HARDING and SHIRE OF CHITTERING
[2007] WASAT 17
•24 JANUARY 2007
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)
CITATION: HARDING and SHIRE OF CHITTERING [2007] WASAT 17
MEMBER: JUDGE J CHANEY (DEPUTY PRESIDENT)
HEARD: 18 JANUARY 2007
DELIVERED : 24 JANUARY 2007
FILE NO/S: DR 563 of 2005
BETWEEN: CYRIL HARDING
Applicant
AND
SHIRE OF CHITTERING
Respondent
Catchwords:
Planning and development Notice to cease use as quarry and to make good Consent orders Applicants for intervention seeking to be heard on making of consent orders Turns on own facts
Legislation:
State Administrative Tribunal Act 2004 (WA), s 37(3)
Town Planning and Development Act 1928 (WA), s 10, s 62
Result:
Requirements of notice varied
Category: B
Representation:
Counsel:
Applicant: Mr E Turner (Acting as Agent)
Respondent: Mr I Rogers
Solicitors:
Applicant: Turner Master Planners Australia (Planners)
Respondent: Hardy Bowen
Case(s) referred to in decision(s):
Harding and Shire of Chittering [2006] WASAT 171
Harding and Shire of Chittering [2006] WASAT 63
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The parties to these proceedings reached agreement as to a variation to the terms of a notice issued under s 10 of the Town Planning and Development Act 1928 (WA), save as to one matter. Third parties had sought to intervene in the proceedings, but no final determination had been made on that application before the parties effectively resolved their dispute.
The applicants for intervention wished to be heard as to the terms of the proposed consent orders.
The Tribunal heard submission from all parties, and determined to modify the words of one proposed provision of the minute of consent orders. It declined to insert into the orders an additional provision suggested by the applicants for intervention.
Background
This matter has a long and somewhat tortuous background. It involves an application to review a notice issued by the respondent pursuant to s 10 of the Town Planning and Development Act 1928 (WA). The notice required the applicant to cease using a part of his land as a quarry, and to make good the area of the quarry. Some of the background is set out in my earlier decision in these proceedings when certain grounds of review were struck out – see Harding and Shire of Chittering [2006] WASAT 63. It is not necessary to repeat that background.
The proceedings reported as [2006] WASAT 63 resolved some preliminary issues between the parties. There remained on foot issues concerning whether the applicant had received an approval for the quarry, and as to the details of the requirements of the notice in the event that Mr Harding did not hold a relevant approval. Those matters were referred to mediation.
The mediation took place during April and May 2006. The issues to the existence of an operable approval were subsequently referred for a decision on the papers as a further preliminary issue. That matter was determined by me on 28 June 2006 – see Harding and Shire of Chittering [2006] WASAT 171.
All that then remained of the proceedings was the question of the specific requirements as to restoration of the land. The mediation had been adjourned in respect of that issue pending the determination of the second preliminary issue. Following that determination, the mediation continued between August and October 2006, and in the course of that process the parties appeared to reach agreement as to the manner in which the land should be restored. In November 2006, the Tribunal was provided with an unsigned minute of consent orders.
The minute of consent orders was drawn in the following terms:
"BY CONSENT it is ordered that:
1.The Notice dated 12 August 2005 issued by the Respondent to the Applicant pursuant to s 10(3) of the Town Planning and Development Act 1928 be varied as to item 3 (particulars of restoration) as follows:
(a)The land shall be shaped to produce a gently undulating, sloping surface with a similar landform and slopes to that currently on the site.
(b)No slope shall be greater than one in four vertical to horizontal, and slopes shall be ripped along contours to assist the penetration of moisture and reduce the potential for erosion.
(c)The floor of the excavation should be covered with gravel and topsoil and pasture species grown in accordance with the recommendations of Zone C of Barry Muir in the report dated 17 July 2006 and appended as attached "A".
(d)A minimum of 300mm of subsoil gravel material shall be spread over the ripped quarry floor and mixed.
(e)Topsoil shall be spread over the surface in preparation for rehabilitation.
(f)Rehabilitation of areas with legumes is to be effected at the rate of 800 grams of local species per hectare, including Acacia pulchella. Rehabilitation of understorey is to be effected at the rate of 500 tubes per hectare of acacia and dryandra. Rehabilitation of areas with trees is to be effected by seeding at the rate of 400 grams per hectare in accordance with the recommendations in Attachment A. 1,000 trees per hectare are to be planted as tube plants in the species recommended in Attachment A. All tube plants are to be installed with 10 gram fertiliser tablets together with guards to prevent loss to grazing kangaroos.
