JOYNSON and SHIRE OF CAPEL - [2020] WASAT 21

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION:   JOYNSON and SHIRE OF CAPEL [2020] WASAT 21
MEMBER:   MS L EDDY, SENIOR MEMBER
MR S WILLEY, MEMBER
MR P CURRY, SENIOR SESSIONAL MEMBER

HEARD:   24 MAY 2019, 4 JULY 2019, 12 OCTOBER 2019 AND 23 AND 24 OCTOBER 2019
DELIVERED          :   12 FEBRUARY 2020
FILE NO/S:   DR 267 of 2017
CC 1953 of 2018

BETWEEN: SHAYNE DOUGLAS JOYNSON
Applicant
AND
SHIRE OF CAPEL
Respondent

Catchwords:

Town Planning - Development application - Extractive industry licence - Proposed sand extraction business - Dieback infected sand - Conditions to deal with noise and odour - Road safety - Experts agreed access had safety concerns - Whether should impose condition requiring applicants to enforce a no right turn system - Turns on own facts

Legislation:

Greater Bunbury Region Scheme
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, cl 67
Shire of Capel Local Planning Scheme No 7, cl 3.2, cl 5.7.1, cl 5.7.2, Appendix 2
State Administrative Tribunal Rules 2004 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant	:	Nicholas Dillon and AJ Foster
Respondent	:	PL Wittkuhn and S Wade

Solicitors:

Applicant	:	AJ Foster
Respondent	:	McLeods

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

Gosford Shire Council v Anthony George Pty Ltd (No 2) (1968) 16 LGRA 165
Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100; 39 SR (WA) 119

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

Mr Shayne Douglas Joynson (applicant) applied to the Shire of Capel for development approval under the Shire of Capel's (respondent or Shire) Local Planning Scheme No 7 (Scheme or LPS 7) to carry out sand extraction at his property at Lot 1 (also known as location 1650) South Western Highway, North Boyanup (site) in May 2012. He also applied for an extractive industry licence under the Shire of Capel's Extractive Industries Local Law 2002 (now replaced with Extractive Industries Local Law 2016). After some discussions occurred between the applicant and the respondent's officers, the applicant lodged a significantly revised proposal (proposed development) with the Shire in July 2016. Although, the Shire's planning officer recommended approval of the development application, the Council of the Shire refused the development application in July 2017. The Council did not pass any resolution in relation to the extractive industry licence application.
In August 2017 (and within the time allowed under the State Administrative Tribunal Rules 2004 (WA)) the applicant lodged an application in the Tribunal seeking review of the respondent's decision in relation to his development application (DR 267 of 2017). In June 2018, following the Tribunal's invitation to reconsider its decision, the Shire again refused to approve the proposed development. Again, the Council of the Shire did not pass any resolution in relation to the extractive industry licence application, other than to decline to adopt the officer's recommendation to approve that application.
In September 2018 (again within the time allowed), the applicant lodged an application in the Tribunal seeking review of the respondent's decision not to approve his application for an extractive industry licence (CC 1953 of 2018). Ultimately, the Tribunal made orders that the two applications, DR 267 of 2017 and CC 1953 of 2018, were to be heard and determined together. These reasons, and the decision, deal with both matters.

Site and locality

The Tribunal conducted a view of the site and locality. The locations visited by the Tribunal are shown by pin marks on a Google Earth Map of the locality: Exhibit 1. At the site, the Tribunal observed the entry to the site from South Western Highway, proceeded up the driveway to the internal parking area in the site, near to the residence and the nearby office building. The Tribunal members were then driven to the area of the site where the proposed development is intended to occur. The Tribunal observed the process of sand being extracted and loaded into a truck, ready to be transported to a hypothetical customer.
The Tribunal then drove through the nearby Rosecliffe Estate and stopped at a horse racing track within the Rosecliffe Estate. Pin No 3 on the map was not visited as it could not be accessed because of a closed road. Pin No 4 is a location at the edge of the Rosecliffe Estate. The view then proceeded by traveling back along the South Western Highway, stopping near the intersection with Brookdale Road. We travelled down Brookdale Road, up Fowler Road and then turned right onto Kilpatrick Road, stopping in the approximate location of Pin No 6. The view then proceeded along the rest of Kilpatrick Road and turned right onto South Western Highway and pulled into the information bay, which is marked with Pin No 8. We proceeded back onto the South Western Highway and proceeded through the main road of the Boyanup town site, where the view was concluded.
The uncontradicted evidence of Mr Henry Dykstra and Mr Kelvin Oliver (both town planning consultants) in relation to the site and locality is as follows.
The site is just over 29 hectares in area, and has a frontage to the South Western Highway of just over 500 metres. It is located in a Rural zone. The immediate neighbouring lots are also zoned Rural and are largely involved with typical rural farm type activities. Approximately 500 metres from the site's western boundary is Rosecliffe Estate, which is a parcel of lots that are zoned Special Rural. In this Estate is approximately 40 to 44 lots, which are generally approximately 2 hectares in area.
Kilpatrick, Brookdale and Fowler Roads are all gravel roads, mostly servicing rural properties and have signposted warnings of dust risk. There is an existing extractive industry in the area that utilises Brookdale Road for access and egress.
Within the site, there are two elevated areas, one of approximately 40 metres Australian Height Datum (AHD) and the other approximately 30 to 35 metres AHD. It contains an existing single storey dwelling, a large shed and various other outbuildings accommodating a plant hire business currently operating from the site.

