KELMSCOTT CENTRAL PTY LTD and CITY OF KARRATHA - [2020] WASAT 116

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION:   KELMSCOTT CENTRAL PTY LTD and CITY OF KARRATHA [2020] WASAT 116
MEMBER:   MS C BARTON, MEMBER
HEARD:   28 JULY 2020
DELIVERED          :   24 SEPTEMBER 2020
FILE NO/S:   DR 171 of 2019
BETWEEN:   KELMSCOTT CENTRAL PTY LTD
Applicant
AND
CITY OF KARRATHA
Respondent

Catchwords:

Town planning - Development application - Exercise of planning discretion - Transient workforce accommodation - Departure from local planning policy - Whether cogent reasons to depart from policy - Whether demonstrated need - Social impact assessment - Social impact management plan - Orderly and proper planning - Proposed planning instrument - Structure plan - Whether seriously entertained planning proposal - Transition to industrial precinct - Timelimited approval

Legislation:

City of Karratha Local Planning Scheme No 8, cl 3.1(b), cl 3.2, cl cl 4.12, cl 4.12(e), cl 5.5, cl 5.6, Sch A, Appendix 1, Appendix 2
Evidence Act 1906 (WA)
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Pt 3, Sch 2, cl 64, cl 67, cl 67(b), cl 67(zb), cl 67(zd), Pt 4
Planning and Development Act 2005 (WA), s 68, s 241(1), s 252(1)
State Administrative Tribunal Act 2004 (WA), s 17, s 18, s 24, s 27(1), s 27(3), s 28, s 29(1), s 29(3), s 32

Result:

Application successful with conditions

Summary of Tribunal's decision:

Kelmscott Central Pty Ltd (applicant) sought to renew its approval for transient workforce accommodation at Lot 563 Nairn Street and Lot 564 Hall Street, Roebourne (proposed development). The applicant sought approval for the proposed development on a time-limited basis.
The City of Karratha (City) refused the application because:

(a) the need for the proposed development in the Mixed Business zone had not been demonstrated;
(b) the proposed development would be inconsistent with the local planning framework, including the objective of the City's draft Local Planning Strategy to transition Mixed Business zone to an Industrial Precinct, and the Roebourne Structure Plan which envisaged no additional workforce accommodation for Hall Street.
(c) there was no social impact assessment or social impact management plan submitted and, therefore, no information provided on how the development would be integrated and support the economy and local community.

The Tribunal was satisfied that the applicant had demonstrated a need for the proposed development.
The Tribunal found there were cogent reasons to depart from the City's local planning policy that required a social impact assessment to be undertaken.
The Tribunal found that the Roebourne Structure Plan and draft Local Planning Strategy are not seriously entertained planning instruments. The Tribunal concluded that granting a time-limited approval for the proposed development would not prevent the future transition of the Mixed Business zone to an Industrial Precinct.
The Tribunal granted approval to the proposed development subject to conditions including that the approval be limited to a period of 10 years.

Category: B

Representation:

Counsel:

Applicant	:	Mr J Skinner
Respondent	:	In Person

Solicitors:

Applicant	:	Thomson Geer
Respondent	:	N/A

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

Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433
Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522
Marshall v Metropolitan Redevelopment Authority [2015] WASC 226
Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117
Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Sammut v AVM Holdings Pty Ltd [No 2] [2012] WASC 27
Terra Spei Pty Ltd and Shire of Kalumunda [2015] WASAT 134

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

The applicant, Kelmscott Central Pty Ltd, seeks development approval for transient workforce accommodation units and associated facilities at Lot 563 Nairn Street and Lot 564 Hall Street, Roebourne (proposed development). Thirty accommodation units are constructed on Lot 564 under previous approvals granted by the City of Karratha (City/respondent). Because the approvals were time-limited and have lapsed, the applicant lodged a new development application with the City on 14 March 2019.
The subject land is located in the 'Mixed Business' zone under the City of Karratha Local Planning Scheme No 8 (Scheme). 'Workforce Accommodation' is not permitted in the Mixed Business zone unless the City has granted development approval after giving notice in accordance with cl 64, Sch 2 to the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regulations).
On 26 July 2019, the City exercised its discretion to refuse the proposed development because the land on which it is located will be transitioned to an 'Industrial Precinct' under the City of Karratha Draft Local Planning Strategy (draft LPS), and no further workforce accommodation is envisaged in the Industrial Precinct under the draft LPS and the Roebourne Structure Plan (Structure Plan). In addition, because a social impact assessment (SIA) had not been submitted with the application as required under the City's local planning framework, the City concluded that the applicant had not demonstrated how the proposed development will be integrated into and support the local economy and community.
The applicant applied to the Tribunal for a review of the decision of the City under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act). The applicant seeks an order that the decision of the City is set aside and the application for development approval of thirty accommodation units is granted for a period of 10 years. The Tribunal finds, for the reasons set out in this decision, that the proposed development should be granted approval for 10 years. In reaching this determination, the Tribunal considers that a time-limited approval will not prevent the future transition of the subject land from a Mixed Business zone to an Industrial Precinct.

The issues for determination

The parties agree that the following issues arise for determination by the Tribunal:
1)Whether the proposed extension to the time-limited approval for workforce accommodation at Lot 563 Nairn Street, Roebourne should be granted approval, considering:
a)the need for the proposal having regard to the requirements of the City of Karratha Local Planning Policy DP10 Workforce Accommodation (DP10) which aims to maximise the resident workforce (issue 1);
b)the adequacy of the SIA having regard to the requirements of the City of Karratha Local Planning Policy DP20 - Social Impact Assessments (DP20) (issue 2); and
c)the principles of orderly and proper planning, including the regard to be given to the future industrial planning for locality as foreshadowed in the Structure Plan and the draft LPS (issue 3).

