MT LAWLEY PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION
[2007] WASAT 59
•2 MARCH 2007
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: MT LAWLEY PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2007] WASAT 59
MEMBER: MR D R PARRY (SENIOR MEMBER)
MS M CONNOR (MEMBER)
MR B HUNT (SENIOR SESSIONAL MEMBER)
HEARD: 13 AND 14 FEBRUARY 2007
DELIVERED : 2 MARCH 2007
FILE NO/S: DR 96 of 2006
BETWEEN: MT LAWLEY PTY LTD
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Town planning - Development application - Sand extraction and earthworks - Extraction of approximately 101 000 cubic metres of sand - Primary Regional Roads reservation - Extracted sand to be used to construct approved subdivision on adjoining "Urban" zoned land - Earthworks would form part of base of regional road in accordance with Main Roads WA's preliminary design - Proposed development would necessitate importation by Main Roads WA of approximately 50 000 cubic metres of fill at a net cost of approximately $600 000 (2007) to construct regional road - Main Roads WA could import fill by using regional road reserve rather than local road system - Alternative source of fill for approved subdivision would involve additional 11 222 truck trips though local road system - Whether and to what extent proposed development would affect integrity and purpose of regional road reservation - Whether and to what extent proposed development would prejudice the development of the regional road - Whether proposed development acceptable in relation to clearing of natural vegetation - Sustainable use and development of land - Whether need for proposed development is a relevant threshold planning consideration
Legislation:
City of Swan Town Planning Scheme No 9
Planning and Development Act 2005(WA), s 3(1)(a), s 3(1)(b), s 3(1)(c), s 25, s 241
Metropolitan Region Scheme, cl 30
Town Planning and Development Act 1928 (WA), s 5AA
Western Australian Planning Commission Act 1985 (WA)
Result:
Application for review allowed and conditional development approval granted
Category: B
Representation:
Counsel:
Applicant: Mr GH Murphy SC
Respondent: Ms CA Ide
Solicitors:
Applicant: Ilberys Lawyers
Respondent: State Solicitor's Office
Case(s) referred to in decision(s):
Aspen Pty Ltd v State Planning Commission (Unreported, WATPAT; No 13 of 1988)
BP Australia Pty Ltd v City of Perth (1994) 10 SR (WA) 110
Goldin & Anor v Minister for Transport (2002) 121 LGERA 101
Marshall v Western Australian Planning Commission (1995) 15 SR (WA) 170
Mt Lawley Pty Ltd v Western Australian Planning Commission (2005) 38 SR (WA) 255
Nicholls and Western Australian Planning Commission [2005] WASAT 40
Ridgecity Holdings Pty Ltd and City of Albany [2006] WASAT 187
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Mount Lawley Pty Ltd sought review of the refusal of a development application for sand extraction and earthworks on land which is the subject of a regional road reservation in order to facilitate the construction of an approved residential subdivision on adjoining land. The subdivision requires 272 000 cubic metres of fill of which 101 000 cubic metres could be obtained from the reserved land. The development application proposed excavation to the box gutter level of the regional road and earthworks to form the base of the carriageway in accordance with a preliminary design. Approval of the development application would necessitate the importation by Main Roads WA of 50 000 cubic metres of fill to construct the road.
The principal issues involved:
•whether and if so to what extent the proposed development would affect the integrity and purpose of the reservation, including whether and if so to what extent it would prejudice the development of the road; and
•whether the clearing of a 200 metre by 20 metre area was acceptable.
The Tribunal determined that the proposed development is consistent with the integrity and purpose of the road reservation and would not prevent the use, acquisition or development of the reserved land for its intended purpose. Although the cost of importing fill for the construction of the road would prejudice the development of the reserve to an extent, the degree of prejudice is not significant and does not warrant refusal in the exercise of planning discretion.
The proposed development involves orderly and proper planning, and in particular, the sustainable use and development of land. It involves the efficient utilisation of fill material and avoids social, economic and environmental detriments which would flow from 11 222 heavy truck movements passing through local streets. By avoiding these movements, the development also preserves the amenities of the locality. Although fill would have to be imported to ultimately construct the road, the volume that would need to be imported is half the volume to be obtained by the proposal, and the road reservation would be utilised avoiding local roads.
The Tribunal also determined that the land clearing proposed is acceptable, because the approval can be conditioned to require suitable revegetation and the vegetation associations will be sufficiently protected within the adjacent Bush Forever site.
