Joice Investments Pty Ltd and Shire of Chittering
[2007] WASAT 119
•22 MAY 2007
JOICE INVESTMENTS PTY LTD and SHIRE OF CHITTERING [2007] WASAT 119
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 119 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:24/2006 | 19 FEBRUARY 2007 | |
| Coram: | MR L GRAHAM (SENIOR SESSIONAL MEMBER) | 22/05/07 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | The application for review is upheld | ||
| B | |||
| PDF Version |
| Parties: | JOICE INVESTMENTS PTY LTD SHIRE OF CHITTERING |
Catchwords: | Town planning Application for planning consent Buffer area of 1000 metres Extractive industry Sensitive land uses Natural gravel and laterite duricrust manufactured gravel Land use conflict No blasting contemplated Dust suppression measures Excavation and rehabilitation of the land |
Legislation: | Environmental Protection (Noise) Regulations 1997 (WA) State Administrative Tribunal Act 2004 (WA), s 31 Shire of Chittering Town Planning Scheme No 6, cl 4.2.3.1, cl 4.3.2, cl 5.16, cl 5.16(c), cl 5.16(d), Sch 1, Sch 2 |
Case References: | Nil |
Orders | 1. The application for review is upheld.,2. Proposed condition (d) is set aside. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : JOICE INVESTMENTS PTY LTD and SHIRE OF CHITTERING [2007] WASAT 119 MEMBER : MR L GRAHAM (SENIOR SESSIONAL MEMBER) HEARD : 19 FEBRUARY 2007 DELIVERED : 22 MAY 2007 FILE NO/S : DR 24 of 2006 BETWEEN : JOICE INVESTMENTS PTY LTD
- Applicant
AND
SHIRE OF CHITTERING
Respondent
Catchwords:
Town planning - Application for planning consent - Buffer area of 1000 metres - Extractive industry - Sensitive land uses - Natural gravel and laterite duricrust manufactured gravel - Land use conflict - No blasting contemplated - Dust suppression measures - Excavation and rehabilitation of the land
Legislation:
Environmental Protection (Noise) Regulations 1997 (WA)
State Administrative Tribunal Act 2004 (WA), s 31
Shire of Chittering Town Planning Scheme No 6, cl 4.2.3.1, cl 4.3.2, cl 5.16, cl 5.16(c), cl 5.16(d), Sch 1, Sch 2
(Page 2)
Result:
The application for review is upheld
Category: B
Representation:
Counsel:
Applicant : Mr L Stephens (Acting as Agent)
Respondent : Mr A Awang (Acting as Agent)
Solicitors:
Applicant : Landform Research
Respondent : Shire of Chittering
Case(s) referred to in decision(s):
Nil
(Page 3)
Summary of Tribunal's decision
1 The application for review was lodged against a decision of the Shire of Chittering in December 2005 to refuse an application for planning consent for the extraction of gravel and clay from Lot 7 Toy Road, Bindoon.
2 Since that time, and through a process of mediation and discussion between the parties and reconsideration of the matter by the respondent, a conditional approval was issued in September 2006.
3 Only one condition (condition (d)) remained in dispute. It required that, prior to the issue of an excavation licence, the applicant was to establish a buffer area of 1000 metres from all proposed pits, crushing, stockpile and loading areas.
4 The Tribunal examined the respective arguments of the parties, the background to the proposal, the proposal itself, the relevant policy and statutory provisions, and matters of dust and noise.
5 The Tribunal determined that, as the various statutory and policy provisions do not require a fixed or immutable separation distance of 1000 metres between an extractive industry and sensitive land uses, and that in the circumstances of this case where no blasting was envisaged and matters of dust and noise were appropriately addressed in the 2006 Excavation – Rehabilitation Management Plan, a 1000 metre buffer was not justified.
6 It was also determined that the establishment and ongoing implementation of a buffer is more the responsibility of the respondent than the proponent of an extractive industry; particularly where a buffer falls outside the boundary of a proponent's land.
