HANSON CONSTRUCTION MATERIALS PTY LTD and CITY OF VINCENT - [2013] WASAT 11

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: HANSON CONSTRUCTION MATERIALS PTY LTD and CITY OF VINCENT [2013] WASAT 11

MEMBER: MR P McNAB (SENIOR MEMBER)
MR J ADDERLEY (SENIOR SESSIONAL MEMBER)
MR P CURRY (SESSIONAL MEMBER)

HEARD: 28 AND 29 FEBRUARY AND 1 MARCH 2012

DELIVERED : 2 MARCH 2012

PUBLISHED : 21 JANUARY 2013

FILE NO/S: DR 264 of 2011

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

FILE NO/S :DR 225 of 2011

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

Catchwords:

Town planning - Development application - Concrete batching plants - East Perth - Claisebrook precinct - Whether two existing neighbouring plants should have any limitation on duration of approval - Mixed use area - Predominantly commercial and light industrial uses with limited but further evolving residential use - Minister for Planning directed Tribunal to hear application but, without determining it, to refer it with recommendations to Minister for determination - Local and regional planning considerations - State, regional and local significance of batching plants - Strategic planning needed to reconcile intensified mixed residential and commercial area around transport node with retention and protection of key industrial estates and infrastructure - Orderly and proper planning - Amenity concerns as to dust, noise and traffic - Tribunal recommending five year conditional approval pending finalisation of strategic planning for precinct

Legislation:

City of Vincent Town Planning Scheme No 1
Planning and Development Act 2005 (WA), s 246(2)(b)

Result:

Conditional approval for a period of five years recommended to Minister

Summary of Tribunal's decision:

In 2011, the Minister for Planning; Culture and the Arts; Science and Innovation, pursuant to certain statutory powers available to him under the Planning and Development Act 2005 (WA), directed the Tribunal to consider and make recommendations to him in respect of two separate reviews concerning two neighbouring concrete batching plants in East Perth. These were operated by Hanson Construction Materials Pty Ltd and Holcim Australia Pty Ltd in the Claisebrook Road precinct of the City of Vincent.
The central issue in both proceedings was whether development approval should be subject to a time limit and, if so, for how long. The City of Vincent did not oppose the continued operation of the plants (on suitable conditions) but argued for five year approvals. Both applicants (Hanson Construction Materials Pty Ltd and Holcim Australia Pty Ltd) argued for no time restrictions at all.
Both operations existed very close to a developed urban environment of mixed commercial and residential land use. In the Hanson Construction Materials Pty Ltd matter, the Tribunal was also required to make recommendations on certain disputed regulatory conditions; in Holcim Australia Pty Ltd, draft development conditions were eventually agreed between the parties.
The Tribunal incorporated by reference so much material as was relevant from three previous decisions concerning these same batching plants.
The Tribunal concluded that the strategic planning already under way needed to be finalised, so as to reconcile the intensifying mixed residential and commercial area of the precinct against the retention and protection of key industrial estates and infrastructure. The Tribunal therefore recommended that both plants should continue for a further five years, until such planning was completed.
In Hanson Construction Materials Pty Ltd, the Tribunal also recommended various modifications to conditions to do with dust suppression, noise abatement and traffic management.
The formal recommendations of the Tribunal were forwarded to the Minister for Planning; Culture and the Arts; Science and Innovation and to the parties in March 2012.

Category: A

Representation:

DR 264 of 2011

Counsel:

Applicant: Mr P McGowan
Respondent: Mr A Roberts

Solicitors:

Applicant: Clayton Utz
Respondent: McLeods Barristers & Solicitors

DR 225 of 2011

Counsel:

Applicant: Ms M Tannock
Respondent: Mr A Roberts

Solicitors:

Applicant: Squire Sanders
Respondent: McLeods Barristers & Solicitors

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

Cemex Australia Pty Ltd and Town of Vincent [2008] WASAT 153
Hanson Construction Materials Pty Ltd and Town of Vincent [2008] WASAT 71
Hanson Construction Materials Pty Ltd and Town of Vincent [2009] WASAT 138

