JONES and SHIRE OF KALAMUNDA
[2017] WASAT 78
•30 MAY 2017
JONES and SHIRE OF KALAMUNDA [2017] WASAT 78
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2017] WASAT 78 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:186/2016 | 10 AND 24 NOVEMBER 2016 AND 10 MAY 2017 | |
| Coram: | MS M CONNOR (MEMBER) | 30/05/17 | |
| 38 | Judgment Part: | 1 of 1 | |
| Result: | Application for review allowed Decision of respondent set aside and conditional approval granted | ||
| B | |||
| PDF Version |
| Parties: | DAVID JONES SHIRE OF KALAMUNDA |
Catchwords: | Town planning Development application Temporary use for storage of mining equipment and for construction of hardstand areas Orderly and proper planning Impact on amenity of surrounding residents Traffic impact and access Restrict access vehicles Conditions |
Legislation: | Metropolitan Region Scheme Planning and Development (Local Planning Schemes) Regulations 2015 (WA), reg 53(3), Sch 2, cl 15, cl 27(2), cl 61(2), cl 67, cl 77(1), cl 78B, Pt 10A Planning and Development Act 2005 (WA), s 252(1), s 257B Road Traffic Vehicles Act 2012 (WA) Shire of Kalamunda Local Planning Scheme No 3, cl 4.2.1, cl 4.2.4, cl 5.19.9, cl 6.7, cl 6.7.3, cl 10.2, Table 1, Table 2 State Administrative Tribunal Act 2004 (WA), s 31 |
Case References: | Atlas Point Pty Ltd and Western Australian Planning Commission [2013] WASAT 33 Caltex Australia Petroleum Pty Ltd and Town of Vincent [2010] WASAT 174 Crown Castle Australia Pty Ltd and Western Australian Planning Commission [2008] WASAT 162 Hackney Hotel Pty Ltd and Town of St Peters (1983) 51 LGRA 243 Hanson Construction Materials Pty Ltd and Shire of Serpentine-Jarrahdale [2012] WASAT 140 Mann and City of Rockingham [2006] WASAT 115 Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117 Puma Energy Australia and City of Cockburn [2016] WASAT 36 Terra Spei Pty Ltd and Shire of Kalamunda [2015] WASAT 134 Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30 |
Orders | 1. The application for review is allowed.,2. The decision of the respondent made on 1 September 2016 refusing to grant planning approval for proposed hardstand and temporary storage on No 584 (Lot 200) Kalamunda Road, High Wycombe, is set aside and a decision is substituted that planning approval is granted for the temporary use of No 584 (Lot 200) Kalamunda Road, High Wycombe, for storage of mobile and fixed mining equipment and for the construction of hardstand areas as shown on plan 5 August 2016 (Annexure 1), subject to the following conditions:,(i) The development shall be carried out only in accordance with the terms of the application as approved here in, and any approved plans.,(ii) If the development, the subject of this approval is not substantially commenced within a period of 12 months from the date of the Tribunal's orders, the approval shall lapse and be of no further effect. ,(iii) Pursuant to cl 72 of Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA), the time for which this development approval is limited to a period of five (5) years from the date of commencement of the storage use unless otherwise approved by the Shire of Kalamunda.,(iv) Prior to the commencement of any development, a wetland management plan is to be prepared and approved to ensure protection and management of the sites environmental assets with the satisfactory arrangements been made for the implementation of the approved plan.,(v) Stormwater shall be disposed of onsite to the specification and satisfaction of the Shire of Kalamunda.,(vi) Prior to the commencement of the storage use, crossovers shall be designed and constructed to the specification and satisfaction of the Shire of Kalamunda.,(vii) The hard stand areas indicated on the approved plan as 'Area A' and 'Area B' shall be suitably constructed, sealed, delineated and drained to the satisfaction of the Shire of Kalamunda, prior to the commencement of the storage use.,(viii) Suitable signage and line markings shall be placed within the site to ensure that the crossovers are used as left in only from Kalamunda Road and exit from Stirling Crescent.,(ix) Any future redundant septic sewer systems including all tanks, pipes and associated drainage systems (soak wells or leach drains) are to be decommissioned, removed, filled with clean sand and compacted. The applicant must provide a statutory declaration to the Shire of Kalamunda stating that the site has been inspected and all effluent disposal systems have been removed. A pro forma for this declaration is available from the Shire of Kalamunda.,(x) A detailed landscaping plan and reticulation plan for the subject site shell be submitted to and approved by the Shire of Kalamunda, prior to the commencement of storage use. For the purposes of this condition, landscaping is required to be an appropriate species, density and maturity to provide an effective visual screen to mitigate the visual impact of the storage use on the adjacent residential areas.,Landscaping shall be completed in accordance with the approved detailed landscape plan prior to the commencement of the storage use and thereafter maintained to the satisfaction of the Shire of Kalamunda.,(xi) Any fencing adjoining Stirling Crescent shall be 1800 millimetres in height, of metal tubing frame vertical pale and horizontal rail fencing with powder coat finish. Any fencing adjoining Kalamunda Road shall be 1800 millimetres in height, of black plastic metal chain link fencing. Further detail in compliance with this criteria shall be submitted as part of the proposed landscape and reticulation plan.,(xii) Any external lighting shall be positioned and designed so as not to adversely affect the amenity of the locality, to the satisfaction of the Shire of Kalamunda. Further detail of any proposed lighting shall be submitted as part of the proposed landscape and reticulation plan.,(xiii) Only vegetation required to be removed to facilitate the construction of the hard stand and storage area is permitted to be removed by this approval. All other trees and other vegetation shall be retained unless otherwise approved by the Shire of Kalamunda.,(xiv) The development may not on any day generate more than 20 vehicle movements (in and out combined) by heavy vehicles (that is, any vehicle which does not fall within Austroads vehicle class 1 or 2). This condition does not limit movements by Austroads class 1 or 2 vehicles.,(xv) Only vehicles, equipment and machinery used in the mining industry (including dump trucks, bulldozers and crushers) may be stored on the site.,(xvi) All works associated with the development and in particular the hardstand areas, are to be removed from the site at the expiration of this temporary planning approval and the site is to be rehabilitated to the satisfaction of the Shire of Kalamunda. |
Summary | Mr David Jones applied to the Tribunal for review of decision of the Shire of Kalamunda refusing to grant planning approval for 'proposed hardstand and temporary storage'. ,The proposed development involved the temporary storage of mobile and fixed mining equipment and the construction of two hardstand areas (Area A comprising of 11,100m2 and Area B comprising of 27,500m2) equating to a total area of 38,600m2. ,The following three issues arose for determination in this matter:,1) Whether approval of the development is consistent with the principles of orderly and proper planning;,2) Whether the proposed development would have an adverse impact on the amenity of the residents; and,3) Whether the traffic impacts of the proposed development were acceptable and whether the proposed traffic access arrangements were appropriate.,The Tribunal heard submissions and evidence in respect to the application of the existing planning framework and proposed Amendment 80 to Shire of Kalamunda Local Planning Scheme No 3. The Tribunal was satisfied that the proposed development would not conflict with the principles of orderly and proper planning or prejudice the overall development potential of the area as long as the temporary planning approval for the proposed 'storage' use did not, as a result of the timing of the finalisation of Amendment 80, result in a permanent approval of the use. The Tribunal found that the potential conflict could be resolved by the imposition of a condition requiring the removal of all works associated with the development at the expiration of the temporary planning approval.,In regards to the visual impact of the proposed development on the amenity of the locality, the Tribunal found that the amenity impacts could be ameliorated by the imposition of appropriate conditions on the planning approval.,On the evidence relating to road capacity, traffic impacts and road safety the Tribunal concluded that Kalamunda Road and Stirling Crescent operated at, or marginally above, the desirable design capacity for their agreed designated road classifications and was satisfied that the agreed traffic generation for the heavy vehicles would not have any significant impacts on the functionality of Kalamunda Road or Stirling Crescent or compromise road safety. ,In considering the substantial merits of this particular case in light of the planning framework, the Tribunal considered that planning approval was warranted subject to the imposition of appropriate conditions. Consequently, the application for review was allowed and planning approval granted subject to conditions. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : JONES and SHIRE OF KALAMUNDA [2017] WASAT 78 MEMBER : MS M CONNOR (MEMBER) HEARD : 10 AND 24 NOVEMBER 2016 AND 10 MAY 2017 DELIVERED : 30 MAY 2017 FILE NO/S : DR 186 of 2016 BETWEEN : DAVID JONES
- Applicant
AND
SHIRE OF KALAMUNDA
Respondent
Catchwords:
Town planning - Development application - Temporary use for storage of mining equipment and for construction of hardstand areas - Orderly and proper planning - Impact on amenity of surrounding residents - Traffic impact and access - Restrict access vehicles - Conditions
Legislation:
Metropolitan Region Scheme
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), reg 53(3), Sch 2, cl 15, cl 27(2), cl 61(2), cl 67, cl 77(1), cl 78B, Pt 10A
Planning and Development Act 2005 (WA), s 252(1), s 257B
Road Traffic Vehicles Act 2012 (WA)
Shire of Kalamunda Local Planning Scheme No 3, cl 4.2.1, cl 4.2.4, cl 5.19.9, cl 6.7, cl 6.7.3, cl 10.2, Table 1, Table 2
State Administrative Tribunal Act 2004 (WA), s 31
Result:
Application for review allowed
Decision of respondent set aside and conditional approval granted
Summary of Tribunal's decision:
Mr David Jones applied to the Tribunal for review of decision of the Shire of Kalamunda refusing to grant planning approval for 'proposed hardstand and temporary storage'.
