Mirvac Mandurah Pty Ltd and City Of Mandurah - [2006] WASAT 44

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)

CITATION: MIRVAC MANDURAH PTY LTD and CITY OF MANDURAH [2006] WASAT 44

MEMBER: MR D R PARRY (SENIOR MEMBER)
MR M SPILLANE (MEMBER)
MR J ADDERLEY (SESSIONAL MEMBER)

HEARD: 6 AND 7 DECEMBER 2005 - ADDITIONAL SUBMISSIONS, DRAFT CONDITIONS AND PLANS FILED ON 13 DECEMBER 2005, 19 DECEMBER 2005 AND 23 DECEMBER 2005

DELIVERED : 24 FEBRUARY 2006

FILE NO/S: DR 264 of 2004

BETWEEN: MIRVAC MANDURAH PTY LTD
Applicant
AND
CITY OF MANDURAH
Respondent

Catchwords:

Town planning Development application Concrete batching plant "Urban Development" zone Proposed use classified as "noxious industry" which is use not listed "Light industry" prohibited Whether development prohibited Proposed use characterised as "essentially a light industry" Whether development consistent with objectives and purposes of zone Dust Development within generic separation distance from sensitive (residential) land use identified by EPA Whether Dust Management Plan prepared by developer is a "technical analysis" or "scientific study" Whether Tribunal satisfied that dust impact of development in locality is acceptable Noise Use of "croaker" reversing alarms Significance of region planning approval in relation to local planning application Adequacy of plans

Legislation:

City of Mandurah Town Planning Scheme No 3, cl 3.2.2, cl 3.2.3, cl 4.9.1, cl 4.9.2, cl 7.5.1
Environmental Protection (Noise) Regulations 1997 (WA)
Environmental Protection Act 1986 (WA)
Peel Region Scheme, cl 18, cl 21, cl 34
Town Planning and Development Act 1928 (WA), s 8A(1), s 38(4)(a)

Result:

1. Application for review dismissed.
2. Development approval for concrete batching plant at Lot 9020 Camden Way, Meadow Springs is refused.

Category: B

Representation:

Counsel:

Applicant: Mr MC Hotchkin with Ms MC Clarke
Respondent: Mr PL Wittkuhn

Solicitors:

Applicant: Hotchkin Hanley
Respondent: McLeods

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

Dayho v Rockdale City Council (2004) 139 LGERA 370
The Owners of Strata Plan 18449 and City of Joondalup [2005] WASAT 304

Case(s) also cited:

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

BGC (Australia) Pty Ltd trading as BGC Concrete (BGC) sought review of the City of Mandurah's (City) refusal of development approval for a concrete batching plant in Meadow Springs.
The principal issues for consideration were:
•whether the development was not permitted in the "Urban Development" zone, because it was not consistent with the objectives and purposes of the zone;
•whether the dust and noise impacts of the development on the surrounding locality were acceptable; and
•the significance of a development approval which had been granted for the same development under the applicable region scheme.
The Tribunal affirmed the City's decision and refused development approval. The Tribunal determined that the proposed use is not consistent with the objectives and purposes of the zone and is, therefore, not permitted, for two reasons. First, the use was characterised by BGC as "essentially a light industry", whereas "light industry" is not permitted in the zone. Second, in the absence of an approved outline development plan, the objectives and purposes of the zone include restricting land uses to those specified in the zoning table. The proposed use is not specified in that table.
The Tribunal also considered that, had it determined that the proposed use may be consistent with the objectives and purposes of the zone and was, therefore, capable of approval in the exercise of planning discretion, the application warranted refusal. In particular, although the Tribunal was satisfied, on the evidence presented, that the development would have an acceptable acoustic impact, if appropriately conditioned, on an adjacent rural residential area, it was not satisfied, on the evidence, that the development would have an acceptable impact in terms of dust. The absence of any objective, scientific evidence as to the likely dust impact of the development was a significant deficiency in BGC's case.
Although development approval under the region scheme was a relevant factor, it was not to be given substantial weight in the review for three reasons. First, the focus of the consideration which led to the approval was on regional, rather than local planning issues. Second, the region approval was granted for a limited period of five years, whereas BGC would not accept a timelimited consent in the review. Finally, as the region development approval was granted by consent, there was no contradictor to the grant of approval, unlike the present case.
Finally, the Tribunal considered that the plans of the development are inadequate as they fail to clearly depict important elements of the proposal.

Introduction

These proceedings involve an application formally brought by Mirvac Mandurah Pty Ltd (Mirvac), but in substance brought by BGC (Australia) Pty Ltd trading as BGC Concrete (BGC), pursuant to s 8A(1) of the Town Planning and Development Act 1928 (WA) (TPD Act), for review of the decision of the City of Mandurah (City) to refuse a development application for a concrete batching plant at Lot 9020 Camden Way, Meadow Springs (Lot 9020). Lot 9020 is an irregularly shaped allotment bounded by a waste transfer station to the southwest, the Kwinana Freeway (Mandurah bypass) road reservation to the northwest and a strip of reserved regional open space to the east and north. Construction of the Mandurah bypass has commenced. To the south of the waste transfer station is the Water Corporation Gordon Road wastewater treatment plant. To the east of the regional open space is a rural residential area comprising over 150, roughly 5 acre (2.02 ha) natural bush blocks, known as "Parklands". Lot 9020 forms part of a larger landholding owned by Mirvac which straddles the freeway reservation.
The site of the proposed development occupies approximately the southernmost one-quarter of Lot 9020 (site). The site is substantially regular in shape with dimensions of approximately 100 metres by 80 metres and an area of approximately 8000 square metres. BGC has agreed to lease the site from Mirvac until subdivision of Lot 9020 is effected and thereafter to purchase it, subject to development approval. The development application was lodged and the proceedings were commenced in the name of Mirvac, although it is common ground that the developer and proposed operator is BGC. BGC owns and operates six of the 37 concrete batching plants in the Perth metropolitan region and surrounding areas.
The development application was notified to public authorities and utility providers and was advertised. The Department of Environment and the Department of Health indicated that they had no objection to the proposal. The Department of Planning and Infrastructure did not oppose the application, but advised that the development would also require the approval of the Western Australian Planning Commission (Commission) under the Peel Region Scheme (PRS), as the development would "abut" the regional open space reservation. The Water Corporation recommended refusal of the application for reasons including the provision of insufficient detail in relation to the management of odour and dust. One hundred and fifty public objections to the application were received comprising 12 individual letters and 138 form letters.
At its meeting on 24 May 2005, the City considered a report from its Planning and Sustainability Director which recommended that it determine that the proposed use may be consistent with the objectives and purposes of the "Urban Development" zone under City of Mandurah Town Planning Scheme No 3 (TPS 3 or Scheme) and is, therefore, a discretionary use and that it grant conditional planning approval for the proposed development. The City did not accept its officer's recommendation. It resolved that the proposed use is not consistent with the objectives and purposes of the zone and is, therefore, not permitted. It also resolved that, "in any event", if it had discretion to consider approval of the development application, it would refuse approval on the following grounds:
"(a)The proposed development is not consistent with the objectives and purpose [sic] of the "Urban Development" zoning of Town Planning Scheme No. 3.
(b)The proposed development will have an adverse impact on the use of the existing landscape and on the existing and proposed amenity of the locality.
(c)Potential land use conflicts, directly relating to dust, noise and traffic impacts of the development on the surrounding locality due to the setback of the proposed development being less than the recommended setback as per the Environmental Protection Authority's draft Guidance Statement No. 3: Separation Distances between Industrial and Sensitive Land Uses (June 2004).
(d)The proposed development is not consistent with proper and orderly planning."
On 1 March 2005, Mirvac lodged an application for approval of the development under the PRS. An application for review of the deemed refusal of that application by the Commission was subsequently commenced in the Tribunal. Following mediation, on 21 October 2005, the Tribunal ordered by consent that the application be granted and that the application for development approval is approved subject to conditions. Condition 1 provides that the approval is valid for a period of five years after which all buildings and structures associated with the plant must be removed from the site at BGC's expense and to the satisfaction of the Commission.
On 16 February 2004, the Department of Environment issued a works approval to construct the proposed plant under the Environmental Protection Act 1986 (WA).
Although the value of the proposed development is less than $250 000, at a directions hearing the parties considered that the application is likely to raise complex or significant planning issues and should, therefore, be determined by a panel including a Judge or senior member, rather than by an ordinary member sitting alone: see TPD Act s 38(4)(a). Deputy President Chaney agreed with the parties' position and the proceedings were listed before a panel comprising a senior member and two other members.
In these reasons, the Tribunal will at first describe the proposed development and the statutory planning context. It will then identify and address the principal issues which arise for consideration in the review. Finally, the Tribunal will make observations in relation to the adequacy of the development plans.