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

These proceedings commenced as reviews of two decisions of the City of Vincent (respondent or City) not to approve proposals for the continued use of, and for certain structural additions and alterations to, both the existing Hanson Construction Materials Pty Ltd (Hanson) concrete batching plant located at No 71 (Lot 200) Edward Street, Perth and the existing Holcim Australia Pty Ltd (Holcim) concrete batching plant located at No 120 (Lot 1001) Claisebrook Road, East Perth. These plants are located approximately 150 metres apart.
On 9 August 2011, the Hon John Day MLA, the Minister for Planning; Culture and the Arts; Science and Innovation (Minister for Planning) directed, in accordance with s 246(2)(b) of the Planning and Development Act 2005 (WA) that the Tribunal should hear the applications without determining them, and refer them with recommendations to the Minister for Planning for determination.
The Tribunal's recommendations and reasons in relation to these two related proceedings were delivered separately on 1 March 2012 (Hanson) and 2 March 2012 (Holcim). What follows is largely taken from the transcript of the Tribunal's reasons on those dates and has been formally revised and edited for publication.
For the convenience of the reader, the Tribunal has also taken the opportunity of including throughout these published reasons, where necessary, certain non‑contentious background or supporting material and information.

Hanson Construction Materials Pty Ltd and City of Vincent ‑ DR 264 of 2011

1 March 2012

Should the delivery of reasons in Hanson be delayed?

We commence by noting that the Tribunal has given leave for the applicant's counsel in the related and similar (but not consolidated) matter, that is, Holcim Australia Pty Ltd and the City of Vincent ‑ DR 225 of 2011, to first address the Tribunal on the question of whether the delivery of reasons in this matter, that is, Hanson Construction Materials Australia Pty Ltd and the City of Vincent ‑ DR 264 of 2011, ought to be delayed until at least the conclusion of the giving of evidence and submissions in the Holcim matter.
To this end, a letter dated 29 February 2012 has been received from the applicant's solicitors, and the Tribunal has heard the applicant's counsel, Ms M Tannock, address us on that application.
The applicant's counsel in this matter, Mr P McGowan, has advanced a position neither opposing, nor supporting, the application and has left the matter for the Tribunal to determine in the exercise of its discretion. Counsel representing the City, Mr A Roberts (who is counsel in both matters), supported the Tribunal's provisional view that it would be convenient to proceed to the delivery of reasons in the first Hanson matter.
The Tribunal is not persuaded that it ought to delay the delivery of its reasons. The Tribunal has come to a clear decision in relation to the Hanson matter and while these two matters remain separate proceedings, it has always remained a possibility that, by means of the processes adopted, reasons could be delivered initially in one matter which might then have a bearing on the issues in the other matter.
In any event, the Tribunal accepts that there are some practical and efficiency advantages in giving reasons in this matter, given that, as Ms Tannock properly concedes, there is an overlap, to some degree, as regards the issues and, indeed, the evidence in the two matters.
So, for these reasons, the Tribunal refuses the application brought by Holcim to delay the delivery of reasons in Hanson.

The agreed issues and facts

The review concerns a concreting batching plant located in East Perth. The plant is currently operating. The parties in the review have agreed on certain facts and issues and have also agreed on a bundle of documents. We note that the issues as agreed between the parties are as follows:
1)whether the development approval for the applicant's concrete batching plant should be subject to a time limit; and
2)if the answer to issue 1 is 'yes', what time limit should be imposed.
So far as is relevant, the agreed facts from the joint statement of issues, facts and contentions are as follows:
3.The land the subject of this proceeding is Lot 200 (No 71) Edward Street, Perth (Site).
4.The Site is located on the periphery of the Claisebrook Road North precinct under East Perth Redevelopment Scheme No 1, at the intersection of the precinct's western and southern boundaries. The western and southern boundaries of the precinct are defined by the Graham Farmer Freeway (Primary Regional Road reserve), Lord Street (Other Regional Road reserve) and Perth to Armadale and Perth to Midland railways/rail marshalling yards (rail reserves).
5.The Site is presently developed and used by the applicant for the purposed of a concrete batching plant.
6.The schemes forming part of the applicable town planning framework for the Site are:
(a)the East Perth Redevelopment Scheme No 1; and
(b)the Metropolitan Region Scheme.
7.The Site is zoned 'urban' under the Metropolitan Region Scheme.
8.Under [the] East Perth Redevelopment Scheme No 1, the Site is located in Precinct 15: Claisebrook Road North.
9.The City is the responsible planning authority for administering the East Perth Redevelopment Scheme No 1 as it applies to the Site.
10.An application for planning approval to commence development of the Site was lodged with the City on 19 May 2011. The application sought approval for:
(a)amendments and alterations to the existing concrete batching plant; and
(b)the deletion of condition (v) of the current development approval for the Site which imposes a time limit on the approval which expires on 26 June 2012.
11.The application does not involve any intensification of, increase in or change in the current operations on the Site.
12.The City has refused to approve the application.
The refusal, as we understand it, is a deemed refusal, but nothing turns on that fact.

