Hanson Construction Materials Pty Ltd and Town Of Vincent - [2008] WASAT 71

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: HANSON CONSTRUCTION MATERIALS PTY LTD and TOWN OF VINCENT [2008] WASAT 71

MEMBER: MR D R PARRY (SENIOR MEMBER)
MR J JORDAN (MEMBER)

HEARD: 19 MARCH 2008 AND 26 MARCH 2008 - FURTHER WRITTEN SUBMISSIONS FILED 27 MARCH 2008 AND 28 MARCH 2008

DELIVERED : 2 APRIL 2008

FILE NO/S: DR 450 of 2007

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

Catchwords:

Town planning - Development application - Extension of hours of operation of existing concrete batching plant from 7 pm to 6 am Monday to Saturday excluding public holidays - Annual extension of hours approved by previous planning authorities on a number of occasions - Area transferred to Town of Vincent - Mixed use area - Predominantly commercial/light industrial uses in vicinity of site - Submission by Minister for Planning and Infrastructure to Tribunal - Orderly and proper planning - Local and regional planning considerations - Sustainable use and development of land - Dust - Noise - Traffic - Amenity

Legislation:

City of Perth City Planning Scheme No 2, Sch 3
City of Perth Local Planning Scheme No 26
East Perth Redevelopment (Subtracted Area) Regulations 2002 (WA), reg 5, reg 7(2)
Environmental Protection Act 1986 (WA), s 49
Local Government (Constitution) Regulations 1998 (WA), reg 5(4)(c)
Planning and Development Act 2005 (WA), s 3(1)(c), s 245, s 252(1)

Result:

Development approval granted for extension of hours from 7 pm to 6 am Monday to Saturday excluding public holidays until 26 June 2012

Category: B

Representation:

Counsel:

Applicant: Mr PG McGowan with Ms T Le Bas
Respondent: Mr SJ Bain (Acting as Agent)

Solicitors:

Applicant: Clayton Utz
Respondent: SJB Planning and Urban Design (Town Planners)

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

GMF Contractors Pty Ltd and Shire of Serpentine-Jarrahdale [2006] WASAT 353; (2006) 48 SR (WA) 1
Mirvac Mandurah Pty Ltd and City of Mandurah [2006] WASAT 44

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Hanson Construction Materials Pty Ltd applied for development approval for an extension of operating hours of an existing concrete batching plant in East Perth so as to permit 24 hour operation from Monday to Saturday, excluding public holidays, until the expiry of the development approval for the daytime operation of the plant on 26 June 2012. It is likely that approval of the proposed development would only result in occasional overnight operations in order to facilitate construction of major city developments. The Town of Vincent refused the development application. Hanson sought review of that decision by the Tribunal.
Previous planning authorities had approved the proposed extended hours periodically between June 2000 and November 2007. The site is located proximate to the Perth Central Business District and abuts the regional freeway system. The predominant land uses in the immediate locality of the site are commercial/light industrial, not residential.
The principal issues in the review proceedings concerned orderly and proper planning, dust, noise, traffic and amenity.
The Tribunal determined that the proposed development is consistent with orderly and proper planning. Significantly, the applicable planning framework has not changed, and the characteristics of the immediate locality have not changed substantially, since the previous periodic approvals. Significantly, also, the proposed extension of hours involves the sustainable use and development of land.
The Tribunal also determined that the proposed development is acceptable in relation to dust, noise and traffic. The plant has operated in a generally satisfactory manner for a number of years, including with the proposed extended hours. On the few occasions when an infringement notice has been issued, the operation was improved to avoid the problem. A relevant regulatory authority has approved a Dust Management Plan for the plant. In relation to noise, traffic on an abutting regional road and an abutting regional freeway is an influencing factor on noise measurements in the locality. In relation to traffic, the proposed development is within the capacity of the surrounding road system.
The Tribunal set aside the Town's decision to refuse the development application and granted conditional development approval until 26 June 2012.

Introduction

These proceedings involve an application brought by Hanson Construction Materials Pty Ltd (Hanson) under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) for review of the decision of the Town of Vincent (Town or Council) to refuse development approval for an extension of the approved hours of operation of an existing concrete batching plant at No 71 (Lot 199) Edward Street, East Perth (site) so as to permit 24 hour operation from Monday to Saturday excluding public holidays. Hanson seeks an extension of hours of operation until 26 June 2012, which is the date on which the development approval authorising use of the site as a concrete batching plant between 6 am and 7 pm Monday to Saturday, excluding public holidays, expires.