The application for review was allowed and development approval was granted subject to conditions.
Introduction
Mount Lawley Pty Ltd (applicant) lodged a development application with the City of Swan (City) on 20 June 2005 for approval to carry out sand extraction and earthworks within a portion of Lot 47 Lexia Avenue, Ellenbook (referred to as Lot 47 Maralla Road, Ellenbrook in the Tribunal's earlier decision in Mt Lawley Pty Ltd v Western Australian Planning Commission (2005) 38 SR (WA) 255). The application involves the extraction of sand from a portion of Lot 47 which is reserved under the Metropolitan Region Scheme (MRS) as "Primary Regional Roads" for the proposed Perth Darwin National Highway (PDNH) and earthworks within a portion of the reservation (site). The applicant intends to use the extracted fill material to achieve the approved site levels for a residential subdivision on adjoining MRS "Urban" zoned land which is also located within Lot 47.
At its meeting of 30 November 2005, the City resolved to support the proposed development and, in accordance with the (then applicable) Western Australian Planning Commission Act 1985 Notice of Delegation, forwarded the application to the Western Australian Planning Commission (respondent) for determination.
The respondent refused the application on 1 March 2006 for the following reasons:
"1.The proposed development is contrary to Commission Policy DC 1.2 Development Control General Principles, a provision of Statement of Planning Policy No 1, in that the proposed development is on land reserved for 'Primary Regional Roads' under the Metropolitan Region Scheme and is contrary to the purpose and intent of the reserve and would prejudice the future implementation of the Perth to Darwin National Highway.
2.The proposed development has not addressed the environmental issues and constraints relating to the site.
3.The applicant has failed to satisfactorily demonstrate that it is necessary for the proposed development to take place to facilitate the subdivision of the adjoining urban land.
4.Approval to the proposed development would create an undesirable precedent for similar development within land reserved for 'Primary Regional Roads' under the Metropolitan Region Scheme."
On 24 March 2006, the applicant made application to the State Administrative Tribunal to have the decision reviewed.
Site within the context of Lot 47
The site forms part of the land described as portion of Swan Location 1, Lot 47 on Plan 3220 comprised in Certificate of Title Volume 1493 Folio 272 (Lot 47). Lot 47 has a total area of 158.6368 hectares. The applicant is the registered proprietor of that land.
The portion of Lot 47 the subject of this application is approximately 2.54 hectares in area and lies within the area designated as "Primary Regional Roads" reservation. The total area of the portion of Lot 47 reserved for "Primary Regional Roads" is 7.8123 hectares.
The topography of Lot 47 is undulating and remnant vegetation currently covers most of that land. There are Conservation Category Wetland areas located within the northern portion of Lot 47. However, no wetlands are located within that portion of Lot 47 reserved for "Primary Regional Roads". The closest wetland to the proposed area of sand extraction is located approximately 194 metres to the north.
Proposed development
The proposed development involves the extraction of 101 000 cubic metres of sand from two separate areas within the PDNH reserve, with a total extraction footprint of 2.54 hectares (see Attachment A). The applicant intends to excavate down to the box gutter level shown on Main Roads WA (MRWA)'s preliminary design for the regional road and to remove fill from the proposed verge area between the carriageway and the subdivision boundary, leaving a 2.5 metre high earthen noise bund (see typical section AA of Plan 17606CE1 Rev C Attachment A). Mr Gary Norwell, MRWA's Executive Director, Technology and Environment, gave evidence that because of the undulating nature of the country, MRWA's preliminary design for the road is pretty realistic and his expectation is that it will not change.
The cut areas will have minimum contour heights, after extraction, of 60 metres Australian Height Datum (AHD) (southwestern corner of the road reservation) and 52 metres AHD (larger cut area). The maximum groundwater levels within the cut areas are estimated to be between 45 metres AHD and 46.5 metres AHD.
The proposed earthworks will alleviate the need for a retaining wall along the boundary between the road reserve and the lots within the approved subdivision. According to Mr Norwell, based on the information contained in Wood & Grieve drawing 17606CE1 Revision D, a retaining wall approximately 250 metres in length and up to 9.5 metres in height would be required on the road reserve boundary if the development does not take place.
