NIELD and SHIRE OF SERPENTINEJARRAHDALE
[2021] WASAT 94
•9 JULY 2021
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: NIELD and SHIRE OF SERPENTINEJARRAHDALE [2021] WASAT 94
MEMBER: MS C BARTON, MEMBER
MR R POVEY, MEMBER
MR P CURRY, SENIOR SESSIONAL MEMBER
HEARD: 5, 6 AND 7 MAY 2021
DELIVERED : 9 JULY 2021
FILE NO/S: DR 42 of 2020
BETWEEN: MAXIM NIELD
Applicant
AND
SHIRE OF SERPENTINEJARRAHDALE
Respondent
Catchwords:
Town planning - Development application - Exercise of planning discretion - Transport depot - Liquid waste - Parking of controlled waste vehicles - Vehicletovehicle transfer of waste - Characterisation of land use - Consistency with objectives of rural zone - Whether proposal is a rural pursuit - Whether unacceptable risk to the environment - Whether unacceptable risk to water resources - Character of the locality - Amenity - Odour - Noise
Legislation:
Environmental Protection (Controlled Waste) Regulations 2004 (WA)
Environmental Protection Act 1986 (WA)
Environmental Protection Regulations 1987 (WA)
Evidence Act 1906 (WA)
Metropolitan Region Scheme
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 1, cl 38, Sch 2, cl 62(2), cl 67(2)
Planning and Development Act 2005 (WA), s 252(1)
Serpentine-Jarrahdale Town Planning Scheme No 2, cl 3.2.2, cl 5.10.1
State Administrative Tribunal Act 2004 (WA), s 17, s 18, s 24, s 27, s 27(1), s 29(3), s 31, s 32(1), s 32(2)(a), s 32(2)(b)
Result:
Application allowed
Category: B
Representation:
Counsel:
| Applicant | : | Mr J Algeri (Planning Advocate) |
| Respondent | : | Mr A Nair (Planning Advocate) |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | N/A |
Case(s) referred to in decision(s):
Attwell and The City of Albany [2009] WASAT 38
Bio Organics Pty Ltd and Shire of Serpentine-Jarrahdale [2016] WASAT 96
Blast-Tech Australia and Shire of Serpentine-Jarradale [2020] WASAT 157
Evangel Christian Fellowship Inc and Shire of Serpentine-Jarrahdale [2017] WASAT 159
GMF Contractors Pty Ltd and Shire of SerpentineJarrahdale [2006] WASAT 353
Greenelm Pty Ltd and City of Swan [2010] WASAT 142
Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74
Tempora Pty Ltd v Kalamunda (1994) 10 SR (WA) 296
West Australian Shalom Group Inc. and City of Swan [2018] WASAT 36
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
On 31 July 2019, Mr Maxim Nield (applicant) applied to the Shire of Serpentine-Jarrahdale (Shire) for development approval for a transport depot at Lot 1 (No 543) King Road, Oldbury (subject land). The applicant seeks approval to use the subject land for the parking of controlled waste vehicles that are required for his liquid waste removal and disposal business (proposed development).
The Shire refused the development application on 10 February 2020 for three reasons including that it was inconsistent with the objectives of the 'Rural' zone under the Serpentine-Jarrahdale Town Planning Scheme No 2 (TPS 2) (original decision).
On 9 March 2020, the applicant sought review of the Shire's decision by the Tribunal under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act). During the course of the proceeding, the applicant gave the Shire additional information relating to the proposed development in accordance with the Tribunal's orders (amended application).
The Council of the Shire (Council) considered the amended application under s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). At its meeting on 19 October 2020, the Council affirmed the original decision to refuse the amended application. The applicant seeks review by the Tribunal of the Council's refusal of the amended application.
The applicant is seeking orders from the Tribunal to set aside the Shire's decision made on 19 October 2020 and grant approval for the proposed development. For the reasons set out in this decision, we conclude that the amended application, the subject of review, should be allowed subject to conditions. The Tribunal will set aside the Shire's decision and substitute a new decision.
Amended application
The amended application seeks approval for the use of the subject land as a 'Transport Depot' under TPS 2. The proposed development involves the parking of six trucks, including four controlled waste vehicles and two skid mounted controlled waste tanks.
The vehicles and skid mounted tanks are to be parked on a bunded impervious hardstand, 470 metres in area with dimensions of 10 metres by 47 metres.[1]
[1] See Annexure B - Figure 1 Stormwater Discharge System, Bioscience report, dated 3 August 2020; Exhibit 11, page 108.
The bunded hardstand, graded at 2%, will be connected to a concrete sump and collection pit, designed to contain controlled waste in the event of a spill.[2] The sump and collection pit will also collect stormwater from the bunded hardstand area. A valve will be used to control the outflow of stormwater to sedimentation traps and soakwells (valve). The valve will be open in rainfall events and closed during truck-to-truck transfer of liquid waste.
[2] See Annexure B - Figure 2 and Figure 3 Stormwater Discharge System, Bioscience report, dated 3 August 2020; Exhibit 11, pages 108-109.
A 24 metre by 47 metre asphalt sealed vehicle manoeuvring area is to be constructed immediately adjoining, and to the west of, the bunded hardstand.
The proposed development will operate as follows:
1)no more than two controlled waste vehicle movements will leave the premises and return at the close of business each day;
2)the controlled waste vehicles will enter the site from King Road via the northern driveway;
3)the controlled waste vehicles will typically collect bulk loads of liquid waste and dispose of the waste prior to returning to the site; however the vehicles at times will return to site holding controlled waste for periods up to seven days;
4)truck-to-truck transfer of controlled waste occurs three to four times a week on site;
5)the business employs an owner/manager, one full time employee and one contract employee;
6)the hours of operation of the business is from 7.00 am to 5.00 pm from Monday to Saturday. The business is open for call out services outside of these hours. Call out services occur once or twice a month;
7)vehicles are serviced and washed down[3] on site; and
8)the main type of waste is sewerage collected from septic tanks; however other wastes include grease trap waste (vegetable oils and food waste); car wash waters; sludges, hydrocarbons and storm water waste.
The Council's reconsideration
[3] 'Wash down' refers to the cleaning of the inside of the tank (mounted on the truck) during truck-to-truck transfers: witness statement of Didier Alanoix, 25 February 2021, para 7.
On 19 October 2020, the Council considered the amended application under s 31 of the SAT Act. The Council affirmed the original decision to refuse the application as follows:
The Council, in response to the s31 Request for Reconsideration issued by the State Administrative Tribunal, REAFFIRMS the original decision to REFUSE the retrospective approval for a Transport Depot involving the commercial liquid waste truck operation at Lot 1 (No.543) King Road, Oldbury.[4]
[4] Ts 184, 7 May 2021.
The Shire refused the amended application for the following reasons:[5]
1)the proposed development is neither a rural pursuit nor associated with a rural pursuit and is inconsistent with the objectives for the 'Rural' zone in accordance with cl 5.10.1 of TPS 2;
2)the proposed development is inconsistent with the established rural character of the area and is likely to adversely impact on the rural lifestyle of surrounding residents, which is contradictory to the objectives for the Rural Policy Area under the Rural Strategy Review 2013 (Rural Strategy); and
3)insufficient information has been submitted to determine the noise, and odour impacts of the proposed development.
Issues for determination
[5] Exhibit 6, para 11.
The following issues arise for our determination:
1)whether the proposed development is consistent with the objectives and purpose of the 'Rural' zone;
2)whether the proposed development is consistent with the Rural Strategy;
3)whether the proposed development is consistent with the Shire's draft Local Planning Strategy (draft LPS) which is currently awaiting final approval from the Western Australian Planning Commission (WAPC);
4)whether the proposed development is consistent with the Shire's draft Local Planning Scheme No 3 (Draft LPS 3) which is currently awaiting final approval from the WAPC and the Minister for Planning (Minister);
5)whether the proposed development is consistent with State Planning Policy 2.5 – Rural Planning (SPP 2.5);
6)whether there is an unacceptable risk that the proposed development might adversely affect the environment or water resources; and
7)whether the proposed development is consistent with protecting the current and intended future character and amenities of the locality.
The Shire accepts that matters relating to noise and odour generated by the proposed development have been addressed by the applicant and do not arise for determination in this proceeding.[6] The preparation of a noise management plan, in respect of after hours vehicle movements, is the subject of a proposed draft condition to which the applicant raises no objection.[7]
Subject land and locality
[6] ts 184, 7 May 2021.
[7] Exhibit 6, para 11.
The subject land is zoned 'Rural' under TPS 2 and 'Rural' under the Metropolitan Region Scheme (MRS). It is formally described as Lot 1 on Diagram 60562, being the whole of land in Certificate of Title Volume 1602, Folio 288.
The subject land is approximately 4.22 hectares in area and is located on the south-east corner of the intersection of King Road and Boomerang Road in Oldbury.
The southern boundary of the subject land abuts a railway reserve and to the immediate south of the railway reserve is Jackson Road.
Resource Enhancement Wetland (UFI 7190) and Bush Forever Site 68 are located on the southern side of Jackson Road, approximately 150 metres to the south of the subject land.
The subject land contains a single storey residential dwelling, a rural building, a mechanical workshop and transportable buildings which include an office and ablutions. The rural building was granted approval in 1989 and an extension was granted in 1996 for it to operate as a mechanical workshop. The mechanical workshop was previously used by the applicant's father for an engineering business that supplied, repaired and resold earthmoving and agricultural parts and equipment.
The subject land has two vehicle access points on King Road.
The subject land has one common property boundary to Lot 2 (No 185) Boomerang Road, to the east. This property is also 4.22 hectares in area and has a single house and native vegetation. The single house is located over 150 metres from the proposed development.
Lots on Boomerang Road (on either side of King Road) are generally 4 to 10 hectares in size. Northward and southward from the subject land along King Road, the lot sizes are more varied.
