JAG TRAFFIC PTY LTD and CITY OF COCKBURN
[2022] WASAT 99
•11 NOVEMBER 2022
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: JAG TRAFFIC PTY LTD and CITY OF COCKBURN [2022] WASAT 99
MEMBER: MR R POVEY, MEMBER
HEARD: 17 AUGUST 2022
DELIVERED : 11 NOVEMBER 2022
FILE NO/S: DR 169 of 2021
BETWEEN: JAG TRAFFIC PTY LTD
Applicant
AND
CITY OF COCKBURN
Respondent
Catchwords:
Town planning - Development - Review of conditions of approval - Time limited approval - Impact on amenity - Noise - Compliance with Environmental Protection (Noise) Regulations 1997 (WA) - Weight to be given to recently amended Town Planning Scheme - Orderly and proper planning
Legislation:
City of Cockburn Town Planning Scheme No 3
Environmental Protection (Noise) Regulations 1997 (WA)
Metropolitan Region Scheme
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), cl 67(2), cl 67(2)(c), cl 67(2)(w)
Planning and Development Act 2005 (WA), s 77(1)(a), s 241(1)(a), s 252(1)
State Administrative Tribunal Act 2004 (WA), s 18, s 27, s 27(1), s 27(2), s 29, s 32(1), s 32(2)(a), s 32(2)(b)
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Applicant | : | Mr P McQueen with Mr A McGlue |
| Respondent | : | Mr CA Slarke |
Solicitors:
| Applicant | : | Lavan |
| Respondent | : | McLeods |
Case(s) referred to in decision(s):
Britza and Shire of Gingin [2022] WASAT 58
Carcione Nominees Pty Ltd & Anor v Western Australian Planning Commission & Ors [2005] WASCA 56
Empire Securities Pty Ltd & Ors and Western Australian Planning Commission [2005] WASAT 98
Grace and City of Nedlands [2010] WASAT 53
Health Resorts of Australasia Pty Ltd and Western Australian Planning Commission [2007] WASAT 60; (2007) 51 SR (WA) 266
Koltasz Smith & Partners v Western Australian Planning Commission (2000) 23 SR (WA) 266
Land Alliance Pty Ltd and the City of Belmont [2005] WASAT 100; (2005) 39 SR (WA) 119
Marshall v Metropolitan Redevelopment Authority [2015] WASC 226
McCabe Street Joint Venture and City of Fremantle [2009] WASAT 37
Nield and Shire of Serpentine-Jarrahdale [2021] WASAT 94
Ridgecity Holdings Pty Ltd and City of Albany [2006] WASAT 187
Vespoli and City of Stirling [2013] WASAT 161
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
Jag Traffic Pty Ltd (applicant) seeks review by the Tribunal, under s 252 (1) of the Planning and Development Act 2005 (WA) (PD Act), of the decision by the City of Cockburn (respondent or City) to impose a condition of approval limiting the length of time to two years that a 'transport depot and storage yard' (development), can operate at Lot 7 (No 157) Beenyup Road, Banjup (subject site).
The applicant's business operates primarily in metropolitan Perth and provides traffic management measures usually associated with civil construction and maintenance projects. The subject site is used to park vehicles, store equipment and accommodate staff associated with the business.
The final hearing was conducted on 17 August 2022 (hearing). At the hearing I heard evidence from two town planning experts, Mr Ryan Munyard, a town planning consultant, called on behalf of the respondent, and Ms Bianca Sandri, a town planning consultant, called on behalf of the applicant. Mr Munyard and Ms Sandri also filed witness statements with the Tribunal. On 16 August 2022, together with the representatives of the parties and the town planning experts, I attended a view of the subject site and immediate surrounds.
In these reasons, I will firstly describe the Tribunal's review jurisdiction, the development, the subject site, locality and character, the planning framework and summarise the procedural history. I will then set out, and then determine, the one issue that arises in this proceeding.
For the reasons below, I have determined 'the correct and preferable decision at the time of the decision upon the review', under s 27(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) in the exercise of planning discretion, is to dismiss the application for review and affirm the respondent's decision to impose a condition on the development approval limiting the time of the approval to a period of two years.
The Tribunal's review jurisdiction
The Tribunal's review jurisdiction in planning matters is usefully set out in Nield and Shire of Serpentine-Jarrahdale [2021] WASAT 94 at [27] - [30] and, for completeness, is set out below:
27By reason of s 17 of the SAT Act, the application falls within the Tribunal's review jurisdiction. In exercising the Tribunal's review jurisdiction, the Tribunal is to deal with a matter in accordance with the SAT Act and the PD Act (referred to as the 'enabling Act' for the purposes of the Tribunal's review jurisdiction, which may modify the operation of the SAT Act in relation to the matter).[1]
28The Tribunal is to review the respondent's decision by way of a hearing de novo for the purposes of producing the correct and preferable decision on the basis of the information and evidence before it.[2]
29The Tribunal is not bound to apply the Evidence Act 1906 (WA), the rules of evidence, or any practices and procedures of courts of record[3] but is bound by the rules of natural justice unless authorised expressly or by implication to depart from those rules by the SAT Act or the enabling Act.[4]
30The Tribunal is not limited to the material before the respondent as the original decision-maker but may consider new material.[5] The Tribunal is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities.[6] Section 29(3) of the SAT Act confers specific power on the Tribunal to make any order that it considers appropriate, including an order to set aside the original decision, affirm that decision or vary that decision.
The development
[1] Section 18, SAT Act.
[2] Section 27, SAT Act.
[3] Section 32(2)(a), SAT Act.
[4] Section 32(1), SAT Act
[5] Section 27(1), SAT Act.
[6] Section 32(2)(b), SAT Act.
The development approved by the City is for a 'Retrospective Temporary Transport Depot and Storage Yard'.[7] Through the conditions imposed on the approval, the development allows for:
a)a temporary approval period of two years, after which time the use shall cease;[8]
b)hours of operation 4 am to 7 pm Monday to Sunday;
c)five on site administrative staff;
d)fifteen workers attending daily to collect vehicles and equipment;
e)a maximum of four, nine tonne, heavy vehicles permitted on the subject site;
f)a maximum of 40 light passenger vehicles permitted on the subject site; and
g)a maximum of 40, six foot by four foot trailers permitted on the subject site.
[7] Set out in the Letter and Decision Notice, City of Cockburn, 14 December 2021, Exhibit 9.
[8] Condition 1 is the subject of this review, see also [40].
A condition of approval is also imposed prohibiting servicing, maintenance or repair of vehicles occurring on the subject site.[9] Similarly, a condition is imposed prohibiting storage of chemicals or hydrocarbons on the subject site.[10] These conditions were recommended by the Department of Water and Environmental Regulation (DWER) in its letter to the City dated 3 May 2021.[11] Additionally, a condition is imposed to prohibit refuelling or unfuelling of vehicles occurring on the subject site.[12]
[9] Condition 8, Decision Notice, City of Cockburn, 14 December 2021, Exhibit 9.
[10] Condition 9, Decision Notice, City of Cockburn, 14 December 2021, Exhibit 9.
[11] Respondent's s 24 Bundle of Documents, pages 134-135, Exhibit 3.
[12] Condition 10, Decision Notice, City of Cockburn, 14 December 2021, Exhibit 9.
Other conditions are imposed associated with the operation of the development, addressing dust management, wastewater disposal, stormwater management, acoustic report and management, access and crossover upgrades, vehicle parking and site illumination.
Subject site, locality and character
The subject site is more particularly known as Lot 7 on Diagram 56894 being the whole of the land contained in Certificate of Title Volume 1535 and Folio 378 and is 4.07 hectares in area. The subject site is a parallelogram in shape, with its shorter western boundary, of 110.05 metres, being the street frontage to Beenyup Road and having a depth of 452.71 metres.
