OMSB PTY LTD and SHIRE OF ASHBURTON - [2025] WASAT 24

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION:   OMSB PTY LTD and SHIRE OF ASHBURTON [2025] WASAT 24
MEMBER:   JUDGE H JACKSON, DEPUTY PRESIDENT
HEARD:   30 AND 31 JULY 2024 WITH ADDITIONAL WRITTEN SUBMISSIONS RECEIVED 30 AUGUST 2024 AND 9 SEPTEMBER 2024
DELIVERED          :   18 MARCH 2025
FILE NO/S:   DR 189 of 2023
DR 28 of 2024
DR 29 of 2024
DR 30 of 2024
DR 31 of 2024

BETWEEN: OMSB PTY LTD
Applicant
AND
SHIRE OF ASHBURTON
Respondent

Catchwords:

Planning and development - Reserved land - Application for review of notice issued under the Planning and Development Act 2005 (WA) to cease use of land - Whether direction to cease use of land invalid because use valid - Whether use falls within scope of previous development approval - Whether use falls with Scheme exemption from need for approval - Use permitted by development approval identified by definition incorporated from local planning scheme - Proper construction of development approval - Role, if any, of extrinsic documents, including planning scheme, in construction of approval - Incidental use - Whether decommissioning of offshore gas infrastructure incidental to loading and unloading of cargo ships - Fact and degree - Nature of activities undertaken - Nature and extent of offsite amenity impacts - Application for review of refusal to grant retrospective development approval for works only - Application made without prejudice - Whether the works require approval - Application for installation of sub-surface liner - Cut and fill - Whether works constitute development - Degree of physical alteration of the land - Degree of permanence of the alteration - Fact and degree - Conditions on which retrospective development approval should be granted - Costs - Application for costs of three proceedings not pursued - Whether respondent behaved unreasonably - Whether applicant has incurred additional costs - Costs refused

Legislation:

Environmental Protection Act 1986 (WA)
Environmental Protection (Noise) Regulations 1997 (WA)
Interpretation Act 1984 (WA), s 44(1)
Land Administration Act 1997 (WA), s 41, s 46
Marine and Harbours Act 1981 (WA), s 9
Planning and Development Act 2005 (WA), s 4, s 214, s 256, s 257B
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, cl 1, cl 60, cl 61(2)(h), cl 72, cl 73, cl 77
Shire of Ashburton Local Planning Scheme No. 7, cl 3.2.1, cl 3.2.2, cl 5.1.1, cl5.13, cl 5.3.1(b), cl 5.3.1(k)
Shire of Ashburton Local Planning Strategy, s 3.2.2, s 3.4.3.3
State Administrative Tribunal Act 2004 (WA), s 25(2)
State Administrative Tribunal Regulations 2004 (WA), reg 8(3)

Result:

DR 30 of 2024:
The application for review is dismissed

DR 31 of 2024:
The decision of the respondent to refuse the application for approval is set aside and substituted with a decision to grant approval subject to conditions

In each of DR 189 of 2023, DR 28 of 2024 and DR 29 of 2024:

The written direction issued to OMSB Pty Ltd pursuant to s 214 of the Planning and Development Act 2005 (WA) on 22 February 2024 is set aside.
Pursuant to s 46(1) of the State Administrative Tribunal Act 2004 (WA) the applicant has leave to withdraw the proceeding and the proceeding is withdrawn.
The applicant's application for costs is dismissed and there is no order as to costs.