The lots in the locality are also zoned 'Rural' under TPS 2 and contain a range of activities including:
•Extractive Industry (sand) at Lot 102 (No 491) King Road;
•Nursery at Lot 718 (No 510) King Road;
•Transport Depot and Plant Nursery at Lot 101 (No 132) Boomerang Road;
•Nursery at Lot 53 (No 163) Boomerang Road;
•Nursery at Lot 11 (No 553) Gossage Road;
•Earthmoving Contractors Yard at Lot 54 (No 595) King Road;
•former Nursery and Garden Centre at Lot 3 (No 215) Boomerang Road;
•Manure Works, a former Poultry Farm, at Lot 717 (No 252) Boomerang Road;
•Kalamunda Aeronautical Model Society (Club Premises) at Lot 11 (No 215) Boomerang Road;
•paintball and laser centre (Public Amusement) at Lot 50 (No 301) Boomerang Road;
•Dirt Trackers Kart Club (Club Premises) at Lot 301 (No 375) Boomerang Road.
The lots in the locality, and in other 'Rural' zoned areas of the Shire, are unsewered.
Third party consultation
The Shire advertised the proposed development for comment to adjoining neighbours within a 1000 metre radius of the subject land. The two submissions received raised the following concerns:
•the proposed development not being consistent with the objectives of the Rural zone;
•amenity impacts;
•environmental impacts; and
•increased vehicle movements.
Two submissions were received from State Government departments:
1)The Department of Primary Industries and Regional Development did not object to the proposed development.
2)The Department of Water and Environmental Regulation (DWER) provided advice in respect to the following:
•Environmental Protection Act1986 (WA) - advising the use and proposed development do not trigger any obligations relating to the Environmental Protection (Controlled Waste) Regulations 2004 (WA) and do not meet the definition of a category 61 (liquid waste facility) prescribed premises under the Environmental Protection Regulations 1987 (WA). Shire approval is likely to be the only requirement for the proposed development to be used as a 'Transport Depot';
•Peel-Harvey coastal plain catchment policy - advising that the subject land is located in the PeelHarvey catchment and the provisions of State Planning Policy 2.1 - The Peel-Harvey Coastal Plain Catchment and Environmental Protection (Peel Inlet-Harvey Estuary) Policy 1992 apply;
•stormwater management - identifying that all vehicles containing controlled waste are to be parked on sealed hardstand areas and drainage systems should be designed and constructed consistent with the Stormwater Management Manual for Western Australia (DoW, 20042007);
•best practice management - identifying five relevant Water Quality Protection Notes (WQPN):
WQPN 10 - Containment spills - emergency response plan;
WQPN 51 - Industrial wastewater management and disposal;
WQPN 52 Stormwater management at industrial sites;
WQPN 65 - Toxic and hazardous substances; and
WQPN 68 - Mechanical equipment and wash down.
•Sewerage, identifying that the subject land is located in a sewerage sensitive area and recommending that any new or upgraded staff amenities are connected to a secondary treatment system with nutrient removal.
The Tribunal's review jurisdiction
By reason of s 17 of the SAT Act, the application falls within the Tribunal's review jurisdiction. In exercising the Tribunal's review jurisdiction, the Tribunal is to deal with a matter in accordance with the SAT Act and the PD Act (referred to as the 'enabling Act' for the purposes of the Tribunal's review jurisdiction, which may modify the operation of the SAT Act in relation to the matter).[8]
[8] Section 18, SAT Act.
The Tribunal is to review the Shire's decision by way of a hearing de novo for the purposes of producing the correct and preferable decision on the basis of the information and evidence before it.[9]
[9] Section 27, SAT Act.
The Tribunal is not bound to apply the Evidence Act 1906 (WA), the rules of evidence, or any practices and procedures of courts of record[10] but is bound by the rules of natural justice unless authorised expressly or by implication to depart from those rules by the SAT Act or the enabling Act.[11]
[10] Section 32(2)(a), SAT Act.
[11] Section 32(1), SAT Act.
The Tribunal is not limited to the material before the Shire as the original decision-maker but may consider new material.[12] The Tribunal is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities.[13] Section 29(3) of the SAT Act confers specific power on the Tribunal to make any order that it considers appropriate, including an order to set aside the original decision, affirm that decision or vary that decision.
The witness evidence and conduct of the proceeding
[12] Section 27(1), SAT Act.
[13] Section 32(2)(b), SAT Act.
Each party filed and gave to the other party a statement of issues, facts and contentions. The Shire filed a bundle of documents under s 24 of the SAT Act on 4 December 2020 and the applicant filed his bundle of documents on 22 January 2021. The applicant filed a witness statement dated 22 March 2021 and gave evidence at the hearing. We found the applicant to be an honest and reliable witness who gave his evidence in a straight forward manner.
Mr Benjamin Laycock, a town planner with Altus Planning, prepared a witness statement dated 26 February 2021. Mr Laycock was retained by the applicant to conduct an independent planning assessment of the proposal that is the subject of the review. The Shire relied on the planning evidence of Mr Andrew Trosic who prepared a witness statement dated 26 February 2021. Mr Trosic is a qualified town planner and Director of Development Services at the Shire. We found Mr Laycock and Mr Trosic to be honest and reliable witnesses who were of assistance to the Tribunal in its determination. However, Mr Trosic's responses to questions asked of him by the planning advocates were generally conveyed in a manner that represented the Shire's position on the topic as opposed to an independent, objective opinion as a planner. For this reason, to the extent there were differences in opinion between Mr Laycock and Mr Trosic, we preferred the evidence of Mr Laycock.
The applicant also relied on the expert evidence of Mr Didier Alanoix, who is an environmental scientist with Bioscience Pty Ltd, and who specialises in hydrological and hydrogeological assessments for urban and industrial development. The Shire relied on the expert evidence of Mr Mark Angeloni, who prepared a witness statement dated 26 February 2021. Mr Angeloni is employed by the Shire as an environmental officer and has 15 years' experience carrying out environmental assessments for the Shire. Mr Alanoix and Mr Angeloni also prepared a joint witness statement dated 12 March 2021.
Mr Alanoix's expertise in designing infrastructure systems to manage stormwater and wastewater to prevent adverse impacts on sensitive environments was not challenged by the Shire. In light of Mr Alanoix's experience and his precise explanations of the technical aspects of such systems, we prefer his evidence to that of Mr Angeloni on the effectiveness of the proposed concrete sump and collection pit designed to manage impacts to the environment from potential spills of liquid waste.
The proceeding was heard on 5, 6 and 7 May 2021 with the parties and their advocates attending the Tribunal in person. The Tribunal members had the benefit of a site view of the subject land and the opportunity to observe current land uses in the locality.
The planning framework
The relevant planning framework, which we have considered in determining the application, is attached to this decision as Annexure A and includes references to the following:
1)Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regulations)
2)MRS
3)TPS 2
4)Draft LPS 3
5)Rural Strategy
6)draft LPS
7)SPP 2.5
8)State Planning Policy 2 - Environment and Natural Resources Policy (SPP 2.0)
9)State Planning Policy 2.1 - The Peel-Harvey Coastal Plain Catchment (SPP 2.1)
10)State Planning Policy 2.9 – Water Resources (SPP 2.9)
The Tribunal's consideration
The applicant seeks approval for the use of the subject land as a 'Transport Depot' which is an 'SA' use in the 'Rural' zone in TPS 2. Clause 3.2.2 of TPS 2 provides, in respect of an 'SA' use, that the Council may, at its discretion, permit the use after notice of the application has been given in accordance with cl 64 of the Deemed Provisions in Sch 2 to the LPS Regulations (Deemed Provisions).
The expression 'Transport Depot' is defined in Appendix 1 to the TPS 2 as:
Transport Depot - means land or buildings designed or used for one or more of the following purposes:
(a)The parking or garaging of more than one commercial vehicle used or intended for use for the carriage of goods (including livestock) or persons.
(b)The transfer of goods (including livestock) or passengers from one vehicle to another vehicle.
(c)The maintenance, repair or refuelling of vehicles referred to in (a) or (b) above.
The above uses (a) to (c) inclusive, singularly or collectively may, with Council's planning consent, include as an incidental use overnight accommodation of patrons of the facilities.
There is no dispute that the applicant proposes to use the subject land to park six vehicles, four of which are controlled waste vehicles and the remaining two are skid mounted controlled waste tanks that hold liquid waste. The proposal includes vehicle-to-vehicle transfer of controlled waste which will occur on the subject land three to four times a week. Based on these agreed facts, we find that the proposed use falls within the meaning of 'Transport Depot' under TPS 2 and, therefore, is legally capable of approval in the Rural zone.
Our finding in relation to the proper characterisation of the proposed use is consistent with the decision in Bio Organics Pty Ltd and Shire of Serpentine-Jarrahdale [2016] WASAT 96 (Bio Organics) where the Tribunal considered a proposed development under TPS 2 involving two distinct and separate aspects. The Tribunal found that the aspect of the proposed use that involved the transfer of liquid waste from one vehicle to another fell within the meaning of a 'Transport Depot' under TPS 2.[14]
[14] Bio Organics at [28].
We will next turn to consider each issue that arises for determination in this proceeding, including whether the proposed use of the subject land as a 'Transport Depot' is consistent with the objectives of the Rural zone under TPS 2 and Draft LPS 3.
Issue 1: Whether the proposed development is consistent with the objectives and purpose of the 'Rural' zone
In considering an application for development approval, we are required under cl 67(2)(a) of the Deemed Provisions to have due regard to the aims and provisions of TPS 2. Clause 5.10.1 of TPS 2 provides that the purpose and intent of the Rural zone is to allocate land to accommodate the full range of rural pursuits and associated activities conducted in the Scheme area.