Proposed development

The development application proposes the construction and operation of a concrete batching plant producing 20 000 25 000 cubic metres of concrete per annum. Concrete batching involves the mixing of water, cement, dry materials (sand, rock and blue metal otherwise known as "aggregate") and admixtures (chemicals used to control the setting time and mix strength). The mix is then transferred to an agitator (mixing truck) for delivery.
The principal part of the plant would be located in an area having dimensions of approximately 80.0 metres by 60.0 metres in the eastern part of the site. This area would include two silos with a height of approximately 17.0 metres, an agitator loading cell, two weigh/feed bins, a conveyor belt to transfer material from the weigh/feed bins to the loading cell, five material storage bins, two dry and three wet waste storage bins, a lunchroom/office, an 11 bay car park, a truck park and manoeuvring area. The loading cell is orientated with its opening to the north. It comprises 5.0 metre high acoustic walls on its eastern, southern and western sides.
Twenty metre wide vegetated buffers are proposed to the east, west and north of the principal part of the plant. The waste transfer station lies to the south. The vegetation to the east and north is already substantially in place.
A slump stand open to the south with 4.5 metre high acoustic walls to the east, north and west is proposed a short distance to the west of the principal part of the plant.
The development requires one cement delivery on alternate days and four to five aggregate deliveries per day. Materials used at the site are moistened to control dust before being loaded onto trucks for delivery to the site. It is anticipated that rock and blue metal would be sourced from the BGC quarry at the Lakes near York, approximately 1.5 hours away and that sand would be sourced from Rockingham, approximately half an hour away. It is unclear on the evidence where the cement would be sourced from. The delivery trucks themselves do not contain sprinklers or other means of moistening materials. Sand and aggregate delivery trucks are covered with tarpaulins during summer months.
Sand and aggregate materials delivered to the site would be tipped by the delivery truck into and/or in front of precast concrete material bins, depending on how full the bin is. Where possible, material tipped outside a bin would be pushed up into the bin by a front-end loader. The proposed sand bin has dimensions of approximately 18.0 metres by approximately 18.0 metres. The other four proposed material bins have dimensions of approximately 10.0 metres by 8.0 metres. The precast concrete sides and rear walls of the bins are 3.0 metres in height.
The plans of the proposed development do not show any cover to the material bins. However, during the first day of the hearing, Mr Philip Hobbs, the Group Manager of BGC Concrete, gave evidence that the bins are, in fact, proposed to be covered. On the second day of the hearing, the Tribunal was provided with a "typical materials' bin detail" which shows a colorbond screen cover above a bin pitching at a 27 degree angle from a point 4.0 metres above the ground at the rear of the bin. The detail indicates that the screen would be supported by a brace above the side wall and that two sprinklers would be fitted to the underside of the screen. The screen would reach a maximum height of 9.0 metres above the front of the bin. Amended plans of the proposed development filed after the conclusion of the hearing on 23 December 2005 (to show the reorientation of the loading cell with its opening to the north) still fail to show any covering of the bins, although the "typical materials' bin detail" is attached.
Cement delivered to the site would be transferred directly from the delivery truck to the silos. Alarms would be fitted to the silos to prevent overfilling.
A frontend loader would pick up dry materials from the material bins and transfer them to the weigh/feed bins. The materials would be transferred from the feed bins to the loading cell by the conveyor belt. In the loading cell, the dry materials are mixed with cement, stored in the silos above, and water.
The plans of the proposed development lodged with the City and tendered on the first day of the hearing as the plans for which consent is sought do not show the conveyor belt, although it is an essential component of the proposal. The amended plans filed on 23 December 2005 show the conveyor belt. However, a Dust Management Plan prepared by BGC dated 15 February 2005 which forms part of the evidence states that "(c)onveyors deemed to be a source of airborne dust may require partial covering when site specific conditions are considered". Mr Hobbs also gave evidence that "we're proposing to cover the conveyor". However, neither the originally submitted and tendered plans nor the amended plans show either partial or complete covering of the conveyor.
The mixing truck, which has a holding capacity of 5 cubic metres of concrete, would be reversed into the loading cell to collect the mix. The mixing truck has a concrete agitator mounted on it which mixes the concrete. The mixing truck would then be driven to the slump stand where the driver is able to view the mixing part of the truck from a platform and check the consistency of the concrete. Water may be added at this point to achieve the correct "slump" or consistency. If the driver is satisfied with the consistency of the concrete, the truck would leave the site for delivery. Once the concrete is delivered, the truck would return to the site and the process would be repeated. It is anticipated that 24 30 truckloads of concrete would be delivered from the site daily.
The proposed hours of operation of the plant would be from 6 am 4 pm Monday to Friday and from 6 am 1 pm on Saturday. The plant would be operated by two staff with six drivers. A supervisor would visit the site daily. A manager from BGC and staff required for maintenance work or to clean out the waste bins would visit the site from time to time.

