendations' and advised that 'the reasons for my determination on the application are those set down in [Hanson and Holcim 2012]'. The Minister's letters then stated as follows:
In summary, I determined that [Hanson and Holcim] be given conditional approval to operate for a further five years, during which time the necessary strategic planning framework should be finalised to indicate clearly the ultimate development intent for the subject land. I have written to the Western Australian Planning Commission to request that this planning be commenced and carried out as a priority, in liaison with the City of Vincent, in order to provide certainty to all parties with an interest the future of the area.
(Exhibit 1, Attachment 3 and Exhibit 15, Attachment 3)
Despite the Tribunal's repeated observations in the earlier proceedings that '[i]t is in the interests of the orderly and proper planning, both at a local and regional level, that the new planning framework is in place well before the development approval of the current use of the site expires' (Holcim 2008 [101]) and Minister Day's request to the Commission for 'this planning to be commenced and carried out as a priority', the statutory planning has unfortunately not yet been entirely finalised. However, considerable progress had been made by the time of the hearing.
In October 2011, after the lodgement and the deemed refusal of Hanson's development application for permanent approval of its concrete batching plant (Hanson and Holcim 2012 [12(10)]), the City forwarded draft City of Vincent Local Planning Scheme No 2 (draft LPS 2), in a form which proposed zoning the sites as 'Residential/Commercial' (with a residential density coding of R160), to the Commission for consent to advertise the draft local planning scheme.
On 5 September 2013, the Secretary of the Commission wrote to the Chief Executive Officer of the City advising that Minster Day had given consent for draft LPS 2 to be advertised for public inspection 'subject to the modifications set out in the attached schedule for modifications being effected prior to advertising'. Relevantly, Minister Day required two significant modifications to draft LPS 2 which, if gazetted, would have the effect of zoning the sites 'Special Use' for 'Concrete Batching Plant' and prohibiting residential development on adjoining and adjacent properties to the sites, thereby, in effect, creating a commercial and light/service industrial transition area between the sites and existing and future residential developments in the area, to address and mitigate the potential land use conflict between concrete batching plant and residential uses discussed by the Tribunal in its report to Minister Day in Hanson and Holcim 2012 [28] ‑ [30].
Item 14 of the schedule of modifications required by Minister Day stated as follows:
14.Insert new clause 4.16 as follows:
4.16RESIDENTIAL DEVELOPMENTS AND USES
''aged or dependent persons dwelling'', ''grouped dwelling'', ''single house'', ''residential building'', ''multiple dwelling'' and "short term accommodation'' are not permitted on lots with direct frontage to Edwards Street east of Lord Street, Caversham Street, and Claisebrook Road between Chelsea Street and Murchison Terrace.
It is common ground between the parties that if cl 4.16 forms part of LPS 2 when gazetted, then it would preclude residential development adjoining and adjacent to each of the sites, thereby in effect, creating a commercial and light/service industrial transition area between the sites and existing and future residential developments elsewhere in Precinct 15.
Modifications 97 to 99 required by Minister Day stated as follows:
97. Include the following additional entries in Schedule 4 [Special Use Zones]:

No.

Description of land

Special use

Conditions

4.

No. 71 (Lot 200) Edward Street, Perth

Concrete Batching Plant

Subject to the conditions in the determination issued by the Minister for Planning dated 21 May 2012 pursuant to section 246 of the Planning and Development Act 2005

5.

No. 120 (Lot 1001) Claisebrook Road, Perth

Concrete Batching Plant

Subject to the conditions in the determination issued by the Minister for Planning dated 21 May 2012 pursuant to section 246 of the Planning and Development Act 2005

98.Modify Scheme Map 4 by introducing "Special Use" zone for No. 71 (Lot 200) Edward Street, Perth.
99.Modify Scheme Map 4 by introducing "Special Use" zone for No. 120 (Lot 1001) Claisebrook Road, Perth.

