O'Brien & Anor and City of Cockburn
[2008] WASAT 240
•16 OCTOBER 2008
| JURISDICTION | : | STATE ADMINISTRATIVE TRIBUNAL |
| STREAM | : | DEVELOPMENT & RESOURCES |
| ACT | : | PLANNING AND DEVELOPMENT ACT 2005 (WA) |
| CITATION | : | O'BRIEN & ANOR and CITY OF COCKBURN [2008] WASAT 240 |
| MEMBER | : | MR D R PARRY (SENIOR MEMBER) MR P DE VILLIERS (SENIOR SESSIONAL MEMBER) |
| HEARD | : | 17 APRIL 2008, 22 APRIL 2008, 23 APRIL 2008, 29 APRIL 2008 AND 30 APRIL 2008 - FURTHER EVIDENCE AND SUBMISSIONS FILED 11 JUNE 2008, 23 JUNE 2008, 27 JUNE 2008 AND 4 AUGUST 2008 |
| DELIVERED | : | 16 OCTOBER 2008 |
| FILE NO/S | : | DR 334 of 2007 |
| BETWEEN | : ROBYN O'BRIEN |
MURRAY O'BRIEN
Applicants
AND
CITY OF COCKBURN
Respondent
WATER CORPORATION
Intervenor
[2008] WASAT 240
Catchwords:
Town planning - Structure plan - Residential development - Advertising - Whether proposed structure plan should be advertised - Whether proposed structure plan is consistent with orderly and proper planning - Whether structure plan area is within the 'buffers' to the Woodman Point Wastewater Treatment Plant - Significance of odour/pollution buffer in local planning strategy - Whether definition of 'buffer area' applies to 'buffers' - Whether odour/pollution buffer in local planning strategy has been 'prescribed' by the local government - Odour - Extensive history of odour from Woodman Point Wastewater Treatment Plant affecting locality including structure plan area - Measures to achieve 50% reduction in odour levels being implemented - Whether proposed structure plan is premature prior to completion of measures, modelling and ground-truthing
Legislation:
City of Cockburn Town Planning Scheme No 3, cl 2.1.1, cl 5.2.5, cl 6.2.3,
cl 6.2.4, cl 6.2.6, cl 6.2.6.4, cl 6.2.7, cl 6.2.8.1, cl 6.2.9, cl 6.2.16.1, Sch 11
Environmental Protection Act 1986 (WA), s 16(e)
Planning and Development Act 2005 (WA), Pt 14
State Administrative Tribunal Act 2004 (WA), s 37(3)
Result:
Advertising of Munster DA5 (Development Zone) Local Structure Plan refused
Category: B
Representation:
Counsel:
| Applicants | : | Mr S A Walker (hearing), Self-represented |
(submissions), Mr M Swift (Acting as
Agent) (submissions in reply)
| Respondent | : | Mr D W McLeod with Mr I D McLeod |
| Intervenor | : | Mr P McQueen with Ms R Somerford |
Solicitors:
| Applicants | : | Self-represented |
| Respondent | : | McLeods |
| Intervenor | : | Lavan Legal |
[2008] WASAT 240
Case(s) referred to in decision(s):
Nil
[2008] WASAT 240
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
1 Mr and Mrs O'Brien sought review by the State Administrative
Tribunal of the City of Cockburn's refusal to advertise a structure plan to enable residential development in the Munster locality on the eastern shore of Lake Coogee. In order for the structure plan to be advertised, the Council or the Tribunal on review must be of the opinion that the structure plan is consistent with orderly and proper planning.
2 The Tribunal determined that the structure plan is not consistent with
orderly and proper planning. The local planning scheme says that the area is to provide for residential development 'except within the buffers to the Woodman Point [Wastewater Treatment Plant]' which is the largest wastewater treatment plant in the State, currently treating the equivalent of 48 Olympic-sized swimming pools of wastewater a day. Substantially, the whole of the structure plan area is within the buffers to the wastewater treatment plant.
3 Furthermore, although odour upgrade works are currently being
undertaken at the wastewater treatment plant to reduce odour by 50%, the Environmental Protection Authority has advised that the current buffer should be retained until after the completion of these works and subsequent modelling and ground-truthing. The technical odour evidence presented to the Tribunal supported this advice. Until the outcome of this process is known, the structure plan proposing residential development is premature and contrary to orderly and proper planning.
The Tribunal therefore refused to allow the structure plan to be
advertised.
Introduction
5 These proceedings involve an application brought by Mr and Mrs O'Brien, pursuant to cl 6.2.16.1 of the City of Cockburn Town Planning Scheme No 3 (TPS 3 or Scheme) and Pt 14 of the Planning and Development Act 2005 (WA), for review of the failure of the City of Cockburn (City or Council) to advertise or require Mr and Mrs O'Brien to advertise the Munster DA5 (Development Zone) Local Structure Plan (proposed structure plan) within the required time period under cl 6.2.8.1 of TPS 3.
6 The proposed structure plan covers an area of approximately
25.8 hectares in the Munster locality on the eastern shore of Lake Coogee,
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approximately 26 kilometres south of the Perth central business district. The proposed structure plan area comprises 23 freehold lots, including Mr and Mrs O'Brien's property, predominantly between 0.1 hectare and 2.3 hectares in size, which are used for residential, rural residential, market gardening and horticultural purposes. A plan showing the location of the proposed structure plan area is Attachment A to these reasons.