Applicant's development proposal

The proposed development, as described in the Ordinary Council Minutes (Minutes) of 26 July 2017 (Exhibit 3, tab 21), contemplates sand extraction from an area of 7.53 hectares from the central existing raised area of the site. It is proposed that sand would be extracted in stages, with annual removal of a maximum of approximately 17,000 cubic metres. Extraction of sand is to cease with final finished floor level of 30 metres AHD, which will remain 2 metres above the highest winter water table level.
The proposed operating hours are 7 am to 4 pm, Monday to Saturday. It is proposed to address any potential dust generation by the use of water spraying. The truck movements associated with the proposed development are identified as a maximum of 10 truck movements per day expected. Mrs Sharon Deirdre Joynson, wife of the applicant and co-owner of the site, said that the applicant will be deploying two of his own vehicles for the purposes of delivering sand and hopes to largely deliver the sand to the customer. However, if a customer wished to send a truck to the site in order to collect sand, the applicant would not refuse such a sale.
The extraction area contains Banksia woodland which is infested with Phytotphthora cinnamomi (dieback) disease.
In the Minutes, access to the site is identified as being directly off South Western Highway. However, it is noted that plans have been prepared and approved for an upgrade to the Highway to add a turning pocket to the southbound land, which was a condition of a previous development approval for the site. In recommending approval of the proposed development, the respondent's officer who authored the report plainly considered that this access would be constructed and utilised for trucks accessing and egressing the site.
The applicant's position at hearing was that the road upgrade had not been proceeded with because shortly after obtaining development approval, the applicant decided he would not continue with that proposal as it was not commercially viable. The applicant objects to being required to carry out the road upgrade in order to proceed with this proposed development, because he says that it is disproportionately expensive compared to the profits that he is likely to make from the proposed development given its very limited nature (Mrs Joynson said that the costs of the road upgrade will be in the range of up to $250,000). Instead, the applicant proposed several different mechanisms for southbound trucks to access the site. His preferred position is that he would enforce a noright hand turn into the site rule. It was submitted that mostly the applicant would be driving the trucks mostly himself. When people other than himself were going to attend the site to pick up sand, he would instruct them that they could not turn right into the site and would have to work out how to enter the site using the public road system, without doing so. It was submitted that this could be achieved in any number of ways: using a different approach so as to not approach from the north; using Brookdale, Fowler and Kilpatrick Roads to make a loop in order to approach the site from the south instead of the north; turning around using a parking lot or other roads within the Boyanup town site; or using the nearby information bay to turn around. The applicant submits that the Tribunal need not concern itself how the no-right turn rule would be managed, so long as the trucks utilised the public road system, which they are free and legally able to do.
Mrs Joynson said in her evidence that the applicant will deal with the presence of dieback on the site by warning customers that the sand is potentially infected and by providing a wash down area for trucks to be cleaned before leaving the site. In her oral evidence, Mrs Joynson said that the applicant would sell sand to any type of customer, including a landscaping business or a nursery selling sand for soil mixing.
In relation to noise, Mrs Joynson said that the applicant would create a loop road near the extraction site to allow trucks to turn around without reversing, therefore reducing any potential for noise. She said that a single front loader will conduct the extraction work, and it will not involve any blasting, crushing or the use of metal screening, excavation buckets or any processing activities.
The applicant seeks approval for the sand extraction on a temporary basis for a period of eight years.
The applicant has the relevant approval to clear the land that is intended to be the area from which sand is to be extracted. There is a revegetation plan and the extraction area is to be replanted as each stage of extraction is completed.

