KEYSBROOK LEUCOXENE PTY LTD and SHIRE OF SERPENTINE-JARRAHDALE
[2012] WASAT 212
•15 MARCH 2012
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: KEYSBROOK LEUCOXENE PTY LTD and SHIRE OF SERPENTINE-JARRAHDALE [2012] WASAT 212
MEMBER: MR P McNAB (SENIOR MEMBER)
MS M CONNOR (MEMBER)
MR P CURRY (SESSIONAL MEMBER)
HEARD: 23 AUGUST 2011, 13 AND 14 MARCH 2012
DELIVERED : 15 MARCH 2012
PUBLISHED : 6 NOVEMBER 2012
FILE NO/S: DR 151 of 2010
DR 226 of 2010
DR 419 of 2010
BETWEEN: KEYSBROOK LEUCOXENE PTY LTD
Applicant
AND
SHIRE OF SERPENTINE-JARRAHDALE
Respondent
FILE NO/S :DR 139 of 2010
DR 173 of 2011
BETWEEN :KEYSBROOK LEUCOXENE PTY LTD
Applicant
AND
SHIRE OF MURRAY
Respondent
Catchwords:
Town planning - Development application - Extractive industry - Mining operations approved on reconsideration by respondent Shires - Mineral sand mining - Conditions to be imposed on development - Tribunal's determination on remaining unresolved conditions following mediation - Duration of mining operation and licence - Rehabilitation timeframe - Substantial commencement date - Parallel conditioning with environmental management plans imposed under Ministerial Statement under the Environmental Protection Act 1986 (WA) - Management plans required for air quality and dust, water, nutrients, rehabilitation - Compliance assessment auditing - Interpretative review of environmental findings - Stability of land following extraction operations - Geotechnical report not required - 'Reasonable endeavours' and suppression of dust - Notices on title - Various conditions on these matters approved by Tribunal
Legislation:
Environmental Protection Act 1986 (WA)
Mining Act 1978 (WA)
Planning and Development Act 2005 (WA)
Shire of Murray Town Planning Scheme No 4
Shire of SerpentineJarrahdale Town Planning Scheme No 2
State Administrative Tribunal Act 2004 (WA), s 31, s 46(1)
Transfer of Land Act 1893 (WA), s 70A
Result:
Remaining unresolved conditions determined by Tribunal
Summary of Tribunal's decision:
This review originally resulted from three planning application refusals and two deemed refusals. In addition, there were corresponding extractive industry licence refusals under relevant local laws. The approvals that had been sought related to a large mineral sands mining operation extending over an area totalling 860 hectares on the Swan Coastal Plain, west of Keysbrook in the Shire of SerpentineJarrahdale and the Shire of Murray. The mining operation by Keysbrook Leucoxene Pty Ltd anticipated the extraction of heavy mineral sands in the form of zircon, ilmenite, leucoxene and rutile from silica deposits across the subject land.
In 2011, the Tribunal indicated to the parties that it had reached a tentative view (based on the significant amount of complex material already before it, and the existing environmental regulatory approvals), to the effect that the proposals seemed generally not inconsistent with the planning and environmental regulatory framework. It was likely, on what was then known, that conditional approval would be given by the Tribunal. The proceedings were therefore referred to mediation in order for the parties to attempt to negotiate conditions to accompany possible approvals.
During the six months' negotiation period, the Tribunal invited both Shires to reconsider their original decisions and, in October 2011, the Shire of Murray issued an approval with 30 conditions, and the Shire of SerpentineJarrahdale issued an approval with 34 conditions. Following further mediation, all but 12 substantial issues to do with conditions were agreed between the parties.
The Tribunal acknowledges the Shires', their staff and advisers' substantial cooperation and effort in helping to resolve these complex matters.
A summary of the Tribunal's decisions with respect to the 12 unresolved issues is as follows, commencing with the important issue of the duration of the mining operations.
The applicant sought a 10 year operations period, but both Shires required that excavation (mining) and processing activities be completed by no later than seven years, with rehabilitation and other associated activities not having a limited term of operation. The Tribunal determined that, based on the evidence, a period of eight years was a suitable timeframe for both development approval and extractive industry licensing purposes. This was premised upon an initial two years for preliminary work, five years for the extraction phase and a further 12 months for any contingencies.
The second issue was related to the first and dealt with the timeframe for rehabilitation. The parties raised a question whether an ongoing condition relating to rehabilitation and other associated activities was appropriate in planning approvals of limited duration. In an attempt to resolve the differences between the parties, the Tribunal suggested that the condition relating to excavation and processing activities for an eight year period from March 2012 (see above) would not include rehabilitation and related activities. This was accepted by the parties.
The third issue dealt with the date of effect for substantial commencement of the project. Although a directly relevant environmental Ministerial Statement from 2009 included a 'Time Limit of Authorisation' of five years for the proponent to substantially commence the proposal, the parties were in agreement that the approved development should substantially commence within three years of the date of this approval, or the approval would otherwise lapse. The Tribunal decided that the approval would lapse if the approved development was not substantially commenced within three years of 15 March 2012.
The next two issues dealt with the interaction or duplication of the various conditions and management plans (such as those relating to air quality and dust, water, noise, etc) required under environmental protection legislation and, in particular, whether this proposal should be subject to 'parallel' environmental conditions under the planning regime. The relevant environmental plans had either been approved or were close to approval. With two exceptions concerning specific air quality and dust management practices, the Tribunal saw no reason to duplicate such requirements in the conditions of approval. In the light of the Tribunal's view on this issue, and having regard to planning principle, the Tribunal was not persuaded that it was necessary to mandate compliance with these environmental conditions as a condition also of planning approval.
The sixth issue dealt with compliance assessment auditing of the various required plans and other arrangements. The applicant contended that compliance assessment of a planning approval was the responsibility of local governments and not the applicant, and that the various plans had not been prepared to be auditable as such. The respondents contended that the acceptability of the project was reliant upon compliance with a suite of management plans and was otherwise premised upon certain assumptions and predictions upon which those plans were made.
