LAND INSIGHTS and SHIRE OF CHITTERING
[2008] WASAT 231
•3 OCTOBER 2008
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: LAND INSIGHTS and SHIRE OF CHITTERING [2008] WASAT 231
MEMBER: MR L GRAHAM (SENIOR SESSIONAL MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 3 OCTOBER 2008
FILE NO/S: DR 185 of 2008
BETWEEN: LAND INSIGHTS
Applicant
AND
SHIRE OF CHITTERING
Respondent
Catchwords:
Town Planning - Application for planning approval - Extractive industry licence - Planning condition or advice note - Planning conditions 'b' and 'q' - Basic raw materials - Amenity
Legislation:
Planning and Development Act 2005 (WA), s 252(1)
Shire of Chittering Town Planning Scheme No 6, cl 1.4, cl 1.5, cl 1.6, cl 2.2, cl 2.3, cl 4.2, cl 4.3.2, cl 5.16, cl 8.1, cl 9.4, cl 9.4.3, cl 10.2, Sch 2
Result:
The application for review was upheld
Category: B
Representation:
Counsel:
Applicant: N/A
Respondent: N/A
Solicitors:
Applicant: N/A
Respondent: N/A
Case(s) referred to in decision(s):
Rajneesh Foundation of Australia v Shire of Manjimup (No 2) (1985) 3 SR 65
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The application for review was lodged against a decision of the Shire of Chittering to impose a number of conditions of planning consent for an extractive industry that were unacceptable to the applicant at No 4884 (Lot 83) Great Eastern Highway, Chittering.
Following a reconsideration of the matter by Council the applicant amended the original objection against seven of the twentyseven conditions of approval to an objection against two conditions only (conditions 'b' and 'q').
The State Administrative Tribunal examined the respective arguments of the parties, the background to the proposal, the relevant legislation and policy provisions, the content of the single objection to the planning application, the appropriateness of conditions 'b' and 'q' and the matter of amenity.
The State Administrative Tribunal determined that condition 'b' was both confusing and unnecessary and was set aside.
The State Administrative Tribunal also determined that condition 'q' be amended in line with the applicant's submission to extend the hours of the operation of the extractive industry to include Saturdays from 7.30 am to 5 pm.
The application for review was upheld.
Introduction
The application for review, dated 14 May 2008, was lodged by Mr Michael Taylforth of Land Insights, on behalf of Austral Bricks (applicant) against a decision of the Shire of Chittering (respondent, Council or Shire) on 16 April 2008 to impose a number of conditions of planning consent that were unacceptable to the applicant for an extractive industry at No 4884 (Lot 83) Great Eastern Highway, Chittering.
The application for review was made under the provisions of s 252(1) of the Planning and Development Act 2005 (WA).
Following a reconsideration of the matter by Council at their Ordinary Meeting of 21 May 2008 the applicant amended the original objection to conditions 'a', 'b', 'g', 'i', 'k', 'q' and 'x' to conditions 'b' and 'q' only.
The specific wording of the conditions objected to follows:
(b)The extractive licence shall apply for a period of three (3) years from the date of issue until the 30 June in the year specified as the year of expiration. The proponent may apply for an extension of the licence for two further periods of up to two (2) years each. Each of these applications is to be made no later than three (3) months prior to the expiry of the current licence.
…
(q)The hours of operation shall be limited to 0600 hours to 1800 hours Monday to Friday[.] Saturday, Sunday and Public Holidays will not be permitted.
Subject land
The subject land can be described as No 4884 (Lot 83) on Certificate of Title Volume 1540, Folio 958 and is located on Diagram/Plan No 28306.
The area of the subject land is approximately 309 hectares and is described in the 'Extractive Industry Application and Clay Extraction Management Plan (January 2008)' (EIMP) as a large area of previously cleared agricultural land with several small pockets of remnant native vegetation. There is a small pine plantation located in the south-west corner and a 200 metre wide belt of remnant vegetation in the south-east corner.
The site is bounded by Location M1957 to the north, Great Northern Highway to the west, Blue Plains Road to the south and Maddern Road to the east.