The proposed development involved the temporary storage of mobile and fixed mining equipment and the construction of two hardstand areas (Area A comprising of 11,100m2 and Area B comprising of 27,500m2) equating to a total area of 38,600m2.
The following three issues arose for determination in this matter:
- 1) Whether approval of the development is consistent with the principles of orderly and proper planning;
2) Whether the proposed development would have an adverse impact on the amenity of the residents; and
3) Whether the traffic impacts of the proposed development were acceptable and whether the proposed traffic access arrangements were appropriate.
The Tribunal heard submissions and evidence in respect to the application of the existing planning framework and proposed Amendment 80 to Shire of Kalamunda Local Planning Scheme No 3. The Tribunal was satisfied that the proposed development would not conflict with the principles of orderly and proper planning or prejudice the overall development potential of the area as long as the temporary planning approval for the proposed 'storage' use did not, as a result of the timing of the finalisation of Amendment 80, result in a permanent approval of the use. The Tribunal found that the potential conflict could be resolved by the imposition of a condition requiring the removal of all works associated with the development at the expiration of the temporary planning approval.
In regards to the visual impact of the proposed development on the amenity of the locality, the Tribunal found that the amenity impacts could be ameliorated by the imposition of appropriate conditions on the planning approval.
On the evidence relating to road capacity, traffic impacts and road safety the Tribunal concluded that Kalamunda Road and Stirling Crescent operated at, or marginally above, the desirable design capacity for their agreed designated road classifications and was satisfied that the agreed traffic generation for the heavy vehicles would not have any significant impacts on the functionality of Kalamunda Road or Stirling Crescent or compromise road safety.
In considering the substantial merits of this particular case in light of the planning framework, the Tribunal considered that planning approval was warranted subject to the imposition of appropriate conditions. Consequently, the application for review was allowed and planning approval granted subject to conditions.
Category: B
Representation:
Counsel:
Applicant : Mr J Skinner
Respondent : Mr C Slarke
Solicitors:
Applicant : Borello Graham
Respondent : McLeods
Case(s) referred to in decision(s):
Atlas Point Pty Ltd and Western Australian Planning Commission [2013] WASAT 33
Caltex Australia Petroleum Pty Ltd and Town of Vincent [2010] WASAT 174
Crown Castle Australia Pty Ltd and Western Australian Planning Commission [2008] WASAT 162
Hackney Hotel Pty Ltd and Town of St Peters (1983) 51 LGRA 243
Hanson Construction Materials Pty Ltd and Shire of Serpentine-Jarrahdale [2012] WASAT 140
Mann and City of Rockingham [2006] WASAT 115
Marshall v Metropolitan Redevelopment Authority [2015] WASC 226
Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117
Puma Energy Australia and City of Cockburn [2016] WASAT 36
Terra Spei Pty Ltd and Shire of Kalamunda [2015] WASAT 134
Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30
Introduction
1 Planning Solutions on behalf of Peter Jones, David Jones and Bronwyn Jones made application to the Shire of Kalamunda (respondent or Council) in November 2015 for development approval to construct two areas of hardstand for the purpose of temporary storage of mobile and fixed mining equipment, including dump trucks, bulldozers, crushers and other various machinery on No 584 (Lot 200) Kalamunda Road, High Wycombe (subject land or site).
2 The Council at its meeting of 23 May 2016 resolved to refuse to grant planning approval for 'proposed hard stand and temporary storage' on the subject land for the following reasons:
a) The application is inconsistent with the principles of orderly and proper planning for the following reasons:
i) A structure plan has not been prepared over the subject land to appropriately coordinate development.
ii) The use is not consistent with the objectives of the Urban Development zone.
iii) The proposal pre-empts the approval of Amendment 80 to Local Planning Scheme No. 3, which has not progress[ed] to a point where it is able to be 'seriously entertained'.
b) The proposed development will prejudice the overall development potential of the area and the ongoing consideration of Amendment 80 to Local Planning Scheme No. 3.
c) The proposed buffer distances to the resource enhancement wetland is not considered sufficient to protect and manage the environmental value of the wetland.
d) The applicant has not demonstrated appropriate consideration of environmental, traffic and amenity impacts of the proposal, to the satisfaction of the Shire of Kalamunda.
3 Mr David Jones (applicant), on 14 June 2016, made application under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) to have the decision reviewed. The applicant seeks an order that the respondent's decision be set aside, and the application for planning approval be granted.
4 As part of the proceedings in this matter, the parties engaged in mediation process, which resulted in a modified plan and supporting information being provided to the respondent. The Tribunal, pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), invited the respondent to reconsider its decision in light of the revised plans.
5 On reconsideration of the matter at its meeting of 29 August 2016, the respondent affirmed its previous decision and gave the following reasons for refusal:
1) The frequency of traffic movements to and from the site is likely to have a detrimental impact on the amenity of residents located on Kalamunda Road and Stirling Crescent.
2) Council has yet to consider public submissions to Scheme amendment 80 to Local Planning Scheme No 3 and therefore the proposal is still considered to preempt the approval of the amendment and the light industrial land use outcome for the area.
Subject land
6 The subject land is more particularly described as Lot 200 on Deposited Plan 302082, being the whole of the land contained within Certificate of Title Volume 1320 and Folio 147 and is 8.0696 hectares in area.
7 The site is relatively square in shape and has a frontage of 293 metres to Kalamunda Road and 279 metres to Stirling Crescent. The subject land is currently vacant but has access from Kalamunda Road via a single gravel crossover. An area of bushland is located along the northeast boundary of the subject land, and a small water body is located in the southern corner of the Lot, which forms part of a larger Resource Enhancement Wetland system mapped throughout the wider High Wycombe area.
8 The site is gently undulating with the highest point being approximately 23.24 Australian Height Datum (AHD) and the lowest point being 21.36 AHD.
9 An assessment of surrounding development in the immediate area by Mr Joe Algeri, a town planning consultant, called on behalf of the respondent, broadly described it as consisting of the following:
• Rural residential properties to the north-east;
• Industrial development to the north-west;
• A retirement village to the south-west, fronting Kalamunda Road; and
• Residential development to the east and south-east along Kalamunda Road and Stirling Crescent.
10 The Tribunal, together with the parties' representatives and their experts, had the benefit of a view of the subject land and the immediate area.
The proposal
11 The original development application submitted to the respondent in November 2015 sought a five year approval for temporary storage of mobile and fixed mining equipment, including dump trucks bulldozers, crushers and other various materials. It was intended that mining vehicles and equipment would be transported to the site for longterm storage purposes and that the site would operate from 8 am to 5 pm weekdays. The proposal did not envisage the site to be used as a depot for receiving vehicles on a regular basis. More specifically, the development comprised the following elements:
• the construction of two hardstand areas (Area A comprised of 11,100m² and Area B comprised of 28,000m²) equating to a total area of 39,100m² (48.5% ofthe site area);
• retention of the existing vehicle crossover onto Kalamunda Road;
• construction of one new 'exit only' crossover to Stirling Crescent;
• retention of the existing Resource Enhancement Wetland area and provision of appropriate buffer zones from the proposed hardstand areas; and
• retention of the existing post and wire security fence around the boundaries of the site.