The Tribunal determined that, on balance, having regard to the uniqueness of a large scale sand mining project on the Swan Coastal Plain extending over eight years and involving complex environmental and planning conditions across two rural Shires that would otherwise have been regulated under the Mining Act 1978 (WA), the auditing obligations proposed by both Shires were reasonable.
The seventh issue dealt with whether there should be independent reviews of environmental monitoring findings in the early years of the project. The respondents sought an independent review of each annual compliance assessment report in respect of certain management plans.
The Tribunal determined that an independent review of this nature would be a step too far, given the extent of the regulatory framework otherwise applying to the project, but that a oneoff interpretative report to be paid for by the applicant to assist the Community Consultation Group would be neither onerous nor otherwise unreasonable.
The next issue concerned a geotechnical report in relation to land stability. This issue related to a condition pressed by the Shire of SerpentineJarrahdale. The Tribunal did not believe that it was practicable to place a notice on title concerning the stability of the land following extraction operations (see below). Hence, in the absence of any such warning on title, the issue was whether a separate planning condition was needed with respect to geotechnical reporting. Based on the expert evidence before it, the Tribunal determined that, as the Rehabilitation Management Plan required compaction testing, including penetrometer testing as part of the rehabilitation process, there would be no need for a condition requiring the proponent to provide a geotechnical report.
The ninth issue dealt with how certain internal road and internal traffic movements should be regulated, and concerned the Shire of Murray only. Following on from a redrafted condition, which had been agreed between the parties, there was no longer any need for the Tribunal to determine that matter.
An issue between the parties in relation to the Shire of Murray arose as to whether the applicant should be required to use its 'reasonable endeavours' to manage dust generated from its vehicles along a certain road so as to prevent any nuisance to adjacent properties. The applicant offered that formulation, but the position of the respondent was, based upon a decision of the former Town Planning Appeal Tribunal, that a 'specific' obligation to suppress dust arising from a development could be reasonably and fairly related to the development. The Tribunal determined that what was proposed by the Shire was not unduly onerous or unreasonable, and that a specific condition relating to dust suppression methods would be included in the conditions of approval.
The eleventh issue concerned possible notices on title advising potential purchasers that mineral sands mining had been carried out on their lots and that the land may require stabilisation in the event any building was to be constructed upon it. The Tribunal's view was that the Transfer of Land Act 1893 (WA) only applied to owners who gave their consent, and here, the owners were not the developers. Also, it was open to the Shires, if they were concerned with the need to record an accurate land use history, to consider the use of written policies or scheme amendments to regulate development in former mining areas. Therefore, the Tribunal determined that a condition dealing with title notification was not appropriate in the circumstances of this case.
The final issue dealt with the term of the extractive industry licence. The Shires had sought to impose a standard initial term of 12 months' operation followed by a renewal after the applicant demonstrated 'success' with the management plans. The Tribunal declined to take that course as it had already been determined (see above) that the terms of approval should be for eight years, and that there should be no inconsistency between the period of development approval and the local law period of the extractive licence. In addition, as an extensive auditing of management plans was contemplated additional to those required under environmental protection legislation, the Tribunal determined that an effective review or probation period was not required in the period of the extractive industry licence.
Category: A
Representation:
DR 151 of 2010
DR 226 of 2010
DR 419 of 2010
Counsel:
Applicant: Mr DR Williams QC with Ms R McAulay
Respondent: Mr CA Slarke
Solicitors:
Applicant: Squire Sanders
Respondent: McLeods
DR 139 of 2010
DR 173 of 2011
Counsel:
Applicant: Mr DR Williams QC with Ms R McAulay
Respondent: Mr CA Slarke
Solicitors:
Applicant: Squire Sanders
Respondent: McLeods
Case(s) referred to in decision(s):
Keysbrook Leucoxene Pty Ltd and Shire of SerpentineJarrahdale [2010] WASAT 177
Perrymead Investments Pty Ltd v Western Australian Planning Commission (1996) 16 SR (WA) 181
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
This review concerned a proposal for a large mineral sands mining operation extending over parts of two Shires on the Swan Coastal Plain, west of Keysbrook. The review originally involved three actual and two deemed refusals under the Planning and Development Act 2005 (WA) (PD Act), and corresponding extractive industry licences under the relevant local laws.
More specifically, on 14 July 2008, Keysbrook Leucoxene Pty Ltd (applicant) applied for approvals to extract heavy mineral sands from silica deposits across four lots at Keysbrook in the Shire of SerpentineJarrahdale, and three lots at North Dandalup in the Shire of Murray.
The land in the proposed sand mining project area is held under pre1899 title; hence, the application was not subject to the provisions of the Mining Act 1978 (WA) (Mining Act): see Keysbrook Leucoxene Pty Ltd and Shire of SerpentineJarrahdale [2010] WASAT 177.
The sand mining operation is to extract mainly zircon, ilmenite, leucoxene and rutile, involving sequential shallow excavations at an average depth of 2 metres, and locally to 6 metres, extending through an area totalling 860 hectares. Ore sand would be screened before slurry treatment and pipelines would traverse the subject site to connect the excavations to a primary processing plant at a site in the Shire of Murray. This processing plant is not part of the matters under review. It was envisaged that 720,000 tonnes of minerals would be produced at a value in the order of $650,000,000 over the life of the project, which was estimated (in terms of the original application) to be 10 years.
Procedural history
As is detailed in a moment, more than three weeks of the Tribunal's sitting time was consumed in resolving these complex matters. In addition, a substantial amount of documentary material was lodged by the parties which required review by the Tribunal.
The parties were legally represented.
On 23 August 2011, the Tribunal indicated that it had reached a tentative view, based largely upon its consideration of the significant amount of material already filed by the parties. In particular, the Tribunal had regard to the extant environmental regulatory approvals which were in the record before the Tribunal.