Subject land and the locality

The subject land is formally described as Lot 563 and Lot 564 on Deposited Plan 180117, being the whole of the land in Certificate of Title Volume 2023 Folio 664 and Certificate of Title Volume 2097 Folio 948 respectively. The subject land is known as 19 Nairn Street (Lot 563) and 7 Hall Street (Lot 564), Roebourne, and is located approximately 1.2 kilometres north of the Roebourne town site.
The subject land comprises an area of approximately 12,139m². It is currently developed with thirty transient workforce accommodation units, one workshop/office, two recreation rooms, an undercover BBQ area, and twenty-seven car bays, including one accessible bay.
Development within the locality, of which the subject land forms a part, comprises a range of semi-industrial type uses and business/semiresidential uses. Adjacent to the subject land, there exists two workforce accommodation developments, one located to the west of the subject land at Lot 463 (known as the Latitude20 Roebourne Village), and a second located to the north east at Lot 4 which fronts Point SamsonRoebourne Road.

The planning framework

The relevant planning framework, which the Tribunal has considered in its determination, is attached to these reasons as Annexure A and includes references to the following:
1)LPS Regulations
2)The Scheme
3)DP10
4)DP20
5)Structure Plan
6)Draft LPS

The Tribunal's review jurisdiction

By reason of s 17 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), the application to review the City's decision falls within the Tribunal's review jurisdiction. In exercising the Tribunal's review jurisdiction, the Tribunal is to deal with a matter in accordance with the SAT Act and the PD Act (referred to as the 'enabling Act' for the purposes of the Tribunal's review jurisdiction, which may modify the operation of the SAT Act in relation to the matter): s 18 of the SAT Act.
The Tribunal is to review the decision by way of a hearing de novo for the purposes of producing the correct and preferable decision on the basis of the information and evidence before the Tribunal at the time of the review. In conducting the review, the Tribunal is not limited to the material before the City, as the original decision-maker, but may consider new material: s 27(1) of the SAT Act. The reasons for decision provided by the decision-maker, or any grounds for review set out in the application, do not limit the Tribunal in conducting a review proceeding: s 27(3) of the SAT Act.
The Tribunal is not bound to apply the Evidence Act 1906 (WA), the rules of evidence, or any practices and procedures of courts of record (s 32(2)(a) of the SAT Act), but is bound by the rules of natural justice (unless authorised expressly or by implication to depart from those rules by the SAT Act or the enabling Act): s 32(1) of the SAT Act.
The Tribunal is 'is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities': s 32(2)(b) of the SAT Act. The Tribunal may inform itself on any matter it sees fit: s 32(4) of the SAT Act. To the extent that the practice or procedure of the Tribunal is not prescribed by the SAT Act or, the enabling Act, it is to be as the Tribunal determines: s 32(5) of the SAT Act. The flexible procedure provided for by s 32 of the SAT Act does require, however, that the Tribunal's decision is made on the basis of evidence that has probative force: see Sammut v AVM Holdings Pty Ltd [No 2] [2012] WASC 27 at [40].
All of the functions and discretions conferred by the enabling Act on the original decision-maker are conferred on the Tribunal: s 29(1) of the SAT Act. Section 29(3) of the SAT Act confers specific power on the Tribunal to, amongst other orders, set aside the original decision, affirm that decision or vary that decision.

The conduct of the hearing and expert evidence

Mr Daniel Marsh, a director and principal consultant of the firm Sociometry, prepared a witness statement for the applicant dated 13 July 2020. Sociometry specialises in community consultation, social impact assessment and social performance management. The applicant also called Mr Mark Szabo, a town planning consultant and Associate Director of Burgess Design Group, who prepared a witness statement which was filed with the Tribunal on 17 July 2020. The Tribunal found Mr Marsh and Mr Szabo to be honest and reliable witnesses.
The City relied on the evidence of Mr Jerom Hurley who, over the past eight years, has held the positions of Manager Approvals and Compliance, Manager Planning Services, and Principal Statutory Planner with the City. Mr Hurley has over 25 years' experience as a planner, mainly in regional Western Australia. Mr Hurley prepared a witness statement dated 20 July 2020. The Tribunal found Mr Hurley to be a credible witness who was of assistance to the Tribunal in its determination.
Each party filed a statement of issues, facts and contentions. On 22 May 2020, the respondent filed a bundle of documents under s 24 of the SAT Act. The proceeding was heard on 28 July 2020 with the applicant and its expert witnesses attending in person, and the City and its expert witness attending by telephone.

The parties' contentions

The parties' contentions in relation to each issue are summarised below.

Issue 1 regard to DP 10 maximising resident workforce

The City contends that the applicant has provided insufficient information to illustrate an identified need for workers' accommodation. The City further contends that the information provided by the applicant only represents speculative demand for workers' accommodation by companies wishing to operate flyinflyout working arrangements.
In contrast, the applicant contends that in the absence of an express local planning scheme provision, demonstration of a commercial need or demand for a proposed development is not a relevant planning consideration. The applicant contends that there is no requirement in DP10 for a proponent to demonstrate an identified need for workers' accommodation and, in any event, cl 5.2.2 and cl 5.2.5 of DP10 are expressed to apply in relation to accommodation demands of major projects. The proposal is not of a size, scale or nature to provide for the demands of major projects.
The applicant provided details to the City of several projects that are likely to generate accommodation needs in its submissions to the City dated 25 October 2019 and 26 March 2020. During the course of the hearing, the applicant produced to the Tribunal further evidence to demonstrate the commercial demand for the facility (Exhibit 10). The applicant nonetheless contends that it is not practical or reasonable to provide evidence of actual occupancy, contracts or bookings for a facility in circumstances where the facility does not have development approval and the timing of any approval is uncertain.