7 The application for review was upheld.
Introduction
8 The application for review, dated 16 January 2006, was lodged by Mr Jonathon Dwyer on behalf of Joice Investments Pty Ltd (applicant) against a decision of the Shire of Chittering (respondent or Shire) on 14 December 2005 to refuse an application for planning approval for the extraction of gravel and clay.
(Page 4)
9 The decision of refusal, which was conveyed to the applicant on 22 December 2005, was:
"That Council does not grant planning consent for the proposed extractive industry (gravel and clay extraction) at Lot 7 Toy Road, Bindoon."
10 Since that time, the matter has progressed considerably between the parties under the jurisdiction of the Tribunal to a point where an approval, subject to conditions, was issued by the respondent on 20 September 2006.
11 At this stage all conditions the subject of dispute, as a result of the conditional approval, have been resolved with the exception of condition (d) which reads:
"Prior to the issue of an excavation licence the applicant is to establish a buffer area of 1000 [metres] from all proposed pits, crushing, stockpile and loading areas on the site plan."
12 From the perspective of the Tribunal, the only matter now before it for decision is whether condition (d) should remain or should be set aside.
The subject land
13 The subject land can best be described as Lot 7 Toy Road, Bindoon on Certificate of Title Volume 445, Folio 17A.
14 It appears from information before the Tribunal that the subject land touches, or very nearly touches, the Great Northern Highway at the south-east corner of the lot.
15 The property, which is located some 13 kilometres north of the Bindoon townsite, is described in the July 2006 Excavation – Rehabilitation Management Plan prepared by Landform Research (July 2006 Plan) in this way:
"The site is cleared broadacre farmland used for cropping and grazing. Clumps of Jarrah and Marri trees occur on site."
The legislative framework
16 The subject land is zoned "Agricultural Resource" in the Shire of Chittering Town Planning Scheme No 6 (TPS 6).
17 Of relevance are the following:
(Page 5)
- a) Statement of Planning Policy No 2.4 – Basic Raw Materials (SPP 2.4): Western Australian Planning Commission (WAPC), July 2000;
b) Local Planning Strategy 2001 – 2015 (LPS);
c) Local Planning Policy No 10 – Basic Raw Materials and Extractive Industries (LPP 10); and
d) Guidance for the Assessment of Environmental Factors – Separation Distances between Industrial and Sensitive Land Uses: Environmental Protection Authority (EPA), June 2005 (EPA Guidance Statement).
Respondent's position
18 The position of the respondent is outlined in the witness statement, dated 5 February 2007, of Mr Azhar Awang, a qualified town planner for the Shire. He contends:
a) Both the EPA Guidance Statement and SPP 2.4 specify a minimum separation distance of 1000 metres between an extractive industry and a residence or sensitive land use.
b) Based on details shown in an aerial photograph put into evidence, the proposed extractive industry falls within the 1000 metre buffer from a nearby residence. This is contrary to the provisions of LPP 10.
c) The requirements of LPP 10 are consistent with those of cl 5.16 of TPS 6 which require that appropriate buffer areas are to be applied to protect both the extractive operations as well as the living or agricultural environment in nearby areas.
d) During the advertising period for the proposal, submissions were received from adjoining owners in relation to both noise and dust.
e) The buffer imposed by the respondent will ensure that adequate protection is provided to the adjoining landowners from any adverse effect due to noise and dust.
Applicant's position
19 The position of the applicant is outlined in the witness statements of both Mr JJ Dwyer and Mr LJ Stephens.
(Page 6)
20 In the witness statement, dated 13 February 2007, of Mr Dwyer, a shareholder with Joice Investments and farm manager of the subject land, he argues:
a) Proposed condition (d) cannot be complied with or implemented by the applicant.
b) Proposed condition (d) could be interpreted by the respondent, or another party, in a different way at some point in the future and place the approved quarry at risk.