The expression 'rural pursuit' is not defined in TPS 2 and, therefore, under cl 1.9 of TPS 2, its normal or common meaning applies. Mr Laycock observed that the expression 'rural pursuit/hobby farm' is defined in cl 38 of Sch 1 to the LPS Regulations (Model Scheme text) as follows:[15]
rural pursuit/hobby farm means any premises, other than premises used for agriculture - extensive or agriculture - intensive, that are used by an occupier of the premises to carry out any of the following activities if carrying out of the activity does not involve permanently employing a person who is not a member of the occupier's household -
(a)the rearing, agistment, stabling or training of animals;
(b)the keeping of bees;
(c)the sale of produce grown solely on the premises[.]
[15] Witness statement of Benjamin Laycock, 26 February 2021, para 83.
The applicant contends that the definition of 'rural pursuit/hobby farm' in the Model Scheme Text does not align with the purpose and intent of the Rural zone because the Zoning Table in TPS 2 allows for many uses in the Rural zone, including a Transport Depot, that are not a 'rural pursuit' but are nevertheless permissible in the zone.[16] These include, for example, 'Caravan or Trailer Hire', 'Consulting Rooms', 'Educational Establishment', 'Holiday Accommodation', 'Public Amusement' and various forms of 'Industry'.
[16] ts 189, 7 May 2021.
Whilst the Shire acknowledged that permissible uses in the Rural zone go a long way to establishing an associated activity, the Shire says that it would be artificial to treat the whole use as being associated with a rural pursuit where a significant component of a proposed use will not be serving a rural pursuit.[17] It is the Shire's position that the proposed development does not service rural pursuits to any significant degree and, therefore, this is a factor that weighs against approving the application.[18]
[17] ts 208, 7 May 2021.
[18] ts 212, 7 May 2021.
The purpose and intent of the Rural zone in cl 5.10.1 of TPS 2 was considered by the Tribunal in Evangel Christian Fellowship Inc and Shire of Serpentine-Jarrahdale [2017] WASAT 159 (Evangel). The Tribunal observed that the Zoning Table of TPS 2 establishes the permissibility of different categories of rural use classes and assists in identifying other use classes that may be considered as 'associated activities' that support the carrying out of 'rural pursuits' in the Rural zone.[19] On the basis of the decision in Evangel, we find that the use class 'Transport Depot,' which is a discretionary use in the Rural zone, is an 'associated activity' that supports the carrying out of rural pursuits in that zone.
[19]Evangel at [42]. See also GMF Contractors Pty Ltd and Shire of SerpentineJarrahdale [2006] WASAT 353 at [50].
It follows that the question that arises for our determination is whether the associated activity of a Transport Depot should, in the circumstances of this case, be granted approval or not having regard to the purpose and intent of the Rural zone and the other matters to which we must have due regard in cl 67(2) of the Deemed Provisions. Even if we find the proposed use to be inconsistent with the purpose and intent of the Rural zone, it is open to us to grant approval to the use under TPS 2: see BlastTech Australia and Shire of Serpentine-Jarradale [2020] WASAT 157 (Blast-Tech) at [81].
The applicant contends that the proposed use is consistent with the objectives of the Rural zone because the subject land has been used for more than 30 years as a mechanical workshop and, because it is only 4.22 hectares in area, it has limited capacity for any effective primary production or agricultural use. In support of this contention, the applicant relied on the evidence of Mr Laycock who was of the opinion that in his experience primary production activities occur on much larger landholdings.[20]
[20] Witness statement of Benjamin Laycock, 26 February 2021, para 87.
Mr Laycock also observed that a portion of the waste collected by the trucks is from within the municipal area of the Shire, including unsewered rural areas. The applicant relied on a Department of Lands and Heritage locality plan showing the location of unsewered lots.[21] Because the collection of waste is a required service in these areas, Mr Laycock considered that the proposal is associated with rural pursuits and, therefore, consistent with the objectives of the Rural zone.[22]
[21] Exhibit 9.
[22] Witness statement of Benjamin Laycock, 26 February 2021, para 86.
It is the Shire's position that the proposed Transport Depot is inconsistent with the purpose and intent of the Rural zone because the presence of controlled waste vehicles and the storage of liquid waste is not a characteristic of a rural area and is more commonly associated with industrial areas.[23] The Shire contends that rural land uses should be protected from intrusion by other uses which are more appropriately located in non-rural areas. The Shire observes that rural land has characteristics or values in addition to productive capacity which should be protected, including biodiversity, natural resources and valued landscapes.[24]
[23] ts 210, 7 May 2021.
[24] Shire's Statement of Issues Facts and Contentions (SIFC), para 50(b).
The Shire further contends that a Transport Depot has many manifestations, some of which would be consistent with the objectives of the Rural zone and some of which would not. The Shire says that this particular manifestation of a Transport Depot is not consistent with the objectives of the Rural zone because it is not associated with a rural pursuit.
In support of its contentions, the Shire relied on the evidence of Mr Trosic who says that the associated activity must genuinely support the carrying out of the rural pursuit.[25] In Mr Trosic's opinion, the proposed Transport Depot is not associated with a rural pursuit because only half of its liquid waste operations are servicing country areas.[26]
[25] ts 125, 6 May 2021.
[26] Witness statement of Andrew Trosic, 26 February 2021, para 28; ts 126, 6 May 2021.
Mr Trosic and Mr Laycock agreed[27] that a rural pursuit requires a pursuit to be in accordance with the ordinary meaning of 'rural', being a pursuit relating to, or characteristic of, the country[28]. However, in Mr Trosic's opinion, the storage of liquid waste within trucks, for up to seven days, places the proposed Transport Depot at the more industrial end of the spectrum.[29] Mr Trosic contrasted the proposed use to a workshop which he considered could reasonably be regarded as substantially servicing rural pursuits, for example, through the maintenance of farm machinery.[30]
[27] ts 119, 6 May 2021.
[28] Witness statement of Andrew Trosic, 26 February 2021, para 24. See also Attwell and The City of Albany [2009] WASAT 38 at [25].
[29] Witness statement of Andrew Trosic, 26 February 2021, para 35.
[30] Witness statement of Andrew Trosic, 26 February 2021, para 29; ts 122, 6 May 2021.
Mr Laycock acknowledged that not all Transport Depots are appropriate in the Rural zone, particularly if their scale and intensity is such that they result in adverse amenity and/or environmental impacts.[31] However, in Mr Laycock's opinion, this is not such a proposal due to the nature and limited scale of the development, and the mitigation measures proposed. Mr Laycock stated:[32]
… the primary use is the storage and maintenance of six (6) waste removal trucks, with a maximum of two (2) trucks per day in operation. Any temporary storage of waste is of a minimal nature and removed from the subject site within a week, with provisions in place to ensure that in the event of a spill, the contents can be captures and kept separate from uncontaminated stormwater or the surrounding environment generally.
[31] Witness statement of Benjamin Laycock, 26 February 2021, para 88.
[32] Witness statement of Benjamin Laycock, 26 February 2021, para 89.
We accept Mr Laycock's evidence and find that the proposed Transport Depot is consistent with the purpose and intent of the Rural zone which is to accommodate the full range of rural pursuits and associated activities conducted in the Scheme area. The Shire referred us to Greenelm Pty Ltd and City of Swan [2010] WASAT 142 (Greenelm) in which the Tribunal concluded that a proposed transport depot should be refused having regard to the objectives of the General Rural zone and because of its adverse impact on the amenity of the locality. The Tribunal in Greenelm found that the proposal was inconsistent with the objectives of the Rural zone because it was principally focussed on meeting the needs of inhabitants and businesses of a vast geographical area of the State.[33] We consider that Greenelm can be distinguished from the facts of this case because the proposed transport depot was on a much larger scale with 35 prime movers, 70 trailers and 30 dollies, and a proposed hardstand area of approximately 3.34 hectares to accommodate, amongst other structures, a 50,000 litre diesel storage tank.
[33] Greenelm at [35].
Based on the evidence of Mr Laycock, which we accept, we find that due to the limited scale of the proposed venture, and the mitigation measures to be adopted by the applicant, the proposal will not interfere with the characteristics, values or pursuits commonly associated with rural or country areas.
Accordingly, in answer to issue 1, we find that the proposed development is consistent with the objectives and purpose of the Rural zone.
Issue 2: Whether the proposed development is consistent with the Shire's Rural Strategy
The parties agree and, we find, that the Rural Strategy is relevant to our determination under cl 67(2)(zb) of the Deemed Provisions. The Rural Strategy sets out the strategic planning framework for rural land within the Shire. For the purposes of the Rural Strategy, the subject land is located within the 'Rural Policy Area'.
Under cl 4.5 of the Rural Strategy, the purpose of the Rural Policy Area is to 'maintain the integrity of the Shire's rural and agricultural character'. The objectives of the Rural Policy Area are also set out in cl 4.5 of the Rural Strategy.
It is the applicant's position that the character of the area is informed by the subject land in its current state which is 4.22 hectares in area and defined by an approved mechanical workshop. Because of the current use of the subject land, the applicant rejects the Shire's contention that the proposal would compromise the rural character of the Rural Policy Area. The applicant also says that any traditional agricultural use would be limited by the size of the lot.
In support of his position, the applicant relied on the evidence of Mr Laycock who is of the opinion that the proposal is consistent with the Rural Strategy. Mr Laycock formed this opinion because the subject land has not been used for traditional agricultural activities for the past 30 years and there is minimal prospect of agricultural activities being viable in the future due to lot size.[34]
[34] Witness statement of Benjamin Laycock, 26 February 2021, para 94.
Mr Laycock does not consider that the proposal will compromise the existing rural lifestyle and character of the area in a visual sense because any additional structures, including the parking area, will be located behind the existing workshop.[35] He calculated that there would be approximately four vehicular movements per day which would not be at odds with what he would expect in a rural locality.[36]
[35] Witness statement of Benjamin Laycock, 26 February 2021, para 93.