7 The proposed structure plan area is zoned 'Development' under
TPS 3, the object of which is to 'provide for future residential, industrial or commercial development in accordance with a comprehensive Structure Plan prepared under the Scheme'. The Zoning Table in the Scheme states that development and use of land in the Development zone is to be in accordance with an approved structure plan prepared and adopted under cl 6.2.9 of the Scheme. Furthermore, the proposed structure plan area comprises a Development Area (DA5) shown on the Scheme Map, and cl 6.2.4 of TPS 3 generally precludes the Council from considering a recommendation for subdivision or approving development of land within a Development Area unless there is a structure plan for that area or for the relevant part of that area.
8 The purpose of the proposed structure plan is to enable the
subdivision and development of the relevant area in the form of 225 residential lots, ranging in density from R10 to R30, as well as public open space, conservation area and roads.
9 Clause 5.2.5 and cl 6.2.7 of TPS 3 enables a landowner to prepare a
proposed structure plan and submit it to the Council. Clause 6.2.8.1 of
TPS 3 states, in part, as follows:Within 60 days of preparing or receiving a proposed structure plan that conforms with clause 6.2.6 and complies with the Scheme (or such longer time as may be agreed in writing between the owner who submitted the proposed structure plan and the local government), the local government is to:
(a) advertise, or require the owner who submitted the proposed structure plan to advertise, the proposed structure plan for public inspection … (underlined emphasis added; emphasis in bold and italics original)
Subclause 4 of cl 6.2.6 states as follows:
A proposed structure plan must, in the opinion of the local government, be consistent with orderly and proper planning. (emphasis in bold original)
[2008] WASAT 240
11 The sole issue in this case is whether the proposed structure plan is
consistent with orderly and proper planning and, therefore, in conformity with cl 6.2.6 of TPS 3. If the answer is yes, then the proposed structure plan must be advertised in accordance with cl 6.2.8.1 of TPS 3. If the answer is no, then the proposed structure plan may not be advertised in accordance with that provision.
12 The proposed structure plan area is located across Lake Coogee and
approximately 500 metres to 700 metres east of the Water Corporation's Woodman Point Wastewater Treatment Plant (Woodman Point). The Water Corporation (Corporation) was granted leave, under s 37(3) of the State Administrative Tribunal Act 2004 (WA), to intervene in the proceedings 'in relation to matters related to the existence and impact of the odour buffer surrounding Woodman Point'.
13 Woodman Point is the largest wastewater treatment plant in
Western Australia and currently services the southern metropolitan urban/industrial catchment of 460 square kilometres bounded by Midland/Kalamunda to the east, Byford to the south and the Indian Ocean to the west. This catchment has a current population of approximately 600,000 which is expected to double by 2045. Woodman Point has a current nominal capacity of 160 million litres of raw wastewater per day and treats about 120 million litres per day, equating to about 48 Olympic-sized swimming pools. Woodman Point will need to be expanded to a capacity of 240 million litres per day in order to cater for the anticipated population increase by 2045. Furthermore, sewers and other downstream assets are being designed and constructed so that Woodman Point can be expanded to accommodate a flow of 320 million litres per day later this century.
14 The determination of whether the proposed structure plan is
consistent with orderly and proper planning turns on the relationship between the proposed structure plan area and Woodman Point under the local planning framework and the odour impact of Woodman Point on the residential development contemplated by the proposed structure plan. Before addressing these issues, the Tribunal will briefly survey the relevant background including historical odour problems associated with the operation of Woodman Point affecting the locality in general and the proposed structure plan area in particular.
Background
15 In 1963, the Woodman Point site was reserved for 'Public Purposes -
Water Authority of WA' under the Metropolitan Region Scheme (MRS).
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The plant was constructed in 1966, providing primary treatment with a nominal capacity of 36 million litres per day. In 1984, a new larger primary treatment plant, with a nominal capacity of 125 million litres per day, was constructed to meet the wastewater treatment needs of the southern metropolitan region to 2001, then predicted to have a population of 415,000. However, as noted earlier, the population now within the relevant catchment is approximately 600,000 and is expected to double by 2045.
16 In 1995, the Corporation released its long-term strategy for
wastewater treatment and effluent disposal through to the year 2040 for the metropolitan region and Mandurah. It identified the catchment area of Woodman Point as the fastest growing in terms of wastewater servicing and earmarked the plant for further significant expansion. In December 1998, the Corporation submitted its Public Environmental Review to build a new Munster Pump Station No 3 within the plant site and to extend the Bibra Lake Main Sewer to accommodate the ultimate capacity of the southern Perth catchment of 320 million litres per day.