21 In the witness statement, dated 13 February 2007, of Mr Stephens, a qualified scientist and consultant on environmental matters, he argues:
a) Proposed condition (d) is inconsistent with the respondent's by-laws relating to extractive industries.
b) A proposed buffer of 1000 metres is inappropriate and inconsistent with the EPA Guidance Statement.
c) There is already an existing dwelling within the proposed 1000 metre buffer.
d) The only buffer that can be applied is one applied by the respondent when considering subdivision or development as provided for in cl 5.16(c) and cl 5.16(d) of TPS 6.
22 Mr Stephens also supported the arguments of Mr Dwyer in [20(a)] and [20(b)] above.
Planning issues
23 The principal planning issues are:
a) Does proposed condition (d) accord with the relevant statutory and policy provisions relating to an extractive industry?
b) Is a 1000 metre buffer justified in the circumstances of this case?
Assessment of proposal
Background
24 The first application for a gravel quarry and clay pit on the north-eastern corner of the subject land was lodged with the respondent in November 2000. The application was supported by a November 2000 Excavation and Rehabilitation Management Plan (November 2000 Plan).
(Page 7)
25 The respondent approved the proposal on 20 February 2001 for a five year period and an Extractive Industries Licence was issued on 12 April 2001.
26 A gravel pit was opened in Stage 1 of the approved extraction area.
27 On 19 September 2005, a new application for planning consent and an Extractive Industries Licence was lodged with the respondent. It was supported by the same November 2000 Plan, and covered the same land area previously applied for.
28 On 14 December 2005, the respondent refused the application. The applicant was advised on 22 December 2005.
29 As a result of the refusal, an application for review was lodged with the Tribunal on 16 January 2006.
30 Following an on-site mediation on 13 July 2006, the respondent was invited to reconsider its decision of 14 December 2005, under the provisions of s 31 of the State Administrative Tribunal Act 2004 (WA).
31 As a result of this invitation, an amended planning application for gravel extraction only was lodged with the respondent in late July 2006. The application was supported by the July 2006 Plan.
32 On 20 September 2006, the respondent resolved to approve the amended planning application subject to conditions.
33 At a mediation conducted by the Tribunal on 11 October 2006, the applicant requested that proposed conditions (d), (f), (h) and (t) be reviewed.
34 On 15 November 2006, the four disputed conditions were reconsidered by the respondent. It resolved that conditions (h) and (t) had been satisfied and the applicant subsequently agreed to an amended condition (f). Condition (d) remained in dispute.
35 At a directions hearing on 29 November 2006, it was ordered:
"1. By consent, the final orders issued by the Tribunal in this matter will reflect the position reached on 15 November 2006, that is to say reflecting the substantial agreement that has been reached upon all outstanding matters, other than in relation to condition (d) dealing with the imposition of a 1000 metre buffer zone.
(Page 8)
- 2. Consistent with the agreement between the parties referred to in paragraph 1, the respondent consents to the issue to the applicant of an appropriate licence with the practical effect and intent of permitting excavation in the north west (stage 1) of the subject land, being a licence which requires the applicant to comply with all relevant conditions (including disputed condition (d), but without prejudice to the final hearing in respect of that condition as is contemplated by these orders)."
36 The final hearing was conducted on 19 February 2007.
The proposed development
37 The development proposal is briefly outlined in the summary to the July 2006 Plan. It explains:
a) The proposal complies with the relevant provisions of TPS 6, SPP 2.4 and the LPS.
b) The proposed quarry is to be used to extract road-making materials such as natural gravel and laterite duricrust manufactured gravel (obtained by crushing) for use by the State and Main Roads WA.
c) It is expected that between 30 000 and 50 000 tonnes of product could be extracted each year. However, this amount could rise to 120 000 tonnes.
d) The proposed pit could have a life of at least 20 years, depending on market demand.
e) Both the topsoil and overburden will be removed and stored separately in bunds to improve visual screening. Both the laterite and underlying laterite/duricrust will be excavated, with the latter being crushed by portable crushing equipment located on the floor of the excavation.
f) About 1 hectare of land will be required each year based on an average thickness of the resource between 1 metre and 4 metres.
g) The suggested staging will minimise the area of excavation open at any one time to about 2 hectares, when excavating natural gravel. For crushing laterite duricrust, and allowing for stockpiles and a processing area, the area of open ground will need to be 4 hectares.