Site and locality

The site has an area of 3841 square metres and is situated on the corner of Edward Street and Lord Street, East Perth. The site abuts, but has no direct vehicular or pedestrian access to, Lord Street, which is reserved as a regional road under the Metropolitan Region Scheme and, in May 2004, carried 16,520 vehicles per day. The site has only limited frontage to Edward Street in the form of a vehicle access point in the north‑east and a vehicle exit and pedestrian access/exit point in the north‑west adjacent to the intersection of Edward Street and Lord Street. Between the vehicular access and egress points, there are a number of commercial/light industrial properties that separate the site from Edward Street. The site also abuts the Graham Farmer Freeway to the south.
The site is the southernmost property located in Precinct 15: Claisebrook Road North (Precinct 15) under the East Perth Redevelopment Scheme (EPRS). Precinct 15 is bounded by Lord Street to the west, the Graham Farmer Freeway and railway line to the south and east and Summer Street to the north.
Precinct 15 comprises a mixed use area. However, there is a difference of opinion between the town planning expert witnesses, Mr SG Allerding, who gave evidence on behalf of Hanson, and Mr SJ Bain, who gave evidence on behalf of the Town, in relation to the proper characterisation of the predominant land use or uses in the vicinity of the site.
Mr Allerding considers that the overall configuration of land use activities in the immediate locality is predominantly of a commercial/light industrial or non‑residential nature. Mr Allerding presented a land use map showing categories of land uses superimposed on the cadastral plan for Precinct 15 which supports his opinion in relation to the predominant land uses.
In contrast, Mr Bain considers that residential and office/business land uses predominate in the Precinct. At first glance, Mr Bain's opinion appears to be supported by a land use survey of the Precinct that he presented which shows that 89 of the 175 units/premises (50.8%) are residential and 28 (16.0%) are office/business.
However, one of the 89 residential units/premises in Mr Bain's land use survey comprises a backpacker development which is commercial in nature. Of the 88 residential units/premises, 52 (59%) are located in four buildings, each of which is located some distance from the site with two on Lord Street and one in close proximity to the East Perth Railway Station that is to the north‑east of Precinct 15. Furthermore, about 55 of the 88 residential units/premises (62.5%) are located at the opposite, north‑eastern end of the Precinct from the site, in the block bounded by Cheriton Street, Claisebrook Road and Summer Street. There are only two residential properties in the immediate vicinity of the site which are a pair of original semi‑detached houses at Nos 34 ‑ 36 Edward Street. Although these houses are located just across Edward Street from the vehicular access road into the site, they also face the Graham Farmer Freeway and the railway marshalling yards beyond. In addition, a development at the corner of Edward Street and Robertson Street comprising two commercial units at ground level and two residential units above is presently under construction. These units will also face the Freeway and marshalling yards.
In light of the foregoing, the Tribunal accepts Mr Allerding's evidence that the overall configuration of land use activities in the immediate locality of the site is predominantly of a commercial/light industrial or non‑residential nature. There is only limited residential development either in existence or under construction in the immediate locality of the site. Furthermore, the amenity of the residential properties in the vicinity of the site is significantly affected by the major transport infrastructure. The existing, approved concrete batching plant on the site, which operates from 6 am to 7 pm Monday to Saturday, excluding public holidays, also forms part of the amenity of the locality.