17 Until January 1997, the area on the eastern side of Lake Coogee,
bounded generally by Beeliar Drive to the north, Rockingham Road to the east and Coogee Road and Frobisher Avenue to the south, including the proposed structure plan area, was zoned 'Rural' under the MRS. On 17 January 1997, the bulk of this area was rezoned 'Urban' under the MRS and an approximately 100 metre to 200 metre strip along the eastern shore of Lake Coogee, which is now substantially the proposed structure plan area, was rezoned 'Urban Deferred'. In approving this rezoning, the Minister for Planning advised the Corporation and other submitters as follows:
It should be noted that the land within the Urban Deferred Zone should not be construed as being suitable for future residential development. Rather, future use is to be compatible with the location of land within the Waste Water Treatment Plant Buffer Zone or the Minister for the Environment's conditions of development as appropriate.
18 In April 1999, the Department of Environmental Protection issued
the Corporation with a works approval to expand the nominal capacity of Woodman Point to 160 million litres per day and increase the level of treatment to advanced secondary standards with odour controls. These works were completed in 2003 at a cost of approximately $150,000,000. Odour control works included covering the inlet and primary tanks and replacing the large open sludge drying beds with
[2008] WASAT 240
mechanical dewatering. Redundant sludge beds were then
decommissioned and removed.19 In September 1999, the City prepared its Local Planning Strategy (LPS) for the then draft TPS 3. Clause 1.1 of the LPS states that it supports and is to be read in conjunction with TPS 3. Clause 1.2.2 of the LPS states that it is particularly pertinent for 'providing the planning context for … statutory provisions contained in the town planning scheme' and that it 'will become a central part of the scheme, being a consideration the Council will have to have regard to in making planning decisions, and will carry significant weight in planning appeals'.
20 Clause 4.8.6 of the LPS states that 'a major issue within Cockburn
relates to the presence of a number of industrial and utility-based buffers' including a 466.6 hectare Corporation buffer for Woodman Point. The clause states:
These buffers are depicted on Figure 18 and place a range of constraints on land use within the areas affected, depending on the nature and purpose of the buffer.
21 Figure 18 of the LPS, which is entitled 'City of Cockburn
development constraints', shows an 'odour/pollution buffer' surrounding Woodman Point including substantially all of the proposed structure plan area. The contour of this odour/pollution buffer on the eastern side of Lake Coogee is substantially the same as the line separating the 'Urban' zoned land from the 'Urban Deferred' zoned land under the MRS amendment made in January 1997. Consistently with the Minister for Planning's indication in approving the MRS amendment, cl 4.11.1 of the LPS states:
The Woodman Point plant has a substantial odour buffer which currently represents a constraint to residential subdivision in the Munster locality east of Lake Coogee.
22 Figure 4 of the LPS, which is entitled 'City of Cockburn Future
Urban Areas', excludes the area on the eastern side of Lake Coogee that is within the Woodman Point buffer from identified future urban areas.
TPS 3 was gazetted on 20 December 2002. Clause 2.1.1 of TPS 3 states as follows:
Except to the extent that the [LPS] is inconsistent with this Scheme, determinations of the local government under the Scheme are to be consistent with the [LPS]. (emphasis in bold original)
[2008] WASAT 240
24 As noted earlier, the proposed structure plan area comprises
Development Area DA5 under the Scheme. Clause 6.2.3 of TPS 3 requires that the development of land within a Development Area is to comply with Sch 11 of the Scheme and that the subdivision and development of land within a Development Area is to generally be in accordance with any structure plan that applies to the land.
Schedule 11 of TPS 3 contains the following specific provision in relation to Development Area DA5:
To provide for residential development except within the buffers to the Woodman Point WWTP, Munster Pump Station and Cockburn Cement. (underlined emphasis added)
26 TPS 3 does not define the term 'buffers' and does not contain a
depiction of 'the buffers to the Woodman Point WWTP'. TPS 3 contains a
definition of 'buffer area' which means:An area that has been prescribed by the local government or other competent Government Agency around land and buildings which because of the nature of their use may generate pollution within which sensitive uses are either restricted or prohibited.
27 For reasons discussed below, having regard to the requirement in
cl 2.1.1 of TPS 3 for determinations under the Scheme to be consistent with the LPS, and the statements in the LPS that it serves to provide planning context to statutory provisions in TPS 3 and is intended to become a central part of the Scheme in the making of planning decisions, the Tribunal considers that 'the buffers to the Woodman Point WWTP' referred to in Sch 11 of TPS 3 is the buffer depicted on Figure 18 of the LPS and referred to in the LPS provisions set out earlier. For reasons also discussed below, if the definition of 'buffer area' applies to the term 'buffers' in relation to Development Area DA5 in Sch 11 of TPS 3, then the buffer depicted on Figure 18 of the LPS has been relevantly 'prescribed' by the Council under TPS 3 in the form of the LPS, because cl 2.1.1 of TPS 3 requires determinations under the Scheme to be consistent with the LPS.
28 In September 2003, the Corporation produced a report entitled
'Statewide Buffer Review, Woodman Point WWTP, Final Report' in fulfilment of a condition of the works approval referred to earlier. The report was based on an extensive programme of odour sampling at the plant undertaken in summer/autumn of 2003. The report showed that whilst the odour impact had been significantly reduced, there were still
[2008] WASAT 240
high odour emissions to the east of the buffer contour depicted on
Figure 18 of the LPS.29 Mr Keith Cadee, an engineer and the General Manager of the
Water Technologies Division of the Corporation, gave evidence that, as a result of the findings of the 2003 report, the Corporation was concerned that high odour emissions still existed beyond the buffer. Consequently, the Corporation engaged Dr Ian Wallis to undertake further modelling so as to ascertain the extent of the odour impacts. Dr Wallis is an environmental engineer with 30 years' experience, of which 20 years has been in air quality studies, including modelling the extent of odour around wastewater treatment works. Dr Wallis' report confirmed that there were unacceptable emissions beyond the buffer. Dr Wallis' report recommended that the buffer should be retained and that the Corporation would need to undertake odour control works at Woodman Point.