Statutory planning context

The site, the rest of Lot 9020 and part of the Mirvac land to the west of the freeway reservation are zoned "Urban" under the PRS and "Urban Development" under TPS 3. It is common ground that the proposed development is classified as "noxious industry" under TPS 3. That term is defined to mean "an industry which is subject to licensing as 'Prescribed Premises' under the Environmental Protection Act 1986 (as amended)". "Noxious industry" is a land use which is not listed in the zoning table of any of the 12 zones under the Scheme.
Clause 3.2.3 of TPS 3 provides as follows:
"If the use of the land for a particular purpose is not specifically mentioned in any of the Zoning tables and cannot reasonably be determined as falling within the interpretation of one of the use categories the Council may:
(a)determine that the use is consistent with the objectives and purposes of the particular zone and is therefore permitted; or
(b)determine that the proposed use may be consistent with the objectives and purpose [sic] of the zone and thereafter follow the 'SA' procedures of Clause 7.3 in considering an application for planning approval; or
(c)determine that the use is not consistent with the objectives and purposes of the particular zone and is therefore not permitted."
As noted earlier, the City determined that the use is not consistent with the objectives and purposes of the zone and is, therefore, not permitted. The City submits in the review that the Tribunal should come to the same conclusion. BGC contends that the Tribunal should determine that the proposed use may be consistent with the objectives and purposes of the zone and consider the application on its merits. In this regard, although the City determined that the use is not permitted, it advertised the application in substantial compliance with cl 7.3 of the Scheme.
Clause 4.9.1 of TPS 3 describes the purpose and intent of the "Urban Development" zone as follows:
"The Urban Development zone is intended to provide for future residential and urban related development after comprehensive planning of the relevant areas has been carried out resulting in an approved Outline Development Plan. The Outline Development Plan should conform with any Structure Plan or Guide Plans, any Planning Policies and Retail Structure Plan adopted by Council and the Western Australian Planning Commission. Where no Outline Development Plan exists the following Uses and Development Standards shall apply. Land uses that are likely to adversely affect the potential for future urban development should not be permitted (eg uses that require intensive use of insecticide or other chemicals)."
Clause 4.9.2 provides that where an outline development plan and technical guidelines have not been approved by the City, "the permissibility of uses in the Urban Development Zone and the relevant standards specified in Zoning Table 9 shall apply".
Clause 7.5.1 of TPS 3 requires the City (and the Tribunal on review) to have regard, when considering an application for planning approval, to a range of considerations including:
•the requirements or orderly and proper planning;
•any relevant submissions or objections received on the application;
•any impact a development may have on the environment;
•the character or location of the development;
•the relationship of the development to development on adjoining land or on other land in the locality;
•the existing and likely future amenity of the neighbourhood;
•the public interest; and
•any other planning considerations that it considers relevant.

In November and December 2004, the Commission advertised the draft Gordon Road Planning Precinct Structure Plan (Structure Plan). The City adopted the draft Structure Plan on 15 December 2004. According to the evidence of Mr Gregory Rowe, a town planner and architect who gave evidence on behalf of BGC, the Department of Planning and Infrastructure advised that the draft Structure Plan was expected to be adopted in December 2005.
The draft Structure Plan designates the site and most of the rest of Lot 9020 as "Future Light Industrial". It designates the Mirvac land to the west of the freeway reservation as "Future Meadow Springs Residential Development", "Future Primary School" and "Public Open Space Facilities". It is common ground that implementation of the Structure Plan's designation of Lot 9020 as a light industrial area would require the rezoning of that land under TPS 3.
Clause 3.2.2 of the Scheme provides that, where a use does not appear in a particular Zoning table, but is listed in another Zoning table, "that use shall be deemed to be not permitted in the Zone where the use does not appear". The land use "light industry" does not appear in the Zoning table to the "Urban Development" zone. However, that land use does appear as a permitted use in the "Industry" zone. Light industry is, therefore, presently prohibited on the site.

Issues

The following four principal issues emerged for consideration in the review:
1.Is the development not consistent with the objectives and purposes of the "Urban Development" zone and, therefore, not permitted?
2.Is the dust impact of the development in the locality acceptable?
3.Is the noise impact of the development in the locality acceptable?
4.What is the significance in the review of the development approval under the PRS?
The Tribunal will consider each issue in turn.

Is the application capable of approval?

