Hanson Construction Materials Pty Ltd and Shire Of SERPENTINE-JARRAHDALE - [2012] WASAT 140

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: HANSON CONSTRUCTION MATERIALS PTY LTD and SHIRE OF SERPENTINE-JARRAHDALE [2012] WASAT 140

MEMBER: JUDGE D R PARRY (DEPUTY PRESIDENT)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 5 JULY 2012

FILE NO/S: DR 421 of 2011

BETWEEN: HANSON CONSTRUCTION MATERIALS PTY LTD
Applicant
AND
SHIRE OF SERPENTINE-JARRAHDALE
Respondent

Catchwords:

Town planning Development application Continuation of extractive industry Application for 20 year continuation Council approval for six year continuation Preliminary issue Whether conditions can be lawfully imposed Whether conditions requiring approval and implementation of community consultation framework and annual compliance assessment reports on community engagement activities, stakeholder interaction and meetings, is for a planning purpose Whether conditions are manifestly unreasonable Mine closure plan condition Whether condition requiring a mine closure plan to be approved and implemented is reasonably related to approved development of continuation of extractive industry where it requires implementation after expiry of development approval Whether condition is manifestly unreasonable Public art contribution condition Whether condition fairly and reasonably relates to continuation of extractive industry

Legislation:

Environmental Protection Act 1986 (WA)
Planning and Development Act 2005 (WA), s 3(1)(b), s 3(1)(c), s 252(1)
State Administrative Tribunal Act 2004 (WA), s 9(b)

Result:

Conditions 12, 13 and 14 can be lawfully imposed
The issue of whether it is reasonable and appropriate to impose conditions 12, 13 and 14 in the circumstances of the case is to be determined at the final hearing of the proceedings
Condition 15 cannot be lawfully imposed as currently drafted because the Shire of SerpentineJarrahdale Local Planning Policy 59 is not, by its express terms, applicable
Whether a substituted condition 15 can be lawfully imposed and, if so, whether it is reasonable and appropriate to impose it, is to be determined at the final hearing of the proceedings

Category: B

Representation:

Counsel:

Applicant: Mr PG McGowan
Respondent: Mr CA Slarke

Solicitors:

Applicant: Clayton Utz
Respondent: McLeods Barristers & Solicitors

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

Bunbury Industrial Park v State Planning Commission (1994) 12 SR (WA) 134
Cockburn Cement Limited v The Minister for Environment (WA) [2011] WASC 260
Hasan v Moreland City Council [2005] VCAT 1931
Ironbridge Holdings Pty Ltd and Western Australian Planning Commission [2007] WASAT 305
Lloyd & Ors v Robinson and Anor (1962) 107 CLR 142
Mann and City of Rockingham [2006] WASAT 115
Newbury District Council v Secretary of State for the Environment [1981] AC 578
Starworld Holdings Pty Ltd and City of Melville [2005] WASAT 16

