Kelvedon Pty Ltd v The Shire of Northam - [2011] WASC 288

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: KELVEDON PTY LTD -v- THE SHIRE OF NORTHAM [2011] WASC 288

CORAM: McKECHNIE J

HEARD: 15 SEPTEMBER 2011

DELIVERED : 21 OCTOBER 2011

FILE NO/S: CIV 2451 of 2011

BETWEEN: KELVEDON PTY LTD
First Applicant
DERBY INDUSTRIES PTY LTD
Second Applicant
AND
THE SHIRE OF NORTHAM
First Respondent
FERMORA PTY LTD
Second Respondent

Catchwords:

Town planning and development - Development approval - Park home park - Whether inconsistent with tourism under Town Planning Scheme - Whether council had due regard to State planning policies - Whether the imposition of a condition rendered the approval tantamount to a refusal - Whether there is power to amend or revoke a condition of approval - Whether approval inconsistent with rights of easement

Legislation:

Caravan Park and Camping Grounds Act 1995 (WA)
Caravan Parks and Camping Grounds Regulations 1997 (WA)
Environmental Protection Act 1986 (WA), s 39A(7), s 39A(8)
Planning and Development Act 2005 (WA), s 68(1), s 69, s 256, pt 15
Town Planning and Development Act 1928 (WA), s 5AA, s 6
Town Planning Regulations 1967 (WA), reg 11(1)(a)

Result:

Leave to show cause granted
Application dismissed

Category: B

Representation:

Counsel:

First Applicant              :     Mr P G McGowan
Second Applicant          :     Mr P G McGowan
First Respondent           :     Mr C A Slarke
Second Respondent       :     Mr P G Clifford

Solicitors:

First Applicant              :     Cornerstone Legal
Second Applicant          :     Cornerstone Legal
First Respondent           :     McLeods
Second Respondent       :     Lawton Gillon

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

Bonton Pty Ltd v City of South Perth [1982] WAR 213
Costa v Shire of Swan [1983] WAR 22
Mison v Randwick Municipal Council (1991) 23 NSWLR 734

McKECHNIE J:

What this case is about

The applicants slaughter pigs. To be precise, the first applicant owns land on Linley Valley Road, Wooroloo, adjacent to land owned by Fermora Pty Ltd. The second applicant operates the Linley Valley Fresh Abattoir on that land. As their interests align I will refer to them as the applicants. Fermora wants to build a park home style retirement village on part of its land. The Shire of Northam (Northam) has granted development approval. In the past two years the applicants have left few stones unturned in attempting to stop the village. When, in July this year, Northam replaced the requirement in the development approval for a buffer study with a requirement for an odour assessment, the applicants applied for a writ of certiorari quashing the decision granting the development approval to the village. The applicants could have applied for certiorari at the beginning of 2010 when approval was granted but chose not to.
Since development approval was granted, Fermora has proceeded with civil earthworks with the aim of having five park homes ready for sale by October, as apparently spring time is the best time for sale.
For the reasons which follow, the applicants have failed to make out their case for certiorari and the application is dismissed.

The proceedings

At the hearing for order nisi to show cause, I suggested it might be quicker if the matter was adjourned and argued as if an argument on the return of the order nisi. Fermora was joined as a respondent as an affected entity. The parties agreed. The applicants foreshadowed an application for a stay.
Quite what would be stayed may have become an interesting issue but it fell away at the hearing.

The evidence

Without objection, each party read the affidavits and more particularly the annexures which comprise the bulk of the case. The main affidavit for the applicants is that of Mr David Lock sworn 8 August 2011. Northam relied on the affidavit of Mr Chadd Hunt sworn 1 September 2011. For Fermora, Mr Pavlinovich swore three affidavits dated 25 August 2011, 1 September 2011 and 7 September 2011. Mr Pavlinovich was cross‑examined on a limited aspect in relation to an application for a stay against further action by Fermora developing the land. In due course, the applicants withdrew their request for a stay and made no submissions on evidence arising from the cross‑examination. I have not taken it into account on the issues arising in the application.
In addition, a small number of other documents were tendered at the hearing.

The application

The certiorari application dated 8 August 2011 seeks to quash:
1.the decision by the Shire of Northam on 20 January 2010 to approve a planning application relating to development of a lifestyle village on land adjacent to an abattoir; and/or
2.the decision by the Shire of Northam on 16 February 2011 to revoke one of the conditions of that approval, being a buffer study condition, and substitute it with an odour study assessment condition.

The issues

(1)Do the applicants have standing to bring this application?
Yes.

(2)Does the delay lead to a refusal of the application?
No.

(3)Was the development approval inconsistent with Northam's Town Planning Scheme No 3?
No.

(4)Did Northam fail to have due regard to various State Government instruments?
No.

(5)Was the approval tantamount to a refusal?
No.

(6)Did Northam have power to amend the development approval?
Yes.