Mr PL Wittkuhn, counsel for the City, contended that the proposed concrete batching use is not consistent with the objectives and purposes of the "Urban Development" zone for either of essentially two reasons. First, Mr Wittkuhn submitted that considerable guidance can be obtained as to the objectives and purposes of the zone from the fact that "light industry" is not permitted by virtue of cl 3.2.2 of the Scheme and the zoning table. Mr Stephen Allerding, a consultant town planner called on behalf of the City, gave evidence that the "Industry" zone is "where industrial uses should be located [under TPS 3] and therefore, by that reference, I would suggest that in an 'Urban Development' zone, that the intention is not for these industrial forms of uses to be contemplated … ". Mr Wittkuhn submitted that "it borders on the outrageous" to suggest that it is within the objectives and purposes of a zone which does not accommodate light industry to allow a concrete batching plant.
Second, Mr Wittkuhn referred to the last sentence of cl 4.9.1, namely that "[l]and uses that are likely to adversely affect the potential for future urban development should not be permitted (eg uses that require intensive use of insecticide or other chemicals)", and submitted that the proposal will affect the potential for urban development on land to the north of the site and on the Mirvac land to the west of the freeway reservation.
Mr MC Hotchkin and Ms MC Clarke, counsel for BGC, did not make any submission in reply to Mr Wittkuhn's submissions.
The Tribunal finds that the proposed use is not consistent with the objectives and purposes of the "Urban Development" zone for each of two reasons. First, the Tribunal accepts Mr Wittkuhn's submission that the absolute prohibition on use of land as "light industry" in the zone strongly suggests that a concrete batching plant is inconsistent with the intent of the zoning. The term "light industry" is defined in the Scheme as an industry:
"(a)in which the process carried on, the machinery used, and the goods and commodities carried to and from the premises, will not cause any injury to, or will not adversely affect the amenity of the locality by reason of the emission of light, noise, electrical interference, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, wastewater or other waste products; and
(b)the establishment of which will not, or the conduct of which does not, impose an undue load on any existing or proposed service for the supply or provision of water, gas, electricity, sewerage facilities, or any other like services."
Having set out the definition of "light industry", Mr Rowe described the proposed concrete batching plan as "[a]n industrial use" and gave evidence that "[a]n industrial use that does not impact on surrounding amenity by way of emissions is essentially a light industry". It is BGC's case that the proposed development will not cause any injury to, and will not adversely affect the amenity of the locality by reason of dust or noise. For reasons discussed below, the Tribunal is not satisfied, on the evidence presented to it, that the development will not adversely affect the amenity of the locality by reason of dust. However, accepting BGC's case for present purposes, if the proposed development were not an industry subject to licensing as "Prescribed Premises" under the Environmental Protection Act 1986, it would constitute a "light industry" under the Scheme. Plainly, therefore, use of land as a concrete batching plant, whether it does or does not impact on surrounding amenity by way of emissions, is contrary to the objectives and purposes of a zone in which "light industry" is a prohibited use.
Second, as part of its description of the purpose and intent of the zone, cl 4.9.1 of TPS 3 provides that, as no outline development plan exists in relation to the site, "the following Uses and Development Standards [that is, those referred to in cl 4.9.2] shall apply". As noted earlier, cl 4.9.2 provides that where an outline development plan has not been approved by the City, "the permissibility of uses in the Urban Development Zone and the relevant development standards specified in Zoning Table 9 [that is, the zoning table for the zone] shall apply". It is, therefore, apparent that an objective and purposes of the zone is to limit the potential approval of uses, until the carrying out of detailed strategic planning in the form of an outline development plan, to the uses specified in the zoning table. The proposed land use is not specified in the zoning table and is, therefore, not consistent with the objectives and purposes of the zone.
Finally, the Tribunal notes that Mr Wittkuhn's second submission is arguable in relation to the balance of Lot 9020 to the north of the site. Mr Daniel Lloyd, an acoustics engineer who gave evidence on behalf of BGC, conceded that part of Lot 9020 to the north of the site would be sterilised for development in relation to any use which would comprise a sensitive receptor, because of the noise generated by the development. Under the zoning table, dwelling houses are a permitted use in the "Urban Development" zone. It is correct, as Mr Rowe observed, that the City is unlikely to approve the location of the physical structure of a dwelling within that part of Lot 9020 which is within the Water Corporation's published buffer area around the wastewater treatment plant. Mr Rowe and Mr Allerding jointly marked the northern extremity of the buffer area on an aerial photograph which also depicts the proposed development and possible future subdivision boundaries within Lot 9020. The superimposition demonstrates that part of the contemplated allotment immediately to the north of the site and the two other contemplated allotments within Lot 9020 are outside the wastewater treatment plant buffer. A dwelling house could, therefore, be located within Lot 9020 outside the buffer. However, Mr Rowe also observed that, as the draft structure plan is a seriously entertained planning proposal and identifies the whole of Lot 9020 as future light industrial, it is unlikely that a dwelling house or any other sensitive land use would ever be proposed on any part of the balance of Lot 9020. There is logic in Mr Rowe's observation. Ultimately, the Tribunal does not have to come to a considered view in relation to Mr Wittkuhn's second submission and it does not do so.
In consequence of the Tribunal's earlier findings, the application for review must be dismissed and development approval refused. However, as a great deal of evidence and submission was devoted to the issues going to the merits of the application, the Tribunal turns, as did the City in its decision, to a consideration of the application on the assumption that the proposed use may be consistent with the objectives and purposes of the zone and is, therefore, capable of approval.

Is the dust impact of the development acceptable?