[36] Witness statement of Benjamin Laycock, 26 February 2021, para 93.
The Shire contends that the proposed development does not meet the purpose and objectives of the Rural Policy Area because it is not a rural use of land but rather a use of an industrial character. The Shire further contends that the proposed use and nature of the goods associated with that use are inconsistent with the existing rural character of the Rural Policy Area.
The Shire relied on the evidence of Mr Trosic who stated that the storage and transfer of liquid waste poses a high degree of risk.[37] Mr Trosic said that his experience with liquid waste developments are towards the industrial end of the spectrum and located in industrial areas.[38] While Mr Trosic acknowledged that traditional agriculture activities may not necessarily be able to be performed on a 4 hectare lot, he observed that the objectives in cl 4.5 of the Rural Strategy promote alternative agricultural uses, such as closed loop hydroponicbased systems.[39]
[37] ts 136, 6 May 2021.
[38] Witness statement of Andrew Trosic, 26 February 2021, para 35; ts 139, 6 May 2021.
[39] ts 136-137, 6 May 2021.
We do not accept the Shire's contention that the Transport Depot use and the nature of the goods associated with that use are inconsistent with the existing rural character. This is because we find, for the reasons given below, that the current use of the subject land, defined by the approved workshop, helps inform the character of the Rural Policy Area in which the subject land is located.
There was no dispute, and we find, that the subject land is currently used for a workshop and has been for the past 30 years. We further find, based on the evidence before us, that there are a range of activities, including some of a commercial/industrial nature, located in the Rural Policy Area.
We accept the evidence of Mr Laycock, and we find, that the current use of the subject land and its lot size contributes to the rural and agricultural character of the Rural Policy Area.[40] We also accept his evidence, and we find, that the addition of a Transport Depot on the subject land will not interfere with the integrity of that character.[41]
[40] Witness statement of Benjamin Laycock, 26 February 2021, para 92.
[41] Witness statement of Benjamin Laycock, 26 February 2021, para 93.
Because the proposed Transport Depot will not compromise the integrity of the rural and agricultural character of the Rural Policy Area, we find that the proposed use is consistent with the Shire's Rural Strategy.
Issue 3: Whether the proposed development is consistent with the Shire's draft Local Planning Strategy
The draft LPS has been advertised under the Regulations and sent to the WAPC for approval.[42] Consequently, under cl 67(2)(b) of the Deemed Provisions, we find that draft LPS is a matter to which we must have due regard in the determination of the application.
[42] Shire's SIFC, para 55.
Clause 3.3 of draft LPS aims to protect agricultural land and the rural landscape.
The Shire contends that the proposed development is inconsistent with cl 3.3 of draft LPS because it does not promote rural industries or food production, and it would allow the encroachment of inappropriate activities more properly accommodated in industrial areas that are not compatible with rural amenity.[43]
[43] ts 213, 7 May 2021.
In support of its contention, the Shire relied on the evidence of Mr Trosic who stated:[44]
Approving uses with a substantial industrial character on nonindustrialzoned land, regardless of whether amenity is 'protected' by way of moderating noise or odour or dust, erodes the integrity of the zoning system by allowing uses on land not strategically selected for that purpose and lacking characteristics of robustness and tolerance for contingencies of polluting activities.
[44] Witness statement of Andrew Trosic, 26 February 2021, para 35.
In contrast, the applicant contends that the intent of the Rural zone is to accommodate both rural pursuits and other activities. Because a Transport Depot is a discretionary land use in the Rural zone, the applicant says that it cannot be considered inappropriate. The applicant observes that not every property in the Rural zone can or must accommodate food production or promote rural industries. The applicant relied on the evidence of Mr Laycock[45] and the following rationale in cl 3.3 of draft LPS in support of his position:
… Emerging non-traditional rural activities should be encouraged in areas where they do not adversely impact on environmental or landscape quality and are appropriately managed to minimise offsite impacts. While it is recognised that the development of light industrial and intensive rural industries may impact visual amenity, such developments should utilise sustainable and innovative technologies to ensure the natural environment is not adversely affected and measures should be undertaken to enhance amenity[.]
[45] Witness statement of Benjamin Laycock, 26 February 2021, para 101.
In Mr Laycock's opinion, not all properties in the Rural zone are suitable for food production. He referred us to the objectives in cl 3.3.1 of draft LPS which include the aim of protecting large rural lots for the purposes of productive use. Mr Laycock did not consider the subject land to be 'large' in a rural context and, in his opinion, its size limits the viability of many agricultural uses in any event.[46] Furthermore, Mr Laycock notes that the subject land has not been used for a rural industry or food production in more than 30 years and, therefore, the proposed use will not remove productive land from the Rural zone.[47]
[46] Witness statement of Benjamin Laycock, 26 February 2021, para 99.
[47] Witness statement of Benjamin Laycock, 26 February 2021, para 100.
The objectives in cl 3.3.3 of draft LPS aim to preserve and enhance the existing rural character and amenity within rural areas. In Mr Laycock's opinion, the existing structures on the subject land, which have been in place for over 30 years, contribute to the rural character and amenity of the Rural zone. He does not consider that the proposal will adversely impact the character and amenity of the area because the activity will occur within or behind the existing workshop and is small in scale.
We find that draft LPS envisages non-rural activities in the Rural zone provided they do not have an adverse impact on the character and amenity of the area and preserve productive use. We accept the evidence of Mr Laycock and find that the proposed use of the subject land will not remove rural land from production or interfere with the character and amenity of the area by the encroachment of inappropriate activities.
Accordingly, we find that the proposed use of the land is consistent with the provisions of the draft LPS that relate to the protection of agricultural land and the rural landscape.
Issue 4: Whether the proposed development is consistent with Draft LPS 3
We find that Draft LPS 3 has been advertised by the Shire and is awaiting the approval of the Minister.[48] Therefore, we find that it is a matter to which we must have due regard in the determination of the application under cl 67(2)(b) of the Deemed Provisions.
Characterisation of proposed use
[48] Shire's SIFC, para 57.
A 'transport depot' is a discretionary use under Draft LPS 3. The expression 'transport depot' is defined in cl 55 of Draft LPS 3 to mean:
… premises used primarily for the parking or garaging of three (3) or more commercial vehicles including -
(a)any ancillary maintenance or refuelling of those vehicles; and
(b)any ancillary storage of goods brought to the premises by those vehicles; and
(c)the transfer or goods or persons from one vehicle to another.
The Shire contends that the proposal is not a 'transport depot' but also comprises a 'waste storage facility,' which is a prohibited use in the Rural zone under Draft LPS 3, or, alternatively, a use not listed. The expression 'waste storage facility' is defined in cl 55 of Draft LPS 3 to mean 'premises used to collect, consolidate, temporarily store or sort waste before transfer to a waste disposal facility or a resource recovery facility on a commercial scale'. The Shire does not consider that the temporary storage of waste is incidental to the proposed 'Transport Depot' use.
The applicant rejects the Shire's contentions and says that the proposed scale of the temporary storage of waste is incidental and ancillary to the parking, garaging and maintenance of trucks on the subject land. The applicant observes that there are no specific waste storage facilities that exist or are proposed on the subject land. The applicant contends that the Shire has considered the application as a 'Transport Depot' under TPS 2 and has refused it as such. Therefore, the applicant does not consider that the characterisation of the proposed use is an issue for our determination.
In Mr Laycock's opinion, the proposal is properly characterised as a 'transport depot' under Draft LPS 3 on the basis that it is a proposal for the parking of two or more commercial vehicles. Mr Laycock stated that the proposal meets the definition of a 'transport depot' because it includes the ancillary maintenance of commercial vehicles, the ancillary storage of goods (in this case waste) brought to the subject land by those vehicles, and the transfer of waste from one vehicle to another. It is Mr Laycock's opinion that the proposed temporary storage of waste is not the principal use of the subject land. He says that the parking, garaging and maintenance of commercial vehicles is the principal use.[49] Mr Laycock explained that trucks will be on site without waste stored in them, but waste cannot be stored without being in a truck. For these reasons, he considers that the proposed use falls within the meaning of a 'transport depot' because that definition allows for ancillary storage.[50]
[49] Witness statement of Benjamin Laycock, 26 February 2021, para 108.
[50] Witness statement of Benjamin Laycock, 26 February 2021, para 109.
Mr Trosic is of the opinion that the proposal or elements of it fall within the definition of a 'waste storage facility' which is a prohibited use in the Rural zone under Draft LPS 3.[51] He observed that the definition of 'waste storage facility' refers to temporarily storing or sorting waste before transfer to a waste disposal facility or resource recovery facility on a commercial scale.[52]
[51] ts 143, 6 May 2021.
[52] ts 143, 6 May 2021.
Based on the evidence before us, we find that the predominant use of the subject land is the parking of controlled waste vehicles. We further find that the temporary storage of waste in the controlled waste vehicles and skid mounted tanks is merely an incidental, ancillary or subordinate activity to the predominant use.[53] It is not a separate and distinct land use because the storage of liquid waste could not occur on the subject land without the parking of controlled waste vehicles.
[53] The expression 'predominant use' is defined in Draft LPS 3 to mean 'the primary use of premises to which all other uses carried out on the site are incidental'. See also West Australian Shalom Group Inc. and City of Swan [2018] WASAT 36.
Accordingly, we find that the proposed use of the subject land is properly characterised as 'transport depot and not 'waste storage facility' under Draft LPS 3.
Consistency of proposed use with Draft LPS3 objectives
The applicant says that the proposed use is consistent with the Draft LPS 3 Rural zone objectives and relies on the evidence of Mr Laycock.
Mr Laycock considers the proposed use is consistent with the objectives of the Rural zone because the nature and scale of the development would not prevent or inhibit surrounding properties being developed in accordance with those objectives.[54] He is also aware of other transport depots located within the Shire's Rural zones. Mr Laycock referred us to the final objective of the Rural zone under cl 16 of Draft LPS 3:[55]
To provide for a limited range of non-rural land uses, where they have demonstrated benefit and are compatible with surrounding rural uses.