The application also includes a batter into the road reservation so that fill from the residential subdivision on the "Urban" portion of Lot 47 does not have to be retained by walls (see typical section BB and typical section CC on Attachment A).
Relevant background
On 2 November 2005, the respondent granted conditional subdivision approval of the "Urban" portion of Lot 47 into approximately 123 residential lots and 7 part lots. The subdivision plan submitted for approval detailed the finished levels within the "Urban" portion Lot 47 and also showed the earthworks in the area reserved for "Primary Regional Roads" in the MRS which are now the subject of this review.
In determining the application, the respondent imposed 29 conditions on the approval and included 10 advice notes to the applicant. Condition 8 of that approval requires the land to be graded and stabilised and a corresponding advice note advises that " … the City of Swan advises that lots less than 1000 square metres must be graded level and retained within the lot boundaries … ". Condition 18 specifies that "[n]o earthworks shall be undertaken within the PerthDarwin Highway Metropolitan Region Scheme 'Primary Regional Roads' reservation unless approved through an Application to Commence Development in accordance with the requirements of the Metropolitan Region Scheme". This condition triggered the subject development application.
Planning framework
The principal legislation relating to planning matters in Western Australia is the Planning and Development Act 2005 (WA) (PD Act). The stated purposes of the PD Act are to:
•consolidate into one Act the repealed planning legislation in Western Australia (s 3(1)(a));
•provide for an efficient and effective land use planning system in the State (s 3(1)(b)); and
•promote the sustainable use and development of land in the State (s 3(1)(c)).
The respondent has developed planning instruments and policies that advance the second and third purposes of the PD Act. These instruments and policies provide the planning framework for decisionmaking on land use and development in Western Australia. The relevant planning documents relating to this matter are as follows:
•Metropolitan Region Scheme – The land required for the PDNH road reserve has been reserved "Primary Regional Roads" in the MRS. Clause 30 of the MRS requires the decision-maker, in determining an application to commence development, to have regard to the purpose for which the land is zoned or reserved under the Scheme, the orderly and proper planning of the locality and the preservation of the amenities of the locality.
•State Planning Policy No 1 – State Planning Framework Policy (SPP 1) was formulated as a Statement of Planning Policy under s 5AA of the TownPlanning and Development Act 1928 (WA) and continues in force as a State Planning Policy under the PD Act s 25. Under s 241 of the PD Act, the Tribunal is required to have regard to any State planning policy which may affect the subject matter of an application for review.
•Development Control Policy 1.2 – General Principles (DC1.2).
•Development Control Policy 1.7 – General Road Planning (DC1.7).
•The City of Swan Town Planning Scheme No 9 reflects the reservation of the MRS and depicts the land as reserved for "Primary Regional Roads" on the Scheme Maps.
SPP 1 unites existing State and regional policies, strategies and guidelines within a central framework to provide a context for decisionmaking on land use, subdivision and development in Western Australia. Part A of SPP 1 establishes general principles for land use planning and development. SPP 1 states that the primary aim of planning is to provide for the sustainable use and development of land, which reflects the third purpose of the PD Act referred to earlier. Five key principles are identified to further define the primary aim and guide the way in which future planning decisions are to be made.
Clause 3 of SPP 1 sets out the key principles and describes the factors that represent good and responsible decision-making in land use planning. The pertinent sections relating to this application are as follows:
"A1.Environment
The protection of environmental assets and the wise use and management of resources are essential to encourage more ecologically sustainable land use and development. Planning should contribute to a more sustainable future by:
…
ii.assisting in the conservation and management of natural resources, … to support both environmental quality and sustainable development over the long term;
…
A2.Community
… Planning should recognise the need for and, as far as practicable, contribute towards more sustainable communities by:
…
iii.integrating land use and transport planning and promoting patterns of land use which reduce the need for transport …
A4.Infrastructure
Planning should ensure that physical and community infrastructure by both public and private agencies is coordinated and provided in a way that is efficient, equitable, accessible and timely. This means:
i.planning for land use and development in a manner that allows for the logical and efficient provision and maintenance of infrastructure, including the setting aside of land for the construction of future transport routes and essential services; [and]
ii.protecting key infrastructure, including … roads … and service corridors, from inappropriate land use and development; … "
Part B of SPP 1 lists the plans, policies and strategies that form the State Planning Framework. The principal operational policies listed in SPP 1 and referred to by the respondent are DC1.2 and DC1.7.