As noted earlier, the City's third merit reason for refusal of the development application was "potential land use conflicts, directly relating to dust, … of the development on the surrounding locality due to the setback of the proposed development being less than the recommended setback as per the Environmental Protection Authority's draft Guidance Statement No. 3: Separation Distances between Industrial and Sensitive Land Uses (June 2004)". Shortly after the City's refusal of the application, the document referred to in this reason for refusal was adopted by the Environmental Protection Authority (EPA).
Guidance for the Assessment of Environmental Factors Separation Distances between Industrial and Sensitive Land Uses No. 3 (June 2005) (EPA Guidance) states as follows:
"A sound sitespecific technical analysis is generally found to provide the most appropriate guide to the separation distance that should be maintained between an industry or industrial estate and sensitive land use.
However, in recognition that as sitespecific study may not be necessary in all situations, generic separation distances have been developed. The generic separation distances in Appendix 1 are based on the experience of the Department of Environment (DoE) and other regulatory authorities (eg Environmental Protection Authority, Victoria) and limited site-specific quantitative scientific assessment." (Page 3)
On page 5, the EPA Guidance states that:
"The distances outlined in Appendix 1 are not intended to be absolute separation distances, rather they are default distances for the purposes of:
•identifying the need for specific separation distance or buffer definition studies; and
•providing general guidance on separation distances in the absence of sitespecific technical studies."
Clause 2.3 of the EPA Guidance states that land uses considered to be potentially sensitive to emissions from industry include residential development and residential subdivision.
Clause 4.1 sets out the specific guidance of the EPA where a new industrial land use is proposed near existing or proposed sensitive development. This clause provides, in part, as follows:
"Where the separation between the industrial and sensitive land uses is greater than the generic distance, there will not usually be a need to carry out site-specific technical analyses to determine the likely area of amenity impacts due to emissions from the industry. The need for technical analyses is likely to be limited to such instances as major industrial developments, industries using new or non-typical processing techniques, or areas subject to cumulative impacts.
Where the separation distance is less than the generic distance, a scientific study, based on site and industryspecific information must be presented to demonstrate that a lesser distance will not result in unacceptable impacts.
If the distance from the industrial land use to the sensitive land use is less than the recommended separation distance, and it cannot be demonstrated that unacceptable environmental impacts are likely to be avoided, then other options should generally be pursued.
These may include:
•modifying the project to reduce emissions by engineering controls such as process design, process enclosure or other means; and
•pursuing land use planning and management controls (for example, land acquisition, rezoning) to reduce environmental impacts to acceptable levels." (Emphasis in italics added.)
Appendix 1 to the EPA Guidance identifies a separation buffer distance between concrete batching plants and sensitive land uses of 300 metres to 500 metres "depending on size". It identifies the relevant potential impacts of concrete batching plants as dust and noise.
Five rural dwellings within the Parklands rural residential area are located within approximately 300 metres of the proposed development. Parts of two other properties, although not the dwellings or their immediate curtilage, are also located within approximately 300 metres. Seven other dwellings within the Parklands area are also located within approximately 500 metres of the development and parts of several other properties are also located within approximately 500 metres. The part of the Mirvac land to the west of the freeway reservation which is identified for medium density residential development under the draft Structure Plan is located between approximately 230 metres and approximately 370 metres from the development. Another part of the Mirvac land, identified as low density residential development in the draft Structure Plan, is located a minimum distance of 370 metres from the development.
On 16 July 2004, shortly after the development application was lodged with the City, the City's professional staff advised Greg Rowe & Associates, who represented BGC, that a number of issues had been identified which needed to be addressed to enable further consideration of the proposal. The issues required to be addressed included the following:
"Given that the proposed batching plant has separation distances less than those recommended in the [then draft] Guidance Statement, a sound sitespecific technical analysis will be required to provide the most appropriate guide to the separation distance that should be maintained to avoid or minimise land use conflicts. With regards to this technical analysis, discussions should be undertaken with the Department of Environment to exactly determine what is appropriate for the analysis in this instance."
On 28 October 2004, the Chief Executive Officer of the City wrote to Greg Rowe & Associates and noted that the information requested on 16 July 2004 had not been provided. The Chief Executive Officer indicated that this information was required to "allow for the proper assessment of the application" and "so that the community can gain an understanding of the proposal when the application is advertised".
Under cover of a facsimile dated 27 January 2005, Greg Rowe & Associates submitted a number of documents, including "information relating to control of dust". It appears that this information was limited to a single page Dust Management Plan prepared by BGC on 9 December 2003. An expanded, two page, Dust Management Plan was submitted as evidence in the review. The Tribunal finds that neither the single page Dust Management Plan submitted to the City nor the expanded version of the document presented in evidence constitutes a "sitespecific technical analysis" or "scientific study based on site and industryspecific information" contemplated by the EPA Guidance. BGC did not content otherwise in the review.
As Mr Hotchkin conceded, BGC did not present a scientific study based on site and industryspecific information to the Tribunal, and nor did it call any expert evidence on air quality in support of its application. The EPA Guidance is not a statutory planning instrument. Nevertheless, it reflects the considered position of the EPA "about the minimum requirements for environmental management which the EPA would expect to be met" (page 1). Particularly in the absence of any qualified, scientific evidence in relation to air quality in support of the development application, considerable weight should be given to the Guidance. As noted earlier, the Guidance states that "[w]here the separation distance is less than the generic distance [in this case 300 metres 500 metres depending on the size of the plant], a scientific study based on site and industry-specific information must be presented to demonstrate that a lesser distance will not result in unacceptable impacts". The evidence does not disclose where the size of the proposed plant fits into the continuum from small to large batching plants. However, even assuming that it is a small plant, four dwellings are located within approximately 300 metres. The EPA Guidance, therefore, clearly contemplates that a scientific study is required to demonstrate that the separation distance will not result in unacceptable impacts in terms of dust.
Mr Rowe dismissed the EPA Guidance on the basis that it "is only relevant if there is to be any detrimental offsite impacts". However, it is plain that the EPA Guidance contemplates that a meaningful assessment of whether a concrete batching plant will have any detrimental offsite impacts cannot be made in the absence of a scientific sitespecific study unless the generic separation distance identified in Appendix 1 is exceeded. The Tribunal considers that, if the application were capable of approval in the exercise of discretion, it should be refused in the absence of the study contemplated by the EPA Guidance.
However, even absent the EPA Guidance, the Tribunal considers that the nature of the proposed development and the proximity of residential uses to the east, as well as the potential development of the remainder of Lot 9020 and the Mirvac land to the west, necessitates an objective, scientific assessment of the likely dust generation from the site and its likely impact on land in the locality in order for a proper planning assessment of the proposal to be able to be undertaken under TPS 3. The absence of such evidence is a significant deficiency in BGC's case.
BGC's case on the issue of dust is to be contrasted with, for example, Dayho v Rockdale City Council (2004) 139 LGERA 370, a planning appeal against the refusal of a development application to construct and operate a concrete batching plant. In that case, Senior Commissioner Roseth of the Land and Environment Court observed at [3] that "[t]he critical impacts of a concrete batching plant are noise and dust". The Senior Commissioner received and considered expert evidence on air quality from an atmospheric physicist and an atmospheric chemist. BGC's case on dust is also to be contrasted with its approach to the issue of noise in relation to which it presented an objective, scientific environmental noise assessment.
Each of the 150 public objections to the application and the objection made by the Water Corporation raised concern as to the potential dust impact of the proposed plant. The City called four resident objectors from the Parklands area in the vicinity of the site to give evidence in its case. The principal concern raised by each was dust. They gave evidence that the Parklands area to the east and northeast of the site is not serviced by town water and is dependent on rainwater tanks. They each expressed concern that dust from the plant would settle onto roofs and rainwater collection points and enter the drinking water supply. They also expressed concern that dust would settle on edible crops being grown and generally affect residential amenity.
BGC relied on five items of evidence in support of its contention that the development would not have an unacceptable impact on the surrounding locality in terms of dust. The Tribunal will address each item in turn. The Tribunal does not consider that any of these items, individually or collectively, satisfies the contemplation of the EPA Guidance or establishes that the development would have an acceptable impact.