Issue 2 regard to DP20 social impact assessment

The City contends that an SIA and a social impact management plan (SIMP) have not been provided by the applicant in the format prescribed by DP20. The City further contends that the proposal does not meet the objectives of DP20 in that:
1)the proposal does not lend itself to community integration because it is located on the outskirts of the Roebourne town site. This is contrary to objective 1 of DP20 (and cl 5.3.1 of DP10) which is to facilitate a consistent and transparent approach to the consideration of local social impacts in land use planning decisionmaking;
2)there is no evidence to support the applicant's claim that the proposed development will benefit the local community. Objective 2 of DP20 seeks to minimise adverse impacts and maximise beneficial impacts of proposed developments; and
3)the applicant has not undertaken community engagement and, therefore, it is speculative for the applicant to state that on-site workers will be sourced from Roebourne. Objective 4 of DP20 encourages upfront and ongoing engagement with the community and other key stakeholders regarding the potential impacts of proposed developments.
The applicant contends that the previous operation of the facility did not give rise to any significant social impacts, and there has been no significant change in the sensitivity of the Roebourne area to social impacts since the previous operation of the facility. The applicant further contends that the social impacts tools set out in DP20 have methodological limitations when assessing a facility of the size, scale and nature of the proposed facility. Given its size, scale and nature, the applicant contends that the operation of the facility will not result in:
1)any significant demographic or population change in Roebourne;
2)any significant impact on the property market in Roebourne;
3)any significant additional demand for access to community services and facilities;
4)any significant interaction with social infrastructure, family or health services; or
5)any significant increased use of the local road or transport network.
The applicant proposes to implement a number of typical and uncontroversial measures and controls to address any potential social impacts arising from the operation of the facility.

Issue 3 - orderly and proper planning

The City contends that the proposal is inconsistent with the Structure Plan because transient workforce accommodation is not envisaged within the 'Industrial Precinct' of the Structure Plan area. The City contends that the Structure Plan (which was adopted by the Council of the City in 2014) is a seriously entertained planning instrument under cl 67(b), Sch 2 to the LPS Regulations which contain the deemed provisions for local planning schemes (Deemed Provisions) and, therefore, should be given due regard by the Tribunal because it outlines the City's intentions for the Industrial Precinct.
Because the draft LPS is with the Western Australian Planning Commission (Commission) for final approval, the City contends that it is also a seriously entertained planning instrument that should be given due regard by the Tribunal. The City contends that the draft LPS is consistent with the Structure Plan insofar as s 6.3 of Part B of the draft LPS reaffirms that:
1)the subject land is to be rezoned from a Mixed Business zone to an Industrial Precinct and;
2)transient workforce accommodation is not to be permitted within the 'Industrial Precinct' area of the Structure Plan.
The City contends that it would be inconsistent with the principles of orderly and proper planning to approve the proposed development where both planning instruments demonstrate an intention by the City to rezone the subject land and not permit transient workforce accommodation within the 'Industrial Precinct'.
The applicant contends that the Structure Plan and the draft LPS are not 'seriously entertained planning instruments' for the purposes of cl 67(b) of the Deemed Provisions. The Structure Plan, on its express terms, is not intended to have any statutory effect but only to guide the preparation of other planning instruments. The applicant further contends that the facility had been approved and was in operation at the time the Structure Plan was adopted and that a further time-limited approval will not prejudice the long-term planning envisaged by the draft LPS.

The Tribunal's consideration

Legal principles relating to the application of policy

The City has published two policies, DP10 and DP20, which contain provisions that are relevant to the determination of issues 1 and 2 and, ultimately, to the 'correct and preferable' decision as to whether or not the proposed development should be approved under s 252(1) of the PD Act. As DP10 and DP20 are non-statutory policies, the Tribunal is not bound by s 28 of the SAT Act to have regard to them. However, the existence of these policies is a relevant factor for the Tribunal to consider and the Tribunal must determine what weight (if any) to afford to them.
The legal principles relevant to the application of government policy are set out in Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433 at [25]-[26] in which Barker J referred to Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522 and Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, among other authorities:
Much has been written about the use of policy in administrative decisionmaking. Administrators do no act unlawfully in adopting policies to secure their discretionary powers. Indeed, courts have accepted that it is desirable that they should do so: British Oxygen Co Ltd v Minister of Technology [1971] AC 610; R v Eastleigh Borough Council; ex parte Betts [1983] 2 AC 613; Sawyer v Secretary to Department of Primary Industry (1998) 15 ALD 742. However, an administrator exercising discretionary power will be found to have acted ultra vires if the discretion is exercised inflexibly, by application of a policy without regard to the merits of a particular case, as the decision in Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522 illustrates. This principle aside, the importance of the use of 'policies' in the exercise of discretionary planning powers in Western Australia is well recognised: see, eg, Hebe Pty Ltd v Metropolitan Region Planning Authority (1981) 2 APAD 428.
A relevant policy, provided it is not ultra vires, may therefore be regarded as one relevant consideration which the administrator is, effectively, bound to take into account. In Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, the Full Federal Court held that the Administrative Appeals Tribunal is entitled to treat Commonwealth government policy as a relevant factor in making its decision, but is not entitled to abdicate its function of independently considering and assessing the propriety of the policy. In Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) ALD 634, Brennan J confirmed the freedom of the Administrative Appeals Tribunal to apply or not apply the policy. He noted, however, that departures from government policy would be 'cautious and sparing', occurring only where there were 'cogent reasons': 644-645.

As stated by Pritchard J in Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 at [182]:
… If the exercise of discretion is to be an orderly one, the planning principles identified as relevant to an application should not be lightly departed from without the demonstration of a sound basis for doing so, which basis is itself grounded in planning law or principle[.]
It follows that the relevant provisions of DP10 and DP20 are factors to be taken into consideration by the Tribunal in making its decision but they cannot be applied inflexibly so as to replace the exercise of the Tribunal's discretion. The Tribunal is entitled to depart from the application of the provisions of DP10 and DP20 if there are cogent reasons to do so having regard to the merits of the particular case.