Planning framework

Mr Oliver and Mr Dykstra did not disagree in relation to the applicable planning framework, and the following is largely taken from one or both of their witness statements and from the respondent's Statement of Issues Facts and Contentions, which were not disputed by the applicant. The Tribunal accepts that this is the relevant planning framework that the Tribunal must have due regard to in determining the merits of the proposed development.
The site is zoned Rural in LPS 7 and is also identified with a notation 'A9' in the Scheme Map. The 'A9' notation is a reference to 'Additional Use' provisions under LPS 7, which apply to this site. The additional uses that are permitted on the site are not presently relevant. The site is also zoned Rural in the Greater Bunbury Region Scheme (GBRS). Having said that, the Tribunal has no evidence that any development application under the GBRS was made by the applicant. There is only a Scheme application form in Exhibit 3, tab 5. Although that form is not currently the correct form on which to lodge a local planning scheme development application, it was the correct form at the time it was lodged, so nothing turns on this.
Clauses 5.7.1 and 5.7.2 of LPS 7 provide the objective and 'policy' for the Rural Zone, they provide:
5.7.1Council’s objective in the assessment of subdivision referrals and management of land uses in the Rural Zone is to preserve the character of the rural area, discourage the removal of prime agricultural land from agricultural production and prevent adverse Effects on the continuation of established or potential agricultural industries.
5.7.2Council’s policy in assessing applications for Planning Consent, or referrals from the Western Australian Planning Commission of subdivision applications, will be to have regard to:
(a)The objective set out in Clause 5.7.1 and any policy document adopted pursuant to Clause 8.9 of the Scheme which is directed at achieving that objective;
(b)The need to provide for land to be held in lots that are suitable for the long term use of the land for Rural Pursuits, and in particular applications for subdivision of Rural land should demonstrate the facilitation of ongoing farming of the land;
(c)The availability of services required to support the proposed development or subdivision and the economic impact of the provision, extension or upgrading of those services that may be required;
(d)The adequacy of the roads, existing or proposed in the area, which may be needed to support the amount of road traffic expected to be generated by the development or subdivision; and
(e)The need to impose such conditions as Council deems appropriate in order to minimise any adverse effect the development or subdivision may have on the environment of the area.
The proposed development comes within the meaning of 'Industry Extractive' as defined in LPS 7, which use is an 'AA' use in the Rural Zone. In LPS 7, 'AA' means that 'the use is not permitted unless the Council has granted its planning consent'. The 'Industry Extractive' use is prohibited in all land use zones other than the Rural Zone: cl 3.2 and Appendix 2 of LPS 7.
Clause 67 of Sch 2 (deemed provisions) to the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regulations) (deemed provisions) provides the matters to which a decisionmaker must have due regard when determining a development application. Relevant to this matter are paragraphs (a), (b), (c), (m), (n), (o), (q),(r), (w) and (y). The term 'amenity' is defined in the deemed provisions as 'all those factors which combine to form the character of an area and include the present and likely future amenity'.
A relevant State planning policy is State Planning Policy 2.4 Basic raw materials.
The Environmental Protection Authority published Guidance Statement No. 3: Separation Distances between Industrial and Sensitive Land Uses in 2005 and this is commonly referred to ascertain guidance about the generic distance that should be provided as a buffer between different types of industry and sensitive land uses such as residential dwellings.
The Shire has adopted a 'Land Use Strategy', which is dated April 1999 (Strategy). One of the identified development pressures in the Strategy is the need for heavy minerals and other resources: cl 2.2.1.5.
At cl 3.2.1 it is stated that:
Mineral Sand mining is a catalyst for significant industrial activity within the Shire[.]
In cl 3.2.2 of the Strategy it is stated:
The report of the Advisory Committee on Industrial Sites in the South West identified two future industrial areas in the Shire in locations centred around the existing mineral sands processing factories at North and South Capel. It is envisaged that these localities have potential to accommodate greater downstream processing of mineral sands or specialist agricultural products/food processing industries. If and when an industry falling within these categories wishes to locate to the area a detailed study of environmental implications will be required. In particular some sections of the suggested south Capel area will have constraints due to wetlands and the Bunbury/Wellington Region Plan has subsequently deleted this area as a future option. The remaining northern area is identified on Plan No. 3.
…
The mining of heavy mineral sands is set to continue within the Shire for the foreseeable future. Substantial areas are subject to exploration or mining leases and depending on demand and value of the minerals will be subject to mining activity. The intensification of land uses in rural areas will need to be managed to minimise the loss of opportunities to mine in the future. Prospective areas are not identified in this report for commercial reasons but consultation with the Mines Department and key mining companies active in the area will be required when land use plans are being prepared.
Interestingly, at cl 3.4.2.2 the Strategy seems to assume that extraction industries might take priority over subdivision of rural land into special rural, but that such land would become special residential after extraction of the mineral sands in areas around the town site of Boyanup.
There is a document that was prepared by a Dieback Working Group and published in 2005 entitled Best Practice Guidelines: Management of Phytophthora Dieback in Extractive Industries. This document is commonly referred to by relevant experts in preparing management plans for extractive industries that involve phytophthora infected, or potentially infected, resources.

Issues

The parties are substantially in agreement about the main issues that need to be determined, having regard to the above planning framework, in order to determine whether or not the proposed development should be approved or refused. While the relevant matters from cl 67 of Sch 2 to the LPS Regulations have been identified by reference to paragraph numbers, in essence the main issues in dispute can be distilled as follows.
·Whether the proposed development is acceptable in terms of the risk of spread of dieback?
·Will the amenity of the locality be adversely impacted by dust impacts, noise impacts or in any other way by the proposed development? If there are any impacts from dust or noise, what is necessary to ameliorate those impacts appropriately, if the proposed development should otherwise be approved?
·In the course of the hearing another particular aspect of amenity came into focus; that of the potential impact on the locality if trucks accessing and egressing the site used any of the local unpaved roads.
·Finally, there is the issue of the safety.
Accepting that these matters are the main aspects of the proposed development in dispute and that resolution of these issues will in effect involve having due regard to the relevant matters listed in cl 67 of Sch 2 of the LPS Regulations, the Tribunal will deal with the evidence in relation to each of these issues in turn before determining the ultimate question of whether the proposed development should be approved or refused.

Dieback

Dr Paul Anthony Barber, Mr Evan Peter Brown and Ms Kirsten Muir Thompson provided written and oral evidence to the Tribunal in relation to the issue of dieback in relation to the site and potential risks to others if sand infected with dieback is sold and used elsewhere in the State. While the experts' original positions where quite dissimilar, after a conferral of the experts in their joint experts' report, and at the hearing they agreed on a number of things. The Tribunal accepts their evidence on these matters and accordingly makes the following findings of fact.
Dieback exists on the site and has been confirmed through laboratory samples at two locations to the south and west of the highest point on site. It is likely that the distribution and extent of dieback at the site has changed since the time that the plant ecology consultancy firm named 'Ekologica' conducted an assessment of the site (as reported in document ABD 1 of Exhibit 12, which is dated March 2012). The dieback would have spread between 1 to 8 metres up the 'hill' (elevated portion of the site). The proposed development does not constitute a risk to the soils and ecological values on the site. The dieback management plan, as amended by Dr Barber and Mr Brown in their joint experts' report (Exhibit 27) is sufficient to ameliorate the risk of spreading dieback within the site or outside of the site. Dr Barber accepted at the hearing that the existing dieback management is sufficient to prevent the spread of dieback from the machinery being used on site and then leaving the site.

