HOLCIM (AUSTRALIA) PTY LTD and SHIRE OF CAPEL - [2024] WASAT 116

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION:   HOLCIM (AUSTRALIA) PTY LTD and SHIRE OF CAPEL [2024] WASAT 116
MEMBER:   MS R LAVERY, MEMBER
HEARD:   10, 16 AND 17 APRIL 2024
DELIVERED          :   22 OCTOBER 2024
FILE NO/S:   DR 228 of 2022
BETWEEN:   HOLCIM (AUSTRALIA) PTY LTD
Applicant
AND
SHIRE OF CAPEL
Respondent

Catchwords:

Planning and development - Review of conditions of approval - Extractive industry - Validity of condition - Condition limiting number of truck movements - Whether condition for a planning purpose - Whether condition fairly and reasonably relates to development - Legal unreasonableness

Legislation:

Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, cl 64, cl 77
Planning and Development Act 2005 (WA), s 252(1)
Shire of Capel Local Planning Scheme No 7
Shire of Capel Local Planning Scheme No 8
State Administrative Tribunal Act 2004 (WA), s 27(2), s 31(1)

Result:

Application for review is dismissed
Decision of respondent is affirmed

Category: B

Representation:

Counsel:

Applicant	:	J Skinner
Respondent	:	CA Slarke

Solicitors:

Applicant	:	Thomson Geer - Perth
Respondent	:	McLeods

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

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Bunnings Group Limited v Presiding Member of the Metro North West Joint Development Assessment Panel [2019] WASAT 121
Prosser and City of Bunbury [2018] WASAT 41
Urban Resources Pty Ltd and City of Swan [2015] WASAT 117
WA Timber Supplies Pty Ltd and City of Swan [2020] WASAT 153

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

Holcim (Australia) Pty Ltd (Holcim) seeks review of the Tribunal under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) of the decision of the Shire of Capel (Shire, Council or respondent) on 30 May 2022 to grant development approval for 'Industry Extractive' on Lots 348 and 2644 Jules Road, Gelorup and more specifically limited to the substituted condition (h) determined by the Council on 31 May 2023. The applicant did initially also seek review of condition (i) of that approval however as a result of clarification of the method of calculation in relation to condition (i) during evidence, the applicant confirmed that they are no longer pursuing the review of condition (i).
In these reasons, the Tribunal will describe the subject land, the proposed development and the applicable legislative framework. The Tribunal will then set out and address the principal issue for determination in these proceedings.
The Tribunal, the representatives of the parties and the parties' witnesses had the benefit of a view of the subject land and the locality. The documents entered as Exhibits together with oral evidence and submissions made at the final hearing is the material I have relied upon to make my decision in relation to this matter.
For the reasons given below the Tribunal has determined that the 'correct and preferrable decision at the time of the decision under review', under s 27(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) in the exercise of planning discretion is to uphold the decision of the Shire of 31 May 2023 to impose condition (h) under the Shire of Capel Local Planning Scheme No. 7 (LPS 7) acknowledging that the Shire of Capel Local Planning Scheme No. 8 (LPS 8), which was gazetted on 17 July 2023 and replaced LPS 7, including the provisions of Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (Deemed Provisions) is now the relevant planning scheme considered in relation to the reasons for the Tribunal's decision.

Subject Land

The subject land is more particularly described as Lot 348 on Plan 248930 Volume 2226 Folio 587 and Lot 2644 on Plan 248973 Volume 2226 Folio 586.
The following facts are not contested. I therefore find as follows:
(1)The subject land:
(a)has a total area of 94.81 hectares;
(b)was zoned Rural pursuant to LPS 7 at the time of the Shire's determination of the application on 30 November 2022, and pursuant to LPS 8 at the time of the Council's determination of the substituted condition on 31 May 2023, and remains zoned Rural pursuant to LPS 8;
(c)is zoned Rural pursuant to the Greater Bunbury Region Scheme (GBRS);
(d)has frontage to Jules Road to the west and to Hasties Road to the south;
(e)is mapped as an area containing significant geological supplies for the purposes of State Planning Policy 2.4: Planning for Basic Raw Materials (SPP 2.4);
(f)is identified in the GBRS Strategic Minerals and Basic Raw Materials Resource Policy 2018 (GBRS BRM Policy) as a significant geological supply site containing rock aggregate.
(2)The locality:
(a)Is as agreed by the planning experts:
… the relevant locality for the purposes of Condition (h) is primarily the properties on both sides of Jules Road between Hasties Road and the entrance to the Land on Lot 2344, the properties on both sides of Hasties Road between Jules Road and Bussell Highway, and the roads themselves.[1]
(b)The lots abutting the subject land to the east at Lot 27 and Lot 3 are also zoned Rural under LPS 8 and the GBRS and also contain a quarry.
(b)The area to the north and to the south of the subject land is also zoned Rural under LPS 8 and the GBRS.
(c)The area immediately to the west of Jules Road is zoned Residential R2.5 pursuant to LPS 8.
[1] Witness Statement of Mr Scott Price signed and dated 13 March 2024, paragraph 12.