First, BGC relied on the evidence of Mr Hobbs that the dust management measures intended to be implemented at the site have worked at other concrete batching plans owned and operated by BGC. Mr Hobbs has been involved in the concrete industry for 20 of the past 24 years, including 14 years as Group Manager of BGC Concrete. In his witness statement, Mr Hobbs gave evidence that BGC has implemented the following dust suppression methods at its existing concrete batching plants:
"(a)delivery of premoistened aggregates from reticulated stockpiles at the quarry;
(b)trucks delivering aggregate and sand covered with tarpaulin, as required in the summer months;
(c)reticulation sprinklers fitted to the ground bins at the plant to ensure that transferred materials are moistened;
(d)storage of materials in ground bins to be below the height of the bin walls to avoid airborne dust or fitting ground bins with dust covers;
(e)conveyors deemed to be a source of airborne dust material may require partial covering when sitespecific conditions are considered. For example, at Rockingham and Armadale plants BGC has installed crescent shaped covers over the conveyor belt;
(f)sprinklers at the point of truck loading;
(g)enclosed loading cell for loading with apron skirts;
(h)reverse pulsator type air filters mounted on the cement silos to eliminate dust emission at the point of delivery;
(i)seals on silo hatches;
(j)all equipment routinely inspected and maintained and procedures followed."
Mr Hobbs also stated that BGC proposes to use sprinklers in the yard of the plant, especially during the summer months, so that the yard is kept wet.
Mr Hobbs noted that the BGC Rockingham plant is surrounded by businesses operating on adjacent properties, around 10 15 metres from the plant, and that a business operates approximately 50 metres from the Armadale plant. So far as he is aware, only one complaint has ever been received in relation to the Rockingham plant and only one in relation to the Armadale plant. As a result of these complaints, at Rockingham, BGC erected colorbond sheeting at the rear boundary adjacent to the affected neighbour, covered the conveyor belt and installed cladding to the overhead bins and, at Armadale, erected sprinklers to the rear yard, upgraded the sprinklers on the ground bins, installed a recycling pit for yard runoff, covered the conveyor belt and erected colorbond sheeting at the boundary. Since implementing these measures, BGC has not received any other complaints regarding dust from these plants.
However, during cross‑examination, Mr Hobbs made the following concessions:
•Although keeping materials below the material bin wall height helps reduce dust and employees are advised to keep materials below that height, it does happen that materials are allowed to be stocked above that height;
•Although employees are told to keep the site wet, a photograph of a BGC plant tendered by BGC showed dried up concrete at the base of a wall which "may have been there for some time and it's just loose material" and could be blown about;
•Another photograph tendered by BGC of one of its plants shows loose material on the ground that is liable to be blown around although "it should be cleaned up in the regular course of business during the day … at some stage";
•In another photograph of a BGC plant tendered by BGC, it appears that, around the ground where a front-end loader is operating to remove material from bins, some visible dust appears to be emanating; and
•The sprinklers are manual and so in dry weather it will depend on the judgment of staff as to whether they are operated.
The cross‑examination also included the following exchange:
"Q.It's just that you're asking the Tribunal to trust BGC alone in relation to its management plans and how much faith ?
A. Well, BGC
Q. the Tribunal and the public can have in its onsite operations. Correct?
A.Mm. If BGC is if anything's brought to BGC's attention it's dealt with immediately.
Q.So, it has to be brought to BGC's attention, does it? The conditions of the licence are not enough?
A.Not not really. No; but at the end of the day if something .
Q.Sorry. They're not really enough? The conditions are not really enough?
A.Look, if something's brought to our attention we attend to it, you know. I'm not saying that this wouldn't happen to any concrete any other concrete company. Certainly, you know, you can't be I cannot be at the plant all the time. The supervisors cannot be. So, you know, certainly they make every effort to comply with the requirements of the Department of Environment conditions."
Having heard Mr Hobbs' evidence, the Tribunal was left with significant concerns about the potential for dust to be generated from the site. Mr Hobbs considered that the fact that it can happen that materials are allowed to be stocked above bin wall height is not a concern in relation to the proposed development, as screens are proposed. Putting aside the issue of the adequacy of the plans in relation to screening, which is addressed below, it is not clear, in the absence of qualified, scientific evidence, why the open sides of a bin between the 3.0 metre high wall and the cover up to 9.0 metres above the ground would not permit dust to escape if the bin is filled above the wall height. More fundamentally, however, Mr Hobbs' evidence gave the Tribunal the impression that BGC employees do not always heed their instructions and that BGC's supervision is not constant. Given that the sprinklers are manual, these are major concerns. Furthermore, the Tribunal was left with the impression that BGC's approach to dust issues is reactive, rather than designing the plant to avoid impacts.
Mr Robert James was called to give evidence by the City in relation to operational aspects of concrete batching plants. Mr James was formerly Group Manager of BGC Cement for approximately ten years and thereafter a consultant to BGC for a number of years. For the past three years, he has been a consultant to Boral, a trade competitor of BGC, although he is available to provide services as a consultant to any concrete operator. Mr James' experience is principally in relation to cement and industries which use cement, including concrete. He has been associated with concrete batch design, handling of cement, aggregates, conveyors, hoppers and settling ponds. Although he has not operated a concrete batching plant, he has visited batching plants between 50 and 100 times in the last few years. It emerged during cross‑examination that Mr James was recommended as a witness to the City's solicitors by Boral.
Mr James described the proposal as "a low tech tractor type plan" and contrasted it with "a dust free high tech plant of the nature operated by Readymix and Hanson in East Perth". In a "low tech" plant, such as the proposal, a loader moves the sand and aggregates around, whereas in a "high tech" plant, the materials are tipped by the delivery trucks into bins below ground from where they are transferred by enclosed conveyor up into holding bins above the batching point. In a "hightech" plant, the whole operation takes place in an enclosed space.
Mr James gave the following evidence:
•"In practice, loads of sand and aggregate are not usually dumped entirely within the bunkers. They are dumped in front of the bunkers, and pushed into the bunkers by the loader. Even after scraping by the loader bucket blade, a layer of sand, fine aggregate and dust is left on the pavement in the area in front of the sand and aggregate bunkers and the batching hopper. It is in this area that the loader will during the course of a normal day's operation make numerous passes, tending to pulverise the sand and aggregate and if a reasonable breeze is blowing, airborne dust will occur."
•"The dumping of sand and aggregate, particularly aggregate, causes dust. Truckloads of aggregate are usually basically dry except during periods of wet weather when the uncovered stockpiles at the quarry become saturated."
•"In practice in my experience of other operations these sprinklers are usually only operated sparingly if at all. Even when operated, unless the sprinklers have been operating for a lengthy [sic], only the top of the pile will be damp, and as such, there is still a fair amount of dust generated when loaders remove sand and aggregate from the bunkers to the batching hopper."
•"In my experience, malfunctions with filters are not uncommon at concrete batching plants. These can result in significant amounts of visible cement dust being emitted and travelling quite a distance from the filter discharge especially during strong winds."
•"Concrete batching plants are minimally manned and can get extremely busy."
In reply to this evidence, Mr Hobbs agreed that whether materials can be dumped into the bunkers "really depends on how full the bin is", although deliveries are made to suit capacity of the bin, and that when dumped outside the bin "then it would maybe be pushed up into the bin". Mr Hobbs said that in the summer months the sprinklers "need to be running pretty well to cope with the volumes and the amount of deliveries being made" and "could be running for most of the day". He maintained that "it would be fairly common in most batch plants to wet the yard and keep it in a damp condition … to keep any dust suppressed". However, this evidence must be understood in the context of his later concession, referred to above, that the sprinklers are operated manually.
Subject to robust cross‑examination, Mr James qualified his evidence that "sprinklers are usually only operated sparingly if at all" to "sprinklers are often only sparingly used". He also conceded that his experience in relation to malfunction of filters was more of a concern a few years ago rather than currently. However, although strongly challenged in cross‑examination on other aspects of his evidence, including a direct challenge as to his truthfulness, Mr James generally maintained his position.
In his closing address, Mr Hotchkin described Mr James as "a most unsatisfactory witness" whose evidence was "fundamentally tainted by the circumstances in which he came to give evidence". Mr Hotchkin also submitted that Mr James was not really an expert on concrete batching plants, having never operated one.
Having carefully reviewed his evidence and observed his demeanour during robust cross‑examination, the Tribunal considers Mr James to be a reliable and relevantly experienced witness. He has observed concrete batching plants, although not as an operator, over an extensive period and he has significant experience in relation to the properties of materials used at such plants. Moreover, his evidence that a layer of sand, fine aggregate and dust is left on the pavement in front of sand and aggregate bunkers is supported by BGC's own photographs which were the subject of Mr Hobbs' cross‑examination. Mr James' evidence that batching plants are "minimally manned and can get extremely busy" is supported by the fact that only two staff (other than the drivers) are proposed to be employed at a plant to operate 57 hours a week, receive 4 5 aggregate deliveries per day and generate 24 30 truckloads of concrete per day.
Furthermore, the lack of complaint in relation to BGC's other concrete batching plants does not demonstrate that the impact of the development in terms of dust generation on the dwellings to the east is acceptable. The closest uses to the Rockingham and Armadale plants are businesses. The closest residential use to any of the BGC plants in relation to which evidence was given is located one kilometre away from the Hazelmere Plant. Mr Rowe also gave evidence about two residential properties being located approximately 50 metres from the Hanson concrete plant in East Perth. However, the Hanson plant is a "dustfree hightech plant" referred to by Mr James. As Mr James observed, such plants are actually built in cities. In light of the significant difference between "hightech" plants and the proposed development as described by Mr James, the Tribunal is not satisfied that experience of the impact of the Hanson plant is comparable to the likely impact from the proposed plant.
The second item of evidence relied on by BGC was Mr Rowe's observations and photographs taken during an inspection of 11 concrete batching plants over a two day period in early December 2005. Mr Rowe gave evidence, on the basis of his observations of the 11 plants, that "none generated dust of any significant extent" and "none of the plants generated dust which I could observe leaving the respective sites, and passing beyond the respective property boundaries".
The Tribunal does not consider this type of evidence to be particularly helpful. While Mr Rowe is an experienced town planner, he is not qualified in air quality assessment. He based his evidence on a relatively short, oneoff visit. It is unclear whether the operations which he observed are typical of the operation of those plants. It is also unclear whether what was observed was influenced by an awareness that an inspection would occur or was occurring.
The third item of evidence relied on by BGC was the works approval granted by the Department of Environment. Mr Hotchkin submitted that this approval is significant, because it was granted by "the body principally charged with the responsibility to ensure such uses do not impact adversely on the environment". However, the grant of a works approval for the construction of a concrete plant, while a relevant factor, does not in itself, or taken with the other evidence referred to, satisfy the Tribunal that the development will have an acceptable impact.
The fourth item of evidence relied on was the Dust Management Plan. As noted earlier, this document was prepared by BGC itself. It was not prepared or apparently reviewed by an independent expert in relation to air quality or operation of concrete plants. The controls listed in the Plan in relation to aggregates and cement are largely reflected in Mr Hobbs' evidence referred to earlier in these reasons. The Plan also contains some generalised observations in relation to training, but does not set out any specific performance or other criteria for staff training, managerial supervision, review of operations or remedying noncompliances. As noted earlier, the Plan contains a vague "control" that "conveyors deemed to be a source of airborne dust may require partial covering when sitespecific conditions are considered".
In his report to the City, the Planning and Sustainability Director stated that "officers have undertaken a preliminary review of the Dust Management Plan and are satisfied that there are measures in place to manage the dust". The Director recommended the imposition of a condition that a "detailed Dust Management Plan" be prepared and complied with. It is unclear why the City's officers did not insist on the provision of the site-specific technical analysis which they had sought from BGC on two occasions in the second half of 2004, but accepted instead the Dust Management Plan. However, in light of the evidence referred to earlier, the Tribunal is not satisfied on the basis of the submitted Dust Management Plan that the dust impact of the development is acceptable.
Finally, BGC relied on the evidence of Mr Rowe that the dust impact would be acceptable, because of the vegetated buffer provided by the regional open space and the topography of that area. In this regard, topographical sections provided by Mr Rowe indicate that the central part of the reserve is 10 15 metres higher than the level of the site and rural residential dwellings on the other side of the reserve. However, as noted earlier, no qualified, expert evidence in relation to air quality was presented. The Tribunal is unable to reach a conclusion that any dust generated by the development would be mitigated by the vegetation and topography in the regional open space without the assistance of qualified evidence as to the extent of dust released by the development and the effect of the intervening natural features.