Background

The Hanson concrete batching plant has operated on or within close proximity to the site for in excess of 40 years. On 26 June 1996, the East Perth Redevelopment Authority (EPRA) granted development approval under the EPRS for construction of the plant in its current location, following the resumption of the majority of the Hanson land for construction of the Graham Farmer Freeway and feeder roads, and for the operation of the plant for 16 years until 26 June 2012, subject to conditions. One of the conditions of development approval restricted access to the site by trucks and semi‑trailers to between the hours of 6 am and 7 pm Monday to Saturday inclusive, with no access on Sundays or public holidays. These hours of operation are described by Mr JG Symonds, Hanson's Metropolitan Operations Manager, and by Mr Allerding, as the "core hours" of Hanson's operation.
The plant was constructed in 1996/1997. Mr Symonds gave evidence, which was not questioned or contradicted, and which the Tribunal accepts, that the plant is one of the most modern in the Perth metropolitan area. It is designed with a dry dust extraction system in the loading bay, underground and enclosed aggregate receiving bins and enclosed conveyor systems. It operates a sophisticated and award‑winning waste recycling system.
Over time, Hanson has made a number of modifications to the plant, some in line with its normal improvement processes through internal investigations and some in discussion with regulatory authorities. These modifications include:
•waste pit management system;
•slump stand enclosure;
•installation of a door on the aggregate tipping shed to minimise windblown material;
•water sprays to truck tyres in the slump bay; and
•the re‑direction of traffic flow to mitigate materials being carried across the yard on truck tyres.
Mr Symonds gave evidence that, when there was demand for concrete outside the plant's "core hours" during 1997 to 1999, Hanson submitted and received approval from EPRA for extended operating hours on a "day‑to‑day" basis. In 2000, Hanson decided that a longer term arrangement in relation to extended operating hours should be sought, to ensure that its client base could better plan their projects with certainty of supply.
On 12 June 2000, EPRA, in effect, granted development approval for an extension to the hours of the plant from 7 pm to 6 am, for 12 months. In May 2001, EPRA granted development approval for an extension of hours for a further 12 months.
After the transfer of planning responsibility for the site to the City of Perth (City) in January 2002, the City granted development approval for extension of hours on five occasions, each restricted to 12 months, "allowing a continued review of the impact of the unrestricted hours given that the area is in a gradual transition towards increased residential development" (according to a report to the City's Planning Committee on 29 August 2006).
On 1 July 2007, Precinct 15 was transferred from the district of the City to the district of the Town. Before the transfer, Hanson applied to the City for development approval for an extension of hours until the expiry of the substantive development approval for the plant on 26 June 2012. On 5 June 2007, the City decided to approve the extension of hours, but for only five months "after which time the matter can be reviewed by the Town of Vincent" (letter from the City's Manager Approval Services to the Chief Executive Officer of the Town dated 28 June 2007).
On 22 August 2007, Hanson applied to the Town for development approval to remove the restriction on operating hours from Monday to Saturday, excluding public holidays, to 26 June 2012.
Mr Symonds explained that concrete deliveries outside the "core hours" are required for the following reasons:
"•to ensure continuity of concrete delivery outside of peak traffic periods;
•to allow delivery despite the closure of busy CBD streets and to cause the least disruption to other road users; and
•to enable maintenance work outside of retail trading hours, prior to reopening the next morning."
The proportion of concrete deliveries which occurred outside the 6 am to 7 pm "core hours" over the last three years of extended operations was 2.2% (2005), 1.6% (2006) and 5.7% (2007) of total concrete deliveries from the site. Mr Symonds explained that the 5.7% of deliveries outside the "core hours" in 2007 was due principally to operation over three nights to enable concrete to be poured for the foundations of a major city development. Mr Symonds explained that, on each of the three occasions, there were approximately 750 to 800 vehicle trips generated between 8 pm and mid‑morning the following day, including both raw materials into the site and concrete out of the site.
Mr Symonds said that the current demand for concrete is similar to the demand in 2007, and consequently, he anticipates only a minor increase over 2007 levels.
In other words, it is likely that approval of the proposed development would result only in occasional overnight operations in order to facilitate construction of major city developments.
The Town advertised the development application for public submissions. The Town received seven letters of support and 52 letters of objection to the proposed development, within the advertising period. However, Mr Allerding has pointed out that only two of the letters of objection were from or in relation to residential properties within Precinct 15. The only submission in relation to a residential property in Edward Street was from the owners ‑ not the residents ‑ of Nos 34 ‑ 36 Edward Street. Although a number of letters of objection were from residents in the area to the west of Precinct 15, that area is separated from the site by Lord Street which, as noted earlier, is a regional road that carried 16,520 vehicles per day in May 2004.
The Town considered the development application at its meeting on 18 December 2007. The Town resolved to refuse the development application for the following reasons:
"(a)the development is not consistent with the orderly and proper planning and for the preservation of the amenities of the locality;
(b)the significant increase in the adverse impact on the community;
(c)the excessive noise, dust and traffic impacts caused by the concrete batching facility and the numerous concrete batching trucks and heavy haulage trucks bringing raw materials to the site as a result of operating during the previous extended hours of operation;
(d)the proposal is not an appropriate compatible activity with the surrounding residential land use in the current location;
(e)the proposal results in an impediment to appropriate regeneration of the area with further additional residential developments and will further entrench the subject use, thus prejudicing any such regeneration;
(f)the proposal results in greater disbenefit than benefit to the residents and owners of other business in the immediate and surrounding vicinity of the subject development site;
(g)the concerns raised by the Department of Environment and Conservation (DEC) in its letter dated 7 November 2007, that the 24 hours operation of the concrete batching plant has the potential to adversely impact the health, welfare, convenience, comfort or amenity of the nearby residents;
(h)consideration of the numerous objections received."
The Council also resolved to advise Hanson:
"that the Town would be prepared to consider after hours operations for concrete deliveries for projects of a Regional and State significance such as bridges, stadiums, railways, and the like, subject to the lodgement of a new planning application and associated procedures for each such project."
Following the commencement of the review proceedings, on 1 February 2008, the Town sought clarification from the DEC in relation to its opposition to extended hours referred to in par (g) of the Town's reasons for refusal. On 20 March 2008, the Town received a letter from the DEC's Manager Environmental Regulation and Response stating that the DEC does not support the proposed extension of hours for two reasons, namely:
"•Ongoing complaints regarding dust and noise from these premises; and
•Noncompliance with The Environmental Protection Authority Guidance Note 3 Separation Distances between Industrial and Sensitive Land Uses (2005). As per guidance note 3, the premises and residence should be 500 metres." [sic]
The letter from the DEC also states that the Department "has taken enforcement action in relation to minor offences at one of the facilities", although it does not say whether this is the facility in question in these proceedings or another concrete batching plant referred to in the letter operated by Readymix to the north‑east of the site. The letter concludes with the following statement:
"If the City does allow 24 hour operation, it is possible that the City could be condoning a contravention Section 49 of the Environmental Protection Act 1986, which states that it is an offence to 'cause or allow an unreasonable emission of noise or odour'. The City may wish to seek legal advice on this issue."
Section 49(5) of the Environmental Protection Act 1986 (WA) (EP Act) creates an offence for a person to emit an unreasonable emission from any premises or to cause an unreasonable emission to be emitted from any premises. To suggest that a planning consent authority could be condoning a contravention of this section by granting development approval for a use of land ‑ and that it may wish to obtain legal advice on this issue ‑ is bizarre and irresponsible. In order to grant development approval for the proposed development, the planning consent authority should be satisfied that the proposal is acceptable in relation to dust and noise. For reasons set out below, the Tribunal is satisfied. However, if the development is ultimately carried out in a way which involves a contravention of s 49 of the EP Act, the planning consent authority has not "condoned" the contravention. Enforcement of s 49 of the EP Act is the province of the DEC. But, significantly in terms of a merit assessment of the proposed development, although the site has been used as a concrete batching plant for over 40 years, and the plant operated without any restriction on hours from Monday to Saturday between 12 June 2000 and 4 November 2007, there is no evidence before the Tribunal of any contravention of s 49 of the EP Act or the carrying out of any other serious offence involving use of the site.