Procedural history

The applicant is the operator of a hard rock (basalt) quarry located at Lot 2644 and Lot 348 Jules Road, Gelorup. The applicant is the owner of Lot 2644 and Robert Bell Nominees Pty Ltd is the owner of Lot 348.
The applicant says that a hard rock (basalt) quarry has existed on the subject land for many years and that its former entities or previous operators have held licences and approvals for the extraction of basalt construction materials over the subject land since the 1950s. They say that based on the extent of the remaining resource they estimate the quarry has at least a further 30 years of operations.
The respondent agrees that a hard rock (basalt) quarry has existed on Lot 2644 for many years, but does not know:
(a)whether the approvals or licences held by the applicant, its former entities or previous operators for the extraction of basalt materials from Lot 2644 extend back to the 1950s; or
(b)whether the remaining resource is such that the quarry is likely to have a further 30 years of operation.
The respondent denies that a hard rock quarry has existed on Lot 348 for many years but asserts rather, that the quarry appears to have extended into Lot 348 circa 2007.
On 29 August 2012 the respondent granted development approval for an extractive industry on the subject land for a term ending on 31 August 2022. It is agreed that a quarry existed and was operated on the subject land for some years prior to 2012.
The parties agree that the 2000 Approval and the 2012 Approval were subject to various conditions, but did not include any conditions relating to the number of truck movements per day on any of the roads surrounding the subject land, including Jules Road and Hasties Road.
In addition to the 2012 Approval, on 29 August 2012 the respondent also issued to the applicant an Extractive Industries Licence in respect of each of Lot 2644 and Lot 348 Jules Road (2012 EILs) in accordance with the respondent's Extractive Industries Local Law, also expiring on 31 August 2022.
The 2012 EILs were not subject to any condition relating to the number of truck movements per day on any of the roads surrounding the subject land, including Jules Road and Hasties Road.
On 30 May 2022 the applicant applied for development approval under both the LPS 7 and GBRS for the continued use of the subject land for extractive industry, seeking to:
1.Renew the existing planning approval and Extractive Industry Licence for a 21 year period to enable the ongoing extraction of basalt resource from Lots 2644 and 348;
2.Undertake additional crushing and screening of the extracted material from a mobile crushing and screening plant, to be located at the base of the existing excavated pit on Lot 348 and positioned to minimise noise impacts. The proposed mobile crushing and screening plant will also be utilised for crushing of returned concrete to make recycled road base and aggregate products;
3.Undertake stockpiling of returned concrete and recycled road base within the existing stockpile area located on Lot 2644; and
4.Construct a new internal heavy vehicle road connecting Lot 2644 through to the southern boundary of Lot 348. This proposed internal haul road will ultimately connect with a future heavy vehicle quarry entrance to Hasties Road to the south which will be subject to a separate approvals process. [2]
[2] Respondent's Statement of Issues, Facts and Contentions dated 12 May 2023. While the application initially sought approval for a 21-year term; following discussions with the respondent, the applicant confirmed a 10year approval was acceptable.
The applicant has said that the application is a 'renewal' of the existing approval, the application was not however made pursuant to cl 77 of the Deemed Provisions and has therefore been dealt with by the respondent as an application for a new development approval rather than as an application to amend the 2012 approval.
The development application together with the supporting documentation was advertised in accordance with cl 64, Sch 2 of the Deemed Provisions.
The development application was considered by the Council of the respondent, at its Ordinary Council Meeting of 30 November 2022 where it granted development approval for an 'Industry Extractive' use on the subject land subject to a number of conditions.
On 21 December 2022 the applicant applied to the Tribunal for the review of condition (h) and condition (i) and now seeks only review of condition (h) which at that time stated:
h.The maximum truck movements to and from site per day is limited to 78. Consideration by the Shire will be given for granting additional numbers to the stated maximum figure of 78 trucks per day, with any variation to be approved in writing by the Chief Executive Officer.
Following mediation before the Tribunal, the applicant proposed an amendment to condition (h) worded as follows:
(h)In relation to truck movements on Jules Road, numbers are limited to a maximum of 94 (78 plus 20%) truck movements to and from the site per day unless otherwise agreed in writing by the Chief Executive Officer. Upon completion of the internal haul road and crossover to Hasties Road no truck movements for transporting the extracted material are permitted on Jules Road other than for direct local deliveries.
Upon being invited by the Tribunal under s 31(1) of the SAT Act to reconsider its decision, the Council at its meeting on 29 March 2023 resolved to modify condition (h) as follows:
(h)In relation to truck movements on Jules Road, numbers are limited to a maximum of 78 truck movements to and from the site per day unless otherwise agreed in writing by the Chief Executive Officer to a variation of a maximum of 20%. Upon completion of the internal haul road and crossover to Hasties Road no truck movements for transporting the extracted material are permitted on Jules Road other than for direct local deliveries.
The applicant was not satisfied with the modified condition (h) and following further mediation the Tribunal again invited the Council under s 31(1) of the SAT Act to reconsider its decision based on a further condition proposed by the applicant. The Minutes of the Ordinary Council Meeting of 31 May 2023 state that:
The applicant stated that 78 truck numbers are proposed as part of their haulage operations. However, the applicant is seeking a 20% increase on their maximum truck numbers stated in the application's documentation without the need to obtain permission by the Shire. The applicant is satisfied in having to approach the Shire for permission if they need to exceed the 20% premium (94 truck numbers) to fulfil any contractual obligations.
As such, Condition (h) is recommended to be amended to read as follows:
In relation to truck movements on Jules Road, numbers are limited to a maximum of 188 truck movements (that is, 94 to and from the site) per day unless in accordance with a traffic management plan agreed in writing by the Chief Executive Officer and supported by a traffic impact statement. Upon completion of the internal haul road and crossover to Hasties Road no truck movements for transporting the extracted material are permitted on Jules Road other than for direct local deliveries.[3]
[3] Applicant's s 24 Bundle of Documents dated 15 January 2024, Tab 8, page 177.
At its meeting of 31 May 2023, the Council resolved to modify condition (h) as recommended. It would appear from the Minutes of the Council Meeting of 31 May 2023 that the numbers of movements that the applicant was seeking was agreed to by the Council's rewording of condition (h). It would seem the only difference was that the Council required a traffic impact statement to support and request for truck movements in excess of 188 movements per day.
Following further mediation before the Tribunal, the applicant remains unsatisfied with condition (h) and the matter proceeded to final hearing.
The respondent accepts that the applicant is not satisfied with condition (h) but notes that condition (h) is in materially the same form as the Applicant's proposed formulation of condition (h) considered by Council on 31 May 2023.
The decision the subject of this review is the decision made by the Council of the respondent on 31 May 2023 upon being invited by the Tribunal to reconsider the decision to impose the amended condition (h) on the development approval granted by Council on 30 November 2022. The applicant seeks a review of the respondent's decision of 31 May 2023 to the extent that it involved imposing condition (h).
The information relevant to condition (h) and truck movements as provided in the development application includes that in relation to the estimated annual extraction of material, the subject land is currently licensed to extract 280,000 tonnes of material per annum, and to process up to 500,000 tonnes of material per annum. The development application proposes 'No change to extraction and processing rates. The proposal would involve crushing of up to 50,000 tonnes per annum of returned concrete'.[4]
[4] Development application table 2, page 6 - Respondent's s 24 bundle, page 7.
The development application states that there are currently approximately 70 trucks entering and exiting the quarry per day and that there is:
No change to number of trucks entering and exiting the site per day associated with the quarry operations.
An additional 8 trucks will enter and exit the site per week associated with the transport of returned concrete.[5]
[5] Development application table 2, page 7 - Respondent's s 24 bundle, page 8.
Further, the application states:
The quarry entrance is located on Jules Road, just south of the intersection with Frances Road (refer Figure 14). Currently all quarry traffic must enter and exit the Bunbury Quarry from Jules Road by Hasties Road and Bussell Highway. All local transport roads are bituminised.
Once constructed the Bunbury Outer Ring Road will provide an opportunity to minimise the potential impact of transport on local residents. To facilitate this, a new heavy vehicle access will be constructed on Hasties Road on the southern side of Lot 348. All traffic, other than light vehicles access[ing] the quarry and local traffic would be directed east to the Bunbury Outer Ring Road north and south, therefore avoiding the Gelorup residential area.
The local road Heavy Vehicle Route network permits Tri-Drive 1 and Overside B-Double vehicles to travel on Hasties Road, Allenville Road, Lilydale Road and the southern section of Jules Road (refer Figure 15). Each day approximately 70 trucks both enter and exit the site by internal haul roads and also externally through the bitum[in]ised quarry entrance before exiting to Jules Road. With the proposed heavy vehicle access from Hasties Road, the 70 entering and exiting truck movements will be transferred to the new access point via a proposed internal haul road. The additional one daily truck movement associated with the transport of returned concrete as part of the proposed crushing and screening to occur on Lot 348 will also occur via the proposed heavy vehicle access point from Hasties Road.[6]
[6] Development application, section 7.5.9, page 25 - Respondent's s 24 bundle page 26.
At the time of the application, it was estimated that 56% of truck traffic travelled south down Jules Road and turns eastward to South Western Highway along Hasties Road via Lilydale Road. It is estimated that 17% of truck traffic travelled south down Jules Road and turns westward along Hasties Road to Bussell Highway with the balance of truck movements using one of these routes for local deliveries.
Once the BORR is operational the application estimates that all truck traffic from the quarry will exit from the new access to Hasties Road and travel eastwards to the BORR.
The DVC TIS February 2023 identifies that Jules Road (south of Frances Road), Hasties Road and Allenville Road are part of the RAV4 Network which allows restricted access vehicles of up to 27.5 metres in length and up to 87.5 tonnes. The most recent traffic count for Jules Road just south of the access to the quarry shows traffic volumes of 472 vehicles per day, with 20.8% of those vehicles being trucks.
The most recent traffic count for Hasties Road west of Jules Road shows a daily volume of 2,505 vehicles per day, with 25% of those being trucks. It shows that in 2022 the average truck movements per day to and from the subject land was 38 and that the busiest day in 2022 generated 130 truck movements with 91 proceeding east on Hasties Road and 39 proceeding west on Hasties Road. The TIS provides that with an increase in truck movements to 188 movements per day, 132 truck movements would proceed east on Hasties Road towards South Western Highway and 56 truck movements would proceed west on Hasties Road towards Bussell Highway.