Category: B

Representation:

Counsel:

Applicant	:	Mr G Donaldson SC and Mr C Fisher
Respondent	:	Ms B Moharich

Solicitors:

Applicant	:	McLeod Fisher & Hamdorf
Respondent	:	Moharich & More

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

Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; (2013) 195 LGERA 182
Australian Unity Property Limited as Responsible Entity for The Australian Unity Diversified Property Fund v City of Busselton [2018] WASCA 38
Aznavour v City of Mandurah (2002) 124 LGERA 173
BDL Cable & Electrical Co Pty Ltd v Brighton CC [1990] 72 LGRA 227
Bright Image Dental Pty Ltd v City of Gosnells [2018] WASCA 134
City of Gosnells v Reid [2024] WASCA 155
City of Springvale v Heda Nominees Pty Ltd (1982) 57 LGERA 298
City of Swan v All Earth Group Pty Ltd [2021] WASC 279
City of Swan v Investments (WA) Pty Ltd [2011] WASC 17; (2011) 181 LGERA 228
City of Swan v Taylor [2005] WASCA 88
City of Swan v West Australian Shalom Group Inc [2017] WASC 217
Claude Neon v City of Perth [1983] WAR 147
Danni and Town of Cambridge [2023] WASAT 123
D'Orazio Enterprises and City of Stirling [2012] WASAT 219
Eclipse Resources Pty Ltd v Kieran McNamara, Chief Executive Officer, Department of Environment and Conservation [No 2] [2012] WASC 264
Forrest v City of Busselton [2024] WASC 478
G & G Corp Asset Management Pty Ltd and Presiding Member, Metropolitan East Joint Development Assessment Panel [2018] WASAT 9
GMF Contractors Pty Ltd and Shire of Serpentine-Jarrahdale [2006] WASAT 353; (2006) 48 SR (WA) 1
House of Peace Pty Ltd v Bankstown CC (2000) 106 LGERA 440
Kennedy Holdings WA Pty Ltd and JCO Investments Pty Ltd and City of Subiaco [2015] WASAT 82
Lake Macquarie City Council v Australian Native Landscapes Pty Ltd (No 2) [2015] NSWLEC 114
Lizzio v Ryde Municipal Council (1983) 155 CLR 211
Major Holdings and Presiding Member of the Metro Inner-South Joint Development Assessment Panel [2023] WASAT 97
Merri Creek Quarry Pty Ltd v Foletta (1951) 82 CLR 347
Northcote Food Wholesalers Pty Ltd v Northcote City Council (1994) 84 LGERA 54,
Owners of the Ship 'Shin Kobe Maru' v Empire Shipping Co Inc [1994] HCA 54; (1994) 181 CLR 404
Pacific Seven Pty Ltd v Knox City Council (1993) 11 AATR 325
Reid v City of Gosnells [2023] WASC 48
Reid v WAPC [2016] WASCA 181
Shell Co of Australia Ltd v Parramatta City Council [No 2] [1972] 1 NSWLR 483
Shire of Murray v IVO Nominees Pty Ltd Ltd [2020] WASCA 45
Teissier v City of Rockingham [2014] WASC 158, 75
Terra Spei Pty Ltd and Shire of Kalamunda [2015] WASAT 134
UWA v City of Subiaco (1980) 52 LGRA 360
Van der Feltz v City of Stirling [2009] WASC 142; (2009) 167 LGERA 236
Western Australia v Ward (2002) 213 CLR 1; (2002) 76 ALJR 1098
Winn v Director General of National Parks and Wildlife and Ors [2001] NSWCA 17; (2001) 130 LGERA 508