12 The revised proposal (Annexure 1), produced as a result of the mediation process entailed the following:
• Area B is reduced in size to 27,500m² resulting in a reduction of a total area of hardstand from 39,100m² to 38,600m² (47.8% of the site area);
• an increased minimum setback distance of 30 metres to the Resource Enhancement Wetland. The amended plans show a buffer/hardstand setback distance ranging from 30 metres to 68 metres;
• the hardstand areas are set back 15 metres from Kalamunda Road and 9 metres from Stirling Crescent and side lot boundaries;
• modification to the existing vehicle crossover on Kalamunda Road to accommodate truck access and construction of one crossover to Stirling Crescent;
• fill in the area within 4 metres of the lot boundary fronting Kalamunda Road to accommodate fencing, landscaping and perimeter access. It is intended that a chain-link mesh fence (plastic coated) will be installed along the perimeter of the site;
• a 3 metre wide landscaping strip adjacent to the proposed storage area, and a 1 metre wide landscaping strip for the balance of the street fronting onto Kalamunda Road and Stirling Crescent; and
• confirmation of the maximum vehicle numbers which will be no greater than 10 vehicle trips in the peak hour.
13 It is this final iteration of the application that the applicant relied on at the final hearing of the matter.
Planning framework
State
14 The subject land is zoned 'Urban' in the Metropolitan Region Scheme, with a portion of the frontage of the Lot along Kalamunda Road measuring an approximate depth of 11.9 metres, reserved as 'Other Regional Roads' for the further widening of Kalamunda Road.
15 Relevant State planning policies referred to by the parties include:
• State Planning Policy 5.1 Land Use Planning in the Vicinity of Perth Airport (SPP 5.1);
• State Planning Policy 3.7 Planning in Bushfire Prone Areas (SPP 3.7);
• State Planning Policy 2.9 Water Resources (SPP 2.9); and
• Development Control Policy 5.1 Regional Roads (Vehicular Access) (DCP 5.1)
Local
16 The subject land is zoned 'Urban Development' under the Shire of Kalamunda Local Planning Scheme No 3 (LPS 3 or Scheme) and portions of the site are also located in a designated 'Bushfire Prone Area' as shown on the Scheme map.
17 Clause 4.2.1 of the Scheme sets out the objectives of the Residential zones which includes the Urban Development zone. The objectives for the Urban Development zone are:
• To provide orderly and proper planning through the preparation and adoption of a Structure Plan setting the overall design principles for the area.
• To permit the development of land for residential purposes and for commercial and other uses normally associated with residential development.
18 To date, no structure plan has been prepared or adopted over the subject land.
19 Table 1 Zoning Table of LPS 3 does not include a column for the Urban Development zone and as such, LPS 3 does not prescribe land use permissibility within the Urban Development zone. Table 2 Site Requirements of LPS 3 does not specify any setbacks and site requirements for nonresidential uses in the Urban Development zone as such matters are to be determined at the discretion of the local government.
20 Clause 15 of Sch 2 of the 'Deemed provisions for local planning schemes' (deemed provisions) contained in the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regulations), which now forms part of LPS 3, provides as follows:
A structure plan in respect of an area of land in the Scheme area may be prepared if
(a) the area is
(i) all or part of a zone identified in this Scheme as an area suitable for urban or industrial development; and
(ii) identified in this Scheme as an area requiring a structure plan to be prepared before any future subdivision or development is undertaken[.]
A decisionmaker for an application for development approval or subdivision approval in an area referred to in clause 15 as being an area for which a structure plan may be prepared, but for which no structure plan has been approved by the Commission, may approve the application if the decisionmaker is satisfied that
(a) the proposed development or subdivision does not conflict with the principles of orderly and proper planning; and
(b) the proposed development or subdivision would not prejudice the overall development potential of the area.
22 Clause 10.2 of the Scheme sets out the matters to be considered in determining an application. The Tribunal in Puma Energy Australia and City of Cockburn [2016] WASAT 36 found that pursuant to s 257B of the PD Act, cl 67 of Sch 2 of the LPS Regulations is deemed to form part of the Scheme. Clause 67 of the deemed provisions provides that in considering an application for development approval, the local government is to have due regard to a range of matters to the extent that, in the opinion of the local government, those matters are relevant to the development of the subject of the application. The pertinent matters relating to this application are as follows:
• the aims and provisions of the Scheme (subclause (a));
• the requirements of orderly and proper planning including any relevant proposed local planning amendment to the Scheme that has been advertised under the LPS Regulations (subclause (b));
• any approved state planning policy (subclause (c));
• the compatibility of the development with its setting including the relationship of the development to development on adjoining land or on other land in the locality including, but not limited to, the likely effect of the height, scale, orientation and appearance of the development (subclause (m));
• the amenity of the locality including the environmental impacts of the development, the character of the locality, and any social impacts of the development (subclause (n));
• whether adequate provision has been made for the landscaping of the land which the application relates (subclause (p));
• the adequacy of the proposed means of access to and egress from the site and arrangements for the loading, unloading, manoeuvring and parking of vehicles (subclause (s));
• the amount of traffic likely to be generated by the development, particularly in relation to the capacity of the road safety in the locality and the probable effect on traffic flow and safety (subclause (t));
• the history of the site where the development is to be located (subclause (w)); and
• any submissions received on the application (subclause (y)).
23 Part 10A of the deemed provisions in the LPS Regulations relates to 'Bushfire risk management' for specified development(s) within Bushfire Prone Areas: cl 78B of the LPS Regulations. On first blush, it would seem given the type of construction encompassed in the proposed development that Pt 10A of the deemed provisions of the LPS Regulations does not apply. However, cl 6.7 of the Scheme contains provisions relating to Bushfire Prone Areas, one of which requires that an application for planning approval within a Bushfire Prone Area must be accompanied by a Bushfire Attack Level (BAL), and a Fire Management Plan: cl 6.7.3 of LPS 3. In this instance, the Tribunal does not have to determine whether there is an inconsistency between the deemed provisions and the provisions contained in the Scheme as the applicant prepared and submitted to the respondent, a Bushfire Management Plan (BMP) which incorporated a BAL assessment (Exhibit 17), thereby satisfying the Scheme requirement.
Amendment 80
24 The subject land is contained within the area captured in Amendment 80 to LPS 3. This amendment seeks to rezone Lots 10 16 and Lots 51 53 Hatch Court, Lots 1, 8, 9 and 1499 Stirling Crescent and Lots 200 and 201 Kalamunda Road from 'Urban Development' to 'Light Industry' (Tab 1 of Exhibit 2).
25 The land contained within Amendment 80 is located adjacent to the Perth airport and is impacted by the Australian Noise Exposure Forecast (ANEF) contours. The subject land is contained within the 2025 ANEF and 2530 ANEF noise exposure zones. The Tribunal notes that in the table relating to 'Building site acceptability' incorporated in Appendix 1 of SPP 5.1, includes 'light industrial' buildings as 'Acceptable' building types in both the 2025 ANEF and 2530 ANEF, whereas a 'house, home unit or flat' are listed as 'conditionally acceptable' in the 2025 ANEF and 'unacceptable' in the 2530 ANEF.
26 Amendment 80 was initiated by the Council at its meeting on 29 September 2015. The amendment was advertised for public submissions in accordance with the LPS Regulations, and advertising closed on 12 October 2016. During the course of the hearing, the Tribunal was told that in excess of 100 submissions had been received in regards to Amendment 80 and that it was expected that the Council would consider these submissions at its February 2017 meeting (Exhibit 8).
27 After the conclusion of the hearing, but prior to the determination of this matter, the Tribunal was informed by the respondent that the 186 submissions received during the advertising period of Amendment 80 had been considered by the Council at its meeting of 27 February 2017 and the Council resolved, pursuant to reg 53(3) of the LPS Regulations, to support the finalisation of Amendment 80 subject to the preparation and approval of a structure plan and the extension of Adelaide Street to Abernethy Road.
28 If Amendment 80 is finalised, the subject land will be zoned Light Industry under LPS 3. Clause 4.2.4 of LPS 3 provides the following objectives for the Light Industry zone:
• To provide for predominantly light industry located in proximity to residential areas.
• To ensure that industries are environmentally compatible with surrounding zones and activities.
• To ensure that the movement of goods and services in and out of the zone cause minimal impact on residential land in the vicinity.
29 Both 'Transport Depot' and 'Storage' use classes are 'P' (permitted) uses within the Light Industry zone.
Issues
30 The respondent identified the following four issues that arise for determination in relation to this matter:
1) Whether approval of the development is consistent with the principles of orderly and proper planning;
2) Whether the proposed development would have an adverse impact on the amenity of the surrounding residents;
3) Whether the proposed traffic access arrangements are appropriate; and
4) Whether approval of the development is consistent with cl 5.19.9 of LPS 3 in relation to the parking of commercial vehicles.
31 The respondent, at the final hearing, did not press issue 4, as the respondent correctly conceded that it was not appropriate to assess the proposed development against the commercial vehicle parking provisions contained in cl 5.19.9 of LPS 3.