Planning framework

The planning framework relevant to the review of condition (h) of the development approval are:
(a)LPS 8 (including the Deemed Provisions);
(b)the GBRS;
(c)SPP 2.4;
(d)the GBRS BRM Policy;
(e)State Planning Policy 2.0 - Environmental and Natural Resources;
(f)State Planning Policy 2.5: Rural Planning; and
(g)State Planning Policy 4.1: State Industrial Buffer Policy.
Additionally, consideration was given to the Shire of Capel Extractive Industries Local Law 2016 and Environmental Protection Authority (EPA) 'Guidance for the Assessment of Environmental Factors' - Separation Distances between Industrial and Sensitive Land Uses, No 3.

Issues

The two issues initially sought by the applicant to be addressed by this review were:
(1)Should condition (h) of the 2022 Approval (as amended on reconsideration by the Council of the respondent on 31 May 2023) be deleted?
(2)Should condition (i) of the 2022 Approval either be deleted, or alternatively amended to be in the form proposed by the applicant?
The Tribunal had the benefit of evidence from the following expert witnesses:
For the applicant:
•Mr Sam Russell employed by Holcim in the position of General Manager, Aggregates, Western Australia;
•Mr Stephen Geoffrey Allerding an experienced town planner; and
•Mr Donald Nigel Veal an experienced transport planner and traffic engineer;
For the respondent:
•Mr Scott Price an experienced town planner and Manager Development Services for the Shire;
•Mr Scott Lambie, an experienced traffic engineering and road safety expert; and
•Ms Sandra De Vries technical officer planning projects for the Shire.

On the second day of the hearing Mr Skinner on behalf of the applicant advised that on the basis of the evidence of the respondent on the first day of the hearing in regard to condition (i), in particular that the cocontribution charges would only be based on the local roads travelled until the vehicles arrive at a main road, the applicant was now satisfied that their concerns in regard to condition (i) could be satisfied. It was confirmed by Mr Slarke that his instructions from the respondent were that the co-contribution would only apply to the three portions of road being:
(1)from the entrance to the quarry on Jules Road to the intersection of Jules Road and Hasties Road, approximately 690 metres;
(2)from the intersection of Jules Road and Hasties Road to Bussell Highway, approximately 1605 metres; and
(3)from the intersection of Jules Road and Hasties Road to South Western Highway, approximately 5.5 kilometres.
Mr Skinner advised the Tribunal:
… that does largely address the issues or probably almost entirely address the remaining issues that Holcim had with condition (i). So while we haven't yet seen a draft agreement that's proposed by condition (i), based on what we now understand that agreement will be, we won't be pressing the review of condition (i).[7]
[7] ts 86, 16 April 2024.
In essence the applicant sought leave to withdraw from that part of the proceeding that relates to condition (i) and the final orders will deal with this part of the proceedings. These reasons will therefore deal only with issue (1) in relation to condition (h).

Is condition (h) a valid condition?