There is a ridge formation running parallel to Maddern Road which physically and visually separates the subject land from adjoining land to the east.
At Appendix B in the EIMP are three excavation pits. Pit 1 is 6.50 hectares and Pit 2 is divided into two areas with Pit 2a (including a dam) at 4.99 hectares and Pit 2b at 4.05 hectares. Pit 3 is 3.07 hectares.
Legislation and policy framework
The subject land is zoned 'agricultural resource' in the Shire of Chittering Town Planning Scheme No 6 (TPS 6).
Of relevance in this matter is the Shire of Chittering's Local Planning Policy No 10 (Basic Raw Materials and Extractive Industries) (LPP 10), and the Local Planning Strategy 2001 - 2015 (LPS).
Respondent's position
The position of the respondent is outlined in a 'Statement of Issues, Facts and Contentions' dated 9 June 2008. The respondent contends:
(a)The intent of condition 'b' is not to act as a 'condition' but as an 'advice note'.
(b)In the event that (a) above is not properly understood, then it should be set aside.
(c)The respondent's Local Planning Strategy identifies land adjacent to the subject land as suitable for rural - residential development. As such condition 'q' is an appropriate condition because:
(i)it is consistent with the proper administration of the laws for which the respondent is the responsible authority for the term of the approval; and
(ii)it allows the respondent to reconsider, in a suitable time frame, the appropriateness of the continuation of the use and whether to apply new or different conditions to the continuation of the use. It would have regard to any change in circumstances resulting from any nearby rural - residential development.
Applicant's position
The position of the applicant is contained in a 'Statement of Issues, Facts and Contentions' dated 16 June 2008. The applicant contends:
(a) Condition 'b' is not a valid planning condition because:
(i)it is not possible for the applicant to reasonably comply with the condition: and
(ii)the condition refers to requirements under an approval process separate from a development approval issued under the provisions of TPS 6.
(b)Any subsequent Extractive Industry Licence (Licence) should run in parallel to the planning approval. In this regard condition 'b' should be deleted and replaced by an Advice Note indicating that a Licence could be issued for five (5) years to coincide with the planning approval.
(c)TPS 6 does not contain specific information on the operating hours of an extractive industry. However, it does require Council to consider issues associated with the amenity of the locality.
(d)Operating hours are addressed in LPP 10 but only in relation to blasting activities (which do not form part of the planning application). However, examples of a planning approval and a Licence approval within LPP 10 (at Appendix 5 and Appendix 6) propose 'typical' conditions that allow Saturday operations.
(e)LPP 10 is a recent policy, having been adopted in July 2007, and should not be construed as reflecting current Council expectations.
(f)An extractive industry has operated from the site for the last five (5) years. There have been no complaints from the rural - residential landowners to the south-east of the subject land in that time.
(g)The extractive industry proposed in the current application is further removed from the rural - residential land to the south and south-east.
(h)The rural - residential land identified in the Local Planning Strategy to the immediate south of the subject land is zoned 'agricultural resource' under TPS 6. An amendment to TPS 6 would be required to facilitate rural - residential development on that land, and it is not identified as a 'priority development area' in the Strategy.
(i)On 18 July 2007 the Council placed a moratorium to July 2008 on applications proposing a rezoning from 'agricultural resource' to 'rural - residential'. Even with the moratorium lifted it could take several years to progress a scheme amendment, by which time operations on the subject land will have progressed substantially.
(j)Having regard to (i) above condition 'q' is onerous, and should be modified to allow operations on Saturdays between 7.30 am and 5.00 pm.
Planning issues
The principal planning issues are:
(a)Is condition 'b' a proper and reasonable planning condition in the circumstances of this case?
(b)Can condition 'q' be justified on planning grounds at this time?
Assessment of the proposal
Background
The background to the current application is outlined in the respondent's 'Statement of Issues, Facts and Contentions'. The Statement explains:
(a)The applicant lodged a planning application (including a Clay Extraction Management Plan), dated 18 February 2008, with the Shire.
(b)The application was advertised in the Advocate Newspaper and all affected adjoining landowners notified. Four submissions were received; three of which were from government agencies.