32 The Tribunal will address issues 1 to 3.
Whether approval of the development is consistent with the principles of orderly and proper planning
33 The zone objectives, as contained in planning schemes, set the planning intent for those zones. In this instance, the subject land is zoned Urban Development and as set out at [17], the objectives for this zone seek to ensure that the overall design principles for the area are developed through the preparation and adoption of a structure plan and to broadly indicate land use permissibility.
34 It is common ground between the parties that a structure plan has not been adopted over the subject lot and that the proposed development is not for residential purposes or commercial and other uses normally associated with residential development. It is accepted by the respondent and the Tribunal agrees, that noncompliance with the objectives of the Urban Development zone in this instance, is not fatal to the development as it is possible to grant approval of the development if the Tribunal is satisfied of the two matters specified in cl 27(2) of the deemed provisions in the LPS Regulations being:
(a) the proposed development … does not conflict with the principles of orderly and proper planning; and
(b) the proposed development … would not prejudice the overall development potential of the area.
35 The respondent submits that the Tribunal ought not be satisfied that the proposed development does not conflict with the principles of orderly and proper planning because of the substantial number of uncertainties which exist both with respect to the planning framework and the development itself.
Planning framework
36 The respondent argues that both the Scheme and cl 15 of the deemed provisions in the LPS Regulations indicate that it is the presence of an adopted structure plan that will provide orderly and proper planning for land currently zoned Urban Development. However, the respondent acknowledges that there is a tension between the statutory provisions that indicate on the one hand that orderly and proper planning requires the adoption of a structure plan and on the other, the express provision permitting development in the absence of a structure plan, if it does not conflict with the principles of orderly and proper planning.
37 The respondent contends that in the absence of an approved structure plan orderly and proper planning will be difficult, if not impossible, citing Atlas Point Pty Ltd and Western Australian Planning Commission [2013] WASAT 33 where the Tribunal observed that a public planning process which permits the assessment of individual development applications against existing planning policies is 'at the heart of orderly and proper planning'. The respondent also cited Crown Castle Australia Pty Ltd and Western Australian Planning Commission [2008] WASAT 162 (Crown Castle) where the Tribunal accepted the evidence of the planning experts that the common and logical sequence in a Development Area, is for a local structure plan to be prepared, adopted and endorsed before a subdivision application is approved and that it is generally inappropriate to grant subdivision of land without the prior preparation, adoption and endorsement of a structure plan for the area. The respondent asserts that this general principle has application to development applications and that planning for the area should be in place before granting planning approval, as this is fundamental to the planning process.
38 In respect to Crown Castle, although the Tribunal in that review accepted the evidence of the planning experts regarding the preparation, adoption and endorsement of a structure plan, the Tribunal referred to the conferral of discretion available to approve a subdivision prior to a structure plan coming into effect, if the decisionmaker is satisfied that the development will not prejudice the specific purposes and requirements of the Development Area. The Tribunal acknowledged that although a local structure plan was generally required to guide and coordinate subdivision in Development Area 11, a local structure plan was not required in the particular circumstances of that case.
39 Further, as articulated by Pritchard J in Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 at [180], in order to be able to identify the 'proper' use of land you need to have regard to a broad range of planning legislation and instruments to inform the exercise of discretion. Pritchard J further opines at [181] that:
… 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.
40 The respondent places too high an emphasis on the absence of an approved structure plan. Clearly, the statutory provisions envisage some development being acceptable in spite the absence of a structure plan. Further, the planning framework encompasses a range of instruments that go beyond a structure plan and the merits of each case are highly relevant in the consideration of orderly and proper planning.
41 It is clear that although structure plans are planning instruments that may provide guidance in respect to the exercise of discretion in the consideration of orderly and proper planning and should be given due regard, they are but one of the many considerations required to be taken into account. The lack of such an instrument will not, depending on the particular circumstances of the case, necessarily result in development being refused on the basis of orderly and proper planning.
Amendment 80
42 Amendment 80, having been advertised under the LPS Regulations, is a matter to which due regard must be had under cl 67 of the deemed provisions in the LPS Regulations: Terra Spei Pty Ltd and Shire of Kalamunda [2015] WASAT 134 (Terra Spei).
43 As to the weight to be accorded to the consistency or otherwise between the application and the draft amendment, the Tribunal in Terra Spei reaffirmed the four principal criteria identified in Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117 (Nicholls), that should be applied to determine the weight which should appropriately be given to a draft amendment in planning assessment or appeal. The Tribunal went on to further say, 'that the list of criteria or considerations in relation to weight is not closed'.
44 The four criteria identified in Nicholls are:
1) The degree to which the draft addresses the specific application;
2) The degree to which the draft is based on sound town planning principles;
3) The degree to which its ultimate approval could be regarded as 'certain'; and
4) The degree to which its ultimate approval could be regarded as 'imminent'.
45 The respondent submits that minimal weight should be given to Amendment 80 at present, as its final adoption in the draft form advertised is far from certain and it could not be said that its final approval is imminent. The respondent argues that any one of the further steps in the amendment process that need to be completed before Amendment 80 can be finalised which includes the assessment of the 100 plus submissions by the Council (now completed), referral to and consideration of the amendment by the Western Australian Planning Commission (Commission) and final approval of the Minister for Planning, could lead to modifications being made and the amendment being readvertised. The Tribunal notes that the Council, at its meeting of 27 February 2017, resolved to support the finalisation of Amendment 80 in its current form, subject to the preparation and approval of a structure plan and the extension of Adelaide Street to Abernethy Road.
46 The respondent argued during the hearing that Amendment 80 addresses the specific application, only in a general sense, in that it proposes a light industry zoning over the subject land but it does not expressly or directly address either the proposed use or the form of development on the site. It submitted that it is far from certain that the ultimate form of Amendment 80 will permit the type of development proposed on the subject land and considered that it is very unlikely that the form of development proposed will be permitted on the site because of its location opposite to land zoned and used for residential purpose.
47 The respondent expressed the view that Amendment 80 may well need modification to better address a range of matters that arise from the submissions and closer inspection of the relevant issues. These issues include traffic and access, the interface with residential development on Stirling Crescent and use class permissibility which are issues that go to the merits of this development applications and the question of orderly and proper planning. Further, it was suggested that there were a number of deficiencies with Amendment 80 in that there a number of matters raised in the Scheme Amendment Report such as the concept plan and the recommendation contained in the Transport Plan, which were not reflected in the amendment. The respondent also considered that there is a real possibility that a structure plan will be required for the land, the subject of Amendment 80, because without it, matters such as lot sizes, road design and layouts, urban design form and desirable land use are absent. This position has been reflected in the resolution of the Council to support the finalisation of Amendment 80 subject to the preparation and approval of a structure plan for the amendment area.
48 The applicant says that Amendment 80 is a relevant consideration, particularly, as agreed by the planning experts, the subject land is effectively sterilised from being used in accordance with the objectives of the Urban Development zone due to the changes in the ANEF contours.
49 The applicant, at the hearing, contended that Amendment 80 is simply an amendment to rezone the land to light industry and it does not require any additional planning instruments to be put in place as there are already sufficient controls and standards existing in LPS 3 to deal with such issues. The applicant submits that the qualified support of the Council for Amendment 80 and the consequent rezoning of the subject land to light industry supports the approval of the proposed development.
50 Amendment 80 has been publicly advertised and is, therefore, a relevant matter for consideration in the exercise of planning discretion. The Tribunal is required by cl 67(b) of the deemed provisions in the LPS Regulations to have 'due regard' to Amendment 80 in this review.
51 Given the changes to the ANEF contours over the subject land and surrounding lots, the Tribunal considers that it is likely that the subject land will be rezoned to light industry, or a similar zoning that permits light industrial development. In addition, the support for finalisation of Amendment 80 by the respondent, notwithstanding the preconditions attached to the finalisation, is a further indicator.
52 The proposed development is consistent with the planning objectives of the Light Industry zone and is a use that is permitted within that zone and therefore some weight should be given to the consistency between the proposed development and Amendment 80. However, it cannot be said that the ultimate approval of Amendment 80 in its current form, is reasonably certain or reasonable imminent given that the views of the Commission and the Minister for Planning are unknown. Therefore, the Tribunal accords only limited weight to Amendment 80.
53 The respondent further asserts that approval of the proposed development is likely to prejudice the coordinated planning for and effective implementation of the rezoning of the subject land and as such is inconsistent with orderly and proper planning. The respondent argued at the hearing, that even if the land use of Storage is permissible, it is likely that new scheme provisions will be inserted that will effectively prohibit the form of development proposed, citing the Forrestfield/High Wycombe Industrial Area Design Guidelines, as an example of the sort of development standards that might generally be expected in modern industrial areas, particularly as the subject land is adjacent to residential development. Such modifications were not incorporated into Amendment 80 at the time of the respondent's consideration of the matter under reg 50(3) of the LPS Regulations.