DC1.2 applies to areas covered by the MRS and sets out the general principles and development approval requirements for land the subject of the MRS. This Policy augments the provisions of the MRS. DC1.2 specifies a list of objectives of the respondent in exercising development controls. The relevant objectives relating to this application are:
•to control the development of land within the framework of the relevant legislation;
•to protect the integrity and purpose of the reservations made under the MRS; and
•to promote development that is sustainable and achieves appropriate community standards of health, safety and amenity.
Clause 3.1 of DC1.2 provides guidance as to relevant planning considerations in making decisions on development applications. Of relevance is:
•compatibility with relevant planning policies, strategies and development control criteria;
•integration of development into the site and its surroundings;
•transport and traffic impacts;
•relevant environmental, economic and social factors; and
•relevant factors of amenity and sustainability.
For the purpose of the Policy, "amenity" is defined as "all those factors which combine to form the character of an area and include the present and likely future amenity" and "sustainability" as "meeting the needs of current and future generations through an integration of environmental protection, social advancement and economic prosperity".
Clause 4.1.1 of DC1.2 requires the respondent (and the Tribunal on review) to have regard to the purpose for which the site is reserved. A principal objective in this regard is to ensure that the use of the reserved land, its acquisition or any development for its intended purpose is not prejudiced by the development application. Factors that may influence the decision include the scale and purpose of the proposal, its cost, the period of time it is likely to remain and the impact upon the reservation.
DC 1.7 provides for the promotion of the planning of road networks throughout the State which maximise efficiency, safety and amenity and recognise the respondent's role in planning for and protecting regional road reserves in accordance with the MRS.
Issues
The following six principal issues emerge for consideration in the review:
1.Whether and if so to what extent the proposed development would affect the integrity and purpose of the regional road reservation, including whether and if so to what extent it would prejudice the development of the regional road.
2.Whether the proposed development is acceptable in relation to the clearing of natural vegetation.
3.Whether the proposed development is appropriate having regard to other relevant planning considerations.
4.Whether the carrying out of the proposed development is necessary to facilitate the subdivision of the adjoining "Urban" zoned land.
5.Whether approval of the proposed development would involve an adverse planning precedent.
6.Whether, taking into consideration the determination of the foregoing issues, the proposed development should be approved in the exercise of planning discretion and if so subject to what conditions.
The Tribunal will consider each issue in turn.
Whether the proposed development would affect the integrity and purpose of the regional road reservation
The respondent contends that the long term planning and purpose of the "Primary Regional Roads" reservation is to facilitate the extension of the PDNH. Mr Norwell explained that the PDNH will form part of the national highway network which connects all capital cities by high standard road transport. He told the Tribunal that the route was developed during an extensive land use study of the northeast corridor in the early 1990s and that the land requirements to accommodate this section of the road were identified in the MRS in 1994. He considers it unlikely that the road route will vary from the current alignment, as this would probably necessitate the reopening of the Public Environmental Review process. He also indicated that this stage of the road is not planned to be constructed within the next ten years and the timing of its construction depends on funding and the priority of the road as compared with other projects on a Statewide basis.
The respondent argued that allowing the proposed earthworks within the reservation would have a detrimental impact on MRWA's ability to develop and undertake the necessary road construction, in that the removal of fill would necessitate either:
•the importation of 50 000 cubic metres of fill within the road reservation, thereby significantly increasing construction costs; or
•the adjustment of the design profile of the road to compensate for the loss of fill, which would most likely result in a larger road reservation and further environmental assessment by the Environmental Protection Authority (EPA).
Mr Norwell explained that it is MRWA's standard design practice to design a vertical alignment that, where possible, balances the volume of embankment with the volume of excavation from road cutting. According to Mr Norwell, the purpose of this practice is to avoid the need to excavate material outside of road reserves, thereby avoiding the extra cost of transporting fill to the construction site. Notwithstanding this practice, he estimated that the preliminary design would result in a shortfall of fill in the relevant section of the road of approximately 90 000 cubic metres, of which most would be required in Lot 47. He contended that the proposed development would result in the need for MRWA to import an additional 50 000 cubic metres of fill material, making a total of 140 000 cubic metres in the relevant section of the road and adding significantly to the cost of road construction.