[54] Witness statement of Benjamin Laycock, 26 February 2021, para 112.
[55] Draft LPS 3, Schedule of modifications, Exhibit 2.
Mr Laycock observed that the proposal will have a direct benefit to the local community because a portion of the applicant's customers are located within adjoining localities of the Shire, many of which are unsewered.[56] The applicant stated that approximately 70% of his business was dealing with sewage,[57] including rural and metropolitan septic systems, treatment apparatus, sewage spills and overflows, and portable toilets.[58] The applicant also stated that a number of his regular clients are located within the Shire, including Karnet Prison and Keysbrook mine.[59]
[56] Witness statement of Benjamin Laycock, 26 February 2021, para 112.
[57] ts 55, 5 May 2021
[58]. Witness statement of Maxim Nield, 22 March 2021, para 7(i).
[59] Witness statement of Maxim Nield, 22 March 2021, para 7(i).
The Shire contends that the proposed use is not consistent with the objectives of the Rural zone in cl 16 of Draft LPS 3 and would allow the encroachment of inappropriate activities more properly accommodated in industrial areas. The Shire further contends that the question of benefit to the local community should be considered on a case-by-case basis following a qualitative assessment as to how much benefit, what kind and to whom.[60]
[60] Ts 216, 7 May 2016.
Mr Trosic considered that there needed to be greater certainty about the benefits that would serve the local community and that he was confused, based on the evidence of the applicant, about the degree of that relationship.[61] Mr Trosic noted that the Rural zone objective referred to by Mr Laycock above was modified by the Council in considering Draft LPS 3 for recommendations following advertising.[62] In his opinion, the words 'demonstrated a direct benefit' apply to 'surrounding rural uses' which should not be interpreted in a strict sense.
[61] Ts 122, 6 May 2021.
[62] Witness statement of Andrew Trosic, 26 February 2021, para 42; ts 115, 6 May 2021.
Mr Trosic also says that the extensive objectives of the Rural zone under Draft LPS 3 compared with TPS 2 underscore the primacy of rural character and traditional rural uses. He considers that the order of preference is clear and that 'other rural pursuits and rural industries' are secondary uses in circumstances where they demonstrate compatibility with the primary use.[63]
[63] Witness statement of Andrew Trosic, 26 February 2021, para 41.
The expression 'local community' is not defined in Draft LPS 3. The term 'community' is relevantly defined in the Macquarie Dictionary Online as follows:
1. all the people of a specific locality or country: the new transport service is for the benefit of the whole community.
2.the community, the public.
3. a particular locality, considered together with its inhabitants: a small rural community.
…
In Greenelm, the Tribunal considered the meaning of 'the rural community' and found that it means 'the inhabitants and businesses located in the rural parts of the local government area and contiguous local government areas'.[64] Read in the context of Draft LPS 3, we consider expression 'the local community' has a similar meaning and includes inhabitants and businesses located in the Rural zone of the Scheme area and contiguous scheme or local government areas.
[64] Greenelm at [34].
We accept the evidence of the applicant and Mr Laycock and find that members of the local community who live in unsewered areas of the Shire would benefit from the proposal. We further accept that the applicant's client base is likely to change over time,[65] and, therefore, it is difficult for us to determine the degree of benefit that would be derived by the local community. There is also no policy guidance that establishes the degree of community benefit that would be required to satisfy us of this fact.
[65] ts 161-162, 6 May 2021.
For the reasons given in [65], we find that the proposed Transport Depot would not be incompatible with surrounding rural land uses or the local rural character. Due to the limited scale of the proposal and the direct benefit to members of the local community, we find that the development is consistent with the objectives of the Rural zone under Draft LPS 3. In making this finding, however, we consider that limited weight should be given to the Shire's proposed modification to the final objective of the Rural zone. This is because we do not know if the change to the final objective will be accepted by the Minister and, therefore, applying the Tribunal's reasoning in Blast-tech,[66] we cannot make any determinative findings about the proposed Transport Depot as against that modified objective.
Issue 5: Whether the proposed development is consistent with SPP 2.5
[66] Blast-Tech at [83].
SPP 2.5 applies to land zoned for rural purposes under a region or local planning scheme and to development proposals on rural zoned land. We find that SPP 2.5 is relevant to our determination under cl 67(2)(c) of the Deemed Provisions.
The Shire contends that the proposed use is not consistent with the objectives in cl 4 of SPP 2.5 because it would not support existing, expanded and future primary production through the protection of rural land or avoid and minimise land use conflicts. It is the Shire's position that the proposed development would introduce a commercial use unrelated to rural pursuits or associated activities of a type not contemplated by SPP 2.5.
In contrast, the applicant says that the commercial use on the subject land occurred around 30 years' ago when the workshop was granted approval and that primary production was compromised when the approval was given to subdivide or create the subject lot at an area of 4.22 hectares. The applicant observes that the subject land is zoned Rural and not Special Residential, Rural Living or any other zone where the emphasis is on the protection of amenity and the avoidance of land use conflicts.
The applicant relied on the evidence of Mr Laycock who is of the opinion that the proposal is consistent with the objectives of SPP 2.5. Mr Laycock observed that the subject land is not currently used for primary production and has not been used for that purpose for the past 30 years. He also observed that the size of the subject land restricts viable primary production occurring on the site in the future.[67] Mr Laycock does not see land use conflicts arising from the proposed development because noise and odour, which were initially raised as concerns by the Shire, have been addressed by suitably qualified consultants.[68] He considers that any land use conflicts, from an environmental impact perspective, have been addressed by the preparation of a Stormwater, Spill and Wash Down Management Plan (Management Plan), which includes a system to safeguard against potential spills.[69]
[67] Witness statement of Benjamin Laycock, 26 February 2021, para 115.
[68] Witness statement of Benjamin Laycock, 26 February 2021, para 116.
[69] Witness statement of Benjamin Laycock, 26 February 2021, para 117.
We accept the uncontested evidence of Mr Laycock and find that, due to the size of the subject land, it has not been used, is not currently used and is unlikely to be used for primary production in the future. We further find that the subject land has been approved for a workshop use and used for that purpose for the past 30 years. Therefore, based on the evidence of Mr Laycock, we find that the proposed use will not introduce a commercial land use that is in conflict with the current approved rural use.
Accordingly, we find that the proposed land use is not inconsistent with the objectives of SPP 2.5.
We will consider the suitability of the applicant's proposed mitigation measures to avoid potential liquid waste spills under issue 6 below.
Issue 6: Whether there is an unacceptable risk that the proposed development might adversely affect the environment or water resources
In considering an application for development approval, we are required, under cl 67(2)(o) of the Deemed Provisions, to have due regard to the likely effect of the proposed development on the natural environment or water resources and any means that are proposed to protect or to mitigate impacts on the natural environment or the water resource.
We must also have due regard, in our determination, to any relevant policy of the State under cl 67(2)(f) of the Deemed Provisions. SPP 2.0, and SPP 2.9 have a number of objectives which include to protect, conserve and enhance, respectively, the natural environment and water resources.[70] They also include general measures that decision-makers should adopt to avoid development that may result in unacceptable environmental damage or adverse effects on water quality. Similarly, SPP 2.1 is aimed, amongst other things, at ensuring changes to land use within the catchment to the Peel Harvey Estuary are controlled so as to avoid and minimise environmental damage.[71]
[70] State Planning Policy 2.0 – Environmental and Natural Resources, cl 4; State Planning Policy 2.9 – Water Resources, cl 4.
[71] State Planning Policy 2.1 – The Peel-Harvey Coastal Plain Catchment, cl 2.
The Shire points to the recognised polluting potential of the liquid waste to be stored on the subject land because it is of a type that requires special licensing of vehicles under the Environmental Protection (Controlled Waste) Regulations 2004.[72] The Shire contends that, in the event of a spill, the proposed containment sump is not adequate to contain liquid waste from entering the Resource Enhancement Wetland and Bush Forever Site 68 located to the south of the subject land. It is the Shire's position that the proposed system for both the containment of wastewater and discharge of stormwater is inconsistent with the WQPN 51 and WQPN 52.
[72] ts 218, 7 May 2021.
The applicant rejects the Shire's position and says that whilst the infrastructure is shared, it is not intended to be used simultaneously. The applicant contends that the containment sump is to be installed as a safeguard against a spill and can be appropriately managed so as not to have any impact on stormwater catchment and the environment. The applicant says that liquid waste will not travel through the infrastructure during truck-to-truck transfers.
The Shire relied on the evidence of Mr Angeloni in support of its contentions. In Mr Angeloni's opinion, the proposed containment system will allow controlled waste to enter the environment because it is reliant on human attentiveness to procedures, including closing taps and performing adequate cleaning, washdown procedures and maintenance processes.[73] Mr Angeloni considers that there is an inadequate separation distance (or buffer) between the proposed land use and the Resource Enhancement Wetland and Bush Forever Site 68, particularly in light of the hydrogeological characteristics within the catchment and immediately around and beneath the subject land. Mr Angeloni says that these local characteristics include Bassendean soils which have low water retention capability and, therefore, would allow phosphorus and nitrogen (from liquid waste) to enter the soil profile.[74] Mr Angeloni expressed concerns that the hardstand would be semipermeable and there would be potential for leakage of liquid waste through it or over the sides of the bunds.[75] He is also concerned that liquid waste could leach into the groundwater and discharge into the Resource Enhancement Wetland which is located down gradient from the subject land and connected by surface flow channels to PeelHarvey Estuary.[76]
[73] Witness statement of Mark Angeloni, 26 February 2021, para 14.
[74] Witness statement of Mark Angeloni, 26 February 2021, para 15.
[75] ts 50, 5 May 2021.
