HEIDELBERG MATERIALS AUSTRALIA PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION - [2025] WASAT 66

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION:   HEIDELBERG MATERIALS AUSTRALIA PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2025] WASAT 66
MEMBER:   JUDGE H JACKSON, DEPUTY PRESIDENT
HEARD:   30 JUNE 2025
DELIVERED          :   4 JULY 2025
FILE NO/S:   DR 71 of 2025
BETWEEN:   HEIDELBERG MATERIALS AUSTRALIA PTY LTD
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Planning and development - Development approval - Conditional approval - Change to hours of operation - Very late application for review of condition - Application to extend time - Application for stay of condition - Application to extend time refused

Legislation:

Environmental Protection (Noise) Regulations 1997 (WA)
Planning and Development Act 2005 (WA), s 214, s 274(2)(b), s 283(2), s 283(5), Pt 17, Div 2
State Administrative Tribunal Act 2004 (WA), s 25(2)
State Administrative Tribunal Rules 2004 (WA), r 9, r 10

Result:

Application to extend time dismissed
Application for review dismissed

Category: B

Representation:

Counsel:

Applicant	:	Mr E Heenan SC
Respondent	:	Mr I Repper

Solicitors:

Applicant	:	Clayton Utz
Respondent	:	State Solicitor's Office

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

Cuddles Group Pty Ltd and Director General, Department for Community Development [2006] WASAT 114
Fero Group Pty Ltd and City of Nedlands [2018] WASAT 78
Gallo v Dawson (1990) 64 ALJR 458
Hartwig and City of Canning [2008] WASAT 243
Lovegrove Investments Pty Ltd and Shire of Waroona [2023] WASAT 99
Lovegrove investments Pty Ltd v Shire of Waroona [2024] WASC 321
O'Connor and Town of Victoria Park [2005] WASAT 161
Scolaro and Shire of Waroona [2014] WASAT 37
Sharon Property Pty Ltd and Presiding Member of The Metro Inner-North Joint Development Assessment Panel [2021] WASAT 63
Smith and City of Wanneroo [2008] WASAT 182
Star & Garter Hotel Pty Ltd v City of Kalgoorlie-Boulder [2023] WASC 149
Wood and Law Complaints Officer as Delegate of the Legal Profession Complaints Committee [2024] WASAT 35

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

On 30 June 2025 I heard an application made under r 10 of the State Administrative Tribunal Rules 2004 (WA) (SAT Rules), brought by the applicant to extend the time within which it could apply for review of a decision of the respondent. At the same hearing the applicant also sought a stay of part of that decision.
Following a brief adjournment, I dismissed the application to extend time. As the application for review was therefore out of time, I also dismissed the application for review.
Given those orders, it was not necessary to make orders as to the stay.
At the time I said that I would publish my reasons in due course. These are those reasons.

Background

The applicant operates a concrete batching plant located at 71 Edward Street, Perth.
On 28 June 2024, the respondent granted a development approval under s 274(2)(b) of the Planning and Development Act 2005 (WA) (P&D Act), subject to conditions which allow for the '[c]ontinued operation' of the plant (approval, development approval or DA). That section forms part of Division 2 or Part 17: Special Provisions for COVID-19 pandemic relating to development applications. Certain matters flow from that, much of which is unnecessary to recount for present purposes.
This proceeding is concerned with condition 4(b) of the DA, which concerns the plant's hours of operation. Condition 4 provides as follows:
a)From the (sic) 1 July 2024 to the (sic) 30 June 2025 the plant may operate 24 hours a day Monday to Saturday unless otherwise restricted by the approved Environmental Management Plan. The plant is not permitted to operate on Sundays or public holidays.
b)From 1 July 2024 to the (sic) 31 December 2027 the plant may operate between the hours of 6am to 10pm Monday to Saturday unless otherwise restricted by the approved Environmental Management Plan (as specified by Condition 4) and as amended from time to time. The plant is not permitted to operate on Sundays or public holidays.
By application filed 9 June 2025, the applicant seeks review of that condition under s 283(2) of the P&D Act. As will be apparent, the application was lodged well out of time. As a result, the applicant also seeks an extension of time within which to bring the application.
By an Interim Application filed 19 June 2025, the applicant also seeks a stay of the operation of condition 4(b) but not, relevantly, of the rest of the DA. That is, the applicant wants to be able to continue to operate the plant without the limits on the operating hours imposed by condition 4(b) after it would otherwise come into effect.
The urgency of the matter was not brought to the Tribunal's attention. As a result, the matter was not listed for directions until 26 June 2025, on which date orders were made for the filing of evidence and submissions and for the applications for the extension of time and for the stay to be listed for hearing at 1.00 pm on Monday 30 June 2025.
At the hearing, the applicant was represented by Mr Eric Heenan SC and the respondent was represented by Mr Ian Repper. The latter also represented the Minister who, under s 283(5) of the P&D Act, must be given a 'reasonable opportunity to make submissions …'. At the commencement of the hearing Mr Repper advised that, while no separate written submissions were filed on his behalf, the Minister supported the submissions made on behalf of the respondent.