(c)The matter was considered at an Ordinary Meeting of Council on 16 April 2008 and approved, subject to 27 conditions.
(d)On 7 May 2008 the applicant requested Council to reconsider conditions 'a', 'g', 'i', 'k', 'q' and 'x'.
(e)The matter was reconsidered at an Ordinary Meeting of Council on 21 May 2008 wherein conditions 'a', 'g', 'i', and 'k' were amended and condition 'x' was deleted. Condition 'q' was retained.
(f)In a letter dated 27 May 2008, from Council to the applicant the specific details of the changes in (e) above were listed. The most significant of these was to amend condition 'a' to replace the previous three (3) year approval time limit with a five (5) year approval.
(g)An application for review, dated 14 May 2008, was lodged with the State Administrative Tribunal (Tribunal) on the same day in relation to conditions 'a', 'b', 'g', 'i', 'k', 'q' and 'x'.
(h)In view of the subsequent decision of Council on 27 May 2008, as outlined in (f) above, the application for review was amended by way of a letter to the Tribunal, dated 9 June 2008, to relate to conditions 'b' and 'q' only.
Legislative and policy provisions
Shire of Chittering Town Planning Scheme No 6
Under cl 1.4 (Contents of Scheme) it states:
The Scheme comprises:
(a)This Scheme Text.
(b)The Scheme Map.
The Scheme is to be read in conjunction with the Local Planning Strategy.
Under cl 1.5 (Purposes of the Scheme) it states:
The purpose[s] of the Scheme are to:
…
(c)Zone land within the Scheme Area for the purposes defined in the Scheme;
(d)Control and guide land use and development;
…
Under cl 1.6 (The Aims of the Scheme) it states:
The Aims of the Scheme are:
…
(f)to provide for rural residential development in controlled settlement areas;
…
(j)to identify and protect basic raw materials resources for extraction and set standards for management and rehabilitation;
…
Under cl 2.2 (Local Planning Policies) it states:
The Local Government may prepare a Local Planning Policy in respect of any matter related to the planning and development of the Scheme Area so as to apply:
(a)generally or for a particular class or classes of matters;
Under cl 2.3 (Relationship of Local Planning Policies to Scheme) it states:
2.3.1If a provision of a Local Planning Policy is inconsistent with the Scheme, the Scheme prevails.
The objectives of the various zones in the Scheme are set down under cl 4.2. The objectives for the 'agricultural resource zone' include:
4.2.3.1Objectives
…
•To allow for the extraction of basic raw materials where it is environmentally and socially acceptable.
Under Sch 2 (Zoning Table) an extractive industry is listed as an 'A' category in the 'agricultural resource' zone. The definition of the 'A' category is defined under cl 4.3.2 as:
'A' means that the use is not permitted unless the Local Government has exercised its discretion by granting planning approval after giving special notice in accordance with clause 9.4.
The matter of 'basic raw materials' is dealt with under cl 5.16:
(a)Extraction of essential material for roads and construction are to be permitted in areas where they will not adversely affect living environments, the landscape quality or contribute to land degradation problems during and after operations;
(b)Extraction of basic raw materials within the rural zones is to be managed in accordance with best industry practices including consideration of end use and rehabilitation at time of decommission;
(c)Appropriate buffer areas are to be applied to protect both the extractive operations as well as the living or agricultural environment in nearby areas;
(d)Council will not support development within those buffer areas, which may be detrimental to the efficiency of the industries. This is to protect the basic raw material precincts from development that may compromise its operations.
The requirement to obtain planning approval prior to commencing development is addressed in cl 8.1 and all 'A' category uses are required to be advertised in accordance with cl 9.4.3:
The Local Government may give notice or require the applicant to give notice or decide to give notice … in one or more of the following ways:
(a)notice of the proposed use or development served on nearby owners and occupiers who, in the opinion of the Local government, are likely to be affected by the granting of Planning Approval …
The matters to be considered by Council in dealing with an application for planning approval include, under cl 10.2:
(f)any Local Planning Policy;
…
(o)the preservation of the amenity of the locality;
…
(z)any relevant submissions received on the application;
…
(bb)any other planning consideration the Local Government considers relevant.