[76] Witness statement of Mark Angeloni, 26 February 2021, para 15.
The applicant relied on the evidence of Mr Alanoix who prepared the Management Plan. Mr Alanoix stated that the liquid waste containment sump was designed to contain any major spill that may occur during truck-to-truck transfers and, therefore, was a contingency measure.[77] Mr Alanoix explained that the sump was not intended for everyday use for wastewater containment because there is no discharge of wastewater into the sump on a daily basis.[78]
[77] Witness statement of Didier Alanoix, 25 February 2021, para 8.
[78] Witness statement of Didier Alanoix, 25 February 2021, para 10.
The applicant stated that he used a drip tray during truck-to-truck transfers to capture spills[79] and that the transfer is under vacuum.[80] He also said that truck-to-truck transfers did not occur during rainfall events (when the valve would be open)[81] and that there had been no spills other than into the drip trays[82]
[79] ts 50, 5 May 2021.
[80] ts 45, 5 May 2021,
[81] ts 58, 5 May 2021,
[82] ts 50, 5 May 2021,
Mr Alanoix explained that in the event of a major spill, which he regarded as unlikely, the liquid waste would be vacuumed into the controlled waste truck. He said that the hardstand area would then be washed with high-pressure water to thoroughly clean out any liquid waste residue, and that the wastewater would also be vacuumed into the truck.[83] Because of this process, Mr Alanoix considered it highly unlikely that stormwater discharging into the containment sump following a spill event would be contaminated with waste.[84] Mr Alanoix was satisfied that the objectives of WQPN 52 would be met even though stormwater and liquid waste rely on the same infrastructure.[85]
[83] Witness statement of Didier Alanoix, 25 February 2021, para 11.
[84] Witness statement of Didier Alanoix, 25 February 2021, para 11.
[85] Witness statement of Didier Alanoix, 25 February 2021, para 11.
Mr Alanoix observed that the WQPN 52 is in the nature of a guidance statement and that alternative practical solutions suited to local conditions may be considered.[86] He provided the following opinion on the potential for the proposed development to impact the Resource Enhancement Wetland and Bush Forever Site 68:[87]
In my opinion, the proposed design is an alternative practical environmental solution suited to local conditions. In forming this judgement, I do appreciate the proximity of the Resource Enhancement Wetland (UFI 7190) and Bush Forever Site 69 (sic), as well as the low PRI[88] value of Bassendean sand. However, I emphasise that these sensitive environments will not be impacted because no liquid waste or contaminated stormwater will leach through the ground.
[86] Witness statement of Didier Alanoix, 25 February 2021, para 15.
[87] Witness statement of Didier Alanoix, 25 February 2021, para 16.
[88] Phosphorus Retention Index.
WQPN 52 applies to light, general and heavy industrial sites throughout the State that could harm sensitive water resources.[89] Although the subject land is not an industrial site, we accept that WQPN 52 does provide guidance on stormwater management that is relevant to the application before us. DWER referred to WQPN 52 as providing best practice management to protect State water resources in its advice to the Shire following consultation.[90] For these reasons, we find that the stormwater management principles set out in WQPN 52, including any alternative practical environmental solutions proposed by the applicant, are relevant to our consideration of the application.
[89] WQPN 52, page 2.
[90] Exhibit 11, page 907.
We accept the evidence of Mr Alanoix and find that, for the purposes of the WQPN 52, the proposed system for the containment of stormwater referred to in the Management Plan is an alternative practical environmental solution that meets local conditions. We also accept the evidence of the applicant and find that the likelihood of a major liquid waste spill from truck-to-truck transfers is low. Based on the evidence before us, we find there is minimal risk that stormwater discharging into the containment sump following a spill event (in the unlikely event that one occurred) would be contaminated with liquid waste.
Accordingly, we are satisfied that the proposed development will not pose an unacceptable risk to the environment or water resources if it is approved subject to the applicant's proposed system for the containment of wastewater.
Issue 7: Whether the proposed development is consistent with protecting the current and intended future character and amenities of the locality
Under cl 67(2)(n) of the Deemed Provisions we must, in considering an application for development approval, have due regard to the existing and future amenity of the locality including, relevantly, the character of the locality.
The term 'amenity' is defined in the Deemed Provisions to mean 'all those factors which combine to form the character of an area and include the present and likely future amenity'. In Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74 at [20], the Tribunal referred to the decision of Tempora Pty Ltd v Kalamunda (1994) 10 SR (WA) 296 at 304 in which the Town Planning Appeal Tribunal observed that:
… 'the determination of the amenity of the locality is a question of fact and consists of three parts: the existing amenity, the manner in which the proposed use will affect the existing amenity and the degree of impact on the locality'. The Tribunal emphasised that the first part of the inquiry involves a determination, 'as a matter of fact, [of] the objective character of the area that represents the present state of amenity'.
There was no dispute about the delineation of the relevant locality, which we observed on the view, for the purposes of the objective assessment of the locality's character by the expert planning witnesses. That assessment is summarised below.
Character of the locality
Mr Laycock described the character of the locality as an eclectic mix of activities ranging from rural-residential properties, equestrian facilities and nurseries, to more commercial and industrial uses including extractive industry, an earthmoving yard, other transport depots, recreational and amusement activities, and other undefined activities with a commercial/industrial appearance.[91] Mr Laycock does not consider the locality to be a pristine rural environment, nor an area of rural landscape protection.[92] Because the Shire's draft LPS and Draft LPS 3 retain the 'Rural' zoning of the subject land, Mr Laycock does not consider the intended future character and amenity of the locality to differ greatly from the present.
[91] Witness statement of Benjamin Laycock, 26 February 2021, para 126.
[92] Witness statement of Benjamin Laycock, 26 February 2021, para 126.
Mr Trosic described the character of the locality as openness in the landscape whether it's the natural landscape or primary productive rural landscape.[93] Mr Trosic considers the current and contemplated uses and development of land to be subservient to the landscape which defines an intended rural character and in parts natural character.[94]
[93] ts 140, 141, 6 May 2021.
[94] Witness statement of Andrew Trosic, 26 February 2021, para 16.
On the view, we observed an eclectic mix of activities. Based on the evidence of Mr Laycock which we accept, we find that there is a diverse array of uses within the locality, many of which can be characterised as commercial in nature and that rely on trucks and other commercial vehicles.
The parties' contentions and evidence
The Shire contends that the proposed development is inconsistent with the existing and future amenity of the locality for the purposes of cl 67(2)(n) of the Deemed Provisions. It is the Shire's position that the proposed development would introduce commercial vehicles to the subject land which are unrelated to rural pursuits or associated activities in the Scheme area and inconsistent with the rural character and amenity of the locality. The Shire also says that any unauthorised development in the locality should not inform the character of the area.[95]
[95] ts 219, 7 May 2021.
In support of its contentions, the Shire relied on the evidence of Mr Trosic who is of the opinion that uses which are substantially industrial in character should be located in an 'Industrial' zone because those zones are strategically sited and have a greater tolerance for risks associated with polluting activities than other zones.[96] He is also of the opinion that approval of substantially industrial uses in a Rural zone create a precedent that is difficult to distinguish in future cases.[97]
[96] Witness statement of Andrew Trosic, 26 February 2021, para 35.
[97] Witness statement of Andrew Trosic, 26 February 2021, para 35.
The applicant rejects the Shire's contention and says that the subject land does not need to be accommodated by a rural pursuit as 'Transport Depot' is a discretionary use in the Rural zone. The applicant observes that commercial vehicles are commonly associated with rural uses and areas. The applicant relied on the evidence of Mr Laycock in support of his position. Mr Laycock stated that he observed many properties within the locality with a single residence, large workshops/sheds, transportable buildings and sea containers, and areas of unsealed hardstand. He further observed that it was a common occurrence to see several commercial vehicles parked or operating on those properties.[98]
[98] Witness statement of Benjamin Laycock, 26 February 2021, paras 127-128.
In Mr Laycock's opinion, the current character and amenity of the locality is informed by the existing structures and the use of the subject land.[99] In this case, the subject land has been used as a mechanical workshop for the past 30 years. Mr Laycock does not consider the proposed development to be at odds with what is occurring elsewhere in the locality because it does not entail any additional structures on the land, other than the sealed wash down area, and the activity will be largely screened from view behind the existing workshop.[100] In Mr Laycock's opinion, truck movements generated by the development would not be out of kilter with what currently occurs or would be expected in the locality.[101]
[99] Witness statement of Benjamin Laycock, 26 February 2021, para 125.
[100] Witness statement of Benjamin Laycock, 26 February 2021, para 129.
[101] Witness statement of Benjamin Laycock, 26 February 2021, para 129.
Mr Trosic considers the development would have a high degree of visibility because it would not be set back a significant distance from surrounding roads. In his opinion, if such a use was permitted in the locality then it would erode the rural character.[102]
Findings - character and amenity of the locality
[102] ts 141, 6 May 2021.
Based on the evidence of Mr Laycock, we find that the amenity of the locality does not reflect a pristine rural environment or rural landscape.
Because the subject land is currently being used as a workshop, we find that the impact of the proposed development on the amenity of the locality, including truck movements generated by it, will not substantially alter the existing amenity of the locality. In light of the fact that the subject land will remain a Rural zone under Draft LPS 3, we find that the amenity of the locality is unlikely to change in the future.
Accordingly, we find that the proposed use will not adversely affect the existing and future character and amenity of the locality.
Conclusion
The proposed development is properly characterised as a 'Transport Depot' under TPS 2 and Draft LPS 3 which is a discretionary use under those planning instruments and, therefore, a use capable of approval.
We consider that the limited scale of the development, the current and historical use of the subject land as a workshop, and the proposed mitigation measures to protect the environment are matters that weigh in favour of approving the application under s 252(1) of the PD Act.