(Page 9)
- h) Following excavation, the surface will be re-contoured to match the existing land surface, and then seeded with pasture species. Revegetation will be progressively undertaken with clumps of local native trees returned at a rate of 100 per hectare.
i) Water will be used for wash down and dust suppression, and drawn from a nearby tank. It will be filled from a bore located in the south-west of the subject land.
j) Extraction, processing and carting will be restricted to 6 am to 6 pm Monday to Saturday. There will be no work on Sundays or public holidays.
Policy and statutory provisions
Town Planning Scheme No 6
38 Under TPS 6, the subject land is zoned "Agricultural Resource".
39 The objectives of the zone are outlined in cl 4.2.3.1:
"To preserve productive land suitable for grazing, cropping and intensive horticulture and other compatible productive rural uses in a sustainable manner;
To protect the landform and landscape values of the district against despoliation and land degradation;
To encourage intensive agriculture and associated tourist facilities, where appropriate; [and]
To allow for the extraction of basic raw materials where it is environmentally and socially acceptable."
40 Under Sch 1 (Land Use Definitions), an "Extractive Industry" is defined as:
"Industry – Extractive means an industry which involves the extraction, quarrying or removal of sand, gravel, clay, hard rock, stone or similar material from the land and includes the treatment and storage of those materials, or the manufacture of products from those materials on, or adjacent to, the land from which
- the materials are extracted, but does not include industry-mining."
41 Under Sch 2 (Zoning Table), an "Extractive Industry" has an "A" symbol in the "Agricultural Resource" zone. The symbol "A" is defined under cl 4.3.2 as:
" 'A' means that the use is not permitted unless the Local Government has exercised its discretion by granting Planning Approval after giving special notice in accordance with [cl] 9.4."
42 Under cl 5.16 (Basic Raw Materials), the matter of extraction of raw materials and "buffers" is addressed:
"(a) Extraction of essential materials for roads and construction are to be permitted in areas where they will not adversely affect living environments, the landscape quality or contribute to land degradation problems during and after operations;
(b) Extraction of basic raw materials within the rural zones is to be managed in accordance with best industry practice including consideration of end use and rehabilitation at time of decommission;
(c) Appropriate buffer areas are to be applied to protect both the extractive operations as well as the living or agricultural environment in nearby areas; [and]
(d) Council will not support development within those buffer areas, which may be detrimental to the efficiency of the industries. This is to protect the basic raw materials precincts from development that may compromise its operations."
43 What is clear from the above is that the extraction of gravel fits the definition of an "Extractive Industry" under TPS 6, and that the concept of a "buffer" is there to protect the industry as well as those living in nearby areas.
44 What is also clear is that the onus is placed directly on the respondent to protect the industry, and not allow nearby new developments that could compromise the industry’s operations.
(Page 11)
- Local Planning Strategy 2001–2015
45 Under the LPS, the intent behind the "Basic Raw Materials Extraction Areas" is explained in cl 10.3 as:
"• To provide appropriate buffer areas in accordance with State Government and local policies and legislation to both protect the workings of extractive industry sites and protect any residences, agricultural development and tourism from adverse effects of noise and dust emissions;
• Not to support new development within any identified buffer areas which may be detrimental to the efficiency of the industries and the issues of basic raw material requirements at the local, regional and State levels; [and]
• In relation to greenfields site applications for extractive industries, to protect existing residences and approved developments by ensuring that all buffer areas are designated so as not to encroach detrimentally on existing authorised developments."
46 In the view of the Tribunal, the LPS, in addition to and complementary to TPS 6, places the onus on the Council to not allow new development within a "buffer" area that could jeopardise an existing extractive industry.
47 However, the LPS also makes it clear that any new proposal for an extractive industry is to be located sufficiently far away from an existing residence, or other approved development, by way of an appropriately designated "buffer".