Factual History

As will become clear, the conduct of the applicant, in the nearly 12 months between the grant of the DA and the filing of the application for review is most relevant to the determination of the matter. It is therefore necessary to set that history out in some detail as well as provide some context to that history.
What follows comes primarily from an affidavit sworn by Mr Allerding, the applicant's planning consultant.
Mr Allerding is well known to the Tribunal as an expert town planner. In his affidavit (Exhibit 1), he deposes that he has been practising as a town planner for 36 years and that he has been assisting the applicant with 'their concrete batching operations and extractive industry operations' throughout Perth and regional Western Australia since 2000.[1]
[1] Allerding Affidavit, para 6.
In his affidavit, Mr Allerding deposes that the plant has been operating since 1996 and that on 19 October 2018 an approval was granted by the Minister for its continued operation, which approval was to expire on 30 June 2024.[2]
[2] Allerding Affidavit, para 10.
In December 2023, an application was lodged for a new approval. In January 2024 a second application was substituted for the December application.[3]
[3] Allerding Affidavit, paras 8 - 9.
It would appear that the relevant local government (Town of Vincent - Town) was invited to indicate its attitude to the application. On 19 March 2024 it resolved to make a submission to the respondent indicating that it (the Town) does not support the application. It also resolved to provide proposed conditions to the respondent for its consideration if the respondent determined to approve the application. One of the proposed conditions was in terms which became condition 4(b).[4]
[4] Respondent's Submissions Opposing Applications for an Extension of Time and a Stay of Decision, 30 June 2025 (Respondent's Submissions), paras 28, 29.
Mr Allerding's affidavit attaches the relevant Minutes, which he says he were provided to him by a member of his office and subsequently reviewed.[5] It is not clear when that occurred, but the respondent's written submissions suggested that the applicant was aware of the Town's position from 19 March 2024 'or shortly thereafter'[6] and nothing was said during the hearing to contradict that.
[5] Allerding Affidavit, para 13.
[6] Respondent's Submissions, para 29.
Mr Allerding deposes that he received a copy of 'Draft Without Prejudice Recommended Conditions' on 17 June 2024, which included a draft condition 4(b) (Draft Conditions). He says that, prior to that occurring he does not recall any of the respondent's officers 'advising beforehand of an intention to impose limitations on the hours of operation of the Plant'.[7]
[7] Allerding Affidavit, para 17.
Mr Allerding deposes that, following receipt of the Draft Conditions, he had meetings with officers of the respondent and formally objected to the proposed condition 4(b) on behalf of the applicant, and that he provided materials which, he says, 'provided a supporting basis upon which further modifications could be made to condition 4(b)'.[8]
[8] Allerding Affidavit, para 21.
Mr Allerding then says that after the respondent's meeting on 27 June 2024, at which it determined to grant the DA, he met with the Minister at the latter's invitation to discuss matters relating to the plant, which included indicating to the Minister that the applicant would seek his (the Minister's) support for the amendment of condition 4(b).[9]
[9] Allerding Affidavit, para 23.
Mr Allerding then deposes that the meeting with the Minister and 'earlier discussions' with relevant officers of the respondent:[10]
suggested [to him - Mr Allerding] … that there was an avenue that could be progressed to have the conditions reconsidered in a non-adversarial environment, most likely through a reconsideration of the conditions.
[10] Allerding Affidavit, para 24.
That is what has eventuated. When confronted with condition 4(b), with which it disagreed, the applicant did not apply to the Tribunal for review of the decision. Rather, the applicant undertook steps with a view to making an application to the respondent to amend condition 4(b).
Unfortunately for the applicant, that process does not appear to have been carried out with any real urgency.
On 7 April 2025, more than nine months after the respondent granted the DA, and less than three months before condition 4(b) took effect, the applicant applied to the respondent to amend condition 4(b), as well as some other conditions.[11]
[11] Annexure SA-16 to the Allerding Affidavit.
Specifically, by that application, the applicant sought to amend condition 4(b) to allow it to operate from 3.00 am, rather than 6.00 am.
Another application had previously been made on 1 April 2025, which sought to amend condition 1. That condition provides for the expiry of the DA on 31 December 2027, but subject to the completion or satisfaction of certain matters, failing which the approval will terminate sooner.[12]
[12] Allerding Affidavit, para 38.
Ms Paola Di Perna affirmed an affidavit on 30 June 2025 (Exhibit 4). She is the planning director of the Significant Development Assessment Unit (SDAU), which forms part of the Respondent and has responsibility for applications of a certain character, including this one.
It is her understanding that separate applications were lodged by the applicant on 1 and 7 April 2025 because the proposed amendment of condition 1 (the time limit condition - above) was time critical. She says that the applicant had lodged a separate application seeking amendment to various conditions including condition 4(b) 'on the basis that the proposed amendments would be subject to public consultation'.[13]
[13] Affidavit of Paola Anna Di Perna affirmed 30 June 2025 (Di Perna Affidavit), para 9.
That is, her evidence is to the effect that the applicant sought to avoid public consultation for the proposed amendment to condition 1, but acknowledged that public consultation would be required for the proposed amendment of condition 4 and the other conditions.
She then deposes as to various discussions regarding the process in April and May 2025, the result of which was that the two applications were combined in a new application made on 23 May 2025 to avoid confusion and duplication of consultation processes.[14] Mr Allerding's affidavit is to the same effect.[15]
[14] Di Perna Affidavit, paras 10 - 17.
[15] Allerding Affidavit, paras 39 - 45.
The proposed amendment to condition 4(b) is identical in both the 7 April 2025 and the 23 May 2025 applications.
Further, both applications rely, for the proposed amendment to condition 4(b), on a Noise Impact Assessment Report (NIAR) dated 18 February 2025, the terms of which explain that it is based on noise monitoring and impact assessment which were undertaken in August and November 2024.[16]
[16] Noise Impact Assessment for East Perth Concrete Batching Plant, Rpt01–AU02895–Rev0–18 Feb 2025, page 9: Attachment 3 to Annexure SA-16 and Annexure SA-18 to the Allerding Affidavit.
The NIAR advises that in August 2024, 'the roller doors fitted to the loading bays were not operational' and that 'a further site visit was undertaken in November 2024 following repairs to the roller door'.
Consistent with that description, Mr Allerding deposes in his affidavit that in August 2024 the applicant's noise consultant 'made recommendations for modifications to the automatic plant roller doors where agitator trucks egress from the site. Repairs were subsequently made to one of the loading bay roller doors'.[17]
[17] Allerding Affidavit, para 26.
No other explanation is given in the NIAR, or otherwise,[18] as to why, if the applicant 'always intended' to seek amendment of the condition, as the applicant now contends:
(a)it took until August for the first noise testing to occur;
(b)having received the noise consultant's advice in August, it took until November for the necessary work to be done to the roller doors;
(c)having carried out further noise assessment in November, it took until February for the noise consultants to complete the NIAR; and
(d)having received the NIAR in mid-February, it took until 7 April to prepare and submit the amendment application.
[18] Allerding Affidavit, paras 25 - 27 and 37.
The consultation period for the application to amend various conditions, including condition 4(b), has not yet concluded and, according to Ms Di Perna, the 'next available meeting of the respondent at which the application can be reasonably determined is on 28 August 2025'.[19]
[19] Di Perna Affidavit, para 26.
I accept the applicant's contention that the respondent's advice to that effect provided at least part of the prompt for the applicant to file its application for review and to seek a stay.[20]
[20] Applicant's Grounds of Review, para 2.13.