(7)Was the development approval inconsistent with the applicants' rights of easement?
No.

Issue 1 - The applicants have standing

It is not in issue that certiorari can lie to quash a decision of Northam granting development approval.
Northam disputes that the applicants have standing to bring a writ of certiorari, arguing that neither the approval or amended approval, directly or indirectly, restrict the applicants' use of land, nor the operation of the existing Linley Valley Fresh Abattoir or the its future expansion, given that Northam granted an approval for the expansion of the abattoir on the same day as it granted approval for the Lifestyle Village.
The applicants have some connection to the land by reason of certain easements. They are, broadly speaking, neighbours to the development and may potentially be affected. They assert they are affected by works being undertaken by Fermora that encroach upon their easement. Northam's argument involves an assumption, which is challenged, that the conditions imposed on the development approval are sufficient to protect the applicants from any harmful effect of the grant. This cannot be determinative of the question of standing. I hold that the applicants have standing. They are sufficiently affected by the development approval to acquire standing to challenge the decision.

Issue 2 - The delay does not lead to a refusal of the application

Fermora asserts that the application is out of time with respect to the approval made 20 January 2010. However, the six‑month limitation referred to in Rules of the Supreme Court (WA) O 56 r 11 does not apply to the approval of a development application by a local government authority. It is limited to proceedings and bodies set out in O 56 r 11. I hold that the application for certiorari is not time‑barred. Delay is a relevant discretionary consideration and may be considered for the purposes of concluding whether there should be an order absolute. However, it is a factor not a guillotine.
The delay from the initial development approval is great. I do not consider the explanation given - waiting until the substitution of the buffer study condition with the odour assessment condition - is sufficient. The applicants were active in other ways seeking to stop the development. If Fermora had complied with the buffer study condition the delay would be fatal.
As none of the grounds have merit, it is unnecessary to decide if the delay alone should defeat the applicants.

Issue 3 - Development approval inconsistent with Northam's Town Planning Scheme No 3

Ground 1

Granting development approval that was inconsistent with the zoning provisions of the applicable town planning scheme;

The applicants' argument in summary is that to be a permitted use within a particular zone, the use must be listed as a permitted use and comply with relevant development standards. The development proposed by Fermora was not a permitted use within a tourist zone, and therefore not capable of approval because it did not comply with pt 4 - Zones and the Use of Land - of the Town Planning Scheme. Effectively, the applicants' argument is that the lifestyle village has no sufficient connection with tourism. It is said that in the report, which contained the recommendation to council to grant development approval, a limited connection to tourism was acknowledged.
On 1 April 2009, Fermora submitted an application for development approval over a portion of land held by Fermora at Jocoso Rise, Wundowie. The description of proposed development and/or use was:
A lifestyle village comprising approximately 225 villas and associated facilities including pool, bowling green and club house.
The site design would be developed in accordance with the Caravan Parks and Camping Grounds Act 1995 (WA).
The primary aim of the development is to -
[P]roduce a desirable affordable community for active retirees by providing an alternative form of housing to that offered in standard residential subdivision in the area. The facility will be operated in conjunction with the El Caballo Resort which will provide complimentary facilities for village homeowners to those provided within the village.
The lifestyle village is in law a park home park. A park home park as defined in the Caravan Parks and Camping Grounds Regulations 1997 (WA) is 'a caravan park at which park homes, but not any other caravans or camps, are situated for habitation'.

The Shire of Northam Town Planning Scheme No 3

Both the applicants' and Fermora's land are within Northam's Town Planning Scheme No 3 (TPS3). The Scheme follows generally the text of the model scheme. Fermora's land is in a tourist zone within TPS3.
By cl 4.2, a tourist zone is: '[T]o provide for tourism development and uses associated with tourism development, including retailing and service facilities where such facilities are an integral part of the development and are of a scale appropriate to the needs of the development'.
Under cl 4.3 Table 1, the zoning table indicates the uses permitted in various zones. Note 2 to cl 4.3 reads:
The local government will not refuse a 'P' use because of the unsuitability of the use for the zone but may impose conditions on the use of the land to comply with any relevant development standards or requirements of the Scheme, and may refuse or impose conditions on any development of the land.
Permissibility uses are determined by cross‑reference.
'P' means that the use is permitted by the Scheme providing the use complies with the relevant development standards and requirements of the Scheme. Under Table 1, a park home park is a permitted use in a tourist zone and is designated 'P'.
The applicants submit that:
62.To be a permitted use within a particular zone pursuant to TPS 3, the proposed use must:
a.be listed as a permitted use in the Zoning Table (TPS 3 at 4.3.1) ('First Limb'); and
b.comply with relevant development standards and the requirements of the Scheme (TPS 3 at 4.3.2) ('Second Limb').
This is a reference to cl 5.1: 'Any development of land is to comply with the provisions of the Scheme'.
If a proposed use as a park home park is permitted within a particular zone, Northam cannot refuse that use because of unsuitability for tourism. It is deemed to be a suitable use by its inclusion in the zoning table. Northam may impose development conditions. Contrary to the applicants' submission, development approval is not linked to zoning use. The approval was made subject to numerous conditions as to use and development in conformity with Note 2.
The applicants do not point to, and there is no evidence that Fermora's proposal does not comply with General Development Requirements: TPS3 pt 5.
Instead, the applicants' argument loops around to assert that the approval does not comply with development requirements because it is not really a tourist development. That argument is foreclosed by the zoning table.
The applicants further submit that the development ought to have been the subject of formal rezoning so that services ordinarily expected in a semi‑urban environment where persons live permanently could have been taken into account in terms of the infrastructure and servicing requirements. Whether or not Northam could have chosen to amend the zoning under its Scheme is immaterial to the question whether the decision to approve the development application can be quashed by a writ of certiorari. A park home park complied with TPS3. There is no substance in ground 1.