54 The Tribunal does not consider that approval of the proposed development will prejudice the rezoning of the land to light industry as the proposed use is a permitted use in the Light Industry zone and if on the merits of the application the proposal warrants approval, such an approval would not conflict with the objectives of the that zone.
55 The Tribunal is, however, concerned that the proposed development may, if a structure plan is prepared that requires an internal road through the Scheme amendment area connecting Kalamunda Road to Adelaide Street, as shown in the transport report prepared by Flyt (see Exhibit 4), impede the implementation of that component of the structure plan and prejudice the coordinated planning for the area, if the land is rezoned light industry prior to the expiry of the temporary approval. The reason for concern is that pursuant to cl 61(2) of the deemed provisions in the LPS Regulations, '[d]evelopment approval of the local government is not required for … a use identified in [the] Scheme as a use that is permitted in the zone in which the development is located' and:
(i) the development has no works component; or
(ii) development approval is not required for the works component of the development[.]
56 Given that 'Storage' is a permitted use in the Light Industry zone and the works component of the proposed development would have been completed as part of the temporary approval, there would be no requirement to seek planning approval, at the expiry of the temporary planning approval for the continuation of the use. Therefore, the use could continue as of right without any regard to the structure planning for the area. Such circumstances, has the potential to impede the implementation of the structure plan which would be prejudicial to the coordinated planning of the area and inconsistent with the principles of orderly and proper planning.
57 This issue is, of itself, sufficient to warrant refusal of the application. However, the Tribunal raised with the parties whether the imposition of condition on an approval requiring the removal of all works associated with the development, at the expiry of the planning approval, is an appropriate solution to resolving the conflict identified. The following condition (draft proposed condition) was put to the parties:
All works associated with the development, and in particular the hardstand areas, are to be removed from the site at the expiration of the temporary planning approval and the site is to be rehabilitated to the satisfaction of the Shire of Kalamunda.
58 Both parties filed submissions and addressed the Tribunal in respect to this issue. It was common ground that a condition of the nature suggested by the Tribunal could overcome the continuance issue; however, the form of the condition was not agreed.
59 The applicant does not support the wording of the draft proposed condition and submits an alternative version for consideration. Firstly, the applicant argues that the draft proposed condition is not limited to only applying to circumstances where at the time of expiry of the temporary planning approval the use of the property for 'Storage' is a 'P' use. The applicant therefore, proposes to add a proviso to the draft proposed condition so that the condition reflects such circumstances.
60 Secondly, the applicant submits that it was not necessary to remove all of the works associated with the development in order to address the concerns raised by the Tribunal and that it is not necessary or reasonable to require that all of the works be removed at the expiry of the temporary planning approval. The applicant suggests that the condition could be amended to require the removal of some aspects of the works to prevent the continuation of the 'Storage' use and consequently, any reinstatement of the 'Storage' use would involve carrying out physical development which would trigger the requirement for a fresh planning approval. The applicant considers that this could be achieved by removing and preventing access to hardstand areas for any 'Storage' use.
61 The applicant's proposed alternative version of the condition is as follows:
If, at the expiration of the temporary planning approval, the use of Storage is a 'P' use for the zoning of the property, then upon the expiration of the temporary planning approval the owner is to:
(i) Remove or take up the access of the hardstand storage area with the areas shown hatched on the plan attached and marked 'A', and extend the landscaping strips across those area; and
(ii) Remove any gates to the crossovers from both Kalamunda Road and Stirling Crescent to the property and extend the boundary fence across the crossover openings, so as to prevent access to the hardstand area for any continued use of storage.
62 The respondent supports the Tribunal's draft condition and opposes the applicant's alternative for the following five reasons. Firstly, the appropriate premise for the condition is that development should be removed, unless it can be demonstrated at the time the temporary approval ends, that the hardstand is consistent with the planning framework which then applies. Secondly, the proposed condition operates on the premise that effectively all of the development works can be retained at the end of the temporary approval period. Thirdly, the appropriate way to permit the retention of the development works (if appropriate) at the end of the temporary approval is through either a new development approval consistent with the planning framework, or an application to amend or delete the condition pursuant to cl 77(1) of the deemed provisions. Fourthly, it is not unreasonable for the onus to be placed on the applicant to obtain a new or amended approval at the end of the temporary approval period. Fifthly, there is uncertainty as to whether the applicant's condition is necessarily adequate to prevent the continued use of the land for storage.
63 The applicant's proposed version of the condition attempts to minimise the necessary works to be undertaken by the applicant if, at the expiry of the temporary approval, the use of the site for 'Storage' is a 'P' to ensure that a further planning approval is required for the continuation of the use. It implies that as there is a requirement for the applicant to seek planning approval in all other instances, there is no need to require a condition that addresses the removal of the works.
64 The Tribunal does not support this premise. The development is being put forward as a temporary development and therefore, it would be reasonable to expect that the works associated with the temporary approval would, at the expiry of the temporary approval, be removed and the site reinstated to its original state. If, as the applicant suggests that the works associated with the development 'will inevitably be utilised in some form or another in the ultimate, permanent development of the property', it is the Tribunal's view that the correct approach to the obtaining approval for those works is by way of a new development application or an application to amend or delete the condition pursuant to cl 77(1) of the deemed provisions.
65 Further, the Tribunal is not satisfied that the condition as proposed by the applicant sufficiently protects the ability to implement the ultimate outcome of strategic planning that is currently anticipated at the end of the temporary use.
66 The Tribunal is satisfied that if the condition as suggested by the Tribunal is imposed, the removal of the associated works will ensure that the use is of a temporary nature and therefore, would not be inconsistent with the principles of orderly and proper planning and would not prejudice the future strategic planning of the area.
67 As an aside, the concern addressed above does not arise if Amendment 80 is modified to rezone the land to 'Industrial Development', and a structure plan and/or design guidelines are prepared, as there will be opportunity to reconsider the development in light of the new planning framework, as a further approval will be required because 'Storage' is designated as a 'D' use in the Industrial Development zone, and approval of such a use is subject to the exercise of discretion by the local government.
Whether the proposed development would have an adverse impact on the amenity of the surrounding residents
68 With respect to the visual amenity impact of the proposed development on the locality, it was agreed by the planning experts that the most affected lots would be the residential lots opposite the subject land on Stirling Crescent.
69 Mr Tayne Evershed, a town planning consultant, called on behalf of the applicant, considers that the hardstand areas are arranged on the site in a manner that have regard to the amenity of the surrounding residents, particularly those on Stirling Crescent and that the proposed development will not have an adverse impact on the visual amenity of the locality for the following reasons. Significant areas of the subject land remain undeveloped, including 75% of the Kalamunda frontage and 71% of the Stirling Crescent frontage; the portion of the site on the corner of Stirling Crescent and Kalamunda Road that is located opposite the residential lots will remain undeveloped, and a 1 metre landscape strip is to be planted along that portion of the Stirling Crescent frontage; the hardstand area that frontages onto Stirling Crescent is set back 9 metres and a 3 metre landscape buffer is to be planted along that portion of Stirling Crescent; the area to the northeast of the site is to remain undeveloped due to the presence of the wetland and associated buffer area; the hardstand area that fronts onto Kalamunda Road is set back 15 metres and a 3 metre landscape strip is to be planted along that portion of the Kalamunda Road frontage; and a 1 metre landscape strip is to be planted along the remaining portions of the Kalamunda Road frontage.
70 Mr Algeri in his witness statement at paragraph 50 states as follows:
As for subclauses (m) and (n) [of the deemed provisions] whilst I appreciate that the surrounding residents, particularly those situated opposite the subject land on Kalamunda Road and Stirling Crescent, have previously viewed the subject land as rural in nature due to its size and lack of development, it is not currently zoned as such (and nor is it under (sic) proposed under the amendment). Accordingly, development of the land whether it be urban development or industrial is, in my view, inevitable. To address visual amenity impacts a decision-maker can place conditions on any development approval to require adequate fencing and/or landscaping to reduce the impact on their views/amenity.
71 Further, Mr Algeri at paragraph 74.3 of his witness statement expresses the following view:
I am less concerned with any adverse impact on the amenity of the surrounding residents in terms of visual amenity, noise or any other emissions. These can be regulated by appropriate conditions of approval and it should not follow that because the land is currently in an undeveloped rural landscape it should remain that way. However, ifappropriate evidence suggests that the proposed vehicle access and egress to the land is inappropriate, then this could have an adverse impact on the safety and amenity of nearby residents in this regard.