Extension of Time

Legal Principles

At the directions hearing on 26 June 2025, I advised that the matter would be listed for the hearing of both the application for an extension of time and the application for a stay because I was of a preliminary view that until I had granted the extension of time sought, I would lack the jurisdiction to make the stay order.
The respondent accepted in its written submissions that 'the Tribunal will have no power to make an order [for a stay] under s 25(2) of the SAT Act' if the application for an extension of time is dismissed.[21]
[21] Applicant's Submissions in Support of Applications for an Extension of Time and a Stay of Decision, (Applicant's Submissions) 27 June 2025, para 14.
There was no dispute as to the relevant legal principles as to the extension of time application.[22]
[22] Outline of respondent's Position Regarding Extension of Time to Seek Review and Interim Application to Stay Condition 4(b), paras 15 - 19.
Rule 9 of the SAT Rules provides that an application to the Tribunal under its review jurisdiction must be made within 28 days of the day on which the decision maker gives notice of the decision. Rule 10 of those Rules provides the Tribunal with the power to extend that time.
It is well established that the discretion to extend time under r 10 is to be guided by four principal considerations:^[23]
(a)The length of delay;
(b)The reasons or explanation for delay;
(c)Whether there is an arguable case for review; and
(d)Whether the extension would cause prejudice.
[23] Lovegrove Investments Pty Ltd and Shire of Waroona [2023] WASAT 99, [11] - [16], esp [14].
That list of four principal considerations is not exhaustive and the facts and circumstances of a case may provide other factors relevant to the exercise of discretion.[24]
[24] Scolaro and Shire of Waroona [2014] WASAT 37 (Scolaro), [6].
I have also found very useful the passage of McHugh J in Gallo v Dawson,[25] which SM Willey cites in Lovegrove:[26]
The object of the [discretion to extend time] is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties … This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time:[27]
[25] Gallo v Dawson (1990) 64 ALJR 458, 459.
[26] Lovegrove, [19].
[27] Internal citations omitted.
That is, I have considered the evidence in relation to the relevant factors in light of the question as to whether, either separately or together, they are such as to compel the grant of an extension of time in order to do justice.
Put the other way, I have considered the evidence in relation to each of the relevant factors by asking whether to refuse the application to extend time would cause the 28 day time limit to become an instrument of injustice.
In what follows, I have addressed each of the four principal factors, albeit not in the order in which they are set out above.