Issue 4 - Northam did not fail to have due regard to various State Government instruments

Ground 2

Failing to have due regard to Shire of Northam Town Planning Scheme 3, State Planning Policy 1 - State Planning Framework Policy, State Planning Policy 2.5 - Agricultural and Rural Land Use Planning and/or State Planning Policy 4.1 - State Industrial Buffer Policy.

Statement of Planning Policy No 1

The State Planning Framework Policy (Variation No 2) is prepared under the Town Planning and Development Act 1928 (as amended) (WA) s 5AA by the Western Australian Planning Commission (WAPC). Clause 2 sets out its Purpose. Clause 3 sets out Use of the Framework. By cl 3.1 a):
As a Statement of Planning Policy, under Section 5AA of the Town Planning and Development Act (1928), the Commission and local governments must have due regard to the provisions that form part of this Framework in preparing planning schemes and making decisions on planning matters.
The aims are set out in pt A and are elaborated.
Statements of Planning Policy include: SPP4.1 - State Industrial Buffer Policy; B2 - Regional Strategies; SPP11 - Agricultural and Rural Land Use Planning.
TPS3 pt 10 sets out the Procedure for dealing with Applications. Clause 10.2 sets out Matters to be Considered by Local Government:
The local government in considering an application for planning approval is to have due regard to such of the following matters as are in the opinion of the local government relevant to the use or development the subject of the application.
There follow enumerated matters (a) to (za). One such matter, 10.2(c), is any approved statement of planning policy of the Commission.
The applicants nominate the following as matters that Northam should have taken into account:
(ii)protecting agricultural land resources from inappropriate uses;
(iii)avoiding land use conflicts by separating sensitive and incompatible uses from industry and other economic activities with off‑site impacts;
(iv)promoting local employment opportunities in order to reduce the time and cost of travel to work.
They say that the decision was inconsistent in that:
a.It failed to protect the LVF Lots and/or the Abattoir from inappropriate uses on adjacent land;
b.It failed to avoid land use conflicts by separating the Lifestyle Development, being a sensitive and incompatible land use, from the Abattoir and its associated off‑site impacts; and
c.It failed to recognise the importance of the Abattoir as a source of local employment, and the potential detrimental effect on local employment should the Abattoir be forced to reduce or cease its operations in the future as a result of the impact of the Lifestyle Development.
The applicants supported the submission by a detailed reference to particular parts of the State Planning Policy, especially SPP1.1; SPP2.5 Agricultural and Rural Land Use Planning; SPP4.1 State Industrial Buffer Policy. The principal purpose of the State Planning Policies is to provide guidance and framework.
Under the Statement of Planning Policy No 1 the State Planning Framework Policy's Purpose is set out in par 2. General Principles are in pt A:
1.The primary aim of planning is to provide for the sustainable use and development of land.
The main purpose is to assist with planning rather than specific development applications without permitted uses within an existing plan.
Statement of Planning Policy No 11, Agricultural and Rural Land Use Planning Application of the Policy, contains the following:
The provisions of this policy apply to the preparation and assessment by the Commission of -
•Region planning schemes and strategies
•Local planning strategies
•Town planning schemes and amendments to town planning schemes
•Structure plans and outline development plans; and
•Planning guidelines and non‑statutory policies and plans.
The Policy Measures requirements under 5.1 reads:
(i)Local planning strategies should -
...
(e)develop subdivision and development criteria for the identified agricultural, tourist and closer settlement areas;
...
(ii)Local planning policies may be prepared to assist a local government in making decisions under its town planning scheme. The local planning policies should be consistent with the provisions of this Policy.
Statement of Planning Policy No 11, is a planning policy which provides for local authorities to develop strategies. It does not directly relate to the granting of development approval in a permitted use under a town planning scheme.
The Statement of Planning Policy No 4.1, State Industrial Buffer Policy:
1.2The policy applies to all industry infrastructure and special use categories where on‑site and off‑site buffer areas are required. ...
It addresses the buffer requirements of, amongst others, rural industry.
In 1.3 Implementation of a Statement of Planning Policy, the role for local government is set out as:
7.Preparation of schemes
(5)Every local authority in preparing or amending a town planning scheme
(a)shall have due regard to any approved statement of planning policy under section 5AA which affects its district;
This means that whenever a local government amends or reviews a scheme or prepares a new district scheme it must pay due regard to this statement of planning policy.
Northam was not doing any of those things; it was considering a grant of development approval under an existing scheme.
The evidence does not support the applicants' contentions. Mr Chad Hunt is now the Project Manager, Community Infrastructure for Northam, and had previously been the Executive Manager, Development Services, in which role he had overall responsibility for all town planning matters within Northam, including the assessment and processing of applications for planning consent.
He is familiar with the application for planning approval by Fermora. He approved all reports that went before council.
Northam consulted with a number of government departments pursuant to TPS3 pt 10.
The application was advertised from 30 June until 20 July 2009. Northam invited and received submissions from the Department of Environment and Conservation, the Department of Water, Fire & Emergency Services Authority and Department of Health.
The application was also referred to the EPA by the applicants. The EPA declined to assess the application. An appeal by the applicants was dismissed by the Minister on 22 December 2009. Notwithstanding the EPA's decision, the Office of the Environmental Protection Authority did provide public advice by letter to Northam dated 7 January 2010 in relation to the application under the Environmental Protection Act 1986 (WA) s 39A(8).
The Office of the Environmental Protection Authority made recommendations:
•a building setback to provide a 500 metre odour buffer to anaerobic wastewater treatment ponds associated with adjacent abattoir without rendering facilities;
•a notification on the lease agreement of the proposed lots advising of the proximity to potential nuisances relating to odour, noise, dust which adjacent land users may cause;
•an assessment of 'on‑ground' odour to the satisfaction of DEC's Air Quality Management Branch, in order to demonstrate that future residents will not be exposed to unreasonable levels of nuisance odours from existing land uses; and
•development of a vegetation and landscaping plan to ensure the retention of significant habitat trees, the planting of vegetation buffers and landscaping to protect nature conservation values and minimise visual, odour, noise and impacts.