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Hanson Construction Materials Pty Ltd sought a determination by the Tribunal that conditions imposed by the Shire of SerpentineJarrahdale on the approval of a development application for the continuation of an extractive industry, in relation to stakeholder engagement, mine closure planning and public art contribution, could not be lawfully imposed.
The Tribunal determined that stakeholder engagement conditions requiring a Community Consultation Framework and a Community Consultation Group to be established are lawful. These conditions are for a planning purpose, namely the preservation of the amenity of the locality and orderly and proper planning, by providing a forum for discussion between the developer, relevant authorities, and the surrounding community, about the operation of the approved development and mitigation of its environmental and amenity impacts. Insofar as it is contemplated that the Community Consultation Group will discuss planning for the next stage of the extractive industry, the Tribunal observed that planning law is sufficiently flexible and practical to be able to view a particular development or subdivision application in its context as forming part of a wider planning proposal and, in particular, to enable the imposition of conditions on the approval of a particular planning application which reflect its constituent position within a wider planning proposal. While the development application in question only sought approval for continuation of the extractive industry for 20 years, it is in respect of one of a series of past and likely future 'developments' involving the extraction of the resource in an ongoing process that commenced in 1976 and is likely to continue until approximately 2100.
The Tribunal also determined that a condition requiring a mine closure plan to be submitted for approval and implemented is lawful. The Tribunal distinguished the decision of the Supreme Court of Western Australia in Cockburn Cement Limited v The Minister for Environment (WA)[2011] WASC 260, in which it was held that a condition of a licence under the Environmental Protection Act 1986 (WA) could not lawfully require pollution control equipment to be commissioned and operating after the expiry of the licence, as the condition does not fairly and reasonably relate to the approved activity. The Tribunal determined that, in contrast, a condition of development approval for a quarry requiring an approved mine closure plan to be implemented after the expiry of the approval fairly and reasonably relates to the approved development, because the approved development will have resulted in an expanded quarry pit that has a continuing impact which requires mitigation.
Finally, the Tribunal determined that a condition requiring a developer contribution for public art could not be lawfully imposed as drafted, because the planning policy in accordance with which the condition requires the payment of a contribution does not, by its express terms, apply to the proposed development. However, the Tribunal decided that the issue of whether a substituted condition would fairly and reasonably relate to the proposed development (and could, therefore, be lawfully imposed) cannot properly be determined as a preliminary issue, because it requires evidence and assessment in the context of the development as a whole.
The Tribunal ordered that the issues of whether the stakeholder engagement conditions and the mine closure plan conditions are reasonable and appropriate conditions to be imposed on the grant of development approval, and whether a substituted developer contribution condition for public art can lawfully be imposed and, if so, whether it is appropriate and reasonable that it be imposed, are to be determined at the final hearing in the proceedings.

Introduction

This proceeding involves an application brought by Hanson Construction Materials Pty Ltd (Hanson), pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), for review of the decision of the Shire of SerpentineJarrahdale (Shire or Council) to grant conditional development approval for the continuation of extractive industry operations at Lot 202 South Western Highway, Whitby (site). Whereas Hanson sought approval for the continuation of the extracting industry for 20 years, the Council granted conditional approval including condition 1 which states that 'this approval expires 31 December 2017'. Hanson commenced quarrying hard rock at the site in 1976. It is anticipated that quarrying at the site will continue until approximately 2100.

Preliminary issue

Hanson has raised a preliminary issue for determination as to whether:
a)conditions 12 and 13 relating to stakeholder engagement;
b)condition 14 relating to mine closure planning; and
c)condition 15 relating to public art contribution,
can be lawfully imposed.
The relevant legal principles in relation to the imposition of conditions on development approvals are well settled and were summarised by the Tribunal in Ironbridge Holdings Pty Ltd and Western Australian Planning Commission [2007] WASAT 305 (Ironbridge) at [20] [22] as follows:
A condition requiring a developer contribution can only be imposed on a planning approval if it is lawful and if its terms are reasonable and appropriate in the circumstances.
In Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30 at [57], McHugh J in the High Court of Australia endorsed the test for the validity of a condition of planning approval articulated by the House of Lords in Newbury District Council v Secretary of State for the Environment [1981] AC 578 in the following terms:
'A condition attached to a grant of planning permission will not be valid therefore unless:
1.The condition is for a planning purpose and not for any ulterior purpose …
2.The condition reasonably and fairly relates to the development permitted.
3.The condition is not so unreasonable that no reasonable planning authority could have imposed it.'
Perrymead Investments Pty Ltd v Western Australian Planning Commission (1996) 16 SR (WA) 181 was a case concerning the review of a condition of subdivision approval which required that an existing unsealed road be upgraded and sealed. The Town Planning Appeal Tribunal said the following in relation to the second Newbury test:
'The test of the validity and scope of a condition in this State is whether it fairly and reasonably relates to the development. The decision of [Cardwell Shire Council v King Ranch Australia Pty Ltd (1984) 58 ALJR 386], although in the context of Queensland legislation, stands for the proposition that should have application in Western Australia: the condition can be said to reasonably relate if it arises from changes precipitated by the development or subdivision. If it does reasonably relate, then it is not fatal if the condition also benefits the public at large to a greater or lesser degree.
A condition cannot arise solely from the existence of a public need which bears no relationship to the subdivision. The requirement that a condition reasonably relates to the subdivision does not, therefore, allow the Commission or the local authority to use the subdivision or development as a trigger for a future need that does not arise, in part, from the project. There is no justification for the use of conditions to promote the community infrastructure simply because the developer has come forward for approval'.