30 The Corporation submitted Dr Wallis' report to the Environmental
Protection Authority (EPA). On 8 March 2004, the Minister for the Environment sought the EPA's advice, under s 16(e) of the Environmental Protection Act 1986 (WA) (EP Act), on the work undertaken at Woodman Point and the buffer requirements for the plant. Specifically, the Minister requested:
The EPA's advice with respect to the nature and extent of the buffer required for the plant, taking into account relevant odour standards and consideration of the adequacy of the Corporation's approach to odour management.
31 On 31 October 2005, the Department of Environment issued the
current licence under the EP Act to the Corporation to operate Woodman Point. The licence is effective from 1 November 2005 to 31 October 2010. The conditions of the licence require that, by 1 October 2006, the Corporation must develop an Odour Improvement Plan in consultation with the community and submit it to the Director. The conditions require that the Odour Improvement Plan should aim to:
(i) initially reduce Odour Emissions, which are currently modelled to be 297,100 OU/s, by at least 50% within three years;
(ii) provide further reductions beyond three years, to ultimately achieve an ambient odour level of five odour units (or as otherwise approved by the Director) at the nearest odour sensitive premises; and
(iii) develop strategies to resolve any residual land-use conflicts surrounding the premises in the event that (ii) cannot be achieved.
[2008] WASAT 240
32 The Corporation commenced work on its Capital Investment
Programme in 2006. Mr Cadee explained that the objectives of this programme are:
• to achieve an acceptable level of odour in existing residential areas beyond the buffer; • to increase the solids treatment capacity of the plant to cater for further population increases; and • to improve asset condition, which will further reduce odour emissions.
33 The programme is to be conducted in three stages. Stage 1 is
currently underway and is expected to be completed by the end of this year. The cost of this work is in excess of $61,000,000. Mr Cadee considers that Stage 1 will be sufficiently completed by the end of October 2008 to achieve the 50% reduction in odour emissions required by the condition of the operating licence.
34 The Corporation predicts that Stage 2 works, which are expected to
cost about $11,000,000, would reduce odour emissions by an additional 6% beyond the 50% required by the licence, relative to the level of odour emissions prior to the Stage 1 works. The Corporation is a State-owned entity and largely relies on the Department of Treasury and Finance for its capital works funding. While Stage 2 is within the Corporation's current five year plan, this is subject to annual review and requires specific budgetary allocation. Mr Cadee anticipates that a budgetary allocation is likely to be made for the Stage 2 works and that they are likely to be commenced in 2010/2011.
35 Mr Cadee said that, upon completion of Stage 2, the Corporation
may implement Stage 3 odour control works, if odour impacts beyond the buffer are still at an unacceptable level in existing residential areas. Stage 3 is not currently part of the Corporation's five year plan and Mr Cadee considers that these works could not be commenced until, at the very earliest, 2014. Stage 3 works are currently expected to cost in excess of $70,000,000.
36 Mr Cadee conceded in cross-examination that, 'by and large', the
Corporation receives from Government what it requests, and that it has not sought funds from the Government to do more than has been required by the licence. However, the Tribunal finds that Mr Cadee's estimated time frame for the carrying out of Stages 2 and 3 is realistic, having regard to the term of the current operating licence to 31 October 2010, the
[2008] WASAT 240
budgetary processes involved and the time required to physically carry out
large scale engineering works.
In November 2006, the EPA provided its report and recommendations under s 16(e) of the EP Act to the Minister for the Environment in the form of Bulletin 1240 (Bulletin 1240). The EPA's advice included the following:
(a)
there are significant issues with the technical accuracy of Water Corporation's odour sampling and modelling;
(b)
current odour management is not adequate and fails to meet the goal of no impact at odour sensitive premises;
(c)
the current proposed buffer should be retained until after the implementation of Stage 1 measures, which are to achieve a 50% odour reduction, after which further emissions estimates, modelling and ground-truthing should be undertaken to determine the extent of odour impact and a long term buffer reconsidered;
(d)
further odour reduction measures beyond the 50% reduction are likely to be necessary to meet the goal of no impact at odour sensitive premises at residential areas;
… (g)
the EPA cannot recommend an appropriate, technically defensible long term buffer at this stage; ...
Odour problems from operation of Woodman Point
38 The evidence shows an extensive history of odour problems and
complaints concerning the operation of Woodman Point including in relation to its effect on the proposed structure plan area. Mr Allen Blood, a town planner employed by the City for 12 years and its Manager Planning Services for the past seven years, referred to 'a history of the area surrounding [Woodman Point] being affected by odours from the plant'. The EPA advised in Bulletin 1240 that 'current odour management is not adequate and fails to meet the goal of no impact at odour sensitive premises'. There are, literally, voluminous documentary records of complaints to the Corporation during the period from 2003 to 2008 which are in evidence.