Mr Norwell considers that adjusting the road profile to compensate for the removal of the fill is not a viable option, as it would either:
•require an adjustment to the road reservation to accommodate larger batters and further environmental assessment; or
•require the construction of retaining walls within the road reserve or on the road reserve boundary, which would be cost prohibitive.
Mr Jermayne Fabling, a consultant civil engineer, gave evidence on behalf of the applicant. Mr Fabling considers that the proposed development would not prevent MRWA from constructing the PDNH carriageways according to the proposed preliminary design levels. Rather, its effect would be to require MRWA to source an additional 50 000 cubic metres of fill material from elsewhere, which it would otherwise obtain from the site. He explained that rejection of the proposed development would result in the need to import substantially more fill material to achieve the approved subdivision levels on the adjoining "Urban" zoned land, both because the applicant proposes to utilise approximately double the fill from the reserved land than would MRWA and because the quantity of fill that could be excavated from the "Urban" portion of Lot 47 may also be affected.
Mr Fabling indicated that approximately 272 000 cubic metres of fill material will be required to attain the levels approved in the adjoining residential subdivision. This comprises 68 000 cubic metres from the subdivision area, 101 000 cubic metres from the PDNH reserve and 103 000 cubic metres imported from elsewhere.
The engineering experts agree that, if the proposed development is carried out, MRWA would need to import an additional 50 000 cubic metres of fill at a net cost of $600 000 (at present day costings) in order to construct the road in accordance with the preliminary design. Mr Norwell indicated that the cost is likely to rise by more than CPI, because fill is likely to become more scarce. The engineers also agree that, if the proposed development is not carried out, there would be a significant increase in the cost of developing the residential subdivision on the adjoining "Urban" land and a significant increase in the number of semitrailer movements through the residential streets of Ellenbrook in order to transport fill to Lot 47.
If the subdivision proceeds based on the approved levels, Mr Fabling estimates that the total cost of completing the earthworks would be $5 030 000 without the proposed development as opposed to $2 838 000 if the proposal were carried out. Based on the calculations provided by the experts, it is estimated that, as a result of the need to import an additional 101 000 cubic metres of fill, the residents of Ellenbrook would be subjected to an additional 11 222 semitrailer movements. The engineering experts agree that, as a result of these additional truck movements, the local roads would be subject to greater loading than they are normally designed to carry and may wear out prematurely, which would result in a cost to local government. The experts also agree that, if MRWA would be required to import an additional 50 000 cubic metres of fill, the necessary truck movements would be via the regional road reservation, rather than via the local road network.
Other possible subdivision scenarios were discussed by both engineering experts, and by Ms Sarah Louise Cosstick, who is a planning officer employed by the Department for Planning and Infrastructure called on behalf of the respondent. The Tribunal is aware that there are various design options available for subdivision of the "Urban" zoned land, with differing effects. However, the approved subdivision plan clearly indicates finished site levels.
As noted earlier, cl 30 of the MRS requires the Tribunal to have regard to the purpose for which the site is reserved, the orderly and proper planning of the locality and the preservation of the amenities of the locality. A principal objective in regard to the purpose for which the site is reserved, identified in DC1.2, is to ensure that the use of the reserved land, its acquisition or any development for its intended purpose, is not prejudiced by the development application.
The verb "prejudiced" is relevantly defined in The Macquarie Dictionary (4th ed, Macquarie, Sydney, 2005) at page 1123 as "to affect with a prejudice, favourable or unfavourable: these facts prejudiced us in his favour; to affect disadvantageously or detrimentally. phrase ".
The Tribunal considers that the proposed development is consistent with the integrity and purpose of the road reservation and does not prevent the use, acquisition or development of the reserved land for its intended purpose. The proposed development facilitates the road's construction, as the site is being cut to the preliminary design levels for the carriageway and an earthen noise bund of 2.5 metres is to be created. The respondent did not seek to argue that the proposed development would prevent the development of the PDNH.
Nevertheless, the loss of 50 000 cubic metres of fill to MRWA would be an additional cost in the construction of the road that could be considered to affect disadvantageously and, therefore, prejudice the development of the reserve for its intended purpose. However, in the context of the construction of the road, even within the development site, the prejudice could not be regarded as significant. As Mr Norwell agreed, the construction of the road within the site would cost considerably more than $600 000.