There is a risk of movement of dieback off the site through the sale of product that is infested with the disease. While the experts do not agree in relation to the level of that risk or the need to further ameliorate it, they agreed that it could be ameliorated by:
a)the creation of a pubic register held by the Shire that records all sites infected with dieback;
b)relevant State departments being notified of infested sites;
c)signage being required at the entrance of the site to notify of the existence of dieback on the site;
d)requiring information letters to be provided to all customers purchasing the dieback infested material notifying them of the risks of dieback and how to manage the material to mitigate and minimise these risks;
e)having an online tracking system controlled by the Shire which tracks where material is taken to and other details,
f)if infected products are to be transferred on from the original customer, this information is to be required to be put into the tracking system;
g)another written register maintained by the applicant recording where material is sold to with notification to the purchasers that the register and tracking system exist and will hold relevant details; and
h)information from the applicant's register being required to be submitted to the Shire annually.
The only usual requirement that has been applied as a condition of approval for excavation developments where dieback exists on lots elsewhere to date has only been a requirement to notify all clients that the product is infected with dieback.
There is always a risk of the spread of dieback where dieback infected soil products are sold. The fact that that risk exists is why the experts proposed the use of a register and tracking system that could further reduce that risk. However, a register and a tracking system only provide information; they it does not prevent the product being used improperly.
There is a document that was developed by the 'Dieback Working Group' that was published on an unidentified date that is entitled 'Best Practice Guidelines' (Guidelines) that requires specified actions, with which the applicant's dieback management plan largely accords.
There were two main areas in dispute between the experts. First, whether sufficient testing had been performed on the site, in accordance with the Guidelines, to identify with sufficient certainty the exact extent of dieback on the site. Second, whether or not all of the adjacent properties could be properly identified as being infected with dieback already. The Tribunal is not persuaded that either of these things is of any significance in the resolution of this matter; the first matter because all of the experts accepted that the dieback management plan treated the site as infected in its entirety. The Tribunal does not see, and was not given any reasonable explanation, as to why the exact extent of the dieback must be understood when the site is to be treated as fully infected in any event. The Tribunal accepts that the assessment of the site does not comply with all of the requirements of the Guidelines as Dr Barbour asserts, but cannot see, in the circumstances of this case, and given the matters agreed by the experts, that it is relevant to the resolution of the issues before us. Dr Barbour asserted that proper assessment of the dieback by a suitably qualified expert would assist in rehabilitation of the site. Dr Barbour did not provide any substantive statement in support as to why and how this would be so. In light of the agreed evidence of the experts, and in light of the fact that the parties did not raise as an issue a potential problem for rehabilitation if further assessment was not done, we do not accept that further testing of the site for dieback has any significant bearing on the merits of the proposed development.
In relation to the second matter, the agreed expert evidence is that it is possible to manage the risk of infection of adjacent sites to some degree, but that given the way dieback spreads the dieback may well spread onto these sites in any event, and the proposed development does not do anything to accelerate or increase that risk. Again, this matter does not impact the resolution of the issues before us in this case.
The respondent submits that the initial dieback management plan was insufficiently site specific to appropriately deal with the risks related to the presence of dieback on the site. It asserts that the dieback management plan that is in the Geolatry plan is appropriate, subject to the amendments proposed by the experts in the joint experts' report see tab 19 of Exhibit 3. If the proposed development is approved, a condition should require compliance with this plan. In addition, the respondent submits that the applicant should be required to undertake further dieback assessment by a qualified dieback assessor in accordance with the Guidelines. As indicated above, the Tribunal does not accept this last suggested requirement would be necessary, should the proposed development be otherwise approved.
The applicant proposes that he should comply with the Geolatry dieback management plan, as amended by requiring that customers be informed on invoice stationary that the extracted material is potentially dieback infested, of the risks of dieback and how to manage the material to minimise or mitigate the risks.
The agreed position of the experts in the joint expert report was that the Geolatry dieback management plan was appropriate if it included risk mitigation methodologies aimed at preventing the spread of dieback to adjoining properties or to sites in receipt of sand. However, as indicated above, in oral evidence, no basis was established for the need to mitigate risk to the adjoining properties based on the proposed development. This risk is caused by the presence of dieback pathogens in the land. The Tribunal is persuaded that the applicant's position in relation to conditions that relate to dieback is consistent with the evidence before the Tribunal.