The buildings and structures on the subject site, identified as part of the approved use, include:[13]
a)a single storey building (formerly a single house) approved for use as an office (and identified as structure 1), is set back approximately 290 metres from Beenyup Road;
b)behind structure 1 are five other structures (identified as structures 2 to 6) and comprise storage sheds and toilets; and
c)structures 7 to 14 are located closest to the southern boundary and comprise a transportable office, sheds, a water tank and a sea container.
[13] Letter and Decision Notice, City of Cockburn, 14 December 2021, Exhibit 9, Site Plan and Floor Plans.
The rear of the subject site contains an open-air parking and storage area for the approved use.[14] Vehicle access from the subject site to Beenyup Road is to be provided by a central crossover and driveway.[15]
[14] Conditions 16 and 17 of the approval requires an updated site plan to be submitted to the City for approval specifying designated vehicle parking areas, including for staff and providing amended crossover details, Exhibit 9.
[15] Condition 18 of the approval requires removal of the northern crossover which is unapproved, Exhibit 9.
The subject site is zoned 'Rural - Water Protection' zone in the Metropolitan Region Scheme (MRS) and zoned 'Resource' under the City of Cockburn Town Planning Scheme No 3 (TPS 3).
The subject site is in the area subject to State Planning Policy 2.3 - Jandakot Groundwater Protection (SPP 2.3) and in an area with a designation of priority 2 (P2) protection area (under cl 6.2(d) of SPP 2.3).
The locality
The extent of the locality identified by the planning experts in their witness statements differs.[16] However, under cross-examination Mr Munyard concedes the locality identified by Ms Sandri is the relevant locality.[17] I accept that, applying the principles outlined in Ridgecity Holdings Pty Ltd and City of Albany [2006] WASAT 187 (Ridgecity) at [42], the extent of the relevant locality is as identified by Ms Sandri. This includes:
a)To the north and east of the subject site, are the 'parks and recreation' lots known as 'Shirley Balla Swamp'. These lots are reserved under the MRS for 'Parks and Recreation' and is identified as a Bush Forever site. Under SPP 2.3 the Shirley Balla Swamp is designated a priority 1 (P1) protection area.
b)To the south is the adjoining lot at No 167 Beenyup Road, Banjup and the lot located on the opposite side of Beenyup Road, No 5 Pacific Avenue, Atwell. These two lots have the same zoning as the subject site under the MRS and TPS 3. They each contain a single house with associated rural type outbuildings. The adjoining single house at No 167 is largely screened from view from the subject site by vegetation.
c)To the west, opposite the subject site, are Nos 269, 271 and 273 Tapper Road, Atwell. These lots are zoned 'Urban' under the MRS and 'Development' under TPS 3. The lots are developed, each with a single house. Their rear boundaries abut Beenyup Road, opposite the subject site, and the road boundary interface has a retaining wall, with these lots elevated above the subject site, and rear boundary fences constructed on top of the retaining wall.
Character
[16] Witness Statement of Bianca Sandri, paras 12-14; Annexure BS3, Exhibit 8 and Witness Statement of Ryan Munyard, paras 14-17; Attachment RM2, Exhibit 6.
[17] ts 41 and 43, 17 August 2022.
In oral evidence, the planning experts broadly agree the character of the locality can be described as rural, rural-residential or rural living.[18] When considering the transport depot land use, Mr Munyard says there are no other industrial uses evident in the locality.[19] I do not accept Mr Munyard's evidence that a transport depot is correctly characterised as industrial land use. It is, however, a commercial land use and I explain this further at [24]. I also accept, on the evidence before me, there are no similar commercial uses evident in this locality. The planning experts agree that development in the locality (except for the single houses in Tapper Road) is characterised by houses and large shed structures which are set well back from the tree lined road.[20]
Future character
[18] ts 43, 17 August 2022.
[19] ts 43, 17 August 2022.
[20] ts 43-44, 17 August 2022.
The planning experts agree the current character of the locality is unlikely to change significantly in the future. They say, and I accept, that this is because of the water source protections (associated with the Jandakot Groundwater Protection area) are almost certain to remain in place and there are no proposals to change the town planning framework for the foreseeable future. The subject site, the adjoining site to the south (No 167 Beenyup Road) and No 5 Pacific Avenue are all in the Resource zone under TPS 3. The lots in Tapper Road, although zoned 'Development', have already been developed with single houses, and the planning experts anticipate the zoning of these lots will be 'normalised' to a 'Residential' zone in the local planning framework in the future, and they say this change will not impact on the established character.[21]
Planning framework
[21] ts 44-45, 17 August 2022.
The relevant planning framework, which I have considered in determining the application, is summarised in Annexure A, and includes:
a)MRS;
b)TPS 3 which incorporates the deemed provisions of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (Deemed Provisions) and includes the relevant matters under cl 67(2);[22] and
3)SPP 2.3.
[22] Clause 67(2) matters are considered at [84]-[86].
Other State planning policies which I have considered, but are of peripheral relevance in this case, include:
a)State Planning Policy 2.0 - Environment and Natural Resources (SPP 2.0);
b)State Planning Policy 2.7 - Public Drinking Water Source (SPP 2.7);
c)State Planning Policy 2.9 - Water Resources (SPP 2.9); and
d)Draft State Planning Policy 2.9 - Planning for Water (draft SPP 2.9)
Amendment 155 to TPS 3
At the same Council meeting[23] that the respondent made its decision to approve the development (and impose a condition limiting the period of approval to two years) the respondent separately resolved to initiate Amendment 155 to TPS 3. Amendment 155 was gazetted on 13 May 2022. On 24 May 2022, a correction notice was gazetted to address typographical errors.
[23] Council meeting of 9 December 2021.
Amendment 155 is relevant because this modified the provisions of the 'Resource' zone. 'Note 1' of the Zoning Table of TPS 3 now reads:[24]
Development and use of land is to be in accordance with clause 4.10.11.
[24] Respondent's Supplementary s 24 Bundle of Documents, page 69, Exhibit 4.
Clause 4.10.11 deals with the general development requirements for the 'Resource' zone and relevantly now reads:[25]
[25] Respondent's Supplementary s 24 Bundle of Documents, pages 85-86, Exhibit 4.
a)The use and development of land within the Resource Zone shall be in accordance with the provisions of -
(i)The relevant State Planning Policy for water[.]
…
d)Uses that are identified as 'incompatible' or which are not listed in Water Quality Protection Note No. 25: Land use compatibility tables for public drinking water source areas are 'X' uses in the Resource Zone.
e)All uses which are not listed as prohibited ('X') uses in Water Quality Protection Note No. 25: Land use compatibility tables for public drinking water source areas shall be treated as 'D' uses, unless otherwise specified in this Scheme, and shall be referred to the Department of Water and Environmental Regulation for advice and any other authority considered relevant to the application by the local government prior to the local government making its determination.
Water quality protection Note 25: Land use compatibility tables for public drinking water source areas (WQPN 25)
As detailed above, WQPN 25, published by DWER, is incorporated by reference in TPS 3, in cl 4.10.11 d) and cl 4.10.11 e). The WQPN 25 (published in August 2021) identifies, in 'Table 2 - Compatibility of land uses and activities for the protection of water quality within public drinking water source areas' (Table 2), the land use 'transport depot' and it is defined as follows:[26]
means premises used primarily for the parking or garaging of 3 or more commercial vehicles including -
(a)any ancillary maintenance or refuelling of those vehicles; and
(b)any ancillary storage of goods brought to the premises by those vehicles; and
(c)the transfer of goods or persons from one vehicle to another.
[26] Respondent's s 24 Bundle of Documents, pages 271 and 295, Exhibit 3.
For the subject site, which as mentioned, is in a P2 area of Table 2, the land use 'transport depot' is identified as 'incompatible' in WQPN 25.[27] The land use 'transport depot' is classified in Table 2 as a 'commercial' land use or activity, not an 'industry' land use or activity.