Furthermore, the extent to which the proposal would prejudice the development of the reserved land for its intended purpose must be balanced, in the exercise of discretion, with the other considerations under the MRS, particularly the orderly and proper planning of the locality and the preservation of the amenities of the locality.
In exercising planning discretion in this case, the Tribunal considers that the following three facts are of significance:
•the adjoining "Urban" zoned portion of Lot 47 is the only remaining undeveloped portion of "Urban" land within this area of Ellenbrook – it is the last piece of the jigsaw;
•the respondent has approved a subdivision plan for "Urban" zoned land that clearly identifies the finished site levels and requires 272 000 cubic metres of fill to construct the subdivision; and
•the finished site levels for the subdivision were, to some extent, set by existing Ellenbrook development to the south (Charlottes Vineyard Stage 13) and east (Charlottes Vineyard Stage 14) and by sewerage and drainage strategies for the area.
As noted earlier, one of the stated purposes of the PD Act is to promote the sustainable use and development of land in the State. This purpose is further defined in SPP 1 through the key principles and is incorporated in DC1.2 as an objective "to promote development that is sustainable and achieves appropriate community standards of health, safety and amenity". Sustainability is now a core element of orderly and proper planning.
Sustainability requires the integration of the social, economic and environmental consequences of land use and development in order to deliver a better quality of life now and for future generations. The proposed development involves orderly and proper planning, and in particular, the sustainable use and development of land. It involves the "wise use and management" (SPP 1 cl 3 A1) of 101 000 cubic metres of fill, "reduce[s] the need for transport" (SPP 1 cl 3 A2) and avoids social, economic (avoiding damage to streets within the local government's care, control and management) and environmental detriments which would flow from 11 222 additional heavy truck movements passing along local streets and close to residences. It does not compromise "the logical and efficient provision and maintenance of infrastructure, including the setting aside of land for future transport routes" and "protecting key infrastructure, including … roads from inappropriate land use and development" (SPP 1 cl 3 A4). Although the consequence of approval of the development application is that MRWA would ultimately need to import an additional 50 000 cubic metres of fill when it comes to construct the PDNH, this is half the volume of fill the applicant can extract and, as noted earlier, the respondent will be able to utilise the road reservation and avoid local roads to do so.
The proposed development also preserves the amenities of the locality. In Ridgecity Holdings Pty Ltd and City of Albany [2006] WASAT 187, the Tribunal considered the concept of locality and observed at [42] as follows:
"The concept of the locality in town planning is necessarily flexible. However, the determination of the boundaries of the locality in any given case is generally concerned with town planning impacts. The locality of a site is the topographic area which relevantly affects or is affected by a proposed development. The characterisation of the locality will depend on the impact in question and the circumstances of the case."
In this case, we consider that the locality relevantly encompasses the surrounding residential areas of Ellenbrook, as these areas would be significantly and detrimentally affected by an additional 11 222 truck movements which would be required to import fill for the construction of the subdivision if the proposed development were refused approval.
The Tribunal considers that the proposed development is consistent with the integrity and purpose of the road reservation and that although the proposed development would prejudice the development of the regional road by increasing the cost of construction, the extent of that prejudice is not sufficient, when balanced against other considerations in this case, to warrant refusal of the application.
Whether the proposed development is acceptable in relation to the clearing of natural vegetation
The respondent contended that the proposed development would result in unacceptable clearing of native vegetation that would otherwise form part of the road verge under MRWA's design. In particular, the proposed development would involve the additional clearing of an area approximately 200 metres long and approximately 20 metres wide.
On 6 November 2006, the Chairman of the EPA determined that the likely environmental impacts of the proposal were not so severe as to warrant formal assessment, but noted that a land clearing permit would be required. As part of the determination, the EPA set out specific management controls, a number of which relate to the revegetation of cleared areas.
Mr Norwell gave evidence, based on his previous involvement in constructing roads through native vegetation, that it would not be possible to rehabilitate the area to provide vegetation of the same condition as the existing native vegetation on the site.
Dr Paul van der Moezel, a botanist with 15 years' experience in environment management, gave evidence on behalf of the applicant. Dr van der Moezel classified the vegetation on Lot 47 as Banksia Woodland and considered the quality as "good to excellent condition". He said that the proposed sand extraction would not result in the loss of any Declared Rare Flora, but may have a minor impact on the Priority Flora species Hypolaena robusta. He did not consider this to be of any concern, as the vegetation associations located within the proposed extractions areas are found in the adjacent Parks and Recreation reservation (Bush Forever site 300) which is also part of Lot 47. Dr van der Moezel is satisfied that the conditions suggested by the EPA would ensure the revegetation of the cut areas to a similar condition to that of the existing native vegetation. However, he suggested that one of the EPA's proposed conditions should be strengthened.