The City modified draft LPS 2 as required by Minister Day and then proceeded to advertise draft LPS 2 in the modified form for public comment between February 2014 and May 2014. The City received 37 submissions in relation to the concrete batching plants. Of these submissions, two supported the advertised Special Use zone for the sites and 35 objected to that proposal. The two supporting submissions were made on behalf of Hanson and Holcim by their consultant planners, Allerding & Associates.
The City's administration presented a revised draft local planning strategy and draft LPS 2 to Council on 18 November 2014. The Council resolved to make modifications to draft LPS 2 including changing the zoning of the sites back from Special Use (as required by the Minister for advertising) to Residential/Commercial (with a residential density coding of R160) (as originally proposed by the City to the Commission for advertising), stating as an 'Additional Use' of the sites 'Concrete Batching Plant' expiring on 16 October 2017 (at the same time as the developmental approvals granted by Minister Day in May 2012 would expire) and removing the provision prohibiting residential uses on adjoining and adjacent properties to the sites.
On 9 December 2014, the City forwarded draft LPS 2 in this further modified form to the Commission for consideration and final determination.
On 31 October 2016, Mr Shau Chong, an officer of the Department, sent an email (Exhibit 31) to Ms Stephanie Smith, a town planner and the City's Manager Policy and Place, attaching 'draft modifications' in relation to draft LPS 2. As Ms Smith said in evidence:
These modifications included the reinstatement of the [S]pecial [U]se zoning for the subject site[s], but without any conditions (items 13 17 and 58). I was informed that these modifications would be provided to the Statutory Planning Committee of the Western Australian Planning Commission for consideration at a future meeting. I am not aware whether these modifications were accepted by the Statutory Planning Committee or what recommendation it may have made to the Minister for Planning in relation to [draft LPS] 2. However, I note that draft [LPS] 2 has not been approved with these modifications since they were received.
(Exhibit 14 [32] and Exhibit 28 [32])

Mr Anthony Clarkson, Hanson's Operations Manager, Concrete and Technical, is responsible for all of its metropolitan plant operations in Western Australia. Mr Clarkson gave the following evidence:
It is my belief that in rough terms the time required to relocate the Plant including identifying and purchasing suitable land (assuming this were possible), obtaining relevant approvals (which I note from Hanson's experience and the recent experiences of Hanson's competitors is neither simple or quick) and construction of a new plant would be between five and eight years. Therefore an absolute minimum of eight years would be required following a commitment being made to relocate to ensure continuity of supply.
(Exhibit 7 [48])
Mr Clarkson was not cross-examined in relation to this evidence. We accept his evidence and the evidence of Ms Reeves to the same effect and consider that eight years to find a suitable alternative site, obtain approvals and commission the new plant is a reasonable estimate, as a minimum.
On the basis of the evidence and submissions presented at the hearing, the Tribunal intended to report and recommend to the Minister that, as Ms Cahill suggested (as Holcim's alternative position) in opening, condition 1 should be varied to a period of 10 years, both to provide sufficient time for the planning framework to be finalised and, if the planning framework as finalised will not permit continued concrete batching use of the sites after the expiry of the development approvals, then to permit a period of approximately eight years to enable relocation of the concrete batching plants. The Tribunal considered that this extended term is necessary, on the evidence presented at the hearing, to ensure that the current production capacity for concrete in Perth, in particular for developments in the CBD, is able to be maintained. Although the evidence indicates that two other concrete suppliers, BGC and Boral also supply concrete to the CBD, the Hanson and Holcim concrete batching plants provide about 60% of their production to developments in the CBD and, as indicated earlier, these two plants are located within 2 kilometres of the CBD, considerably closer than any other concrete batching plant.
We note that the time that would be required to relocate the Hanson and Holcim plants' operations elsewhere was not a factor considered in Hanson and Holcim 2012. The five year approvals recommended by the Tribunal and granted by Minister Day was to enable the strategic and statutory planning framework for the sites to be finalised. However, the evidence and submissions in this case is different and in our view, on the evidence and submissions presented at the hearing, warrants an extended term to both allow the planning framework to be finalised and to ensure that the current production capacity for concrete in Perth is able to be maintained.
In light of Minister Wyatt's requirement for modification of draft LPS 2 in relation to the sites, it is now likely that the local statutory planning framework will zone the sites 'Mixed Use' and will only permit 'Concrete Batching Plant' use on those sites as an 'Additional Use' until 30 June 2024.
Given that it is now likely that the sites will be zoned 'Mixed Use', the Tribunal recommends to the Minister that, on the basis of the evidence before it, the correct and preferable decision is that condition 1 should be varied to a period of eight years from the date of this report. Although the Additional Use in draft LPS 2 will expire on 30 June 2024, the evidence in this case referred to above [154] [158] warrants the extension of the development approvals for a period of eight years. The Tribunal considers that this extended term is appropriate and reasonable, because it would enable the relocation of the concrete batching plants without compromising current production capacity for concrete in Perth, particularly for developments in the CBD.

