NIRODA HOLDINGS PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION

[2020] WASAT 70

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION:   NIRODA HOLDINGS PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2020] WASAT 70

MEMBER:   MS L EDDY, SENIOR MEMBER

MR W GREGORY, SESSIONAL MEMBER

HEARD:   18 DECEMBER 2019

DELIVERED          :   1 JULY 2020

FILE NO/S:   DR 270 of 2018

BETWEEN:   NIRODA HOLDINGS PTY LTD

Applicant

AND

WESTERN AUSTRALIAN PLANNING COMMISSION

Respondent

DBNGP (WA) NOMINEES PTY LTD AND DBNGP (WA) TRANSMISSION PTY LTD

Interveners

Catchwords:

Planning and development - Subdivision - Review of decision to refuse to endorse deposited plans - Review of condition of subdivision approval - Diagram or plan of survey submitted in relation to a stage of subdivision - Whether condition relevant to stage of subdivision - Condition requiring pipeline risk management /protection plan in accordance with Planning Bulletin 87 - What constitutes a pipeline risk management /protection plan in accordance with Planning Bulletin 87 - Whether condition has been complied with - Whether condition under review should be varied or substituted

Legislation:

Dampier to Bunbury Pipeline Act 1997 (WA), s 41, s 41(2)
Peel Region Scheme
Petroleum Pipelines (Management of Safety of Pipelines Operations) Regulations 2010 (WA)
Petroleum Pipelines Act 1969 (WA)
Planning and Development Act 2005 (WA), s 142, s 143(1), s 145, s 251(2), s 251(4), s 251(5)
Shire of Murray Local Planning Scheme No 4, cl 6.4.5, Sch 4
State Administrative Tribunal Act 2004 (WA), s 37(3)

Result:

Decision of the respondent affirmed

Category:    B

Representation:

Counsel:

Applicant	:	T Houweling
Respondent	:	A Davies & IA Repper
Interveners	:	M Feutrill SC & M Etherington

Solicitors:

Applicant	:	Cornerstone Legal
Respondent	:	State Solicitor's Office
Interveners	:	Clayton Utz

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

Caltex Australia Petroleum Pty Ltd and Town of Vincent [2010] WASAT 79; 72 SR WA 324

Darling Downs Estate Pty Ltd and Western Australian Planning Commission [2016] WASAT 76

Niroda Holdings Pty Ltd and Western Australian Planning Commission [2017] WASAT 57

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

1. In this application, Niroda Holdings Pty Ltd (Niroda or applicant) originally asked the Tribunal to review the Western Australian Planning Commission's (Commission or respondent) decision to refuse to endorse the plan of survey (deposited plan) for stage two of Niroda's subdivision of land described as Lot B38 Lakes Road, North Dandalup (site).  The endorsement by the Commission of its approval on a diagram or plan of survey enables land titles to be obtained for the lots depicted in the plan or diagram.  The Commission refused to endorse the deposited plans in question, in part, based on advice from the DBNGP (WA) Nominees Pty Ltd (DBNGP Nominees) that condition 11 of the subdivision approval has not been complied with.

2. DBNGP Nominees is the owner of the Dampier-Bunbury Natural Gas Pipeline (Pipeline), part of which traverses the site beneath the surface. The Pipeline is a high pressure gas pipeline.  The nature of a high pressure gas pipeline is such that penetration of the pipe that causes rupture can result in the release of ignited gas under high pressure; with ensuring intense thermal radiation extending potentially over a large area.  For ease of reference, we refer to such a rupture as catastrophic rupture of the pipeline.

3. Condition 11 of the subdivision approval contains a requirement to prepare and implement a pipeline risk management/protection plan in accordance with Planning Bulleting 87 High Pressure Gas Transmission Pipelines in the Perth Metropolitan Region (PB 87).  The nominated approval body for condition 11 is DBNGP Nominees.

4. Procedurally, following a mediation between the parties, the parties agreed to prepare a terms of reference for a workshop to consider a safety management study and then to hold a workshop in accordance with those terms of reference, at which DBNGP Nominees and the Pipeline operator, DBNGP Transmission Pty Ltd (DBNGP Transmission) were invited to attend.  A safety management workshop is a mechanism used in the process of developing a pipeline risk management plan. The workshop proceeded, and a report was produced as a result of the workshop.  DBNGP Nominees and DBNGP Transmission do not agree with the recommendations made in that report.

5. In June 2019, after the mediation process had been terminated, the Tribunal granted leave to DBNGP Nominees and DBNGP Transmission (together referred to as the interveners) to intervene in the proceedings pursuant to s 37(3) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). The terms of intervention were specified to include the right to make submissions and adduce evidence on the ultimate issue as described in the respondent's Statement of Issues Facts and Contentions, other than some specified issues identified by reference to the respondent's Statement of Issues Facts and Contentions. Those excluded issues were not ultimately canvassed during the hearing by the parties, other than by way of limited submissions. Thus at the final hearing, the Tribunal heard from each of the parties, as well as the interveners.

6. Prior to the final hearing, the applicant was given leave to amend the application to include the decision of the respondent to refuse to endorse the deposited plans of stages three and four of the subdivision in addition to the original decision concerning the deposited plan for stage two.

7. The underlying matter in dispute is, in essence, what management and/or precautions are required to mitigate against the risk of catastrophic failure of the Pipeline, having regard to the increased population brought within the vicinity of the Pipeline because of the subdivision.  

Background facts

1. The following facts are taken largely from the applicant's Statement of Issues Facts and Contentions (Exhibit 3), which were agreed to by the respondent.  Some further non­controversial facts are sourced from the respondent's Statement of Issues Facts and Contentions, the interveners' Statement of Issues Facts and Contentions and some witness evidence.

2. The site is approximately 100 hectares in size.  There is a subdivision approval in place that contemplates 102 rural residential lots being created over seven stages, with lots ranging in size from 1 to 3 hectares.  The lots include identified building envelopes.  A plan of the approved subdivision with subdivision stages and the location of the Pipeline corridor is attached to these reasons and marked Attachment A.

3. The Pipeline passes through the western portion of the site underneath the ground.  In this location, the Pipeline includes two pipelines, the Main Line and the Loop Line.  The two pipelines are separated by approximately 6.5 metres and both are contained within a 50 metre wide corridor, of which, access to, and use of, is governed by the Dampier to Bunbury Pipeline Act 1997 (WA). The Main Line is buried to a depth of approximately 900 millimetres, and the Loop Line approximately 1200 millimetres, below the surface.

4. The Pipeline is:

   … key strategic infrastructure for the State of Western Australia.  It:

   (a)was constructed by the former State Energy Commission of Western Australia to transport natural gas from the North West gas fields (i.e. from Dampier) for use within population centres and industry in the south-west region of Western Australia.  The DBNGP has transported natural gas to Kwinana since 1984 and to Bunbury since 1985.

   (b)delivers natural gas to a diverse range of customers that include major industrial users such as Alcoa and BHP Billiton, retailers in the local gas retail market in the Perth metropolitan area and to power generators such as Synergy and Alinta.  The natural gas delivered by the DBNGP fuels at least 50% of the State's electricity generation.

   (c)comprises approximately 1539 km of mainline pipe, 1228 km of loop pipe and 300 km of lateral pipe and provides capacity for transporting 845TJ of natural gas per day on a firm, full haul basis.

   (Interveners' Statement of Issues Facts and Contentions, at para 3.1)

5. The primary protection measure for the Pipeline is the wall thickness of the Pipeline itself:  Exhibit 17.2; para 15.  The wall thickness of the Pipeline differs along its length.

6. Condition 11 of the subdivision approval provides as follows:

   Prior to the commencement of subdivisional works, the landowner/applicant shall prepare and implement as part of the subdivisional works a pipeline risk management/protection plan in accordance with Planning Bulletin 87 High Pressure Gas Transmission Pipelines in the Perth Metropolitan Region.  (DBNGP (WA) Nominees Pty Ltd)

7. A pipeline risk management plan in relation to the site was prepared by a consulting company, identified in the plan as 'kctt', in approximately August 2015 (2015 PRMP):  Exhibit 8. 

8. In November 2015, a Safety Management Study workshop (SMS workshop) coordinated by Pipeline Integrity was held to discuss what measures might be required in order to ensure the Pipeline remained sufficiently safe in light of the subdivision:  see Exhibit 2, pages 896 ­ 950 for the workshop report produced by Pipeline Integrity (2015 SMS Report)

9. In February 2016, the interveners advised the applicant that to reduce the relevant risks to as low as reasonably practicable (ALARP) they required replacement of parts of the Main Line and the Loop Line with heavy-wall pipe. 