The considerations for determining whether planning conditions are valid are set out in the 'Newbury tests' and are accepted principles relevant to the present case. As Deputy President Parry articulated in Prosser v City of Bunbury:[8]
[8] Prosser and City of Bunbury [2018] WASAT 41 at [37] - [39].
37The 'Newbury tests' derive their name from the decision of the House of Lords in Newbury District Council v Secretary of State for the Environment [1981] AC 578. The Newbury tests were stated by McHugh J in the High Court of Australia in Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30 in the following terms [57]:
… A condition attaching to a grant of planning permission will not be valid therefore unless:
1.The condition is for a planning purpose and not for any ulterior purpose. A planning purpose is one that implements a planning policy whose scope is ascertained by reference to legislation that confers planning functions on the authority, not by reference to some preconceived general notion of what constitutes planning.
2.The condition reasonably and fairly relates to the development permitted.
3.The condition is not so unreasonable that no reasonable planning authority could have imposed it.
38In Western Australian Planning Commission v Temwood Holdings Pty Ltd Callinan J also referred, with apparent approval, to the Newbury tests as follows [155]:
… that a condition must be for a planning purpose and not for any ulterior purpose, must fairly and reasonably relate to the proposed development, and, thirdly must not be so unreasonable that no reasonable planning authority could have imposed it[.]
39In Reid v Western Australian Planning Commission [2016] WASCA 181, the Court of Appeal (Martin CJ, Newnes and Murphy JJA agreeing) endorsed the Newbury tests. After setting out the passage from McHugh J's judgment in Western Australian Planning Commission v Temwood Holdings Pty Ltd quoted at [37] above, the Chief Justice observed and held as follows [29]:
It is clear from the terminology used by McHugh J and from his reasons read as a whole that he considered the three conditions of validity to which he referred to be quite separate and distinct so, even if the condition is imposed in the furtherance of a proper planning purpose, it will not be valid unless it reasonably and fairly relates to the development proposed.
The legal principles that apply are not in dispute.

First Newbury Test

In relation to the first limb of the Newbury test, whether the condition is imposed for a planning purpose, the applicant accepts that condition (h) in its current form:
(a)has been imposed for a planning purpose, in a general sense, having regard to the amenity of the locality and road safety on, or the convenient use of, Jules Road and Hasties Road; and
(b)reasonably relates to the development the subject of the Application insofar as it relates to truck movements from and to the Land that are associated with the operation of the quarry;[9]
[9] Applicant's SIFC dated 11 December 2023, paragraph 51.
However, the applicant then goes on to say that:
(c)has not been imposed for a planning purpose relating to the development the subject of the Application; and/or
(d)does not reasonably relate to the development which is the subject of the Application,
insofar as the development the subject of the Application does not, and will not, give rise to any adverse impact on the amenity of the locality or on road safety on, or the convenient use of, Jules Road and Hasties Road, by reason of any truck movements from and to the quarry.[10]
[10] Applicant's SIFC dated 11 December 2023, paragraph 51.
The Tribunal does not accept the applicant's submissions that the condition is not imposed for a planning purpose because condition (h) pursues a legitimate planning purpose grounded in the State and local planning framework.
The policy objectives of SPP 2.4 are set out in s 5. Objective (b) is:
(b)protect BRM [basic raw materials] in SGS [significant geological supply] areas and ES [extraction sites] by avoiding encroachment from incompatible land uses;
LPP 6.2 Extractive Industries pursuant to LPS 8 has objectives that include:
1.Ensure extractive industries do not adversely affect the environment or the amenity of the locality during or after extraction.
…
3.Ensure volumes of extraction occurs where the available haulage routes and road hierarchy are satisfactory or can be upgraded to support an extractive industry without affecting the safety of road users and the sustainability of the transport network.
LPP 6.2 Performance criteria PC 1.1.1 with respect to Amenity provides that 'Development is to demonstrate a negligible impact on the amenity of residential areas by way of vehicular traffic, noise, dust, blasting and vibration'.
Further, LPP 6.2 Performance criteria PC 1.5.1 to 1.5.4 with respect to Transport provides:
PC1.5.1 The proposed haulage route is not to have a detrimental impact on safety and amenity of residents, and local road users.
PC1.5.2 The application is accompanied by a Traffic Management Plan to demonstrate that haulage periods that conflict with school pick [up] and drop off times are acceptable in their impact to the safety of the road network.
PC1.5.3 The applicant is to demonstrate that the haulage traffic will not have adverse impacts on the locality by virtue of noise, dust pollution, and safety, and that suitable arrangements be made by the developer to ensure the road is maintained to an appropriate standard.
PC1.5.4 Development does not create hazards to other road users, impact on sustainability of the transport network, nor negatively impact on the amenity of the residences along the route, in terms of:
•Access points to the operation site.
•Existence of any other extractive industry or heavy haulage in the vicinity and cumulative effects on the transport network.
As the respondent points out, SPP 2.4 provides policy objectives which include that the extraction of basic raw materials 'avoids, minimises or mitigates any adverse impacts on the community …', is to be read in conjunction with the Planning for Basic Raw Materials Guidelines (BRM Guidelines) and provides that applications for development approval should be accompanied by a management plan that demonstrates 'proposed transport routes and site access details' and 'compliance with any other considerations as outlined in the BRM Guidelines'.
Further, s 4.6 of the BRM Guidelines provides 'The availability and suitability of road access is an important consideration and may require a Transport Impact Assessment (TIA) and management plan'.
I therefore find that it is clearly the intent of the policy to ensure that amenity is a consideration, that condition (h) satisfies the first limb of the Newbury tests as it implements a planning policy whose scope is ascertained by reference to legislation that confers planning functions on the respondent and it therefore has a planning purpose.

Second Newbury Test

In terms of the second limb of the Newbury tests that the condition reasonably and fairly relates to the development permitted, in considering the type of impact that may be attributed to additional truck movements, there were two types of impact the subject of evidence and submissions in this case. Firstly, the impact on residential amenity and secondly the impact on traffic and road users should condition (h) which restricts the numbers of truck movements to and from the subject land be removed.