Length of Delay

As I have noted, the respondent advised the applicant of its decision to grant the DA by letter addressed to Mr Allerding's firm dated 28 June 2024.[28] As the letter is addressed 'via email', I have assumed that it was received on the same day.
[28] Annexure SA9 to the Allerding Affidavit.
As I have also noted, pursuant to r 9 of the SAT Rules, any application for review was required to be made not later than 28 days after that date. That gives a deadline of 26 July 2024.
The applicant filed its application for review on 9 June 2025. Doing my best with the arithmetic, that appears to be 315 days (a little over 10 months) after the 26 July 2024 deadline.
In Lovegrove, SM Willey noted that the Tribunal had previously described a delay of over five weeks as 'borderline',[29] five months had been described as 'clearly significant',[30] and more than three years as 'extraordinary' and 'exceptional'.[31] SM Willey (reluctantly) described the 288 day delay in Lovegrove as 'of itself, extensive'.[32]
[29] O'Connor and Town of Victoria Park [2005] WASAT 161, [41].
[30] Hartwig and City of Canning [2008] WASAT 243, [49].
[31] Smith and City of Wanneroo [2008] WASAT 182, [4] and [10].
[32] Lovegrove, [68].
As the Respondent's Outline noted, in Hartwig it was said that the delay of five months was, 'in the absence of a good explanation, … held to warrant refusal to extend time notwithstanding findings of an arguable case and no material prejudice'.[33]
[33] Respondent's Outline, para 21.
I am conscious of DP Parry's admonition in Scolaro to 'exercise care when referring to other cases', given the inevitable differences in fact and circumstance. His Honour did, however, immediately follow that caution by describing as 'instructive' various characterisations of periods of delay.[34]
[34] Scolaro , [9].
In the present case, the applicant conceded in its written submissions that the delay is 'significant'.[35] Without necessarily disagreeing with that assessment, I would describe the delay in this case as very considerable indeed.
[35] Applicant's Submissions, para 37.

In Scolaro, the delay was of almost five years. DP Parry said that, while there is no 'maximum' period of delay, the delay in that case was 'so extraordinary as, if an extension to commence the proceeding were granted, to greatly undermine the utility and purpose of the 28 day period …'[36]
[36] Scolaro, [10].
In my view, although the delay is closer to one year than five, that assessment could equally be made here.
His Honour went on to note that:[37]
The purpose of the 28 day period is to ensure that persons who are aggrieved by, relevantly, planning decisions and have a right of review by the Tribunal, should exercise their right to seek review promptly. This is particularly important in relation to planning decisions which often affect not only the applicant and the original decision-maker, but also other people in the locality of the site.
[37] Scolaro, [10].
The respondent submits that that 'is the precise situation here, where condition 4(b) addresses amenity, and others in the locality have had a legitimate expectation for nearly a year that condition 4(b) will take effect on 1 July 2025 to reduce the early-morning operations of the site'.[38]
[38] Respondent's Outline, para 22.
It is useful to address that point in more detail below.

Prejudice

As to prejudice, Mr Heenan SC both submitted that there would be considerable prejudice to the applicant if the applications for an extension of time and a stay were not granted and that there would be minimal prejudice to others if the applications were granted.