Tribunal's findings on the application of DP10 (Issue 1)

The City contends that the applicant has not demonstrated an identified need for workers' accommodation and, therefore, the proposed development does not meet the objectives of DP10.
Mr Szabo gave evidence that he provided email correspondence to the City on 4 June 2019 in response to the City's request for information to demonstrate service demand. His email to the City included an offer to lease rooms at the proposed development from Perth Property Solutions dated 2 February 2019. In addition to correspondence sent to Mr Szabo to the City on 25 October 2019 and 26 March 2020 following mediation, the applicant tendered Exhibit 10 in support of its contention that there is an identified need.
The Tribunal finds that the applicant has demonstrated a need for the proposed development based on Exhibit 10, which includes a letter from the Reservations Manager at the Cove Holiday Village (Village) in Point Samson dated 27 July 2020. The letter states that the Village has been unable to accommodate a majority of its corporate clients due to an increase in demand from local tourists arising from the Western Australian Government response to COVID-19. An email from the Tourism Services Supervisor at the Karratha Tourism and Visitors Centre shows that visitor numbers had increased from 2657 in July 2019 to around 3452 in July 2020. Exhibit 10 also includes a letter from a mining company that has expressed an interest in accommodation facilities in Roebourne to support its exploration activities in the Pilbara region for a 12-18 month period in the last quarter of 2020.
The Tribunal observes that it is difficult for a proponent to supply evidence of occupancy, contracts or bookings, under cl 5.2.5 of DP10, in circumstances where a development proposal has not been approved. The Tribunal further observes that the second paragraph of cl 5.2 of DP10 and subparagraph 5.2.2 are expressed to apply to workforce demands that are generated by 'major projects'. Mr Marsh expressed the view that the proposed development is likely to be used by contractors undertaking a specialised service (ts 45, 28 July 2020). Mr Hurley acknowledged in cross-examination that it is a relatively small workforce accommodation development (ts 59, 28 July 2020). The term 'major project' is not defined in DP10. Nevertheless, the Tribunal accepts the applicant's contention that, for the purposes of DP10, the proposed development is not of a size, scale or nature to provide for the demands of major projects.

Tribunal's findings on the application DP20 (Issue 2)

The City contends that the applicant has failed to undertake an SIA and produce a SIMP in the format prescribed by DP20 and that the proposed development does not meet the objectives of DP20. In contrast, the applicant contends that the social impacts tools set out in DP20 have methodological limitations when assessing a facility of the size, scale and nature of the proposed facility. Mr Marsh, who was called by the applicant, stated in evidence that it would be difficult to undertake a SIA for such a small facility (ts 32, 28 July 2020). Mr Marsh said that he did not conduct an SIA because it would be disproportionately expensive and the limitations on the methodology would mean that the findings would be unreliable (ts 34, 28 July 2020). Mr Marsh's evidence was not contested by the City.
Having regard to the objectives of DP20, Mr Marsh expressed the opinion that given the apparent lack of concern around the previous operations at the subject land, it is not clear that sufficient interest could be raised in surrounding communities to allow consultations to occur and be meaningful (witness statement of Daniel Marsh, page 9). Mr Marsh did not consider that the recommencement of operations on the outskirts of town would perceptibly change the demography in Roebourne or affect the mix of housing types or sizes (witness statement of Daniel Marsh, pages 10-11). He also considered it unlikely that there would be a significant impact on demand for community services and facilities created by the development (witness statement of Daniel Marsh, page 12). In Mr Marsh's opinion, the proposed development will integrate well with the existing adjacent land uses but will not promote integration with the Roebourne township (witness statement of Daniel Marsh, page 13). He considered there would not be any significant impacts to the local community after conventional and familiar mitigation in relation to any anti-social behaviour from guests. Mr Marsh did not consider that the subject land would impact perceptions of public safety (witness statement of Daniel Marsh, pages 14-15).
The Tribunal accepts the evidence of Mr Marsh, which was not contested by the City, and finds that the proposed development is consistent with the objectives of DP20. DP20 requires local SIA considerations to be understood for major projects and related development in the context of the scale and cyclical nature of the resources sector in Karratha. The Tribunal does not accept the City's contention that the application for the proposed development should have been accompanied by a SIA and SIMP in the format prescribed by DP20. The Tribunal finds, based on the evidence of Mr Marsh, that a SIA would produce unreliable results given the limited scale of the facility. Accordingly, in the circumstances of this case, the Tribunal will depart from the application of DP20 in so far as it requires the applicant to conduct a formal SIA and produce a SIMP.

Legal principles relating to seriously entertained planning instruments

The City contends that due regard be given by the Tribunal to the future industrial planning for the locality as foreshadowed in the Structure Plan and the draft LPS as set out in issue 3. The City contends that the Structure Plan and the draft LPS are seriously entertained planning instruments for the purposes of cl 67(b) of the Deemed Provisions and, therefore, the Tribunal must have due regard to those instruments in its assessment of the proposed development in the context of the requirements of orderly and proper planning.
The applicant contends that the Structure Plan and the draft LPS are not seriously entertained planning instruments. In support of its contention, the applicant points to the recent Gazettal of amendment 39 to the Scheme on 4 October 2019 by which 'Workforce Accommodation' remained an 'A' use in the Mixed Business zone despite the provisions of the Structure Plan and draft LPS.
In assessing the proposed development, the Tribunal must have due regard to the requirements of orderly and proper planning under cl 67(b) of the Deemed Provisions, including any proposed planning instrument that the City is seriously considering adopting or approving.
In Terra Spei Pty Ltd and Shire of Kalumunda [2015] WASAT 134, the Tribunal reviewed the principles in Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117 at [202]-[204] in the context of cl 67 of the Deemed Provisions and observed as follows:
The first stage of the four stage inquiry described in Nicholls at [45] has also been overtaken in relation to development assessment under a local planning scheme in Western Australia by cl 67(b) of the deemed provisions in the case of 'any other proposed planning instrument that the local government is seriously considering adopting or approving'. Although the words 'is seriously considering adopting or approving' clearly hark back to the well-known expression in planning law of a 'seriously entertained planning proposal', given that there is now a legislative expression of the concept, it is the legislative expression ('is seriously considering adopting or approving') that must be applied, not the former expression ('seriously entertained planning proposal').
The term 'planning instrument' is unfortunately not defined in the deemed provisions. The term 'planning instrument' is defined in reg 77 of the LPS Regulations for the purposes of Pt 9 of the LPS Regulations which contains repeal and transitional provisions. That definition is as follows:
planning instrument means any of the following instruments -
(a)a consolidation of a local planning scheme;
(b)an activity centre plan;
(c)a development contribution plan;
(d)a local development plan;
(e)a local planning policy;
(f)a local planning scheme;
(g)a local planning strategy;
(h)a structure plan;
(i)an amendment to an instrument referred to in paragraph (b) to (h)[.]
… In terms of the list of 'planning instruments' in reg 77 of the LPS Regulations, the only planning instruments that a local government has the role of adopting (other than a local planning scheme or an amendment) or approving are a local development plan and a local planning policy. However, deriving contextual assistance in the interpretation of the expression 'planning instrument' in cl 67(b) of the deemed provisions from reg 77 of the LPS Regulations (of which the deemed provisions are Sch 2), in our view, the expression 'planning instrument' in cl 67(b) of the deemed provisions refers to a local development plan and a local planning policy.