Submission by Minister for Planning and Infrastructure

Section 245(2) of the PD Act enables the Minister for Planning and Infrastructure (Minister) to make a submission as to the matters which the Minister considers to be relevant to the issues before the Tribunal, if it appears to the Minister that an application may be determined in a way which will have a substantial effect on the future planning of the area in which the land the subject of the application is situated. In this case, the Minister made a submission under s 245(2) in the form of a letter dated 28 February 2008 which includes the following:
"I consider the application involves matters which may have a substantial effect on the future planning and development of the area in which the land is situated, including the adjoining Perth Central Business District (CBD) and the wider regional area.
I wish to ensure that the Tribunal is aware of these matters, among the many issues that must be considered, and gives relevant weight to these in making its decision on the application.
The continuing record low vacancy rates for office space in the CBD (and near CBD areas) and the consequent proliferation of office tower constructions, together with the major civic projects the State Government has under way will continue to drive demand for concrete and new construction in the short to medium term. The Hanson Concrete Batching Plant is located in close proximity to the Perth CBD whilst also having immediate access to the Graham Farmer Freeway which itself provides easy access to both the Kwinana and Mitchell Freeways. The proximity to the CBD and ease of access to major transport routes results in shorter travel distances and reduced traffic pressures on minor roads when servicing large concrete pours for major construction projects.
It is important when determining this matter to consider what impacts the reduced flexibility in operating times of the plant may have on it remaining at that site, and what impact would result from locating the plant further from the CBD thus increasing travel distances, carbon emissions and potential for traffic conflict on our roads.
I am aware that the application for review involves a significant number of issues including, but not limited to, the effect on local public amenity, potential environmental impacts and the orderly and proper planning of the locality. I do however respectfully request that the Tribunal also gives due regard to the broader issues of our State's long‑term economic and environmental sustainability when making its decision on the subject application."
In accordance with s 245(4) of the PD Act, the parties were given a copy of the Minister's submission and were given an opportunity to make submissions in relation to it at the hearing.