Shire of Chittering - Local Planning Policy No 10
The term 'extractive industry' is defined under cl 2:
'Extractive Industry' means an industry which involves the extraction, quarrying or removal of sand, gravel, clay, hard rock, stone or similar material from the land and includes the treatment and storage of those materials.
The 'objectives' of the policy include, under cl 4:
To ensure that the use and development of land for the extraction of basic raw materials does not adversely affect the environment or amenity in the locality of the operation during or after extraction;
Under cl 5 (Policy Statement) it states:
(a)For the commencement and continuance of an extractive industry, both a current planning approval and excavation licence are required.
(b)For the purpose of the applicant's long term planning Council is prepared to consider the granting of a planning approval for a period of up to ten (10) years.
(c)For the purpose of managing day to day operations Council is prepared to consider the granting of an excavation licence for a period of up to five (5) years.
(d)For ease of administration, the term of the planning approval will generally be a multiple of the term of the excavation licence, provided that Council may specify any term for the planning approval in accordance with the Scheme or for the excavation licence in accordance with the By-law.
(e)Generally the planning approval will be issued to the land owner and runs with the land; the excavation licence will be issed to the operator and is not transferrable, except with the written approval of the Council.
Shire of Chittering - Local Planning Strategy 2001 - 2015
In relation to primary basic raw materials areas the LPS aims, under cl 8.9.2:
To ensure appropriate buffer areas are applied to protect the extractive operations as well as the living or agricultural environment in nearby areas.
In relation to the basic raw materials extraction areas, the 'intent' of these areas is described under cl 10.3:
The intent is:
•To provided appropriate buffer areas in accordance with State Government and local policies and legislation to both protect the workings of extractive industry sites and protect any residences, agricultural development and tourism from adverse effects of noise and dust emissions.
•Not to support new development within any identified buffer areas which may be detrimental to the efficiency of the industries and the issues of basic raw material requirements at the local, regional and State levels;
•In relation to greenfields site applications for extractive industries, to protect existing residences and approved developments by ensuring that all buffer areas are designated so as not to encroach detrimentally on existing authorised developments.
The LPS map shows the subject land, and land immediately to the south, for rural - residential purposes but a Note 1 on the map states:
This Plan has been designed to guide land uses and subsequent development within the Shire for the next 15 20 years.
The matter of objections
The proposal was referred to twelve (12) affected land owners and a further six (6) government agencies as well as being advertised in the Advocate Newspaper. There was a fourteen day advertising period commencing 20 March 2008 and concluding on 4 April 2008.
The government agencies (Western Power, Water Corporation, Main Roads and Department of Environment and Conservation) that lodged submissions had no objection to the proposal.
One objection, dated 3 April 2008, was lodged by the Roberts Day planning agency on behalf of the Aspen Group. The following points were made:
(a)The Aspen Group are pursuing development opportunities on Lots M2091 and 9500 Great Northern Highway adjacent to the west of the subject land.
(b)The Shire has indicated in-principle support for a 'new town' proposal on this land.
(c)Subject to the necessary approvals residential lots could be created in two (2) to three (3) years.
(d)The proposed mining activities could result in noise, dust and additional traffic. Accordingly, the approval should be limited to three (3) years and more stringent noise attenuation measures, visual screening and dust suppression measures should be required upon approval of a Structure Plan for Lots M2091 and 9500.
Although a three year planning consent was imposed by Council in its decision of 16 April 2008 in accordance with the Roberts Day request, this time period was increased to five years following a reconsideration of the matter by Council on 21 May 2008.
The appropriateness of conditions 'b' and 'q'
In the applicant's submission of 3 July 2008 the following points were made:
(a)Condition 'b'.
(i)Condition 'b' does not have a planning purpose and is superfluous as it relates to a separate approval required under the Shire's Local Law. The timeframe for the Planning Approval (five (5) years) is subject to condition 'a'.
(ii)It is somewhat nonsensical to issue a Planning Approval containing two conditions that restrict operations on the site to two different timeframes. Previous applications for this site have seen the Planning Approval and the licence run for the same period of time and there is no compelling evidence that suggests the licence should run for three years only.