This provisional view was that the planning and environmental regulatory framework was generally not inconsistent with the proposals, and it seemed likely, on what was known at that point in time, that conditional approval to the mining operations would be given.
Thus, it was the Tribunal's view that the time that had been allocated to the hearing should be first deployed in pursuit of negotiations focussed on the best possible operating regulatory conditions. The proceedings were thus referred to mediation in order for the parties to negotiate a package of relevant conditions accompanying possible approvals. If these negotiations failed, then the whole matter would return to the Tribunal for hearing.
In accordance with the Tribunal's directions and with the release by consent of one of the members of the Tribunal (Mr P Curry) and the involvement of another fulltime member of the Tribunal (Mr J Jordan, who was not included in the original hearing panel), the parties negotiated proposed conditions over a period of six months.
Midway through this period, the Tribunal invited reconsideration by both Shires under s 31 of the State Administrative Tribunal Act 2004 (WA). Unsurprisingly, reconsideration led to five approvals being granted by the respondent Shires at special meetings of the Shire of Murray (5 October 2011) and the Shire of SerpentineJarrahdale (6 October 2011). The approvals resulted in the imposition of 30 and 34 conditions respectively.
The Tribunal wishes to particularly acknowledge the investment of time and other contributions made by the two Shires, their councillors and specialised staff (and their legal adviser, Mr Slarke) in resolving these complex matters. The Tribunal recognises that the resolution of these issues required sustained involvement, and then over a considerable period of time. We are grateful for their cooperation and assistance.
As a result of further mediation in the Tribunal, all but 12 substantial issues to do with conditions were agreed upon by the parties.
The Tribunal reconvened on 13 and 14 March 2012 to determine the remaining unresolved conditions in dispute.
The Tribunal's decisions and reasons in relation to these outstanding conditions were delivered on 15 March 2012. What follows is largely taken from the transcript of the Tribunal's reasons of 15 March 2012 and has been formally revised and edited for publication.
For the convenience of the reader, the Tribunal has also taken the opportunity of including throughout these published reasons certain noncontentious background or supporting material.
Evidence and material before the Tribunal on 13 and 14 March 2012
In coming to its conclusions on the unresolved conditions, the Tribunal had regard to the comprehensive witness statements specifically filed for this second hearing, to the associated crossexamination of various witnesses, and to the extensive written and oral submissions made by counsel.
For convenience of reference, we have identified hereafter the unresolved conditions by reference to a descriptive issue, indicating the scope of the relevant draft conditions.
Issue 1: Duration of the mining operations
The first issue where no agreement had been reached was with respect to the time that the operations should be allowed to run. (This is the only condition in issue with respect to the two extractive industry licences). The draft condition in respect of the two development applications was as follows:
Excavation (mining) and processing activities must be completed by no later than seven (7) years following the date of this approval. Rehabilitation and other associated activities do not have a limited term of approval.
(Shire of Murray condition 1a; Shire of SerpentineJarrahdale condition C1)
The applicant had sought and argued for a period of 10 years. The respondents argued for a period of seven years, as appears above. It is the Tribunal's view that a period of eight years is a suitable term for both development approval and extractive industry licensing purposes. This is based upon the evidence which suggests two years for the preliminary work, five years for the extraction phase and a further one year for any contingencies. In the Tribunal's view, this is a reasonable period for the life of the operation.
Issue 2: Timeframe for rehabilitation
The text of the two conditions on this topic is set out under 'Issue 1' immediately above. The parties raised the following question for determination:
Is an ongoing condition relating to 'rehabilitation and other associated activities' appropriate in planning approvals of a limited duration?
The Tribunal suggested that certain words could be inserted into the relevant conditions to overcome the differences between the parties on this issue. It was suggested that the words '(which does not include rehabilitation and related activities)', or similar, could be inserted after the word 'activities' to make the conditions' intention clear. This was accepted, in principle, by the parties and is reflected in the final version of the conditions that we have published.
Issue 3: Date of effect for substantial commencement
The text of the two relevant draft conditions was as follows:
The approval lapses if the approved development is not substantially commenced within three years from the date of this approval.
(Shire of Murray condition 1c)
The approval lapses if the approved project is not substantially commenced within three years from the date of this approval.
(Shire of SerpentineJarrahdale condition C3)
The parties' respective differences (such as they were) on this issue were set out in their written submissions as follows:
Should the planning approvals impose a condition requiring substantial commencement of the development within three years of the date of the approval? …
Applicant's Contention:
The Applicant no longer pursues this issue on the basis that conditions C3 and 1c stand as drafted to require substantial commencement of the development within three years of the date of approval and this is taken to be upon finalisation of the matters in the Tribunal.
The Applicant submits that the Tribunal find[s] that the timeframe for substantial commencement should be a period of three years from the date of any approval namely any final order issued by the Tribunal in these matters.
Respondents' Contention:
Ministerial Statement 810 [see below] requires the proposal to be substantially commenced on or before 8 October 2014.
While not strictly consistent with the Ministerial Statement the Respondents will accept a condition which reflects a 3 year period for substantial commencement from the date of the final order issued by the Tribunal.
The respondents' original contentions (above) refer to Ministerial Statement 810 of 8 October 2009, under the Environmental Protection Act 1986 (WA) (EP Act), and which, among conditions and procedures at cl 3 thereof, included a 'Time Limit of Authorisation' of five years, as follows:
The authorisation to implement the proposal provided for in this statement shall lapse and be void within five years after the date of this statement if the proposal to which this statement relates is not substantially commenced.
The proponent shall provide the CEO with written evidence which demonstrates that the proposal has substantially commenced on or before the expiration of five years from the date of this statement.
As the date of effect of our orders will be from today's date, substantial commencement will have to occur within three years from today's date, this period being agreed to by the parties.
Issue 4: Management plans required under the EP Act and 'parallel' conditioning
The fourth issue was the question of whether the management and monitoring plans required under 'parallel' Ministerial Statement 810 should, in effect, be the subject also of parallel conditions under the approvals to be given arising out of this review.