In his affidavit par 35, Mr Hunt sets out issues (a) ‑ (g) which were discussed in the report to Northam which he contended addressed all relevant planning matters relating to the application. They included:
35The Report considered by Council in my opinion addressed all relevant planning matters arising in relation to the Application. The issues discussed in the Report included the following:
a.Provision of urban facilities
b.Visual impact and amenity
c.Topography, draining, soils and vegetation
d.Utility Services
e.Pedestrian and Vehicular Access
f.Environment, setting and land capability considerations
g.Public consultation
36.[T]he Report concluded as follows:
'On the basis of the compatibility and the acceptability of the use of a Park Home Park within a Tourist Zone under objectives of the TPS 3 the application is recommended for approval subject to conditions addressing the health issues associated with the location of the site in proximity to an abattoir and its wastewater treatment ponds.'
The Report recommended approval of the Application subject to a total of 32 conditions, which Mr Hunt asserts were intended to ensure that the Development as approved would be consistent with the requirements of TPS3.
Mr Hunt set out particular conditions and reasons for them:
38The following conditions in particular were intended to address the potential amenity impact of the abattoir upon future residents of the Lifestyle Village, in accordance with the submissions and comments received of the DEC, Minister for Environment and OEPA as referred to above:
1.1The Applicant is required to submit revised plans for the approval of the Shire, prior to the issue of any building licence and/or the commencement of site works, that includes the following requirements:
1.1.1A building setback of 230 metres to the western side boundary of Lot 81, in order to provide a 500 metre odour buffer to the anaerobic ('odour sensitive') wastewater treatment ponds associated to an abattoir without rendering facilities.
1.1.2Demonstrating the overall reduction of the proposed number of park home sites located within the Lifestyle Village to be confined within an area bounded by the road reserve as approved by WAPC's subdivision application (No 139278), the setback requirement mentioned in 1.1.1 of this approval, as well as the northern and eastern boundaries of Lot 83;
1.10Notification in the form of a Section 70A notification, pursuant to the Transfer of Land Act 1893 (as amended) is to be placed on the Lease Agreement of the Proposed lot(s) advising that:
'This lot is situated in the vicinity of an abattoir and may be affected by potential nuisances relating to odour, noise, dust, and the like that this land use may cause.'
1.29The planting of vegetation buffers and landscaping to reduce visual and noise impacts to occupiers of the Lifestyle Village and adjoining properties in accordance with a submitted and approved Landscaping Plan;
1.31A buffer study to be submitted and approved to the satisfaction of the Department of Environment and Conservation's Air Quality Management Branch, prior to the construction of any buildings on the site, ensuring that potential residents will not be exposed to nuisance odours from existing land uses.
39The effect of condition 1.1.2, in restricting the area within which park home sites were to be sited, was to reduce the total number of park homes from 228 park homes (as originally proposed) to 181 park homes, to be constructed in four development stages in accordance with condition 1.1.5.
Northam approved the Application in accordance with the recommendation contained in the Report on 20 January 2010. The motion to approve the Application was carried 8/2.
I accept Mr Hunt's evidence.