Stakeholder engagement conditions

Conditions 12 and 13 state as follows:
12.The landowner is to submit to the Shire within 12 months of this approval a plan for a Community Consultation Framework. The plan shall feature, but not be limited to, the relevant land owner, community and government agency representatives, terms of reference for the committee and the frequency of the meetings.
Once approved the plan is to be implemented in its entirety.
13.A Compliance Assessment Report for the approved Community Consultation Framework must be lodged with the local government by 31 March each year following the approval of the Community Consultation Framework. The Compliance Assessment Report shall report in summary on:
(i)The community engagement activities carried out during the preceding year;
(ii)The stakeholder interaction carried out during the year, including the number and nature of any complaints made and the response to those complaints; and
(iii)The meetings of the Community Consultation Group.
Any records kept by the operator pursuant to the Community Consultation Framework, including the minutes of the Community Consultation Group meetings, must be provided to the local government if requested in writing. The annual Compliance Assessment Report and records kept pursuant to the Community Consultation Framework are to be made publicly available.
Hanson contended that conditions 12 and 13 cannot be lawfully imposed under the Newbury District Council v Secretary of State for the Environment [1981] AC 578 (Newbury) tests, because they:
(a)do not serve a proper planning purpose; and/or
(b)are manifestly unreasonable.
The Council's Senior Planner's report to the Ordinary Council Meeting on 13 February 2012, at which the development approval was granted, contained the following:
With the increase in urban development around the site, within the Mundijong/Whitby urban area, there are many advantages for the proponent, the community and relevant government agencies in developing a Community Consultation Framework and establishing a Community Consultation Group. Firstly, the proponent can undertake much of the community consultation required as part of the ongoing development of the site. Secondly, the community can maintain a more consistent and informed response to proposed activities and redevelopments and thirdly, the government agencies['] assessment of any future application is more informed. The requirement for the formation of a Community Consultant Framework is included as a condition of approval.
The Shire submitted, and Hanson did not dispute, that the Community Consultation Group contemplated by conditions 12 and 13 'would have a role in', among other things:
•providing feedback (to and from [Hanson]) about any planning issues (in the broad sense to include environmental and social issues) the development gives rise to over time;
•promoting strategies or changes to management plans or operational practices in order to ensure the amenity of the locality is not adversely affected as the development is carried out;
•providing a forum for compliance assessment reporting by [Hanson]; and
•planning for the next stage of the extractive industry including mine closure planning …
The Shire submitted that:
The stakeholder engagement conditions challenged have a direct link to the 'bedrock' planning notions of the preservation of amenity and orderly and proper planning.
Hanson conceded that 'orderly development of land and preservation of amenity can be proper planning considerations'.
In my view, conditions 12 and 13, providing for stakeholder engagement, are for a planning purpose, namely the preservation of the amenity of the locality and orderly and proper planning. As the Shire submitted, and Hanson did not dispute, extractive industries 'generate, or have the potential to generate, a range of emissions or external effects, and are often controversial or unpopular with nearby residents and ratepayers'. The purpose of the Community Consultation Framework and Community Consultation Group is 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. Moreover, in consequence of the Community Consultation Group's role, referred to in the Shire's submissions set out earlier, the requirement for ongoing stakeholder engagement is, as the Shire submitted, consistent with:
•the purpose of the PD Act to 'provide for an efficient and effective land use planning system in the State' (s 3(1)(b) of the PD Act);
•the purpose of the PD Act to 'promote the sustainable use and development of land in the State' (s 3(1)(c) of the PD Act); and