39 However, in order to appreciate the extent of odour impacts that have
affected the proposed structure plan area, it is adequate to refer to submissions and complaints made by Mr and Mrs O'Brien to the EPA and to the Minister for the Environment which were produced by the
[2008] WASAT 240
Department of Environment and Conservation in accordance with an order made by the Tribunal at the request of the Corporation.
In their submission to the EPA for the purposes of the s 16(e) EP Act review dated 23 December 2005, Mr and Mrs O'Brien stated as follows:
• 'We are badly affected by odour which the Corporation freely admit.' • 'The entire community and ourselves have already suffered odours for the past three years and before even this …' • 'Only odour controls stop odours from being released in breach of the Act. Only odour controls will stop us smelling poo and stink almost every day.' • 'We personally suffer quite bad odour as we are nearest the plant, and respectfully request that the Corporation be compelled to abide by its commitments …' • 'We live within 650 metres of the plant to the east. We suffer foul odours many times a week sometimes for over an hour at a time. We and any guests have to go inside, close our doors and windows and stop any outside entertaining or leave our pool area until the odour is stopped.' • 'I have included a few letters from these residents showing their frustration at being unable to get a reduction in odour, and also their complaints are passed off and nothing is done. This is why people do not complain. It is not because there were no complaints as Ian Wallace [sic] asserts, but complaints were made and not recorded, and complaints were said to be unverified (but this is by the Corporation so is this believable [?]). People did complain but eventually gave up because they were always told that there was no smell, or that the plant was operating within its parameters.'
In a submission to the Minister for the Environment dated 6 July 2006, Mr and Mrs O'Brien stated that:
We have been suffering odour emissions for years, have made many complaints for years and in 2004 presented a petition from the community of 467 signatures to the EPA, Dr Cox who sent it on to the DOE. Yet the DOE do not issue a pollution abatement notice, a fine, put amendments in the plant licence or prosecute the Corp for their air pollution. Why?
42 Mrs O'Brien has also made incident complaints to the EPA.
For example, an incident report dated 10 April 2006 records the following:
[2008] WASAT 240
Woodman Point Waste Water Treatment Plant is causing strong odour that is stinging Ms O'Brien's nostrils. The situation has been ongoing for about six weeks, and Ms O'Brien has reported to the Water Authority and also to WPWWT. On Saturday night when she contacted them at 23:15 because the odour was so strong she had to close all her house doors, they called back on Sunday morning and advised that the odour was not reading high on their system.
43 Although Mrs O'Brien denied in evidence that she said that the
situation had been ongoing for about six weeks, the Tribunal finds it probable that she did speak these words in her telephone complaint to the EPA, because they have been recorded as part of a contemporaneous business record. Furthermore, a complaint made by Mrs O'Brien to the Corporation on 21 March 2006 confirms her earlier complaint and corroborates an ongoing problem. An EPA officer visited Mr and Mrs O'Brien's property on 10 April 2006 and confirmed that he was able to detect an offensive odour from time to time from the plant, depending on the wind. The officer also noted in the report that the Corporation advised that there were no abnormal operations occurring at the plant at the time of the complaint.
Mrs O'Brien's last complaint to the EPA was on 16 February 2007. The incident report on that occasion includes the following description of the incident:
Odour from Woodman Point smells like sewage. Mrs O'Brien had come home at around 11:55 hours and noticed the smell. She said that she was not going to phone Water Corp because they never admit to having had any problems. …
45 Shortly after Mrs O'Brien's February 2007 incident report to the
EPA, in March or April 2007, Mr and Mrs O'Brien approached Mr Michael Swift, a consultant town planner, to prepare the proposed structure plan. In light of the extensive history of odour problems and complaints, and given that the Stage 1 works have not yet been completed, the Tribunal infers that the lack of complaint by Mr and Mrs O'Brien since February 2007 is due to the preparation and advancement of the proposed structure plan, rather than to improvements in odour control at Woodman Point.
Mrs O'Brien gave the following sworn evidence to the Tribunal:
We do not suffer the odours the Corp say we do. In 1990 we didn't, in 1993, 1996, 1999, 2003 we didn't. In late 2004 and 2005 we did have odour issues and complained. The Corp had allowed its plant to accept waste above its designed capacity and sometimes in peak periods like
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weekends and at peak flow times of the day, the amount treated was too
great for the plant and equipment to cope with.The Corp has undertaken extensive maintenance programs since 2005 and in 2006 and 2007 we have not had any odours above any unacceptable level.
47 Having regard to Mr and Mrs O'Brien's submissions to the EPA and
to the Minister for the Environment, Mrs O'Brien's incident complaints, the EPA's advice in Bulletin 1240 and the significant number of complaints to the Corporation, the Tribunal does not accept Mrs O'Brien's evidence that odour problems were restricted to 2004 and 2005.
48 Furthermore, Dr Wallis, who gave evidence on behalf of the
Corporation, said that, in his experience, 'for each complaint there's probably 20 to 50 people who are affected who don't complain'. This observation is generally consistent with Mr and Mrs O'Brien's statement in their submission to the EPA that many people do not complain although they are seriously affected by odour emissions.