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

These proceedings concern the use and development of part of the land known as the Beadon Creek Boat Harbour, which is located on the outskirts of Onslow.
The applicant (OMSB) has used the subject land as an 'offshore marine support base' (hence its name) since 2014 pursuant to a development approval issued in that year.
In late 2023 it commenced works in preparation for a large 'campaign' involving the decommissioning of offshore gas infrastructure associated with Chevron's operation on Thevenard Island.
In short, very large offshore structures (having been broken down somewhat to be placed on ships) were to be (and have been) transported to the subject land where they would be further broken down (by another entity) before being further transported.
In late 2023, the respondent (Shire) issued a direction to OMSB to stop the carrying out of certain works preliminary to that campaign - the installation of a sub-surface liner and associated bund to help protect the land/groundwater from contamination/pollution.
In early 2024, the Shire issued three other directions, including one which required the cessation of the activity of breaking down the offshore structures. It also refused an application (made without prejudice) for retrospective development approval of the works undertaken to install the sub-surface liner.
Each of the four notices, and the decision to refuse retrospective development approval was the subject of applications for review but much of that complexity fell away ahead of the hearing and, in the end, there were only three issues for determination:
(a)whether the activity of breaking down the offshore gas infrastructure requires approval or whether it falls within the scope of the 2014 development approval or some other exemption;
(b)whether retrospective development approval is required for the works undertaken to install the sub-surface liner; and
(c)if the second question is answered in the affirmative, and where the Shire accepts that an approval should be issued if it is required, what conditions should be imposed on that approval.
For the reasons that follow, I am of the view that approval is required for both the 'breaking down' activity and the works undertaken to install the sub-surface liner. The conditions to which the sub-surface liner should be subject are described in more detail below.

The Subject Land and its Non-Planning Controls

The subject land in each of the proceedings is referred to as Lot 13. It forms part of Lot 561 on Deposited Plan 174170.[1]
[1] Crown Land Title LR3005, Folio 958: Respondent's Section 24 Bundle of Documents (RBOD), pages 886 - 887.
The part of Lot 561 constituted by Lot 13 was identified by OMSB at the hearing by reference to a lease. Before turning to that lease it is necessary to first identify that:
(a)Lot 561 adjoins Beadon Creek, which is a waterway connecting to the Indian Ocean near Onslow; and
(b)Lot 561 is within an area of land vested in the Minister for Transport, as a body corporate, under s 9 of the Marine and Harbours Act 1981 (WA).[2]
[2] Applicant's Supplementary Bundle of Documents (ASBD), pages 1 - 2.
Lot 561 is also designated as a reserve (No. 30711) for 'harbour purposes' under s 41 of the Land Administration Act 1997 (WA) (LAA).
By Management Order made under s 46 of the LAA, the Minister for Lands ordered that 'the care, control and management' of the reserve 'be placed with' the Minister for Transport 'for the purpose for which' it was reserved under s 41 of the LAA 'and for purposes ancillary or beneficial to that purpose' subject to the conditions that:
(a)the land is 'to be utilised for the designated purpose of "Harbour Purposes" only'; and
(b)there be a power to lease (or sub-lease or licence) 'for the designated purpose'.
Pursuant to those powers, the Minister for Transport and the applicant's parent company, Onslow Marine Support Base Pty Ltd, entered into a Regional Facilities Ground Lease (Ground Lease).[3] The Ground Lease provided for an initial five year term commencing on 1 July 2014, with a further term of 21 years from 1 July 2019 (i.e. to 2040).[4]
[3] Applicant's Bundle (AB), pages 4 - 88.
[4] AB, pages 65 and 68.
The area of land the subject of the Ground Lease (referred to in the Ground Lease as the Premises) is defined in cl 1 of that document to be that part of Reserve 30711 identified on a plan marked as Annexure A and 'comprising an area of approximately … (25,769m²)'.[5] It is this land which is the 'subject land' for the purposes of these reasons.
[5] AB, pages 65 and 84. I note that the Applicant's Outline of Opening Submissions, 17 July 2024 (Applicant's Written Submissions), said that Lot 13 occupied ~31,000m². Nothing appears to turn on the difference.
Clause 15 of the Ground Lease provides that the Premises (i.e. the subject land) may only be used for the 'specified purpose'. By Deed of Variation executed 8 February 2024, the parties agreed to vary the specified purpose of the Ground Lease so that it now reads as follows:
Maritime or fishing related purposes in accordance with both the vesting for the Land and the Beadon Creek Maritime Facility Land Use Framework dated June 2014 (as amended from time to time), with particular reference to the preferred land uses for precinct 1 set out in that framework, and specifically including:
(a)light vessel maintenance activities;
(b)vessel mobilisation and de-mobilisation;
(c)vessel day mooring (jetty area);
(d)small vessel and equipment storage;
(e)general vehicle and plant parking;
(f)workshop building;
(g)site office and amenities building;
(h)lay-down yard; and
(i)the use of the Premises for the receipt, storing, stockpiling and cutting of scrap metal material and solid waste from decommissioned offshore oil and gas infrastructure, before such materials are further transported onwards by road or sea.
All but the final paragraph of that definition (i.e. sub-para (i)) formed part of the specified purpose of the Ground Lease from 2014. That is, sub-para (i) was not part of the 'specified purpose' for which the Premises (i.e. the subject land) could be used until it was added to the definition of that term in February 2024.