72 The town planning experts agree, as does the Tribunal, that the visual impact of the proposed development on the locality, can be mitigated by the provision of landscape strips along Kalamunda Road and Stirling Crescent. The area of disagreement between the experts is the degree of visual permeability of the landscaping. This issue will be discussed later in the conditions section of these reasons.
Traffic and access
73 The Tribunal had the benefit of expert traffic evidence from Ms Marina Kleyweg, an architectural engineer, director and cofounder of KC Traffic and Transport Pty Ltd (KCTT), called by the applicant and Mr Behnam Bordbar, a traffic engineer and senior road safety auditor, called on behalf of the respondent who addressed issues relating to trip generation, road capacity and traffic impact and restricted access vehicles.
i) Trip generation
74 Ms Klegweg, from her analysis of traffic generation resulting from the proposed development, concludes that the traffic that is expected to be generated will vary over time, and that the maximum traffic impact is expected during the initial stage of the proposed development as the deployed mining vehicles and equipment are moved onto the subject land, with the vehicles movements declining as the subject site reaches capacity. This was not disputed by the respondent. However, Mr Bordbar expressed some concern relating to the stated traffic generation of the proposed development, as it is his view, that there is likely to be an underestimation of actual traffic generation, and that the facility is likely to generate far more larger trucks than estimated by KCTT. On Mr Bordbar's estimation, the proposed development was expected to generate an additional 97 vehicle trips during weekdays and 88 trips during Saturdays and that the daily trip generation would be spread through the day.
75 There was considerable evidence given by both experts on this issue on the first day of the hearing, however, it is unnecessary for the Tribunal to make any findings in respect to this issue as at the commencement of the second day of the hearing, the parties informed the Tribunal that they had agreed a condition that could be imposed if the Tribunal were minded to approve the proposed development, that would restrict the number of heavy vehicles movements (in and out movements combined) generated on any day to more than 20 vehicles.
ii) Road capacity and traffic impact
76 Mr Bordbar is of the view that both Kalamunda Road and Stirling Crescent currently operated over capacity, or at best close to capacity, and therefore, the increase in heavy and large vehicle traffic volumes associated with the facility, based on his estimates, is likely to undermine traffic operation and increase the risk of incidents on these roads.
77 Ms Kleyweg submits that the site has been designed to minimise traffic conflict as the site has one direction movement through the site, that is, all vehicles enter via a left in from Kalamunda Road and egress via a left out onto Stirling Crescent. The oneway movement through the site distributes traffic impact on two adjoining streets, and minimises opposing manoeuvring, particularly with heavy and oversized vehicles. Further, the location of the entry to the site is to the west of the crossover that leads to the retirement village, and therefore, will not conflict with residents exiting the retirement village.
78 Ms Kleyweg also argues that the latest 'Heavy Vehicle' traffic counts for Kalamunda Road records that there are 1,574 vehicle movements and that the maximum heavy vehicle movements generated by the proposed development, is less than 0.5% of the existing vehicle movements. She further submits that the total vehicle movements originating from the proposed development would represent approximately 0.1% of the total existing traffic movements on Kalamunda Road. It is her opinion, that the increase in traffic generation 'does not constitute' and cannot be described as having (or being a) 'detrimental impact' on the surrounding road network. As support for her position, Ms Kleyweg relies on comments of the respondent's officers contained in the Minutes of the Special Council meeting held on 29 August 2016, which states as follows:
Possible traffic congestion and safety impacts
Given the nature of the use will not attract high levels of traffic, it is not considered that it will generate congestion. In respect to safety, the Department of Planning have indicated that it has no objection to the use of an entry only crossover on Kalamunda Road[.]
79 On the traffic evidence, the Tribunal concludes that Kalamunda Road and Stirling Crescent operates at, or marginally above, the desirable design capacity for their agreed designated road classifications. As accepted by the respondent, the design capacity of road types are not hard and absolute figures but are guidelines as to what may be considered acceptable for particular road categories in combination with other criteria. Table 1 Metropolitan Functional Road Hierarchy Road Types and Criteria (an extract from Main Roads WA (MRWA) website on Function Road Hierarchy), as contained in Annexure BB3 of Mr Bordbar's witness statement, clearly identifies that traffic volumes are indicative and are only one of criterion used to determine which road type a road may be defined as falling within.
80 As to the concern raised in relation to road safety, there was no evidence to suggest that there is currently an issue in regards to road safety on either Kalamunda Road or Stirling Crescent, just an assertion from Mr Bordbar that additional traffic, especially heavy vehicles, will increase risk of incidents and exacerbate road safety. Mr Bordbar did not raise any issues about the swept path analysis that has been undertaken for the site but suggested that the best case scenario may not be achievable, as there may be difficulties with heavy vehicles entering the site due to stored equipment impeding access and thereby affecting the turning and movement of the vehicles, resulting in unsafe manoeuvring on Kalamunda Road. Under crossexamination, Mr Bordbar agreed that a condition delineating the internal path from the storage areas would resolve this concern.
81 Much of Mr Bordbar's evidence was based on his estimation of the likely traffic generation from the proposed development, however, during the course of the hearing, it was accepted that if the Tribunal was minded to approve the application, the applicant was prepared to accept a condition restricting the number of heavy vehicle movements to no more than 20 movements on any day. The Tribunal is satisfied that the relatively small increase in volume of heavy vehicle traffic generated by the proposed development, being less than 0.1% of the total existing traffic movements on Kalamunda Road, and approximately 0.14% on Stirling Crescent, together with the internal traffic configuration on the subject land, that proposed development will not result in any significant impacts on the functionality and road safety of Kalamunda Road or Stirling Crescent.
iii) Restricted access vehicle assessment
82 The movement of large and heavy vehicles in Western Australia is managed and controlled by MRWA in accordance with their Restricted Access Vehicles (RAV) Network framework and this framework provides classifications for RAV and establishes the RAV network. There are 10 different classifications for heavy and large vehicles depending on size, axle configuration and mass. The RAV network maps (RAV maps) show which RAV vehicles are permitted on which roads in Western Australia. The RAV maps show that only RAV 1 vehicles are permitted on Kalamunda Road and Stirling Crescent in the vicinity of the subject land. Class 1 RAV's are defined by MRWA as 'special purpose vehicles (for example cranes); agricultural machines or implements; vehicles carrying or designed to carry large indivisible items that are not road trains or Bdoubles, which together with their loads exceed a regulation mass or dimension limit': Annexure 6 to Exhibit 12. However, it should be noted that higher order RAV networks are available within 600 metres from the proposed development.
83 In Mr Bordbar’s opinion, the standard and function of Kalamunda Road and Stirling Crescent are not suitable for large heavy trucks, such as the 26 metre Bdoubles or 30 metre lowloaders which are proposed to be used to transport the mining equipment and vehicles to the subject land. On his assessment of the RAV network framework, Mr Bordbar concludes, and Ms Kleyweg agrees, that 26 metre Bdoubles and 30 metre lowloaders are not permitted to use the sections of Kalamunda Road and Stirling Crescent abutting the subject land. Mr Bordbar considers this to be 'a critical issue and a potential fatal flaw' for the proposed facility.
84 It was agreed by the traffic experts that in order for any vehicles above RAV 1, including 26 metre Bdoubles to access the subject land, the relevant sections of Kalamunda Road and Stirling Crescent abutting the subject land will need to be added to the RAV network, which requires approval from MRWA. According to Ms Kleyweg, there has been a recent change to the RAV Network application approval process. Applications are now submitted to the Main Roads Heavy Vehicle Services, who forward the application to the road owner, to undertake a preliminary assessment in this case the Shire of Kalamunda and return it to MRWA for their determination. She also referred to the introduction of a new process referred to as 'Restricted Local Access' Period Permit, which provides access to the final destination of a particular transport journey.
85 Mr Bordbar considers it is unlikely that the respondent would consider an application to amend the RAV network favourably, based on his evidence relating to road capacity, the unsuitability of the standard and function of the roads for large and heavy vehicles and the potential for road safety and amenity issues. He submits that if the support of the local government cannot be obtained, MRWA would be unlikely to change the RAV network. Relevantly, it is noted that at the time of Mr Bordbar making these statements, there had been no agreement by the applicant restricting the number of heavy vehicle movement on any day, and that he was relying on his estimation of road capacity and the ability of the roads to accommodate the estimated additional oversized heavy vehicle movement. In addition, the Tribunal also notes the reference to the Department of Planning advice to the respondent in respect to the application contained in the Minutes of the Special Council meeting of 29 August 2016 which states:
[i]n respect to safety, the Department of Planning have indicated that it has no objection to the use of an entry only crossover on Kalamunda Road[.] (Exhibit 2 Tab 6).