49 Finally, the Tribunal notes that while the Corporation's records show
ongoing complaints from the area to the east of the plant, according to Mr and Mrs O'Brien seven out of 29 (24%) in 2006 and seven out of 36 (19%) in 2007, the area to the east of the plant is relatively sparsely populated.
50 The Tribunal, therefore, finds that there are ongoing odour problems
from the operation of the plant affecting the locality, including the
proposed structure plan area.
Is the proposed structure plan consistent with orderly and proper planning?
51 The planning expert witnesses, Mr Blood, who gave evidence on
behalf of the Council, and Mr Swift, who gave evidence on behalf of Mr and Mrs O'Brien, agree that 'there is no prescribed buffer relating to [Woodman Point] for the purposes of TPS 3'. They also agree that 'there is evidence of intent for an informal or inferred buffer, but which was intended to be the subject of a formal buffer definition study'. This evidence appears to assume that the definition of 'buffer area' in TPS 3 applies to the expression 'the buffers to [Woodman Point]' in Sch 11 of TPS 3. It also incorporates and discusses terms, such as 'prescribed buffer', 'informal buffer' and 'inferred buffer', that are not used in the local planning framework. Although the Tribunal usually allows town planning expert witnesses to seek to assist it in relation to the meaning and application of expressions in planning schemes and policies, the Tribunal
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was not assisted by the somewhat confusing discussion of this issue by the
town planners.52 The definition of the term 'buffer area' does not relevantly apply.
Schedule 11 of TPS 3 uses the words 'within the buffers to [Woodman Point]', not 'buffer area'. Clause 2.1.1 of TPS 3 requires that determinations under the Scheme are to be consistent with the LPS, except to the extent that the LPS is inconsistent with the Scheme. On Figure 18 and in the text referred to earlier, the LPS clearly identifies the proposed structure plan area as within the buffers to Woodman Point. This is not inconsistent with the Scheme. To the contrary, it is consistent with the intent of Sch 11 not to provide for residential development within the buffers to Woodman Point and with the aims of TPS 3 which are to:
(a) ensure that development and the use of land within the district complies with accepted standards and practices for public amenity and convenience; (b) ensure that the future development and use of land within the district occurs in an orderly and proper way so that the quality of life enjoyed by its inhabitants is not jeopardised by poor planning, unacceptable development and the incompatible use of land. (emphasis in bold original)
53 The identification of the buffers to Woodman Point in the LPS
ensures that odour sensitive residential development does not occur within these buffers, thereby promoting public amenity, and that future development occurs in an orderly and proper way so that the quality of life enjoyed by inhabitants is not jeopardised by poor planning and the incompatible use of land. As Dr Wallis said in answer to a question from Mrs O'Brien during the hearing, 'we should be able to arrange land uses in such a way that people living in urban areas are not adversely affected by wastewater treatment plants or industrial operations'. This is precisely why the LPS identifies the relevant buffers consistently with Sch 11 of TPS 3.
54 Mr Swift suggested that Figures 25 and 27 of the LPS indicate that
the proposed structure plan area is not within the buffers to Woodman Point. Figure 25, which is entitled 'City of Cockburn Major Planning Issues', ignores not only the buffer but also Woodman Point itself. Figure 27, which is entitled 'City of Cockburn Ultimate Strategic District Plan', is a very broadbrush plan distinguishing between urban, rural, wetland, industrial, water resource and other strategic land use categories. It identifies both the proposed structure plan area and Woodman Point as 'urban'.
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55 Figures 25 and 27 of the LPS do not cast any doubt on the clear and
unambiguous identification of the proposed structure plan area as within the buffers to Woodman Point on Figure 18 and in the text referred to earlier. Figure 25 entirely ignores the State's largest wastewater treatment plant. Figure 27 shows the plant itself as 'urban' and consequently the depiction of the proposed structure plan area as 'urban' has no significance.
56 It is common ground that Figure 18 of the LPS does not appear in the
online version of that document. Mr Blood explained that the plans are not on the Internet because, at the time the LPS was published, there were technical restrictions on capacity. The City apparently has only one complete copy of the LPS which, Mr Blood said, is part of the City's library and 'is referred to regularly by the strategic planning staff in their day-to-day work'. This copy is also available to members of the public who ask to see it. In contrast, Mr Swift considered that, because there is only one complete copy of the LPS, 'it's highly unlikely that this document is used in day-to-day decisions by the various planning officers in the City in making decisions'. Mr Swift noted that the City's officers had not requested the full copy of the LPS during three or four months while it was held by the City's solicitors in preparing for the hearing.
57 The Tribunal prefers Mr Blood's evidence over Mr Swift's evidence
in relation to the extent to which the LPS is referred to by the City's officers. Mr Blood has been employed by the City as a town planner for the past 12 years and as Manager Planning Services for seven years. He should know whether the LPS is referred to. Of course, the utility and significance of the LPS will depend on the particular application or proposal under consideration. It may not be material in relation to some matters. However, it is material and directly in point in relation to the proposed structure plan. In any case, cl 2.1.1 of TPS 3 requires the Tribunal to refer to the LPS and, indeed, to make its decision consistent with the LPS.