Previous decisions on concrete batching in East Perth

As is indicated above, the main issue for the Tribunal is whether there should be, in effect, a deletion of the current development approval time limit, which expires on 26 June 2012.
We commence by incorporating by reference and adoption so much as is relevant or necessary from three previous related decisions of the Tribunal, as to the history of these neighbouring concrete batching plants in the East Perth precinct, their background circumstances and the analysis of the planning framework then extant. Such matters are largely common ground in this matter.
These previous decisions are: Hanson Construction Materials Pty Ltd and Town of Vincent [2008] WASAT 71; Cemex Australia Pty Ltd and Town of Vincent [2008] WASAT 153 (Cemex); and Hanson Construction Materials Pty Ltd and Town of Vincent [2009] WASAT 138 (Hanson No 2) (note that 'Cemex Australia Pty Ltd' is a predecessor manifestation of 'Holcim Australia Pty Ltd').
Importantly, there is referred to, in these decisions, certain correspondence from current and previous Ministers concerning, in effect, the significance that the State government attached or attaches to these two plants' continued local supply of concrete, at least for the foreseeable future. Of course, each of the ministerial interventions or correspondence related to a specific context concerning either plant's operations. It is unnecessary for the purposes of these reasons to go into the precise details, as to the respective interventions; the Tribunal simply notes that they varied according to the circumstances.
However, we draw attention to the central views of the Tribunal which appear in Cemex. At [101], the Tribunal there said (emphasis added):
… 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.
That paragraph was cited in Hanson No 2.
It is true that the 'strategic planning framework for future development of the site' is yet to materialise, but work continues in that direction. Thus, recent high‑level correspondence to this effect (see immediately below), which the Tribunal received in this proceeding, is not only broadly consistent with the planning evidence that we received in this matter, but is also consistent with the trend of the ministerial interventions, as we have described them, in those previous cases.
The Tribunal received a copy of a letter from the Chairman of the Western Australian Planning Commission (Commission) dated 28 February 2012 addressed to the planner engaged by the applicant. The letter referred to Amendment 29. This amendment relates to the City of Vincent Town Planning Scheme No 1 (TPS 1). The effect of the proposed amendment, so far as is relevant, was to promote in the Claisebrook precinct further mixed residential and commercial development. The Commission proposed a modification to Amendment 29, the effect of which would be to allow the continuation of the concrete batching plants, to be operated, however, in accordance with certain management plans. The Chairman wrote to Mr Allerding as follows:
The [Commission's] decision to require this modification … was taken in recognition of the state and regional planning directions outlined in the draft Central Metropolitan Perth sub‑regional strategy and the draft Industrial Land Strategy. These documents encourage the retention and protection of industrial estates and infrastructure.
The 'intervention' of the Commission by way of this letter, which we can presume would be understood to have been likely to be produced to the Tribunal in these proceedings, is consistent with the line of ministerial and government interventions in previous matters to which reference has already been made above.

Duration of approval

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 day‑to‑day 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.