•the objectives of the Shire of SerpentineJarrahdale Town Planning Scheme No 2 (TPS 2) of securing the amenity, health, safety and convenience of the inhabitants of the district (cl 1.6(a) of TPS 2).
Hanson submitted that the promotion of strategies or changes to management plans or practices 'is an ulterior purpose, amounting to an unauthorised interference with the management plans that [Hanson] is required to prepare and submit to the State Environment Minister in compliance with the conditions of Ministerial Statement No 563'. However, management plans and operational practices are also likely to be material in ensuring that the approved development is carried out in an acceptable manner in terms of environmental and amenity impacts, which is a core planning purpose. Furthermore, under conditions 12 and 13, the Community Consultation Group is not authorised to interfere with Hanson's compliance under other legislation.
In relation to the contemplated role of the Community Consultation Group to provide a forum for compliance assessment reporting by Hanson, Hanson submitted that 'members of a stakeholder group are not qualified to provide reports on [Hanson's] compliance with conditions of consent' and that 'imposition of the conditions for this purpose is invalid and would amount to a denial of procedural fairness'. However, the conditions do not confer any formal, coercive or deliberative role upon the Community Consultation Group in relation to compliance with the development approval. Compliance enforcement in relation to the development approval is a matter for the Shire as the responsible authority under TPS 2. The Community Consultation Group is not authorised by the stakeholder engagement conditions 'to provide reports on [Hanson's] compliance with conditions of consent'. Rather, it is anticipated that the process of stakeholder engagement provided for in conditions 12 and 13 would enable Hanson to report to the Community Consultation Group on compliance issues.
In relation to the contemplated role of the Community Consultation Group of planning for the next stage of the extractive industry, including mine closure planning, Hanson submitted (in its 'responsive submissions') that 'imposition of the condition for this purpose is invalid in that it does not fairly and reasonably relate to the development the subject of the development consent, but rather, a future development consent'. As Hanson did not contend in its primary submissions that conditions 12 and 13 are invalid on the basis that they do not fairly and reasonably relate to the approved development, the Shire did not have the opportunity to address this submission.
I did not call for submissions from the Shire on this point as, in my view, imposition of the stakeholder engagement conditions in circumstances where it is contemplated that the Community Consultation Group will discuss planning for the next stage of the extractive industry, including mine closure planning, fairly and reasonably relates to the approved development.
As the High Court of Australia recognised 50 years ago in Lloyd & Ors v Robinson and Anor (1962) 107 CLR 142 (Lloyd v Robinson), planning law is sufficiently flexible and practical to be able to view a particular development or subdivision application in its context of forming part of a wider planning proposal and, in particular, to enable the imposition of conditions on the approval of a particular planning application which reflects its constituent position within a wider planning proposal. In Lloyd v Robinson the High Court held at 153 that where:
… the subdivision for which [approval was sought] was one of a series by means of which an area, fairly to be considered as a whole, was being gradually carved up and placed on the market … it was well within the limits of a proper understanding of the [consent authority's] functions under the Act to insist, at appropriate stages in the course of application for approval to the constituent subdivisions, that open space be suitably located within the total area to satisfy reasonable requirements in respect of the total area.
(See also Ironbridge at [25] [26]).
Similarly, in this case, the approved development is but one of a series of past and likely future 'developments' involving the extraction of the resource in an ongoing process that commenced in 1976 and is likely to continue for approximately nine more decades. In the circumstances of this case, therefore, discussion of and planning for the next stage of the extractive industry does fairly and reasonably relate to the development the subject of the consent, namely the continuation of the extractive industry