Dust

The respondent submits that the issue in relation to the potential impact of dust can be managed by appropriate conditions, but argues that the condition it proposes is required, as opposed to the one that the applicant proposes.
The respondent proposes the following:
…
(e)The dust management plan contained within the Applicant's bundle at ABD 5. shall be modified in accordance with the changes as shown in Appendix B[.]
APPENDIX B: modifications required to Dust Management Plan

Timing	Management Measure
During Clearing, excavation and rehabilitation activities and also when no active excavation is occurring but cleared areas and/or access roads or tracks are potentially exposed to dust uplift by wind	Stockpiles, where possible, will be limited to the anticipated cubic volume / vehicle movement for cartage on the following day.
	Stockpiles will be configured to accommodate easy access for watering/dust minimisation, if required
	The following areas associated with the extractive industry: internal roads and tracks, parking areas, lay-down areas, overburden materials from clearing activities, stockpiles, immediate extraction areas and exposed areas will be watered as required with water carts and / or hoses and / or other suitable equipment.
	With regard to overburden material from clearing activities will be stabilised as required. Stabilisation techniques that will be considered depending on environmental conditions will include hydro-mulching.
	Timing of earthworks (daily and seasonally) will coincide with periods of low wind velocity as far as practicable. This will especially need to be considered during summer with the prevailing easterly winds.
	Truck loads to be covered by tarpaulins or similar.
	Visual monitoring of dust will be ongoing throughout the day during operations. When dust emissions are observed, dust suppression measures (such as water sprays) will be implemented immediately. Instances of visible dust from extraction of loading operations, or dust uplift from expose sand areas or access roads, passing beyond lot boundaries, shall be regarded as an unsatisfactory dust outcome requiring remedying unless due to exceptional and unforeseen circumstances on isolated occasions.
	As far as practicable, excavated material shall not be dropped from the front-end loader bucket from a height in excess of 0.5m above: (a) The lip height of a truck’s tipper or semi-trailer in the case of loading activities; (b) The screening apparatus; or (c) Any other surface.
	Dust monitoring may be required should Shire officers decide that dust emissions are excessive or potentially hazardous.
	· Erect on-site signage directing public to make complaints to the relevant person, including their contact details. · Maintain a complaints register (refer to Table 2) unless otherwise specified. A Complaints Register will be established for the site to record the date, nature, and resolution action of any complaints. · Complaints will be directed to the site supervisor for resolution. If the complaint is verified as being due to a site source, remedial action will be undertaken within 2 hours. The Shire of Capel will be advised of all complaints as soon as they are received. · If a compliant cannot be resolved within the 2 hour response period, it may be necessary to cease operations.

The applicant asserts that the appropriate condition needed to ameliorate any dust impacts is:
(d)The dust management plan contained within the Applicant's bundle at ABD 5, shall be modified in accordance with the changes as shown in Appendix B.
The Tribunal had evidence from Ms Kirstin Muir-Thompson, Ms Sue Reed and Mr Peter Di Marco in relation to the issue of dust. The experts conferred prior to the hearing and the following matters were agreed between them.
Water carts can be used for suppressing dust on roads, parking areas, stockpiles, working pit area and exposed areas. There are no operations that cause dust that water carts are not capable of supressing. Water carts in conjunction with other dust suppressive measures (such as water spraying) will adequately address dust generation provided the measures are sufficiently implemented, that is, when dust is visible. The applicant's Dust Management Plan, if amended to include a requirement that 'as far as practicable, excavated material should not be dropped from a height in excess of 0.5 metres from the front-end loader bucket onto a surface and to include the matters the experts identified in attachment 1 to their joint report (Exhibit 21), satisfactorily addresses dust emissions potentially caused by the proposed development.
The Dust Management Plan as amended by the experts is as follows:
…
(b)The approval being limited to 8 years from the date of orders by the State Administrative Tribunal in proceeding DR 267 of 2017 granting Development Approval.
(ba)This approval shall lapse if the development is not substantially commenced within two years of the date of orders by the State Administrative Tribunal in proceeding DR 267 of 2017 granting Development Approval.
(c)Prior to the commencement of development South Western Highway being upgraded in accordance with approved drawings by Coates Civil Consulting, drawing numbers SPR003-D01 to SPR003-D07.
In relation to the applicant's proposal that a complaints register should not be required to be maintained, it was not supported by any of the experts. Ms Muir-Thompson said that she considered this was important so that it was possible to monitor whether there was any perception of a problem caused by dust or not. Mr Di Marco noted that he was not aware of any other extraction industry that had been required to keep a complaints register. The Tribunal does not accept, without detailed evidence as to how Mr Di Marco is in a position to make a statement about all other extraction industries that he could possibly know all of the conditions of all extraction industries in the State. The Tribunal does not give any weight to Mr Di Marco's evidence on this point.
The Tribunal accepts the agreed evidence of the experts as reflected in the joint experts' report. The Tribunal therefore accepts that the dust management plan should be required to be as the experts agreed was appropriate.
In relation to the proposed amendment to the 'timing' column, the Tribunal can accept that clearing could potentially cause dust to be raised, but there is no evidence, and no reason obvious to the Tribunal why rehabilitation activities might have the potential to cause dust emissions.
In the first row under 'Management Measure' the word 'operating' is proposed to be deleted. The Tribunal does not accept that this is necessary, and it is not supported by the evidence.
In the third row, the first words that are introduced appear to us to helpfully clarify that it is all potential areas where dust emissions might be caused that must be watered. The Tribunal accepts this clarification of the requirements thought necessary by the experts. The same can be said for the words introduced in relation to 'water trucks'. The words introduced in the fifth row come into the same category of clarifying and more clearly enunciating what the experts agreed was appropriate. The first words added in the eighth row fall into the same category; they are consistent with the evidence of the experts as to what they required. Again, the words introduced in the beginning of the ninth row provide clarity and are consistent with the evidence. We are satisfied all of the proposed amendments to these rows are appropriate.
The second set of words introduced into the eighth row was submitted to be necessary in order to provide clarity to the requirement and to provide a means of enforcing the requirement. The applicant submitted that as dust could be coming from another place on the site (for example the existing stockpile of sand near to the boundary of the site with the South Western Highway) or from another nearby location and therefore would potentially cause unfair or unreasonable exposure to punishment for the applicant. The Tribunal accepts that the Dust Management Plan does need some type of mechanism by which it can be objectively judged whether the Dust Management Plan is being complied with. However, the Tribunal also accepts the applicant's submission that the text proposed by the respondent is unfair. The Tribunal would amend the text proposed by the respondent, commencing after the word 'roads' in the fifth line in the eighth row as follows:
Observed to be crossing over the lot boundaries and coming from the direction of the part of the site where the proposed development is to occur (having regard to prevailing wind direction), shall, subject to the applicant being able to provide a reasonable basis for finding otherwise, be regarded as an unsatisfactory dust outcome requiring remedying unless due to exceptional and unforeseen circumstances on isolated occasions.
The final words proposed by the respondent in the last row of the Dust Management Plan were not the subject of any evidence but seem to the Tribunal to be sensible. This would allow the Shire to follow up any complaints if necessary. It would also allow the applicant to ascertain that they are not receiving fictional reports. However, a complainant may not wish to provide his other contact details to the applicant and as such, the text should be further amended to include after the last word in that row the words, 'subject to the complainant having any objection to providing these'.