Amenity

The respondent says that the subject land is used for an industrial purpose (extractive industry) but is zoned Rural and that it abuts land zoned Residential and developed for residential use. It is in that context that it is incumbent upon the applicant to ensure that the impacts of truck movements on the developed residential areas are minimised.
The planning witnesses agreed that the reduction of truck movements on Jules Road and Hasties Road west of Jules Road that would likely result from the construction of the internal haul road and closure of Hasties Road requiring truck traffic to utilise the BORR rather than Jules Road and Hasties Road west of Jules Road, would be beneficial in reducing the amenity impacts that truck traffic can have on local roads and amenity, particularly in terms of noise from engines and breaks, vibration, potentially dust if trucks were not well washed down, and driver comfort or driveability on local roads and through residential areas.
Mr Allerding and Mr Price agreed that as a general principle more trucks would have more impact on amenity because the more trucks there are on the road more regularly, the more interactions or encounters there are with residents and drivers. Mr Allerding contends however that it is not necessarily a linear correlation but is more like a tipping point, a point at which the impact might become intolerable as opposed to one extra truck resulting in an adverse impact on amenity.
The information provided by Holcim in relation to truck movement is for 2017, 2018 and 2022. The applicant is at pains to point out that the truck movements associated with the quarry even in its busiest times has not exceeded the 188 truck movements it has as of right pursuant to condition (h) in its current form.
The respondent points out that that also means that the residential area has not experienced the impact on amenity of 288 truck movements per day. The average daily number of truck movements in 2022 according to the information provided by Holcim was 38 truck movements per day, some 250 truck movements less than could be made if the quarry was operating to the capacity of the weighbridge without the imposition of condition (h).
I am satisfied that the intensification of truck movements to a maximum of 288 truck movements per day, if limited by the weighbridge only, is likely to result in increased impact on residents of the locality and that condition (h) limits that impact whilst still allowing flexibility for the operations of the Holcim quarry for specified times on a casebycase basis.

Traffic

As to traffic impacts there has been no contention by the respondent that the road network and in particular Jules Road and Hasties Road cannot accommodate the 288 truck movements, being a theoretical operating capacity of the quarry based on 24 truck movements going through the weighbridge per hour for 12 hours. The applicant argues that there is a maximum of 24 truck movements per hour that can be processed through the weighbridge so the frequency of truck movements limited regardless of condition (h) so therefore condition (h) makes no difference to the maximum frequency of truck movements per hour and that can happen at any time during the 12 hour operating timeframe, for as long as it needs to, at 24 truck movements per hour that is equivalent to 7.83 hours for the 188 truck movements provided for in condition (h).
There is agreement between the parties that the truck numbers of 288 truck movements per day do not exceed operational or functional capacity of either of the roads in terms of road safety, and no issues have been raised other than in relation to the identified discord between traffic experts in relation to the impacts of additional truck traffic on the Hasties Road/ Bussell Highway intersection.
So, the applicant asserts that removing condition (h) does not result in any greater frequency of trucks on the road during any particular period. Removing condition (h) does however allow for the frequency of truck movements limited by the capacity of the weighbridge to continue over a longer period.
The Tribunal accepts the agreed position of the traffic experts that the weighbridge limits the frequency of truck movements to a maximum of 24 per hour, and that the removal of condition (h) allows the maximum frequency of trucks of 24 movements per hour, to extend over a longer period of the day than if the 188 truck movements contemplated by condition (h) were evenly spread over the agreed operating hours. The average frequency for 188 truck movements over 12 hours is 15.67 per hour.
The applicant contends that the respondent has not quantified any increase in risk that would be associated with removing condition (h) and therefore has not provided a basis for imposing a cap.
They say there are no issues identified with the intersection of Jules Road and Hasties Road or indeed with the access point onto Jules Road and that there have been no issues identified with respect to the intersection of Hasties Road and South Western Highway.
The only intersection that has been identified as an issue is that of Hasties Road and Bussell Highway particularly with reference to the right out turn to travel north on Bussell Highway and specifically in respect of one hour being the pm peak hour between 3.00 pm and 4.00 pm which also intersects with school times. Much was said in evidence about the traffic modelling and particularly in regard to the queue length times as a result of observed gap acceptances when entering Bussell Highway traffic (acknowledging Bussell Highway is a 110 kilometre/hour traffic environment requiring a considerable break in traffic to allow a RAV truck to safely enter Bussell Highway, particularly in a right turn out scenario).
While the traffic experts had taken different approaches to the modelling of this intersection and arrived at different position in terms of the extent of gap acceptance and wait times, there was no disagreement that additional RAV truck movements turning right through the Hasties Road/Bussell Highway intersection would cause increased wait times at that intersection.
The respondent contends that the condition as it appears, fairly and reasonably relates to the development that has been approved. They say that condition (h) obviously attempts to regulate traffic from the proposed development and to address the extent of impact of what would otherwise be unregulated traffic from that development. Mr Slarke submits it 'plainly and simply reasonably relates to the actual development application which has been made and the desire of the applicant to be able to have extraordinary traffic above the 188 [truck movements] we say are permitted as of right' by condition (h).[11]
[11] ts 277, 17 April 2024.
The applicant however asserts that there is no nexus between the development that has been approved and a cap on the number of trucks as there is no planning impact that has been shown on the evidence arising from the development that is being addressed by the cap on truck numbers imposed by condition (h) or that requires addressing by a cap on truck numbers.
They say that condition (h) effectively imposes a restriction for which there is no planning need demonstrated and therefore the condition is unreasonable.
Firstly, they say that whether or not the restriction imposed by condition (h) is onerous or not it is entirely irrelevant and not to the point. They say that in relation to the second Newbury test for there to be a nexus for a condition, the condition must address a need or impact that arises from the development in question. So in other words if imposing a cap on truck numbers there needs to be a planning reason for doing so.
The first point they make in relation to that is that there has never been a condition limiting or capping truck numbers imposed on this development in the past and that while this may not be determinative they say it is certainly relevant as part of the context that the development has operated until now, including under an approval granted 10 years ago, and over that period of time, without any restriction or cap on the number of truck movements.
The applicant's argument is that there is nothing different this time around nor is there evidence to suggest that there is anything different this time around which requires the imposition of condition (h), which in its latest form is a limit or a cap of 94 trucks or 188 truck movements per day. They say this is a restriction on the potential operation of the quarry.
The applicant says the quarry may not, and in fact has not, exceeded that number of truck movements on a full day basis in its historical operations although it has come close on several occasions.
While the applicant asserts that the circumstances in which that number might be exceeded are likely to be rare and would likely only apply for a limited period of time, there is clearly potential for the cap to be exceeded. Mr Russell made the point that while history is relevant, it is more important to look forward to what might happen in the future, bearing in mind that the additional truck movements on Jules Road and Hasties Road west of Jules Road permissible by the removal of condition (h) are likely to be for a limited period of time, because of the fairly imminent completion of the Bunbury Outer Ring Road (BORR). The respondent advised that the BORR is due to be opened on 16 December 2024.
Mr Russell asserts that what is likely to happen in terms of road networks after the opening of the BORR includes the future closure of Hasties Road at a point east of Jules Road such that access to the quarry at that point would need to be addressed with the new access to Hasties Road, as discussed in this development application, being constructed and operable ensuring all quarry traffic will travel east on Hasties Road to the BORR at that time.
It is however evident that there is no trigger for the new access to Hasties Road to be constructed within a specified time after the opening of the BORR.
While condition (h) allows for an increase or variation to the cap on truck movements with a delegated decision of the Chief Executive Officer (CEO) of the Shire of Capel, the applicant says that it is problematic because it introduces an obvious lack of certainty or finality about the condition.
They say that it is a condition that allows for a cap of 94 trucks per day, unless the respondent agrees to a greater number for a specified period, the applicant says that this is not an acceptable form for a planning condition which should provide some finality and certainty to a land use operator as to how they are able to operate their business.