The Tribunal prefers the evidence of Dr van der Moezel over Mr Norwell on this issue, because of Dr van der Moezel's qualifications and experience as a botanist and environmental scientist. The Tribunal is satisfied that the proposed development is acceptable in relation to the clearing of natural vegetation as the areas of extraction can be conditioned to be suitably revegetated and the vegetation associations located within these areas will be sufficiently protected within the adjacent Bush Forever.
Whether the proposed development is appropriate having regard to other relevant planning considerations
The key matters identified by the applicant in respect of this issue related to efficiency and equity. We have already referred to efficient use of resources in the context of sustainability as an element of orderly and proper planning. We do not consider that issues of equity bear on the proper determination of these proceedings.
Whether the carrying out of the proposed development is necessary to facilitate the subdivision of the adjoining "Urban" zoned land
This issue was identified in the respondent’s statement of issues, facts and contentions. Mr GH Murphy SC submitted on behalf of the applicant that it is not a relevant planning consideration. In her final submissions, Ms CA Ide, counsel for the respondent, acknowledged that it is not a relevant threshold or determinative planning consideration, but submitted that it is a response to the applicant's arguments in relation to equity.
As we said earlier, we do not consider that issues of equity bear on the proper determination of these planning proceedings. In any case, we do not consider that need or demand for a commercial development is a relevant threshold planning consideration. In BP Australia Pty Ltd v City of Perth (1994) 10 SR (WA) 110, the former Town Planning Appeal Tribunal said at 118 119:
"[T]he need for a use is not a threshold question that must be resolved. A commercial developer should not be put to the test of establishing a demand for the use by market surveys or through evidence that attempts to prove some other perceived desire for the use. When the character of the use is such that the authority or Tribunal is required to consider the public interest, need can be considered as a factor that may support the placement of the use in particular locality even though there is a loss of amenity."
We agree with this statement of principle and consider that it applies to a proposed physical development as well as to a proposed land use.
Whether approval of the proposed development would involve an adverse planning precedent
The respondent contended that the proposed development should not be approved because approval would create a considerable precedent for similar development of land reserved for "Primary Regional Roads" that could prejudice the future provision of significant road infrastructure. Mr Murphy referred the Tribunal to Marshall v Western Australian Planning Commission (1995) 15 SR (WA) 170 and submitted that precedent is not a matter which, of its own, would defeat the proposal if it otherwise had merit.
Precedent was considered by the Tribunal, in an analysis of authorities including Aspen Pty Ltd v State Planning Commission (Unreported, WATPAT; No 13 of 1988) and Marshall v Western Australian Planning Commission, in Nicholls and Western Australian Planning Commission [2005] WASAT 40 at [71] [75]. In that case, the Tribunal adopted the following criteria as to the circumstances in which precedent is a relevant consideration in a planning assessment from Goldin & Anor v Minister for Transport (2002) 121 LGERA 101 as consistent with Western Australian authority:
"(1)That the proposed development or subdivision is not in itself unobjectionable; and
(2)That there is more than a mere chance or possibility that there may be later undistinguishable applications."
For reasons discussed earlier, the proposed development is unobjectionable. Furthermore, the respondent did not present any specific evidence of other underdeveloped "Urban" zoned land adjoining a regional road reservation in common ownership which may require fill from the road reservation. Precedent is not, therefore, a relevant consideration. However, even if it were relevant, precedent would not warrant refusal in the circumstances of this case in light of the other considerations discussed earlier.
Whether, taking into consideration the determination of the foregoing issues, the proposed development should be approved in the exercise of planning discretion and, if so, subject to what conditions
For the above reasons, the Tribunal considers that approval for sand extraction and earthworks at regional reservation Lot 47 Lexia Avenue, Ellenbook, as shown on the plan entitled "PDH Earthworks Concept Lot 46 & 47 Ellenbrook Drawing No 17606C E1 Rev C" drawn by Wood & Grieve Engineers, is warranted.