Is the noise impact of the development acceptable?

Mr Lloyd carried out a detailed environmental noise assessment of the proposed development. The City briefed Mr Norbert Gabriels, who is also an acoustics engineer, to review Mr Lloyd's work. Mr Gabriels expressed certain concerns which Mr Lloyd acknowledged. As a result of the discussions between the experts, Mr Lloyd prepared a further report with which Mr Gabriels was content. Mr Lloyd concluded that, if the noise mitigation measures detailed in his report are implemented, the proposed plant will comply with the Environmental Protection (Noise) Regulations 1997 (WA) (Noise Regulations) at all times. The amended plans filed on 23 December 2005 reflect the noise mitigation measures recommended by Mr Lloyd.
Mr Wittkuhn did not call Mr Gabriels to give evidence on behalf of the City. However, it was the City's case that certain noise impacts which would be generated by the development, while compliant with the Noise Regulations, would nevertheless be annoying. A particular concern raised in a number of the objections and in the evidence of the resident witnesses was the acoustic impact of reversing "beeper" alarms. Mr James Guerin, who resides approximately 300 metres to the southeast of the site, said that the "most invasive noise" from the waste transfer station, located a minimum of approximately 260 metres from his house, is that of reversing beepers. He described this noise as "intolerable" and "driving us crazy".
Mr Lloyd suggested the use of reversing "croakers" rather than "beepers". He explained that, whereas "beepers" emit noise in a compressed and high range frequency which is unlike the noises in the environment and is therefore very distinct, "croakers" emit a more broadband noise which blends into the background level as one moves away from the noise source. The result is that, whereas Mr Guerin is "driven crazy" by "beepers" 260 metres or more away from his house, a "croaker" is, in Mr Lloyd's words, "probably not obvious at all in terms of impact" 100 metres from the noise source. Mr Lloyd indicated that "croakers" have been approved by Worksafe Australia and that he is aware of their use in night time road resurfacing operations in Western Australia. He helpfully provided the Tribunal with a promotional DVD which confirmed his evidence as to the acoustic benefit of "croakers" over "beepers".
BGC is prepared to accept a condition of approval requiring the use of "croakers" at the site. The Tribunal is satisfied, on the evidence of Mr Lloyd, that the acoustic impact of the development on the locality is acceptable.

What is the significance of the development approval under the Peel Region Scheme?

Mr Hotchkin submitted that the grant of development approval to the development application under the PRS "is a relevant consideration and an important relevant consideration" in relation to whether development approval should be granted for the same development under TPS 3. He submitted that, while the Tribunal is not precluded from exercising its discretion against the grant of development approval in the review, "there must be a compelling reason to depart from the precedent set by the consent order". He submitted that this approach would enable "members of the public to be confident of consistency in the planning process without prejudicing any need to rectify an obvious error which may have occurred in the planning process". He submitted that, while the City's witnesses would have exercised their judgment differently to the Commission, there is no demonstrated error or other compelling reason for departing from the "precedent" set by the consent order. He also drew the Tribunal's attention to the terms of cl 34 of the PRS which requires the Commission (and required the Tribunal in determining to grant development approval by consent) to have regard, among other things, to the aims and provisions of TPS 3.