The evidence of Mr Russell is that the mechanism is so impractical and uncommercial that it is not something that is commercially or practically workable given the tight timeframes that Holcim experience in the circumstances where they are preparing tenders for major projects.
Mr Russell however also confirmed that invitations to tender do not require the tenderer to guarantee the delivery of a certain number of loads per day. It is therefore unclear from the applicant's evidence why condition (h) causes such an issue for Holcim, particularly as they have not exceeded the maximum cap truck movements, identified in condition (h) of 188 per day, in the time the quarry has operated.
They say that if there was an easy mechanism to increase the truck movements and the applicant was confident of that mechanism actually working in a commercially acceptable manner, they would not need to be spending the time effort and costs associated with these proceedings to remove that.
Despite the evidence given by Mr Price as to his understanding of how the CEO might operate in determining if the 188 truck movements per day should be varied, the applicant says the manner in which the Shire has responded to these proceedings in fact makes it abundantly clear that the mechanism is not necessarily easy and would not necessarily be dealt with quickly and it is their position that the truck numbers clearly do not have general support within the Shire.
The applicant is concerned that the promise of flexible consideration of vehicle trips tantalisingly proposed by the condition is perhaps unlikely to be approved or be approved within the timeframes required for the tender processes likely applicable for the applicant and that this puts the applicant at a commercial disadvantage compared to its competitors who are not restricted in numbers of truck movements per day.
In relation to their first point that there has never been a condition capping the number of trucks, the Tribunal is cognisant of the need to consider the matter in light of the current planning framework and in its current context. The fact that a condition regulating the number of truck movements has not been imposed on previous approvals does not mean that it is not appropriate to do so in the current context.
The evidence from the applicant is that the additional truck movements limited by the capacity of the weighbridge cannot exceed 288 truck movements per day, being 24 truck movements per hour for 12 hours entering and leaving the subject land. This equates to a substantial increase in truck movements being 100 more truck movements a day particularly on Jules Road than that considered by Council as part of the second s 31(1) reconsideration and 132 more movements per day than the original approval condition (h) as resolved by Council on 30 November 2022.
As the applicant has advised that they have never even achieved the 188 per day, it is reasonable to conclude that the adjacent residential land has also not been impacted by 288 movements per day. At the agreed weighbridge capacity of 288 movements per day that is a 65% increase in movements and associated increase in impact.
While it is clear that this situation is likely only to be relevant until the Hasties Road access is constructed and Hasties Road is closed east of Jules Road, the lack of certainty as to when that is likely to occur, other than to say it is after the opening of the BORR, provides in my view, the core reason for the need to impose such a condition to limit the impact of significantly greater truck movements to and from the quarry on the adjacent residential community. The respondent asserts that SPP 2.4 has policy objectives which include that the extraction of basic raw materials 'avoids, minimises or mitigates any adverse impacts on the community …' .[12]
[12] SPP 2.4, cl 5(e).
I find I am persuaded by Mr Price's evidence[13] that the rationale for condition (h) is that it will avoid, minimise or mitigate adverse impacts on the community through excessive truck traffic and that without condition (h) the applicant could potentially have an unlimited number of trucks, subject to operational restrictions, on Jules Road and Hasties Road. In his opinion that would be an unacceptable impact on the community.
[13] Witness Statement of Mr Scott Price dated and signed 13 March 2024, paragraphs 53 - 54.
I attribute little weight on the applicant's argument that there has never been a cap on truck movements on prior approvals for the subject land so there should not be one now as each application must be assessed and determined on its merits within the current planning framework and in the planning context at the time of determination. The changes to the planning framework and the road network that have occurred since the 2012 approval and the changes that are foreshadowed to access and the road network, make it evident that this is not a situation that requires the decision-maker to demonstrate consistency with previous decisions by not imposing condition (h).
I am not persuaded that an unlimited number of truck movements, regardless of past numbers, is either appropriate in terms of the possible increased adverse impact on residential amenity or consistent with the original application for this matter. Condition (h) as in its final form provides some certainty for the surrounding residential properties as to their likely level of impact from the quarry operations in terms of truck movements, particularly until such time as the alternative access to Hasties Road is constructed and Hasties Road is closed east of Jules Road.
I am of the view that Council has already exercised discretion in increasing the number of truck movements permitted as of right to a significant degree and that at the time it last considered condition (h) on 31 May 2023 it generally reflected the intensity of traffic movements sought by the applicant at that time. There is in my opinion insufficient evidence provided by the applicant to warrant further intensification of truck numbers or unlimited truck numbers as of right in this case. There may be justification possible once the BORR has opened and more relevantly the closure of Hasties Road east of Jules Road and the construction of the internal haulage road and access from the quarry to Hasties Road has been constructed, but the timing for that is at this time unknown and therefore does not add weight to the argument for unlimited truck movements in this case.
The respondent sets out Tribunal cases which have similarities, in their opinion, to the issues that have arisen in this case. The first is Urban Resources Pty Ltd and City of Swan [2015] WASAT 117. That involves an existing extractive industry for sand extraction operating in a rural zone within the priority resource location under the previous version of SPP 2.4 where the Tribunal agreed and accepted that the sand which had been extracted was an important raw material for affordable housing particularly in the urban growth corridor north of the City of Swan.