As required by direction of the Tribunal, the respondent prepared "without prejudice" draft conditions of approval, as follows:
"1.The applicant is to ensure works are not visible from public areas at all times to the specification of Main Roads WA.
2.Excavation levels shall not result in ground levels that are:
(a)lower that [sic] those shown as the 'Proposed Level on R M001' on Main Roads Drawing No. 200731-0001 (Attachment A); or
(b)do not maintain a clearance of at least 13 metres and 5 metres above the ground water level for Cut Area 1 and Cut Area 2 respectively.
3.Prior to the commencement of any site works:
a)a preliminary site investigation shall be undertaken to determine whether acid sulfate soils are present on the land and, if present, their extent and severity;
b)if the site is found to contain acid sulfate soils, an acid sulfate soil management plan shall be submitted and approved by the Department of Environment and Conservation; and
c)all site works shall be carried out in accordance with the provisions of the approved management plan.
4.All works are to be in accordance with the Dust Management Plan dated 27 September 2005 prepared by Wood & Grieve Engineers and to the satisfaction of the local authority.
5.If this development is not substantially commenced within a period of two years from the date of this letter, the approval shall lapse and be of no further effect."
During the hearing, the respondent indicated that it did not press condition 1. The applicant raised concern with condition 2.
Paragraph (a) of condition 2, in effect, prevents the removal of fill from the verge area between the highway carriageway and the subdivision boundary. The purpose of the condition is to protect the existing native vegetation in that area. Given the Tribunal's findings in relation to issue 2, the imposition of this condition is not warranted.
The respondent agreed that par (b) of condition 2 would be unnecessary if a condition were imposed requiring the development to be carried out in accordance with the plan entitled "PDH Earthworks Concept Lot 46 & 47 Ellenbrook Drawing No 17606C E1 Rev C" drawn by Wood & Grieve Engineers, as this will ensure that the clearance levels above groundwater levels are met.
The Tribunal also considers that conditions relating to the revegetation of the cut areas should be imposed substantially along the lines recommended by the EPA and supplemented as recommended by Dr van der Moezel.
Orders
For the above reasons, the Tribunal makes the following orders:
1.The application for review is allowed.
2.The decision of the respondent to refuse development approval for sand extraction and earthworks at regional roads reservation Lot 47 Lexia Avenue, Ellenbook is set aside and a decision is substituted that development approval is granted subject to the following conditions:
(i)The development shall be carried out in accordance with the plan entitled "PDH Earthworks Concept Lot 46 & 47 Ellenbrook Drawing No 17606C E1 Rev C" drawn by Wood & Grieve Engineers.
(ii)Prior to commencement of any siteworks:
(a)a preliminary site investigation shall be undertaken to determine whether acid sulfate soils are present on the land and, if present, their extent and severity;
(b)if the site is found to contain acid sulfate soils, an acid sulfate soil management plan shall be submitted and approved by the Department of Environment and Conservation; and
(c)all siteworks shall be carried out in accordance with the provision of the approved management plan.
(iii)All siteworks shall be in accordance with the Dust Management Plan dated 27 September 2005 prepared by Wood & Grieve Engineers and to the satisfaction of the City of Swan.
(iv)If the development is not substantially commenced within a period of two years from the date of the Tribunal's decision, the approval shall lapse and be of no further effect.
(v)Prior to sand extraction, vegetation material and topsoil must be retained from the site of the approved development (site) and must be either stored or, where practical, directly returned to areas where sand extraction has concluded. Within one month of an area of the site no longer being required for the purposes of sand extraction, the developer must revegetate the area by:
•laying vegetative material and topsoil retained on the area;
•deliberately planting or seeding native vegetation that will result in a similar species composition, structure and density of native vegetation pre-clearing vegetation types in that area;
•ensuring only local provenance seeds and propagating material from within 10 kilometres of the area cleared are used to revegetate that area.
(vi)Within one year of undertaking revegetation of an area and thereafter annually until an environmental specialist certifies that the species composition, structure and density is similar to preclearing, the developer must:
•determine the species composition, structure and density of the area revegetated; and
•where, in the opinion of an environmental specialist, the composition, structure and density determined as above will not result in a similar species composition, structure and density to pre-clearing, the developer must undertake additional planting or seeding of native vegetation in accordance with the environmental specialist's instruction.
Attachment A
I certify that this and the preceding [70] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR D R PARRY, SENIOR MEMBER
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