Noise

The respondent submitted that the issue of noise could be dealt with by the imposition of an appropriate condition, if the proposed development was otherwise to be approved. The respondent proposed the following condition:
(d)The noise management plan contained within the Applicant's bundle at ABD 8, shall be modified in accordance with the changes as shown in Appendix A. The operator from time to time must at all times in the establishment, operation and rehabilitation of the extractive industry, implement the Noise Management Plan as so modified.
APPENDIX A: Required modifications to Noise Management Plan relative to that contained in ABD 8
1.In Table 1, second row, change existing third dot-point to: 'No vehicle is to be used or permitted on the site in connection with the extractive industry operation if the vehicle activates a tonal alarm. This includes contractors' and customers' vehicles as well as vehicles of the extractive industry operator. Alternatives to tonal alarms such as broadband alarms are to be used'.
2.In Table 1, second row, a new third dot point: 'As far as reasonably practicable, avoidance of metal-on-metal contact for equipment and vehicles - eg, the front end loader bucket against the lip of a trailer'.
3.In Table 1, second row, add additional dot-points as additional 'actions'as follows:
No operating of sirens, amplified telephone rings, amplified two-way radios or similar radio devices other than for emergencies;
No playing of radios or other entertainment devices at levels above domestic entertainment levels.
[4]. Add an additional action at the end of the 'action' section of row 2: 'If following noise complaints, Shire officers form the view that any of the following should be implemented, the operator is to implement such measures:
(a)A ban or restriction on exhaust braking;
(b)A ban or restriction on idling of stationary vehicles, eg, trucks awaiting loading.
[5].In the existing dot point dealing with 'and a ban on exhaust braking if required', delete those words since they are covered instead by the additional item just mentioned.
The applicant contends that the respondent's proposed condition in relation to noise is unreasonable and that instead an appropriate condition would be as follows:
The noise management plan contained within the Applicant's bundle at ABD 8, shall be modified in accordance with the changes as shown in Appendix A. The operator from time to time must at all times in the establishment, operation and rehabilitation of the extractive industry, implement the Noise Management Plan as so modified.
The only issue, therefore, is whether the Noise Management Plan should be required to be amended as proposed by the respondent. No evidence was produced by the respondent in relation to noise.
The respondent's first proposed amendment has the effect of extending the proposal in relation to the use of tonal alarms from applying just to the applicant's excavators to all vehicles at the site for the purposes of the proposed development. Having heard such alarms on a number of occasions, the Tribunal accepts that tonal alarms used on large vehicles are very loud and at a pitch that makes the noise more piercing. The applicant's expert stated, in his report, that 'reversing alarms could be a potential noise emission which may be distinct from the [existing] road traffic noise. In including such alarms in the noise management plan it seems that the consultant was intending to reduce this potential noise emission'. Given Mrs Joynson's evidence as to the limitation of vehicles that will be involved in the proposed development, the limited number of vehicle contractors other than Mr Joynson who will pick up material from the site if the proposed development is allowed, given that the applicant would be in a position to include a contractual provision requiring tonal reversing alarms not to be used and finally, given that the applicant intends to create a circular internal access track in order to reduce the need for any reversing movements, the Tribunal finds that the respondent's first proposed amendment is a reasonable one. It is not unduly onerous on the applicant and it is aimed at mitigating a potential noise emission which may impact on the amenity of the locality.

In relation to proposed amendment two, three and four the Tribunal simply has no evidence on which it is able to determine whether or not any of the identified noises, if they occurred in the area of the site where the proposed development is to occur, would be audible to any sensitive receptor in the locality. The Tribunal is not satisfied that any of these proposed amendments are necessary or reasonable.