The text of these two sets of conditions is as follows (each management plan referred to in the conditions is a management plan specified in Ministerial Statement 810):
The Air Quality and Dust Management Plan prepared by MBS Environmental dated January 2012 shall be implemented throughout the duration of the development.
The Nutrient Management Plan prepared by MBS Environmental dated December 2011 shall be implemented throughout the duration of the development.
The Rehabilitation Management Plan prepared by MBS Environmental dated September 2011 shall be implemented throughout the duration.
The Water Management Plan prepared by MBS Environmental dated January 2012 shall be implemented throughout the duration of the development.
The Noise Monitoring Plan prepared by Lloyd George Acoustics dated August 2011 shall be implemented throughout the duration of the development.
(Shire of Murray conditions 1g k)
The Air Quality and Dust Management Plan prepared by MBS Environment dated January 2012 shall be modified to reaffirm the proponent's commitment to the relocation of affected residents, or the adjustment of excavation activities accordingly and shall be implemented throughout the duration of the development.
The Nutrient Management Plan prepared by MBS Environmental dated December 2011 shall be implemented throughout the duration of the development.
The Rehabilitation Management Plan prepared by MBS Environmental dated September 2011 shall be implemented throughout the duration of the development.
The Water Management Plan prepared by MBS dated January 2012 shall be implemented throughout the duration of the development.
The Noise Monitoring Plan prepared by Lloyd George Acoustics dated August 2011 shall be implemented throughout the duration of the development.
(Shire of SerpentineJarrahdale conditions C7 C11)
The Noise Monitoring Plan (NMP) and the revised Rehabilitation Management Plan have both been approved (by which term we include any amendments thereto) by the Department of Environment and Conservation and the Office of the Environmental Protection Authority (EPA).
On the evidence, the Water Management Plan and the Nutrient Management Plan are both likely to be approved by the EPA. The remaining plan the Air Quality and Dust Management Plan appears even closer to a final approval. In such circumstances, in our view, it is unnecessary to duplicate such requirements in the Shires' conditions.
In any case, the respondents ultimately accepted that where a corresponding approval is in place, it is unnecessary to duplicate the relevant conditions.
The exceptions or changes to that general position are: first, the applicants have agreed to the following air quality and dust management practice to be included in the conditions for both Shires; that is to say, in substance, as follows:
The Site Manager will ensure that neighbours that have domestic water tanks collecting from the roof of a house or associated building with potential to be affected by dust emissions from the mining activities are aware of the opportunity to have [the developer] wash the roof of the potentially affected building prior to the onset of winter rains. The Site Manager is responsible for ensuring that where neighbours elect to take up this offer, the roof washing is undertaken in a timely manner.
The second matter also relates to dust management, and it is that the applicant has agreed to the following condition, and this will apply across both Shires for consistency:
No mining operations will occur within 300 [metres] of existing residences unless otherwise agreed between the proponent and the owner of the residence.
As to the NMP, the respondents had suggested a specific condition regarding mobile plant noise during topsoil removal (which appears at point (c) of Mr Slarke's letter to Ms R McAulay junior counsel for the applicant of 12 March 2012). The Tribunal considered imposing that condition for the avoidance of any doubt, but, having regard to the evolutionary nature of the NMP and to the need to comply otherwise with the State's noise regulations, on balance, we are not persuaded that this proposed amendment is necessary.
Issue 5: Mandating compliance with management plans under Ministerial Statement 810
This issue deals with an issue related to Issue 4. Issue 4 dealt with whether management plans ought to be imposed under both environmental and planning regimes. Issue 5 deals with whether compliance with an environmental condition should be mandated under a planning approval. To the extent that it is suggested that there remains a dual obligation, this does not arise, because of our decision in respect of Issue 4.
In any case, planning principle would otherwise indicate that such secondary compliance conditions of this nature are to be avoided. Therefore, we decline to impose such a condition as arises under this heading.
Issue 6: Compliance assessment auditing of other reports
This issue dealt with how compliance assessment reporting should operate, if at all, for each of the Visual Management Plan; the Fire Management Plan; the Mosquito Management Plan; and the Community Consultation Framework.
The applicant contended that:
… compliance assessment of a planning approval is the responsibility of the local government, not the Applicant. The Visual Management Plan … , Fire Management Plan … , Mosquito Management Plan … and Community Consultation Framework … were not prepared to be auditable as this is not the convention with planning approvals. These plans therefore contain many objectives that will be difficult to audit. If the Applicant is required to undertake an audit of these management plans, the auditable requirements of each management plan should first be outlined in an audit table that is the subject of the approvals …
The respondents' contentions were that:
[t]he acceptability of the proposal is reliant on both compliance with a suite of management plans and on the assumptions and predictions upon which those management plans are premised being correct. The Applicant is required to carry out a compliance audit of those management plans which are the subject of Ministerial Statement 810. It is appropriate and reasonable for compliance monitoring to also be carried out with respect to the Visual Management Plan, Fire Management Plan, Mosquito Management Plan and Community Consultation Framework.
The conditions on this issue were:
A compliance assessment report for the approved Visual Management Plan, Fire Management Plan and Mosquito Management Plan must be lodged by 31 March each year during the term of the approval or by such other time as may be agreed by the local government. The compliance assessment report shall:
(a)Be in the in the form set out in Attachment 1 to these conditions [not reproduced] unless otherwise approved by the local government;
(b)Assess whether the development has complied with each action required by the approved management plan, and report on any potential non-compliance and corrective actions taken;
(c)Be endorsed by the developer's Managing Director or a person delegated to sign on their behalf; and
(d)Be made publicly available.
The Compliance Assessment Report shall additionally address:
(a)The items to which reference is made in Part 6.1 of that plan; and
(b)The key performance indicators to which reference is made in item 5.2 of that plan.