Condition 3

As indicated earlier, it is common ground that if condition 1 is deleted or varied to increase the term of the approvals, then it is appropriate to delete and replace condition 3 with a condition requiring annual reviews of the environmental management plan and the inclusion of addenda necessary to address matters identified between annual reviews. We agree that the proposed substituted condition is appropriate to ensure ongoing review and management of environmental impacts of the developments.

Conclusion and recommendations

As indicated earlier, under s 27(2) of the SAT Act, the purpose of each review is 'to produce the correct and preferable decision at the time of the decision upon the review'.
The Tribunal considers that, on the basis of the evidence and submissions presented at the hearing, the draft local statutory planning framework proposing (on the evidence at the time of the hearing) to zone the sites 'Special Use' for 'Concrete Batching Plant' is not sufficiently final and certain to warrant approval of the proposed developments in perpetuity.
Furthermore, after the hearing, the Tribunal was informed that Minister Wyatt has now made a decision to require the modification of draft LPS 2 to zone the sites 'Mixed Use' and to only permit 'Concrete Batching Plant' use of the sites as an 'Additional Use' until 30 June 2024. The Tribunal reports and recommends that the correct and preferable decision on the evidence now before the Tribunal is to vary condition 1 so that each development approval expires on 13 December 2025, rather than on 16 October 2018. The Tribunal considers that this extended term is appropriate and reasonable, because it would allow a reasonable period for relocation of the plants so that production capacity for concrete in Perth is maintained.
The Tribunal also reports and recommends that condition 3 should be deleted and replaced in each development approval by a condition requiring annual reviews of the environmental management plan and the inclusion of addenda necessary to address matters identified between annual reviews. The Tribunal considers that this is appropriate and reasonable, because it would ensure ongoing review and management of the environmental impacts of the developments.
The orders which would give effect to these recommendations are as follows:
DR 229 of 2017 – Hanson development approval
1.The application for review is allowed in part.
2.The decision of the City of Vincent made on 12 July 2017 to grant conditional development approval for the continued operation of the concrete batching plant at No 71 (Lot 20) Edward Street, Perth is varied as follows:
(i)The date in condition 1 is varied from '16 October 2018' to '13 December 2025'.
(ii)Condition 3 is deleted and the following condition is substituted in its place:
'The plant is to operate in accordance with the environmental management plan prepared by Strategen Environmental Consultants dated August 2014 and approved by the City of Vincent on 4 November 2014 or other environmental management plan approved by the City of Vincent, subject to the following:
a)annual review of the environmental management plan after each year following the grant of approval; and
b)the inclusion in the environmental management plan of any addenda necessary to address any specific matter identified by either Hanson Construction Materials Pty Ltd or the City of Vincent between annual reviews, which addenda are to form part of the environmental management plan.'
DR 235 of 2017 – Holcim development approval
1.The application for review is allowed in part.
2.The decision of the City of Vincent made on 12 July 2017 to grant conditional development approval for the continued operation of the concrete batching plant at No 120 (Lot 1001) Claisebrook Road, Perth is varied as follows:
(i)The date in condition 1 is varied from '16 October 2018' to '13 December 2025'.
(ii)Condition 3 is deleted and the following condition is substituted in its place:
'The plant is to operate in accordance with the environmental management plan prepared dated 14 June 2016 or other environmental management plan approved by the City of Vincent, subject to the following:
(a)annual review of the environmental management plan after each year following the grant of approval; and
(b)the inclusion in the environmental management plan of any addenda necessary to address any specific matter identified by either Holcim (Australia) Pty Ltd or the City of Vincent between annual reviews, which addenda are to form part of the environmental management plan'.
I certify that this and the preceding [168] paragraphs comprise the report and recommendations of the State Administrative Tribunal.
___________________________________
JUDGE D R PARRY, DEPUTY PRESIDENT

No.	Description of land	Special use	Conditions
4.	No. 71 (Lot 200) Edward Street, Perth	Concrete Batching Plant	Subject to the conditions in the determination issued by the Minister for Planning dated 21 May 2012 pursuant to section 246 of the Planning and Development Act 2005
5.	No. 120 (Lot 1001) Claisebrook Road, Perth	Concrete Batching Plant	Subject to the conditions in the determination issued by the Minister for Planning dated 21 May 2012 pursuant to section 246 of the Planning and Development Act 2005