10. The applicant did not agree that replacement of the Pipeline with heavy-wall pipe was necessary in order to remove the risk of catastrophic rupture of the Pipeline.

11. In March 2016, the applicant, through an agent, wrote to an employee of the interveners requesting clearance of condition 11.  In April 2016, the reply on behalf of the interveners advised Niroda's agent that the interveners were not satisfied that condition 11 had been complied with.

12. In June 2016, Niroda lodged the necessary Form 1C and plan of survey seeking endorsement for stage one of the subdivision.  The respondent refused to endorse the deposited plan on two grounds, one of which was that condition 11 was unlikely to be satisfied.

13. The applicant applied to the Tribunal for review of the Commission's decision in 2016.  In April 2017 that application was dismissed on the basis that the Tribunal did not have jurisdiction to consider it:  see Niroda Holdings Pty Ltd and Western Australian Planning Commission [2017] WASAT 57 (Niroda No 1).

14. In April 2017, after receiving independent expert advice, a committee of the respondent resolved to endorse the deposited plan for stage one of the subdivision on the basis that condition 11 was not relevant to that stage of the subdivision.  The lots within stage one of the subdivision fall outside of the Pipeline Measurement Length.[1]

    [1] The Measurement Length is the distance from the point of a pipeline rupture to the outer limit of a contour line which shows where a thermal radiation level of 4.7kW/m² occurs, that is where thermal radiation as a result of a rupture in the Pipeline will cause injury, at least second degree burns, after 30 seconds exposure.

15. In August 2017, the applicant lodged applications seeking endorsement of the deposited plans for stages two, three and four.  On 9 October 2018, the respondent refused to endorse the deposited plans for stages two and three (deposited plans 411970 and 411971). 

16. Niroda applied to the Tribunal for review of the respondent's decision in to refuse to endorse the deposited plans for stages two and three.  In November 2018, the application in the Tribunal was amended to include the respondent's deemed refusal to endorse the deposited plan for stage four of the subdivision (deposited plan 414362).

17. In January 2019, following mediation in the Tribunal, a SMS  workshop was facilitated by Mr Mark Harris from Delphi Risk Management Consulting (2019 SMS workshop).  The 2019 SMS workshop was attended by employees of the interveners.  Mr Harris produced a report subsequent to the 2019 SMS workshop (Delphi report):  see Exhibit 2, pages 1317 ­ 1349.

18. In the Delphi report Mr Harris stated that the threat of an excavator larger than 15 tonne and up to 30 tonne with tiger or penetration teeth being used in an uncontrolled manner over the Pipeline leading to an ignited rupture of one of the pipelines (excavator threat) was a credible threat.  The consequence of a failure of the Pipeline because of the excavator threat was considered to be catastrophic, with potential for multiple loss of life.  In the Delphi report the likelihood of failure of the Pipeline because of the excavator threat was described as 'Hypothetical'.  In the 'Key Findings' Mr Harris recorded that (Exhibit 2, page 1323):

    The main finding from the [2019 SMS] workshop was that there needs to be additional physical protection provided to the Main Line.  For existing pipelines under encroachment, the use of concrete slabbing with appropriate warning marker tape to the pipeline licensee's approved design is a justifiable and standard approach to ensuring the risk of failure is considered ALARP.

    …. [DBNGP Nominees and DBNGP Transmission] advised that they did not consider any form of slabbing as suitable protection to achieve ALARP and believe that in order to be ALARP the Main Line should be replaced with 'No-Rupture' pipe under the Australian Standard AS2885

19. The fundamental findings of the 2019 SMS Workshop are described in the Delphi report (Exhibit 2, page 1349.6) as:

    34.1The Loop Line's current design is effective against the identified threats and does not require any further physical protection.

    34.2Install standard DBP approved concrete slabbing (or alternative as agreed) over the Main Line for a distance of approximately 3.1 kilometres, being approximately 2 kilometres over the Applicants landholding plus the Measurement Length of 505m to the north and south of the Applicants landholding.  The design shall include marker tape.

    34.3Pipeline marker posts be installed wherever a boundary fence crosses a pipeline.

    34.4Easement markers be installed wherever a boundary fence crosses the edge of an easement.

    34.5Patrolling be increased to weekly from monthly in the area of the development.

20. Lots for stages two and three fall outside the Pipeline corridor but within the Pipeline Measurement Length.  Lots within stage four of the subdivision abut or include the Pipeline corridor.

Planning framework

1. Sections 145(4) and (6) of the Planning and Development Act 2005 (WA) (PD Act) provide:

   (4)Subject to subsection (6), if the Commission is satisfied that ­

   (a)the diagram or plan of survey is in accordance with the plan of subdivision approved by the Commission; and

   (b)if that approval was given subject to conditions ­

   (i)the conditions have been complied with or will be complied with at the time a certificate of title is created or registered; or

   (ii)in the case of a diagram or plan of survey submitted in relation to a stage of subdivision, the conditions imposed in relation to that stage of subdivision, or that in the opinion of the Commission are relevant to that stage of subdivision or the subdivision as a whole, have been complied with or will be complied with at the time a certificate of title is created or registered,

   the Commission is to endorse its approval on the diagram or plan of survey.

   …

   (6)If, in the case of a diagram or plan of survey submitted in relation to a stage of subdivision, the Commission is of the opinion that, because of planning considerations, it is not appropriate to approve the diagram or plan of survey, the Commission may refuse to endorse its approval on the diagram or plan of survey.

2. The applicant applied to the Tribunal for review of the respondent's decision to refuse to endorse the deposited plans pursuant to s 251(4) and (5) of the PD Act. Those subsections provide:

   (4)An applicant given approval of a plan of subdivision who is aggrieved by the Commission's decision to refuse to endorse its approval on a diagram or plan of survey of the subdivision submitted to the Commission under section 145 may apply to the State Administrative Tribunal for a review, in accordance with this Part, of the decision of the Commission.

   (5)If the Commission refuses to endorse a plan or diagram of survey of a subdivision because a condition affixed to the approval of the plan of subdivision has not been complied with, an application under subsection (4) may include an application for a review of that condition.

3. The Peel Region Scheme (PRS) applies to the site; it is zoned Rural under the PRS.  No other provisions of the PRS are of particular relevance to these proceedings.

4. The site is zoned Special Rural under the Shire of Murray Local Planning Scheme No 4 (LPS 4).  Clause 6.4.5 of LPS 4 relevantly provides that all subdivision of land within a Special Rural Zone must comply with the special provisions contained in Sch 4 of LPS 4.  The site is identified as being within 'SR34' of the Special Rural Zone in Sch 4 of LPS 4.  Relevantly, in relation to 'SR34', Sch 4 of LPS 4 provides:

   5.(a)        The following uses are permitted ('P'):

   Home Office

   Single House

   Outbuilding

   Public Utility

   …

   10.All development other than fencing shall be constructed within the confines of approved Building Envelopes.

   …

   20.Use and development of land within the Dampier Bunbury Natural Gas Pipeline Corridor shall be in accordance with the 'Land Use Guidelines - Dampier to Bunbury Natural Gas Pipeline Corridor' or variations thereto.  This includes the requirement to obtain approval from the Department of Regional Development and Lands or its equivalent or its delegates in addition to seeking the Planning Approval of Council, prior to commencing development.

   21.Land use within and beyond the Dampier to Bunbury Natural Gas Pipeline Corridor shall be in accordance with the Western Australian Planning Commission's Planning Bulletin 87 'High Pressure Gas Transmission Pipelines in the Perth Metropolitan Region' or variations or substitutions thereto.  This includes adherence to buffer distances to sensitive premises based on the EPA's guidelines for risk assessment and mitigation[.]

5. PB 87 expressly applies to the metropolitan region but is relevant to the site as it is incorporated by reference in Sch 4 of LPS 4 and also by condition 11 of the subdivision approval. 

6. The purpose of PB 87 is stated in cl 1 to be:

   …

   This planning bulletin provides guidance on matters to be taken into account by the Western Australian Planning Commission (WAPC), local governments and applicants in considering planning proposals in the vicinity of the Dampier to Bunbury Natural Gas Pipeline and the Parmelia Gas Pipeline, in the Perth metropolitan region (figure 1).

   The purpose is to:

   •Ensure risk to persons and property is at an acceptable level where schemes, scheme amendments, structure plans, land use, subdivision and development are proposed within the vicinity of pipeline corridor/easements.

   •Reduce potential risk arising from rupture of the pipeline during adjacent construction works.