58 However, it is most unfortunate that a full copy of the LPS is not
available online. The City should scan the LPS and publish it fully online
as a matter of priority.59 It follows that the proposed structure plan area is within the buffers
to Woodman Point for the purposes of Sch 11 of the Scheme. The specific provision in Sch 11 excludes residential development within the buffers to Woodman Point. The structure plan is therefore not consistent with orderly and proper planning.
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60 Furthermore, even if the definition of 'buffer area' applies to the
expression 'the buffers to [Woodman Point]' in Sch 11, the buffers are relevantly 'prescribed' by the Council under TPS 3 in the form of the LPS. As determinations under the Scheme are to be consistent with the LPS, the identification of the relevant buffers in the LPS involves prescription by the Council under the Scheme. Therefore, even if the definition applies, the proposed structure plan is not consistent with orderly and proper planning.
61 Finally, if the definition of 'buffer area' applies to the expression
'the buffers to [Woodman Point]' in Sch 11 of TPS 3, and even if the buffer area is not technically 'prescribed' under TPS 3 in the form of the LPS, the Tribunal accepts Mr Blood's evidence that, having regard to cl 2.1.1 of TPS 3 and the depiction and identification of the buffer around Woodman Point in the LPS, 'to advance the draft [structure plan] in the circumstances would be inconsistent with the [LPS], contrary to cl 2.1.1, and therefore inconsistent with orderly and proper planning'. Ultimately, the proposed structure plan is not consistent with orderly and proper planning because it proposes residential development within the odour/pollution buffer surrounding Woodman Point depicted in the LPS.
62 Mr Swift said that, in conducting a 'due diligence exercise' as to
whether to recommend the lodgement of the proposed structure plan, he reviewed the LPS online, but he had not seen or heard any reference to Figure 18 of the LPS prior to receiving Mr Blood's witness statement. However, as noted earlier, Figure 18 is specifically referred to in the text as depicting the buffers identified in cl 4.8.6 of the LPS, including a 466.6 hectare buffer to Woodman Point. Furthermore, cl 4.11.1 of the LPS states that 'the Woodman Point plant has a substantial odour buffer which currently represents a constraint to residential subdivision in the Munster locality east of Lake Coogee', which is plainly a reference to the proposed structure plan area.
63 A careful review of the LPS prior to the lodgement of the proposed
structure plan could and should have alerted Mr Swift and Mr and Mrs O'Brien to what is a fundamental planning obstacle to the proposed structure plan; namely, the buffer affecting the proposed structure plan area.
64 Contrary to Mr and Mrs O'Brien's submission, the LPS is to be given
significant weight in the determination of this review. TPS 3 requires the Tribunal's decision to be consistent with the LPS and the LPS provides context to the provisions of the Scheme and is, as it says, 'a central part of
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the [S]cheme, being a consideration the Council will have to have regard to in making planning decisions, and will carry significant weight in planning appeals'.
It follows that the proposed structure plan is not consistent with orderly and proper planning.
66 The proposed structure plan is also not consistent with orderly and
proper planning having regard to the odour evidence. Significantly, the
EPA advised the Minister for the Environment in Bulletin 1240 that:The current proposed buffer should be retained until after the implementation of Stage 1 measures, which are to achieve a 50% odour reduction, after which further emissions estimates, modelling and ground-truthing should be undertaken to determine the extent of odour impact and a long term buffer reconsidered. …
The EPA cannot recommend an appropriate, technically defensible long term buffer at this stage.
67 The 'current proposed buffer' is the buffer that has been consistently
shown in the planning framework since at least January 1997 and includes
the proposed structure plan area.68 Dr Wallis' evidence supports the EPA's advice. Dr Wallis considers
that the Stage 1 odour upgrade will achieve a 50% or greater reduction in odour emissions. However, based on modelling and experience, Dr Wallis considers that the 50% reduction in odour emissions may not contain odours to within the existing buffer and will not have the effect of reducing the size of the buffer required. Accordingly, the residential development contemplated by the proposed structure plan will still be within the area experiencing odour impacts.
Dr Wallis said that:
When further odour control works are carried out and a comprehensive odour monitoring and modelling is carried out, it may be feasible to reduce the buffer zone in the future. On the other hand, it may turn out that the buffer zone cannot be reduced in the area of the proposed residential development in the proposed structure plan.
70 Dr Wallis also said that, in his experience, 'it is important to take a
reasonable but precautionary approach in defining the buffer zone for a major treatment facility as there is very little flexibility to reverse the situation if a mistake is made and the buffer zone becomes too small'.
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71 Mr and Mrs O'Brien did not call evidence from a qualified odour
expert. Rather, they sought to rely on two reviews of Dr Wallis' previous report which made certain criticisms. Mr and Mrs O'Brien's counsel, Mr S A Walker, and Mrs O'Brien herself, cross-examined Dr Wallis at length. In their written submissions, Mr and Mrs O'Brien also referred to a draft report, apparently prepared by university students, which the Tribunal did not allow into evidence
72 The Tribunal accepts Dr Wallis' evidence referred to earlier.
Dr Wallis is an independent, well qualified and experienced witness. His evidence is consistent with the advice of the EPA. He answered each of the criticisms made in the two reviews. Furthermore, as the authors of the reviews were not available to be tested, the Tribunal can place only minimal weight on those documents. Finally, Dr Wallis criticised the predictions made in those documents as overly optimistic. The Tribunal agrees with Dr Wallis that it is important to take a reasonable but precautionary approach in relation to a structure plan that contemplates a significant increase in residential population in an area that has been historically subjected to odour impacts.