Prejudice to the applicant, its customers etc if extension is refused

Mr Heenan SC placed considerable emphasis on the prejudice to the applicant and its customers, as well as others,[39] that he submitted would flow if the applications for extension of time and a stay were not granted.
[39] As to which the applicant relies on the affidavit of Russell Thomas Petchell, affirmed 27 June 2025 (Exhibit 2) (Petchell Affidavit).
There is some considerable strength to those submissions.
The site occupies an enviable position for the production of concrete, being only moments away from entrances to Lord Street, giving access to the Perth CBD, and the Graham Farmer Freeway.
The site's benefits are demonstrated by the favourable travel times to the CBD set out in Fig 7 of the Pracsys report.[40]
[40] Attachment 6 to Annexure SA-10 of the Allerding Affidavit. Pracsys, Department of Planning, Lands & Heritage: Concrete Batching Analysis - Update 2024, (v4.0, 20 June 2024), page 18.
I accept the following propositions which are supported by the Pracsys report and Mr Petchell's Affidavit (Exhibit 2):
(a)Minimising travel times for the delivery of concrete is critical, with most concrete needing to be discharged within 90 minutes of batching with specialised forms requiring less than 60 minutes;
(b)There are only three other concrete batching plants that can meet those timeframes for specialised deliveries to the CBD before 7.00 am;[41]
(c)Condition 4(b) prohibits any operation at all on the site before 6.00 am and start-up takes at least 42 minutes so that, if condition 4(b) takes effect, deliveries will not be able to commence until nearly 7.00 am;[42]
(d)Traffic volumes at 7.00 am are heavier than at previous times such that travel times are extended;
(e)If the plant does not operate until 6.00 am, that will result in:
(i)greater volumes of concrete being sourced from other plants, with a corresponding increase in heavy truck traffic around those other plants; and
(ii)a 'rush' at the plant at about 7.00 am when the first concrete is available.
[41] Ibid - Holcim Carlisle, Boral Bayswater and Boral Osborne Park.
[42] Petchell Affidavit, para 3.
Having accepted those matters, I note that it was not suggested that, if condition 4(b) takes effect, projects in the Perth CBD will not be able to access necessary concrete.
That is not to understate the significance of the above but, as I understand the evidence, it is not the case that, should the plant not commence operating until 6.00 am, customers will have nowhere else to go for their concrete until that time.
However, of much greater significance to my consideration of the weight to be given to the prejudice that will be suffered by the applicant, its customers and others if the extension of time is not granted is that any prejudice suffered is entirely of the applicants making.
In so finding, I do not accept the applicant's suggestion that the respondent is responsible for any material delay in the failure to determine the application for amendment before 1 July 2025.[43]
[43] See, for example, the Grounds for the Interim Order, filed 19 June 2025, para (c); Applicant's Submissions, para 40.
As I have already noted, more than nine months passed between the grant of the DA on 28 June 2024 and 7 April 2025, when the applicant lodged the application to amend condition 4(b) with the respondent. I do not understand how it could be said that any of that delay is attributable to the respondent.
I am not satisfied that the respondent is responsible for any part of the delay in progressing the application between its lodgement on 7 April 2025 and its consolidation with the other application on 23 May 2025 - the evidence of Ms Di Perna and Mr Allerding referred to previously is not sufficiently clear as to what occurred during that period and why for me to make a finding in that regard. But even if it was, any delay between those two dates is of marginal significance compared to what went before.
Further, what has occurred since 23 May 2025 when the applications were consolidated appears to be entirely normal processes, including public consultation.
Accordingly, I find that the applicant bears, at least, all of the responsibility for the very considerable, and entirely unexplained, delay in putting the application for amendment before the respondent in April 2025. Any submission as to prejudice suffered by the applicant must be seen in that light.
Further, and in any event, as to any prejudice suffered by its customers, the applicant has had 12 months since the DA was granted to make arrangements with its customers for the possibility that condition 4(b) will take effect on 1 July 2025.