There was an existing approval which limited the truck movements to 40 per day. The applicant proposed to increase those movements to an average of 160 a day with a maximum of 200 a day. That was refused by the City of Swan. During the hearing there was evidence from traffic experts to the effect that the road or the routes would be safe and within road capacity. The Tribunal nevertheless agreed with the City of Swan and refused the development because and only because of the adverse impact that the additional truck traffic would have on rural amenity, not even residential amenity as in the Holcim case.
The Tribunal was of the view in the decision that residential amenity is at a higher level than rural amenity, that they are not the same thing but nevertheless that additional truck traffic was determined through its impacts of noise, dust and vibration to be unacceptable even though it only affected a relatively small number of rural properties.
The second case is WA Timber Supplies Pty Ltd and City of Swan [2020] WASAT 153 where Mr Slarke submits the proposal was to fill a disused clay pit with inert waste and then rehabilitate them in those pits were in the rural part of Bullsbrook. While the traffic that was going to be travelling to and from the pits would all go via Chittering Road from rural part of Bullsbrook where it was a rural road it would also travel through the Bullsbrook townsite which is urbanised. Chittering Road was and is a regional distributor so the same main roads classification as Hasties Road.
That development was refused by the Tribunal for a range of reasons one of those reasons was expressly because of the amenity impact of truck traffic on both the rural road and the urban section of Chittering Road, the Tribunal found that the increase from 47 to 207 traffic movements would be unacceptable in its amenity impacts as it was a significant percentage change, that it would be noticeable. The Tribunal accepted that class 6 and class 9 vehicles which were the as of right trucks in that case inherently have a greater impact on traffic conditions and road safety, because as they are larger than passenger vehicles, they require a longer time to enter and exit traffic, and because they were larger, they need more space to negotiate intersections. They also recognised that the trucks generally have larger blindspots, have a greater mass which means they require a greater stopping distance and that there is a greater risk of collision which is heightened because of the stopping distance. Also, the consequence of a collision with a truck is likely to be greater because of the mass of the truck.
The Tribunal in that case accepted that more truck traffic was likely to result in drivers feeling uncomfortable and boxed in, and that the slow movements of the truck traffic can lead to driver frustration and associated risky behaviour, noting that the truck numbers were within the road capacity.
Those things also factored into the convenient use of the road and the Tribunal found that the impact would be unacceptable in terms of amenity, notwithstanding the trucks were as of right trucks, and notwithstanding the road had capacity to take them.
The Tribunal found that what was proposed would be inconsistent with that planning intention. The Tribunal also accepted that it is an important planning principle that transport planning should be integrated with landuse planning.
Mr Slarke submits that while it is accepted that each case is different and the outcomes of those cases in no way are determinative of the outcome here, he says that it is important to note that the Shire is not saying in any way that this development should be refused, but rather what the Shire does say is that the extraordinary traffic that might be generated by a significant project must be considered and appropriately regulated. At this stage the level of extraordinary traffic in this case, is traffic which has never previously been generated by this quarry development or experience by the adjacent residential community.
There has never on the evidence been more than 188 truck movements per day and condition (h) allows for that to continue as of right.
The respondent brings to the attention of the Tribunal the applicant's suggestion that this proposal does not involve any proposal to increase truck traffic from the quarry which Mr Slarke says 'is something of a slight of hand and somewhat misleading'.[14] He submits that it is true that previous approvals have not limited traffic and the development application says there is no change proposed in the operation or throughput of the quarry, the application also expressly says that under the previous approval there were approximately 70 trucks entering and exiting the site and there will be no change to the number of trucks entering and exiting the site associated with the quarry operation.[15] The respondent says the real and tangible effects of the application to review condition (h) is to seek the approval to be able to have up to 288 trips per day, more than 100 trips per day more than Holcim has ever achieved and nearly 150 trips per day more than the development application suggests will be undertaken and that equates to more than double the number of daily trips suggested in the development application.
[14] ts 276, 17 April 2024.
[15] Applicant's bundle of documents, page 8.
The deletion of the condition would mean that Holcim can undertake the extraordinary number of trips for whatever duration they seek fit to do so and in any direction that is operationally conducive for them to do so, so in reality if condition (h) is removed, that allows the materially different proposal to that which was put to the Shire and approved. Mr Slarke says that it is 'with respect disingenuous for the applicant to explain that away by saying, well, Holcim were not expecting any limit when it made the application and/or that 70 movements or 70 trips in and out was based on historical information'.[16]
[16] ts 276, 17 April 2024.
The impact of additional truck movements adjacent to residential development and the impact of those truck movements on the residential amenity of those residential properties is a relevant planning consideration and I find condition (h) which seeks to maintain a lesser impact reasonably and fairly relates to the development permitted.
On balance, I am satisfied that there is a nexus between the proposed development and condition (h) and that condition (h) meets the second limb of the Newbury tests.
I am also satisfied that the Council of the respondent has acknowledged that there may be times when additional truck movement will be required for a limited period of time and have sought to put in place measures within the condition to allow for that flexibility, such that there is a process for the approval of additional truck movements by delegation to the CEO of the Shire. I acknowledge that there are proposed future changes to the road network and the internal haulage road to Hasties Road that may provide the opportunity for a reduction in the impact on residential amenity and truck movements through the residential area, and that that may be an appropriate time for consideration of further flexibility in truck movement numbers permitted to and from the subject land.