The buffer study requirement

In its response of 3 August 2009, the Department of Environment and Conservation set out a buffer study requirement:
In relation to adjoining land use, the Linley Valley Pork Operations is located on the adjacent property to the south west of Lot 81 and is considered under the Environmental Protection Authority's Guidance Statement No: 3 as an industry requiring a generic buffer distance of between 500 and 1000 metres from sensitive land uses, including residential developments. It has been identified that the Lifestyle Village proposal will place the south western most occupiers of chalets within 300 metres of settling ponds and at a distance of approximately 650 metres from the Abattoir infrastructure. The close proximity of a sensitive land use to industry prompted the DEC to recommend further security on this issue. In October 2007, DEC reviewed a site‑specific technical analysis prepared by the proponent of odour emissions from the Linley Valley Pork Operations and an account on the possible effect this may have had on a proposed subdivision of Lots 81, 83 and 89 Jococo Rise.
The Department of Health in its response of 30 December 2009 concluded:
It is recommended that the Shire of Northam includes a requirement for consideration of the following with respect to the proximity of the Abattoir including all its facilities such as animal holding areas, waste product handling and disposal (hides, skins, inedible material etc) and the wastewater treatment ponds:
•Odour and noise (including transport and stationary) modeling
•Other potential impacts to future residents
The outcome of these assessments could possibly indicate that future residents may be adversely affected by activities associated with the Abattoir. It is therefore also recommended that a range of management options, including extension of the separation distance from the nearest residences to the Abattoir and associated facilities, are given appropriate consideration.
In its public advice under the Environmental Protection Act 1986 s 39A(7) on 7 January 2010, the Office of the Environmental Protection Authority gave advice and recommendations regarding environmental issues:
2.Advice and Recommendations regarding Environmental Issues
a.Separation distances between industry and sensitive land uses (odour, noise, dust)
The EPA notes that the proposed area is within one kilometre of an existing abattoir which has the potential to present conflict with regards to odour, noise and dust emissions. The EPA recommends the need for the following measures to be incorporated into the relevant planning approval:
•a building set back to provide a 500 metre odour buffer to anaerobic wastewater treatment ponds associated with adjacent abattoir without rendering facilities;
•a notification on the lease agreement of the proposed lots advising of the proximity of potential nuisances relating to odour, noise, dust which adjacent land uses may cause;
•a assessment of 'on-ground' odour to the satisfaction of the DEC's Air Quality Management Branch, in order to demonstrate that future residents will not be exposed to unreasonable levels of nuisance odours from existing land uses; and
•a development of a vegetation and landscaping plan to ensure the retention of significant habitat trees, the planting of vegetation buffers and landscaping to protect nature conservation values and minimise visual, odour, noise and impacts.
Future development should be consistent with the EPA's Guidance Statement No. 3 Separation Distances Between Industrial and Sensitive Land Uses. The EPA recommends that generic separation distances are maintained unless adequate site‑specific studies have been carried out that demonstrate that a lesser distance will not cause unacceptable impacts. The Shire should ensure that this Guidance is adequately considered and managed through detailed planning processes.
The report to Northam considered the Planning Guideline contained in the WAPC Planning Bulletin No 49 entitled Caravan Parks and Planning Bulletin No 71 entitled Residential leasehold estates and developments.
In Mr Hunt's opinion these are the planning policy instruments of primary relevance in relation to the application.
On the same day as it granted planning approval, Northam also granted development approval for the abattoir. Northam can hardly have been unaware of the potential for conflict in land use. An examination of the approval shows that in fact it was acutely aware of the potential for conflict and imposed many conditions to deal with it. The applicants' argument concedes that Northam was aware of the potential for conflicting land use between the abattoir and the Fermora land and the requirement of a buffer zone.
Although Northam did not expressly refer to SPP1.1, SPP2.5, SPP4.1 or GS 3, I am satisfied that Northam did overall pay due regard to the matters to be considered by it under TPS3, 10.2 in particular, 10.2(c) and 10.2(o).
As to whether the policy on agricultural land was relevant, the Minister noted that the proposal area is former agricultural land and is largely cleared of native vegetation. The land is not zoned agricultural. In relation to SPP1 pt A, A3 Economy reads:
[P]lanning should provide for economic development by:
ii.protecting agricultural land resources from inappropriate uses;
iii.avoiding land use conflicts by separating sensitive and incompatible uses from industry and other economic activities with off‑site impacts;
Northam were, as I say, acutely aware of this and paid due attention to it. In any event, it could not reasonably be argued that either the applicants' or the Fermora land was, any longer, agricultural land.
(iv)promoting local employment opportunities in order to reduce the time and cost of travel to work;
The applicants submit that the council failed to recognise the importance of the abattoir as a source of local employment and the potential detrimental affect on local employment should the abattoir be forced to reduce or cease its operations in the future as a result of the impact of the lifestyle development.
Northam clearly recognised the importance of the abattoir as a source of local employment in approving the development application for the abattoir on the same date. There is no evidence supporting the assertion that there is a potential for the loss of jobs. Clause (iv) has nothing to do with the development approval for the lifestyle village.