(g)Land forming and ripping (where required in accordance with these conditions) shall be undertaken by no later than 31 March 2007; tube stock is to be planted no later than 2 weeks after the break of rains in 2007, as is reasonably determined by the CEO of the Council of the Respondent, and seed stock shall be scattered immediately after the completion of the planting of tube stock.
(h)Existing rock mounds and existing access roads to the eastern put (Pit No 2) are exempt from these conditions.
(i)Any gravel obtained as a consequence of the implementation of these conditions is to be utilised for the maintenance and resurfacing of existing internal roads on Lot 11 Chittering Valley Road, Chittering.
(j)Areas to be rehabilitated in accordance with these conditions are set out on the plan forming Attachment "B".
2.There be no order as to costs."
Shortly after the proceedings had been commenced in September 2005, a number of residents of nearby properties made an application pursuant to s 37(3) of the State Administrative Tribunal Act 2004 (WA) to intervene in the proceedings, or alternatively to make submissions pursuant to s 62 of the Town Planning and Development Act 1928 (WA). There was a hearing of that application in October 2005, and on 9 December 2005, I ordered that the application for intervention in relation to the first preliminary issue be refused, but the application be otherwise stood over pending resolution of preliminary issues. Because the application for intervention had not been finally determined, the applicants for intervention were given notice of the proposed consent orders, and were given an opportunity to make submissions as to the whether the orders sought by consent should be made.
The applicants for intervention having made a submission, the respondent filed a submission "by way of clarification of the minute of consent orders filed earlier in these proceedings". The clarification sought to amend the wording of one paragraph of the minute, and to delete another paragraph.
The respondent sought to reword par (f) of the minute as follows:
"Rehabilitation of areas with legumes is to be effected at the rate of 800gms of local species per hectare, including Acacia pulchellie. Rehabilitation of understorey is to be effected at the rate of 400gms per hectare of Dryandra sessilis and Dryandra Squarrosa. One thousand trees per hectare are to be planted as tube plants in accordance with the species recommended in Attachment A. All tube plants are to be installed with 10gm fertilizer tablets, together with guards to prevent loss to grazing kangaroos."
The paragraph which the respondent sought to delete from the minute was par (i). The applicant notified the Tribunal that he did not agree to the deletion of that paragraph.
The applicants for intervention made a number of submissions as to the proposed orders. In respect to condition (g), they suggested that the determination as to when "the break of rains in 2007" occurred should be left to the determination of the CEO, and not the Council of the respondent, because the latter did not meet frequently enough to make a timely determination. The parties did not oppose the insertion of the reference to the CEO into condition (g).
The applicants for intervention also objected to condition (i), and sought a further condition that:
"the applicant shall maintain to maturity the tube stock and seed stock planted in accordance with these conditions. Any plant which dies must be replaced by the applicant with a plant of the same species or another species approved by the respondent and maintained to maturity."
In view of the fact that the applicant and the respondent no longer agreed as to the terms of the consent orders, I convened a directions hearing to consider how the matter should be dealt with. The applicants for intervention attended and were represented by counsel. Notwithstanding being given a further opportunity to resolve the remaining issues by agreement, the parties were unable to make progress. Sensibly, however, they agreed that the Tribunal should simply determine the remaining issues in the light of submissions made by the parties, and the parties, and the applicants for intervention, agreed to be bound by the Tribunal's determination.
Two issues remain for determination. The first is whether par (1)(i) should remain. The applicant argues that, with existing stockpiles, and with the obligation under the orders to reshape the land and create undulating contours, there may be surplus gravel remaining. He contends that any such surface gravel can be best utilised by maintaining and resurfacing existing internal roads on his land. Those roads provide important fire access and should be kept to a reasonable standard.
The respondent, and the applicants for intervention, submit that the existing stockpiles of gravel have been won unlawfully and that restoration of the site necessarily involves returning stockpiled gravel to the excavated areas rather than utilising it elsewhere on the property.
In my view, nothing in the orders should give any suggestion that the applicant has any right to remove further material from the quarry, or that the process of making good can involve winning further gravel from the area. On the other hand, it is not possible, on the material before me, to determine how the recontouring of the land may utilise existing stockpiles, or involve excavation to produce "a gently undulating, sloping surface with similar land form and slopes to that currently on site". It may be that some excess material may be generated, and it is sensible that, if so, that material be used toward resurfacing existing internal roads. In my view, additional words can be added to par (1)(i) to achieve that end. Accordingly, par (1)(i) should read:
"(i)Any gravel obtained as a consequence of the implementation of these conditions is to be utilised toward the maintenance and resurfacing of existing internal roads on Lot 11 Chittering Valley Road, Chittering. Existing stockpiles of gravel, and material obtained in shaping the site, are to be used first in restoration of the site. Only material not capable of being used for that purpose is to be used for maintenance or resurfacing of existing internal roads. Nothing in this paragraph authorises the applicant to extract additional gravel other than for the purpose of restoration of the land."