   •Ensure future schemes, scheme amendments, structure plans, land use, subdivision and development will not encroach on the potential for the existing pipeline corridor/easements to provide the capacity required to meet the long-term demand for natural gas in the south west of Western Australia.

7. Other relevant parts of PB 87 will be referred to in the body of these reasons.

8. There is a draft Development Control Policy 4.3 Planning for High Pressure Gas Pipelines, which has been the subject of public consultation, ending in February 2017.  This policy is intended ultimately to replace PB 87.  However no date has been set for the finalisation of this document and further consultation is anticipated.  The policy's final form is not currently known.  None of the parties submitted that weight should be placed on this policy at this stage.

1. Australian Standard AS2885 ­ Gas and liquid petroleum (AS2885) is a series of standards that provide requirements and guidelines in relation to the design, construction and use of pipelines for the transmission of hydrocarbon fluids.  The purpose of AS2885 is:

   … to ensure the protection of the general public, pipeline operating personnel and the environment, and to ensure safe operation of pipelines that carry petroleum fluids at high pressures'.

   Relevant provisions of AS2885 will be referred to as necessary.

Other legislation

1. The Petroleum Pipelines Act 1969 (WA), the Petroleum Pipelines (Management of Safety of Pipelines Operations) Regulations 2010 (WA) and the Dampier to Bunbury Pipeline Act 1997 (WA) (together referred to as the Pipeline legislation) are part of the legislative framework applicable to the Pipeline and its operations.

2. As part of the regulatory regime imposed by the Pipeline legislation, the interveners are required to ensure that an approved safety case is in force and complied with for all Pipeline operations.  The safety case:

   … must include … [a] formal safety assessment [that identifies] all hazards that have the potential to cause a major accident event (i.e. an event potentially causing multiple fatalities), set out a detailed and systematic assessment of risk and identify measures that are necessary to reduce each identified risk to a level that is as low as reasonably practicable[.]

   (Exhibit 4 para 3.7)

3. At all relevant times there has been, and is, such an approved safety case in force. 

4. Under parts of the Pipeline legislation, while DBNGP Nominees is the owner of the Pipeline, the Land Access Minister retains certain rights over an area of land above the Pipeline, described as the DBNGP corridor. Land within the DBNGP corridor may not be used in a way that is inconsistent with anything on or being done to the land in accordance with those rights, and, unless the Land Access Minister otherwise approves, the land may not be used in a way or to an extent that could reasonably be expected to materially interfere with the exercise in those rights: s 41(2) of the Dampier to Bunbury Pipeline Act 1997 (WA).

Issues

1. The ultimate issue in this matter, is whether the deposited plans relating to stages two, three and four of the subdivision of the site should be approved. As an application has been made under s 251(4) of the PD Act, the Tribunal must also conduct a review of condition 11 of the subdivision approval in the context of determining whether the deposited plans should be approved. The parties agree that the determination of the issues in this matter depends on the answer to one or more of the following questions.

   a)Does condition 11 apply to stages two and three of the subdivision, and if it does not, can those stages be cleared without necessarily complying with condition 11 of the subdivision approval?

   b)Has condition 11 been complied with, or will it be complied with, to a sufficient degree that the deposited plans for stages two, three and four should be endorsed?

   c)Is condition 11 a condition that should not, or need not, be complied with before endorsing the deposited plans pursuant to s 251(5) of the PD Act?

Applicability of condition 11 to stages two and three of the subdivision

1. In considering the first of the questions raised by the parties, it is necessary to refer to the relevant legislative provisions to understand the question being asked.

2. Section 145(1) of the PD Act provides that a person to whom approval of a plan of subdivision has been give may, within the prescribed period, submit a diagram or plan of survey of the subdivision and request that the diagram or plan be approved by the respondent. If the subdivision is being carried out in stages, a diagram or plan of subdivision may be submitted in relation to a stage of the subdivision: s 145(3) of the PD Act. Such is the case here, and the applicant has submitted plans of survey in relation to stages two, three and four of the subdivision. The powers of the Commission in relation to a diagram or plan of survey of subdivision submitted under s 145(1) of the PD Act are described in s 145(4) of the PD Act, which provides:

   (4)Subject to subsection (6), if the Commission is satisfied that ­

   (a)the diagram or plan of survey is in accordance with the plan of subdivision approved by the Commission; and

   (b)if that approval was given subject to conditions ­

   (i)the conditions have been complied with or will be complied with at the time a certificate of title is created or registered; or

   (ii)in the case of a diagram or plan of survey submitted in relation to a stage of subdivision, the conditions imposed in relation to that stage of subdivision, or that in the opinion of the Commission are relevant to that stage of subdivision or the subdivision as a whole, have been complied with or will be complied with at the time a certificate of title is created or registered,

   the Commission is to endorse its approval on the diagram or plan of survey.

3. In this case, no party raises the exception in s 145(6) of the PD Act. As such, as the subdivision approval was given subject to conditions, and as the relevant plans of survey were submitted in relation to respective stages of subdivision, the question is whether conditions imposed in relation to, or relevant to, the stage in question have been or will be complied with at the time a certificate of title is created or registered. None of the conditions, including condition 11, expressly purport to relate to any specific stage of subdivision. Assuming, for the moment, that condition 11 is not, and will not at the relevant time be, complied with, the question is whether condition 11 is relevant to stages two and three of the subdivision within the meaning of s 145(4) of the PD Act.

4. The parties have referred the Tribunal to the decision in Darling Downs Estate Pty Ltd and Western Australian Planning Commission [2016] WASAT 76 (Darling Downs).  In Darling Downs the Tribunal, at [23] (the second instance of that paragraph number) stated:

   There have been submissions made to the Tribunal as to whether it is appropriate to apply the Newbury test to this particular proceeding under s 145 of the PD Act. It is the Tribunal's view that the Newbury test does not strictly apply to this exercise in the sense that we are not revisiting the correctness of the imposition of the conditions across the whole original subdivision approval.  However, the Tribunal considers that the Newbury test does inform the exercise required here under s 145 of the PD Act of what needs to be considered as to whether the subject conditions are relevant to this stage of the Darling Downs Estate, being Stage 1 is completed and Stage 2 is seeking approval, and whether there are any planning considerations that warrant refusal to endorse the Deposited Plan. Having said that, part of this exercise is to consider the correctness of the imposition of those conditions at this stage of the subdivision.

5. In earlier proceedings in this Tribunal between the applicant and the respondent, the Tribunal agreed with this aspect of the reasoning in Darling Downs:  Niroda No 1 at [94] ­ [96]. No party disputed the correctness of that position and the Tribunal therefore accepts what was said in Darling Downs referred to above without any further consideration.  Having said that, in the circumstances of this case, which are relevantly different to those before the Tribunal in Darling Downs, the Tribunal is satisfied that it is possible and appropriate to determine the relevance of condition 11 to the stages of subdivision in question by applying the ordinary meaning of that word.  In the circumstances before us, we do not consider that there is any need to use the 'Newbury test' as it was described in Darling Downs to 'inform the exercise' of whether the condition is relevant to the particular stages of subdivision.

6. The interveners submit that condition 11 reasonably relates to stages two, three and four of the subdivision on the basis that all of the lots in these stages lie within the 4.7kW/m² radiation contour (the Measurement Length) of the Main Line as it runs through the site.  The interveners assert that that the 4.7kW/m² contour line reflects the area within which individuals and property are at risk of serious injury or damage in the event of rupture of the Pipeline.  They further submit that lots in stage four and parts of stage three of the subdivision lie within the 12.6kW/m² radiation contour, which reflects the area within which exposure to thermal energy is likely to kill or seriously harm people within that area.

7. In its Statement of Issues Facts and Contentions (Exhibit 3) at para 28 the applicant states that '[s]tage 4 of the subdivision falls within the DBNGP Measurement Length and is therefore subject to condition 11[.]  In the same document (at para 48) the applicant asserts that as the lots in stages two and three fall outside of the DBNGP corridor, condition 11 'ought to be cleared', implicitly submitting that the condition is not relevant to these stages of the subdivision.

8. In its closing submissions, the applicant submitted that:

   … all of Stage 4 and a portion of Stage 3 falls within the 'kill zone' of the DBNGP.  Stage 2 and the remaining portion of Stage 3 are not captured by the DBNGP 'kill zone' … Accordingly, the Applicant's position is that the Tribunal is able to direct that the deposited plan for Stage 2 and the unaffected portion of Stage 3 be endorsed.