Agricultural and rural use: SPP2.5

The applicants' argument is the same argument as its principal submission which is effectively that an abattoir and lifestyle village cannot co‑exist. As to that, Northam had the advice of the Office of the EPA and imposed appropriate conditions. The same can be said of SPP4.1, the State Industrial Buffer Policy.

Conclusion

The matters about which the applicants complain as raising an error of law sufficient for the grant of certiorari are not easy to establish when all that is required by Northam is to have due regard to those issues. The evidence of Mr Hunt establishes, to my satisfaction, that Northam did have due regard to all appropriate planning issues. To the extent to which the various State Planning Policies were relevant, the most important was the Buffer Policy. Northam not only had due regard to it but also followed the advice from the Office of the Environmental Protection Authority when imposing conditions. Ground 2 cannot be sustained.

Issue 5 - Was the approval tantamount to a refusal

Ground 3

Granting development approval on 20 January 2010 including conditions that were not capable of being satisfied, thereby granting an approval is tantamount to a refusal;

The grant of approval provided 1.1.1:
A building setback of 230 metre to the western side boundary of Lot 81, in order to provide a 500 metre odour buffer to the anaerobic ('odour sensitive') wastewater treatment ponds associated to an abattoir without rendering facilities;
Condition 1.31:
A buffer study to be submitted and approved to the satisfaction of the Department of Environment and Conservation's Air Quality Management Branch, prior to the construction of any buildings on the site, ensuring that potential residents will not be exposed to nuisance odours from existing land uses.
A condition of planning approval is tantamount to a refusal if it significantly alters the development in respect of which the application is made: Mison v Randwick Municipal Council (1991) 23 NSWLR 734, 737.
Attention must be focused on the condition, not on what may or may not occur subsequently that renders the condition onerous or impractical. Condition 1.31 was simply for a study to be submitted and approved prior to the construction of any building.
This was a condition, when made, that was eminently capable of being fulfilled. There is no evidence to the contrary. Mr Lock asserts:
56.At the time the Approval was granted, this condition was not capable of being cleared as the Fermora Lots were still:
a.Within a circle of 1000m²from the Abattoir; and
b.Subject to the pollutants emanating from the Abattoir.
The first point assumes 1,000m²is the proper buffer distance despite Office of Environmental Protection Authority advice that 500 metres is sufficient. For the second point, the applicants, through Mr Lock's affidavit, point to a letter from Department of Environment and Conservation dated 24 December 2010 stating that Department of Environmental Protection cannot guarantee that the abattoir operations will never create unacceptable odours. The full paragraph significantly qualifies the extract:
DEC cannot guarantee that the abattoir operations will never create unacceptable odours. The nature of the operations itself will generate odours. However, good practices and procedures, buffer distances and screening will mitigate potential unacceptable odours being generated. Based on the abattoirs' current operating practices, the absence of odour complaints is an indication that current practices pose a low risk in regard to odour complaints. If the abattoir expansion is approved through the works approval process, the current licence and its conditions will be reviewed to address odour emission.
The prediction of low risk has been confirmed in 2011 by the Odour Assessment Study which concluded:
The field ambient survey odour maps have shown that the Linley Valley Pork Abattoir Waste Water Pond odours were negligible beyond approximately 200 metres downwind. This indicates that the anaerobic ponds were well maintained under their current configuration. Of the odour detectable within 200 metres the frequency of problematic odours greater than 2 were low with much of the observations being transient after calm conditions.
This distance is, of course, well within the buffer zone of 500 metres.
Department of Environment and Conservation wrote to Northam on 5 July 2011:
In regards to your question 'does the assessment demonstrate that future residents are not at significant risk of being exposed to nuisance odours?' The Department of Environment and Environment [sic] (DEC) can advise that based on the information that has been provided by the Shire of Northam and the operational status‑quo remaining the same at the Linley Valley Abattoir facility it appears that future residents should not be at significant risk being exposed to nuisance odours from the abattoirs pond waste water treatment systems.