[27] As a result of the 'transport depot' land use being identified as incompatible in Table 2, it is therefore a land use that is not permitted (an 'X' use) at the subject site, in accordance with cl 4.10.11 d) of TPS 3. WQPN 25 uses the land use permissibility definitions in the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) where an 'X' use means 'the use is not permitted by the scheme' (see Respondent's s 24 Bundle of Documents, page 263, Exhibit 3).
The applicant also submits that although they applied for a 'transport depot' and received an approval for a 'transport depot', the land use arguably is not a 'transport depot' as defined in WQPN 25 because it does not involve maintenance or refuelling of vehicles.[28] The respondent submits the land use definition for 'transport depot' is expressed in terms that are inclusive[29] and I accept the elements of refuelling and maintenance are not a requirement for the development to constitute a 'transport depot'.
[28] Applicant's SIFC, para 14, Exhibit 7.
[29] ts 100, 17 August 2022.
The land use 'storage yard' is defined in TPS 3 as follows:[30]
means premises used for storage of good, equipment, plant or materials.
[30] Respondent's Supplementary s 24 Bundle of Documents, page 187, Exhibit 4.
WQPN 25 does not identify 'storage yard' as a land use or activity. The land use 'storage yard' is therefore treated as a 'use not listed' in the Resource zone under TPS 3. As identified earlier at [22], cl 4.10.11 d) states that a use not listed is also a prohibited ('X') use in the Resource zone under TPS 3. Consequently, the land use 'storage yard' is also prohibited at the subject site.
At the hearing and in the submissions and evidence, the parties and the town planning experts refer to the development as a 'transport depot', despite approval being granted for a 'transport depot and storage yard'. In these reasons the essential planning considerations that arise in this application for review focus on the 'transport depot' land use. However, the approval granted by the respondent permits both land uses for a temporary two-year period.
History of transport depot land use permissibility on the subject site
The respondent's counsel, Mr Slarke, submits that consideration of the history of the 'land use' permissibility of a 'transport depot' at the subject site is relevant in this case.[31] I accept the history of the subject site is a relevant consideration under cl 67(2)(w) of the Deemed Provisions and I also accept understanding this history, which relates to changes in the statutory planning framework, may assist the Tribunal in this case.
[31] ts 21, 17 August 2022.
This history relates to TPS 3 as it operated prior to the gazettal of Amendment 155 in May 2022. The City's officer reported to the respondent's Council meeting on 9 December 2021, relating to initiation of Amendment 155, outlining this history as follows.[32]
TPS3 refers to the 'Statement of Planning Policy No. 2.3 Jandakot Groundwater Protection Area' (1995), which is now superseded. A revised SPP 2.3 was gazetted on 11 January 2017 and included significant modifications. One of the key changes is that the current SPP 2.3 does not contain Table 1 setting out land use suitability for the rural-water protection zone. Rather SPP 2.3 now refers to the WQPN 25; and this contains the table (Table 2) 'Compatibility of land uses and activities for the protection of water quality within public drinking water source areas'.
This means that references in TPS 3 to Table 1 in SPP 2.3 are no longer valid, meaning the intended control over land uses in the 'Resource' zone has been undermined, creating ambiguity.
[32] Respondent's s 24 Bundle of Documents, page 224, Exhibit 3.
Prior to 2017, the provisions of TPS 3 aligned to prohibit uses that were not listed in Table 1 of Statement of Planning Policy 6 - Jandakot Ground Water Protection Policy (SPP 6).[33] A 'transport depot' land use was a use not listed in Table 1. The respondent submits that it was the change to SPP 2.3, made in 2017, that removed Table 1 dealing with land use permissibility, that opened the door to consider a transport depot land use a discretionary use in the Resource zone, and therefore at the subject site.[34] The applicant submits that SPP 6 provided a discretion for uses not listed in Table 1 to be supported even prior to 2017.[35] However, I do not accept this because TPS 3 (prior to the gazettal of Amendment 155) contained cl 4.10.11 e) which had the effect of prohibiting a 'transport depot' land use in the Resource zone. This clause read as follows:[36]
Any use which is not provided for in Statement of Planning Policy 2.1 – Peel-Harvey Coastal Plain Catchment Policy or included in Table 1 of State of Planning Policy 2.3 – Jandakot Groundwater Protection Policy is not permitted 'X' in the Resource Zone.
[33] SPP 6 was superseded by Statement of Planning Policy 2.3 and renumbered in September 2003, ts 22, 17 August 2022. SPP 6 is at Respondent's s 24 Bundle of Documents, pages 301-320, Exhibit 3.
[34] ts 23-24, 17 August 2022.
[35] Applicant's SIFC, paras 18-19, Exhibit 7.
[36] Respondent's SIFC, para 17, Exhibit 2.
TPS 3 was unchanged until Amendment 155 was gazetted in May 2022 and the respondent acknowledges a failure to amend TPS 3 to align with SPP 2.3 that occurred between January 2017 and May 2022,[37] and I accept this failure enabled a 'transport depot' land use to become a discretionary land use in the Resource zone.
[37] ts 24, 17 August 2022.
The changes to SPP 2.3 in 2017 provided for land use compatibility to be assessed by reference to WQPN 25. The version of WQPN 25 that existed immediately prior to August 2021 did not identify 'transport depot' as a land use within Table 2.[38] WQPN 25 advises that where a proposed land use or activity is not specified in the tables, the proposal should be referred to DWER for assessment and advice. As a consequence, the original application was referred to DWER, which provided advice to the City by a letter of 3 May 2021.[39]
[38] Witness Statement of Bianca Sandri, para 52, Exhibit 8.
[39] Respondent's s 24 Bundle of Documents, pages 134-135, Exhibit 3.
In August 2021, DWER updated WQPN 25 to include the land use 'transport depot' in Table 2 and classified it as 'incompatible' in the priority P2 area (the classification applicable to the subject site).
Finally, on 24 May 2022, TPS 3 was amended (by Amendment 155) to reference WQPN 25 in cl 4.10.11 d) which now makes the land use 'transport depot' a prohibited land use in the Resource zone.
Summary of procedural history
On 4 January 2021 the applicant sought retrospective development approval for a transport depot at the subject site (original application).[40]
[40] The original application was later amended to reduce the number of onsite staff, workers, the number of 9 tonne vehicles and the number of access points. The amended application also sought a time-limited five year approval; Respondent's s 24 Bundle of Documents, pages 107-108, Exhibit 3, provides a detailed comparison of the original and amended applications.
The City advertised the original application and received 102 submissions, which included 96 objections, four non-objections and two submissions which provided comments only. The planning issues raised in the submissions include appropriateness of the land use at the subject site, increase in traffic volumes and safety, noise, dust and operating hours.[41]
[41] Respondent's s 24 Bundle of Documents, pages 41-105, Exhibit 3.
DWER, in its letter of 3 May 2021, considered the original application and did not object subject to conditions being imposed that would prevent the servicing of vehicles on site and limiting the storage of chemicals and hydrocarbons to hardstand areas with suitable bunding.[42]
[42] Respondent's s 24 Bundle of Documents, pages 134-135, Exhibit 3.
At its meeting on 8 July 2021, the respondent's Council refused the original application. An application for review was lodged with the Tribunal and following mediation an amended application was provided and the respondent invited to reconsider its decision pursuant to s 31(1) of the SAT Act. Relevant to this review, the amended application sought a temporary approval for a five-year period (whereas the original application sought a permanent approval).[43]
[43] Respondent's s 24 Bundle of Documents, pages 108; 110; 115, Exhibit 3.
At its meeting on 9 December 2021, the respondent's Council considered the amended application and resolved to grant approval, subject to conditions. The decision notice, issued by the City on 14 December 2021, includes condition 1 of development approval, which reads:[44]
This is a temporary approval only, valid for a period of two (2) years from the date of this decision. Upon expiry of this date the use shall cease.