A compliance assessment report for the approved Community Consultation Framework must be lodged with the local government by 31 March each year during the term of the approval. The compliance assessment report shall report in summary form on:
(a)The community engagement activities carried out during the preceding year;
(b)The stakeholder interaction carried out during the year, including the number and nature of any complaints made and the response to those complaints;
(c)The meetings of the Community Consultation Group.
Any records kept by the developer pursuant to the Community Consultation Framework, including minutes of the Community Consultation Group meetings must be provided to the local government if requested in writing. Annual compliance assessment report[s] and records kept pursuant to the Community Consultation Framework are to be made publically [sic] available.
(Shire of Murray condition 1n)
A compliance assessment report for the approved Visual Management Plan, Fire Management Plan and Mosquito Management Plan must be lodged by 31 October each year during the term of the approval or by such other time as may be agreed by the local government. The compliance assessment report shall:
(a)Be in the form set out in Attachment 1 to these conditions [not reproduced] unless [otherwise] approved by the local government;
(b)Assess whether the development has complied with each action required by the approved management plan, and report on any potential noncompliance and corrective actions taken;
(c)Be endorsed by the developer's Managing Director or a person delegated to sign on their behalf;
(d)Be made publicly available.
The compliance assessment report for the Visual Management Plan shall additionally address:
(a)The items to which reference is made in Part 5.1 of that plan; and
(b)The key performance indicators to which reference is made in item 6.2 of that plan.
A compliance assessment report for the approved Community Consultation Framework must be lodged with the local government by 31 October each year during the term of the approval. The compliance assessment report shall report in summary form on:
(a)The community engagement activities carried out during the preceding year;
(b)The stakeholder interaction carried out during the year, including the number [and] nature of any complaints made and the response to those complaints;
(c)The meetings of the Community Consultation Group. Any records kept by the developer pursuant to the Community Consultation Framework, including the minutes of Community Consultation Group meetings, must be provided to the local government if requested in writing. Annual compliance report[s] and records kept pursuant to the Community Consultation Framework are to be made publicly available.
(Shire of SerpentineJarrahdale conditions C21& C27)
On balance, the Tribunal considers that, having regard to the uniqueness of a large scale sand mining project on that part of the Swan Coastal Plain involving complex environmental and planning conditions across two rural Shires (and that would have otherwise been regulated under the Mining Act: see Keysbrook Leucoxene Pty Ltd and Shire of SerpentineJarrahdale [2010] WASAT 177), means that, in respect of all of these plans, the auditing obligations proposed by both Shires are, in our view, reasonable.
We have also taken these obligations into account when determining that there will be a full eight year extractive industry licence.
Turning to the conditions of that auditing regime, in our view, they must follow points 2(b) and 2(c) on page 9 of the supplementary joint statement of issues of 12 March 2012, as agreed between the parties, and the table found in tab 4 of the supplementary witness statement of Mr Paul Kotsoglo (a planner called by the applicant) dated 7 March 2012, which is Exhibit 11, as modified to include the table found in point (b) in Mr Slarke's letter to Ms R McAulay of 12 March 2012.
We also accept Ms Sell's point (Ms Sell is an environmental scientist called by the applicant) that a column could be added to the table to allow for explanations and comment. Such a table should appear in the final version of that document.
Issue 7: Interpretative review of environmental findings reported after year 1 of extraction operations
This issue dealt with independent reviews of environmental monitoring findings in the early years of the project. The text of the proposed conditions was as follows:
An Independent review of each annual compliance assessment report, in respect of the approved Water Management Plan and the approved Air Quality and Dust Management Plan shall be carried out by a suitably qualified person at the proponent's cost for at least the first year of production of the project.
(Shire of Murray condition 1u)
An independent review of each annual compliance assessment report, in respect of the approved Water Management Plan and the approved Air Quality and Dust Management Plan shall be carried out by a suitably qualified person at the proponent's cost for at least the first (two years) of production of the project. The period of time for any ongoing independent review shall be a matter that is considered by the Community Consultation Group (established in accordance with the Community Consultation Framework) at least annually.
(Shire of SerpentineJarrahdale condition C22)
In the Tribunal's view, an independent review would be a step too far, given the extent of the regulatory framework otherwise applying to the project.
However, the obligation to provide a oneoff interpretative report to be paid for by the applicant to assist the Community Consultation Group is neither onerous nor otherwise unreasonable. In our view, such a report is wholly consistent with the Community Consultation Framework as agreed to by the applicant.
Thus, the conditions will now read that there is an obligation in the following terms:
To assist members of the Community Consultation Group, an interpretative report on the operation of the approved water management plan and the air quality and dust management plan for the first year of the excavation shall be carried out by a suitably qualified person, at the proponent's cost and provided to the local government and Community Consultation Group within three months following the first 12 months of excavation work. In the event that the report identifies any issues or potential issues arising from the operation of a management plan, the report should provide recommendations which may be considered in order to address the identified issue.
This is substantially the text prepared by Mr Slarke which was circulated during the hearing.
Issue 8: Geotechnical report
This issue only arises with respect to the Shire of SerpentineJarrahdale. As stated under Issue 11 in these reasons (see below), we do not think that it is practicable to place a notice on title concerning the stability of the land following extraction operations. This position therefore raises the issue whether, in the absence any such warning on title, a separate planning condition is needed with respect to geotechnical reporting to address the issue of land stability in relation to subsequent building.
The proposed condition was as follows:
The proponent is to provide a geotechnical report certifying that any filling or backfilling has been adequately compacted after each stage of extraction, demonstrating that the land is capable of being used for rural purposes.
(Shire of SerpentineJarrahdale condition C25)
The respondent Shires called Mr T Osborne, who is a geotechnical engineer. We accept the thrust of Mr Osborne's evidence and note that the Rehabilitation Management Plan (which is Exhibit 9) at cl 6 thereof, in effect, requires compaction testing as part of the rehabilitation process, which Ms Sell says would include penetrometer testing. We accept this evidence, and for those reasons, there will be no condition imposed along the lines of condition C25.
Issue 9: How should the internal road and internal traffic movements be controlled?