Local Planning Policy No 10
48 In his witness statement, Mr Awang refers to the relevant clauses in LPP 10 in this way:
"Clause 5.4 Preferred Development
a) Council prefers extractive industries that:
...
v) are more than 1000 [metres] from the nearest house; and
- ...
- b) Subject to a) above, Council will not approve extractive industries that:
i) are situated in a visually significant location, such as on a ridge or along an unscreened section of regional or tourist road;
ii) involve major disturbance of high value remnant bushland or natural areas, following detailed environmental assessment;
iii) are situated within 500 [metres] of the nearest house; or
... "
Statement of Planning Policy No 2.4
50 The matter of relevant considerations in determining applications is addressed in SPP 2.4:
"6.3.1 Before determining an application for an extractive industry operation the Commission and/or local government should consider as appropriate:
...
• the effect of vehicular traffic, noise, blasting, dust and vibration on the amenity of the surrounding area having regard to existing and future uses;
...
6.3.2 Before determining an application for a sensitive land use, such as residential, rural-residential or a land use with a substantial residential or rural-residential component (refer to Appendix 1) within 1000 [metres] of a basic raw materials extraction area, the Commission
- and/or local government must consider the following, as appropriate. ...
- • the significance of the resource in terms of whether it is a key extraction area, priority resource area or extraction area;
• the likely effects of vehicular traffic, noise, blasting, dust and vibration arising from the extractive industry on the proposed use or development.
- 6.3.3 There should be a presumption against the introduction of sensitive land uses which could be adversely affected by existing or potential future extractive industries unless appropriate measures can be taken to ameliorate the adverse impacts."
51 What SPP 2.4 appears to be doing is to set the criteria that should be examined by the decision-makers (WAPC and/or local government) "before" an extractive industry is established, and "after" it is established, in the interests of avoiding land use conflict.
52 However, once again, the onus is on the responsible authority in its decision-making process, and not on the proponent.
Environmental Protection Authority – Guidance Statement
53 In the "Foreword" to the EPA Guidance Statement it advises:
"This document provides advice on the use of generic separation distances (buffers) between industrial and sensitive land uses to avoid conflicts between incompatible land uses."
54 Under the "Purpose" of the document, it explains:
"Proponents and responsible authorities are encouraged to consider their proposals and schemes in the light of the guidance given. A proponent or responsible authority wishing to deviate from the advice in this Guidance Statement would be expected to put a well-researched, robust and clear justification arguing the need for that deviation."
55 Under the "Scope of Guidance", the document explains:
(Page 14)
- "This Guidance Statement is intended to provide advice on generic separation distances between specific industry and sensitive land uses to avoid or minimise the potential for land use conflict. The distances outlined in Appendix 1 are not intended to be absolute separation distances, rather they are a default distance for the purposes of:
• identifying the need for specific separation distance or buffer definition studies; and
• providing general guidance on separation distances in the absence of site specific technical studies.
The separation distances are intended to be used as a tool, supplemented by other appropriate techniques, to assist in the assessment of:
• new individual industries, infrastructure and estates, in the vicinity of existing/proposed sensitive land uses; and
• new individual sensitive land uses or estates, in the vicinity of existing/proposed industry and infrastructure."
56 In Appendix 1, which is described as a "generic guideline", the buffer distance from an extractive industry is listed at 1000 metres. The "Extractive Industry" (hard rock, Darling Scarp) is described as "quarrying (including blasting), crushing and screening".
57 In the view of the Tribunal, the document provides general guidance on the separation distance between an "Extractive Industry" and a sensitive land use, such as a residence. The separation distance is there to be increased, or decreased, according to the technical information available to the decision-maker.
58 In this particular case, there is no "blasting" contemplated so a reduction in the separation distance would not seem unreasonable. However, before such a conclusion can be reached, more information is needed on the likely consequences of both "dust" and "noise" emanating from the activity.