Hanson also submitted that the requirement for consultation to include government agency representatives has the consequence that conditions 12 and 13:
•do not have a proper planning purpose, because they intrude into other statutory authorities' jurisdictions; and
•are manifestly unreasonable, because they duplicate the regulatory processes that are otherwise employed by those government agencies.
However, conditions 12 and 13 do not intrude into other statutory authorities' jurisdictions, but rather contemplate the involvement of relevant authorities in the Community Consultation Forum/Group as part of a condition imposed within the planning jurisdiction. Furthermore, it is not at all clear that the consultation contemplated by conditions 12 and 13 duplicates regulatory processes that are otherwise employed by government agencies. But, in any case, a condition of planning approval imposing a process which duplicates another regulatory process is not so unreasonable that no reasonable consent authority could impose it. Although such a condition would not generally be imposed in the exercise of planning discretion, there may be circumstances in which it is warranted. In Mann and City of Rockingham [2006] WASAT 115 (Mann), a case relied upon by Hanson in support of its submission that conditions 12 and 13 are manifestly unreasonable, having referred to VCAT's decision in Hasan v Moreland City Council [2005] VCAT 1931 (Hasan) at [20], which was the other case relied on by Hanson on this point, I said the following at [34]:
It is generally inappropriate to impose conditions which have no utility. Insofar as the condition seeks to impose a requirement of compliance with otherwiseapplicable legislative provisions, it appears to have no utility. (Emphasis in bold added)
As the Shire submitted, the word 'generally' indicates that there may be circumstances in which it is appropriate to impose a condition of planning approval that repeats an otherwiseapplicable requirement. Furthermore, neither Mann nor Hasan is authority for the proposition that a condition which duplicates otherwiseapplicable regulatory processes and therefore has no utility is so unreasonable that no reasonable planning authority could have imposed it. These decisions did not involve a determination as to whether conditions could be lawfully imposed, but rather a determination as to whether conditions should be imposed in the exercise of planning discretion.
It follows that conditions 12 and 13 can be lawfully imposed.
If Hanson contends that the imposition of conditions 12 and 13 is not reasonable or appropriate in the circumstances of the case, because they duplicate regulatory processes that are otherwise employed by government agencies, or for any other reason, then that should be argued and determined on the merit assessment at the final hearing in the proceedings.