Conditions

We turn to the question of the associated conditions that we will recommend to the Minister for Planning.
If attention is paid to the document entitled the 'Respondent's Revised Without Prejudice Draft Conditions' dated 29 February 2012, it is apparent that condition 1 dealing with a five‑year limitation period has been dealt with in the substance of these reasons. All of the other conditions in that document (other than those matters dealt with immediately below) have been agreed as between the parties and have been accepted by us.
All of our comments that follow on the conditions to be imposed are prefaced by the observation of the Tribunal that these sites abut a developed urban environment (which we inspected), and all of our recommendations on the disputed conditions are in the context of that overarching consideration.
We turn to the remaining matters in dispute.
Condition 4 deals with the submission of a management plan, which includes this obligation:
…
(b)dust and cement waste management including regular washing down of trucks before exiting the site, dust control on site and the contribution of half of the cost of the City sweeping dust from Edward Street once a week …
In our view, proposed condition 4(b) ought to be imposed. The contribution has been offered by Mr Symonds (who is a senior manager with the applicant: see his witness statement dated 8 February 2012), and this condition addresses the response to dust spillage on roads found in Table 3.1 ('Dust Improvement Plans') of the Environmental Management Plan dated April 2010. For these reasons, proposed condition 4(b) should be imposed upon the applicant's operations.
We turn to condition 4(d), which reads:
(d)permanent and fixed dust monitoring equipment shall be installed on the perimeter of the site and independently audited to the satisfaction of the City of Vincent …
We think that this is a reasonable condition and also ought to be imposed upon the applicant's operations. The development application relates to the use of the whole site (and must accordingly recognise the site's capacity for dust generation). In effect, we see this obligation as a continuation of the HSE Environmental Dust Monitoring and EPA Regulations Compliance Review, which has already been submitted by the applicant and is in evidence before us in the agreed documents. For those reasons, condition 4(d) will be recommended to the Minister for Planning.
We note that conditions 4(k) and 4(l), which concerned complaint processes, have been deleted as they were repetitive of other conditions.
If we turn then to consider proposed condition 5(e), we find that this obligation requires the Noise Management Plan to detail the methods of ongoing self‑monitoring, including testing equipment, locations, frequency, technical parameters, interpretation of results and periodic evaluation of the monitoring method, so as to take into account any further 'encroachment' by residential development and changes to the surrounding built environment over time.
Again, we make the point that this condition relates to the whole of the site and we see this as an implementation, in effect, of SVT's Environmental Noise Assessment, which has already been completed. For these reasons, and given our view that it is a reasonable condition in the circumstances that we have referred to, condition 5(e) ought to be imposed.
This leaves condition 6(c) and then one other condition in dispute. Condition 6(c) deals with the provision of a detailed landscape and reticulation plan. We are of the view that the development of the site itself and its impact on the abutting public land requires that all such land be landscaped appropriately. That is, both as regards the internal site and as regards public land directly connected to the site. In the Tribunal's experience, such an obligation is more or less a standard requirement of similar developments and of long provenance in local government approvals. It is otherwise reasonable and ought to be imposed.
This leaves in major contention one final condition, namely, condition 8, which deals with noise abatement. The applicant has offered a condition which has the effect of making available to it an election to meet their other regulatory noise abatement obligations in terms of either the construction of a roof structure over the western portion of the site, or a restriction on the number of trucks during certain hours.
The Tribunal's view is that to have a condition imposed which contemplated the erection of another significant structure at the election of the applicant (or even if required now by the Tribunal) would be undesirable in the circumstances. However, the Tribunal thinks that the restrictions on truck movements offered by the applicant (see cl 3(b) of the applicant's 'Response to the Respondent's Without Prejudice Draft Conditions' dated 23 February 2012) are reasonable and accord with the evidence of Mr Symonds. Therefore, the Tribunal will recommend the imposition of a condition such as has been offered in cl 3(b). So, condition 8 will be in the form suggested by cl 3(b)(i) and cl 3(b)(ii) of the response document.
As there is to be a five‑year limitation period recommended, and as there is to be noise monitoring, it may be that the applicant could apply, at some stage, to have that obligation modified. But, given the offer made by the applicant and given the undesirability of having a condition along the lines of that set out in cl 3(a), dealing with a proposed roof structure, we think that cl 3(b) is, as we have said, a reasonable response to the noise abatement measures already implemented and otherwise obligated.
We propose now to adjourn and to invite Ms Tannock and Mr Roberts, having heard our reasons, to have appropriate discussions in relation to the Holcim matter and then for us to reconvene to hear the results of counsel, having taken instructions from their clients. We reaffirm our view that our principal concern would be to see whether there are, in fact, any material differences between the broad principles that we have now outlined in Hanson that would lead us to require, for example, any additional evidence in the matter of Holcim.