We conclude that, having due regard to the relevant matters in cl 67(2) of the Deemed Provisions, and weighing up our findings in respect of the issues before us, the correct and preferable decision is to approve the proposed development because it:
1)is consistent with the objectives of the Rural zone under TPS 2 and Draft LPS 3;
2)is consistent with the Rural Strategy;
3)is consistent with the draft LPS;
4)is not inconsistent with SPP 2.5;
5)will not adversely affect the current and future character and amenity of the locality; and
6)will not pose an unacceptable risk to the environment or water resources.
Accordingly, we will set aside the Shire's decision to refuse development application PA19/767 for a Transport Depot on the subject land and substitute a new decision approving the proposed development subject to conditions.
Conditions
In the event that the Tribunal determined that the application should be approved, the Shire proposed 14 without prejudice conditions[103] most of which were accepted by the applicant.[104] However, the applicant objected to the imposition of a condition which required an amended Management Plan requiring an additional sump and associated stormwater pit to separate wastewater from stormwater, as well as weather proofing of the hardstand area (draft condition 5).[105] Mr Alanoix stated that he did not consider the alternative design to be critical because the applicant's proposed design does not compromise the objectives of WQPN 52 and is more economical. We accept the evidence of Mr Alanoix and find that the alternative design proposed by the Shire in draft condition 5 is unnecessary in the circumstances of this case.
[103] Exhibit 14.
[104] Exhibit 6.
[105] Exhibit 14, condition 5.
The applicant sought an additional 30 days to construct the 10 metre by 47 metre hardstand area from the time-frame proposed by the Shire.[106] The amended period of 90 days for the construction of the hardstand area was not opposed by the Shire.[107] To provide some flexibility in the material to be used for the hardstand, the parties agreed that the hardstand area should be constructed of a 100 millimetre impervious asphalt surface or similar as determined by a suitably qualified consultant.[108]
[106] Exhibit 14, condition 12.
[107] ts 207, 7 May 2021.
[108] ts 207, 7 May 2021.
The parties agreed that the conditions should require that all commercial vehicles and skid mounted tanks are to be parked on the dedicated 10 metre by 47 metre bunded hardstand area.[109] They also agreed to the following additional condition:[110]
The storage and transfer of controlled waste shall be limited to liquid bulk controlled waste that is transported in a tank attached to part of a vehicle and/or standalone tank used or designed to be used for the transportation of liquid in bulk.
[109] ts 221, 7 May 2021.
[110] ts 225, 7 May 2021.
We find that the agreed changes to the proposed conditions and the additional agreed condition set out above are appropriate in all of the circumstances.
Orders
The Tribunal orders:
1.The application for review is allowed.
2.The decision of the respondent on 19 October 2020 to refuse development application PA19/767 for a Transport Depot at Lot 1 King Road, Oldbury, is set aside and a decision is substituted that development approval is granted for the proposed development under the Metropolitan Region Scheme and Shire of Serpentine-Jarrahdale Town Planning Scheme No 2 subject to the following conditions:
(a)The following development as depicted within the Altus Planning document, 'Proposed Transport Depot, Lot 1 (No. 543) King Road, Oldbury, August 2020' including the Bioscience Stormwater, Spill and Wash Down Management Plan attached to that document, shall form part of this approval:
(i)The parking of up to 6 commercial vehicles onsite (up to 4 of which are permitted to be licensed controlled waste vehicles);
(ii)Transportable Office;
(iii)Five (5) skid mounted tanks;
(iv)Portable amenities room;
(v)10 metre x 47 metre hardstand area dedicated for the parking of commercial vehicles and waste transfer from vehicle to vehicle;
(vi)24 metre x 47 metre hardstand area dedicated for the manoeuvring of commercial vehicles;
(vii)The transfer of liquid waste;
(viii)Infrequent afterhours movements; and
(ix)Minor servicing of vehicles.
(b)The Bushfire Management Plan dated 22 September 2020, shall form part of this approval and shall be implemented in its entirety for the lifetime of the development hereby approved.
(c)The Acoustic Assessment, prepared by Herring Storer dated August 2020, shall form part of this approval. All recommendations of the Acoustic Assessment shall be implemented in their entirety for the lifetime of the development hereby approved.
(d)The Odour Assessment prepared by Strategen dated 10 August 2020, shall form part of this approval. All recommendations of the Odour Assessment shall be implemented in their entirety for the lifetime of the development hereby approved.
(e)Commercial vehicles are not to be operated before 7 am and after 7 pm, Monday to Saturday unless for emergency call outs. No transferring of waste on site is permitted after hours.
(f)All commercial vehicles are to be parked on the 10 metre x 47 metre dedicated hardstand at all times.
(g)The storage and transfer of liquid waste into the five (5) skid mounted tanks can only occur within the 10 metre x 47 metres dedicated hardstand area.
(h)The transfer of liquid waste from vehicle to vehicle and wash down shall only occur within the raised 10 metre x 47 metre dedicated hardstand area.
(i)The storage and transfer of controlled waste shall be limited to liquid bulk controlled waste that is transported in a tank attached to part of a vehicle and/or standalone tank used or designed to be used for the transportation of liquid in bulk.
(j)Within 30 days of the date of approval, a floor plan and elevation plan of the transportable office and amenities room is required to be submitted to the Shire of Serpentine-Jarrahdale.
(k)Prior to the commencement of after hour call outs, a Noise Management Plan shall be submitted to the Shire of Serpentine-Jarrahdale for the Shire's approval identifying measures to be implemented to manage noise from vehicle movements on nearby sensitive receptors on after hour movements. The measures are required to be implemented prior to the commencement of after hour call outs, to the satisfaction of the Shire of Serpentine-Jarrahdale.
(l)Within 90 days of the date of the approval, the 10 metre x 47 metre dedicated hardstand area where transfer of waste from vehicle to vehicle is to occur, shall be constructed as follows to the satisfaction of the Shire of Serpentine-Jarrahdale:
(i)The hardstand area constructed of a 100 mm impervious asphalt surface or similar as otherwise determined by a suitably qualified person;
(ii)The entire hardstand area graded to 2% towards the waste water sump;
(iii)200 mm raised concrete kerbing along the north, east, west and south sides of the hardstand area; and
(iv)The hardstand is to be certified by a suitably qualified person with documentation being submitted to the satisfaction of the Shire.
(m)Within 30 days of the date of this approval, a floor plan of the existing building onsite where servicing of the vehicles is occurring in relation to the development hereby approved is to be submitted to the Shire of Serpentine-Jarrahdale. Details of the servicing operations are to also be demonstrated to the Shire.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS C BARTON, MEMBER
9 JULY 2021
ANNEXURE A
The Planning Framework
State
Metropolitan Region Scheme (MRS)
The subject land is zoned 'Rural' under the MRS.
Relevant State planning policies are:
State Planning Policy 2 - Environment and natural resources policy (SPP 2.0)
The relevant objectives in cl 4 of SPP 2.0 include:
a.to integrate environment and natural resource management with broader land use planning and decision-making;
b. to protect, conserve and enhance the natural environment; and
c.To promote and assist in the wise and sustainable use and management of natural resources.
SPP 2.0 includes, amongst others, general measures in cl 5.1 and states that decision-making should:
(i)Avoid development that may result in unacceptable environmental damage.
(ii)Actively seek opportunities for improved environmental outcomes including support for development which provides for environmental restoration or enhancement.
(iii)Take account of the availability and condition of natural resources, based on best available information at the time.
(iv)Protect significant natural, indigenous and cultural features, including sites and features significant as habitats and for their floral, cultural, built, archaeological, ethnographic, geological, geomorphological, visual or wilderness values.
(v)Take into account the potential for economic, environmental and social (including cultural) effects on natural resources.
(vi)Recognise that certain natural resources, including biological resources, are restricted to particular areas and that these geographical areas or land types may need to be identified accordingly and appropriate provision made to protect the areas for the use of those resources.
(vii)Take account of the potential for on-site and off-site impacts of land use on the environment, natural resources and natural systems.
…
(x)Support conservation, protection and management of native remnant vegetation where possible, to enhance soil and land quality, water quality, biodiversity, fauna habitat, landscape, amenity values and ecosystem function[.]
Clause 5.5 of SPP 2.0 sets out specific biodiversity measures and states, amongst other things, that decision-making should:
(i)Consider mechanisms to protect areas of high biodiversity and/or conservation value, including:
…
d.land containing Threatened Flora or Threatened Ecological Communities (CALM database) or that which is habitat to Threatened Fauna[.]
(ii)Seek to avoid or minimise any adverse impacts, directly or indirectly, on areas of high biodiversity or conservation value as a result of changes in land use or development.
…
(iv)Safeguard and enhance linkages between terrestrial and aquatic habitats which have become isolated, including the re-establishment of habitat corridors[.]
State Planning Policy 2.1 - The Peel-Harvey Coastal Plain Catchment (SPP 2.1)
SPP 2.1 applies to the subject land.
Pursuant to cl 2, the objectives of SPP 2.1 are:
·To improve the social, economic, ecological, aesthetic, and recreational potential of the Peel-Harvey Coastal Plain Catchment.
·To ensure that changes to land use within the Catchment to the Peel-Harvey Estuarine system are controlled so as to avoid and minimise environmental damage.
·To balance environmental protection with the economic viability of the primary sector.
·To increase high water-using vegetation cover within the Peel-Harvey Coastal Plain Catchment.
·To reflect the environmental objectives in the Draft Environmental Protection Policy (Peel-Harvey Estuarine System) 1992.
·To prevent land uses likely to result in excessive nutrient export into the drainage system.
The general policy provisions at cl 5 include as follows:
Development, including both material changes in land use and the construction of buildings, the policy area should relate to land capability and suitability and specific management practices (such as effluent treatment, red mud amendment, revegetation, and stocking rates). Moreover some of the policy provisions are likely to be conservative and modifications are likely as knowledge improves and new technology becomes available.