   (Applicant's outline of closing submissions dated 27 November 2019, para 7)

9. The respondent submits that as all of the lots within stages two and three fall within the 'injury zone' and some of the lots within stage three fall within the 'fatality zone' of the Pipeline, all of those lots are within sufficient vicinity of the Pipeline to be exposed to risks to people and property should there be any rupture of the Pipeline.  As such, condition 11 reasonably relates to both of those stages of the subdivision.

10. The concept of radiation contours comes from AS2885, which states (Exhibit 5, page 710):

    This Standard requires determination of the distances at which the thermal radiation from an ignited release of hydrocarbon has intensities of 4.7 kW/m2 and 12.6 kW/m2.

    NOTE: A thermal radiation level of 4.7 kW/m2 will cause injury, at least second degree burns, after 30 seconds' exposure.  A thermal radiation level of 12.6 kW/m2 represents the threshold of fatality, for normally clothed people, resulting in third degree burns after 30 seconds exposure.

11. Mr Jeffrey Kong is a chemical engineer who is currently an employee of DBNGP Nominees, who has worked on/with the Pipeline for fourteen years.  His roles within DBNGP Nominees have included Senior Risk and Safety Engineer, Technical Compliance Manager, and at the time of giving evidence to the Tribunal, Manager Asset Strategy. 

12. As part of his job, Mr Kong is responsible for the preparation of the safety case that the interveners are required to have in place in relation to the Pipeline.  The safety case is a formal assessment of hazards associated with the Pipeline, the risks potentially arising from those hazards and the means of mitigating those risks to the relevant standard; which is ALARP.  One of the tools used to assess hazards associated with the Pipeline is radiation contours, as they provide an indication of the areas within which injury and damage might occur in the event of catastrophic rupture of the Pipeline causing ignition of high pressure gas.

13. Mr Kong prepared plans showing the 4.72 kW/m² and the 12.6 kW/m² radiation contour lines from the Main Line and from the Loop Line overlaid on the plan of subdivision of the site in accordance with the method specified in AS2885:  Exhibit 15, Attachment JK3.  This evidence was not disputed.

14. It can be seen from the contour plans prepared by Mr Kong, particularly as viewed together with the subdivision stage plan (Exhibit 5, Attachment JK3 viewed with Exhibit 2, page 191), and it does not appear to be in dispute, that the stage four lots are completely contained within the 12.6 kW/m² radiation contour as calculated by Mr Kong.  Two lots within stage three have half of their area within that contour, three lots are entirely within the contour and the remaining lots fall almost entirely outside of the 12.6 kW/m² radiation contour.  The areas within stage three of the subdivision that fall outside of the 12.6 KW/m² radiation contour fall within the 4.7 kW/m² radiation contour.  All of the lots within stage two of the subdivision also fall within the 4.7 kW/m² radiation contour.

15. Mr Kong advised that he assumed that any fires caused by ignition of gas consequent upon a catastrophic rupture of the Pipeline in a location within the site could result in multiple fatalities because the subdivision will result in '11 dwellings being constructed within the 12.6 kW/m² heat impact radius':  Exhibit 15, para 87.  The reference to 11 dwellings seems to reflect the fact that there are 11 lots (of the lots encompassed by stages two, three and four of the subdivision) totally encompassed within the 12.6 kW/m² radiation contour, being the lots within stage four, and three of the lots within stage three, of the subdivision. 

16. In all of the SMS workshop reports relating to the subdivision of the site in evidence before the Tribunal, the threat of third party interference with the Pipeline by way of excavation machinery, auger intrusion or some other form of unintended penetration of the Pipeline wall is a recognised potential hazard that is assessed as part of the relevant safety assessment.  In the Delphi report, relied upon by the applicant in these proceedings, the particular potential threat of an 'excavator larger than 15T and up to 30T with tiger teeth or penetration teeth being used in an uncontrolled manner over the pipelines leading to an ignited rupture of one of the pipelines' (excavator threat) is identified as a credible threat:  see Exhibit 2, page 1348.

17. Mr Kleyweg initially disputed that the excavator threat was a credible threat in relation to this particular subdivision.  Mr Kleyweg is a civil and traffic engineering consultant with considerable experience with civil engineering contracts and he has specific knowledge of the area in which the site is located as his company is the company that was engaged to carry out all of the subdivision site works.  Mr Kleyweg is aware from his experience that the site is made up of sand and sandy clays that are not accompanied by significant areas of rock.  To his knowledge, large excavators (of 15T ­ 30T) are only used to excavate rock (see Exhibit 9, para 16(e); Exhibit 10, para 8.12; ts 71, 15 October 2019 and ts 71 ­ 72, 15 October 2019). However, Mr Kleyweg readily accepted, in cross­examination, that he is not an expert in safety or risk management and he does not have any experience operating 15T ­ 30T excavators:  ts 81, 15 October 2019.  He also accepted that 'for safety management purposes' this particular threat is a 'credible threat':  ts 85, 15 October 2019.

18. It must be noted that the recognition of the excavator threat as a credible threat does not equate to any estimate of the probability or likelihood of the threat occurring 

19. The Tribunal finds that there is a risk (putting aside for the moment the probability or likelihood of any such risk) of catastrophic rupture of the Pipeline caused by unintended penetration of the Pipeline wall because of the uncontrolled use of an excavator of the type identified in the Delphi report.  While the experts disagree as to what measures are required to mitigate the risk, there is no dispute in the evidence before the Tribunal, and the Tribunal finds, that there is a need to mitigate the potential for harm to people who will be brought into the vicinity of the Pipeline because of the subdivision.  The Tribunal also finds, based on Mr Kong's evidence, that lots within stages two, three and four are located within areas that, in the event of an catastrophic rupture of the Pipeline, are potentially affected by thermal radiation that could cause second or third degree burns leading to serious injury or death.

20. The applicant submits that condition 11 is only relevant to stage four of the subdivision because it is only lots within that stage that are within the area in which thermal radiation from ignited rupture of the Pipeline might be expected to die.  From a planning perspective, it is difficult to see any real distinction, for the purposes of relevance to a stage of subdivision, between a potential consequence of death and a potential consequence of serious injury.  The applicant did not articulate any reason why there is such a difference and we cannot ourselves find such a reason in the planning context raised by the question of whether condition 11 is relevant to stages two and three of the subdivision in this case.

21. The creation of residential type lots in stages two, three and four of the subdivision will introduce people into the vicinity of the Pipeline.  There is a risk of catastrophic rupture of the Pipeline as a result of the excavator threat.  Lots within stages two and three are contained within the 4.7kW/m² radiation contour.  People within lots in those stages are potentially exposed to serious injury in the event of catastrophic rupture of the Pipeline.  The preparation and implementation of a risk management/protection plan will address, amongst other things, mitigation of the excavator threat.  A condition that requires preparation and implementation of a pipeline risk management/protection plan is relevant to, and reasonably relates to stages two and three of the subdivision.

22. The Tribunal is satisfied that condition 11 is relevant to stages two and three of the subdivision of the site. 

Compliance with condition 11

1. Although the text of condition 11 has previously been produced, for ease of reference it is reproduced here:

   Prior to the commencement of subdivisional works, the landowner/applicant shall prepare and implement as part of the subdivisional works a pipeline risk management/protection plan in accordance with Planning Bulletin 87 High Pressure Gas Transmission Pipelines in the Perth Metropolitan Region.  (DBNGP (WA) Nominees Pty Ltd).

2. The applicant submits that condition 11 can be complied with by adopting and implementing the key findings as outlined in the Delphi report 'with some modification':  Applicant's Closing Submissions, para 8.  Or alternatively that the Delphi report 'forms the basis of a Pipeline Risk Management/Protection Plan that is capable of implementation' as modified by the recommendations of Mr Kleyweg: Applicant's Responsive Submissions, para 30.

3. The applicant also submits that it has completed a risk management plan that complies with condition 11, namely the 2015 PRMP (Applicant's Outline of Closing Submissions, para 9). 

4. The respondent and the interveners submit that the applicant has not prepared a pipeline risk management/protection plan as contemplated by condition 11 of the subdivision approval.  In essence, they assert that neither of the documents relied upon by the applicant is capable of meeting the description contained in the condition.  In addition, it is submitted that no plan as contemplated by condition 11 has been implemented and there is no sufficient evidence before the Tribunal that any such plan could be implemented. 

5. The fact that there is such a disparity between the parties in relation to whether or not the condition in question has been complied with is perhaps an indication of a lack of clarity in relation on the terms of the condition, but as the validity or otherwise of the condition is not before the Tribunal in these proceedings, that is not a question with which we can concern ourselves. 