Our order in Hanson will therefore be as follows:
1.For the reasons given by the Tribunal on 1 March 2012 the Tribunal recommends to the Minister for Planning; Culture and the Arts; Science and Innovation that planning approval be given for the development of the applicant's East Perth concrete batching plant on the conditions set out in the attached Schedule of Conditions.
SCHEDULE OF RECOMMENDED CONDITIONS
1.This approval is granted for a term expiring on 16 October 2017.
2.This approval limits concrete batching operations and access to the site by trucks and semi‑trailers to any time between Monday and Saturday inclusive.
3.There is to be no access to the site by trucks and semi‑trailers on Sundays or public holidays.
4.Within three calendar months of the issue of the approval, the Applicant shall update the Environmental Management Plan dated April 2010 or submit a management plan to the City of Vincent which addresses the following matters:
(a)the identification of the noise attenuation measures contained in the development application;
(b)dust and cement waste management including regular washing down of trucks before exiting the site, dust control on‑site and the contribution of half of the cost of the City sweeping dust from Edward Street [once] a week;
(c)a traffic management plan for all vehicles entering and exiting the site, including driver education in regard to truck routes, vehicle speeds, and operations to minimise disturbance and public safety concerns;
(d)permanent and fixed dust monitoring equipment shall be installed on the perimeter of the site and independently audited to the satisfaction of the City of Vincent;
(e)the implementation of a complaint handling system which provides:
(i)a manned 24 hour telephone number and email address to log complaints and enquiries; and
(ii)a record of complaints and enquiries logged, and the applicant's response, shall be provided on a bi‑annual basis to the City for its monitoring information; and
(f)a review of the management plan after the first 12 months from the date of submission[;]
(g)the use of Iveco trucks during the night/early morning operations;
(h)the provision to the City of an updated training register;
(i)no water spray from sprinklers in vegetated areas being permitted beyond the boundary of the site; and
(j)engaging in any discussions with the City regarding repairs to roads which have been potentially damaged by Hanson's trucks.
5.The development must be carried out in accordance with the recommendations of the SVT Engineering Consultants Environmental Noise Assessment for the East Perth Concrete Batching Plant dated 21 April 2011, or other noise management plan endorsed by the City, including in particular, but without limitation:
(a)control/reduction of noise emitted from the site and activities associated with the site;
(b)maintenance of plant/mechanical equipment and application of inspection schedules to ensure optimal, quiet working order;
(c)selection of equipment for onsite operations, including both prospective equipment, and retrofitting of existing equipment, to minimise individual and accumulative noise impacts from the site;
(d)induction and training of workforce to promote compliant operation, in accordance with the noise management plan;
(e)detail the methods of on‑going self‑monitoring, including testing equipment, locations, frequency, technical parameters, interpretation of results, and periodic evaluation of the monitoring method (to account for further encroachment of residential development and changes to surrounding built environment over time);
(f)complaint response methods, including short and long term abatement measures and record keeping; and
(g)details of staff member(s) accountable for overseeing compliance with the noise management plan.
6.Prior to the issue of a building licence of this development, the following shall be submitted to and approved by the City:
(a)an amended plan detailing a minimum of two significant design features being incorporated in the proposed facade of building fronting Lord Street to reduce the visual impact on the streetscape;
(b)a construction management plan addressing the following issues:
(i)public safety, amenity and site security;
(ii)contact details of essential site personnel;
(iii)construction operating hours[;]
(iv)noise control and vibration management;
(v)waste management and materials re‑use; and
(vi)parking arrangements for contractors and subcontractors; and
(c)a detailed landscape and reticulation plan for the development site and adjoining road verge shall be submitted to the City's Parks and Property Services for assessment and approval.
For the purpose of this condition, a detailed landscape and reticulation plan shall be drawn to a scale of 1:100 and show the following:
(i)the location and type of existing and proposed trees and plants;
(ii)all vegetation including lawns;
(iii)areas to be irrigated or reticulated and such method;
(iv)proposed watering system to ensure the establishment of species and their survival during the hot and dry months; and
(v)separate soft and hard landscaping plans (indicating details of materials to be used)[.]
7.The following plans, as approved by the City, shall be implemented:
(a)the updated or new environmental management plan referred to in condition 4;
(b)the amended plan referred to in condition 6(a);
(c)the construction management plan referred to in condition 6(b);
(d)the landscape and reticulation plan referred to in condition 6(c).
8.Compliance with the requirements of the Environmental Protection (Noise) Regulations 1997 (WA) by ensuring that during the period:
(a)0700 hours to 2200 hours Monday to Saturday two trucks are not simultaneously idling or moving between the filling and slumping stations for a period exceeding 24 minutes in any four hour period; and
(b)2200 hours to 0700 hours Monday to Saturday only one truck is ever idling or moving between the filling and slumping stations at any one time and that such idling or movement does not exceed 24 minutes in any four hour period.