Tribunal's findings on the status of the Structure Plan and draft LPS (Issue 3)

The Tribunal finds that neither the Structure Plan nor the draft LPS are seriously entertained planning instruments for the purposes of cl 67(b) of the Deemed Provisions.
The City acknowledged that the Structure Plan is not a structure plan as defined in Pt 4 of the Deemed Provisions as it is not intended that the Structure Plan will be approved by the Commission. Rather, the City contends that the Structure Plan operates on a similar level to a district structure plan. The Tribunal finds that the Structure Plan does not impose controls on development and land use but is directed to the preparation of future planning instruments. By its express terms, the Structure Plan is strategic in nature and provides a basis for more detailed planning in the town of Roebourne. Accordingly, the Tribunal finds that it is not a seriously entertained planning instrument.
Under Pt 3 of the LPS Regulations, the City plays no role in adopting or approving local planning strategies, and, therefore, the draft LPS does not meet the requirements of a seriously entertained planning instrument for the purposes of cl 67(b) of the Deemed Provisions. The Tribunal finds that the draft LPS is subject to the endorsement (approval) of the Commission and it has not yet been endorsed. Mr Szabo gave evidence, which was not contested by the City, that the draft LPS is awaiting final approval by the Commission (ts 50, 28 July 2020).
Under cl 67(zb) of the Deemed Provisions, the Tribunal must have due regard to any planning consideration it considers appropriate. The Tribunal is also required to have due regard to relevant planning considerations under s 241(1) of the PD Act. The Structure Plan and draft LPS have been prepared to guide future planning decisions by the City. Accordingly, the Tribunal finds that the documents contain relevant planning considerations under cl 67(zb) of the Deemed Provisions and s 241(1) of the PD Act to the extent that they reveal an intention on the part of the City to rezone the subject land, in the future, to an Industrial Precinct.

Conclusion

There is no dispute between the parties that the proposed development is characterised as 'Workforce Accommodation' which is an 'A' use in the Mixed Business zone. In Mr Szabo's opinion, the proposed development meets the objectives of the Mixed Business zone set out in cl 4.12(e) of the Scheme (ts 49, 28 July 2020). In contrast, Mr Hurley considers that the objectives are not met because the proposed development is purely for residential purposes. The Tribunal is satisfied that the proposed workforce accommodation, although residential in nature, will be operated as a business and primarily serves that function. The subject land was previously used for the purpose of workforce accommodation before its approval lapsed.
The proposed development will be located adjacent to existing workforce accommodation developments to the west and north-east. Clause 67(zd) of the Deemed Provisions requires the applicant to demonstrate that additional workforce accommodation is required. For the reasons provided above in relation to the application of DP10, the Tribunal is satisfied that the applicant has demonstrated a need for the proposed development and that additional workforce accommodation is required in the Roebourne area. Mr Hurley acknowledged in crossexamination that there is a fairly limited supply of tourist and other short-term accommodation in the Roebourne area at present (ts 69, 28 July 2020).
The Tribunal is also satisfied, based on the evidence of Mr Marsh, that the proposed development is unlikely to generate any significant social impacts that could not be mitigated for the purposes of meeting the objectives of DP20. Mr Marsh stated in evidence, which was not contested, that he struggled to find any sustained complaints about the previous operations on the subject land (ts 35, 28 July 2020).
While the Structure Plan and the draft LPS do not meet the test for seriously entertained planning instruments for the purposes of cl 67(b) of the Deemed Provisions, the documents do contemplate that the land on which the proposed development is located will transition from a Mixed Business zone to an Industrial Precinct. Accordingly, the proposed transition in the zoning of the subject land is a relevant planning consideration to which the Tribunal must have due regard under cl 67(zb) of the Deemed Provisions.
Mr Szabo expressed the opinion that the proposed development would not ultimately prevent the transition of the Mixed Business zone to an Industrial Precinct. He stated that 'there's a window there that it could operate significantly without causing problems' (ts 51, 28 July 2020). The Tribunal accepts the evidence of Mr Szabo and finds that the proposed development does not interfere with the requirements of orderly and proper planning having regard to the future industrial zoning of the subject land.
DP10 provides that any approval for workforce accommodation should be subject to a time limit. The applicant is seeking a time-limited approval for ten years. The City contends that if approval is granted, it should be limited to five years. Under cl 5.1.3 of DP10, an extension to an approval may be permitted for a maximum period of five years, while cl 5.1.2 of DP10 provides that new workforce accommodation may be approved for a maximum period of 10 years. DP10 envisages that an approval exceeding 10 years may be granted where performance criteria set out in DP10 are met.
Accordingly, having regard to the factors in cl 67 of the Deemed Provisions that are relevant to the proposed development, the Tribunal concludes that the correct and preferable decision is to grant approval to the application subject to a condition that it is limited to a period of 10 years.
The City proposed a set of draft 'without prejudice' conditions which were agreed to by the applicant subject to minor changes, including the insertion of the words 'where practicable' for the required social impact mitigation measures of sourcing local workers and services. The Tribunal finds that the conditions, which are set out in order 2 below, are reasonable and appropriate having regard to the nature of the proposed development.