6. Condition 11 states that the plan in question is to be in accordance with PB 87.  That planning bulletin is not a document that is expressly directed to the creation or content of a pipeline risk management and/or protection plan.  Its purpose is more general; to provide guidance on matters to be taken into account by the respondent and others in considering planning proposals in the vicinity of the Pipeline.  Reference to a pipeline risk management plan can be found in part 3 of PB 87.  In that part it is noted that proposals concerned with land inside the identified setback distances will need  to demonstrate that the risk from the pipeline is within acceptable levels consistent with 'AS2885 and EPA Guidance Statement 2':  Exhibit 2, page 493.  In part 5 of PB 87, under the heading 'Other considerations', there is a note that in addition to a pipeline risk management plan as referred to in part 3, there is also 'a requirement for a pipeline protection plan that details the precautions taken and processes used to implement the risk management plan mitigation measures and construction of the works': Exhibit 2, page 494.  In the appendix to PB 87, the two terms are defined as follows (Exhibit 2, page 501):

   Pipeline protection plan details the precautions taken and processes used to protect the pipeline during construction of the works and implement the risk management plan mitigation measures.

   Pipeline risk management plan, includes any risk assessments required and documents the mitigation measures and where they will be applied and sets out the timing and responsibility for the implementation of the mitigation measures, ongoing management measures, the cost of implementing the mitigation measures, both initial costs of construction and ongoing maintenance cost, and the responsibility for these costs.

1. The appendix to PB 87 is stated to provide '[p]lanning guidelines for proposals within the high pressure gas transmission pipeline setback distance'.  As part of this guidance, in the third part, which is headed 'Preparing a pipeline risk management plan (including a risk assessment)' (Exhibit 2, page 499) the following is stated: 

   The pipeline owner is required to operate and maintain the pipeline consistent with the requirements of their pipeline licence, regulated by DoIR.  This involves the assessment and management of risk consistent with the requirements of AS2885, which should establish that the level of risk should be low, negligible or as low as reasonably practicable, and that the level of individual fatality risk meets the relevant EPA criteria.

   The process for preparing a pipeline risk management plan is:

   a)The applicant should contact the pipeline owner as early as possible regarding the scope of the risk management plan and need for an AS2885 qualitative risk assessment and/or qualitative risk assessment of the subject proposal or application, and potential risk mitigation measures to facilitate development within the setback area.  The pipeline owner and the applicant should reach agreement at this stage on an appropriately qualified consultant to undertake the risk assessment, the process, information to be supplied by the pipeline owner and outcomes required to facilitate and ensure a comprehensive risk assessment in a timely manner.

   b)The responsibility to prepare the risk management plan and undertake the risk assessment lies with the applicant.

   c)The pipeline owner will provide the consultant with the information and access to relevant data necessary to complete the risk management plan and risk assessment.

   d)The risk assessment will determine which (combination) of the selected mitigation measures will reduce the level of risk to low, negligible or as low as reasonably practicable to meet the relevant EPA individual fatality risk criteria.  The findings of the risk assessment and the selected mitigation measures should be presented in a clear, precise and unambiguously worded report.

   e)The applicant should discuss the recommendations of the report and risk assessment with the pipeline owner and document the agreed mitigation measures and their area of application in the risk management plan, which should not be open to differing interpretations.  As a minimum the plan should document:

   •the mitigation measures;

   •the timing and responsibility for the installation of the mitigation measures;

   •any ongoing management measures;

   •the cost of implementing the mitigation measures, both initial costs of construction and ongoing maintenance cost; and

   •responsibility for these costs.

   f)Following endorsement by the pipeline owner the applicant should then forward the risk management plan as part of the planning proposal to the relevant planning authority.

2. Condition 11 refers to the preparation and implementation of 'pipeline risk management/protection plan'.  The text and grammar used in the condition indicate to us that the condition contemplates the preparation of a single document that meets the requirements of both a pipeline risk management plan and a pipeline protection plan as those things are defined in PB 87.  The condition requires the plan contemplated to be 'in accordance with' PB 87.  Other than to indicate what the documents are, and when they will be required, the only other information in PB 87 about either document is the information concerning the process of preparing a pipeline risk management plan contained in the appendix to PB 87.  We find that in order to be 'in accordance with' PB 87, the risk management aspect of the plan required by condition 11 must be prepared in accordance with the process specified in PB 87.

3. The executive summary states, and there is no dispute that, the Delphi report is a report that documents the 2019 SMS workshop.  It patently includes a report of a risk assessment carried out as part of the workshop and it makes recommendations about mitigation measures that should be used in order to mitigate the risks identified at the 2019 SMS workshop.  It includes some indicative costs for 'various mitigations' (see Exhibit 2, page 1346).  However, the Delphi report does not identify the mitigation measures that will be applied at the site, the timing of when the measures will be implemented or the initial or ongoing costs of the mitigation measures.  In addition, the Delphi report is not a pipeline risk management plan that was prepared in accordance with the procedures specified in PB 87.  In particular, it is not a plan that has received the endorsement of the pipeline owner. 

4. Mr Harris, who is the author of the Delphi report, stated that the Delphi report is not a 'pipeline risk management/protection plan' because it does not describe how the mitigation measures will be implemented:  Exhibit 12, para 4.2(a) and (b).  Mr Harris is an appropriately qualified chemical engineer with specialisation in, amongst other things, pipeline risk assessments.  The Tribunal takes comfort from Mr Harris' statement, which supports what the Tribunal has already observed.

5. The Tribunal finds that the Delphi report is not a pipeline risk management plan in accordance with PB 87.

6. The Delphi report does not purport to provide the details of the precautions that will be taken and processes to be used to protect the Pipeline during construction of the works required to implement stages two, three or four of the subdivision.  That is, while the Delphi report reflects a risk assessment process that was undertaken and the mitigation measures that are recommended to be undertaken, it does not identify what measures will be implemented.  The Tribunal is satisfied that the Delphi report is not a pipeline protection plan in accordance with PB 87.

7. Turning to the 2015 PRMP, that document is described on the title page as a 'Pipeline Risk Management Plan'.  The objective of the report is stated as (at page 4):

   This report has been prepared in order to assess the risk involved in construction of the subdivision [of the site].  The PRMP will calculate the individual risk and the required separation distance required from the gas pipelines to the housing envelopes and other sensitive areas.

8. In part 4 of the 2015 PRMP, the authors identify that the development of the site requires the construction of a number of roads and drainage swales and the introduction of relevant infrastructure into various locations within the Pipeline corridor.  There is no reference to anything similar to the excavation threat.

9. In part 5 of the 2015 PRMP the mitigation measures are described.  In particular, the report states 'KCTT propose the following mitigation strategies with relation to all works and infrastructure constructed within the pipeline corridor'.  The measures there listed relate specifically to the construction of roads, swales and infrastructure as part of the subdivision works.  In part 5.2, which is headed 'Continuing Management Measures' are the words 'To be confirmed'.

10. The 2015 PRMP focuses on the protection of the Pipeline during construction works.  It does not provide for any risk assessment in relation to risks to people brought to the site because of the subdivision.  It does not specify when mitigation measures will be implemented or the initial or ongoing costs or responsibility for those costs.  This report is not a pipeleine risk management report in accordance with PB 87.

11. Mr Kleyweg stated that he was an author of this document:  Exhibit 9 para 31.  He described the 2015 PRMP as 'the KCTT Road Pavement and Services Construction Pipeline Risk Management and Protection Plan'.  He stated that the 'measures stated in this document were agreed by [the interveners] for the construction of the assets in Northam Entrance as appropriate protection' for the Pipeline.  There is no evidence that the Pipeline owner endorsed the 2015 PRMP as a pipeline risk management plan for any broader purpose.

12. According to Ms Alice Margaret Austen Brown, a planner employed in the Department of Planning, Lands and Heritage (as it was called at the time of writing her witness statement) stated that it is her understanding that 'pipeline risk management plan' prepared by Mr Kleyweg's company 'KCTT' was prepared and used to 'address stage 1' of the subdivision:  Exhibit 22, para 17.

13. On its face, and the Tribunal so finds, the 2015 PRMP is not a complete document because the continuing management measures are '[t]o be confirmed'.

14. The Tribunal finds that the 2015 PRMP is not a pipeline risk management plan in accordance with PB 87.  We are not satisfied that this document is sufficient to establish compliance with condition 11 in relation to stages two, three and four of the subdivision.

15. The Tribunal finds that the applicant has not complied with condition 11 in relation to stages two, three and four of the subdivision, because a pipeline risk management/protection plan in accordance with PB 87 has not been prepared.