[44] Letter and decision notice of City of Cockburn dated 14 December 2021, Exhibit 9.
It is condition 1 which the applicant seeks review.
Where a condition of a development approval is the subject of the application for review, as is the case in this proceeding, the Tribunal will not generally embark on a review of the City's decision to approve the proposed development.[45]
Issue for determination
[45] See Empire Securities Pty Ltd & Ors and Western Australian Planning Commission [2005] WASAT 98 at [10]; Koltasz Smith & Partners v Western Australian Planning Commission (2000) 23 SR (WA) 266 at 274.
The parties agree the following issue arises for determination:
1)Should the term of development approval be limited to two years?
I will now consider this issue.
Should the term of development approval be limited to two years?
The respondent contends a five-year term (or alternatively, an ongoing approval) would:[46]
a)be inconsistent with a prohibited land use under TPS 3;
b)be inconsistent with the guidance in SPP 2.3 about land use generally, and with the specific presumption against the approval of new industrial land uses in the Rural-Water Protection zone of the MRS;
c)be inconsistent with the 'incompatible' classification of the land use under WQPN 25;
d)be inconsistent with orderly and proper planning;
e)increase the risk of an event occurring while carrying out the development that would adversely affect the quality of the groundwater; and
f)be excessive in all the circumstances.
[46] Respondent's SIFC, para 37, Exhibit 2.
The applicant contends the development should be approved for an unlimited duration or, alternatively for five years, because it:[47]
a)does not give rise to any material risk of water resources being contaminated; and
b)is acceptable from an amenity perspective and in practical terms and will not undermine the planning of the locality.
Consideration
[47] Applicant's SIFC, paras 25-28, Exhibit 7.
It is uncontroversial that since the respondent's decision on 9 December 2021, the planning framework applicable to the subject site has changed. The land use 'transport depot' prior to the gazettal of Amendment 155 to TPS 3 in May 2022 was a discretionary land use (although, as explained, historically that has not always been the case). However, with the gazettal of Amendment 155, TPS 3 the land use 'transport depot' is now a prohibited ('X') use.
The parties accept there is now a valid development approval in place,[48] and the Tribunal in considering the issue for determination is required to decide whether to exercise discretion as to the period of the approval. The parties accept the Tribunal has discretion to vary the period in condition 1 or to delete condition 1 entirely, which would provide an ongoing development approval.[49]
[48] ts 90 and 97, 17 August 2022.
[49] ts 90-91, 17 August 2022.
Ms Sandri, in her witness statement, says the following four elements should be considered when assessing the issue for determination in this review:[50]
a)Scheme Amendment 155 to TPS 3;
b)amenity impacts and compatibility of the development;
c)risk of water source contamination; and
d)future intentions for the site and the area.
[50] Witness Statement Bianca Sandri, para 44, Exhibit 8.
Under cross-examination Mr Munyard accepts these aspects are relevant considerations.[51] I will now consider these in turn.
Scheme Amendment 155 to TPS 3
[51] ts 48-49, 17 August 2022.
At the commencement of the hearing, I noted the respective SIFCs filed with the Tribunal were prepared before the gazettal of Amendment 155.[52] To assist the Tribunal, I invited the parties to make their oral submissions with regard to the operative planning framework, which now includes TPS 3 as amended by Amendment 155. This is because I am required to make my decision on this matter by applying the planning framework operative at the time the decision is made on this review.[53]
[52] Respondent's SIFC dated 29 April 2022, Exhibit 2, Applicant's SIFC dated 13 May 2022, Exhibit 7. Amendment 155 to TPS 3 was gazetted on 24 May 2022.
[53] See Chaney, J in Health Resorts of Australasia Pty Ltd and Western Australian Planning Commission [2007] WASAT 60; (2007) 51 SR (WA) 266 at [24].
The respondent submits that because Amendment 155, has now been gazetted, that must mean significant weight is accorded to the fact the land use 'transport depot' is now prohibited when determining how long the use should continue.[54] The respondent also says that Amendment 155 has the effect of bringing the local planning framework in line with SPP 2.3. Under s 77(1)(a) of the PD Act, a local government, when preparing or amending its scheme, is required to have due regard to any State planning policy which affects its district, as was the case with Amendment 155.
[54] ts 100, 17 August 2022.
The applicant's position as to Amendment 155 is that it does not have retrospective effect and further that it would be incorrect at law to say that now the amendment has been gazetted it revokes the legitimacy of the approval (which the respondent accepts).[55]
[55] ts 91, 17 August 2022.
The applicant also submits that the changes to TPS 3 (as a result of Amendment 155) directs the Tribunal to SPP 2.3, in this type of situation, which is not assessing a new proposal.[56] This link is found at cl 4.10.11(a)(i) of TPS 3 which reads:[57]
The use and development of land within the Resource Zone shall be in accordance with the provisions of –
(i)The relevant State Planning Policy for water.
[56] ts 93, 17 August 2022.
[57] Respondent's Supplementary Bundle, page 85, Exhibit 4.
It is uncontroversial SPP 2.3 is the relevant State Planning Policy in this case and that the development has been granted approval and condition 1 places a time limit of two years on that approval. Because I am required to stand in the shoes of the original decision-maker in this application for review, I do not accept the applicant's submission that I am not assessing a new proposal with respect to the issue I am to determine. I do, however, accept that SPP 2.3 is a relevant consideration in this case because of cl 4.10.11 a)(i) of TPS 3 and because of cl 67(2)(c) of the Deemed Provisions and s 241(1)(a) of the PD Act.[58]
[58] SPP 2.3 is considered further at [83]-[90].
Ms Sandri, under cross-examination, accepts the Tribunal is to make its determination by applying the current planning framework.[59] She accepts some weight should be given to the change made to the planning framework by Amendment 155 which she also accepts now prohibits a transport depot at the subject site.[60] However, Ms Sandri asserts significant weight should not be given to Amendment 155 because she says this scheme amendment was initiated in reaction to this development.[61] Here, the applicant's representative, Mr McQueen submits the Tribunal's decision in McCabe Street Joint Venture and City of Fremantle [2009] WASAT 37 (McCabe Street) is relevant.[62]
[59] ts 49, 17 August 2022.
[60] ts 49-50, 17 August 2022.
[61] ts 50, 17 August 2022.
[62] ts 104, 17 August 2022.
However, the situation in this case is distinguishable from McCabe Street for several reasons. In McCabe Street, the City of Fremantle had initiated a local planning policy to control building height in response to a proposed development. Relevantly at [87] of McCabe Street the Tribunal[63] cites Ridgecity at [35] which said the following:
The Tribunal is required by cl 7.8A(f) of the [City of Albany Town Planning Scheme No 1A] to have 'due regard' to any policy adopted under cl 7.21. However, in having regard to a policy, the Tribunal would generally give little weight to a policy which is in substance responsive to a particular pending development application. Selfevidently, a development application to which a policy is responsive was formulated in the context of a planning regime which did not include the policy. The fact that the development application is capable of amendment, or is subsequently amended, is not in point.
[63] SM D R Parry, M Connor, SSM Ednie-Brown.
In this case, while Amendment 155 may have been at some level responsive to this development, the Tribunal accepts it had a broader purpose, which was to bring TPS 3 in line with SPP 2.3.[64] As a result, it was treated as a 'basic amendment', meaning the amendment did not require public advertising, and its passage to gazettal occurred expeditiously. Further, and more critically, unlike in McCabe Street which involved a draft local planning policy which had not been finally adopted, Amendment 155 is now part of the statutory planning framework of TPS 3 and applicable to the subject site. In the hierarchy of planning documents, TPS 3 does not have the status of a local planning policy, as was contemplated in McCabe Street; it has the status of law, and for this reason, the applicant is misguided on this point.