The Relevant Planning and Related Controls

The parties agree, and I find, that the applicable planning framework consists of:
(a)the Shire's Local Planning Scheme 7;
(b)the Shire's Local Planning Strategy; and
(c)the Boat Harbour and Land Use Framework.

Local Planning Scheme 7 (LPS7)

The subject land is subject to LPS7, which incorporates the 'deemed provisions'.[6] Under LPS7, the subject land is classified as a local reserve for 'Public Purposes - Port Facilities'.
[6] Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2; Planning and Development Act 2005 (WA), ss 256 and 257B.
Given that land use classes are used in the Zoning Table to LPS7 but not otherwise, I agree with the parties' joint position that those landuse classes apply only to zoned land and not to reserved land (and therefore the subject land).[7] That is, the land use classes in LPS7 have no application to the characterisation of the use to which the subject land is being put.
[7] Respondent's Statement of Issues, Facts and Contentions, 5 April 2024 (RSIFC), para 23; Applicant's Statement of Issues, Facts and Contention's, 22 April 2024 (ASIFC), para 17.
The carrying out of development on a local reserve, or the changing of the use to which land within a local reserve is put, without development approval is prohibited.[8]
[8] LPS7, cl 3.2.1 & cl 5.1.1; deemed provisions, cl 60.
When considering an application for such approval, regard must be had to the ultimate intended purpose of the reserve and there is to be conferral with organisations relevant to that purpose and the proposed use/development before such an application is determined.[9]
[9] LPS7, cl 3.2.2.
The subject land is also located within a special control area under LPS7: the Onslow Coastal Hazard Area. Although much was made of this in early interlocutory hearings, neither party made anything more than a passing reference to it at the hearing.

The Shire's Local Planning Strategy (Strategy)

The preamble to the Strategy states that LPS7 'is to be revoked and replaced following the preparation of a new local planning scheme'.[10] To date that has not occurred.
[10] Strategy, page 5.
The Strategy was endorsed on 21 June 2021. Relevantly, it:[11]
(a)describes the Beadon Creek Boat Harbour as 'strategically important' and says that it (i.e. the Harbour) is:
the gateway to the many islands off the Onslow coast and an important supply base supporting offshore oil and gas operations. A new marine support base is currently under construction that will significantly increase Onslow's capacity and importance as an offshore support facility.
(b)states that the 'close proximity of a tourist accommodation facility also requires careful consideration when planning for any intensification of the harbour facility'; and
(c)states that the Department of Transport has:
prepared a Land Use Framework as the basis for future land use and development within the harbour and whilst Council has not considered this planning framework for any official status, it is a valuable assessment tool given due regard when the Shire assesses applications for development approval.
[11] Strategy, page 20. See, also, but much less relevantly, sections 3.2.2 and 3.4.3.3 on pages 30 and 40 respectively.
The 'Strategies' and 'Actions' of the Strategy include:[12]
(a)as a 'Strategy': 'Recognise the importance of Beadon Creek Boat Harbour to accommodate the growing marine servicing industry';
(b)as 'Actions':
(i)to classify Beadon Creek Boat Harbour 'within the "Strategic Infrastructure" reserve';
(ii)to 'Investigate the requirement and necessity for studies into the need for a buffer around the Beadon Creek Boat Harbour to ensure that the long-term operations … are not prejudiced by incompatible land uses'; and
(iii)'Review and amend the Onslow Townsite Strategy Plan to reflect the "Strategic Infrastructure" reserve for the Beadon Creek Boat Harbour'.