Prejudice if the Extension is Granted

Mr Heenan SC also submitted that it is 'difficult to see what prejudice would be caused to other persons if an extension of time is granted'.[44]
[44] Applicant's Submissions, para 47.
In support of that submission the applicant relies on three factors: that condition 4(b) has not yet come into effect; that the plant has operated for a significant time without limitations on its hours of operation; and that the NIAR 'demonstrates that there is little or no noise emission from the plant'.[45]
[45] Applicant's Submissions, para 47.
I do not accept that the first two factors support the submission.
As to the first, the point being made by Mr Heenan SC was that in most cases where an extension of time is being sought, the decision the subject of the application has already taken effect, whereas the focus of the application of review in this case is condition 4(b), which has not.
That is true, but in my view, it misses the point, which is that the plant operates due to the permission granted by the DA, which took effect on 28 June 2024.
Condition 4(b) seeks to control the offsite emissions caused by the operation of the plant. The respondent decided to give the applicant 12 month's grace from the commencement of the DA before condition 4(b) takes effect.
That is, as the respondent submitted in its initial Outline, members of the public have had an expectation since 28 June 2024 that on 1 July 2025 condition 4(b) would take effect 'to reduce the early-morning operations of the site'.[46]
[46] Respondent's Outline, para 29.
The second point relied upon by Mr Heenan SC goes to the extent to which the respondent and community correctly assume that condition 4(b) will, in fact, reduce adverse offsite impacts from the plant.
I start by accepting that the local community is both heavily invested in the planning outcomes for this site and that much of the engaged community appears to be of the view that the plant is causing material adverse offsite impacts.
As to the first proposition, so much is evident from the Town's resolution to recommend against the grant of the DA in March 2024 and the numbers of public submissions objecting to the grant of the approval.
The Officer's report for the respondent's decision to grant the DA in June 2024 notes that 581 letters were sent to surrounding landowners and occupiers within ~500m of the site, resulting in 161 public submissions being received: 27.7%.[47]
[47] Page 17 of the Officer's Report, page 124 of the Agenda for the meeting - Annexure SA-10 to the Allerding Affidavit.
Of those, 138 submissions (85.7%) objected to the grant of the approval. The report advises that the 'key concerns' raised 'related to the impacts from the continued operation of the plant on public health and the environment as a result of the emission of dust, noise and other pollutants'.[48]
[48] Page 17 of the Officer's Report, page 124 of the Agenda for the meeting - Annexure SA-10 to the Allerding Affidavit.
Mr Repper noted in this regard that the public submissions were not made in fear of possible future impacts by those resisting a proposed development, but reflected the lived experience of those who claim to be impacted by the offsite emissions of an operational plant.
Mr Heenan SC submitted that there was no evidence to support the proposition underlying the complaints that the site was the source of unreasonable offsite noise emissions. He said that had been the case in June 2024 and that it remains so now. His submissions were to the effect that while complaints about noise were made, none had been substantiated.
Given that the Town is not a party, the very tight timeframes for the preparation of this hearing and that the evidence before me has not been tested, I cannot be certain that that is the case although I have proceeded on the basis that it is.
I am also willing to accept that the location of the site (adjacent to the north side of the Graham Farmer Freeway, on the other side of which are the East Perth railway yards) makes it likely to be difficult to substantiate community complaints that identify the plant as the source of offsite noise impacts.
That brings me to the question of the NIAR, which is the third of the factors relied upon by the applicant in support of its submission that there will be no prejudice suffered should a stay be granted.
The Applicant's Submissions included the following:[49]
As set out in the materials filed in support of this application, the applicant can demonstrate that there is little or no appreciable noise from the plant in the vicinity while it is operating and that ambient traffic noise dominates.
[49] Applicant's Submissions, para 46.
Given the interlocutory stage of the present proceedings, and as the NIAR's authors have not given evidence about it, now is not the time for a detailed critique of the NIAR or to make factual findings about it.
Mr Repper, who appeared for the respondent, made two submissions that were critical of the NIAR, both of which seem reasonable to me.
First, he noted that the NIAR measured only the noise generated from the plant, and not the noise generated by trucks servicing it. In doing so, it assessed only noise generated by sources relevant to an assessment of compliance with the Environmental Protection (Noise) Regulations 1997 (WA) (Noise Regs).
Mr Heenan SC accepted that the NIAR was prepared with a view to achieving compliance with the Noise Regs.
I accept that, even if the NIAR demonstrates that the plant will comply with the Noise Regs (and as I have already said, it is not appropriate at this time to make definitive findings in that regard), such compliance would not demonstrate that the plant is not having unreasonable adverse noise impacts; compliance with the Noise Regs is a necessary but not sufficient test of such impacts.[50]
[50] Sharon Property Pty Ltd and Presiding Member of The Metro Inner-North Joint Development Assessment Panel [2021] WASAT 63, [89] - [98].
Second, he submitted that although the NIAR had been prepared for the purposes of demonstrating that it would be appropriate for the site to operate from 3.00 am rather than 6.00 am, there were no noise measurements taken earlier than 5.00 am,[51] which he described as 'extraordinary'.
[51] NIAR, page 21.
There would appear to be some force to that criticism. The Conclusions and Recommendations section of the NIAR states that '[p]ersistent traffic noise precludes reliable measurement of noise levels received from the operations at the Plant at the nearest noise sensitive premises' but at section 4.2 the NIAR states that the:
time period between 6am and 7am was selected as the most appropriate time for assessing operational noise because it precedes the morning rush hour thereby presenting more opportunities to assess Plant noise during lulls in traffic noise.
Equally, there appears to be some strength to Mr Repper's criticism that 'one might think that traffic noise would be lesser, and noise from the plant more dominant, between 3am and 5am'.[52]
[52] Respondent's Submissions, para 45.
In short, without making findings about the adequacy or otherwise of the NIAR, I am not satisfied at this stage that the community will not suffer prejudice if I grant an extension of time (and the stay).

Arguable Case for Review

The applicant submitted that it had, at least, an arguable case for its application for review. In that regard it relied upon its two related submissions to the effect that:
(a)while condition 4(b) was imposed to control noise, there was and is no evidence that the community's complaints concern noise which is, in fact, emitted from the plant; and
(b)that the NIAR demonstrates that the site emits no appreciable noise while operating and that any noise is masked by traffic noise.[53]
[53] Applicant's Submissions, para 46.
I have addressed each of those submissions in the previous section.
But in any event, I have my doubts whether, if the extension of time is granted, this matter would progress to a hearing.
If the application to extend time is granted, the question of the stay would be live. However, regardless of whether the stay is granted or not, it seems likely that the applicant would pursue the application currently before the respondent to amend condition 4(b). The timeframe for a decision by the respondent is much sooner than any hearing and decision of the application for review by the Tribunal.
If the respondent grants that amendment, there would be no utility in proceeding to a hearing for the current application for review. Mr Heenan SC accepted that, in such circumstances, the applicant would withdraw the application for review.
If the respondent refuses the amendment, the applicant will have a right of review of that decision to this Tribunal.
Mr Heenan SC submitted that if that was to occur, the applicant could and would pursue both:
(a)the current application for review of the decision to impose condition 4(b) made in June 2024; and
(b)a new application for review of the decision not to amend condition 4(b) made in August 2025.
Mr Heenan SC sought to differentiate such a situation from that which is referred to when courts warn against 'a multiplicity of proceedings'. There is some strength to that submission, but I am unable to find a benefit to the applicant in proceeding with both applications. In any event, unless they were consolidated and/or heard together, there would still be the chance of different outcomes.