86 Further, it would appear that a new option referred to as 'Restricted Local Access' Period Permits have been introduced for 'cases where network access would ordinarily be declined, for example, when the road does not meet all relevant Route Assessment Guidelines, and applying reasonable conditions is unlikely to mitigate the risk': Annexure 11 of Exhibit 12. These permits provide access to the final destination of a particular transport journey, that being 'last mile access' and may be issued to a particular vehicle combination and/or length, with particular conditions relevant to the specific transport task.
87 In respect to 30 metre lowloaders and cranes, the Tribunal is told that these vehicles are classified as oversize Class 1 vehicles by MRWA and a special application is needed to be made to MRWA for every trip between origin and destination. For each application, full details of the load and travel route will need to be identified and MRWA will need to be satisfied that such load and vehicle can be accommodated within the identified route and the combination of the load and vehicle can satisfactorily negotiate all intersections along the route in a safe manner. As well, a traffic escort is required for the movement of all oversize vehicles. Mr Bordbar raises concerns as to whether approvals will be obtained from MRWA for oversize vehicles to access the subject land.
88 The respondent submits that the use of the oversized heavy vehicles should be regarded as a fundamental aspect of the development and that the ability of oversized heavy vehicles to lawfully and safely use Kalamunda Road and Stirling Crescent in the vicinity of the subject land is an essential aspect of the development. The respondent argues that the lack of appropriate RAV network for the relevant sections of Kalamunda Road and Stirling Crescent and the uncertainty on obtaining approval for oversized heavy vehicles to access the subject land are significant issues that may prevent implementation of the proposed development in its current form or it may not proceed at all.
89 The respondent contends that the applicant has a practical onus to demonstrate that there is a genuine likelihood the adjoining roads will be approved by MRWA for use by oversized heavy vehicles, otherwise, the application should be considered speculative and asserts that it is not consistent with orderly and proper planning to approve a speculative or hypothetical application, citing Hackney Hotel Pty Ltd and Town of St Peters (1983) 51 LGRA 243.
90 The applicant submits that temporary approval is being sought to utilise hardstand areas for the purposes of storing mining equipment associated with the mining industry, which is reflected in agreed draft condition (o), which states:
Only vehicles, equipment and machinery used in the mining industry (including dump trucks, bulldozers and crushers) may be stored on the site.
91 The applicant says that there is nothing in the application documents or the evidence before the Tribunal that indicates that in order for the proposed use to operate, there needs to be access to the site by heavy vehicles which will require additional approvals to use the road network. The applicant also relies on Ms Kleyweg's evidence, who when challenged on this point, said that there was the ability for equipment to be the transported to the site on trucks that can use the roads as of right.
92 The Tribunal does not consider the proposed development to be a speculative or hypothetical application as the approval sought is for the utilisation of hardstand areas for the purposes of storing mining equipment associated with the mining industry and, as articulated by Ms Kleyweg in her evidence, there is the ability for equipment to be the transported to the site on trucks that can use the roads as of right. The applicant submits that should the necessary approvals for use of oversized heavy vehicles not be obtained, it does not necessarily mean that the site cannot be used for the purpose for which it is proposed it will just mean that the equipment and machinery to be stored on site may need to be smaller, or alternatively, may need to be broken down into smaller components in order to be transported to the site, rather than transported as a whole.
93 Such a restriction will no doubt limit the size and/or type of mining equipment and machinery that could be conveyed to the site, but that does not alter the fundamental use applied for. It may lead to a conclusion that it is not a financially viable proposition for the applicant, but that is not a planning consideration, it is one for the applicant to grapple with. The Tribunal does not find that the possibility of the applicant not being able to obtain the necessary approval for oversized heavy trucks to access the subject land is fatal to the application.
Exercise of planning discretion
94 For the above reasons, the Tribunal is satisfied that the proposed development does not conflict with the principles and orderly and proper planning, and would not prejudice the overall development potential of the area and as such, considers that planning approval is warranted subject to the imposition of appropriate conditions.
Conditions
95 As required by direction of the Tribunal, the respondent prepared 'without prejudice' draft conditions (draft conditions) to be imposed if the Tribunal considers that approval of the application subject to conditions is appropriate. Thirteen conditions ((a) to (m)) were submitted of which the applicant agreed to nine of the draft conditions and objected to draft conditions (b), (c), (j) and (k). The respondent, in light of the applicant's response amended conditions (b) and (c) and two additional conditions (n) and (o) agreed to by the applicant, were included in the respondent's Amended Draft Conditions of Approval (Exhibit 15). Notwithstanding the modifications to conditions (b) and (c), the applicant still has issue with those conditions. The conditions in dispute are as follow:
(b) Pursuant to clause 72 of schedule 2 of the Planning and Development (Local Planning Schemes) Regulations 2015, the time for which this development approval is valid lapses five (5) years from the date of this approval.
(c) No restricted access vehicles [entering or exiting the site] may use] the portions of Kalamunda Road and Stirling Crescent contiguous to the subject site unless:
(i) the vehicle is permitted to drive on the RAV 1 network; or
(ii) the vehicle obtains permission from Main Roads WA to do so; or
(iii) the RAV network for the contiguous roads is changed following the date of this approval, and the vehicle is permitted to drive on the contiguous roads under the new RAV network.
(j) A detailed landscaping and reticulation plan for the subject site shall be submitted to and approved by the Shire of Kalamunda, prior to the commencement of the storage use. For the purposes of this condition, landscaping is required to be an appropriate species, density and maturity to mitigate the visual impact of the storage use on the adjacent residential areas.
Landscaping shall be completed in accordance with the approved detailed landscape plan prior to the commencement of the storage use and thereafter maintained to the satisfaction of the Shire of Kalamunda.
(k) Any fencing adjoining Kalamunda Road and Stirling Crescent shall be 1800 mm in height, of metal tubing framed vertical pale and horizontal rail fencing with powder coat finish. Further detail in compliance with this criteria shall be submitted as part of the proposed landscape and reticulation plan.
Condition (b)
96 The applicant seeks to amend the condition so that the approval lapses six years from the date of the approval to allow for a 12 month period for the commencement of the development and five years for the operation.
97 The respondent maintained that a fiveyear time frame is more appropriate given the potential for the proposal to prejudice the ultimate development of the area and that the condition be worded so that there is a period for substantial commencement of the development and a period of operation.98 The Tribunal in determining a suitable time limit for the temporary approval of the development considers that it is reasonable to take into account the time period likely to be required to complete the necessary works to enable the commencement of the use. However, it is also necessary to evaluate the impact of the timeframe on the realisation of the future plans and strategies for the area. In this instance, given that there is still considerable planning to be undertaken for the area to achieve the desired planning outcome, which includes finalisation of Amendment 80, preparation of a structure plan and the extension of Adelaide Street, it is reasonable to impose a condition that allows for and requires substantial commencement of the development within 12 months from the date on which the determination is made and a further condition limiting the period of time for which development approval lapses as five years from the date of commencement of the storage use.
Condition (c)
99 The applicant seeks the deletion of this condition. The applicant contends that this condition is inappropriate for two reasons. Firstly, it seeks to impose requirements that arise from separate legislation Road Traffic (Vehicles) Act 2012 (WA)(RT Act) and there is no need for a condition of planning approval that in effect merely mandates compliance with that legislation. Secondly, (i) and (ii) of the condition are matters that are not in the control of the applicant as approvals are obtained by someone other than the landowner or the operator of the use. The condition attempts to turn a breach of the RT Act by someone else, into a planning breach by the operator or landowner and exposing them to significant penalties applicable under the planning legislation.
100 The respondent acknowledges that the redrafted condition is deficient in that it does not refer to vehicles entering or exiting the site and that words to that effect need to be included in the condition. Further, the respondent accepts that it is usually and generally inappropriate and unnecessary to require in a condition something which is required under other legislation. However, in regards to this application, the respondent is concerned an approval granted by the Tribunal without such a condition, could be interpreted as the Tribunal giving an imprimatur to the use of the adjacent road by oversized vehicles. The respondent asserts that imposing the draft condition, as suggested, is one way of signalling that the matter is ultimately for and only for MRWA to determine.