16. Even if we are wrong about whether the required plan has been prepared, we are not satisfied that any plan has been implemented or will be implemented at such a time that the Tribunal could be satisfied that condition 11 will be complied with at the time certificates of title for lots in stages two, three or four of the subdivision are created or registered.  This is for two reasons.

17. Firstly, condition 11 requires preparation of the relevant plan prior to commencement of subdivision works and implementation of the plan as part of subdivisional works.  As the applicant is, in these proceedings, seeking the approval of deposited plans for stages two, three and four of the subdivision, and to the extent that they assert all subdivision conditions have been or will be complied with at the time certificates of title are created or registered, plainly subdivision works associated with those stages must have been completed.  It is not now possible to prepare any plan prior to the commencement of the subdivisional works for these stages.

18. Secondly, the applicant asserts that to the extent that compliance with condition 11 is necessary, implementation of the pipeline risk management plan requires installation of concrete slabbing (with marker tape) having a thickness of 75 millimetres over that portion of the Main Line that is located within the site, as well as the installation of specified markers within, or on the boundary of, the Pipeline corridor:  see Applicant's Minute of Proposed Orders dated 15 October 2019. 

19. It is submitted by the respondent and the interveners that the carrying out of the works required to install the mitigation measures proposed by the applicant could not occur unless the Land Access Minister approved those works occurring pursuant to s 41 of the Dampier to Bunbury Pipeline Act 1997 (WA). This does not seem to be disputed by the applicant, and the Tribunal accepts, based on its review of the legislation, at least in relation to the proposed concrete slabbing, that this is likely to be correct. The only evidence about this topic is that given by Ms Brown who stated that 'in order to access the land to carry out any agreed works, the applicant would need to seek the approval of the Lands Access Minister to obtain access to the site': Exhibit 22, para 19. To the extent that it is a matter of evidence, the Tribunal accepts that evidence. There is no evidence before the Tribunal that any application for the approval of the State Land Access Minister for works associated with the implementation of condition 11 has been made or has been approved by that Minister.

Application of s 251(5) of the PD Act

1. In these proceedings, the applicant applies for a review of condition 11 pursuant to s 251(5) of the PD Act.

2. Section 251(5) of the PD Act provides:

   If the Commission refuses to endorse a plan or diagram of survey of a subdivision because a condition affixed to the approval of the plan of subdivision has not been complied with, an application under subsection (4) may include an application for a review of that condition.

3. In earlier proceedings in the Tribunal between the applicant and respondent, the question of the extent of the right of review conferred by s 251(5) of the PD Act was in dispute: Niroda No 1. The Tribunal there made the following statement (at [104]):

   … the Tribunal is of the view that the scope of a merits review (whatever that may lawfully allow) of a condition under s 251(4) and (5) of the PD Act is limited to whether the condition previously imposed, should, or needs to be complied with, at the time the Commission is requested to endorse its approval on a diagram or plan of survey.

4. The applicant states that it 'does not challenge the validity of condition 11', but rather submits that based on the evidence before the Tribunal, the Tribunal should determine that condition 11 is satisfied. Accordingly, the applicant proposes that the Tribunal 'make a decision which endorses approval of the deposited plans for stages 2, 3 and 4 and allows the applicant to take steps to install concrete slabbing over the [Pipeline]':  Applicant's Outline of Closing Submissions, para 15 and para 16.

5. The respondent also refers to the decision in Niroda No 1 with approval and does not ask the Tribunal in these proceedings to explore the correctness or otherwise of the proposition that the power in s 251(5) of the PD Act does not extend to a review of the validity of a condition of subdivision.

6. We note that when we refer to the validity of a condition, we use this as a short hand reference to the ability of the Tribunal, when conducting a merits review, to answer the question of whether, standing in the shoes of the original decision­maker, the Tribunal has power to impose the condition in question.  We are aware that the Tribunal 'does not have jurisdiction to engage in a judicial review and to pronounce, with any legal effect, on the validity of the acts of the decision makers whose decision it is called upon to review':  Caltex Australia Petroleum Pty Ltd and Town of Vincent [2010] WASAT 79; 72 SR WA 324, at [26]

7. The review of condition 11 is complicated in this case because it does not just raise for consideration whether a different means of compliance with the condition, other than that which the clearing agency demands, can be accepted as compliance with the condition.  Condition 11 cannot be complied with without the preparation of a pipeline risk management/protection plan that has been approved by the Pipeline owner.  It also cannot be complied with unless the Land Access Minister approves the carrying out of the works specified in the pipeline risk management/protection plan.  Although the applicant disputes the relevance of the condition to stages two and three of the subdivision, it does not submit that the condition is not necessary, or need not be complied with, at all.

8. Arguably, therefore, the applicant in essence seeks, at least in relation to stage four, that the Tribunal either vary the condition or set it aside and substitute a different condition. 

9. In circumstances in which the applicant is seeking the endorsement of the plans of subdivision of three stages, and where we have no evidence before us that the applicant will be able to carry out the works it says should be sufficient to comply with condition 11, it is difficult to understand how the condition may be varied to achieve what the applicant seeks.  The applicant did not ask the Tribunal to consider setting aside condition 11 and instead requiring the payment of an amount of money that reflected the works it says that the Tribunal should be satisfied is appropriate on the basis that this is all the expense it should have had to incur.  Although if the applicant had asked the Tribunal to consider this, we question whether that might have been, in substance, a challenge to the validity of condition 11 on the basis that the condition, as properly understood, required works that are not proportionate to degree of risk caused by the subdivision works. 

10. If the question we are being asked in the review under s 251(5) of the PD Act is whether or not, now, for the purposes of stages two, three and four of the subdivision, condition 11 still needs to be complied with, the Tribunal is satisfied that it does need to be complied with. The reasons for this are in substance the same as the reasons of the Tribunal as to the relevance of the condition to those stages of subdivision.

11. In circumstances where the applicant's proposal to subdivide the site potentially exposes people brought to the site because of the subdivision to the risk of a hazard, which if it eventuates could result in serious injury or death to those people, the Tribunal is satisfied that a condition that requires the preparation of a pipeline risk management/protection plan is a reasonable and appropriate planning outcome.  The Tribunal is not persuaded that there is no need, in general terms, to comply with a condition of that nature.

12. Stages two, three and four of the subdivision will cause lots to be created that will have the effect of bringing additional people onto the site.  More importantly, the lots in these stages are located within an area that, in the event of a catastrophic rupture of the Pipeline, will be exposed to thermal radiation capable of causing second or third degree burns. 

13. The Tribunal is satisfied that, for the purposes of risk assessment, relevant experts accept that the risk in question is a credible risk.  While we are not engaged in risk assessment, given the serious nature of the potential consequences, we are satisfied that for the purposes of considering whether condition 11 is a condition that should be complied with, it is sufficient that there is a risk posed by the excavator threat.  The Tribunal is satisfied that there is a risk of serious injury or death posed to people who will be brought to the site by stages two, three and four of the subdivision because of the vicinity of the lots in these stages to the Pipeline. 

14. We do not consider it to be the correct and preferable decision in this case to set aside condition 11 and require the deposited plans to be approved without the condition in place. 

15. Having regard to the issues before the Tribunal as agreed by the parties, this conclusion therefore means that the review under s 251(5) of the PD Act must, in this case result in the decision under review being affirmed.

16. However, the submissions made by the parties, and the majority of the evidence in these proceedings, has focused on what is necessary to reduce the excavator threat to ALARP. We consider it appropriate in the circumstances to consider whether the decision of the Commission should be affirmed, or alternatively should the condition should be varied or substituted in such a way that it can and will be complied with so that approval can and should be given to the endorsed plans for stages two, three and four of the subdivision. In considering these matters we keep in mind the nature of the review of a condition pursuant to s 251(5) of the PD Act.

17. The Tribunal in Niroda No 1 made comments (see Niroda No 1, at [93] and [103]) about the review right contained in s 251(5) of the PD Act which we understand to convey comments about when the discretion triggered by the review right might be expected to be exercised in an applicant's favour. We agree with the examples there contemplated, although we do not understand those examples to have been intended to reflect an exhaustive list.

18. The Tribunal has described the review of a condition pursuant to s 251(5) of the PD Act as not 'the same general right of review of a condition which arises under s 251(2) at the time of the initial subdivision': Niroda No 1, at [90]. Another way of expressing this would be to say that way in which the discretion available when reviewing a condition pursuant to s 251(5), which arises subsequent to an application for the review of a decision by the respondent to refuse to endorse its approval on a diagram or plan of survey is to be exercised, is not the same as that which arises upon review of a condition of subdivision approval pursuant to s 251(2) of the PD Act.

