Hanson Construction Materials Pty Ltd and Shire Of SerpentineJarrahdale

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: LOCAL GOVERNMENT ACT 1995 (WA)

CITATION: HANSON CONSTRUCTION MATERIALS PTY LTD and SHIRE OF SERPENTINEJARRAHDALE [2013] WASAT 36

MEMBER: MR J JORDAN (MEMBER)
MR P CURRY (SESSIONAL MEMBER)

HEARD: 20 NOVEMBER 2012

DELIVERED : 7 MARCH 2013

FILE NO/S: DR 48 of 2012

BETWEEN: HANSON CONSTRUCTION MATERIALS PTY LTD
Applicant
AND
SHIRE OF SERPENTINEJARRAHDALE
Respondent

Catchwords:

Local government Extractive industry local law Hard rock quarry operating nearly 40 years Further conditional approval of extractive industry licence Condition granting approval for five years Planning approval granted under local planning scheme for 15 year period Purpose of extractive industry licence Relationship of extractive industry licence to planning approval Neighbouring uses Structure planning for locality

Legislation:

Environmental Protection Act 1986 (WA), s 45(5)
Extractive Industries Local Law, cl 2.1, c 3.1, cl 4.2, cl 4.3(4)
Local Government Act 1995 (WA), s 9.7(1)(a)
Metropolitan Region Scheme
Shire of SerpentineJarrahdale Town Planning Scheme No 2
State Administrative Tribunal Act 2004 (WA), s 31(1)

Result:

Application approved with approval period for extractive industry licence extended to 31 December 2027 to correspond with planning approval period

Summary of Tribunal's decision:

Hanson Construction Materials Pty Ltd applied for review of a condition imposed by the Shire of SerpentineJarrahdale that set a five year period for the renewal of an extractive industry licence for a hard rock quarry.
The Shire considered that a five year licence would provide a mechanism for monitoring the operation of the quarry and the impact it might have on future residential development in the district. The applicant was seeking a 15 year approval period so that the extractive industry licence and the planning approval for the quarry would expire at the same time.
The Tribunal decided to approve the application and grant an approval period for the extractive industry licence that expired on 31 December 2027, the same date as the expiry of the planning approval granted for the use. Approval was granted because of, in this case, the history of the operations on the site, the planning framework in place for future residential development in the district and the controls in place under the approvals granted under the local planning scheme and the Environmental Protection Act 1986 (WA).

Category: B

Representation:

Counsel:

Applicant: Mr P McGowan and Mr M Etherington
Respondent: Mr C Slarke

Solicitors:

Applicant: Clayton Utz
Respondent: McLeods Barristers & Solicitors

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

Hanson Construction Materials Pty Ltd and the Shire of SerpentineJarrahdale [2012] WASAT 140
Keysbrook Leucoxene Pty Ltd and Shire of SerpentineJarrahdale [2012] WASAT 212
Re Smith; ex parte Ransberg Pty Ltd (1992) SCWA Library No 920503b (1993) 80 LGERA 401
Tah Land Pty Ltd v Western Australian Planning Commission [2009] WASC 196
West Australian Landfill Services Pty Ltd and Shire of SerpentineJarrahdale [2007] WASAT 297

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

This proceeding involved an application by Hanson Construction Materials Pty Ltd (applicant or Hanson), pursuant to s 9.7(1)(a) of the Local Government Act 1995 (WA), for review of a condition imposed by the Shire of SerpentineJarrahdale (respondent or Shire) setting a five year period for an extractive industry licence renewal for a hard rock quarry at Lot 202 South Western Highway, Whitby (site).