This issue only concerned the Shire of Murray.
The original draft condition (1dd), as redrafted, was agreed as between the parties.
Issue 10: 'Reasonable endeavours' and dust
The parties raised the following issue in relation to the Shire of Murray:
Should the Applicant be required to use its 'reasonable endeavours' to manage dust generated from its vehicles along Atkins Road so as to prevent any nuisance on adjacent properties?
The applicant offered this formulation in place of the more specific obligations sought by the respondents in relation to dust control. Mr Slarke cited to us Perrymead Investments Pty Ltd v Western Australian Planning Commission (1996) 16 SR (WA) 181 (Perrymead). That decision of the former Tribunal, at page 188, suggests that a specific obligation to suppress dust arising from a development can be reasonably and fairly related to development. Here, in our view, what is proposed is not unduly onerous and could not be said to be unreasonable.
In any event, it would be our view that the insertion of such an expression as 'reasonable endeavours' would generally run contrary to accepted notions of specific conditions regulating major developments. Therefore, there will be a condition imposed in the terms put forward by the Shire of Murray. We do not accept that the words 'reasonable endeavours' are necessary.
Issue 11: Notice on title
The respondent Shires sought notices on title as follows:
A notification pursuant to section 70A of the Transfer of Land Act is to be registered against the certificates of title for those lots within which excavation has taken place, advising potential purchasers that mineral sands mining has been carried out on the lot and that the land may require stabilisation in the event any building is to be constructed on it. The notifications are to be prepared at the proponent's cost and registered within 3 months following the commencement of excavation on the lot to which the notification relates.
(Shire of Murray condition 1hh)
A notification pursuant to section 70A of the Transfer of Land Act is to be registered against the certificates of title of those lots within which excavation has taken place, advising of the remnant vegetation to be retained, areas to be rehabilitated and areas that have been mined and advising potential purchasers that mineral sands mining has been carried out on the lot and that the land may require stabilisation in the event any building is to be constructed on it. The notifications are to be prepared at the proponent's cost, and registered within 3 months following the commencement of excavation of the lot to which the notification relates.
(Shire of SerpentineJarrahdale condition C26)
Section 70A of the Transfer of Land Act 1893 (WA) (TL Act) provides as follows:
(1)Where, in relation to land under the operation of this Act -
(a)the local government of the district in which the land is situated; or
(b)a public authority,
considers it desirable that proprietors or prospective proprietors of the land be made aware of a factor affecting the use or enjoyment of the land or part of the land, the local government or the public authority may, on payment of the prescribed fee, cause a notification of the factor to be prepared in an approved form and lodged with the Registrar.
(2)Where -
(a)a notification is lodged under subsection (1); and
(b)the written consent of the proprietor of the land accompanies the notification,
the Registrar shall endorse the certificate of title for the land to that effect.
(3)The local government or the public authority which lodged the notification under subsection (1) and the proprietor of the land for the time being may, at any time after the notification has been lodged, on payment of the prescribed fee and in an approved form, request the Registrar to remove the notification from the certificate of title for the land or modify the notification.
(4)Without limiting subsection (2), the Registrar shall endorse certificates of title with such information about notifications and their modification or removal, and in such manner, as the Registrar thinks fit.
In our view, s 70A of the TL Act applies only to owners who give their consent. Here, the owners are not the developers. In our view, it is practicably unworkable in the circumstances of this case to achieve what the goal of the Shires appears to be.
If the Shires are concerned, amongst other things, with an accurate land use history being recorded, then it would be open to them, using their own powers, to consider such written policies, or even scheme amendments, to regulate development in these former mining areas.
We are not persuaded that such a condition dealing with title notification is appropriate in the circumstances of this case.
Issue 12: Term of the extractive industry licence
The respondent Shires sought to impose a standard initial term of 12 months operation, followed by a renewal after the applicant demonstrated 'success' with the management plans.
In our view, as already discussed (see Issue 1 above), the term of the approvals should be for eight years. There should also be consistency between the period of development approval and the corresponding authority to mine under the local law. Thus, prima facie, the local law period of the licence should also run for eight years. As we have conditioned the development for extensive auditing of the management plans, which are additional to those required as an assessed and extensively regulated project under the EP Act, we do not see that there is a need for an effective review or probation period expressed in the period of the extractive industry licence.
Conclusion
For these reasons, the conditions and the terms indicated above will be imposed upon the project.
We will make an order requiring the parties to bring in a consolidated form of orders, not inconsistent with what has been agreed and what is set out above, within seven days of the availability of the transcript. The conditions are to be operative from today.
Final orders
DR 151 of 2010
Planning approval is granted to the application for approval to commence development submitted by Planning Solutions on behalf of Keysbrook Leucoxene Pty Ltd for an Industry Extractive (Mineral Sands Mine) for Lot 1 Elliot Road, Lot 52 Atkins Road, Lot 63 Hopeland Road and Lots 6, 111, 112 and 113 Westcott Road, Keysbrook under the provisions of the Shire of SerpentineJarrahdale Town Planning Scheme No 2 subject to the following conditions:
1.Excavation (mining) and processing activities must be completed by no later than eight (8) years from 15 March 2012 (which does not include rehabilitation and related activities).
2.The development shall be carried out in accordance with the document entitled 'Mineral Sands Proposal Shire of Murray and Shire of SerpentineJarrahdale' dated 13 February 2012 but subject to the conditions contained within this approval.
3.The approval lapses if the approved development is not substantially commenced within three years from 15 March 2012.
4.The Visual Management Plan prepared by EPCAD being Issue 3 dated 9 September 2011 shall be implemented throughout the duration of the development.
5.The Fire Management Plan prepared by Fireplan WA and dated January 2011 shall be implemented throughout the duration of the development.
6.The Mosquito Management Plan prepared by Keysbrook Leucoxene Pty Ltd (undated) shall be implemented throughout the duration of the development.
7.The Community Consultation Framework submitted for consideration as part of the application and dated January 2012 shall be implemented.