Holcim Australia Pty Ltd and City of Vincent ‑ DR 225 of 2011

2 March 2012

We commence by reproducing, by way of background, the parties' joint statement of their respective positions in this matter which are, so far as is relevant, as follows:
1.The [City]:
(a)does not oppose the applicant's proposed additions to and alterations of the existing concrete batching plant [located at Lot 1001 (No 120) Claisebrook Road, East Perth], subject to the imposition of appropriate conditions; and
(b)opposes the variation of the existing approval to delete the condition providing for the expiry of the approval on 16 October 2012 ('expiry condition') and says that any extension of the approval should be for a limited period.
2.The respondent opposes the continued operation of the concrete batching plant for an indefinite period beyond 16 October 2012 on the grounds that:
(a)the indefinite continuation of the concrete batching plant is inconsistent with orderly and proper planning for the surrounding locality which is in transition to a predominantly mixed use area comprising commercial and higher density residential development; and
(b)the concrete batching plant will have increasingly unacceptable impacts on the amenity of the locality as this transition takes place.
3.For these reasons the respondent seeks to have the Tribunal recommend to the Minister for Planning that the expiry condition not be deleted and that any variation extends the approval for a limited period.
4.Programming orders should be made for the hearing of this matter. Consideration should be given to this matter and DR 264 of 2011 [Hanson] being heard concurrently …
5.It is the Applicant's position that it is consistent with orderly and proper planning for the Applicant's operations to continue beyond the expiry of the current approval on 16 October 2012 and to continue indefinitely beyond 16 October 2012.
6.The reasons for the Applicant's position can be summarised as follows:
6.1The Applicant's development is capable of approval under the local planning framework, because it is:
(a)consistent with the objectives of the precinct; and
(b)a permissible use in the precinct following the exercise of discretion.
6.2The Applicant's development is consistent with and will not impact on the future amenity of a diverse, inner‑city community; and
6.3The Applicant's development is consistent with the regional planning framework.
7.For these reasons, the Applicant seeks that the Tribunal recommends to the Minister for Planning that the expiry condition be deleted and that no condition be substituted to restrict the timeframe for the Applicant's operations on the subject site.
8.Programming orders should be made for the hearing of this matter.
9.The Applicant is not of the view that this matter and DR 264 of 2011 [Hanson] should be heard concurrently, until such time as the parties and the Tribunal are satisfied that the two matters give rise to similar issues.
…
Our recommendation to the Minister for Planning in this matter is that development approval should also be given for this existing concrete batching plant in East Perth to continue operating for a further five years, but with a term expiring on 16 October 2017, to bring the two operations into tandem as to their respective expiry dates. The plant should operate on the conditions which have now been agreed between the parties and we so recommend. Our reasons for these conclusions may be shortly stated.
The Tribunal is of the view that the position reached by the Tribunal in respect of the related Hanson matter is not significantly different from the issues in this proceeding, and that the central reasoning applicable in that review is also applicable to the issues as ultimately characterised by the Tribunal in Holcim (see above).
In addition, the respondent has accepted this characterisation, and the applicant is not now resisting that characterisation.
Accordingly, the reasoning applied in Hanson, so far as is applicable, will form the reasoning adopted by the Tribunal in Holcim.
Our order in Holcim will therefore be as follows:
1.For the reasons given by the Tribunal on 2 March 2012 the Tribunal recommends to the Minister for Planning; Culture and the Arts; Science and Innovation that planning approval be given for the development of the applicant's East Perth concrete batching plant on the conditions set out in the attached Schedule of Conditions.
SCHEDULE OF RECOMMENDED CONDITIONS
1.This approval is granted for a term expiring on 16 October 2017.