Truck access

Mr David Wilkins and Mr Lachlan Millar, both being consultants with qualifications and experience as traffic engineers and road safety auditors, provided evidence to the Tribunal about the safety of the vehicular access to the site. Mr Wilkins report found that between 13 % and 17 % of the vehicles using the South Western Highway in the locality were heavy vehicles. The South Western Highway is a restricted access vehicle 2 network without any conditions so the prime movers and B-double trucks can use this route. This was not disputed by anyone.
Following conferral, the experts agreed about all matters except for one.
The existing access driveway (intended to be used to access and egress the site for vehicles associated with the proposed development) should be treated as an access driveway for the purposes of assessing its safety, and not as a public road due to its low traffic volume generation. The required sight lines at the driveway are good and exceed the mandatory requirements in both directions. The driveway cannot accommodate a 19 metre semi-trailer or a Bdouble design vehicle without encroachment into oncoming traffic lanes or verge and drainage areas and requires modification to suit whichever design vehicle is adopted, but such accommodations can be achieved. The driveway is located within 10 metres of where an overtaking lane on the South Western Highway ends. It is not recommended that vehicles approaching the site from the north turn right into the site from South Western Highway.
The existing access driveway arrangement to the site is 'unsafe as there is no protection for right turn vehicles stopped in the overtaking lane'.
It was apparent to the Tribunal, upon conducting the site view, and it was also agreed by the experts, that to a person unfamiliar with the site, the access driveway to the site is not easily read. It occurs just after a curve and in a location where traffic is travelling relatively fast and near to where the overtaking land merges back into a single lane travelling in a southerly direction. This means that drivers unfamiliar with the site would not be prepared for the potential conflict point with other vehicles on the highway while attempting to enter the site.
Mr Wilkins considers it is sufficient to address this issue by installing signage that indicates no right turn is allowed at this location and requiring the applicant to enforce a 'noright turn' policy with any customers who are coming to site from the north. Mr Millar is of the view that these steps would be insufficient to address the safety issue. In his view, the creation of an additional turnin lane, to allow vehicles to pull into a separate lane to the left of the highway and ensure that the road is clear before turning right into the access driveway, would be necessary to ensure safety.
The applicant, during the proceedings, proposed a number of potential solutions to the difficulty with vehicles not being allowed to turn right into the site. Initially it was proposed that vehicles coming from the north could proceed past the site and turn around in an information bay which is located quite close to the access driveway of the site. Alternatively, vehicles could proceed to the township of Boyanup and find a place to turn around so as to be in a position to access the site from the south. Later, it was proposed that vehicles could be instructed to turn right at the nearest intersection at Brookdale Road, turn right onto Fowler Road, turn right again on Kilpatrick Road and then turn left onto the South Western Highway in order to enter the site from the south, turning left (Brookdale loop). Later, the applicant proposed that he could direct vehicles to use another property that they own, located on Brookdale Highway and fronting onto the South Western Highway, in order to turn around and approach the site from the south. That property, according to the uncontradicted evidence of Mrs Joynson, already has a turning circle that can be used by large vehicles to turn around. Finally, it was submitted that the applicant could instruct any vehicle drivers who would be attending from the north to take a number of alternate routes so as to ultimately approach the site from the south.
The applicant submitted that, so long as there was a public road system that could be used to allow vehicles to enter from the south in a safe manner, and because Mr Johnson proposes to largely cart the extracted product himself and would be in a position to properly instruct and manage and vehicle drivers to ensure there was noright turn, the Tribunal need not concern itself with how that was done.
The Tribunal is not persuaded by that argument. The Tribunal heard evidence from two town planners, Mr Kelvin Oliver and Mr Henry Dykstra in relation to the impact on the amenity of the locality of trucks potentially using the Brookdale loop. It also heard from a number of people who live on or near to one of the roads in that loop. In addition, the Tribunal travelled the Brookdale loop on a dry warm day and observed for itself that any vehicle movement on those roads causes a significant amount of dust to fly into the air.
The Tribunal accepts the evidence of the lay witnesses that, other than one business that uses part of Brookdale Road to accommodate truck movements related to an extractive industry, the roads in the Brookdale Loop are lightly trafficked, mostly ~~just~~ by those who live in the vicinity. Although the applicant's proposed development contemplates only 'up to' 10 truck movements a day, the Tribunal is satisfied that, in the context of the existing traffic, the state of the roads in question, and the relatively close proximity of the houses to the roads, would cause a significant impact on the amenity of the locality (by which we mean the lots that front or are within 100 metres of the roads that form the Brookdale Loop).
Of the options proffered by the applicant, the Tribunal was most attracted to the turn-around loop contained on the applicant's property nearby. Subject to the appropriate planning approval, and subject to the applicant providing a sound basis for the Tribunal to accept that they could properly enforce a 'noright turn' policy, the Tribunal might have been persuaded that the proposed development would not have a deleterious effect on the amenity of the locality because of the associated truck movements.
Another option to mitigate against the safety risk that was proposed by Mr Millar was to utilise a design the applicant had received approval for in relation to another development, which provides for a turning lane to be added to the highway. Although Mr Wilkins remained concerned that this proposal might also carry a safety risk, he did accept that it was a safer alternative to the existing right turn access into the site.