Background

The parties agreed the following facts concerning the site and the approved extractive industry use.
The site is located within a small valley of the Darling Scarp approximately 40 kilometres southeast of the Perth city centre, 5 kilometres south of the Byford townsite, 4 kilometres northeast of the Mundijong townsite and nearly 1 kilometre east of the South Western Highway. There has been an operating hard rock quarry on the site at least since 1976. In 1992, the Minister for the Environment issued a statement under the Environmental Protection Act 1986 (WA) (EP Act) granting conditional approval for the quarry. The use is regulated under s 45(5) of the EP Act through Ministerial approval conditions and through the Department of Environment and Conservation (DEC) under Pt V licensing provisions.
Previous planning and extractive industry approvals issued by the respondent for the operation of the quarry expired on 31 March 2012. Prior to that date, in August 2011, the applicant applied to the Shire for planning approval under the respondent's Town Planning Scheme No 2 (TPS 2), and for renewal of an extractive industry licence under the respondent's Extractive Industries Local Law (EI Local Law) to 'facilitate the continued operation and expansion of the quarry'.
The planning application was for a 20 year period of approval and the extractive industry licence application was for a 10 year period of approval. It was proposed to expand the existing pit by approximately 6 hectares to 8 hectares over the next 20 years.
At its meeting of 13 February 2012, the Shire resolved to grant planning approval for a period of 10 years, expiring 31 December 2022, and an extractive industry licence for a period of five years, expiring 31 December 2017.
Hanson lodged with the Tribunal respective applications for review of various conditions in the two approvals, including the granted approval periods.
Following mediation in the Tribunal, the Shire was invited to reconsider its decisions on both the planning applications and the extractive industry licence application, pursuant to s 31(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). At its meeting on 27 August 2012, the Shire resolved to:
a)modify condition 1 so as to extend the term of the planning approval to 15 years, expiring 31 December 2027; and
b)affirm its previous decision to grant an extractive industries licence for a term of five years, expiring 31 December 2017.
On 25 September 2012, Hanson amended its application for review, informing the Tribunal that Hanson:
… opposes the 5 year limit on the approved extractive industries licence. The applicant seeks an amended term that expires on 31 December 2027 (being the expiry date for the related planning approval).

Regulatory and policy framework

EI Local Law

Clause 2.1 of the EI Local Law provides as follows:
A person must not carry on an extractive industry
(a)unless the person is the holder of a valid and current licence; and
(b)otherwise than in accordance with any terms and conditions set out in, or applying in respect of, the licence …
An application for renewal of an extractive industries licence is determined pursuant to cl 4.3(4) of the EI Local Law, which provides:
Upon receipt of an application for the renewal of a licence, the local government may
a)refuse the application; or
b)approve the application on such terms and conditions, if any, as it sees fit.
Clause 3.1(1) of the EI Local Law states:
The local government may refuse to consider an application for a licence that does not comply with the requirements of clause 2.3, and in any event shall refuse an application for a licence where planning approval for an extractive industry use of the land has not first been obtained.
Clause 3.1(3) of the EI Local Law states:
Where the local government approves an application for a licence, it must
(a)determine the licence period, not exceeding 21 years from the date of issue; and
(b)approve the issue of a licence in the form determined by the local government from time to time.
Clause 3.1(5) of the EI Local Law lists the matters in respect of which conditions may be imposed on an extractive industry licence. These include operating and environmental requirements to control items such as noise and dust, and, at (s), 'any other matter' for regulating the extractive industry.

Planning Policy 14 Extractive Industry Licences

In August 2005, the Shire adopted Planning Policy 14 Extractive Industry Licences (EI Policy). The EI Policy contains the following provision in relation to the length of a licence reissued for an extractive industry:
LENGTH OF LICENCE
The initial licence issued to an extractive industry upon receiving planning approval to commence will be one year. The length of licence where the licence is being renewed will be determined through a compliance system.
Compliance System
Audits are undertaken by Shire staff to review compliance with extractive industry licence conditions. During audits areas of non compliance are recorded. These areas of non compliance will be determined to be minor, major or critical as per this policy and assigned points accordingly. The length of licence will be calculated on the total number of non compliance points accumulated at the most recent audit undertaken in the six months prior to licence renewal. Points achieved in a previous audit will be added to the total score if there has been no action to become compliant or work towards a solution on this issue.

Non Compliance Points:
The points for each category of non compliance are:
Critical:10 points
Major: 5 points
Minor: 1 point

Length of Licence:
The length of licence will be determined by the total score of non compliance as follows:
02 points:5 year licence
35 points:3 year licence
5 10 points: 1 year licence
11 or more points: 6 month licence this must be resolved by Council[.]

District and local structure planning

The Western Australian Planning Commission (Commission) has endorsed, and the Shire has adopted, the Mundijong Whitby District Structure Plan (Mundijong Whitby DSP) which comprises some 1,420 hectares. The Mundijong Whitby DSP area is divided into seven precincts and in the northeastern corner, which is closest to the site, is Precinct A. The Shire has adopted for Precinct A the Whitby Precinct A Local Structure Plan (Whitby Precinct A LSP).