Mr Wittkuhn submitted that the approval of the development application under the PRS involved different considerations. In particular, it involved "more regional considerations" and an acceptance by BGC of a consent limited to a duration of only five years. In contrast, BGC did not accept a time limited consent in this review.
Clause 18 of the PRS provides that a person must not commence or carry out development on reserved land or development of a kind or class specified in a resolution made by the Commission under cl 21 unless that person has first applied for and obtained planning approval of the Commission. Pursuant to cl 21, the Commission resolved and had gazetted on 28 March 2003 that all development on land abutting a regional open space reservation under the PRS is required to have the planning approval of the Commission. Clause 34 requires the Commission (and the Tribunal on review) to have regard to a similar set of considerations in determining a development application as set out in cl 7.5.l of TPS 3.
The Tribunal finds that the grant of approval for a development under a region planning scheme is a relevant consideration in relation to whether to grant approval for the development under a local planning scheme. It is plainly in the public interest that planning laws are applied consistently in relation to the same matter. Furthermore, as the Tribunal recognised in The Owners of Strata Plan 18449 and City of Joondalup [2005] WASAT 304 at [31]:
"For reasons of comity and consistency, a member of SAT should also generally follow a decision of another member of the Tribunal (or a member of a former Tribunal which SAT has replaced) that is in point, unless satisfied that the earlier decision was clearly in error: Re Scott and Commissioner for Superannuation (1986) 9 ALD 491 at 499."
However, as Mr Wittkuhn submitted and as Mr Hotchkin conceded, the principal focus of the Commission's assessment was regional, rather than local planning. Although the report to the Peel Region Planning Committee canvassed environmental planning issues, including dust, the focus of the Commission's assessment was different to the focus of the present review. The Commission's focus is apparent from the following extract from the report summary (which also reflects the report's conclusion):
"While there are issues relating to the zoning of the land and there were 156 submissions received during the public comment period for the proposal, it is considered that there is merit in allowing the proposed development subject to a five year approval period, particularly in recognition of the following:
i)The proponents did investigate other potential sites, including sites within the proposed Nambwelup Industrial Area, but were unable to secure a site for various reasons;
ii)The zoning and Outline Development Plan for the proposed Nambwelup Industrial Area should be approved within three years and it is expected that arrangements would be in place to facilitate the development of the industrial area; and
iii)Given the strong residential development activity within the City of Mandurah it is considered there is a need to provide an additional concrete batching plant to minimise housing construction costs."
Plainly, although the Commission (and the Tribunal on review) was required to have regard to the aims and provisions of TPS 3, the primary focus of the assessment was on regional, rather than local planning issues.
Furthermore, although the Tribunal was required to exercise planning discretion under the PRS in determining whether to make the consent orders sought by BGC and the Commission, unlike the present review, there was no contradictor to the position presented.
Finally, it is apparent from the extract from the report set out at [88] above that the limitation to five years was a material consideration in the Commission's assessment. Mr Hotchkin indicated that his client would not accept a similar limitation on a consent under TPS 3.
The Tribunal considers that some weight, but in consequence of the differences referred to in the preceding three paragraphs, not substantial weight, should be given to the approval under the PRS in this review.

Adequacy of plans

As noted earlier in these reasons, the plans of the proposed development lodged with the City and tendered at the outset of the hearing did not show screens above the proposed material bins or a conveyor belt structure to the loading cell, although Mr Hobbs gave evidence that screens were proposed and a conveyor is a necessary element of the proposal. As also noted, the amended plans submitted after the hearing to reflect the reorientation of the loading cell, while accompanied by a "typical materials bin detail" and showing the conveyor, did not show the screening of the material bins or the proposed covering of the conveyor. It is unclear which of the material bins is proposed to be covered. Certainly, the "typical" detail could not be easily applied to the sand bin which is considerably larger and has a different shape to the other material bins.
The evidence suggests that screening in a concrete batching plant can affect dust generation and control. The plans of the proposed development as lodged with the City and as provided to the Tribunal are inadequate, even in the amended form, as they fail to clearly depict important elements of the proposal.

Conclusion

The Tribunal considers that a concrete batching plant is a use which is not consistent with the objectives and purposes of the "Urban Development" zone under TPS 3 for two reasons.
First, guidance can be obtained as to the objectives and purposes of the zone from the land uses which are permitted and not permitted. Use of land as "light industry" is absolutely prohibited. The proposed development is characterised by BGC as, in Mr Rowe's words, "essentially a light industry". Use of land for that purpose is inconsistent with the objectives and purposes of the zone. Furthermore, the Tribunal is not satisfied, on the evidence, that the processes proposed to be carried on within the development will not adversely affect the amenity of the locality by reason of dust, with the consequence that the development may have a greater impact than that contemplated by the definition of "light industry" in the Scheme. If it is not consistent with the objectives and purposes of the zone to accommodate "essentially a light industry", it is manifestly not consistent with the objectives and purposes of the zone to accommodate an industrial use which does not satisfy the definition of "light industry".
Second, it is apparent from cl 4.9.1 and cl 4.9.2 that, in circumstances where the City has not approved an outline development plan, the objectives and purposes of the zone include limiting the potential approval of uses to those specified in the zoning table. Significantly, cl 4.9.1, which specifies the purpose and intent of the zone, states that where no outline development plan exists "the following Uses … shall apply" and the following clause states that "the permissibility of uses … specified in [the zoning table] shall apply".
It follows that the development application must be refused under cl 3.2.3 of the Scheme. However, as a great deal of evidence and submission was directed to the merits of the application, the Tribunal also considered whether, if it had determined that the proposed use may be consistent with the objectives and purposes of the zone, it would have granted approval in the exercise of planning discretion. The Tribunal considers that the development application would warrant refusal in the exercise of discretion in any event.
In particular, contrary to the contemplation in the EPA Guidance, BGC did not present a scientific study based on site and industry‑specific information to demonstrate that the proposed separation distance to rural residential properties in the Parklands area will not result in unacceptable impacts. Moreover, BGC did not present any objective, scientific assessment of the likely level of dust generation from the proposed development and its impacts. Its failure to do so was a significant deficiency in its case.
If the development application was capable of the approval in the exercise of discretion, the Tribunal is not satisfied, on the evidence presented to it, that the dust impact of the development in the locality is acceptable.
Although some weight should be given to the approval of the development application under the PRS, substantial weight should not be given to it, because, unlike the planning assessment required to be taken in this review, the planning assessment which led to approval under the PRS was principally concerned with regional, rather than local planning considerations and the approval was granted by the Tribunal by consent without a contradictor and for a limited period. In the particular circumstances of this case, the Tribunal declines to follow its decision to grant development approval by consent under the PRS.
It follows that the City's decision to refuse development approval should be affirmed.

Orders

The Tribunal makes the following orders:
1.The application for review of the decision of the respondent to refuse development approval for a concrete batching plant at Lot 9020 Camden Way, Meadow Springs under City of Mandurah Town Planning Scheme No 3 is dismissed.
2.Development approval for a concrete batching plant at Lot 9020 Camden Way, Meadow Springs is refused under City of Mandurah Town Planning Scheme No 3.

I certify that this and the preceding [103] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR D R PARRY, SENIOR MEMBER