Third Newbury test

In regard to the third Newbury test, unreasonableness is terminology derived from the decision of the English Court of Appeal in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 (Wednesbury).
As articulated in Bunnings Group Limited and Presiding Member of the Metro North West Joint Development Assessment Panel:[17]
[17] Bunnings Group Limited v Presiding Member of the Metro North West Joint Development Assessment Panel [2019] WASAT 121 at [236] - [238].
236Gageler J in Minister for Immigration and Citizenship v Li [2013] HCA 18 (Li) at [108], made the following observation on 'judging unreasonableness' in regards to Wednesbury unreasonableness:
Judicial determination of Wednesbury unreasonableness is constrained by two principal considerations. One is the stringency of the test that a purported exercise of power is so unreasonable that no reasonable repository of the power could have so exercised the power. The other is the practical difficulty of a court being satisfied that the test is met where the repository is an administrator and the exercise of the power is legitimately informed by considerations of policy.
237The plurality of the High Court in Li at [76] stated that "[u]nreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification".
238In Two Rocks Investments Pty Ltd and Western Australian Planning Commission [2019] WASAT 59 the Tribunal found at [290]:
Sanders v City of South Perth involved an application for judicial review challenging the validity of the grant of development approval for the construction of a house. The case did not concern a challenge to the validity of a condition of subdivision or development approval and did not consider the formulation of the third Newbury test in Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30; (2004) 137 LGERA 232 at [57] (McHugh J) and [155] (Callinan J) or as it was endorsed by the Court of Appeal in Reid v Western Australian Planning Commission [2016] WASCA 181. However, given that the High Court authorities referred to by the Chief Justice postdate Western Australian Planning Commission v Temwood Holdings Pty Ltd, it would seem that the third Newbury test involves 'legal unreasonableness' in the sense discussed in the more recent High Court decisions. A condition of subdivision or development approval will therefore be invalid under the third Newbury test, as understood consistently with the judicial review ground of 'legal unreasonableness', if the result is so unreasonable that it could not have been reached if proper reasoning had been applied in the exercise of the statutory power to impose conditions of planning approval, in the particular circumstances, and thus an inference of legal error may objectively be drawn.
(Emphasis added)
The respondent says to the extent that there is an argument about the third limb of the Newbury test that it is manifestly unreasonable to impose condition (h), that to fail that limb requires that the condition is so unreasonable that no reasonable planning authority would have imposed it. They say that it cannot be manifestly unreasonable to impose a condition on as of right truck movements in circumstances where it is not uncommon for such a condition to be imposed and that it has been done elsewhere by the Shire.
The respondent observes that the 188 trips per day is a figure that Holcim proposed, and that Holcim had proposed a condition in materially the same form as that which was approved by Council on 31 May 2023, so it is not open to conclude that condition (h) is manifestly unreasonable.
The applicant contends that condition (h) imposes a restriction for which there is no planning basis or need demonstrated and therefore that the condition is unreasonable. While they argue that the quarry may not exceed the 188 truck movements per day and has not exceeded that number on a full day basis in its historical operations, this seems to argue against the need to have an unlimited number of truck movements per day. The applicant appears to be arguing that the potential intensification of the truck movements to and from the site does not have any impact on the surrounding locality, and for this reason, the condition is unreasonable.
I find I am persuaded by the arguments of the respondent and the evidence of Mr Price and Mr Lambie that the increased intensification of the use that results in increased traffic movement beyond that accepted by Council in condition (h), will likely have an adverse impact both on the surrounding residential area and the users of the road network beyond that experienced by them during the past operations of the quarry.
In regard to the third Newbury test of legal reasonableness, I find that condition (h) is not so unreasonable that it could not have been reached if proper reasoning had been applied in the exercise of the statutory power to impose condition (h) in the particular circumstances of this planning approval. I find therefore that condition (h) meets the third limb of the Newbury tests.

Should condition (h) stand?

I find it is a novel argument by the applicant to say that the removal of condition (h) is not a situation where Holcim is seeking to have unlimited truck movements on the road network, but rather that it is a theoretical maximum. To pursue removing condition (h) to remove the cap and allow for unlimited truck movements (albeit accepted at this time as limited by the weighbridge to a maximum 288 movements per day) without any commitment to a timeframe for the relocation of the internal haul road to provide access to Hasties Road and no timeframe evident for the closure of Hasties Road east of Jules Road, in effect means that there is no certainty that this frequency of truck movements equivalent to one truck movement for every 2.5 minutes for 12 hours a day, would not be an ongoing situation for the life of the approval.

I am not convinced by the applicant's position that 288 traffic movements does not have a greater impact on the surrounding residential area and road users on both Jules Road and Hasties Roads than 188 truck movements per day when the additional 100 truck movements equates to a 53.19% increase in truck movements.
I am also not persuaded by the applicant's argument in terms of amenity impacts when they argue that there is simply no evidence that removing condition (h) would have or would make any difference in terms of the amenity impacts compared to having condition (h) in place. To the contrary, I find I am persuaded by the arguments of the respondent that there would likely be additional adverse impact on amenity as a result of allowing a significant intensification of truck movements, should condition (h) be deleted.
I am of the view that condition (h), as approved by the Council, in materially the same form as put forward by the applicant for the second s 31(1) reconsideration, meets all three limbs of the Newbury tests for validity and has been appropriately applied in this case.
I have some sympathy for the applicant's position that the impact of the proposed development on the surrounding locality and road network is likely to be significantly lessened by the closure of Hasties Road east of Jules Road and the relocation of the access to the quarry on to Hasties Road. However, there is no certainty provided by the development application or approval conditions as to the timing of these changes to the access and road network. The only apparent certainty is that the BORR will open on 16 December 2024 as advise by Mr Price and that the closure of Hasties Road will happen at some time after that date.
It is not reasonable to base the acceptability of the intensification of truck movements possible by the removal of condition (h) on it being for a limited time when the timeframe for implementation is unknown.
I am satisfied on balance, that to not impose the condition would leave the truck movements unregulated by anything other than the operational capacity of the weighbridge in circumstances where, should the quarry operate to the full capacity identified by the applicant for any protracted period of time, the intensification of the truck movements is likely to have an adverse impact on the amenity of the adjacent residential development for both Jules and Hasties Roads and on the road users, particularly for Jules Road between the quarry access and Hasties Road and the section of Hasties Road west of Jules Road, which is predominantly residential traffic.

Conclusion

The purpose of this review, under s 27(2) of the SAT Act, is 'to produce the correct and preferable decision at the time of the decision upon the review' and the Tribunal in considering the material before it must form its own view, in the exercise of discretion, as to whether condition (h) should stand in this case.
The Tribunal, having considered the substantial merits of this case, taking into account the relevant matters for consideration, finds that condition (h) meets the test for validity in these circumstances and should stand. The correct and preferable decision in relation to this matter is to dismiss the application for review and affirm the decision of Council of 31 May 2023 to impose condition (h).

Orders

The Tribunal orders:
1.Pursuant to s 46 (1) of the State Administrative Tribunal Act2004 (WA) leave is granted for the applicant to withdraw from that part of the proceeding relating to condition (i) of the respondent's decision dated 31 May 2023.
2.The application for review is dismissed.
3.The decision of the respondent of 31 May 2023 in relation to condition (h) is affirmed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS R Lavery, MEMBER
22 OCTOBER 2024