Environmental Protection Authority Guidance Statement No 3

The Guidance for the Assessment of Environmental Factors Separation Distances between Industrial and Sensitive Land Uses (June 2005) published by the Environmental Protection Authority (EPA) (EPA Guidance Statement No 3) recommends a buffer distance of 1,000 metres between hard rock excavation, crushing and screening in the Darling Scarp and sensitive receptors. There are presently no dwellings within the buffer distance. It was not disputed that a former dwelling within a 1,000 metre radius of the site was owned by a neighbouring quarry and used for commercial purposes.

State Planning Policy

Under the Commission's Statement of Planning Policy No 2.4 Basic Raw Materials (SPP 2.4), the site is recognised as containing a regionally significant resource to be protected under the local planning scheme for longterm supply.

The issue

The issues that the parties identified as the issue that is essentially the ultimate question in this matter is whether a licence should be granted under the EI Local Law for a term of five years, as contended by the respondent, or a term of 15 years, as contended by the applicant.

Discussion

It was the submission of the respondent that planners and various experts have limited predictive power, and assumptions that have to be made when granting approvals and licences may later prove to be inaccurate. The respondent said it uses an extractive industry licence renewal to review, from time to time, the adequacy of the management practices used to manage risks to the environment or amenity put in place by the planning approval. A five year term for an extractive industry licence has been a useful and effective mechanism to encourage compliance with conditions of planning approval.
Mr Anthony Turner, Manager Health, Rangers and Development Compliance for the Shire, appeared as a witness. Mr Turner said the respondent's approach was not to cancel a licence using cl 4.2 of the EI Local Law, but was to work with operators to encourage good practice and compliance to achieve good outcomes for extractive industries.
The respondent said that if there was an influx of residents into the district and there were difficulties in complying with the noise and dust control regimes, or there were a large number of complaints, then the management of the quarrying operation would need to change. The issue was how this could be achieved. A five year term for the extractive industry licence would provide a suitable opportunity to review and improve the existing operational management plans and practices with the benefit of an evidencedbased approach in the new environment of closer residential scrutiny. Mr Turner said that the objective method put in place under the EI Policy allows the calculation of noncompliance points as a guide to the approval period to be granted.
The respondent said that when considering an application for an extractive industry licence the respondent was obliged to have regard to planning considerations: Re Smith; ex parte Ransberg Pty Ltd (1992) SCWA Library No 920503b (1993) 80 LGERA 401 (Re Smith). It was the respondent's submission, particularly in respect of dust and noise, that for the time being the respondent has accepted that management plans, as submitted and approved under the planning application, were adequate. The respondent acknowledged that, in any event, the applicant has to comply with the planning conditions that prohibit the transmission of dust and noise, and the objective of those requirements was unlikely to change.
The respondent argued, however, that in five years time, when residents were closer, it may be appropriate through the mechanism of the extractive industry licence to assess whether the management plans should be amended to perhaps take into account more scientific methods of dealing with, particularly, dust.
Clause 3.1(1) of the EI Local Law requires that a local government shall refuse an application for a licence where planning approval for the extractive industry has not first been obtained. A conditional planning approval for the proposed development has been granted by the respondent.
Counsel for the applicant also cited Re Smith in support of the submission that, because of the express words of cl 3.1(1), the EI Local Law was in a subordinate interrelationship with TPS 2. Re Smith, at page 419, states in reference to cl 3.1(1) of the EI Local Law, that '[t]his provision clearly indicates an intention that the Extractive Industries By-laws were intended to be subordinate to general bylaws under the Town Planning and Development Act'. Mr McGowan, in further support of the applicant's submission, cited the following paragraph from Re Smith, at page 421:
The fact that the objections raised by the council had been fully investigated in the context of a [planning] appeal was a relevant consideration which the Minister [for Local Government] was bound to take into account. Having regard to the subordinate character of the Extractive Industries By-laws the Minister was bound to give effect to the decisions of the Minister for Planning according to their tenor.