[64] Clause 6.4 a) of SPP 2.3 addresses the relationship between SPP 2.3 and Local Planning Schemes, Respondent's s 24 Bundle of Documents, page 246, Exhibit 3.
A similar circumstance as McCabe Street is found in Vespoli and City of Stirling [2013] WASAT 161 (Vespoli). In Vespoli, the respondent amended its local planning policy (referred to as Guidelines) to entrench its position in the course of an application for review. Senior Sessional Member Patrick DeVilliers, as he then was, made the following observations at [42] - [43]:
42The Tribunal registers its concern in terms of the timing of the amendment to the Guidelines and the content of both amendments for the following reasons.
43Prior to a determination by the Tribunal on the question of the review before it on amendments to the DAP, the Council sought to entrench this decision with an amendment to the Guidelines. This action, if given determinative weight, effectively extinguishes the applicant's right of appeal established by cl 6A.17 of LPS 3. It also effectively constrains the discretion of the Tribunal in dealing with either the review of amendments to the DAP or the review of the refusal of the development application on the merits of the respective cases.
However, as explained, the circumstances in McCabe Street and Vespoli, are distinguishable from this case.
The decision of Murray J, Steytler J and McKechnie J in Carcione Nominees Pty Ltd & Anor v Western Australian Planning Commission& Ors [2005] WASCA 56 (Carcione) is instructive, in my view, in this case. In Carcione the local government[65] initiated an amendment to its local planning scheme relating to a former Telstra depot site to enable the designation of the site under the local planning scheme to be changed from Public Purposes reserve to be zoned Residential. This amendment was seen by the landowner as responsive to their proposal to develop a neighbourhood shopping centre at the site (and which was the subject of an application for review at the then Town Planning Appeals Tribunal).
[65] City of South Perth.
When considering the role of the Western Australian Planning Commission (WAPC) in making a recommendation to the Minister for Planning to approve this amendment which enabled residential rather than commercial development, their Honours observed in Carcione at [90] as follows:
By analogy of reasoning, it seems to us that a decision, genuinely based upon proper planning considerations, to recommend that the Minister should approve a scheme amendment, even if hastily made in order to avoid the possibility that a pending decision of the Tribunal will result in the approval of a development which is seen to be inimical to proper planning principles, could not be said to be made in bad faith or to take into account an irrelevant consideration.
Their Honours then went on, at [91] of Carcione, to reiterate the observation of Barker J, when his Honour determined the application by Carcione Nominees Pty Ltd before him, where he regarded the fact that there was an appeal pending in the Town Planning Appeals Tribunal against a deemed refusal of the proposed development 'as having been totally irrelevant to the question whether or not the Council was entitled to initiate an amendment to the scheme as it did'.
In this case, I am required to consider the application for review against TPS 3 as it stands today, and I accept Amendment 155 to TPS 3 was not responsive to this development but was made for the broader planning purpose of aligning TPS 3 with SPP 2.3. Therefore, when assessing the issue for determination, I accord the relevant provisions of TPS 3, which now prohibits the land use 'transport depot' at the subject site, significant weight in my decision.
Amenity impacts and compatibility of the development
The respondent's SIFC does not identify specific amenity impacts of the development. At the hearing the respondent's counsel, Mr Slarke, submitted that as Ms Sandri raises amenity as a consideration in her evidence it is appropriate for the Tribunal to consider this aspect.[66]
[66] ts 6-7 and 48-49, 17 August 2022.
Ms Sandri, in her evidence, considers SPP 2.3 and risks of ground water contamination an amenity impact. I accept this is a consideration and one which I will consider separately later in these reasons.[67]
[67] At [75]-[81].
Ms Sandri also gives evidence of other amenity impacts of visual impact, noise and dust, which she says are the key considerations for the subject site.[68]
[68] Witness Statement of Bianca Sandri, para 56, Exhibit 8.
The matters of visual amenity and dust are largely uncontroversial between the parties. However, the noise impact of the development was raised in evidence by Ms Sandri.[69] Here, Ms Sandri says the land use is compliant from a noise perspective. However, she then identifies that in the acoustic report titled '157 Beenyup Road, Banjup Transport Depot Noise Assessment', prepared by Acoustic Consultants Australia, for scenario 2 at receptor R3 (located at No 271 Tapper Drive) there is a marginal modelled exceedance to the Environmental Protection (Noise) Regulations 1997 (WA) (Noise Regulations) of +1dB.[70] At the hearing, Mr Slarke, referred to the updated acoustic report (required because of condition 13 of the approval and also prepared by Acoustic Consultants Australia) which identifies the modelled exceedance to the Noise Regulations at this receptor is now +3dB.[71] Ms Sandri, in crossexamination, says this does not change her opinion because the commentary provided by the acoustic consultant in the updated acoustic report is unchanged and confirms this exceedance is 'expected to be reasonably manageable with staff training and by raising awareness to encourage slow and quiet driving near the entry point'.[72]
[69] Witness Statement of Bianca Sandri, paras 64-67, Exhibit 8.
[70] Respondent's s 24 Bundle of Documents, pages 152, Exhibit 3.
[71] Respondent's Second Supplementary Bundle, pages 7-37, Exhibit 5.
[72] Respondent's Second Supplementary Bundle of Documents, pages 23-24, Exhibit 5.
The respondent also submits the influencing factor calculation may be incorrect because it uses a factor of 6dB at receptor R1 and a factor of 2dB at receptors R2 and R3, which is based on a commercial zoning factor. The respondent submits commercial uses are generally not permitted in the Resource zone.[73]
[73] ts 55-56, 17 August 2022.
The respondent did not adduce any acoustic evidence that the influencing factor used in the Acoustic Consultants Australia report was incorrect. However, this concern was the subject of extensive crossexamination of the town planning experts by Mr Slarke. The town planning experts acknowledge they are not acoustic experts and could not comment on the correctness of the influencing factor identified in the acoustic report. The town planning experts were able to provide comment on questions of land use and permissibility in the Resource zone. However, despite lengthy cross-examination regarding the permissibility of various 'commercial' land uses in the Resource zone, the evidence of both town planning experts on this point was, in my view, inconclusive.[74] Therefore, I am unable to draw any conclusions, based on the evidence before me, on the appropriateness of the influencing factor used in the acoustic report.
[74] ts 54-66, 17 August 2022.
However, what is clear and not in contention, is that the updated acoustic report shows the development does not meet the requirements of the Noise Regulations with a modelled marginal exceedance of +3dB at receiver R3 (the residential property at No 271 Tapper Road) and further, that management measures are required to address this exceedance.[75]
[75] Respondent's Second Supplementary Bundle of Documents, pages 17-18, Exhibit 5.
The respondent also submits the owners of No 271 Tapper Road (and others) raised concerns about noise impacts of the development in submissions when the original application was advertised.[76] The approval allows the development to operate with truck movements from 4 am, Monday to Sunday. Ms Sandri, under crossexamination, accepts it is likely to be a quiet time of the morning.[77]
[76] ts 67-68, 17 August 2022 and Respondent's s 24 Bundle of Documents, pages 41-105, Exhibit 3.
[77] ts 73, 17 August 2022.
The Tribunal in Land Alliance Pty Ltd and the City of Belmont [2005] WASAT 100; (2005) 39 SR (WA) 119 at [39] observed as follows:[78]
… compliance with the Noise Regulations does not necessarily mean that noise does not constitute an adverse impact on the existing amenity of the locality in a planning sense.
[78] M Moharich, M Connor, SM Adderley.
This is relevant in this case because, on the evidence before me, compliance with the Noise Regulations is not achieved unless management measures are instituted. I am also cognisant the approval permits truck movements from 4 am every day of the week, including on weekends. The development and these truck movements, if not appropriately managed, have the potential to adversely impact neighbouring residential properties. The noise management measures recommended rely on the operational practices of the truck drivers. It is inevitable, in my view, these practices are open to a level of variability and, on the evidence before me, the effectiveness of the management measures is unknown. This factor adds significant weight to the need for a time limited approval as this will enable the effectiveness of noise management measures recommended in the acoustic report and required in conditions 13 and 14 of the approval, to be assessed.