Mine closure planning condition

Condition 14 of the development approval states as follows:
A Mine Closure Plan to be submitted to the Shire for approval within 12 months of the date of this approval. The Mine Closure Plan shall be prepared in accordance with the Department of Mines and Petroleum and Environmental Protection Authority draft 'Guidelines for Preparing Mine Closure Plans' (June 2011) document (as amended). Once approved by the Shire, the closure plan shall be implemented in its entirety. Council may agree, following submission of an application in writing to vary the approved closure plan. The Closure plan will:
(i)be site specific representing the characteristics of the area impacted.
(ii)will document stakeholder consultation and how stakeholder concerns have been addressed.
(iii)Show that material and site characterisation has been undertaken to identify potential closure issues.
(iv)Define closure outcomes including final land use(s) and objectives, closure criteria and where applicable, performance indicators and milestones.
(v)Identify closure issues with workable management measures proposed or in place to address those issues[.]
(vi)Show application of experience from other mine sites (where applicable)[.]
(vii)Show that appropriate plans are in place for further research and trials to increase confidence in closure outcomes (where applicable)[.]
(viii)Show that there are appropriate plans in place for progressive rehabilitation.
(ix)Show that there are appropriate plans proposed or in place for closure monitoring and maintenance.
(x)Show that there are appropriate plans proposed or in place for unplanned closure or temporary closure (on care and maintenance)[.]
Hanson submitted that condition 14 cannot be lawfully imposed under the Newbury tests, because it is:
(a)not reasonably related to the approved development in a temporal sense; and
(b)manifestly unreasonable.
Hanson presented three principal submissions in support of its contention that condition 14 offends the second Newbury test that a condition of development approval must fairly and reasonably relate to the approved development. First, relying on the decision of Edelman J in Cockburn Cement Limited v The Minister for Environment (WA)[2011] WASC 260 (Cockburn) at [30], Hanson submitted that condition 14 is 'invalid to the extent to which it requires something to be done beyond the expiry of the Approval'.
Cockburn involved a challenge to the validity of a condition imposed by the Minister for Environment on appeal on a licence under the Environmental Protection Act 1986 (WA) (EP Act). Senior counsel for the Minister conceded the invalidity of the condition. Having noted, at [27], that neither senior counsel for the Minister nor his Honour were able to locate any authority in relation to the scope of the power of the Minister under the EP Act to 'subject' a licence, by amendment, to a condition, Edelman J then referred, at [27] [28], to the second Newbury test that a condition of a planning approval must fairly and reasonably relate to the approved development or subdivision. At [29], Edelman J determined that 'The same approach should apply here to the power in the EP Act to make a licence ''subject'' to a condition'. At [30], his Honour recorded the submission made by senior counsel for the Minister as to why the condition imposed by the Minister was invalid, in the following terms:
Senior counsel for the respondents submitted that the condition imposed by the Kiln 5 Decision did not meet such requirements. In other words it was not 'reasonably capable of being regarded', or (which amounts to much the same thing) was not 'fairly and reasonably related' to the Licence. This was submitted to be so for two reasons. First, the Kiln 5 Decision does not require that anything be done during the term of the Amended Licence in relation to kiln 5. The Amended Licence expires on 30 March 2012 but the Kiln 5 Decision requires the pollution control equipment to be commissioned and operating by 30 November 2012. Secondly, the emissions to be controlled by the Kiln 5 Decision are not emissions which are authorised by the Licence. After 30 March 2012, when the Licence has expired, CCL's emissions will be regulated by the terms of a new licence: see [15] above.
At [31], Edelman J expressly accepted the submission set out at [30].
However, in my view, the decision in Cockburn is relevantly distinguishable from the present case. Unlike the licence under the EP Act in question in Cockburn, the development approval for the continuation of the extractive industry at the site in this case enables the carrying out of physical development, namely extraction of rock, and, therefore, the incidental expansion of the existing quarry pit on the site. In contrast to the licence in question in Cockburn, the development approval in this case will result in the creation of a physical work, namely an expanded quarry pit, that will be left when the development approval expires. As Edelman J held, a condition of a licence under the EP Act requiring pollution control equipment to be commissioned and operating after the expiry of the licence does not fairly and reasonably relate to the licence, because the licence has no continuing impact requiring mitigation after its expiry. In contrast, a condition of a development approval for a quarry requiring an approved mine closure plan to be implemented after the expiry of the approval fairly and reasonably relates to the approved development, because the approved development will have resulted in a (or, in this case an expanded) quarry pit that has a continuing impact which requires mitigation. The Guidelines for Preparing Mine Closure Plans referred to in condition 14 state in this regard at page 3 as follows:
Planning for mine closure is a critical component of environmental management in the mining industry. Nationally and internationally, industry leading practice requires that planning for mine closure should start before mining commences and should continue throughout the life of the mine until final closure and relinquishment. This approach enables better environmental outcomes. It is also good business practice as it should avoid the need for costly remedial earthworks late in the project life cycle.
Second, relying on the decision of the former Town Planning Appeal Tribunal in Bunbury Industrial Park v State Planning Commission (1994) 12 SR (WA) 134 (Bunbury) at 138, Hanson submitted that:
The mine closure plan 'only has meaning on the basis of the occurrence of a series of events that may not happen. As a result it would be invalid and is therefore not capable of being imposed'.
In Bunbury, the Town Planning Appeal Tribunal determined at 138 as follows:
In this case, the condition as to sewerage would be invalid as being unrelated temporally to the project as it is in regard to the possibility of future resubdivision that is not before the State Planning Commission. It may be that the State Planning Commission will not give approval to the subdivision of a super lot, the land could be sold as one entity or economic or other circumstances make subdivision of one or more lots impossible. The condition proposed is grounded and only has meaning on the basis of the occurrence of a series of events that may not happen. As a result, it would be invalid and is not therefore capable of being imposed.
However, the decision in Bunbury is distinguishable from the circumstances of the present case. In this case, once the development approval for the continuation of extractive industry operations at the site is taken up, and condition 14, therefore, becomes operative, the condition is not grounded on 'the occurrence of events that may not happen'. Rather, the condition is grounded on the occurrence of events that are authorised by the development approval itself, namely the continuation of quarrying activities at the site and the incidental expansion of the quarry pit.
Finally, Hanson submitted that para (vi) of condition 14 'is not related to the approved development[,] but rather requires assessment of other developments, which may or may not bear any relationship to the site in a land use planning context'. However, the requirement in para (vi) of condition 14 that the Mine Closure Plan 'show application of experience from other mine sites (where applicable)' does not mean that the condition does not fairly and reasonably relate to the approved development. Experience drawn from other mine sites (where applicable) is plainly relevant to the formulation of a proper Mine Closure Plan. Indeed, at page 14, the Guidelines for Preparing Mine Closure Plans specifically require that 'closure plans should identify relevant experience and research, and how lessons learnt from these are to be applied'.
I accept the Shire's submission that:
It is plain, with respect, that the requirement to prepare a mine closure plan fairly and reasonably relates to the development. While the content of the mine closure plan is not settled, and is subject to change, it is intended to at least address the closure of the excavation area the subject of the current development approval, contingency planning for early closure if circumstances unexpectedly change, and the refinement of planning for ultimate closure and postmining landform.
Hanson submitted that condition 14 is manifestly unreasonable because:
Closure of the quarry operations at the site is not anticipated until 2100 and final land uses are not presently known. A number of development approvals for the site are expected to be sought between the expiry of the Approval and mine closure in or about 2100. There remains opportunity for the review of land use planning issues throughout the life of the quarry.
However, the requirement for the approval and implementation of a Mine Closure Plan is not manifestly unreasonable in the case of a development approval for the continuation of an ongoing extractive industry. As noted in the submission of the Shire set out earlier, the Mine Closure Plan 'is intended to at least address the closure of the excavation area the subject of the current development approval'. It is hardly manifestly unreasonable to require this issue to be addressed as a condition of the development approval. Furthermore, it is not manifestly unreasonable for a Mine Closure Plan to be required to address 'contingency planning for early closure if circumstances unexpectedly change'. Although it is anticipated that quarrying operations at the site will continue until 2100, environmental, planning and economic considerations may affect this expectation. Furthermore, although circumstances relevant to the Mine Closure Plan may well change over time, both condition 14 of the Guidelines for Preparing Mine Closure Plans recognise that the Plan may be varied. Condition 14 enables the Council to 'agree, following submission of an application in writing, to vary the approved closure plan'. The Guidelines for Preparing Mine Closure Plans state at page 5 that:
Closure planning is a progressive process and mine closure plans are living documents which should undergo ongoing review, development and continuous improvement throughout the life of a mine.
Hanson also submitted that para (viii) of condition 14, which requires that the Mine Closure Plan 'show that there are appropriate plans in place for progressive rehabilitation', duplicates condition 9, which requires that an updated Excavation and Rehabilitation Management Plan be submitted and implemented which includes 'mitigating strategies for short term (within 12 months) and long term (within five years) visual amenity impacts from the extractive industry activities'. However, there is no duplication between these conditions, because condition 9 relates to the period during which excavation is taking place under the development approval, whereas condition 14 relates to the period after the expiry of the development approval.
Finally, Hanson submitted that condition 14 is manifestly unreasonable, because, referring to Starworld Holdings Pty Ltd and City of Melville [2005] WASAT 16, it attempts to 'usurp the functions of other government agencies', and, relying on Hasan and Mann, it 'has no utility in that it duplicates otherwise applicable regulatory requirements'. However, condition 14 does not attempt to usurp the functions of other government agencies, but rather imposes a condition of development approval requiring a Mine Closure Plan for approval by the Shire and implementation thereafter by Hanson. This is properly the function of a planning consent authority in relation to a quarry, whether or not other legislation also requires a Mine Closure Plan or equivalent to be submitted to another authority and implemented.
A Mine Closure Plan for a quarry is for a planning purpose, namely the preservation of the amenity of the locality and orderly and proper planning. Having regard to these core planning considerations, condition 14 is also not manifestly unreasonable in the case of the approved quarry.
Finally, it is not at all clear that condition 14 duplicates otherwise applicable regulatory requirements in relation to a quarry. But, in any case, even if it duplicates an otherwise applicable requirement, the condition would not be so unreasonable that no reasonable planning authority could impose it. As pointed out earlier, there may well be some situations in which duplication of requirements is appropriate in the circumstances of a particular case.
It follows that condition 14 can be lawfully imposed. If Hanson contends that the imposition of condition 14 is not reasonable or appropriate in the circumstances of the case, because it duplicates otherwise applicable regulatory requirements, or for any other reason, then that should be argued and determined on the merit assessment at the final hearing in the proceedings.