The Tribunal has found that, as submitted by the applicant, the extractive industry licence issued under the EI Local Law is subordinate to the planning approval issued by the respondent under its local planning scheme.
It was certainly necessary that the local government be aware of, and have regard to, the conditions of the planning approval it had itself issued at the same time as the extractive industry licence was issued. As pointed out by the respondent, cl 3.1(5) of the EI Local Law includes an extensive list of matters that might be the subject of conditions imposed on an extractive industry licence. The Tribunal is of the view, however, that if it was necessary to renew the extractive industry licence, the availability of this list does not provide an opportunity to duplicate or add conflicting conditions on matters already the subject of planning approval conditions.
In Keysbrook Leucoxene Pty Ltd and Shire of SerpentineJarrahdale [2012] WASAT 212 (Keysbrook Leucoxene), the Tribunal addressed as an issue what was termed 'parallel' conditioning; that is, whether the requirements of the Ministerial statement under the EP Act be the subject of parallel conditions in approvals given under the planning scheme and the extractive industry licence. In Keysbrook Leucoxene, at [30], the Tribunal said '… it is unnecessary to duplicate such requirements in the Shire's conditions'.
The Tribunal, with respect, adopts the position of the Tribunal in Keysbrook Leucoxene. To be consistent, the Tribunal cannot support a situation where the review of an extractive industry licence in, say, five years, could be used as a device to reopen consideration of matters settled as conditions in the planning approval, with the possible result that there might be imposed 'parallel' conditions under the extractive industry licence that are essentially at odds with the conditions of the planning approval.
The planning approval for the development issued in September 2012 included a requirement for an excavation and rehabilitation management plan and conditions requiring community consultation. How the quarry is operated will be monitored, and this information will be available to community representatives and to the Shire. The respondent has stated that its preference is that there is direct consultation with the applicant if it is perceived that certain practices may need to be addressed because they are not consistent with the undertakings given in respect of, for example, noise and dust. The respondent said consultation, and what was described as 'the stick' of the renewal of the extractive industry licence, would be less cumbersome than prosecution and sanctions under the Planning and Development Act 2005 (WA).
The Tribunal does not accept that difficulty in ensuring compliance with planning conditions is sufficient to subsequently include in an extractive industry licence renewal a condition where it has previously been decided that development control is more appropriately imposed as conditions of the planning approval.
This conclusion by the Tribunal leads then to the question of what is the appropriate term for the extractive industry licence before renewal is required and the interrelated question of the relationship between the EI Local Law and the respondent's EI Policy.
Mr Turner acknowledged the maximum approval period of 21 years available at cl 3.1(3) of the EI Local Law. Mr Turner said, however, that in his experience, the period of approval for renewal of an extractive industry licence was now determined by the non-compliance points calculated in the objective assessment under the EI Policy. In this matter, the score of zero enabled a five year period to be granted for the extractive industry licence.
The Tribunal notes that the EI Policy does not provide a score or any other mechanism for imposing an approval period of between five years and 21 years. The Tribunal agrees with counsel for the applicant that to rely on the scoring system of the EI Policy is, in effect, fettering the proper application of the EI Local Law. A properly adopted policy must be given due weight, but policy cannot be more than a guide and cannot be inflexibly applied: see Tah Land Pty Ltd v Western Australian Planning Commission [2009] WASC 196. The determination of the period of the extractive industry licence must include an objective assessment of how the operation has been undertaken in the past, and how it is proposed to operate in the future unfettered by a scoring system. An EI Policy that caps the approval period is in conflict with the EI Local Law.
It was uncontested that the quarry had a record of operating under DEC regulation, planning conditions and the EI Local Law without significant impacts on environment or amenity and without compliance problems.