The EPA's advice to the Minister for the Environment contains an appropriate and proper course of action. After the completion of Stage 1, further emissions estimates, modelling and ground-truthing should be undertaken to determine the extent of odour impact and the long-term buffer reconsidered. Only at that point can an appropriate, technically defensible long-term buffer be determined. The identification of the long-term buffer needs to take into account not only the odour reduction measures undertaken and to be undertaken, but also the likely significant increase in wastewater to be treated at Woodman Point over the course of this century.
74 There was much debate at the hearing as to whether the proposed
structure plan is consistent with orderly and proper planning in circumstances where its final consideration may have to be held in abeyance for a period after advertising has taken place. However, this debate misses the point. The proposed structure plan is inconsistent with orderly and proper planning, having regard to the odour evidence, not because of the time involved in the process advised by the EPA, but because the formulation of the structure plan in the first place should be informed by the outcome of that process. The process will indicate whether the buffers shown on Figure 18 of the LPS will move and, if so, in which direction and to what extent. The structure plan proposing
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residential development in the proposed structure plan area is premature
until the outcome of the process is known.75 The fact that the proposal before the Tribunal is merely to advertise
the proposed structure plan does not warrant a different result. Clause 6.2.8.1 of TPS 3 requires conformity with cl 6.2.6, including that the proposed structure plan must be consistent with orderly and proper planning (cl 6.2.6.4), before advertising of the structure plan can take place.
Mr and Mrs O'Brien rely on the following evidence of Mr Swift:
In my opinion a decision can only be properly made at such time as the approval agencies have all relevant information before them, and that TPS 3 stipulates a process of early notification to [the Western Australian Planning Commission] of a proposed Structure Plan followed by formal consultation, agency referrals and assessment as the means of ensuring an informed ultimate decision under [cl] 6.2.6.4. The alternative, of the decision being made incrementally at several stages/times during the statutory procedures, is untenable and inappropriate. This is because town planning is (most) often about balancing the strategic intent for any given area with the merits and detrimental impacts of any given proposal, all of this in the context of the assessment of the detail[ed] design of the proposal.
77 However, TPS 3 itself requires a determination by the Council of
whether a proposed structure plan is consistent with orderly and proper planning in order for the proposed structure plan to be advertised. Certainly, if a proposed structure plan is advertised, the Council will need to again assess whether it is consistent with orderly and proper planning after the advertising process and having regard to all of the information then available, including submissions received. However, if Mr Swift were correct, the Council would be, in effect, obligated to advertise any structure plan proposed by a landowner, no matter how inconsistent with orderly and proper planning it might be, with the consequence that the threshold consideration under cl 6.2.8.1 of TPS 3 would be rendered nugatory.
78 Furthermore, the Tribunal does not consider that the process required
by the Scheme is 'untenable and inappropriate'. Given that a proposed structure plan is a strategic planning document that can be prepared by an owner without any request or requirement by the Council, it is eminently sensible and appropriate for there to be a filter within the Scheme requiring an assessment by the Council of consistency with orderly and proper planning before a proposed structure plan can be advertised.
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79 Finally, Mr Swift expressed the opinion that a determination by the
Tribunal under cl 6.2.6.4 at this time, whether positive or negative, would be premature given the absence of other information important to the decision. Similarly, Mr and Mrs O'Brien submitted that a determination about orderly and proper planning cannot be made at this early stage without access to all of the facts and issues that will in due course result from the statutory consultation and assessment process. They submitted that the 'perhaps ironic or paradoxical consequence' of making a decision about orderly and proper planning at this stage is that the Tribunal would not have access to the information that would be obtained through advertising about whether the proposal is consistent with orderly and proper planning.
80 However, the Tribunal has sufficient information to determine
whether or not the proposed structure plan is consistent with orderly and proper planning. The Scheme contemplates that two separate assessments of consistency with orderly and proper planning will potentially be made in relation to a proposed structure plan; one at the advertising stage and one at the ultimate consideration stage, if the proposed structure plan is advertised. As discussed, it is sensible and appropriate for the Scheme to impose a filter on advertising where a landowner can submit a proposed structure plan, which is a strategic planning instrument, to the local government without any request or requirement of the local government.
It follows that the proposed structure plan is inconsistent with orderly and proper planning.
Conclusion
82 The Tribunal has determined that the proposed structure plan is
inconsistent with orderly and proper planning. In consequence, the
proposed structure plan may not be advertised under the Scheme.83 The application for review should be dismissed and a decision
| substituted for the deemed refusal that the proposed structure plan may not be advertised. |
| Orders |
The Tribunal makes the following orders:
1. The application for review is dismissed.
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2. The deemed refusal by the respondent to allow the Munster DA5 (Development Zone) Local Structure Plan to be advertised is set aside and a decision is substituted that the structure plan may not be advertised.
I certify that this and the preceding [84] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR D R PARRY, SENIOR MEMBER
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