Orders

The Tribunal orders:
1.The application is allowed.
2.The respondent's decision made on 26 July 2019 to refuse development application DA19061 for transient workforce accommodation units and associated facilities is set aside and instead the application for development approval is allowed, subject to the following conditions:
(i)The approved development (workforce accommodation land use) shall be in accordance with the stamped approved plans, and these shall not be altered without the prior written consent of the City of Karratha.
(ii)In accordance with the City of Karratha Local Planning Policy DP10 Workforce Accommodation, this approval shall expire 10 years from the date of occupation.
(iii)A maximum of 30 people shall be accommodated at any one time in the buildings shown as 'workers' accommodation' on the stamped approved plans.
(iv)All car parking areas shall be maintained and available for car parking and vehicle access and circulation on an ongoing basis to the satisfaction of the City of Karratha.
(v)The ongoing use of the site shall not cause erosion or degradation to the subject or surrounding land. Should the City of Karratha deem it necessary to undertake mitigation works; plans, specifications and work schedules may be required to be submitted and the works undertaken at the proponents cost and to the satisfaction of the City of Karratha.
(vi)The landscaping shown on the approved site plan shall be installed within six months from the date of this approval, and thereafter maintained to the satisfaction of the City of Karratha.
(vii)Twelve months prior to the expiry of this approval, a site decommissioning and/or a transition plan shall be submitted to and approved by the City of Karratha, and the approved plan shall be implemented within six months of the expiry date of the approval, to the satisfaction of the City of Karratha.
(viii)In accordance with the Statement on Social Impact letter dated 30 March 2020, the following Social Impact Management measures shall be implemented to the satisfaction of the City of Karratha:
(a)inductions ensuring all guests are made aware of local community facilities, liquor restrictions and associated risks;
(b)maintaining relationships with City of Karratha Rangers, local police and the ward councillors to continually improve situational awareness and early detection of any issues;
(c)sourcing workers responsible for maintenance (landscaping, cleaning and general maintenance) from Roebourne where practicable;
(d)sourcing an on-site Duty Manager from Roebourne or Karratha where practicable; and
(e)sourcing catering, waste management and security services from Roebourne or Karratha where practicable.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS C BARTON, MEMBER
24 SEPTEMBER 2020

ANNEXURE A

The Planning Framework

Planning and Development (Local Planning Schemes) Regulations 2015 (WA)

Schedule 2 to the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regulations) contains the deemed provisions for local planning schemes (Deemed Provisions). Clause 67 of the Deemed Provisions lists a range of matters to which due regard must be had by a local government (and the Tribunal on review) in considering a development application.

The matters in cl 67 of the Deemed Provisions that are relevant to the exercise of the Tribunal's discretion include:

(a)the aims and provisions of this Scheme and any other local planning scheme operating within the Scheme area;
(b)the requirements of orderly and proper planning including any proposed local planning scheme or amendment to this Scheme that has been advertised under the Planning and Development (Local Planning Schemes) Regulations 2015 or any other proposed planning instrument that the local government is seriously considering adopting or approving;
…
(g)any local planning policy for the Scheme area;
(h)any structure plan, activity centre plan or local development plan that relates to the development;

…
(m)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, bulk, scale, orientation and appearance of the development;
(n)the amenity of the locality including the following
(i)environmental impacts of the development;
(ii)the character of the locality;
(iii)social impacts of the development;

…
(w)the history of the site where the development is to be located;
(x)the impact of the development on the community as a whole notwithstanding the impact of the development on particular individuals;
…
(zb)any other planning consideration the local government considers appropriate.

Schedule A to the City of Karratha Local Planning Scheme No 8 (Scheme) contains provisions that are supplemental to the Deemed Provisions, including cl 61(zd) which provides as follows:

(zd)demonstration that additional workforce accommodation is required.

City of Karratha Local Planning Scheme No 8 (Scheme).

The subject land is zoned 'Mixed Business' under the Scheme. The Scheme has force and effect as if enacted by the Planning and Development Act 2005 (WA): s 68. Pursuant to cl 3.1(b) of the Scheme, the 'Mixed Business' zone forms part of the 'Commercial' category.

The use class 'workforce accommodation' is defined in Appendix 1 to the Scheme as follows:

'means premises, which may include modular or relocatable buildings, used
(a)primarily for the accommodation of workers engaged in construction, resource, agricultural or other industries on a temporary basis; and
(b)for any associated catering, sporting and recreational facilities for the occupants and authorised visitors.

Clause 3.2 of the Scheme sets out the zoning table with 'Workforce Accommodation' listed as an 'A' use in the Mixed Business zone. In accordance with cl 3.2.2 of the Scheme, an 'A' use means the use is not permitted unless the local government has granted development approval after giving notice in accordance with cl 64 of the Deemed Provisions.

The subject land is located within the 'Roebourne Precinct' under Appendix 2 to the Scheme. The development objectives for the 'Roebourne Precinct' are listed in cl 4.12 of the Scheme and include the following:

(e)Develop the Roebourne Mixed Business zone as a precinct in which:
•businesses may be developed in conjunction with single residences,
•uses are not permitted which are incompatible with the residential component,
and
•no site may be developed purely for a residential function.

Clause 5.5 of the Scheme outlines general development requirements relating to 'Workforce Accommodation'. These are:

5.5.1In exercising discretion in relation to a development application for workforce accommodation, the local government shall consider the following:
a)regard for the Workforce Accommodation Local Planning Policy; and
b)appropriateness of the scale design and standard of the accommodation in the context of the location and its integration with the surrounding development.

5.5.2Development applications for all time-limited workforce accommodation shall, to the local governments satisfaction, be accompanied by information and plans indicating how and when the development will be removed and the site rehabilitated or developed for a subsequent use which is consistent with the intent of the zone.
5.5.3The local government may require, by signed agreement, a commitment to the date and details of rehabilitation and development of a subsequent use the subject of subclause 5.5.2.

Clause 5.6 of the Scheme outlines general development requirements for 'Commercial' zones and includes the following:

5.6.1Development in the Town Centre, Commercial, Tourism, Mixed Business and City Centre zones shall be in accordance with the objective statements for each precinct contained in Part IV and any local planning policies contained in the Policy Manual.
5.6.2Prior to the local government considering subdivision or development applications on land within the Town Centre, Commercial, Tourism, Mixed Business and City Centre zones, a structure plan may be prepared in accordance with Part 4 of the deemed provisions.
5.6.3The density of residential development in the Town Centre, Tourism and Mixed Business zones shall not exceed R40.