The respondent, in its statement of issues, facts and contentions, stated:
An audit of the Site was undertaken on 10 November 2011. The audit and site inspection did not identify any issues of noncompliance with conditions of the then current extractive industry licence or development approval and accordingly the number of audit or noncompliance points [under the EI Policy] was assessed at 0.
If it is determined that the quarry has been consistently operating within the constraints imposed in the respective approvals, and there have been imposed conditions to ensure this continues, then, what period should be granted for the extractive industry licence?
In Keysbrook Leucoxene, at [64], the Tribunal stated:
… There should also be consistency between the period of development approval and the corresponding authority to mine under the local law. Thus, prima facie, the local law period of the licence should also run for eight years. …
It was the respondent's submission that the principle enunciated in Keysbrook Leucoxene should not apply in this case. Keysbrook Leucoxene involved the commencement of a new development to mine mineral sand, with an expected duration from commencement to rehabilitation of about 10 years, with extraction being finished within eight years. The application of the EI Policy was not an issue that came up for discussion. By contrast, in this matter, the established hard rock quarry has a planned life to at least the year 2100 and, as discussed below, the respondent believes that the residential development planned immediately to the west of the South Western Highway will commence within the next few years.
The respondent's submission was that, in this matter, the circumstances were so different that there was a need for a 'probationary' period, expressed through the mechanism of the extractive industry licence, to monitor compliance with planning and environmental conditions.
The Tribunal is of the view that there are parallels between this proposal and the mining proposal in Keysbrook Leucoxene. Both are large scale extraction projects subject to the Shire's planning conditions addressing operational issues in respect of environmental, amenity and social values. As in Keysbrook Leucoxene, the proposal is regulated under the EP Act through Ministerial approval conditions and DEC licensing provisions.
The Tribunal has found that the operating record of the quarry to date, and the controls in place, do not reveal any substantial grounds for having any particular difference between the period of the planning approval and the period of the extractive industry licence.
The respondent submitted that the period of the extractive industry licence should be less than that of the planning approval because in the near future there will be residential development near to the site, and it will be necessary to assess the impact of the quarry operations on the residential development and to consider any change required to alleviate the impact of the operation.
Mr Turner was of the opinion that the 'development front is moving rapidly through the Shire'. He said that development will occur west of the site during the next five years guided by, in part, the Mundijong Whitby DSP and, more particularly, by the Whitby Precinct A LSP.
The crushing, stockpiling and loading facilities at the northern end of the site would remain in the same location even as the quarrying progressed to the southeast, according to the evidence of Mr John Symonds, Development Manager, Western Region, for Hanson.
Mr Turner's concern was that there would have to be reliance on the generic 1 kilometre buffer from the quarry for the next 15 years if the application was allowed.
Mr Turner was of the view that a five year term would provide the opportunity, particularly if there were complaints, to reassess the impact of emissions and other external effects from the site and management practices, and to consider the implications for urban development in the locality.
Mr Slarke, for the respondent, said that:
… the five year review will be a benefit to the applicant and the shire as a form of insurance against potential complaints from new residents.
If we have that review there can be an evidencebased best practice response to complaints through changes to management plans, if necessary, or an evidencebased rebuttal of unreasonable comments, as the case may be. (T:4445; 20.11.12)
Mr Stephen Allerding, a town planning consultant who appeared as a witness, explained that the site at its closest point is 725 metres from the South Western Highway. Immediately west of the South Western Highway, in the north-eastern corner of the Whitby Precinct A LSP area, is a 'Bush Forever' site within land reserved as Parks and Recreation under the Metropolitan Region Scheme (MRS). The maps of Whitby Precinct A LSP illustrate that the closest areas of residential development would be 1,080 metres distant, outside the 1,000 metre buffer from the western boundary of the site required by EPA Guidance Statement No 3.
Mr Allerding referred to the Commission's planning framework 'Directions 2031' which, at cl 10.4.1, states that development at Mundijong would follow that currently underway near Byford and is therefore considered medium to longterm growth. That means, he said, the document does not identify urban development in the area of the Whitby Precinct A LSP within the next 15 years.
Mr Allerding also pointed out that 'Directions 2031' states that careful consideration needs to be given to urban development where it may adversely impact upon basic raw materials. Mr Turner, in his witness statement, also made the comment that extractive industry should not be unduly constrained by future residential development, and that extractive industries are a significant part of the local and regional economy, and the Shire's planning and approval framework has taken that into account.