(b)Condition 'q'.
(i)The respondent argues that the purpose of condition 'q' is to ensure the amenity of nearby rural - residential development. The closest existing rural - residential development to proposed Pit 2b is 860 metres and there is a vegetation buffer approximately 250 metres wide along the eastern side of the site.
(ii)The extractive industry has operated as close as 380 metres to the existing rural - residential development over the past five (5) years. During this time only one complaint was recorded on the Complaints Register. This was subsequently withdrawn as it did not relate to the actual operation of the extractive industry.
(iii)There was no requirement for excavation work to be restricted on Saturdays in the previous application. Nothing has changed to the extent of rural - residential development since the original approval was granted to cause the Shire to impose the condition.
(iv)Although land to the south (approximately 620 metres from proposed Pit 2b) is identified in the LPS for rural - residential development it is not a 'priority site' in the LPS. Also, it is extremely unlikely that any development will occur within the next five (5) years due to the necessity for a Scheme amendment, subdivision approvals, etc.
(v)It is envisaged that approximately fifteen (15) Saturdays would be worked in any one year.
(vi)The flexibility to cart on a Saturday is essential to the viable operation of the extractive industry on the subject land as well as the factory that depends on the clay from this property.
In the 'Respondent's Response To The Applicant's Submissions', dated 29 July 2008, the following points are made:
(a)Condition 'b'.
(i)The Shire requires a Planning Approval and a Licence before an extractive industry can proceed. For ease of administration the term of the Planning Approval is a multiple of the term of the licence.
(ii)The purpose of condition 'b' is to bring the term of the licence into line with the term of the Planning Approval.
(iii)The term of the Planning Approval is generally longer in recognition of the need for long term investment decisions.
(iv)The term of the licence is shorter to allow changes in conditions relating to operational procedures in the light of any problems arising or conditions changing (eg nearby land rezoned for residential use).
(v)The adjacent landowners to the west lodged a submission via the Roberts Day planning agency requesting a short term approval due to their desire to rezone their land for residential purposes.
(b)Condition 'q'.
(i)It is accepted that the closest rural - residential development to the proposed extractive industry is 860 metres away. However, the adjacent owners to the west are actively pursuing rezoning.
(ii)Just because a Saturday restriction has not previously applied does not mean that it cannot be applied in the future.
(iii)The Shire is experiencing unprecedented growth and development pressures, and complaints against extractive industries are becoming more frequent.
(iv)Many of the Shire's landowners are weekend residents who normally reside in the metropolitan area and seek peace and quiet on the weekends.
The matter of amenity
Under TPS 6, 'amenity' is defined as:
[meaning] all those factors which combine to form the character of an area and shall include the present and likely future amenity.
In Rajneesh Foundation of Australia v Shire of Manjimup (No 2) (1985) 3 SR 65, Mr Malcolm QC (as he was then) defined amenity from a different perspective:
In my opinion the likelihood of a proposed activity causing a nuisance is one way of testing whether or not a given activity will have a detrimental effect on the amenity of the locality.
This definition accepts the existing amenity as given, good or bad, and the likely consequences of a proposed development on that amenity as seen by individuals within the locality.
In this particular case adjoining owners were notified and there was a public advertisement process. Only one objection was lodged by the Roberts Day planning agency on behalf of the Aspen Group. This included a concern on amenity grounds and the need for more stringent noise alternative measures, visual screening and dust suppression should the mining activities overlap the creation and marketing of residential lots immediately to the west.
Conclusions
The application for review was lodged against a decision of the Shire of Chittering to impose a number of conditions of planning consent for a extractive industry on the subject land that were unacceptable to the applicant.
Following a reconsideration of the matter by the Shire the applicant amended their original objection against seven of the 27 conditions of approval to two conditions only (conditions 'b' and 'q').
In undertaking this review the Tribunal has examined the respective arguments of the parties, the background to the proposal, the relevant legislative and policy provisions, the content of the single objection to the planning application, the appropriateness of conditions 'b' and 'q' and the matter of amenity.