The matter of dust
59 With any extractive industry there is always the potential for dust from the activity itself, and from the consequential effects of wind and
(Page 15)
- truck movements. These matters are addressed in cl 6.4 of the July 2006 Plan and include the following dust suppression measures:
a) Clearing and reinstating vegetation, topsoil and overburden will be confined to the wetter months, April to October, where possible.
b) Any crushing and screening will be carried out on the quarry floor, below the existing land surface. This process can lead to a reduction in wind speed and help prevent the generation of dust.
c) The perimeter walls of the pits will be 2.0 metres to 4.0 metres below natural ground level behind screening bunds. This should help reduce the speed of winds entering the property and act as a filter for airborne dust particles.
d) Completed sections of the quarry will be rehabilitated as soon as practical to reduce the area of open ground and help reduce wind speed.
f) A water tanker or sprinklers will be used to ensure adequate wetting down of the operations. The water will be sourced from an existing tank.
g) The access road and other service roads will be watered throughout the year to reduce dust generation.
h) When required by Main Roads WA, the crossover and entry to the Great Northern Highway will be upgraded to accommodate the traffic increase.
i) Loads likely to generate dust are to be moistened and/or adequately covered prior to leaving the pit.
k) In the event of dust management not being able to be achieved, such as a bore breakdown or exceptional weather conditions, the activities will be stopped until conditions improve to minimise impact on adjoining landholders.
l) Reinstating vegetation, topsoil and overburden will be confined to the wetter months, April to October, where possible.
m) A record of all dust complaints will be retained, together with the mitigation measures, to be used to reduce dust impacts.
(Page 16)
60 In the view of the Tribunal, the range of dust suppression measures contemplated should prove adequate; subject to appropriate monitoring by the respondent to ensure compliance.
The matter of noise
61 The matter of noise is governed by the Environmental Protection (Noise) Regulations 1997 (WA). These Regulations require that dwellings in non-industrial areas are not subjected to noise levels exceeding 45 dBA for more than 10% of the time, 55 dBA for more than 1% of the time and never exceeding 65 dBA during normal working hours.
62 The applicant advises under cl 6.3 of the July 2006 Plan that:
a) Natural gravel extraction is a relatively quiet operation.
b) The extraction will be shielded by the walls of the quarry which will vary between 2.0 metres to 4.0 metres deep, with bunds pushed to the edge of the pit to provide screening.
c) Crushing and screening to produce various grades of product will be carried out on the floor of the quarry where the low walls of the quarry will effectively mute the operational noise.
d) Although relatively quiet, the open doors of a generator or a diesel driven screen or crusher can produce a directional noise source. During crushing operations, any generator or static plant will have its doors facing away from roads or dwellings, or in a manner that provides screening.
e) The location of the pits and the method of working the site will also be used to ensure minimal noise impact on residents.
63 In the view of the Tribunal, it is the effect of noise on residents that is the most important amenity consideration in this review and, subject to meeting the requirements of the Environmental Protection (Noise) Regulations 1997 (WA), the noise mitigation measures contemplated by the applicant should prove adequate.
Conclusions
64 The application for review was lodged against a decision of the Shire of Chittering in December 2005 to refuse an application for planning
(Page 17)
- consent for the extraction of gravel and clay at Lot 7 Toy Road, Chittering.
65 However, since that time, and through a process of mediation and discussion between the parties and reconsideration of the matter by the respondent, an approval was issued in September 2006. Only one condition (condition (d)) remains in dispute. It requires that:
"Prior to the issue of an excavation licence the applicant is to establish a buffer area of 1000 [metres] from all proposed pits, crushing, stockpile and loading areas on the site plan."
66 In undertaking this review, the Tribunal has examined the respective positions of the parties, the background to the proposal, the proposed development itself, the relevant policy and statutory provisions and matters of dust and noise.
67 The position of the respondent is that the EPA Guidance Statement and SPP 2.4 specify a minimum 1000 metre distance between the extractive industry and a residence or sensitive land use, and that this distance criterion (1000 metres) has not been met in this case. Also, that there were submissions from adjoining owners based on the prospect of both noise and dust from the operations.