Mr Allerding was of the opinion that the Commission and the respondent, in approving the Whitby Precinct A LSP, would have included consideration of suitable separation between the quarry and the future urban area. He was of the view that the future use of the site over the next 15 years would not conflict with sensitive land uses and development.
The Tribunal, on the evidence before it, including the reference in 'Directions 2031' and the distance from the urban front and infrastructure at Byford, prefers Mr Allerding's summation of any timetable associated with urban development in the Whitby Precinct LSP area.
It is noted, as submitted by the respondent, that the absence of complaints about the performance of the quarry might well be directly related to the absence of any suburban type residential development in this locality. The respondent said that residents 'coming to the nuisance' was not a defence of the nuisance, if nuisance was created through unacceptable operation of the quarry. The Tribunal would comment, however, that, as stated by Mr Turner, an audit of the practices of the quarry within the last two years, referred to above in the context of a 'score' under the EI Policy, revealed that the established standards were being complied with. The Tribunal also considers it a reasonable assumption that the structure planning for the locality included contemplation of the current buffer distances and development standards.
Immediately to the northwest of the site is the South Cardup landfill site. In West Australian Landfill Services Pty Ltd and Shire of SerpentineJarrahdale [2007] WASAT 297 (West Australian Landfill Services) the Tribunal held, at [46]:
Clause 5.11.1 of the Scheme clearly suggests that the use of the site for the special purpose of landfilling is appropriate in terms of orderly use and development of land and satisfies a specific need in the locality. The Tribunal also accepts Mr Smith's evidence that the unusual and specific zoning of the site 'sends a clear warning to the community and surrounding landowners that waste disposal and associated activities is to be regarded as a longer term use of the land and that due regard needs to be paid to the landfill in making locational or development decisions'.
The Tribunal considers that, with respect, the situation in this matter is analogous with that in West Australian Landfill Services. Any future subdivision and residential development in the Whitby Precinct A LSP area would first require rezoning to residential by amendment to TPS 2. Until that occurs, there will be regular audits of the practices and performance of the quarry because of the various conditions of approval. The audits may or may not require adjustment to the buffer around the quarry. Orderly and proper planning should dictate that, notwithstanding that certain areas are designated for urban development in a structure plan, rezoning and subdivision to provide for residential development in those areas must have regard to any established buffer around the quarry.
As stated above, however, the Tribunal has accepted that this is more likely to be a consideration closer to the 15 year time span indicated by Mr Allerding rather than the two to three years suggested by Mr Turner.
A further concern of the respondent was that it had not had the opportunity to adequately consider any possible cumulative impact of the several similar operations in the locality of the site on the increasing residential development expected in Mundijong Whitby DSP area in the next three to five years. In the vicinity of the site are two extractive industry operations one for clay, the other a second hard rock quarry and the South Cardup Landfill site.
The respondent argued that a five year licence term would provide a timely opportunity to assess potential cumulative impacts, having regard to management plans and ongoing monitoring programs for the site and the neighbouring sites. The respondent said monitoring plans prepared by the applicant to address issues of noise and dust had not been prepared having regard to future urban development and population growth and the changes to the local amenity that would result.
The applicant put into evidence a letter dated 12 December 2011, from the EPA to the Shire, in response to the Shire's referral to the EPA of the Hanson proposal for the extractive industry licence. The letter stated:
The EPA has previously assessed this proposal in 1991 at the level of Consultative Environmental Review … the Conditions contained in Ministerial Statement 227 apply to this proposal and are adequate to ensure quarrying operations do not have a significant environmental impact.
As this is the case, and the Shire … has not raised any new environmental factors, the office of the EPA is treating your referral as correspondence.
Mr Symonds stated that the 1992 Ministerial Statement No 227 and the EP Act continued to apply to the operations of the site, including 'proponent commitments' for ongoing dust monitoring. The monitoring was part of the applicant's dust management plan which would continue to be reviewed annually as part of its commitment. In his written statement, Mr Symonds cited cumulative impacts as one of the 'principles of [Environmental Impact Assessment] for the EPA, identified in the EPA's Environmental Impact Assessment Administration Procedures 2010' which the EPA considered in determining whether a referred proposal was significant.
The respondent contended that the possibilities of cumulative impacts contemplated in 1992 could change. Under crossexamination, Mr Symonds acknowledged that while he was happy that there was no cause for Hanson to be concerned about cumulative impacts, the applicant did have concerns about the respondent's suggestion that there could be ingress of residents in the vicinity of the quarry as a result of the Mundijong Whitby DSP.