8.Complaint management procedures for the approved management plans shall be undertaken in accordance with the procedure set out in the approved Community Consultation Framework unless a more specific procedure is stipulated in an approved management plan.
9.A compliance assessment report for the approved Visual Management Plan, Fire Management Plan, Mosquito Management Plan and Community Consultation Framework must be lodged by 31 October each year during the term of approval or by other such time as may be agreed by the local government. The compliance assessment report shall:
(a)be in the form set out in Attachment 1 to these conditions unless otherwise approved by the local government;
(b)assess whether the development has complied with each action required by the approved management plan, and report on any potential noncompliance and corrective actions taken;
(c)be endorsed by the developer's Managing Director or a person delegated to sign on their behalf;
(d)be made publicly available.
10.To assist the members of the Community Consultation Group an interpretive report on the operation of the approved Water Management Plan, the Air Quality and Dust Management Plan for the first year of excavation shall be carried out by a suitably qualified person at the proponent's cost, and be provided to the local government and Community Consultation Group within 3 months following the first 12 months of excavation work. In the event the interpretive report identifies any issues or potential issues arising from the operation of those management plans the report should provide recommendations which may be considered in order to address the identified issue.
11.The site is to be kept in a neat and tidy condition at all times. When vehicles and equipment associated with the development are not in use they shall be located so to as far as practicable minimise their view from neighbouring residents and public roads.
12.The Site Manager will ensure that neighbours that have domestic water tanks collecting from the roof of a house or associated building with potential to be affected by dust emissions from the mining activities are aware of the opportunity to have the proponent wash down the roof of the potentially affected building prior to the onset of winter rains. The Site Manager is responsible for ensuring that where neighbours elect to take up this offer, the roof washing is undertaken in a timely manner.
13.No mining operations will occur within 300m of existing residences unless otherwise agreed between the proponent and the owner of the residence.
DR 226 of 2010
Approval is granted to the application for an extractive industry licence submitted by Planning Solutions on behalf of Keysbrook Leucoxene Pty Ltd for the extraction of heavy mineral sands at Lot 1 Elliott Road, Lot 52 Atkins Road, Lot 63 Hopeland Road and Lots 6, 111, 112 and 113 Westcott Road, Keysbrook under the provisions of the Shire of SerpentineJarrahdale Extractive Industries Local Law, subject to the following conditions:
1.The approval is valid for a period of 8 years from 15 March 2012.
2.The undertaking of all extractive industry operations in accordance with an approved Works and Excavation Programme, unless inconsistent with the requirements of planning approval relating to the development. The Works and Excavation Programme shall be submitted to the Shire for approval by the Director Development Services prior to the commencement of ground disturbing activities.
3.Environmentally hazardous chemicals associated with the approved development including but not limited to fuel, oil or other hydrocarbons (where the total volume of each substance stored on the premises exceeds 250 litres) shall be stored within low permeability (1 nanometre per second or less) compound designed to contain not less than 110 percent of the volume of the largest storage vessel or interconnected system, and at least 25 percent of the total volume of vessels stored in the compound.
4.The licensee shall ensure that no chemicals or potential liquid contaminants associated with the approved development are disposed of on site.
5.The final site contours are to reflect the management plans approved through the planning process.
6.The licensee shall provide evidence prior to commencement of works that a datum peg has been established on the land related to a point approved by the local government on the surface of a constructed public thoroughfare or such other land in the vicinity.
7.The licensee shall provide a certificate from a licensed surveyor certifying the correctness of:
(i)the plan of the excavation site submitted in relation to Clause 2.3(1)(a) of the Shire of SerpentineJarrahdale Extractive Industries Local Law; and
(ii)the datum peg and related point referred to in condition 6.
DR 419 of 2010
1.For the removal of doubt, condition E4 of the planning approval granted by the respondent on 27 February 2012 pursuant to the Metropolitan Region Scheme in respect of proposed mineral sands extraction on Lot 1 Elliott Road, Lot 52 Atkins Road, Lot 63 Hopeland Road, and Lots 6, 111, 112 and 113 Westcott Road, Keysbrook in the following terms:
'An alternative effluent disposal system is to be provided to the specifications of the local government and to the satisfaction of the Western Australian Planning Commission'
is deleted.
2.Subject to the deletion of Condition E4, pursuant to section 46(1) of the State Administrative Tribunal Act 2004 (WA) the applicant has leave to withdraw these proceedings and the proceedings are hereby withdrawn.
DR 139 of 2010
Planning approval is granted to the application for approval to commence development submitted by Planning Solutions on behalf of Keysbrook Leucoxene Pty Ltd for the extraction of heavy mineral sands and associated primary processing at Lot 59 Westcott Road, Lot 62 Hopelands Road and Lot 300 Atkins Road, North Dandalup under the provisions of the Shire of Murray Town Planning Scheme No 4, subject to the following conditions:
1.Excavation (mining) and processing activities must be completed by no later than eight (8) years from 15 March 2012 (which does not include rehabilitation and related activities).
2.The development shall be carried out in accordance with the document entitled 'Mineral Sands Proposal Shire of Murray and Shire of SerpentineJarrahdale' dated 13 February 2012 but subject to the conditions contained within this approval.
3.The approval lapses if the approved development is not substantially commenced within three years from 15 March 2012.
4.The Visual Management Plan prepared by EPCAD being Issue 3 dated 9 September 2011 shall be implemented throughout the duration of the development.
5.The Fire Management Plan prepared by Fireplan WA and dated January 2011 shall be implemented throughout the duration of the development.
6.The Mosquito Management Plan prepared by Keysbrook Leucoxene Pty Ltd (undated) shall be implemented throughout the duration of the development.
7.The Community Consultation Framework submitted for consideration as part of the application and dated January 2012 shall be implemented.
8.Complaint management procedures for the approved management plans shall be undertaken in accordance with the procedure set out in the approved Community Consultation Framework unless a more specific procedure is stipulated in an approved management plan.