Applicable local planning framework

Mr PG McGowan, who appears with Ms T Le Bas on behalf of Hanson, submits that the applicable local planning framework is contained in the EPRS, because, on 30 June 2007, Sch 3 of the City of Perth City Planning Scheme No 2 (CPS 2) stated as follows:
"P15 East Perth
Land in this Precinct is within the boundaries of the East Perth Redevelopment Area and is therefore under the control of the East Perth Redevelopment Authority. Refer to East Perth Redevelopment Scheme text and Policies Manual for further information."
The reference to the date of 30 June 2007 in Mr McGowan's submission is important, because reg 5(4)(c) of the Local Government (Constitution) Regulations 1998 (WA) has the effect that the local planning scheme that applied to the site when it was within the district of the City on 30 June 2007 continues to apply to the site on and after 1 July 2007, as though it were a scheme prepared by the Town in respect of the site, approved by the Minister under the PD Act, and published under the PD Act on 1 July 2007.
As the Town was not legally represented at the hearing, Mr Bain, who also represented the Town, asked for an opportunity to file written submissions by the Town's solicitors. The Tribunal afforded the Town this opportunity, and also allowed Hanson to file written submissions in reply. The Town filed written submissions on 27 March 2008 and Hanson responded on 28 March 2008.
Ms BK Callanan submits, on behalf of the Town, that the applicable local planning scheme that applied to the site as at 30 June 2007 was ‑ and remains – CPS 2, but without a use table for Precinct 15. Ms Callanan submits that this is the case because, on 24 January 2007, the East Perth Redevelopment (Subtracted Area) Regulations 2002 (WA) (SA Regs) expired. Regulation 5 of the SA Regs set out transitional matters when planning responsibility for Precinct 15 was transferred from EPRA to the City, including that the EPRS that applied to the site before 29 January 2002 continued to apply as if it were part of the then applicable City planning scheme which was replaced by CPS 2 on 9 January 2004. Ms Callanan also submits that the extract from Sch 3 of CPS 2 set out at [35] above "does not correctly state the legal position", because Precinct 15 was not, in fact, within the East Perth Redevelopment Area and was not under the control of EPRA as at 30 June 2007.
Mr McGowan's submission is correct. Although it is true, as Ms Callanan submits, that, contrary to the wording of the first sentence of the extract from Sch 3 of CPS 2, land in Precinct 15 has not been under the control of EPRA at any time since the gazettal of CPS 2, the clear intention of Sch 3 is that development in Precinct 15 is to be regulated by the EPRS and, therefore, following the transfer of planning responsibility over Precinct 15 to the City, to incorporate the EPRS text into CPS 2 in relation to the Precinct. The statement that land in the Precinct is within the boundaries of the East Perth Redevelopment Area is not strictly incorrect, because Precinct 15 is identified in the EPRS as within that Area.
The incorporation of the EPRS text into CPS 2 in relation to Precinct 15 is understandable, because, when CPS 2 was gazetted on 9 January 2004, the effect of reg 7(2) of the SA Regs was that the SA Regs ‑ including reg 5 which had the effect that the EPRS continued to apply to the site ‑ would expire on 24 January 2004. As it happens, the expiry date for the SA Regs was extended to 24 January 2007 by amendment to the SA Regs published in the Government Gazette on 23 January 2004. However, the ultimate expiry of the SA Regs on 24 January 2007 did not amend or reverse the local planning framework put in place on 9 January 2004 by Sch 3 of CPS 2.
Ms Callanan also outlines a possible argument that the City of Perth Local Planning Scheme No 26 (LPS 26), which was gazetted on 11 September 2007, applies to the site.
Although LPS 26 was intended to apply to the site when it was formulated and approved by the City, it cannot apply, because the site was not within the City's municipal area by the time LPS 26 was gazetted. However, because the planning framework for the site envisaged by LPS 26 is substantially similar to the planning framework for the site under the EPRS ‑ via CPS 2 ‑ the result in this review would be no different if LPS 26 did apply, which it does not.

Issues for determination

The following five principal issues arise for determination in the review:
1)Whether the proposed development is consistent with orderly and proper planning.
2)Whether the proposed development is acceptable in relation to dust.
3)Whether the proposed development is acceptable in relation to noise.
4)Whether the proposed development is acceptable in relation to traffic impacts.
5)Whether the proposed development is acceptable in relation to amenity.
The Tribunal will address each of these issues in turn.