Mrs Joynson's evidence was that this option (referred to as the 'Coates design') was too expensive to be viable (notwithstanding that the applicant operates a road construction business). The viability of a proposed development and the cost of complying with conditions is generally not a relevant matter for the Tribunal: Gosford Shire Council v Anthony George Pty Ltd (No 2) (1968) 16 LGRA 165 at 167 (ElseMitchell J). In the context of planning conditions, the test is generally whether a condition has a sufficient nexus having regard to the Newbury tests. However, what the Tribunal will say is that, on the evidence, the Coates design is the safest access option and, as has been stated, is safer than the current access arrangements. Because the Coates design relates to a fundamental issue of traffic safety in the context of an industrial use relying on large truck movements on a regional highway, the Tribunal considers that there is a sufficient nexus for such a condition even though it would appear that the cost would be significant. However, ultimately as the Tribunal has no evidence (aside from Mrs Joynson's estimates) as to the actual cost of the Coast design, it would be inappropriate for the Tribunal to impose a condition the cost of which was unknown and unquantified. Furthermore, approval of the proposed development inclusive of the Coates design was not pressed by the applicant. It follows that, in these circumstances, the Tribunal finds that it cannot approve the proposed development with a condition requiring the Coates design.
The applicant considers that his proposed development will be very small scale and will largely involve carting the extracted material. However, the evidence of Mrs Joynson about the range of people to which she considered they would be prepared to provide product to, and the evidence about the high need in the State for the extracted product, satisfies the Tribunal that the applicant is simply not in a position to know how regular vehicle movements to and from the site will occur.
There is a limited supply of product and the applicant contends that it will be a two person operation carried out over eight years; however there is nothing in the proposed development that actually limits the number of people who might work there or the amount of truck movements. The existence of State Planning Policy No 2: Environment and Natural Resources (SPP 2), and its content, establish that products from extractive industry are important to this State and are in relatively high demand. Given these things, we are not satisfied that we can accept Mrs Joynson's evidence about the applicant's intention because he does not yet know how much demand he might have for product and how quickly it might be demanded.
On the evidence before us, the Tribunal is not satisfied that any 'no right turn' policy is or would be appropriately enforceable by the Shire. How would the respondent be able to know whether the applicant was or was not appropriately and successfully enforcing a condition of that kind.
The applicant contends that he already has more truck movements to his property that relates to his existing businesses, and he has never had any accident. Therefore, there is no basis to refuse the proposed development on the basis of the access to the site. The flaw with this argument is that the Tribunal does not know whether or not the safety issue with the site's access had been raised with the Shire before it approved the existing business occurring at site. If it did not have that information, it might not have had any basis to be concerned, particularly if no one from the respondent's officers had visited the site before determining the earlier development applications. The Tribunal does have positive evidence before it, which is agreed between the experts, that the access to the site from a northerly direction, by way of a right turn, is a significant safety concern. In light of that knowledge, we are not satisfied that it is appropriate to allow any additional development, including the proposed development, without ensuring that the safety risk has been appropriately ameliorated. On the evidence before us, we are not satisfied that there is any method of ameliorating this risk that is appropriately workable and enforceable. We find that the access issue is potentially a significant safety risk that goes to the heart of the proposed development. In Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100; 39 SR (WA) 119, at [42][44] the Tribunal observed:
42Two things should be said about these suggestions. The first is that the Tribunal, in all situations, is cautious about imposing conditions which will provide difficulty for the respondent to police. Secondly, the Tribunal is reluctant to impose conditions which strike at the heart of the use applied for.
43In the decision of Kipa Freeholds Pty Ltd v Development Assessment Commission (1999) LGERA 414 at 423, Debelle J made the following observations in relation to the imposition of conditions:
'The power to impose conditions is vested in a planning authority for the purpose of enabling it to regulate incidental aspects of the development so that it does not have an adverse effect upon the amenity of the neighbourhood of the development, either in the course of construction or when the development is completed. … The power to impose conditions is not provided to enable a planning authority to alter the nature of the proposal and hedge it about with conditions which are unworkable, unenforceable, and seek to confine the development form being used in the ordinary way. Resort to the use of such conditions it tantamount to an acknowledgement that the proposed development is inappropriate for the subject land. If a planning authority imposes this latter kind of condition, it is using the power to impose conditions for a purpose which was not intended because it goes beyond incidental aspects of the intended land use and strikes directly at the intended land use.
There are policy reasons which reinforce this conclusion. First, there may be difficulties in enforcing the conditions.'
44The Tribunal concurs with the reasoning in Kipa (supra). To impose a condition limiting the duration of play hours for children would be to strike directly at the activity being applied for. In addition, it would be to impose a condition which would be difficult for the respondent to police and enforce.
The Tribunal finds that, because we are unable to be satisfied that a sufficiently workable and enforceable condition can be imposed to sufficiently and appropriately ameliorate the real and potentially very dangerous safety risk, a risk that we have found goes to the heart of the proposed development, it is therefore not appropriate to allow the proposed development. For this reason, the proposed development application should be refused. For the same reason, the extractive industry licence should also be refused. We note that, had we been persuaded that the proposed development and the extractive licence should have been conditionally approved, we would have granted the temporary approval and the licence for the eight years as requested by the applicant.

Orders

The Tribunal orders:
1.The decisions of the respondent made in July 2016 and June 2018 to refuse to approve the applicant's applications for development approval for an extractive industry (sand) and for an extractive industry licence, both on a temporary basis for a period of eight years, at Lot 1 South Western Highway, North Boyanup are affirmed.
2.The application is otherwise dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS L EDDY, SENIOR MEMBER
12 FEBRUARY 2020