101 The Tribunal in a number of decisions has articulated that it is generally inappropriate and unnecessary to impose a condition of planning approval that duplicates compliance with otherwise applicable legislative provisions: see Mann and City of Rockingham [2006] WASAT 115 (Mann); Hanson Construction Materials Pty Ltd and Shire of Serpentine-Jarrahdale [2012] WASAT 140; Caltex Australia Petroleum Pty Ltd and Town of Vincent [2010] WASAT 174. The Tribunal, in this instance, does not see any utility in imposing the condition as any restricted access vehicle requiring entry or exiting the subject land will be obliged to obtain the necessary permits specified in the RT Act. Further, the Tribunal is concerned that the imposition of a condition such as the one proposed may potentially result in the operator and/or the landowner of the subject lot being prosecuted under the PD Act for a breach that occurred under the RT Act by a third party. As expressed in Mann at [35], 'it is generally inappropriate to convert a noncompliance with an otherwise applicable legislative obligation into a breach of planning law. To do so might well involve altering the penalty which was considered appropriate by the legislature'. The Tribunal considers the condition fails to satisfy the first Newbury test for the validity of a condition of planning approval as endorsed by the High Court of Australia in Western AustralianPlanning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30 at [57], as the Tribunal does not consider the condition is for a planning purpose but for an ulterior purpose.
Condition (j)
102 The application seeks to amend the condition by deleting the following wording:
For the purpose of this condition, landscaping is required to be an appropriate species, density and maturity to mitigate the visual impact of the storage use on the adjacent residential areas.
103 The applicant is concerned that the words 'to mitigate the visual impact of the storage use' is open to interpretation and as such, could lead to further arguments between the parties at a later date. It is the applicant's preference for the landscaping not to act as a screen as it limits the opportunity for passive surveillance of the subject land.
104 The respondent maintains that the sentence indicates the purpose of the landscaping which is to mitigate the visual impact of 'an ugly development' on the adjacent residential areas. The respondent contends that it is an important part of the condition and that for the landscaping to be worthwhile, it should form an effective visual screen.
105 Clause 67 of the deemed provisions requires the decisionmaker of an application for development approval to have due regard to relevant matters, which include subclauses (m) and (n) (see [22]). The proposed development is a light industry use and the appearance of the onsite operations of the storage facility will have a detrimental visual impact on the adjacent residential uses, particularly those on Stirling Crescent. The intent of condition (j) is to ensure that the landscaping areas, as designated on the development plans, are landscaped to a standard that mitigates the visual impacts of the appearance of the proposed use on the adjacent residential areas.
106 The most relevant definition of the word 'mitigate' in The Macquarie Dictionary (6th ed, 2013) at page 942 is as follows:
… to moderate the severity of (anything distressing).
107 The desire of the applicant for the landscaping not to act as a screen so that the opportunity for passive surveillance of the subject land is not limited, is contrary to the desired objective which is to 'moderate the severity' of the visual impact of the onsite activities from the adjacent residential area. The Tribunal is satisfied that the condition has a planning purpose, that the condition fairly and reasonably relates to the development and is not so unreasonable that no reasonable planning authority could have imposed it (Newbury test). It would appear that there could be some doubt in the future as to the meaning of 'to mitigate the visual impact of the storage use', therefore the words 'to provide an effective visual screen' should be included to provide clarity.
Condition (k)
108 The applicant seeks to amend the condition by deleting the requirement for the fencing to be 'metal tubing framed vertical pale and horizontal rail fencing with powder coat finish', and amending it to be 'black plastic coated metal chain link fencing'. The applicant accepts that there is a greater basis for arguing for a higher standard of fencing along Stirling Crescent because of the more direct interface with the residential use. However, it does not accept that there is a need for such fencing on the Kalamunda Road boundary for the following reasons. The Kalamunda Road is a high traffic volume road; the adjacent retirement village does not interact with Kalamunda Road; and the proposed fencing reflects the existing fencing on the boundary to Kalamunda Road on the properties to the north.
109 The respondent says that chainmesh is not acceptable as a perimeter fence, whether on Kalamunda Road or Stirling Crescent because in a modern industrial area in an urban setting, it is visually undesirable. Mr Algeri considers that the style of fencing sought by the respondent is fairly typical of modern industrial area and is appropriate for this development.
110 The Tribunal understands that there is a need to provide security for the operations without compromising the visual quality and overall character of the streetscape. The Tribunal considers the standard of fencing along the Stirling Crescent frontage should be of a standard that minimises the visual impact on adjacent residential properties, and therefore, the standard specified in the proposed conditions should be imposed. As to the Kalamunda Road frontage, the Tribunal is satisfied that black plastic coated fencing is adequate given the nature of Kalamunda Road itself, that the adjacent residential use does not overlook the subject and that approval for the use is for a temporary period.
Conclusion
111 The application for review should be allowed and the determination of the respondent set aside and a decision substituted that planning approval is granted subject to conditions.
Orders
For the above reasons, the Tribunal makes the following orders:
1. The application for review is allowed.
2. The decision of the respondent made on 1 September 2016 refusing to grant planning approval for proposed hardstand and temporary storage on No 584 (Lot 200) Kalamunda Road, High Wycombe, is set aside and a decision is substituted that planning approval is granted for the temporary use of No 584 (Lot 200) Kalamunda Road, High Wycombe, for storage of mobile and fixed mining equipment and for the construction of hardstand areas as shown on plan 5 August 2016 (Annexure 1), subject to the following conditions:
(i) The development shall be carried out only in accordance with the terms of the application as approved here in, and any approved plans.
(ii) If the development, the subject of this approval is not substantially commenced within a period of 12 months from the date of the Tribunal's orders, the approval shall lapse and be of no further effect.
(iii) Pursuant to cl 72 of Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA), the time for which this development approval is limited to a period of five (5) years from the date of commencement of the storage use unless otherwise approved by the Shire of Kalamunda.
(iv) Prior to the commencement of any development, a wetland management plan is to be prepared and approved to ensure protection and management of the sites environmental assets with the satisfactory arrangements been made for the implementation of the approved plan.
(v) Stormwater shall be disposed of onsite to the specification and satisfaction of the Shire of Kalamunda.
(vi) Prior to the commencement of the storage use, crossovers shall be designed and constructed to the specification and satisfaction of the Shire of Kalamunda.
(vii) The hard stand areas indicated on the approved plan as 'Area A' and 'Area B' shall be suitably constructed, sealed, delineated and drained to the satisfaction of the Shire of Kalamunda, prior to the commencement of the storage use.
(viii) Suitable signage and line markings shall be placed within the site to ensure that the crossovers are used as left in only from Kalamunda Road and exit from Stirling Crescent.
(ix) Any future redundant septic sewer systems including all tanks, pipes and associated drainage systems (soak wells or leach drains) are to be decommissioned, removed, filled with clean sand and compacted. The applicant must provide a statutory declaration to the Shire of Kalamunda stating that the site has been inspected and all effluent disposal systems have been removed. A pro forma for this declaration is available from the Shire of Kalamunda.
(x) A detailed landscaping plan and reticulation plan for the subject site shell be submitted to and approved by the Shire of Kalamunda, prior to the commencement of storage use. For the purposes of this condition, landscaping is required to be an appropriate species, density and maturity to provide an effective visual screen to mitigate the visual impact of the storage use on the adjacent residential areas.
Landscaping shall be completed in accordance with the approved detailed landscape plan prior to the commencement of the storage use and thereafter maintained to the satisfaction of the Shire of Kalamunda.
(xi) Any fencing adjoining Stirling Crescent shall be 1800 millimetres in height, of metal tubing frame vertical pale and horizontal rail fencing with powder coat finish. Any fencing adjoining Kalamunda Road shall be 1800 millimetres in height, of black plastic metal chain link fencing. Further detail in compliance with this criteria shall be submitted as part of the proposed landscape and reticulation plan.
(xii) Any external lighting shall be positioned and designed so as not to adversely affect the amenity of the locality, to the satisfaction of the Shire of Kalamunda. Further detail of any proposed lighting shall be submitted as part of the proposed landscape and reticulation plan.
(xiii) Only vegetation required to be removed to facilitate the construction of the hard stand and storage area is permitted to be removed by this approval. All other trees and other vegetation shall be retained unless otherwise approved by the Shire of Kalamunda.
(xiv) The development may not on any day generate more than 20 vehicle movements (in and out combined) by heavy vehicles (that is, any vehicle which does not fall within Austroads vehicle class 1 or 2). This condition does not limit movements by Austroads class 1 or 2 vehicles.
(xv) Only vehicles, equipment and machinery used in the mining industry (including dump trucks, bulldozers and crushers) may be stored on the site.
(xvi) All works associated with the development and in particular the hardstand areas, are to be removed from the site at the expiration of this temporary planning approval and the site is to be rehabilitated to the satisfaction of the Shire of Kalamunda.
I certify that this and the preceding [111] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS M CONNOR, MEMBER
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