Beadon Creek Boat Harbour Land Use Framework (Framework)

[12] Strategy, page 84.

The Framework is dated August 2014. It includes the following:
(a)the Introduction states that the Framework has been prepared '[t]o ensure that development in the Harbour is managed appropriately for the community and future resource projects';[13]
[13] RBOD, page 391.
(b)the Framework's objectives include:[14]
[14] RBOD, page 391.
(i)to provide the Shire with 'a clear understanding' of the Department of Transport's 'future land use intentions for the Beadon Creek Boat Harbour';
(ii)to provide a clear framework for future development within the Beadon Creek Boat Harbour; and
(iii)to provide consistency in decision-making within the Beadon Creek Boat Harbour in accordance with orderly and proper planning principles;
(c)the key principles of the Framework include to 'enable port activities to operate without impacting public enjoyment' and to 'establish land uses which are compatible with adjacent activities';[15]
[15] RBOD, page 392.
(d)the Framework provides for the Beadon Creek Boat Harbour to be considered by reference to five 'Precincts', with the subject land comprising Precinct 1. The 'Preferred Land Uses' for Precinct 1 are as follows:[16]
[16] RBOD, page 404.
•Administration offices
•Crew Transfers
•Charter Operations
•Loading/unloading equipment/supplies to vessels
•Maintenance/repairs of plant
•Minor engineering and fabrication
•Minor vessel maintenance
•Storage/laydown of equipment/supplies
•Vessel storage
•Workshop buildings
In submissions OMSB referred to and relied upon the Preferred Land Use 'Minor engineering and fabrication'.[17] It is useful here to:
(a)contrast that term with another, similar, term used in the Framework, that of 'Engineering and fabrication', which is a 'Preferred land use' for Precincts 3, 4 and 5 but not Precinct 1;[18]
(b)note the definition of 'Minor engineering and fabrication' by the Framework as:[19]
industry-light as defined by TPS7, and must be related to the function and management of the port facility.
By contrast, the Framework defines 'Engineering and fabrication' as:[20]
industry as defined by the TPS7, and must be related to the function and management of the port facility.

Development Approvals

[17] ts 65, 30 July 2024.

[18] RBOD, page 404.

[19] RBOD, page 410.

[20] RBOD, page 410.

Under cover of a letter dated 24 October 2014, an application with the Shire was made for what was described as the 'proposed Onslow Marine Support Base'.[21] The cover letter stated that the:
main use will be serving the resource industry with access to maritime activities via the proposed wharf and LCT boat ramp. …[and] car parking and office (single storey modular) facilities to support the base operations.
[21] RBOD, pages 418 - 426.
The Shire granted conditional approval of that application.[22] The development approval, issued on 5 December 2014 (2014 DA) described the approved development as 'Harbour or Marine Facilities - Onslow Marine Support Base'.
[22] RBOD, pages 427 - 435.
The 2014 DA was issued subject to thirteen conditions. Relevantly, Condition 1 of the 2024 DA provides that:[23]
At all times, the development the subject of this planning approval must comply with the definition of HARBOUR OR MARINA FACILITIES as contained in Appendix 2 of the Shire of Ashburton Town Planning Scheme No. 7.
[23] RBOD, pages 428.