2.This approval authorises concrete batching operations and access to the site by trucks and semi‑trailers at any time between Monday and Saturday inclusive.
3.There is to be no access to the site by trucks and semi‑trailers on Sundays or public holidays.
4.Within one calendar month of the grant of approval, the applicant must submit to the City for its approval and thereafter implement either an updated version of the Environmental Management Plan East Perth Concrete Batching Plant (Holcim) dated 24 March 2011, or a new environmental management plan which addresses the following matters:
(a)noise management for on-site activities;
(b)dust and concrete waste management including regular washing down of trucks before exiting the site, dust control on‑site and the regular sweeping and cleaning of materials spilled on surrounding roads;
(c)a traffic management plan for all vehicles entering and exiting the site, including driver education in regard to truck routes, vehicle speeds, and operations to minimise disturbance and public safety concerns;
(d)the implementation of a complaint handling system which provides:
(i)a telephone number, facsimile number and email address to be manned during all hours of operation to log complaints and enquiries; and
(ii)a record of complaints and enquiries logged, and the applicant's response, which must be provided on a quarterly basis to the City for its monitoring information;
(e)the annual review of the environmental management plan after each year following the grant of approval; and
(f)the inclusion in the environmental management plan of any addenda necessary to address any specific matter identified by either the Applicant or the Respondent between annual reviews, which addenda are to form part of the environmental management plan.
5.The development must be carried out in accordance with the recommendations made in the Herring Storer Acoustics Noise Management Plan (Ref: 12645‑3‑10164), or other Noise Management Plan approved by the City, including in particular, but without limitation:
(a)reverse the truck access route during night operations [7 pm to 6 am], so mixing trucks enter the loading area from the west, travel east through the loading bay building, then move to the night slump stand, located behind the existing delivery shed then following slumping, they turn within the site and exit via Claisebrook Road;
(b)the installation of an automatic door on the western entry point of the loading area, similar to that which is installed on the eastern side; and
(c)ensuring that the personnel entry door to the production tower is not left open between 7 pm and 7 am.
6.Prior to the issue of a building licence for this development, the following shall be submitted to and approved by the City:
(a)an amended plan detailing:
(i)material, colour and a minimum of two significant design features being incorporated in the proposed sound attenuation wall to reduce the visual impact on the adjoining properties; and
(ii)relocated footpath, footpath material, separation between proposed crossover and Westrail crossover, type, material and finish of proposed gate, which is to be visually permeable, curved mirror and appropriate internal warning signs; and
(b)a construction management plan addressing the following issues:
(i)public safety, amenity and site security;
(ii)contract details of essential site personnel;
(iii)construction operating hours[;]
(iv)noise control and vibration management;
(v)air and dust management;
(vi)waste management and materials re‑use;
(vii)parking arrangements for contractors and subcontractors;
(viii)consultation plan with nearby properties; and
(c)a detailed landscape and reticulation plan for the development site and adjoining road verge drawn to a scale of 1:100 showing the following:
(i)the location and type of existing and proposed trees and plants;
(ii)all vegetation including lawns;
(iii)areas to be irrigated or reticulated and the method to be used;
(iv)proposed watering system to ensure the establishment of species and their survival during the hot and dry months; and
(v)separate soft and hard landscaping plans (indicating details of materials to be used).
7.The following plans, as approved by the City, shall be implemented:
(a)the amended plan referred to in condition 6(a);
(b)the construction management plan referred to in condition 6(b); and
(c)the landscaping and reticulation plan referred to in condition 6(c).

I certify that this and the preceding [54] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P McNAB, SENIOR MEMBER