1. Relevant to the exercise of the discretion to review a condition under s 251(5) of the PD Act is whether the applicant availed itself of the reconsideration and review rights provided for as part of the statutory process for the subdivision of land contained in the PD Act: Niroda No 1, at [98] ­ [102].

2. In our view, it is also relevant, in this case, whether the applicant could, or should, have reasonably understood what measures would be required to be undertaken in order to comply with condition 11 at an earlier point so that it could reasonably have been expected to be able to avail itself of the reconsideration and review rights provided for before seeking endorsement of plans. 

3. It is apparent from the face of condition 11, read with the planning instrument referred to within it, what the condition requires.  However, the nature of the condition is such that it will not be until part of the condition is complied with, namely when the pipeline risk management/protection plan has been prepared, that the specific works required to be undertaken in order to comply with the other part of the condition, the implementation of the plan, can be fully known. 

4. In this case, condition 11 requires the preparation of the specified plan prior to the commencement of any subdivision works, and implementation of the plan as part of the subdivisional works.

5. The original subdivision approval for the Lot B38 Lakes Road (the site plus the land that became lots after stage one was completed), was dated 10 March 2015.  The Tribunal has no evidence before it on which it can form any view as to whether the applicant could or should have been able to make any enquiries of any person as to what works it might expect to have to carry out in order to comply with condition 11 once it received the subdivision approval.

6. The applicant submits that the fact that correspondence from the interveners prior to the time it obtained subdivision approval indicated that the interveners supported the subdivision is relevant to the Tribunal's determination of these proceedings.  The Tribunal accepts that the representatives of one or other of the interveners indicated to the applicant, prior to it obtaining subdivision approval, that it supported the proposed subdivision.  However, we do not see how the interveners' support for the subdivision impacts on whether the applicant could or should have reasonably availed itself of the right of reconsideration or review of any conditions of subdivision that it disputed.

7. The report from the 2015 SMS workshop identified three major accident event hazards (hazards which could result in multiple fatalities) which include two hazards that involve a type of third party interference with the Pipeline causing 'loss of containment from potential impact' resulting in either a leak or rupture of the Pipeline, depending on how the interference was caused:  Exhibit 2, page 909.  One of those hazards relates to the risk of third party interference by the use of excavators and similar machinery.  The report identifies the level of risk agreed at the workshop in relation to two types of third party interference with the Pipeline and indicates in a column for stating whether the risk is 'acceptable' the words: 

   Pending Action:  DBP to Coordinate ALARP Consideration Exercise by TBA

   (Exhibit 2, page 909)

8. In clause 12.2 of the 2015 SMS workshop report the actions that are to be undertaken in order to control or mitigate relevant risks are recorded.  It is also stated that 'DBP' will undertake the action related to the hazard of third party interference by excavation, auger or ripping is stated as 'NL2. Coordinate ALARP Consideration Exercise'.  It is apparent from the rest of the report that 'NL2' is a numbering system.  The report indicates that the date by which this action will occur is 'TBA [to be advised]':  Exhibit 2, page 912.

9. At least by November 2015, when the SMS workshop was conducted, it was, or should have been, apparent that the measures required to mitigate the excavator threat would be specified by one of the interveners.  However, the works that would be specified by the interveners was, at this stage, not apparent. 

10. By October 2015 the applicant had commenced subdivisional works: see Exhibit 2, page 1392.

11. The Tribunal accepts that the relevant clearing agency cannot dictate to the Commission as to whether a condition has been complied with. Section 145 of the PD Act provides that it is the Commission that is required to be satisfied that conditions are complied with before it endorses its approval on a plan or diagram of survey.

12. The statutory scheme for subdivision approval incorporates consultation requirements where a plan of subdivision may affect the functions of a local government, public authority or utility services provider: s 142 of the PD Act. The Commission is required to have regard to any recommendations received in response to that consultation: s 143(1) of the PD Act.

13. In this context, in our view, where a condition that is subject to review pursuant to s 251(5) of the PD Act, is one that might affect the functions of a local government, a public authority or a utility service provider, the views of the relevant body will be relevant to the determination of the review.

14. In this case the views of the interveners are, in summary:

    a)the threat or hazard in question is one that potentially impacts residents of lots in stages two, three and four;

    b)the consequences of the hazard, if it eventuates, are catastrophic; and

    c)it considers that nothing short of replacement of the Main Line pipe with a 'no rupture' or thicker walled pipe is sufficient to reduce the hazard in question to ALARP, which is the appropriate level of hazard reduction before the lots in stages two, three and four are created.

15. Another factor relevant to the exercise of the discretion in this case is the nature of the condition in question and what it is directed at achieving.  If one sets aside, for the moment, the requirement for the pipeline risk management/protection plan to be in accordance with PB 87, it is patent that the condition seeks to ensure that appropriate risk assessment occurs and any necessary mitigation measures identified by that assessment are implemented.

16. The Tribunal has evidence from five witnesses in relation to the issues of the appropriate risk assessment and the measures necessary to reduce the risk posed by the excavator threat to ALARP.  Those witnesses were Mr Kleyweg, Mr Harris, Mr Phillip Venton, Ms Marina Karyagina and Mr Kong.

17. The applicant submits that the Tribunal should prefer the evidence of Mr Harris, Mr Venton and Mr Kleyweg to the others.  It asserts that witness statements of Mr Kong and Ms Karyagina influenced 'by the exegesis of litigation' because of the way in which their 'reports' were prepared.  The Tribunal has in evidence before it witness statements in the usual form from Mr Kong and Ms Karyagina.  When questioned about the preparation of their statements, the witnesses indicated that solicitors had assisted them to prepare their evidence but that the evidence contained was their evidence:  ts 258 ­ 263 and 279, 17 October 2019.  Mr Kong was questioned about when he formed relevant views and who he talked about matters the subject of his evidence prior to making his witness statement:  ts 293 ­ 297, 17 October 2019.  The answers given by Mr Kong and Ms Karyagina, and their evidence overall, did not indicate to us that their evidence was not their own or that their opinions were not truly held.  We found Mr Kong and Ms Karyagina to be forthright witnesses who appeared at all times to be doing their best to assist the Tribunal.

18. Mr Harris is a chemical engineer with over 32 years of experience in the oil and gas, mining, chemical and water industries.  He has extensive experience in facilitating pipeline risk assessment workshops. 

19. Mr Venton has been involved in the design, construction and operation of high pressure gas pipelines since 1974.  One of his particular areas of experience, as indicated on his curriculum vitae, is pipeline risk assessment.

20. Mr Kleyweg is, as we have already said, a qualified civil engineer with considerable experience in civil engineering contracts.  He does not claim to be an expert in the field of safety and risk management of major hazard facilities:  ts 81, 15 October 2019.  Mr Kleyweg does  have some experience in the design of measures to protect high­pressure pipelines, as he has had some five or six civil contracting projects where there was a need to consider and obtain approval for works involved with the construction of a road crossing over a high pressure pipeline:  ts 80, 15 October 2019.

21. The Tribunal observed Mr Kleyweg to be a forthright witness who appeared at all times to be doing his best to assist the Tribunal.  However, with no disrespect intended to Mr Kleyweg, he has limited experience, and is certainly not a specialist in relation to risk assessments relating to high pressure gas pipelines, the analysis of the frequency of a particular risk in accordance with AS2885 and consideration of what is required in to mitigate a risk to ALARP.

22. Mr Kong and Ms Karyagina were of the opinion that in order to reduce the risk to ALARP it is necessary to replace the Main Line with thicker walled pipe.  Mr Harris and Mr Venton were of the opinion that it would be sufficient to use concrete slabbing (of the standard the interveners generally approved when it approved the use of concrete slabbing, which is 100 millimetres thick) to reduce the risk to ALARP rather than replace the pipelines.  Having said that, both Mr Harris and Mr Venton initially stated that both the replacement of the pipeline and the provision of concrete slabs are options for mitigating the risk:  see Delphi report and Exhibit 13, para 39.

23. In his responsive statement Mr Venton stated that in his experience concrete slabs used to protect pipelines were typically 75 millimetres to 100 millimetres thick:  Exhibit 14, para 5.  Mr Kleyweg stated that the depth of the thickness of concrete slabbing does not materially impact the performance of concrete as a measure to protect the pipeline and at 75 millimetres thickness removal of the concrete protective layer would only occur if a person was wilfully seeking to do so:  Exhibit 9, para 16.16(d).