68 The position of the applicant is that proposed condition (d) cannot be complied with or implemented by the applicant and could, in the future, be interpreted by the respondent, or another party, and place the quarry at risk.
69 This point was taken up by Mr Stephens in his evidence before the Tribunal:
" ... The point of it is that my client is very concerned with the potential for a condition to be misinterpreted or interpreted differently at a later stage. There are examples around the State where Councils have changed, officers have changed and it has been interpreted differently and in some cases there have been houses constructed – or permitted to be constructed near quarries and then pressure has come back and been put on the quarry to close down. For example, the buffer is reinterpreted from the new dwelling, and there is an example in my witness statement from the Shire of Busselton where exactly that has happened. So Joice Investments are concerned about that."
(Page 18)
70 It is also argued by the applicant that condition (d) cannot be met as there is already an existing dwelling within the 1000 metre buffer.
71 In examining the matter of a "buffer", it is clear from cl 5.16 of TPS 6 that "appropriate buffers" are to be applied to protect both the extractive operations as well as the living and natural environment in nearby areas.
72 It is also clear that the onus is placed directly on the Council to protect the industry from new developments that could compromise its operations.
73 The same emphasis is included in the LPS, and again in SPP 2.4, where a proposal should be examined by the decision-maker "before" an extractive industry is established, and "after" it is established, in the interests of avoiding land use conflict.
74 Regarding the 1000 metre figure, it is the case in LPP 10 that, although the respondent prefers a 1000 metre buffer, the figure could, under cl 5.4(b)(iii), be as low as 500 metres from the nearest house.
75 What is indicated here is that a buffer between an extractive industry and a residence, or other sensitive land use, could vary between 500 metres and 1000 metres, depending on circumstances.
76 Of importance is the EPA Guidance Statement, which is described as a "generic" guide for desirable separation distances between an industrial use and a sensitive land use such as a residence. An extractive industry is defined to include "blasting" and a 1000 metre distance is listed against the use.
77 However, the interpretation that the Tribunal places on the EPA Guidance Statement is that it is, in fact, a "guide" only, and the 1000 metre separation distance can be increased or decreased according to the technical information available and the circumstances of the case.
78 In this particular case, there is no "blasting" contemplated and the matters of noise and dust appear to have been satisfactorily addressed; subject to monitoring by the respondent.
79 In his evidence to the Tribunal, Mr Dwyer, in answer to a question from Senior Sessional Member Lloyd Graham, advised " ... we've operated the pit in that first instance five years without any problem as far as neighbours or complaints of dust and noise".
(Page 19)
80 In the view of the Tribunal, the only way the applicant could meet the terms of condition (d) to establish a clear "buffer" area of 1000 metres would be to purchase the property containing the residence some 750 metres away, or reposition the location of the excavation pit a further 250 metres away from the existing residence to achieve the 1000 metre buffer.
81 This latter course may not be feasible for a whole host of reasons; not the least being that the gravel resource may not exist at that 1000 metre distance.
82 However, of prime importance in this review is that the various statutory and policy provisions do not require a fixed or immutable separation distance of 1000 metres between and "Extractive Industry" and a sensitive land use.
83 The provisions allow flexibility depending on the circumstances of the case, and in this instance, the nearest residence is at an acceptable distance of 750 metres. Also, no blasting is envisaged, and the July 2006 Plan is sufficiently comprehensive to give the Tribunal a high level of comfort with respect to the proper management of both dust and noise.
84 In the circumstances of this case, the Tribunal does not believe that a 1000 metre buffer is justified, and that if it was, it would be more the responsibility of the respondent than the applicant to ensure its implementation; particularly where the external boundary of the buffer falls outside the boundary of the proponent's land.
Orders
85 For the foregoing reasons, the orders of the Tribunal are as follows:
1. The application for review is upheld.
2. Proposed condition (d) is set aside.
I certify that this and the preceding [85] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR L GRAHAM, SENIOR SESSIONAL MEMBER
(Page 20)
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