The second issue for determination is whether or not, as the applicants for intervention contend, there should be a further condition requiring maintenance of plantings to maturity. The applicants for intervention contend that a provision to that effect is a normal planning condition where landscaping is required, and that the proposed orders are inadequate without such a provision.
The applicant observes that he has previously restored areas of his land, and that maintenance of plantings would comprise a normal part of his activity. He objects, however, to the inclusion of a further condition at the behest of the applicants for intervention, whom he does not recognise as having any proper entitlement to be heard in the proceedings. The question of their entitlement has, of course, never been the subject of any formal determination by this Tribunal in these proceedings.
The respondent does not seek the additional condition proposed by the applicants for intervention. Its position is simply that such a condition was never part of the agreed settlement between the parties, and it is content with the conditions as presently drawn.
Where, as here, the parties to the proceedings have resolved their differences after a lengthy mediation in the Tribunal, the Tribunal should be slow to interfere with that agreement, unless it is satisfied that the agreed resolution does not represent the correct and preferable decision. Even assuming that the applicants for intervention would, if the matter were fully argued, be granted leave to make a submission (I think it unlikely that leave to intervene would be granted), I do not consider that the alleged deficiencies in the proposed orders as they stand is sufficient to warrant interference with the parties' agreement. Mr Slarke recognised that the suggested provision, in so far as it referred to seed stock was probably unworkable, and, at hearing, suggested an alternative formulation. It is not necessary to consider that aspect of the matter, because I am not prepared to conclude that the absence of a positive obligation to maintain tube stock represents any significant deficiency in the proposed orders. Accordingly, and without determining the question of the standing of the applicants for intervention, I would propose that the orders not include the maintenance provision suggested by the applicants for intervention.
The orders I propose are therefore:
1.The Notice dated 12 August 2005 issued by the Respondent to the Applicant pursuant to s 10(3) of the Town Planning and Development Act 1928 be varied as to item 3 (particulars of restoration) as follows:
(a)The land shall be shaped to produce a gently undulating, sloping surface with a similar landform and slopes to that currently on the site.
(b)No slope shall be greater than one in four vertical to horizontal, and slopes shall be ripped along contours to assist the penetration of moisture and reduce the potential for erosion.
(c)The floor of the excavation should be covered with gravel and topsoil and pasture species grown in accordance with the recommendations of Zone C of Barry Muir in the report dated 17 July 2006 and appended as attached "A".
(d)A minimum of 300mm of subsoil gravel material shall be spread over the ripped quarry floor and mixed.
(e)Topsoil shall be spread over the surface in preparation for rehabilitation.
(f)Rehabilitation of areas with legumes is to be effected at the rate of 800gms of local species per hectare, including Acacia pulchellie. Rehabilitation of understorey is to be effected at the rate of 400gms per hectare of Dryandra sessilis and Dryandra Squarrosa. One thousand trees per hectare are to be planted as tube plants in accordance with the species recommended in Attachment A. All tube plants are to be installed with 10gm fertilizer tablets, together with guards to prevent loss to grazing kangaroos."
(g)Land forming and ripping (where required in accordance with these conditions) shall be undertaken by no later than 31 March 2007; tube stock is to be planted no later than 2 weeks after the break of rains in 2007, as is reasonably determined by the CEO of the Council of the Respondent, and seed stock shall be scattered immediately after the completion of the planting of tube stock.
(h)Existing rock mounds and existing access roads to the eastern put (Pit No 2) are exempt from these conditions.
(i)Any gravel obtained as a consequence of the implementation of these conditions is to be utilised toward the maintenance and resurfacing of existing internal roads on Lot 11 Chittering Valley Road, Chittering. Existing stockpiles of gravel, and material obtained in shaping the site, are to be used first in restoration of the site. Only material not capable of being used for that purpose is to be used for maintenance or resurfacing of existing internal roads. Nothing in this paragraph authorises the applicant to extract additional gravel other than for the purpose of restoration of the land."
(j)Areas to be rehabilitated in accordance with these conditions are set out on the plan forming Attachment "B".
2.There be no order as to costs.
I certify that this and the preceding [23] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE J CHANEY, DEPUTY PRESIDENT
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