24. In the joint statement of conferral, Mr Kong, Ms Karyagina, Mr Venton Mr Harris and Mr Kleyweg all agreed that the Main Line requires additional protection and that the relevant risk (that is the excavator threat) needs to be reduced to the level that is ALARP:  Exhibit 18, para 1.  There is some disagreement between various witnesses as to the frequency that should be ascribed to the risk when carrying out a risk assessment; whether it is a remote or hypothetical risk.  However, Mr Harris explained that the allocation of frequency did not change the need to carry out an analysis of determining what is required to reduce the risk to ALARP in accordance with the standard:  ts 140, 16 October 2019. 

25. Mr Harris accepted that replacement of the Pipeline increases the level of protection against the risk, but in his experience pipeline operators are prepared to accept the level of reduction of the risk by using concrete slabbing:  ts 139, 16 October 2019.

26. Upon questioning, Mr Harris and Mr Venton accepted that heavy wall pipe would reduce the risk to ALARP, so long as the cost of doing so is not grossly disproportionate:  ts 145 - 146 and 150, 16 October 2019.  The reference to the cost of the mitigation measure arises because AS 2885 provides that ALARP does not require a measure to be taken where there is a gross disproportion between the size of the risk averted and the cost of averting it:  Exhibit 5, page 748.

27. All of the witnesses agreed that replacement of the Mainline with no rupture pipe would eliminate the risk:  ts 313 ­ 314, 17 October 2019.

28. During the hearing it became apparent that Mr Kleyweg's conclusions about the lack of credibility of the threat posed to the Pipeline by a large excavator was based on a number of assumptions, including how people who might be living in the future lots might behave, what types of works might require a large excavator, who would be able to hire a large excavator and that the person operating the excavator in question would be competent to do so:  see ts 76 ­ 77, 84 and 88 ­ 90, 15 October 2019.  We are not satisfied that any of those assumptions are established on the evidence before us.  On this basis we do not place any significant weight on Mr Kleyweg's opinion on how unlikely it would be for the risk in question to actually eventuate.  We note that Mr Kleyweg accepted that his company, KCTT, used excavators of 15T or more within the site while filming what became Exhibit 19 and on another occasion:  ts 97, 15 October 2019.

29. It also became clear that Mr Kleyweg based his conclusion that a 75 millimetre concrete slab would work as effectively as a 100 millimetre slab in terms of mitigating the risk in question based on his observation of a video (Exhibit 19) in which a person operated an excavator and did things to three different thickness concrete slab pieces and applying his years of experience as a civil engineer:  ts 184, 88 - 89, 15 October 2019.  No formal experiment where an excavator operator was not aware of the presence of a concrete slab was performed:  ts 92, 15 October 2019.  We are not satisfied that Mr Kleyweg's opinion in relation to the thickness of any concrete slabbing should be given any significant weight.  We consider that we should give less weight to Mr Kleyweg's opinions in relation to what is necessary to reduce the risk to ALARP in accordance with AS2885 to the opinions of the other expert witnesses who are more experienced in this particular area.

30. Having regard to this evidence, and for the reasons which follow, we consider that the correct and preferable determination of the review under s 251(5) of the PD Act in this case, is to affirm the decision of the respondent to refuse to endorse the plans of survey on the basis that condition 11 has not been complied with.

31. We are satisfied that the risk in question, that is the risk to future residents of the site from a large (15T ­ 30T) excavator with penetrating or tiger teeth causing an ignited rupture of the pipeline, is a credible risk for the purposes of risk assessment in accordance with AS2885.  Given the gravity of the consequences of the excavator risk eventuating we are satisfied that it is appropriate to have regard to the excavator risk on the basis that all of the experts agree that it is a credible risk for the purposes of risk assessment.

32. Lots within stages two, three and four are located within the area in which, if a catastrophic rupture were to occur, could cause serious injury or death to people present in those lots.  The relevant standard that applies to the Pipeline, AS2885 requires risks to be reduced to ALARP. 

33. The evidence of Mr Kong, Ms Karyagina, Mr Harris and Mr Venton shows that very experienced and well­qualified experts in the area of risk assessment and what is required to reach the standard of ALARP in accordance with AS2885 can, and in this case do, differ, even when those experts have their opinions thoroughly challenged and their assumptions questioned. 

34. The notion of ALARP in accordance with AS2885 is not a precise, concrete thing.  There is no clear definition of what is 'grossly disproportionate' and the experts disagreed in relation to how one applies that concept in the risk assessment process.

35. The interveners have very strict statutory and licence obligations that require it to ensure that all risks are reduced to ALARP.  It has an obligation to satisfy the relevant Minister that it has identified the measures necessary to reduce all risks to ALARP and that it ensures those measures are taken. 

36. The mitigation measure that Mr Harris and Mr Venton consider would constitute reduction of the risk to ALARP would involve the placement of concrete slab over the Main Line over a considerable distance.  The undisputed evidence of Ms Karyagina is that this would cause difficulty in accessing the Main Line:  Exhibit 16, para 73.

37. The only realistic way it would be possible to vary or substitute condition 11 so as to allow for endorsement of the deposited plans for stages two, three and four consequent to these proceedings would be to convert the condition into a requirement to make a payment to the interveners equal to the cost of implementing the mitigation measures that the applicant proposes.  This is because it is not possible to carry out any works in the Pipeline corridor without the approval of the Land Access Minister, and there is no evidence that the Land Access Minister would allow the carrying out of the works proposed by the applicant.

38. The wording of condition 11 expressly indicates that the preparation of the pipeline risk management/protection plan is to occur at a very early stage in the subdivision process.  It is required to be prepared prior to the commencement of subdivision works.  It also requires a risk management plan that is approved by the Pipeline owner.

39. The 2015 PRMP did not deal with the excavator threat.  There was no pipeline risk management plan that contemplated the excavator threat prepared prior to the commencement of subdivision works, which had commenced by no later than October 2015.

40. At least by November 2015, when the 2015 SMS workshop occurred, the applicant knew that one or other of the interveners would be determining what constituted ALARP in relation to the excavator risk.

41. The views of the interveners are not unreasonable or patently inconsistent with the expert evidence.  Mr Harris, Mr Venton and Ms Karyagina considered that replacement of the Main Line with thick­wall pipe to be an appropriate mitigation measure, with the only issue between them being whether the cost of that measure was grossly disproportionate.  Mr Harris considered that either thick­wall pipe or concrete slabbing to be appropriate mitigation measures to respond to the excavator threat.  All of the experts agreed that thick­wall pipe would eliminate the risk arising from the excavator threat.

42. In all of those circumstances we consider that we should give very considerable weight to the interveners' views or advice in relation to what is required.  

43. The Tribunal finds that the applicant did not avail itself of the earlier rights of review of condition 11.  On its terms, the works required by condition 11 would not be understood until the required risk management/protection plan had been prepared.  It should have been apparent that the works contemplated by the plan would have to be approved by the Pipeline owner.  The condition requires the risk management/protection plan to be in accordance with PB 87.  That document describes the process for preparation of a risk management plan as including approval by a Pipeline owner.  The degree of uncertainty as to what works might be required by the Pipeline owner was patent when condition 11 was affixed to the subdivision approval.

44. The pipeline risk management/protection plan was required to be prepared prior to any subdivisional works occurring.  While a plan was prepared in August 2015 it did not address the risk arising from excavator threat.

45. The orders sought by the applicant do not accord with the mitigation measures considered appropriate by any of the expert witnesses. 

46. While Mr Kleyweg had an opinion about the thickness of the concrete slab that could be used, he said nothing about the appropriateness or otherwise of reducing the extent of concrete slabbing to just within the site, as opposed to the area of the site and the Measurement Length of the Pipeline, as specified in the Delphi report.  The applicant does not address the other mitigation measure recommended in the Delphi report, that is, increased surveillance of the Pipeline corridor in the area of the site.

1. The Tribunal considers that the correct and preferable decision in this review of condition 11 pursuant to s 251(5) of the PD Act is that the decision of the respondent to refuse to endorse the plans of survey for stages two, three and four of the subdivision on the basis that condition 11 has not been, and will not at the time a certificate of title is created or registered be, complied with.

Orders

The Tribunal orders:

1.The application for review of condition 11 of the subdivision approval dated 10 March 2015 in relation Lot B38 Lakes Road, North Dandalup is dismissed.

2.The decision of the Western Australian Planning Commission made on 9 October to refuse to endorse Deposited Plan 411970 and Deposited Plan 411971 is affirmed.

3.The deemed refusal of the Western Australian Planning Commission to endorse Deposited Plan 414362 is affirmed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

MS L EDDY, SENIOR MEMBER

1 JULY 2020

Attachment A