…
5.2Proponents shall ensure that proposed changes to land zonings take account of land capability/suitability criteria with regard to the net effect that such changes are likely to have on the nutrient load discharging from that catchment into the Peel-Harvey Estuarine System[.]
State Planning Policy 2.5 - Rural Planning (SPP 2.5)
The intent of SPP 2.5 is:
… to protect and preserve Western Australia's rural land assets due to the importance of their economic, natural resource, food production, environmental and landscape values. Ensuring broad compatibility between land uses is essential to delivering this outcome.
The objectives for SPP 2.5 are provided at cl 4 and include the following:
(a)support existing, expanded and future primary production through the protection of rural land, particularly priority agricultural land and land required for animal premises and/or the production of food;
(b)provide investment security for existing, expanded and future primary production and promote economic growth and regional development on rural land for rural land uses;
(c)outside of the Perth and Peel planning regions, secure significant basic raw material resources and provide for their extraction; provide a planning framework that comprehensively considers rural land and land uses, and facilitates consistent and timely decision-making;
(e)avoid and minimise land use conflicts;
(f)promote sustainable settlement in, and adjacent to, existing urban areas; and
(g)protect and sustainably manage environmental, landscape and water resource assets.
Under the heading 'Policy Measures', cl 5 of SPP 2.5 states:
The WAPC seeks to protect and preserve rural land for rural purposes including primary production, basic raw materials, regional facilities, and protection of biodiversity and landscape. Rural land accommodates a diverse range of land uses, primarily associated with primary production. There are also rural areas with suitable soils, climate, water (rain or irrigation) and access to services such that the land is considered to be high quality agricultural land. The intent of this policy is therefore to protect rural land and encourage a diversity of compatible rural land uses[.]
State Planning Policy 2.9 - Water Resources (SPP 2.9)
The objectives in cl 4 of SPP 2.9 are to:
1.protect, conserve and enhance water resources that are identified as having significant economic, social, cultural and/or environmental values;
2.assist in ensuring the availability of suitable water resources to maintain essential requirements for human and all other biological life with attention to maintaining or improving the quality and quantity of water resources; and
3. promote and assist in the management and sustainable use of water resources.
Clause 5.1 of SPP 2.9 sets out general measures to be taken into account in decision-making:
(i)Protect significant environmental, recreational and cultural values of water resources.
(ii)Aim to prevent or, where appropriate, ameliorate the following potential impacts:
· any adverse effects on water quality and quanity and, as a minimum, proposed development should aim to maintain water quality and ensure water quantity is compatible with receiving waters;
· increased nutrient loads into receiving waters;
…
· pollution and contamination[.]
Local
Serpentine-Jarrahdale Town Planning Scheme No.2 (TPS 2)
The subject land is zoned 'Rural' under TPS 2.
Clause 5.10.1 sets out the objective of the 'Rural' zone as follows:
The purpose and intent of the Rural Zone is to allocate land to accommodate the full range of rural pursuits and associated activities conducted in the Scheme Area.
A 'Transport Depot' is defined under Appendix 1 TPS 2 as:
… land or buildings designed or used for one or more of the following purposes:
(a)The parking or garaging of more than one commercial vehicle used or intended for use for the carriage of goods (including livestock) or persons.
(b)The transfer of goods (including livestock) or passengers from one vehicle to another vehicle.
(c)The maintenance, repair or refuelling of vehicles referred to in (a) or (b) above.
Under Table 1 - Zoning Table of TPS 2 a 'Transport Depot' is an 'SA' use in the 'Rural' zone.
Clause 3.2.2 of TPS2 defines an 'SA' land use categorisation as meaning:
… that the Council may, at its discretion, permit the use after notice of the application has been given in accordance with Clause 64 of the Deemed Provisions.
Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regulations)
Sch 2 to the LPS Regulations - Deemed Provisions
Clause 1 of the Deemed Provisions provides the following definition of the term 'amenity':
amenity means all those factors which combine to form the character of an area and include the present and likely future amenity[.]
Clause 67(2) of the Deemed Provisions sets out the various planning matters to be considered when determining an application for development approval.
The relevant matters to be considered in the context of this application include but are not limited to:
(a)the aims and provisions of the Scheme and any other local planning scheme operating within the Scheme area;
(b)the requirements of orderly and proper planning including any proposed local planning scheme or amendment to this Scheme that has been advertised under the Planning and Development (Local Planning Schemes) Regulations 2015 or any other proposed planning instrument that the local government is seriously considering adopting or approving;
(c)any approved State planning policy;
...
(f)any policy of the State;
(fa)any local planning strategy for this scheme endorsed by the Commission;
…
(n)the amenity of the locality including the following -
(i) environmental impacts of the development;
(ii) the character of the locality;
…
(o)the likely effect of the development on the natural environment or water resources and any means that are proposed to protect or to mitigate impacts on the natural environment or the water resource;
…
(w)the history of the site where the development is located;
(y)any submissions received on the application;
…
(za)the comments or submissions received from any authority consulted under clause 66;
(zb)any other planning consideration the local government considers appropriate.
Draft Local Planning Scheme No 3 (Draft LPS 3)
The subject land is zoned 'Rural' under Draft LPS 3.
Table 2 under cl 16 of Draft LPS 3provides the following objectives for the Rural zone:
· To provide for the maintenance or enhancement of specific local rural character.
· To protect and accommodate broad acre agricultural activities such as cropping and grazing and intensive uses such as horticulture as primary uses, with other rural pursuits and rural industries as secondary uses in circumstances where they demonstrate compatibility with the primary use.
· To maintain and enhance the environmental qualities of the landscape, vegetation, soils and water bodies including groundwater, to protect sensitive areas especially the natural valley and watercourse systems from damage.
· To provide for the operation and development of existing, future and potential rural land uses by limiting the introduction of sensitive land uses in the Rural zone.
· To provide for a limited range of non-rural land uses, only where they have demonstrated a direct benefit to the local community and are compatible with surrounding rural uses.
The bold emphasis reflects modified wording post-advertising as adopted by the Council.
Pursuant to cl 55 of Draft LPS 3, the land use definition of 'transport depot':
means premises used primarily for the parking or garaging of two (2) or more commercial vehicles including –
(a) any ancillary maintenance or refuelling of those vehicles; and
(b) any ancillary storage of goods brought to the premises by those vehicles; and
(c) the transfer of goods or persons from one vehicle to another.
The bold emphasis reflects modified wording post-advertising as adopted by the Council.
Draft LPS 3 also includes a land use definition for 'waste storage facility':
means premises used to collect, consolidate, temporarily store or sort waste before transfer to a waste disposal facility or a resource recovery facility on a commercial scale.
Table 3 - Zoning Table, a 'transport depot' will be an 'A' use, and a 'waste storage facility' will be an 'X' use within the Rural zone.
Clause 18(2), defines these land use permissibilities:
…
Ameans that the use is not permitted unless the local government has exercised its discretion by granting development approval after giving notice in accordance with clause 64 of the deemed provisions;
X means that the use is not permitted by this Scheme.
Draft Local Planning Strategy (draft LPS)
The Shire's draft LPS has been advertised, has had submissions in response to advertising considered, and has been adopted by Council (subject to modifications). On 7 July 2020, the draft LPS was sent to the Western Australian Planning Commission (WAPC) for final approval.
Figure 20: Local Planning Strategy Map at Appendix 1, indicates the subject land is situated within the 'Rural Land' land use category. The description for the Rural land use category at s 3.3 of draft LPS describes the Rural land use category (within which the subject land is situated) in the following terms:
The Rural land use category provides for a full range of rural land uses, tourism opportunities, rural enterprise and the preservation of the natural landscape. Rural land facilitates agricultural production and the protection of the natural landscape...
Under the heading 'Rationale', s 3.3 provides that:
Rural land including both agricultural and natural areas are central to the local economy, lifestyle opportunities and character of the Shire. The various rural and agricultural activities undertaken within rural areas support significant economic activity and economic opportunity. The Shire considers it is important to maintain rural land in close proximity to Perth to accommodate various rural industries and food production activities for the growing population. It is important that rural land is preserved for this purpose and is not consumed by the encroachment of inappropriate activities or suburban expansion. Preserving the natural landscape is also an important function of the Rural land use category to maintain rural character[.]
In addition, the 'Rationale' states:
…
… Emerging non-traditional rural activities should be encouraged in areas where they do not adversely impact on environmental or landscape quality and are appropriately managed to minimise offsite impacts. While it is recognised that the development of light industrial and intensive rural industries may impact visual amenity, such developments should utilise sustainable and innovative technologies to ensure the natural environment is not adversely affected and measures should be undertaken to enhance amenity[.]
Rural Strategy Review 2013 (Rural Strategy)
The Shire's Rural Strategy was endorsed by WAPC in 2017. It sets out the strategic planning framework for rural land in the Shire.
Section 1.1 sets out:
…
The overall purpose of the Rural Strategy is to preserve and enhance the Shire's rural character and its role as an important economic contributor to the Shire and broader region[.]
Figure 4.1 indicates the subject land is situated within the 'Rural Policy Area'. The objectives of the Rural Policy Area, as stated in s 4.5 of the Rural Strategy, are:
· To retain and maintain traditional agricultural uses in this Policy Area.
· To promote alternative agricultural uses, particularly those that have less land degradation and higher commercial viability.
· To prevent the further fragmentation of land through subdivision and thus retain the remaining large lots for future rural use.
· To retain and enhance the rural lifestyle and character of the area.
· To protect Local Natural Areas and encourage revegetation.
Further, in respect to the Rural Policy Area, s 4.5 advises:
… The identification of rural land in the Shire also reflects the need to retain large parcels of land for future development purposes and infrastructure needs including possible future urban and industrial development beyond 2031. Therefore, land in the Rural Policy Area is not solely identified for agricultural or productive value but also the need to retain large parcels of land for future urban or industrial development[.]
ANNEXURE B
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