Orderly and proper planning

Mr Allerding considers that the proposed extended hours of operation are consistent with orderly and proper planning, having regard to the existing approved operation, the predominantly non‑residential land uses in the locality, and that non‑residential uses, including industrial uses, are Preferred Uses in Precinct 15. Mr Allerding also refers to "the State's broader planning framework", including sustainability, as a relevant consideration in relation to orderly and proper planning.
In contrast, Mr Bain considers that the proposed development is not consistent with orderly and proper planning. Mr Bain observes that the planning controls have been progressively implemented by the redevelopment of sites for Preferred and Contemplated land uses. He says that to allow an intensification of a land use that is not even a Contemplated Use is neither proper nor orderly planning. Furthermore, Mr Bain says that the intensification of the concrete batching use by extended hours operations would be an impediment to redevelopment of the area for the Preferred and Contemplated land uses, particularly residential uses.
Clause 5.18.1 of the EPRS sets out the following Statement of Intent for Precinct 15:
"Within this Precinct, commercial, retail, service and light industrial uses compatible with residential use will be supported, including uses providing services to the businesses and residents of the central and inner city.
The [East Perth Redevelopment] Authority intends that there should be an improvement in the general level of amenity of the Precinct, with the improved presentation and maintenance of private properties and the public domain, and a progressive reduction in the incidents of those industrial activities incompatible with other uses, including residential development."
Clause 5.18.2 of the EPRS states that "Preferred Uses" in Precinct 15 are commercial, service and light industry, retail and residential uses and that "Contemplated Uses" are community and recreation uses.
Contrary to Mr Allerding's opinion, a concrete batching plant is not a Preferred Use ‑ nor is it even a Contemplated Use ‑ in Precinct 15. A concrete batching plant is not light industry, but rather is general industry, because, without ameliorative measures, the processes carried on will cause injury to or prejudicially affect the amenity of the locality by reason of the emission of noise, dust or otherwise: see GMF Contractors Pty Ltd and Shire of Serpentine-Jarrahdale [2006] WASAT 353; (2006) 48 SR (WA) 1 and definition of "light industry" in Sch 1 of the EPRS.
However, cl 5.2.4 of the EPRS contemplates approval of uses that are neither Preferred Uses nor Contemplated Uses, after appropriate advertising for public submissions and consultation in accordance with cl 2.9 of the EPRS, and after due consideration of the matters referred to in cl 2.10 of the EPRS. The Town undertook appropriate advertising for public submissions and consultation in accordance with cl 2.9 of the EPRS. Clause 2.10 of the EPRS sets out matters for consideration including "the requirements of orderly and proper planning" and "the preservation of the amenity of the area".
Significantly, the applicable local planning framework has not changed since the approval of extended hours by previous planning authorities between June 2000 and November 2007.
Mr Bain suggested that the proposed development is contrary to the Town's "vision" for the area. However, this "vision" does not appear to have progressed to a seriously‑entertained planning proposal.
Furthermore, the characteristics of the immediate locality of the site, including the predominant land uses in that area, do not appear to have changed substantially, or at all, since the previous approvals for extended hours of operation.
In circumstances where the planning framework is the same and the circumstances have not changed in any substantial way, it is in the interests of orderly and proper planning that planning decisions in relation to a site are made in a consistent way.
It does not appear that the use of the site for extended operation between June 2000 and November 2007 has been an impediment to residential development. The only existing residential properties in Edward Street in the vicinity of the site are tenanted and were tenanted during the extended hours of operation. Furthermore, as noted earlier, two residential units are currently under construction in the vicinity of the site, notwithstanding the concrete batching use and the proximity to the Graham Farmer Freeway and railway marshalling yards.
Finally, the proposed development is consistent with orderly and proper planning in terms of regional planning considerations. One of the purposes of the PD Act is to "promote the sustainable use and development of land in the State": s 3(1)(c). State Planning Policy No 1 ‑ State Planning Framework identifies the primary aim of planning "to provide for the sustainable use and development of land". The proposed extension of hours of operation promotes the sustainable use and development of land, because the location of the site, proximate to the CBD and abutting the regional freeway system, minimises travel distances, and hence carbon emissions, and reduces traffic pressures on minor roads, and enables construction activities to take place in the CBD at night when there is generally reduced traffic on the roads, resulting in shorter travel times and thereby reduced carbon emissions.
The Tribunal, therefore, finds that the proposed development is consistent with orderly and proper planning.