City of Karratha Local Planning Policy DP10 Workforce Accommodation (DP10)

The stated purpose of DP10 is to guide assessment process and decision-making on development applications for workforce accommodation.

Clause 1 of DP10 lists the overarching and specific objectives of the policy. The overarching objective of DP10 is to manage the development of workforce accommodation with a longer term aim to maximise the resident workforce and ensure that, where workforce accommodation is provided, it is designed appropriately and contributes to the City's vision of Australia's most liveable regional City. The specific objectives of DP10 are to:

a)Manage the provision of workforce accommodation by requiring proponents of prospective workforce accommodation proposals or renewal requests to demonstrate an identified need for the beds and that such proposals are not speculative in nature.
b)Ensure that the flexibility afforded in the location of workforce accommodation is balanced with controls that facilitate development appropriate to the location, and where development occurs within an urban setting, recognises principles of reciprocal benefits that can be realised for the local community and local business from an integrated workforce accommodation facility.
c)Provide guidance and performance criteria to enable the preparation and assessment of proposals which are appropriately designed commensurate to their location.
d)Facilitate development which enables occupants to integrate with the community and town services, recognising that an appropriately integrated workforce accommodation facility has the potential to form the foundation for the development of an urban centre.
e) Enable decision makers to apply discretion in a responsible manner regarding the duration (term) of approval for a proposed development, acknowledging that workforce accommodation

(Original emphasis)

DP10 applies to development applications for workforce accommodation made on land in all zones and reserves within the City and to requests to renew the approval for existing workforce accommodation facilities on time-limited approvals: cl 2, DCP10.

Clause 5.1 of DP10 provides that 'workforce accommodation' is by its definition a temporary land use and, therefore, any approval will be subject to a time limit unless otherwise specified. Clause 5.1.2 provides that new workforce accommodation applications can be approved for a maximum period of ten years and that longer periods, exceeding ten years, may be approved where performance criteria set out in DP10 are met. Clause 5.1.3 provides that extensions of time may be permitted for a maximum period of five years.

For the purposes of how a demonstrated need will be assessed by the City for new workforce accommodation facilities, cl 5.2 of DP10 provides:

Proposals for new workforce accommodation facilities, requests to extend approval periods for existing workforce accommodation facilities or proposals to increase the number of beds associated with existing facilities must be accompanied by information that demonstrates need.
Major projects that require review of workforce demands should be the catalyst for review of workforce practices. The potential for existing settlements to accommodate workers should be considered as part of the workforce model for any such project. As such, the need for additional beds must be considered against the capacity of existing settlements to meet the accommodation demands. The following provisions guide how need will be assessed:
5.2.1A proponent of new workforce accommodation, or an increase in the number of beds for an existing facility, must demonstrate a need for the development, as part of their proposal. The need for beds must be demonstrated in the context of workforce accommodation provision across the City and across industry demands.
5.2.2Proponents must demonstrate liaison with the City and evaluation of options regarding capacity in local housing and land supply markets, prior to applying for workforce accommodation facilities associated with major projects.
5.2.3Assertions that there is adequate demand for workforce accommodation to support business investment which are not substantiated with demonstrable demand are not accepted as the basis for demonstrating need for workforce accommodation.
5.2.4Advocating for new workforce accommodation in conjunction with a reduction of workforce accommodation beds elsewhere, is insufficient by itself to demonstrate need for workforce accommodation.
5.2.5Evidence of occupancy, contracts or bookings may contribute to the demonstration of demand for workforce accommodation.
5.2.6Assessment of workforce accommodation proposals must consider the cumulative impacts of multiple workforce accommodation developments on the sustainability and liveability of affected towns and the City generally

Clauses 5.3 to 5.5 of DP10 require that workforce accommodation facilities are to be suitably located and appropriately designed, and that development applications are to be accompanied by a social impact assessment (SIA) and a social impact management plan (SIMP) in accordance with DP20.

City of Karratha Local Planning Policy DP20 Social Impact Assessments (DP20)

The stated purpose of DP20 is to provide guidance to applicants, agencies and the City in consideration of social impacts, both positive and negative, in relation to proposed new developments and extensions to existing developments.

The objectives of DP20 are to:

1)Facilitate a consistent and transparent approach to the consideration of local social impacts, both positive and negative, in land use planning decision-making.
2)Minimise adverse impacts and maximise beneficial impacts of proposed developments.
3)Provide clear guidance as to the specific development types and circumstances where a social impact assessment is required.
4)Encourage upfront and ongoing engagement with the community and other key stakeholders regarding the potential impacts of a proposed development.
5)Assist agencies and proponents minimise the amount of time taken to prepare social impact management plans for major projects.

Clause 3 of DP20 provides the following definitions of a SIA and a SIMP:

Social Impact Assessment (SIA) means a process of identifying, anticipating, understanding and managing the social and community outcomes of a development that are likely to impact on community wellbeing. The fundamental objective of a SIA is to ensure that development maximises positive impacts and minimises negative impacts.
Social Impact Management Plan (SIMP) is a plan to guide the implementation of impact mitigation and enhancement strategies, identifies in a social impact assessment report.

Clause 6.1 of DP20 requires that a SIA must be completed for, and form part of, new proposals that fall within the use class of 'Transient Workforce Accommodation' under the Scheme. Clause 6.1 provides:

Where planning approval is required, a SIA shall be completed for, and form part of, new proposals that consist of one or more of the following:
•Falling within the use class of 'Industry Resource Processing'
•Falling within the use class of 'Transient Workforce Accommodation'
•Being on land that is zoned 'Strategic Industry'
as established in the City of Karratha Town Planning Scheme No. 8.

The Council may, at its discretion, require a SIA to be completed and submitted for other forms of development/proposed land uses that are likely to have a significant local social impact.
A SIA shall be completed for, and form part of, applications for development approval that relate to existing development / land uses that consist of one or more of the following:
•An extension of time in excess of 12 months
•An extension to the scale of the project in excess of 10%, as determined by either the capacity of the development or the development value (whichever is the greater)[.]