...
However DEC wishes to stress, as in its previous correspondence, that land use separation distances between sensitive receptors and potential noxious industries should be maintained at their maximum where possible to avoid odour nuisance issues due to the uncertainty of any odour assessment that is conducted.
The requirement under Condition 1.31 did not alter the development in any way. The applicants' submission is:
150.The Buffer Study Condition was not capable of being satisfied for the following reasons:
a.The setback between the Lifestyle Development and the Abattoir's anaerobic wastewater treatment ponds located on the LVF Land is approximately 380 metres (Affidavit of D Lock at para 58);
b.The separation distance between the proposed Lifestyle Development and the Abattoir is approximately 750 metres (Affidavit of D Lock at para 57);
c.The default buffer distance for the Abattoir pursuant to GS 3 was 500 to 1000m, depending on size (GS 3 at Appendix 1);
d.The nature and size of the Abattoir meant that, in the circumstances, a buffer distance of 1000m was appropriate (Affidavit of D Lock at DL 22);
e.Pursuant to SPP 4.1, a variation of this buffer had to be justified by a scientifically based study;
f.The proponent of the Lifestyle Development had previously failed to provide justification to the Minister for Planning as to why these buffers should be varied in the context of a previous planning application over the land the subject of the development (Affidavit of D Lock at DL 22);
g.The proponent of the Lifestyle Development in fact failed to provide any justification as to why these buffers should be varied, causing the Respondent to grant the Substituted Approval which revoked the requirement for a scientific buffer study;
h.It must be concluded from the above that at the time the Approval was granted the Buffer Study Condition was not capable of being discharged by the proponent.
The applicants' submission assumes facts which are not in evidence. Even if SPP4.1 applies, because no buffer study was completed, it is unknown whether a buffer study of a distance of 1,000 metres was appropriate. The Department of Environment and Conservation in its response of 3 August 2009 referred to a generic buffer distance of between 500 and 1,000 metres. In its public advice the Office of the Environmental Protection Authority required a building setback to provide a 500 metre odour buffer to the anaerobic wastewater treatment ponds but also noted future development should be consistent with the EPA's guidance statement, land uses. In the aerial photograph at page 338 of Mr Lock's affidavit (Annexure DL 30) a red line is shown marking the separation distance. The applicants concede that there is a 500 metre distance between the lifestyle village and the anaerobic ponds. There is a much greater distance between the village and the abattoir. It is approximately 750 metres, according to Mr Lock. It is therefore within the generic distance of 500 to 1,000 metres. This is consistent with the publication Guidance for the Assessment of Environmental Factors: Separation Distances Between Industrial and Sensitive Land Uses No 3, June 2005, published by the Environmental Protection Authority. Appendix 1 provides for Abattoir - a buffer distance of 500 ‑ 1,000 metres, depending on size.
My conclusion is that Condition 1.31 was a reasonable condition to impose and one that was capable of being met at the time of development approval. It was not a condition that renders the development approval tantamount to a refusal. As with many conditions attached to development approval, their non‑fulfilment may lead to the development going nowhere. That does not translate into a refusal in every case or in this case.

Issue 6 - Did Northam have power to amend the development approval

Ground 4

Purporting to substitute a condition of the development approval on 16 February 2011, and then purporting to clear the substituted condition on 20 July 2011.

In written submissions, the applicants contend that Northam erred in law by purporting to substitute the conditions of the development approval after it had been granted thereby changing the nature of the approval without having the power to do so.
TPS3 cl 8.3 provides:
The local government may, on written application from the owner of land in respect of which planning approval has been granted, revoke or amend the planning approval, prior to the commencement of the use or development the subject of the planning approval.