Explanation for the delay

In my view, this is the issue on which this case turns.
As I have noted, the applicant was assisted by very experienced and competent planning consultants who took the view, very soon after the development approval was granted in late 2024, not to seek review of that decision in the Tribunal. Rather, the advice given and followed was to pursue a reconsideration of condition 4(b) amongst others.[54]
[54] Allerding Affidavit, para 24.
There is no other explanation in the material before me as to why the applicant did not apply to the Tribunal for review of condition 4(b) until 315 days after the expiry of the 28 day deadline. Having taken advice, the applicant sought to pursue another course of action.
I offer no criticism of that decision. It was a reasonable decision to take after what I expect was careful consideration by experienced and competent planning consultants with a long history of assisting the applicant as to planning matters for this site.
Nonetheless, it is the case that the course of action taken has failed to bring about the desired result within the relevant timeframe; it may be that the respondent grants the amendment sought when it meets in due course but, in the meantime, from 1 July 2025 condition 4(b) will considerably shorten the plant's operating hours.
There are material parallels with the facts in Lovegrove, where the applicant, rather than apply for review of the decision in question, chose to try to persuade the local government in question, to reverse the decision.
In that case SM Willey held that the delay of nine and a half months and 'in particular, the reason for the delay militates, heavily in my view, against extending time'.[55] That was so even though he found that extending time would not give rise to the respondent suffering prejudice.[56]
[55] Lovegrove, [72].
[56] Lovegrove, [72].
An appeal by the unsuccessful applicant was dismissed.[57] Glancy J (as her Honour then was) referred to a decision of the former President, Pritchard J, in Wood:[58]
The time limits for the commencement of applications in the Tribunal, in so far as they apply in review applications, reflect the fact that there is clearly a public interest in the finality and certainty of decisions which are amenable to merits review by the Tribunal. To permit the review of such decisions after a delay, much less a substantial delay, can be productive of great uncertainty, not only for decision makers (who will ordinarily be expected to be consistent in their decision making) but for third parties who may be affected by such decisions.
[57] Lovegrove investments Pty Ltd v Shire of Waroona [2024] WASC 321 (Lovegrove Appeal).
[58] Wood and Law Complaints Officer as Delegate of the Legal Profession Complaints Committee [2024] WASAT 35, [101].
Her Honour Glancy J then said:[59]
In that case the President, Justice Pritchard referred to the fact that the application for review had been lodged by Mr Wood some 10 months out of time and described that as a 'very significant delay'. Her Honour also expressed the view that a delay of that length weighed heavily against the grant of an extension of time in the absence of a good explanation for the delay.
In my view, given the very significant delay in commencing the review in the Tribunal in this case, it was clearly open to the Tribunal to decide that, despite having been made aware of the time limit applicable to making a review application in the Tribunal, the Appellant has taken a different path for a period of time which, in the circumstances, ought not to have been excused by the grant of leave to commence the review application notwithstanding the lack of prejudice to the Respondent. No material procedural fairness was denied to the Appellant by the Tribunal in reaching that conclusion.
[59] Lovegrove Appeal, [103] - [104].
Likewise, in the present case the applicant has taken a 'different path' to that offered by an application to the Tribunal for review of the decision. That different path has not been successful and that failure 'ought not to be excused' by the grant of leave.
Mr Heenan SC sought to distinguish the present case from Lovegrove.

First it was said that in Lovegrove the decision in question was a direction issued under s 214 of the P&D Act, which lacks a right of amendment.
Second, it was said that in Lovegrove the direction had immediate effect while, in the present case, condition 4(b) was to take effect a little over 12 months after the DA was granted.
As to the second matter, the difference is that in Lovegrove the failure to comply amounted to an offence (resulting in an Infringement Notice) whereas in the current situation, as the condition had not yet come into effect as at the date of the hearing, there was no question of noncompliance.
But I do not accept that that difference ought to have a material impact on my decision. In both cases, the decision the subject of the application for an extension of time had been made many months in the past.
As to the first matter, I understand the point being made to be that the applicant has pursued its ability to amend condition 4(b), which is currently before the respondent and, if the respondent refuses to approve that amendment application, the applicant will likely seek review of that decision in this Tribunal.
The effect of that scenario was repeated by Mr Heenan SC more than once - that the only real effect of my decision as to the extension of time application is whether the application for a stay remains live.
That may be so, but I do not understand the relevance. To the extent that he was suggesting that the application for an extension of time is of limited relevance because everyone may well be back in the Tribunal on an application for review of the respondent's decision on the amendment in a few months, I do not accept that as weighing very heavily in favour of extending time.