The situation that the Tribunal had before it was that of a large property of some 309 hectares zoned 'agricultural resource' and on which a previous approval for an Extractive Industry Licence for the extraction of clay, covering some 22 hectares (pits, dam, stockpile, etc) had been given on 10 April 2003 for a term of five years. The expiration of that Licence had given rise to the need for a planning approval and a new Licence.
The initial planning application in 2003 proposed that clay resources were to be exploited from Pit 1 first and rehabilitated before moving on the Pit 2 adjacent to Blue Plains Road at the southern boundary of the subject land.
These arrangements were changed to exploit Pit 2 first (renamed as Pit 1) and then to move north and further away from existing rural - residential lots to the south.
The current application proposes to continue operations north of Pit 2a (Pit 2 is split into Pit 2a and Pit 2b) and then onto Pit 3 within the five year approval period, but with mining activity likely to finish earlier in 2011.
In granting the approval on 16 April 2008 the Council's condition 'a' stated:
The following consent shall be for the period of three (3) years from the date of issue until the 30 June in the year specified as the year of expiration. The proponent may apply for an extension of the approval for a period of up to five (5) years. This application is to be made no later then three (3) months prior to the expiry of the current consent.
At the Council meeting of 21 May 2008 condition 'a' was amended by replacing the approval period from three (3) years to five (5) years.
The effect of this change is that, theoretically speaking, the five year approval period, plus a five year extension, could amount to a total of 10 years.
The wording of Council’s 16 April 2008 approval for condition 'b' stated:
The extractive industry licence shall apply for a period of three (3) years from the date of issue until the 30 June in the year specified as the year of expiration. The proponent may apply for an extension of the licence for two further periods of up to two (2) years each. Each of these applications is to be made no later than three (3) months prior to the expiry of the current licence.
The effect of condition 'b' is that, theoretically speaking, the three year licence approval, plus the two extension periods of two years each, would run for a total of seven years. This time period is inconsistent with [57] above.
Putting this inconsistency to one side, which is not of itself fatal to the argument, the respondent does advise at [18(a)] and [18(b)] above that condition 'b' is not intended to act as a 'condition' but as an 'advice note'. The respondent suggests that if the condition is not understood, it should be set aside.
In the view of the Tribunal condition 'b' is both confusing and unnecessary and should not form part of either the conditions of approval or an advice note and is hereby set aside. The terms of the now deleted condition 'b', or some modified terms, should form part of the Extractive Industry Licence.
Regarding condition 'q', which is designed to restrict operations from Monday to Friday only, it is clear from cl 5.16 of TPS 6 (outlined in [29] above), that the emphasis is not only to protect the living (residential) and agricultural environment, but also to protect the extractive industry operations. These same sentiments are expressed in both the LPS and LPP 10.
The point here is that in making a planning determination it is incumbent on the respondent, and this Tribunal, to properly and fairly balance the competing aims of industry and rural landowners.
In that sense it is the case that the proposed mineral extraction from Pit 2b is approximately 860 metres away from the existing rural - residential development and would be some 620 metres from proposed rural - residential development to the south. Also Pit 1, which has now been rehabilitated, was as close as 380 metres from the existing rural - residential development and there was only one complaint. That complaint did not relate to actual extraction work.
A further point of relevance is that if excavation was to occur on a Saturday, it would be at an estimated 15 times only per year and would, as argued by the respondent at [19(j)] above, be restricted to 7.30 am to 5 pm.
Although the Tribunal acknowledges the general point made by the applicant that complaints against extractive industries are becoming more frequent, there was no specific evidence placed before it that complaints are in respect to the subject land. The Tribunal accepts the evidence of the applicant that no justifiable complaints have been recorded in its Complaints Register.
Having regard to the circumstances of this case, the Tribunal determines that the hours of operation of the extractive industry on the subject land be from Monday to Friday from 6 am to 6 pm and on Saturdays from 7.30 am to 5 pm, with no work on Sundays or Public Holidays.
Order
For the foregoing reasons the Tribunal orders that:
1.The application for review is upheld.
I certify that this and the preceding [68] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR L GRAHAM, SENIOR SESSIONAL MEMBER
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