Dust

Technical assessments undertaken for the site in 1998 and in 2005 ‑ the latter when extended hours had been in operation for four years ‑ indicate that dust is compliant with regulatory standards and that management plans can ensure that the operation can continue in compliance with regulatory standards. Although, as Mr Bain observed, these assessments were undertaken in relation to previous applications, the operation of the plant has remained substantially the same since 2005. Furthermore, in November 2007, Hanson submitted a Dust Management Plan for assessment by the DEC. In January 2008, the DEC indicated that it has reviewed the Dust Management Plan and regards it as acceptable.
Finally, as noted earlier, the DEC opposes the proposed development because of ongoing complaints regarding dust and noise and because of noncompliance with the EPA's guidance statement in relation to separation between industrial and sensitive land uses.
However, Mr Allerding's evidence shows that there are many potential sources of dust in the locality of the site. Furthermore, it appears that the DEC has only ever issued infringement notices on a couple of occasions in relation to the site and that, on each such occasion, Hanson acted to improve the operation so as to avoid the problem.
Noncompliance with the 500 metre separation distance recommended in the EPA's guidance does not warrant refusal of the proposed extension of hours in the circumstances of this case, given that:
•the concrete batching plant is an approved, historic use of the site;
•extended hours of operation were approved between June 2000 and November 2007; and
•the plant is one of the most modern in the Perth metropolitan area, designed with a dry dust extraction system in the loading bay, underground and enclosed aggregate receiving bins and enclosed conveyor systems; contrast the proposed concrete batching plant considered in Mirvac Mandurah Pty Ltd and City of Mandurah [2006] WASAT 44.
The Tribunal finds that the proposed development is acceptable in relation to dust.

Noise

Neither party presented expert evidence in relation to noise. However, a technical noise assessment undertaken in support of a previous application in 2004 shows that the development operates in an acceptable manner in relation to noise. The use of the site has not changed substantially since the noise assessment.
Furthermore, as the Tribunal has found, the predominant land uses in the locality are non‑residential. Vehicles accessing the site pass only two residential properties in Edward Street, which are also adjacent to, and only a short distance from, the Graham Farmer Freeway. The noise assessment undertaken in 2004 found that traffic is an influencing factor on noise measurements taken.
Vehicles exiting the site and travelling south to the CBD or to the Graham Farmer Freeway do not pass any residential properties in Edward Street or Precinct 15 generally.
According to a traffic assessment undertaken in 2004 in support of a previous application for the site, only approximately 10% of total traffic movements are expected to be to or from the north. Because vehicles may not turn right/north from Edward Street onto Lord Street, vehicles travelling north from the site have to take Claisebrook Road and Summer Street. However, the only residential property along the relevant path of travel is a single house.
The Tribunal, therefore, finds that the proposed development is acceptable in relation to noise.

Traffic impact

A traffic assessment undertaken in 2004 in relation to a previous application shows that the traffic impact of the concrete batching plant at the site is acceptable and within the capacity of the surrounding road system. The operation of the site has not changed substantially since this report.
The Tribunal finds, therefore, that the proposed development is acceptable in relation to traffic impact.

Amenity

The predominant land uses in the immediate locality are non‑residential. Although there are two existing residential properties in Edward Street and two units under construction on the corner of Edward Street and Robertson Street, the amenity of these properties is significantly affected by the proximity of the Graham Farmer Freeway and the railway marshalling yards. Furthermore, the approved concrete batching plant will form part of the amenity of the locality until at least 26 June 2012. Although amenity includes likely future amenity, the amenity of the locality ‑ without the proposed extension of hours ‑ is unlikely to change substantially by 26 June 2012. Having regard to these matters, the likely, occasional use of the site outside the "core hours" of Hanson's operation is acceptable in relation to amenity.
The Town did not call any resident of Precinct 15 to give evidence. The Town presented evidence from the owners of Nos 34 ‑ 36 Edward Street who said that the concrete batching plant has caused distress to their tenants and caused them to lose a number of tenants over recent years. However, this concern appears to relate substantially to the approved use, rather than to the proposed extended hours of operation. The owners also gave evidence about a recent complaint from their tenant that, on one occasion at about 3 am, 15 trucks were lined up to go into the site, collectively creating dust and noise. As the tenant did not give evidence, little weight can be placed on the second‑hand report of dust and noise. The fact that the owners received only one complaint of night‑time operation is consistent with Mr Symond's evidence that operations outside the "core hours" only occur occasionally.
The Town also presented evidence from the owner of four properties on the opposite ‑ that is, western ‑ side of Lord Street. This witness said that he grew up above a commercial use in one of these properties and that he tried to reside there between 1996 and 2006, but found it impossible, particularly as there was no respite at night. However, this witness's properties are located on a regional road. Furthermore, approval of the proposed extension of hours is not likely to result in regular night‑time use of the site. Rather, the evidence of Mr Symonds indicates that the use is likely to only take place on occasion.
Finally, the Town presented evidence from the secretary of a number of businesses and associations located at a commercial property in Claisebrook Road. However, there are no residential uses at this property. Furthermore, the commercial and association uses appear to be most significantly affected by the approved concrete batching plant, not by the proposed extension of hours.