Risk of water source contamination
Turning now to the risk the development poses to contamination to the ground water source. The applicant submits that, notwithstanding the changes to the planning framework, DWER did not object to the development and supported the grant of conditional approval without recommending any time limitations.[79]
[79] Applicant's SIFC, para 26, Exhibit 7.
DWER's advice was provided on 3 May 2021, prior to the respondent's decision to refuse the original application in July 2021. This is of significance because in August 2021, DWER updated WQPN 25.[80] In the version that existed prior to August 2021 (at the time of the assessment of the original application) the land use 'transport depot' was not specifically identified. However, in August 2021 WQPN 25 was amended and now includes 'transport depot', which is identified as an 'incompatible' use in the P2 area.[81] However, it appears no updated advice was sought from DWER when the amended application was reconsidered on 9 December 2021 and the temporary development approval was granted.
[80] Respondent's s 24 Bundle of Documents, pages 253-300, Exhibit 3.
[81] Respondent's s 24 Bundle of Documents, page 173, Exhibit 3 and Witness Statement of Bianca Sandri, para 53, Exhibit 8.
Mr Munyard accepts DWER does not object to the development subject to the imposition of conditions that would prevent the servicing of vehicles onsite and limiting the storage of chemicals and hydrocarbons to hardstand areas with suitable bunding.[82] Mr Munyard and Ms Sandri accept their expertise as town planners does not extend to environmental science or an assessment of the risk of ground water contamination from the development.[83] Mr Munyard, under crossexamination, agrees DWER's advice was provided based on the original application and that the development is reduced in scale from the original application.[84]
[82] Witness Statement of Ryan Munyard, para 55, Exhibit 6.
[83] Witness Statement of Ryan Munyard, para 88, Exhibit 6 and Witness Statement of Bianca Sandri, para 51, Exhibit 8.
[84] ts 82, 17 August 2022.
Ms Sandri says, which I accept in the absence of any other environmental evidence, the DWER advice provided to the respondent in May 2021 can be relied upon. Ms Sandri asserts the following DWER advice, which relates to the consideration of risk posed by the development, is relevant:[85]
With consideration to the water resource risk posed by this land use, the Department does not object to the proposal, however recommends the following are applied:
1.No servicing of vehicle to be undertaken on the site;
2.Any chemicals or hydrocarbons are to be stored in hardstand area with appropriate bunding.
[85] Witness Statement of Bianca Sandri, para 54, Exhibit 8.
The applicant accepts these conditions applied to the approval (which are conditions 8 and 9) and these are not in dispute.
However, the respondent submits that in respect to the five year term (or an ongoing approval) this increases the risk of an event occurring that would adversely affect the quality of the groundwater source.[86] While Mr Munyard's evidence is that, logically, an increase in the term of approval must increase the risk of spillage of fuel or other chemical materials from a malfunctioning vehicle or an accident, he accepts he is not a in position, as a town planner, to say what the extent of that risk would be.[87] Under cross-examination, Mr Munyard accepts DWER is the appropriate body to assess the risk of the development in respect to water source contamination and that he has 'no reason to challenge or dispute what's in that [DWER] letter'.[88]
[86] Respondent's SIFC, para 13, Exhibit 2.
[87] Witness Statement of Ryan Munyard, para 89, Exhibit 6.
[88] ts 82, 17 August 2022.
Therefore, in the absence of contrary evidence, I accept the risk of contamination to the groundwater source for the development can be satisfactorily managed by the imposition of conditions 8 and 9 on the approval, which accords with DWER's letter of 3 May 2021. However, the advice from DWER was provided before WQPN 25 was amended in August 2021 and because of this I accord it less weight than the provisions of the operative local planning framework which now includes WQPN 25.
Future intentions for the site and the locality
Ms Sandri says that traditionally temporary approvals are granted for developments and land uses that are located in an area in transition.[89] It is uncontroversial among the planning experts that the character of the locality when observed is not an area in transition in terms of built form or other land uses. I also accept there are no changes proposed to the planning framework which are likely to change the character of the locality in the foreseeable future.
[89] Witness Statement of Bianca Sandri, para 76, Exhibit 8.
However, whether an area is in transition is only one of the relevant considerations when assessing if a time limited approval is appropriate. I will address this aspect further at [104] - [110].
Relevant clause 67(2) considerations
The parties did not identify the relevant matters under cl 67(2) of the Deemed Provisions in their respective SIFCs. However, at the commencement of the hearing I advised that the Tribunal would be assisted if the parties were to identify and make submissions as to the relevant cl 67(2) matters which they consider I should have due regard in this case. The following cl 67(2) matters were identified:[90]
[90] ts 101-102, 17 August 2022.
…
(a)the aims and provisions of this Scheme and any other local planning scheme operating within the Scheme area;
(b)the requirements of orderly and proper planning including any proposed local planning scheme or amendment to this Scheme that has been advertised under the Planning and Development (Local Planning Schemes) Regulations 2015 or any other proposed local planning instrument that the local government is seriously considering adopting or approving;
(c)any approved State planning policy;
…
(n)the amenity of the locality including the following -
(i)the environmental impacts of the development;
(ii)the character of the locality;
(iii)social impacts of the development.
(o)the likely effect of the development on the natural environment or water resources and any means that are proposed to protect or to mitigate impacts on the natural environment or the water resource;
…
(zb)any other planning consideration the local government considers appropriate.
Two other cl 67(2) matters are also relevant in this case:
(w)the history of the site where the development is to be located;
…
(y)any submissions received on the application[.]
Matters (a), (n) and (o) are considered earlier,[91] as are matters (w) and (y).[92] Matter (b) relates to the consideration of orderly and proper planning which I will address later at [95] - [103]. Matter (c) in this case relates primarily to SPP 2.3 and matter (zb) relates to the associated WQPN 25 and I will consider these next.
SPP 2.3 and WQPN 25
[91] See [51]-[64] relating to (a), [65]-[74] relating to (n), and [75]-[81] relating to (o).
[92] See [29]-[36] relating to (w) and [37]-[38] to (y).
It is uncontroversial the subject site is within the area which is subject to SPP 2.3. I am required under s 241(1)(a) of the PD Act and under cl 67(2)(c) of the Deemed Provisions to have due regard to any State planning policy which may affect the subject matter of the application.
SPP 2.3 aims 'to protect the Jandakot Groundwater Protection area'[93] and the relevant objectives and policy measures of SPP 2.3 are set out in Annexure A. By virtue of the subject site being zoned 'Rural-Water Protection' under the MRS, it is located in an area designated 'P2' under SPP 2.3. When considering land use compatibility, cl 6.2 g) of SPP 2.3 says that guidance on the acceptability of land use activities is provided in WQPN 25. As mentioned at [23] - [27], WQPN 25, since it was updated in August 2021, now identifies the land use 'transport depot' as 'incompatible', and the land use 'storage yard' is not listed in WQPN 25.
[93] Respondent's s 24 Bundle of Documents, page 243, Exhibit 3.
Mr Munyard's evidence, which I accept, is that SPP 2.3 and WQPN 25 are contemporary instruments and have both been updated relatively recently. He says, and I accept, that WQPN 25 is explicitly referenced in SPP 2.3 in numerous instances and is intrinsically linked with the objectives and policy measures of SPP 2.3.[94]
[94] Witness Statement of Ryan Munyard, para 87 b), Exhibit 6.