Conclusion as to the Extension of Time

In my view the length of the delay and the reason for it are such as to compel the refusal of the application for an extension of time.
The length of delay is such that, if I granted the application to extend time, it would in my view 'greatly undermine the utility and purpose of the 28 day period …'[60] As I have noted, those words were applied by DP Parry in Scolaro, which concerned a delay of five years. In my view the utility and purpose of the time limit are undermined by granting an extension of time for delays much less than five years.
[60] Scolaro, [10].
To grant an extension would also, in the words of Pritchard J in Wood, undermine the 'public interest in the finality and certainty of decisions which are amenable to merits review by the Tribunal'.
As to the explanation for delay, the applicant pursued its choice for nearly a year from the end of June 2024.
In doing so, it was not ignorant of its rights or poorly advised. Rather, it is a sophisticated publicly listed company, guided by experts.
Its preferred course did not produce the expected outcome within the relevant timeframe. That does not amount to a suitable or appropriate reason to allow the applicant a 'second bite of the cherry' by granting an extension of time.
Neither does the fact that the refusal of the extension of time (resulting in a lack of power to grant a stay) will result in adverse impacts for the applicant, its customers and others. As I have said, the applicant bears responsibility for its own failure to promptly put the application for amendment before the respondent. Equally, it also bears responsibility for any failure to make contingency plans with its customers for the possibility that condition 4(b) would take effect on 1 July 2025; it had 12 months to do so.
For those reasons, and applying the language of McHugh J in Gallo v Dawson, the length of the delay and the applicant's explanation for it are such that refusal of leave to extend time will not result in the 28 day time limit becoming an instrument of injustice.
Rather, in my view, given the facts as outlined above, it would be an injustice to allow the applicant to pursue an application for review so long after the expiration of the time limit, when it made a careful and deliberate decision not to apply for review and, instead, pursued other courses.
For those reasons, I will refuse and dismiss the application for an extension of time.

The application for a stay

As I dismissed the extension of time application, the application for review was not valid and was, therefore, also dismissed.
As a result, there was no proceeding in which I may make the stay otherwise sought.
However, even if I had had power to do so, I would have refused the application for the stay. Briefly stated, there are two reasons.
First, as I have previously noted, the applicant sought a stay of the operation of condition 4(b) only, not the whole of the DA. I am not convinced that s 25(2) allows for that to occur.
That subsection provides for an order 'staying the operation of a decision that is the subject of a proceeding for review'; it provides for the stay of the operation of a 'decision', not part of a decision.
I accept that it would appear that the Tribunal has previously made such orders (i.e. orders which stay only part of a development approval). So much is said in Fero[61] but that decision does not concern such orders; it merely refers to them having been made in other proceedings and there is therefore no reasoning explaining the basis for the orders or otherwise justifying them.
[61] Fero Group Pty Ltd and City of Nedlands [2018] WASAT 78.
Another case, Cuddles,[62] was also referred to in this context but in my view that decision turns on its own statutory regime.
[62] Cuddles Group Pty Ltd and Director General, Department for Community Development [2006] WASAT 114, [33].
To the extent that the applicant pursued its submission that what is in dispute in the application for review is condition 4(b) and not the whole of the DA, the decision of Solomon J in Star & Garter is against it.[63] That decision is authority for the proposition that, on an application for review against a condition imposed on an approval, it is the whole of the decision to grant the approval that is the subject of review.
[63] Star & Garter Hotel Pty Ltd v City of Kalgoorlie-Boulder [2023] WASC 149, [65].
Accordingly, it seems to me that it is the decision to grant the DA which may be the subject of a stay rather than not merely one condition which the respondent decided to impose on the DA.
Second, even if I was satisfied that s 25(2) provided the power to stay part of a decision, I find it inappropriate to do so in this case.
In making that finding I give considerable weight to the considerations I have already outlined above as to the length of the delay and the explanation for it. The delay is very considerable indeed and is the result of a decision made by a sophisticated entity after advice from experienced experts. That the decision did not work out as hoped or expected does not now warrant the grant of relief.
Further, as I have previously held, the community, including the Town, have expected for 10 months (since the expiry of the 28 day period) that condition 4(b) will take effect (and that, in doing so, it will mitigate some of the adverse offsite impacts of the plant's operation).
In those circumstances it would be inappropriate to allow the site to continue to operate (i.e. not stay the operation of the DA altogether) but stay the operation of a condition deigned to mitigate the effects of the site's operation.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
FA
Associate to the Deputy President Judge Jackson
4 JULY 2025