The Tribunal, therefore, finds that the proposed development is acceptable in relation to amenity.

Conclusion

Although the concrete batching plant is a general industrial use that is neither a Preferred Use nor a Contemplated Use in Precinct 15 under the EPRS, it is a use that is capable of approval and indeed is the approved use of the site until 26 June 2012. Significantly, neither the planning framework nor the character of the locality has changed since extended hours of operation were approved by previous planning authorities over a period of approximately seven years. Significantly, also, the proposed extension of hours involves the sustainable use and development of land.
The Tribunal considers that development approval should be granted for the proposed extension of hours, because it is consistent with orderly and proper planning, having regard to both local and regional planning considerations, and is acceptable in relation to dust, noise, traffic impact and amenity considerations generally.

Conditions

With two exceptions, the parties have agreed on a set of conditions which should be imposed if the Tribunal is satisfied that development approval should be granted.
First, while the parties are in agreement that Hanson should be required to provide a management plan to the Town addressing matters including noise, dust, traffic management and a complaint handling system, the Town proposes that the management plan should be provided prior to the commencement of the extended operating times, whereas Hanson proposes that it be provided within one month of the grant of approval. The Tribunal considers that it is adequate for the management plan to be provided within one month of the approval, given that the plant operated for the proposed extended hours for seven years without a management plan and that, despite the historical pattern of approval, Hanson had to cease extended hours operation five months ago. In these circumstances, it would be unreasonable to require the management plan to be provided prior to commencement of the extended operating times.
Second, the Town proposes that the extended operating times should be limited to a period of 12 months only, whereas Hanson proposes that the consent expire on 26 June 2012. Although previous approvals for extended hours were limited to 12 months, in order to enable monitoring of the impacts of the use and assessment in light of changing circumstances, the Tribunal has found earlier that the impacts are acceptable and that the characteristics of the immediate locality are unlikely to change substantially prior to 26 June 2012.
It is also sensible for the approval of the extended hours of operation to lapse at the same time as the approval of the underlying development. This will enable the Town and relevant State authorities to develop, in consultation with Hanson and the community, an appropriate strategic planning framework for future development of the site, having regard to its locational characteristics and local and regional planning considerations.

Orders

The Tribunal makes the following orders:
1.The decision of the respondent made on 18 December 2007 to refuse development approval for extended hours of operation from 7 pm to 6 am Monday to Saturday of the existing concrete batching plant at No 71 (Lot 199) Edward Street, East Perth is set aside.
2.Development approval is granted for the extension of hours from 7 pm to 6 am Monday to Saturday of the existing concrete batching plant at No 71 (Lot 199) Edward Street, East Perth, subject to the following conditions:
1)This approval authorises concrete batching plant operations and access to the site by trucks and semi-trailers at any time between Monday and Saturday inclusive.
2)There is to be no access to the site by trucks and semi‑trailers on Sundays or public holidays.
3)Within one calendar month of the grant of this approval, the applicant shall submit a management plan to the respondent which addresses the following matters:
(a)noise management for on‑site activities;
(b)dust and cement waste management including regular washing down of trucks before exiting the site, dust control on‑site and regular sweeping and cleaning of materials originating from the Hanson site spilled on surrounding roads;
(c)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 24 hour telephone number and email address to log complaints and enquiries;
(ii)a record of complaints and enquiries logged, and the applicant's response, is to be provided on an annual basis to the respondent for its information;
and
(e)a review of the management plan after the first 12 months after the grant of this approval.
4)This approval is granted for a term expiring on 26 June 2012.

I certify that this and the preceding [81] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR D R PARRY, SENIOR MEMBER