At all times, the definition of Harbour or Marina Facilities in LPS7 is as follows:[24]
any land or buildings used for and incidental to the purposes of loading, unloading and maintaining cargo and defence ships, or the mooring/berthing of passenger and/or recreational vessels, including premises at which berths or pens, and fuelling, servicing, storage (including storage on land) areas, sales facilities for boating gear and equipment, providores, other offices, storerooms, jetties, piers, embankments, quays and moorings associated with these facilities.
[24] RBOD, page 66.
It will be necessary to say more about that definition below.
The 2014 DA was amended in 2016, 2017, 2021 and 2022, but none of those amendments concerned the use to which the subject land may be put and neither did any of them affect or alter any of the conditions to which the 2014 DA was subject.
In its statement of issues, facts and contentions (SIFC), the Shire described the 2016 amendments as amounting to a 'substantial reconfiguration of the proposed development' including the:[25]
creation of a central lay down area of 14,670m², smaller lay down areas adjoining the southern and northern boundaries of Lot 13, relocation of the office building, toilets, car parking area and services compound, … relocation of the landing craft ramps … and alterations to the heavy vehicle entrance and exit points and internal circulation routes.
[25] RSIFC, para 44.
The 2017 amendments provided for 'minor relocations of the carpark and office building'.
The 2021 amendments provided for installation of perimeter fencing and solar lighting. The 2022 amendments provided for a mobile wash bay.[26]
[26] RSIFC, paras 43 - 48. See, also, RBOD, pages 436 - 477.

Factual Background, the Applications, and a Brief Procedural History

Commercial Arrangements

As I have indicated in the Introduction, in broad scope the dispute between the parties arises from actions taken by OMSB by way of preparations for, and the undertaking of, the receipt onto the subject land of very large portions of offshore oil and gas infrastructure, and the activities necessary for and associated with the breaking down of that infrastructure into smaller portions before the smaller portions are then removed from the subject land for onward transport elsewhere.
OMSB's Opening Submissions[27] describe the commercial arrangements as follows, with which the Shire took no issue:
[27] Applicant's Written Submissions, paras 86 - 89.
86.Chevron Australia Pty Ltd (Chevron) has described to the Shire that it is undertaking a 'platform removal campaign' which involves the removal of 3 tripod and 6 monopod gas platforms located in the Indian Ocean. The campaign also involves the removal of infrastructure from Thevenard Island, located approximately 22 kilometres from the Onslow coast.
87.As noted above, this is the large scale and long running decommissioning of offshore gas infrastructure being, and to be, undertaken by Chevron.
88.The campaign is to be undertaken pursuant to contractual arrangements between Chevron, Liberty Industrial Pty Ltd and OMSB.
89.Chevron's decommissioning campaign includes:
(a)the receipt of vessels at the Maritime Facility at Lot 13;
(b)the off-loading of materials, including by the crawler crane onto the bunded laydown area;
(c)the servicing and repackaging of materials, including its segmentation to permit further transport by road or sea;
(d)the storage of materials on the hardstand at the Maritime Facility;
(e)transferring the materials to other vessels or trucks for onwards transport.
As I understand it, Liberty Industrial Pty Ltd (Liberty) has been engaged by Chevron to carry out the work described at para 87 of OMSB's Opening Submissions as de-commissioning and at para 89(c) as the 'servicing and repackaging of materials, including its segmentation'. OMSB's role, then, is limited to facilitating that work; it does not carry it out.

Amendment to the Ground Lease and Licence under the Environmental Protection Act 1986 (WA)