Public art contribution condition

Condition 15 states as follows:
A contribution towards public art being provided in accordance with Council's Local Planning Policy 59.
It is common ground that the Shire of SerpentineJarrahdale Local Planning Policy No 59 (LPP 59) only requires developer contributions for public art where the construction cost of a development is $1,000,000 or more, and that LPP 59 does not, therefore, by its express terms, authorise the imposition of condition 15 which purports to be imposed in accordance with that Policy. It follows that, as currently drafted, condition 15 cannot be lawfully imposed.
However, the Shire contended that an alternative condition requiring a developer contribution for public art could be lawfully imposed under the Newbury tests. In particular, the Shire submitted that LPP 59 is 'grounded in the State Government's ''Percent for Art Scheme'' and is intended to apply to substantial developments within the Shire'. The Shire foreshadowed a submission that it wishes to make at the final hearing in the proceedings that:
(a)the development is a substantial development with a value that should be treated as analogous to the construction cost as defined in LPP 59;
(b)LPP 59 should be applied by analogy to the proposed development; and
(c)a public art contribution should be applied in the circumstances of this case.
Hanson submitted that any condition requiring a developer contribution for public art would not fairly and reasonably relate to the proposed development and that the lack of nexus is fatal to any such condition under the Newbury tests. The Shire submitted that it should be permitted to present evidence and argue at the final hearing that the development 'will bring with it changes that affect the amenity of the locality (eg visual amenity, heavy haulage traffic), and which precipitate the public art condition, because the condition promotes a sense of place of the locality and benefits amenity'.
In my view, the issue of whether a substituted public art contribution condition fairly and reasonably relates to the proposed development (and can, therefore, be lawfully imposed) cannot properly be determined as a preliminary issue, because it requires evidence and assessment in the context of an analysis of the development as a whole. Furthermore, it appears that common or similar evidence and submissions would be presented by the parties in relation to both whether a developer contribution condition for public art fairly and reasonably relates to the proposed development (and can, therefore, be lawfully imposed) and, if so, whether the imposition of such a condition is reasonable and appropriate in the circumstances of the case. Having regard to the Tribunal's objectives set out in s 9(b) of the State Administrative Tribunal Act 2004 (WA) 'to act as speedily … as is practicable, and minimise the costs to parties', these issues should properly be argued concurrently at the final hearing.

Conclusion

Conditions 12 and 13, relating to stakeholder engagement, and condition 14, relating to approval and implementation of a Mine Closure Plan, can be lawfully imposed. The issue of whether it is reasonable and appropriate in the circumstances of this case to impose any or all of these conditions should be determined at the final hearing of the proceedings.
Condition 15, which requires a developer contribution for public art, cannot lawfully be imposed as it is currently drafted, because LPP 59 does not, in its express terms, apply to a development which does not have a construction cost of $1,000,000 or more. However, the issue of whether a substituted condition requiring a developer contribution for public art fairly and reasonably relates to the proposed development (and can, therefore, be lawfully imposed) and, if so, whether it is reasonable and appropriate in the circumstances of the case to impose such a condition, should be determined at the final hearing of the proceedings.

Orders

The Tribunal makes the following orders:
1.Conditions 12, 13 and 14 of the development approval granted by the Shire of SerpentineJarrahdale on 13 February 2012 can be lawfully imposed.
2.The issue of whether any or all of conditions 12, 13 and 14 of the development approval granted by the Shire of SerpentineJarrahdale on 13 February 2012 are reasonable and appropriate conditions to be imposed on the grant of approval for the proposed development is to be determined at the final hearing of the proceedings.
3.Condition 15 of the development approval granted by the Shire of SerpentineJarrahdale on 13 February 2012 cannot be lawfully imposed as currently drafted, because the local planning policy in accordance with which the contribution is required to be provided under the condition is not, in its express terms, applicable to the proposed development.
4.The issue of whether a substituted developer contribution condition for public art can be lawfully imposed and, if so, whether it is reasonable and appropriate in the circumstances of the case to impose it in respect of the proposed development, is to be determined at the final hearing of the proceedings.

I certify that this and the preceding [52] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE D R PARRY, DEPUTY PRESIDENT