9.A compliance assessment report for the approved Visual Management Plan, Fire Management Plan, Mosquito Management Plan and Community Consultation Framework must be lodged by 31 October each year during the term of approval or by other such time as may be agreed by the local government. The compliance assessment report shall:
(a)be in the form set out in Attachment 1 to these conditions unless otherwise approved by the local government;
(b)assess whether the development has complied with each action required by the approved management plan, and report on any potential non-compliance and corrective actions taken;
(c)be endorsed by the developer's Managing Director or a person delegated to sign on their behalf; and
(d)be made publicly available.
10.To assist the members of the Community Consultation Group an interpretive report on the operation of the approved Water Management Plan, the Air Quality and Dust Management Plan for the first year of excavation shall be carried out by a suitably qualified person at the proponent's cost, and be provided to the local government and Community Consultation Group within 3 months following the first 12 months of excavation work. In the event the interpretive report identifies any issues or potential issues arising from the operation of those management plans the report should provide recommendations which may be considered in order to address the identified issue.
11.The site is to be kept in a neat and tidy condition at all times. When vehicles and equipment associated with the development are not in use they shall be located so to as far as practicable minimise their view from neighbouring residents and public roads.
12.The Site Manager will ensure that neighbours that have domestic water tanks collecting from the roof of a house or associated building with potential to be affected by dust emissions from the mining activities are aware of the opportunity to have the proponent wash down the roof of the potentially affected building prior to the onset of winter rains. The Site Manager is responsible for ensuring that where neighbours elect to take up this offer, the roof washing is undertaken in a timely manner.
13.No mining operations will occur within 300m of existing residences unless otherwise agreed between the proponent and the owner of the residence.
14.An alternative effluent disposal system associated with the approved development is to be provided to the requirements of the local government, prior to the commencement of production.
15.Heavy haulage vehicles associated with the development travelling to and from Bunbury shall use the route outlined in the Transport Route Report by Donald Veal Consultants Pty Ltd (January 2011). In particular Greenlands Road and Forrest Highway are to be used south of Pinjarra, and under normal conditions, South Western Highway to the south of Greenlands Road shall not generally be used, except where necessary due to major roadworks, heavy holiday traffic, traffic accidents or the like restricting Greenlands Road or Forrest Highway.
16.Engineering design drawings showing the recommended road improvements listed in part 6 of the Transport Route Report by Donald Veal Consultants Pty Ltd (January 2011) and the Road Safety Audit by Traffic Safety Consultants (January 2011) with the associated Corrective Actions report endorsed by the local government and Main Roads Western Australia shall be lodged with the local government for approval. The works the subject of the approved drawings shall be carried out and confirmed as satisfactory to the local government prior to the commencement of use of the roads for haulage of mineral sands associated with the proposed development.
17.The proponent shall be responsible for the cost of maintaining, and repairing damage to, the roads controlled by the local government which are used by heavy haulage traffic associated with the development, to the extent that the traffic generated by the development contributes to the need for such maintenance and repair. A Road Maintenance Plan incorporating:
•the abovementioned principle;
•an audit of the condition of relevant roads prior the commencement of any haulage;
•appropriate maintenance standards and associated requirements and responsibilities; and
•the estimated cost of road maintenance and repairs for the life of the development
shall be lodged with the local government for approval prior to the commencement of excavation on the site. The approved plan shall be implemented throughout the duration of the project.
18.The proponent is to pay to the local government a bond or equivalent acceptable to the local government sufficient to secure the road maintenance and repair obligations contained in the approved Road Maintenance Plan, prior to the commencement of the excavation. The cash bond or approved equivalent is to be reviewed annually. The local government may require that the proponent enters into a deed with it in order to set out in more detail the rights of the local government to call upon or retain the bond, and associated matters.
19.(a) The new internal access road between the plan on Lot 59 and Atkins Road will generally reflect the position shown in Figure 3.1 of the Transport Route Report prepared by Donald Veal Consultants Pty Ltd dated January 2011 unless otherwise approved by the local government.
(b)The final location of the internal access road is to be approved by the local government after a survey of the proposed layout has been conducted and submitted to the local government and shall avoid water courses and minimise destruction of trees.
(c)The proponent will ensure vehicles associated with the development access the site from Atkins Road along the internal access road.
(d)The proponent will minimise the occasions on which vehicles deviate from the internal road, and will limit the deviations from the internal access road to those which may be necessary on occasion for operational reasons.
20.The crossovers to Westcott Road and Atkins Road are to be constructed in accordance with the standard identified in the Transport Route Report and located in positions approved by the local government.
21.Dust suppression methods such as watering or the application of polymer sealants shall be undertaken to ensure that dust generated by vehicles associated with the development using Atkins Road does not become a nuisance to adjacent properties.
DR 173 of 2011
Approval is granted to the application for an extractive industry licence submitted by Planning Solutions on behalf of Keysbrook Leucoxene Pty Ltd for the extraction of heavy mineral sands at Lot 59 Westcott Road, Lot 62 Hopeland Road and Lot 300 Atkins Road, North Dandalup under the provisions of the Shire of Murray Extractive Industries Local Law, subject to the following conditions:
1.This approval is valid for a period of 8 years from 15 March 2012.
2.The undertaking of all extractive industry operations in accordance with the approved Works and Excavation Programme, unless inconsistent with the requirements of planning approval relating to the development.
3.Environmentally hazardous chemicals associated with the approved development including but not limited to fuel, oil or other hydrocarbons (where the total volume of each substance stored on the premises exceeds 250 litres) shall be stored within low permeability (1 nanometre per second or less)compound designed to contain not less than 110 percent of the volume of the largest storage vessel or interconnected system, and at least 25 percent of the total volume of vessels stored in the compound.
4.The licensee shall ensure that no chemicals or potential liquid contaminants associated with the approved development are disposed of onsite.
5.The final site contours are to reflect the management plans approved through the planning process.
I certify that this and the preceding [66] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P McNAB, SENIOR MEMBER
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