As I have noted above at para [15], on 8 February 2024 OMSB and the Minister for Transport agreed an amendment to the Ground Lease which included the following in the definition of specified purpose to which the subject land may be put:[28]
the use of the Premises for the receipt, storing, stockpiling and cutting of scrap metal material and solid waste from decommissioned offshore oil and gas infrastructure, before such materials are further transported onwards by road or sea.
[28] AB, page 93.
OMSB also obtained a licence under the Environmental Protection Act 1986 (WA) (EP Act) pursuant to an application[29] filed on 4 April 2023. On 15 September 2023, the Department of Water and Environmental Regulation issued licence L9388/2023/1 (Licence), which allows the subject land to be used as a prescribed premises as follows: [30]
(a)Category 47 - Scrap metal recovery: … on which scrap metal is fragmented or melted …; and
(b)Category 62 - Solid waste depot: premises on which waste is stored, or sorted, pending final disposal or re-use.
[29] RBOD, pages 479 - 781. The formal application document notes that the application was for a licence, although the report providing supporting information is titled 'Works Approval Supporting Information'.
[30] RBOD, pages 786 - 798.
The Licence is subject to 22 conditions,[31] which control various aspects of operations on the subject land including:
[31] RBOD, pages 788 - 791.
(a)Condition 1, which requires the maintenance and operations of certain infrastructure and equipment, including:
(i)hardstand constructed to certain requirements;
(ii)mobile plant;
(iii)a washdown bay equipped with a filtration system and which prevents discharge to the environment; and
(iv)a temporary storage containment bund to be constructed in accordance with specifications set out in Schedule 2 of the Licence and on a 'campaign specific basis';
(b)Condition 3, which requires the retention of an expert acoustician to carry out an environmental noise assessment against assigned noise levels under the Environmental Protection (Noise) Regulations 1997 (WA) (Noise Regulations), the results of which will inform the need or otherwise for noise reduction actions;
(c)Condition 8, which limits the rate of waste received as follows:
(i)no more than 10,000T/annum of scrap metal;
(ii)no more than a combined total of 3,500T/annum of general waste, hard and soft plastics, fire extinguishers, electrical waste, concrete and subsea infrastructure';
(iii)no more than 10T/annum of hazardous waste;
(iv)no more than 1T/annum of medical waste; and
(v)no more than 100T/annum of packaged liquid wastes;
(d)Condition 9, which identifies the type of processing of the different types of wastes and places limits and other specifications on those processing types as follows:

Waste Type

Process(es)

Process Limits and/or Specifications

Scrap metal

Receipt, handling, and/or cutting prior to export

Cutting and fragmenting using hydraulic shears and grinders.

…

General waste (including crib waste, fabrics)

Receipt, handling, and storage only

Putrescible wastes removed from premises within 72 hours of unloading.

Electrical waste (air-conditioners, cables)

Receipt, handling, and storage only

Stored in suitable bins or containers.

…

…

…

Subsea infrastructure (Termination unit, assemblies, umbilical end units)

Receipt, handling, and storage only.

Unspooling, cutting, and handling flexibles.

Biofouled waste removed from premises within 72 hours of unloading.

Hazardous waste (as defined in the Dangerous Goods and Radiation Management Plans)

Receipt, handling, and storage only

All NORM[32] material will be stored in clearly labelled sealed UN rated drums or inside shipping containers.

…

Medical waste (Clinical waste such as sharps, sanitary products etc.)

Receipt, handling, and storage only

Clinical wastes removed within 72 hours of unloading.

Packaged liquid wastes

Receipt, handling, and storage only

Drums or material that contain liquid must be stored on plastic, bunded pallets.

[32] Naturally Occurring Radioactive Material.

The History of the Dispute, the Directions and the Reviews

In total, five applications were made to the Tribunal. Four of those applications sought review of directions issued under s 214 of the Planning and Development Act 2005 (WA) (P&D Act) and one sought review of the Shire's decision to refuse to grant development approval.

DR 189 of 2023

On 8 December 2023, the Shire issued OMSB with a direction under s 214 of the P&D Act which required it to 'stop, and not recommence' development described as:
1.Excavation of soil and construction of a bunded laydown area at the Property [defined as Lot 561/Reserve 30711]
2.Project-specific Containment System according to the specifications in Schedule 2 to Licence L9388/2023/1, issued on 15 September 2023 by the Department of Water and Environmental Regulation for scrap metal recovery and solid waste activities at the Property.
(First Direction)
On 14 December 2023, OMSB sought review of the First Direction.
The application came before me on an urgent basis on 20 December 2023 and I referred the matter for mediation on that day, following which orders were made with the consent of the parties to the effect that:
(a)the operation of the First Direction was stayed under s 25(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act); and
(b)by 28 December 2023, OMSB was to submit an application for development approval 'for the works and for the decommissioning land use activities' on the subject land.