The argument asserts that this clause is invalid as it does not have a valid legislative basis. This submission, if accepted, would have the startling effect of striking down all similar clauses in town planning schemes that also follow the Model Scheme Text as required by the Town Planning Regulations 1967 (WA) reg 11(1)(a). Parliament intended that a town planning scheme such as TPS3 follow model provisions: Planning and Development Act pt 15.
It is said neither the provisions of the Town Planning and Development Act 1928 (WA) nor the Planning and Development Act 2005 (WA) include an express legislative power to revoke, amend or substitute a condition on a development approval.
Although TPS3 predated the assent of the Planning and Development Act, it has effect as if it were enacted by the Planning and Development Act: Planning and Development Act s 68(1). The Town Planning Regulations continue in force: Planning and Development Act s 256.
TPS3 cl 8.3 must be construed as if it was written into the Planning and Development Act. That is the effect of the words 'as if it were enacted'. If the planning scheme has been created in accordance with the provision of the Planning and Development Act and falls within the Heads of Power of that Act, it should be regarded as being invulnerable: Bonton Pty Ltd v City of South Perth [1982] WAR 213, 223.
The Planning and Development Act 2005 (WA) s 69 provides:
General objects of schemes
(1)A local planning scheme may be made under this Act with respect to any land -
(a)with the general objects of making suitable provision for the improvement, development and use of land in the local planning scheme area; and
(b)making provision for all or any of the purposes, provisions, powers or works referred to in Schedule 7.
(2)With those objects a local planning scheme may provide for planning, replanning, or reconstructing, the whole or any part of the local planning scheme area.
(3)This section applies subject to section 256 and the regulations made under it and sections 257A and 257B.
This is in similar form to the Town Planning and Development Act 1928 (WA) which provided by s 6:
(1)A town planning scheme may be made, in accordance with the provisions of this Act, with respect to any land with the general object of improving and developing such land to the best possible advantage, and of securing suitable provision for traffic, transportation, disposition of shops, residence, factory and other areas, proper sanitary conditions and conveniences, parks, gardens and reserves, and of making suitable provision for the use of land for building or other purposes and for all or any of the purposes, provisions, powers or works contained in the First Schedule.
(2)With those objects the scheme may provide for planning, replanning, or reconstructing the whole or any part of the area comprised in the scheme.
As Olney J said in Costa v Shire of Swan [1983] WAR 22:
[T]he scope for town planning schemes is as wide and diverse as the ingenuity of planners is able to contemplate. The Act contains no prohibitions affecting the nature of planning nor the manner of development (24 ‑ 25).
It is true that the Town Planning and Development Act and the Planning and Development Act do not in terms have express authorisation that a regulation made under either Act, can contain a power of amendment of approval. This is because it is obvious that the grant of a power to approve carries with it, by necessary implication, the grant of power to amend or revoke approval. The scope for town planning schemes being wide and diverse, it is well within power for a scheme to contain a clause permitting amendment or revocation of development approval.
The applicants' second argument, which proceeds on the basis that cl 8.3 is valid, is that the revocation of the original approval and a new condition being imposed was materially different and less onerous thereby in effect granting an entirely new approval.
No authority is cited for this proposition which does not find expression in the natural meaning of cl 8.3. The power to amend or revoke is unconstrained. Revocation may be seen as the ultimate amendment and is expressly authorised. There is nothing in the wide ambit of cl 8.3 that lends support to the applicants' contention that the words should some how be limited to satisfying inherent defects or otherwise clarifying non‑core aspects of the approval.
There is no substance in ground 4.

Ground 5

Granting development approval inconsistent with the first Applicant's rights of easement

The applicants have an easement over the respondent's land. That includes the right to discharge treated water. Mr Lock, whose affidavit is sworn on behalf of the applicants, asserts, without further evidence, the decision of the respondent to approve the application was inconsistent with the first applicant's rights of easement over the Fermora lot.
It is not apparent why this is so. If the applicants have rights of easement over Fermora's land and consider that those rights are being infringed, it is open for the applicants to take action to enforce those rights. That is so whether or not there has been a development approval granted for the land. The particular easements that may be affected by development are the access easement and sewer easement shown on Exhibits A and B.
In its objection to the development submitted on the applicants' behalf by Greg Rowe & Associates on 20 July 2009, point 8 reads:
CMC has a legal right by easement and deeds to irrigate wastewater over part or the whole of the land subject to the proposed Application Site. The legal right secure by easement to irrigate wastewater over the Application site is not compatible with the development proposed. The Application fails to address this issue.
This was part of the material taken into account by Northam in its assessment of the application.
The applicants assert a right to discharge water over lots 81, 83 and 89 which includes the land the subject of the approval.
In submissions counsel for the applicants, Mr McGowan:
So there are four easements with which we're concerned: the easement for access, which is the blue one; easement in relation to the sewer, which is the pink surrounding the blue; there is then the pipeline easement, that is, the physical pipeline that runs up the boundary, you'll find it on the left‑hand side of the bottom left, again, DOCG 200423; and the fourth one is the easement of access in relation to the ponds themselves (ts 18).
He said that the right to discharge water from the storage lagoons is the water used to irrigate the golf course.
Water is not discharged over the area of the development application or approval. As is clear in the deed which gave rise to the easement, the discharge point was agreed and marked on a point on the plan attached to the deed onto lot 81. Lot 81 is not part of the development proposal and its only significance is that it forms part of the buffer between the abattoir and the lifestyle village.
Northam was not required to take this easement into account. It does not affect the development proposal. Any rights attaching to any other easement may be enforced directly against the grantor of whom Fermora is the successor. Northam made no error of law.
Exhibit B shows an encroachment onto the access road of .2 of a metre over a distance of 76.15 metres. The encroachment is relatively insignificant.
I would not grant certiorari on this ground in discretion in any event. If there has been an encroachment the applicants have remedies directly against Fermora.

Conclusion

I would grant an order nisi on grounds 2 and 3 and refuse leave on grounds 1, 4 and 5. After hearing full argument, I would discharge the order nisi.
The net result is that the application is dismissed.