(Original emphasis)

Clause 6.4 of DP20 sets out the scope and methodology of SIAs:

Where a SIA is to be completed for a development proposal, in accordance with Section 6.1, the SIA shall be required to be lodged with, and form part of, the formal application for planning approval. Figure 1 illustrates how the SIA process is intended to be integrated into the statutory planning decision-making processes or other decision making frameworks.
It is generally recommended that a SIA report is a standalone document that is appended to the balance of the development proposal. The SIA report shall include the following information:
a) A brief description of the subject site and surrounds.
b) A description of the development project.
c)Likely direct and indirect impacts and the potential for cumulative impacts.

d) The significance of likely and potential impacts.
e) Completed SIA findings report, outlining the type and significance of impacts (temporary and permanent) and the Applicants proposed response to mitigate negative impacts and enhance positive impacts.

The structure of a SIA should generally be in accordance with Attachment B of this Policy.
In assessing a SIA, the City will consider (at a minimum):
a) The degree of change likely to arise from the proposed development, relative to existing circumstances and consideration of the alignment of the change with the long term vision for the City.
b)The number and nature of people likely to be affected, both positively and negatively.

c) Whether the impact will be direct or indirect.
d) The potential for cumulative impacts as a result of the development.

In preparing a SIA, proponents may be required to undertake consultation with relevant stakeholders and/or the community.

Under clause 6.5 of DP20, an SIA must include a SIMP which is to accompany the relevant development application. Clause 6.5 provides:

A SIA shall include a Social Impact Management Plan (SIMP) to provide strategies and monitoring mechanisms for impacts identified through the process generally set out under Section 6.4 of this Policy. A social impact management plan (SIMP) is required to be provided as part of an application lodged with the Council.
A SIMP shall contain:
a)Proposed measures to enhance positive impacts and mitigate negative impacts.
b)A monitoring program for assessing the performance of the mitigation and enhancement measures
c)Details of how the community will be involved in the monitoring and evaluation process, if appropriate.
d)Procedures for periodically reviewing and updating the SIMP.

To maximise efficiency of process, Applicants are encouraged to liaise with the City as part of the preparation of the SIA and SIMP to ensure the SIA is appropriately addressing all relevant considerations.

Roebourne Structure Plan (Structure Plan)

The City adopted the Structure Plan in July 2014 to provide an overarching framework for the revitalisation and future development of the town of Roebourne. Section 1.1 of the Structure Plan states that it operates on a similar level to a district structure plan.

The Structure Plan identifies seven precincts. It is not in dispute that the subject land is located within the 'Industrial Precinct' and that the boundaries of the 'Industrial Precinct' coincide with the existing 'Mixed Business' zone. The purpose of the 'Industrial Precinct' is provided in s 2.7 of the Structure Plan as follows:

This precinct is to remain as a location for industries associated with serving the mining industry as well as mechanical and light industries related to the residential needs of Roebourne.

In relation to dominant land uses in the 'Industrial Precinct', s 2.7 of the Structure Plan relevantly provides:

No further worker camps or Transient Workforce Accommodation will be allowed in this precinct. No further residential development is to be allowed in this precinct.

Section 2.7 of the Structure Plan further provides the following in relation to the 'Industrial Precinct':

Staging
Developments which provide employment opportunities within light industries will be encouraged.
Transient Workforce Accommodation is not envisaged at any time in this precinct.
Statutory response
This significant change will be reflected in the Local Planning Strategy and into affect in the next planning Scheme. All existing use rights will continue, and land uses which no longer conform with the intent of this precinct will be required to operate continuously if they are to remain.
It is recommended that a Local Planning Policy be prepared for the Industrial Precinct to guide future development within the Precinct[.]

Section 5.9 of the Structure Plan provides a Roebourne Townsite Staging Plan. The 'Industrial Precinct' is shown as priority 2 and provides:

This is to transition from a Mixed business zone to industrial activities. All existing lawful uses can remain while still in operation. No additional Transient workforce accommodation envisaged for this area. No extension beyond present boundaries.

City of Karratha Draft Local Planning Strategy (Draft LPS)

The draft LPS was adopted by the City in December 2017 and is currently with the Western Australian Planning Commission (Commission) for endorsement under Part 3 of the Regulations.

The current version of the draft Strategy is dated February 2018 and comprises two parts, Part A and Part B. The introduction to the draft LPS in Part B, s 1.0 provides as follows:

This is the City's first Local Planning Strategy and represents the land use planning direction that will help realise the vision for the City for the benefit of the community, business, industry and the State and National economies.
The Strategy provides both short to medium term objectives and long-term pathways. The Strategy is based on a long term planning horizon, with the aim of being able to accommodate a population of approximately 35,000 and the ability to grow to a population of 50,000. Progress will be monitored[.

Section 6.3 Roebourne Overview in Part B of the draft LPS relevantly provides:

INDUSTRY
The rezoning of the existing Mixed Business zone to an Industry Zone will allow development of a more intensive nature within what is referred to as the Industry Precinct. This area is expected to service the mining industry as well as logistics, mechanical and other light industries related to the residential needs of Roebourne.
Expansion of this area westward, where it will form a compatible use within the 500m buffer of the waste water treatment plant is also supported. Such expansion will need to be designed in such a way as to manage drainage from local catchment runoff and avoid damage to the water supply main that must be crossed in order to access the site.

WORKFORCE ACCOMMODATION
The Roebourne Structure Plan specifically recommends that no further residential development, including WA camps, be permitted within either the Commercial Precinct or the Industry Precinct.
This Strategy considers Roebourne town as unsuitable for further TWA camp development and recommends WA proposals not be supported within the townsite boundary of Roebourne.

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Citations

Kelmscott Central Pty Ltd and City Of Karratha [2020] WASAT 116

Cases Citing This Decision

0

Cases Cited

8

Statutory Material Cited

5

Sammut v AVM Holdings Pty Ltd [No 2] [2012] WASC 27

Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276