Further Mr Munyard says SPP 2.3 establishes a presumption against industrial land uses, such as a transport depot, in the MRS Rural-Water Protection zone to ensure no increased pollution risk to public drinking water source areas.[95] As mentioned previously at [16] and [24], I do not accept Mr Munyard's characterisation of a transport depot as an industrial land use. It is, in my view, correctly characterised as a commercial land use.[96]
[95] Witness Statement of Ryan Munyard, para 87 c), Exhibit 6.
[96] See [24].
However, in terms of amenity and compatibility of the development, Ms Sandri asserts that for P2 areas a land use should be assessed against the management objective which is:[97]
… to ensure there is no increased risk of pollution to the water source (i.e. risk minimisation). Restricted development may take place under specific guidelines.[98]
[97] Witness Statement of Bianca Sandri, para 49, Exhibit 8.
[98] Respondent's s 24 Bundle of Documents, page 250, Exhibit 3.
Further, Ms Sandi's considers the use should be assessed according to the likely risks of soil and water contamination. These matters have been considered earlier at [75] - [81] and because there is no contrary evidence, I accept the risks in this case can be acceptably managed by the imposition of conditions recommended by DWER.
However, the respondent also submits that cl 6.4 a) of SPP 2.3 makes it clear that local planning schemes should be amended to reflect the land uses and equivalent annotations listed in WQPN 25. I accept this is what has now occurred to TPS 3 with the gazettal of Amendment 155. While SPP 2.3 remains a relevant consideration to which I am required to give due regard, it is the provisions of TPS 3 that now prohibit a 'transport depot' land use at the subject site that has statutory weight in the planning framework,[99] and therefore I accord greater weight to these provisions of TPS 3 than to SPP 2.3 in arriving at my decision.
[99] See [21]-[24],
What is clear, however, is that SPP 2.3 is a policy aimed at protecting the Jandakot Groundwater Protection area from development and land uses that may have detrimental impact on water resources.[100] In P2 areas, since WQPN 25 was amended in August 2021, transport depot land uses are designated as 'incompatible'. When considering the application of this State planning policy in this case, this is also a factor which weighs in favour of a time limited period of development approval. This is because notwithstanding the earlier advice of DWER in its letter of 3 May 2021, this advice was given prior to the update of WQPN 25 which occurred in August 2021.
Is the development considered orderly and proper planning?
[100] Respondent's s 24 Bundle of Documents, page 243, Exhibit 3.
The essential question however remains, should the development approval be limited for a period of two years? The answer, I think, turns on whether the development is considered to be consistent with orderly and proper planning.
When considering orderly and proper planning, the principles outlined by Pritchard J in Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 at [179] - [182] (Marshall) are relevant:
179… The ordinary meaning of the word 'proper' includes 'suitable for a specified or implicit purpose or requirement; appropriate to the circumstances or conditions; of the requisite standard or type; apt, fitting; correct, right'. The ordinary meaning of the word 'orderly' includes 'characterised by or observant of order, rule, or discipline'. In other words, to be orderly and proper, the exercise of a discretion within the planning context should be conducted in an orderly way - that is, in a way which is disciplined, methodical, logical and systematic, and which is not haphazard or capricious.
180The planning discretion should be directed to identifying the 'proper' use of land - that is, the suitable, appropriate, or apt or correct use of land. In order to do so, the exercise of discretion would clearly need to have regard to any applicable legislation, subsidiary legislation and planning schemes (such as region schemes, town planning schemes, local planning schemes) and policy instruments. The State Administrative Tribunal has observed that 'at the heart of orderly and proper planning' is a public planning process which permits the assessment of individual development applications against existing planning policies 'so that the legitimate aspirations found in the planning framework may be translated into reality'.
181However, there is no reason in principle why planning legislation and instruments will be the only matters warranting consideration in determining what is a 'proper' planning decision. The matters which warrant consideration will be a question of fact to be determined having regard to the circumstances of each case.
182While the exercise of discretion will involve a judgment about what is suitable, appropriate, or apt or correct in a particular case, that judgment must (if it is to be 'orderly') be an objective one. If the exercise of discretion is to be an orderly one, the planning principles identified as relevant to an application should not be lightly departed from without the demonstration of a sound basis for doing so, which basis is itself grounded in planning law or principle. A broad range of considerations may be relevant in that context.
The planning experts agree that because of Amendment 155 being gazetted, the land use has become a prohibited use at the subject site. Mr Munyard says, and I accept, it would be contrary to that very clear planning purpose to grant an unlimited term of approval or a substantial term such as five years. He also says this would be inconsistent with the planning framework and the orderly and proper planning of the locality.[101]
[101] Witness Statement of Ryan Munyard, paras 87 a) and 93, Exhibit 6.
Ms Sandri says that Amendment 155 was, in her view, initiated in response to this development.[102] I have considered this earlier at [51] [64] and as mentioned the applicant's position in this respect is, in my view, misguided.
[102] Witness Statement of Bianca Sandri, para 45, Exhibit 8.
Ms Sandri, in her written evidence, also says in her opinion the respondent's Council, in granting a two-year approval, agreed there are minimal impacts and she says the respondent's officers recommended a five-year approval. She asserts if the area is not in transition, then she cannot establish why a permanent approval cannot be granted other than for the matter for legal considerations with respect to land use and permissibility under the current scheme.[103]
[103] Witness Statement of Bianca Sandri, para 82, Exhibit 8.
However, this misconstrues the respondent's submission, which is that the two-year time period was appropriate, subject to certain conditions prohibiting vehicle maintenance, fuelling and un-fuelling of vehicles and placing controls on the storage of chemicals and hydrocarbons on site, because it was a pragmatic approach to allow time for the business (which was operating without development approval) to take steps to relocate.[104]
[104] Respondent's SIFC, para 36, Exhibit 2.
When considering the operative planning framework (since Amendment 155 was gazetted and WQPN 25 was updated) there is no cogent reason, in my view, that now supports the applicant's position seeking a permanent approval or an approval which extends beyond the two-year period granted. In my view, the changes in the planning framework should be accorded significant weight in this case, because in answering the question of orderly and proper planning, to do otherwise would ignore the legitimate aspirations found in the operative planning framework.
I accept that (as identified in Marshall), that there is no reason why planning instruments will be the only matters warranting considering when determining what is a 'proper' planning decision, and Marshall also informs that 'the exercise of discretion will involve a judgment about what is suitable, appropriate, or apt or correct in a particular case, that judgment must (if it is to be 'orderly') be an objective one'.
In this case, while I accept on the evidence before me, that the risks to ground water are addressed through the imposition of conditions, a relevant amenity consideration, noise, has not been. It is also uncontroversial the future character of the locality, being ruralresidential, is unlikely to change. However, the development being a 'transport depot' is a commercial land use and is also of a scale that does not sit well in this rural residential locality. The fact the land use 'transport depot' is now a prohibited use under TPS 3 also informs the exercise of discretion when coming to the 'correct and preferrable decision' in this case. From an orderly and proper planning perspective, in the exercise of planning discretion, these factors also weigh in favour of a time period being imposed.
Is a time limited approval appropriate in the circumstances? and if so, what time limit should be applied?
The applicant submits that the development approval should ideally have an unlimited duration or in the alternative have a duration of five years.[105] The five-year time period is suggested on the basis that it had been recommended by the City's officers, to the respondent's Council when the development was reconsidered in December 2021.[106]
[105] Applicant's SIFC, para 25, Exhibit 7.
[106] Applicant's SIFC, para 25.2, Exhibit 7.
As to what time limit should be applied, the applicant argues the development does not pose an unacceptable risk to the water source and this has been confirmed in the advice from DWER and this is addressed through the imposition of conditions 8 and 9 of approval, referred to earlier at [78] - [79]. Additionally, the applicant submits that the respondent has granted development approval which indicates an acceptance that the development is acceptable from an amenity perspective and in practical terms.[107] As a consequence, the applicant says the imposition of an unlimited or longer term will not result in any adverse practical outcome, will not undermine the planning in the locality and will not give rise to any material additional risk of impacting upon groundwater resources that would not already be associated with a development approval of only two years.[108]
[107] Applicant's SIFC, para 26.1, Exhibit 7.