Mr McGowan said that the proposal for the extension of the landfill operation was referred to the EPA, which chose not to reassess the proposal. In relation to prospects for further urban development in the vicinity of the extended South Cardup Landfill, in West Australian Landfill Services, the Tribunal imposed planning conditions on a proposal which had also been reassessed by the Assessment on Referral Information (ARI) level of the EPA, based on 2006 information submitted to the EPA, plus additional information that the EPA requested. The landfill operation has been regulated under DEC licensing and the Ministerial conditions, and in full knowledge of the continuing Hanson operation.
In light of the Tribunal's conclusion of the timing of residential development in the locality and the formal scrutiny of the proposal by both the EPA and the Commission, the Tribunal has formed the view that there is no evidence of a likelihood of unacceptable cumulative impacts on residential development associated with the proposal in the period of the extractive industry licence the applicant is seeking.
Mr Slarke also contended that in this matter a probationary period, through the mechanism of the extractive industry licence, was an exception to the prima facie principle that there should be consistency of the licensing period with the planning approval period, as was recognised by the Tribunal in Keysbrook Leucoxene.
Mr Slarke explained that the Shire was concerned that for the 15 years of the planning approval, while the applicant was able at any time to voluntarily submit for approval improvements to its management plan, there was no mechanism by which the respondent could compel changes to the management plans prepared under the conditions of planning approval that might be considered necessary by reason of changing circumstances and monitoring, other than by launching a prosecution for breach of the planning conditions.
The submission was that the Shire would rather work with the operator of the quarry to amend the plans, to make the operation work better, rather than be forced to proceed with enforcement. The Shire was seeking an alternative control through performance audits and a mandating licensing renewal process by which a potentially costly and difficult prosecution could be avoided.
In Hanson Construction Materials Pty Ltd and the Shire of SerpentineJarrahdale [2012] WASAT 140 at [15], Parry J, Deputy President, stated that the planning purpose of a Community Consultation Framework and a Community Consultation Group required under planning conditions 12 and 13 was:
… to preserve the amenity of the locality and promote orderly and proper planning by providing a forum for discussion between Hanson, relevant authorities and the surrounding community, about the operation of the approved development and mitigation of its environmental and amenity impacts. …
Mr McGowan, for the applicant, cited Keysbrook Leucoxene, at [64]:
… As we have conditioned the development for extensive auditing of the management plans, which are additional to those required as an assessed and extensively regulated project under the EP Act, we do not see that there is a need for an effective review or probation period expressed in the period of the extractive industry licence.
In the applicant's view, the same principle should apply to the development proposed in this matter as there is no reasonable basis established to justify a probationary period for the licence. Mr McGowan submitted that the planning approval is an overarching approval that deals directly with issues of dust, noise, water resources, biodiversity impact, and with the management of impacts, including through a longterm mine closure plan. The 15 year planning approval period was determined and imposed by, rather than upon, the Shire.
The Tribunal has formed a view consistent with that expressed by the applicant. In this instance, beyond the scope of audit reports and annual reviews to ascertain compliance, the extractive industry licence cannot be looked upon as a separate alternative source of risk assessment by which to limit a planning approval or to recast the requirements otherwise found in the planning conditions.
Both parties have an interest in maintaining an effectively functioning Community Consultation Group and avoiding any possible noncompliance and associated costs of prosecution. Planning conditions and regulation of the proposal by Pt IV Ministerial Conditions and Pt V Licensing Provisions under the EP Act, together, can be expected to generate an operating record of issues which might constitute risk to the environment and amenity. This information would be a primary source of objective information for assessing risks associated with this extractive industry. Individually, or jointly, including via the Community Consultation Group, the respondent and the applicant may then consider opportunities for improvement of the management plan to properly address any perceived, existing or new (including potentially cumulative) risk to the environment or to amenity.

Conclusion

The Tribunal has determined that an approval period to correspond with the approval granted under TPS 2 is appropriate in this matter; that is, until 31 December 2027. This is because of, for this site, the history of the operation, the planning framework in place for future residential development in the district and the controls in place under the approvals granted under TPS 2 and the EP Act.

Orders

1.The application for review is allowed.
2.The words 'For the period ending 31 December 2017' are deleted from the respondent's extractive industry licence for Lot 202 South Western Highway, Whitby, dated 12 June 2012 and the subject of the respondent's resolution of 27 August 2012, and replaced with the words 'For the period ending 31 December 2027.

I certify that this and the preceding [74] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J JORDAN, MEMBER

Hanson Construction Materials Pty Ltd and Shire Of Serpentine­Jarrahdale

[2013] WASAT 36

7 MARCH 2013