[108] Respondent's SIFC, para 27, Exhibit 2.
The respondent submits that the development is not benign in its impact in this locality. It says the 'transport depot' land use is an outlier in this locality and contends that the purpose of a two-year period of approval is a pragmatic approach by the respondent to provide the applicant sufficient time to relocate its operations.[109]
[109] Respondent's SIFC, para 36; ts 97, 17 August 2022, Exhibit 2.
First, I will consider whether a time limited approval is appropriate in the circumstances of this case. In Grace and City of Nedlands [2010] WASAT 53 (Grace) at [70],[110] Senior Member Parry, as he then was, observed the appropriate circumstances where time limited planning approvals may be applied.
… Generally speaking, time-limited consents are appropriate where there is likely to be some change in the planning framework or in the character of a locality, or where there are management issues which it is appropriate to monitor after a certain period of time[.]
[110] Also recently cited by the Tribunal in Britza and Shire of Gingin [2022] WASAT 58 at [71].
In this case, the applicant modified its application to seek a time limited approval for five years and the respondent on reconsideration applied a time limit on the approval, granting approval for two years. This was done in circumstances where both the applicant and the respondent were aware the planning framework was likely to change. Although, it should be said, it appears the applicant had been given to understand the change to the planning framework may take five years, because it was intended to be part of a full local planning scheme review process, not a separate scheme amendment.[111] As mentioned at [64], it is significant the change to the planning framework is now operative.
[111] Respondent's s 24 Bundle of Documents, page 174, Exhibit 3.
I also accept that the development is not benign in its impact in the locality, and this is evidenced in the updated acoustic report which shows a modelled non-compliance with the Noise Regulations at one residential location. The effectiveness of the recommended management measures to address this issue, on the evidence before me, is unknown and it is appropriate, in my view, in circumstances where the approval allows the development to operate from 4 am every day of the week, to allow a time period for monitoring.
Second, as to what an appropriate time limit should be, there was no evidence before me that a two-year period was in some way insufficient to allow the applicant's operations to relocate or, in the alternative, for the applicant to seek approval for an extension of a nonconforming use. The structures used for the development at the subject site observed during the view are structures that existed prior to the unauthorised commencement of the land use or are transportable structures. In my view, this also supports the respondent's contention a two-year time period is a reasonable temporary period if, ultimately, the applicant decides to, or is required to, act to relocate its business operations.
The question of non-conforming use
The applicant submits that with the change to TPS 3 brought about by Amendment 155 and the respondent having granted a temporary approval, the consideration before the Tribunal is analogous to extending a nonconforming use[112] (as the transport depot land use is now a prohibited use).
[112] Applicant's SIFC, para 28, Exhibit 7.
I accept there is a conceptual analogy with a non-conforming land use in this case. However, the operation of the relevant provisions of TPS 3 relating to non-confirming uses are not currently applicable. This is because in this review I am required to consider whether a time limit should be imposed on the original approval, and if so, what temporary period should apply. There is no mandate to apply the principles that relate to non-confirming uses in these circumstances.
In this case, standing in the shoes of the original decision-maker, the issue I am to determine is whether the term of the development approval should be limited to two years. To arrive at the correct and preferable decision in this case, the question is to be answered following the process for proceedings for review set out in s 27 of the SAT Act, and applying the powers conferred in s 29 of the SAT Act and after carefully considering the cl 67(2) matters relevant to this case which I identified earlier[113] and the submissions and the evidence before me.
[113] See [84]-[86].
I acknowledge that consideration of the development and the statutory interpretation and application of the relevant provisions of TPS 3 relating to non-conforming uses may arise in future, but they are not relevant in this review.
Findings
I find the term of development approval should be limited to two years for four reasons.
First, TPS 3 now prohibits a transport depot at the subject site and these statutory provisions which came into effect in May 2022 should be accorded significant weight in this case.
Second, although the history of the subject site includes the period of time in which the respondent approved the development when the land use 'transport depot' was a discretionary use, the creation of that discretion to allow a transport depot at the subject site was not planned, but resulted from changes in State planning policy, which had the unintended consequence of providing a discretion under TPS 3.[114] This has now been addressed by Amendment 155 to TPS 3 and updates to WQPN 25. This is also a relevant consideration in the context of orderly and proper planning.
[114] See [29]-[35].
Third, the impact of the development on the amenity of the locality is not benign. The updated acoustic report indicates the development, without management measures, will exceed the Noise Regulations. The approval allows the development to operate from 4 am every day. The effectiveness of the noise management measures proposed to protect residential amenity is unknown. A time limited approval will enable the effectiveness of management measures to be evaluated. Additionally, from a town planning perspective, the land use 'transport depot', and this development per se, does not sit comfortably in the rural-residential character of this locality because it is a use characterised as 'commercial'[115] and its activities are on a scale that are an outlier in this locality.
[115] WQPN 25 includes 'transport depot' under the broad category of 'Commercial', see Respondent's s 24 Bundle of Documents, pages 269-270, Exhibit 3.
Fourth, given the statutory planning framework of TPS 3 and SPP 2.3 as they now operate and apply to the subject site, the development, which involves a 'transport depot and storage yard', does not accord with the principles of orderly and proper planning in this locality because the development is inconsistent with the provisions of TPS 3 and there is not a sufficient basis to depart from these requirements to vary the time limit of the approval in this case.
Conclusion
Notwithstanding the findings on the various matters that require consideration under the Deemed Provisions, which includes TPS 3 and SPP 2.3, I acknowledge I retain a discretion to vary the temporary period of the approval.
A key plank to the applicant's argument is that the changes made to TPS 3 should not be accorded significant weight in determining this matter and that the development is acceptable from an amenity perspective in this locality. For the reasons I have explained, these factors do not constitute a cogent basis to extend the temporary period of two years imposed on the development approval or to remove it entirely.
Accordingly, I conclude that having due regard to the relevant matters in cl 67(2) of the Deemed Provisions, and s 241(1)(a) of the PD Act and weighing up my findings on the issue before me, the correct and preferable decision, for the reasons I have outlined, is to dismiss the application for review and affirm the respondent's decision to impose a condition limiting the period of approval to two years.
For these reasons, the Tribunal makes the following orders.
Orders
The Tribunal orders:
1.The application for review is dismissed.
2.The decision of the respondent is affirmed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR R Povey, MEMBER
11 NOVEMBER 2022
ANNEXURE A
The Planning Framework
State Planning Framework
Metropolitan Region Scheme (MRS)
The subject site is zoned 'Rural - Water Protection' zone under the MRS.
State Planning Policy 2.3 - Jandakot Groundwater Protection (SPP 2.3)
The subject site is in the area subject to SPP 2.3 and in an area (under cl 6.2d) of SPP 2.3 with a designation of priority 2 (P2) protection area.
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3 OBJECTIVES
The objectives of this policy are:
·To ensure that all development and changes to land use within the policy area are compatible with maximising the long-term protection and management of groundwater, in particular for public drinking water supply;
·To protect groundwater quality and quantity in the policy area in order to maintain the ecological integrity of important wetlands that are hydraulically connected to that groundwater, including wetlands outside the policy area;
·To prevent, minimise, and manage in defined locations development and land uses that may result in contamination of groundwater; and
·To maintain or increase natural vegetation cover over the policy area.
6 POLICY MEASURES
…
d)P2 areas (Rural-Water Protection zone of Metropolitan Region Scheme)
The acceptability of land uses in the Rural-Water Protection zone is based on the objective of risk minimisation. Low risk and intensity of development consistent with the Rural zoning is generally supported, subject to appropriate conditions.
Local planning framework
City of Cockburn Town Planning Scheme No 3 (TPS 3)
The subject site is zoned 'Resource' under TPS 3.
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