The Without Prejudice Application for Development Approval

On 22 December 2023, OMSB sought retrospective development approval for 'works undertaken to an existing hardstand area to facilitate laydown and storage and support fragmentation of steel structures'.[33] It did so 'without any admission that approval is legally necessary and otherwise on a "without prejudice" basis'.[34]
[33] RBOD, pages 878 - 1272.
[34] RBOD, page 878.
The works for which retrospective development approval was sought are described in more detail below in Issue Two.
It is to be noted that, contrary to the orders of 20 December 2023, no application was made 'for the decommissioning land use activities'.

The Decisions of 22 February 2024

On 22 February 2024, the Shire issued three further directions under s 214 of the P&D Act and determined to refuse the application for retrospective development approval.
On 29 February 2024, OMSB sought review of each of those four decisions which are as follows.

DR 28 of 2024

By application lodged 29 February 2024, OMSB sought review of a direction made on 22 February 2024 which required it to 'remove' the development the subject of the First Direction, being the bunded laydown area and project specific containment system (Second Direction).

DR 29 of 2024

By application lodged 29 February 2024, OMSB sought review of a direction made on 22 February 2024 which required it to 'stop, and not recommence' the development described as '[e]recting a container wall made of shipping containers on or adjacent to boundaries of the bunded laydown area' on the subject land (Third Direction).

DR 30 of 2024

By application lodged 29 February 2024, OMSB sought review of a direction made on 22 February 2024 which required it to 'stop, and not recommence' the development described as:
1)The erection and commissioning of a crawler crane … to be used for decommissioning land use activities.
2)The decommissioning land use activities (operations), which include:
a)The off-loading, including but not limited to offloading by the newly commissioned crawler crane, and receival of waste from vessels to the [subject land];
b)The processing at the [subject land] of 13,500 tonnes of waste (annually),[35] including but not limited to demolition activities such as the such as the [sic] fragmentation of waste materials with an indicative size of 7 metres high and up to 15 metres wide, including by way of cutting using hydraulic shears, an excavator, a grinder and an oxy cutter;
[35] This figure appears to be the sum of 10,000T of scrap metal and 3,500T of general waste as per the Licence.
c)stockpiling of waste materials to a height of no more than 10 metres and for up to 6 months at a time; and
d)transferring the processed waste to other vessels or trucks for onwards transport.
3)The use of the [subject land], including the newly erected and commissioned crawler crane and the bunded laydown/processing area (with the Project specific containment system) for decommissioning land use activities, the commencement of which included:
a)the receipt of waste delivered by sea vessel to the [subject land] on or about 18 February 2024; and
b)the removal of waste from the sea vessel using one or more cranes located within the [subject land] and depositing waste on the [subject land] including within the bunded laydown/processing area on or about 18 February 2024.
(Fourth Direction)

DR 31 of 2024

On 22 February 2024, the Shire refused the application for retrospective development approval made on 22 December 2023 referred to in para [47] above.
The grounds upon which the Shire made its decision to refuse are comprehensive and include eleven separate reasons. It is unnecessary to describe them for reasons that will become apparent.
By application lodged 29 February 2024, OMSB sought review of the Shire's decision to refuse the application for retrospective development approval.

The Issues

Although not universally the case, the usual course in proceedings such as this is for the respondent (in this case the Shire) to file a SIFC, after which the applicant will then do the same.
In this case that occurred but, rather unusually (and very helpfully), the Shire then filed a Reply to OMSB's SIFC.[36] In that Reply SIFC, the Shire:
(a)agreed to withdraw the First Direction, the Second Direction and the Third Direction or, in the alternative in each case, to the Tribunal making an order setting aside the relevant Direction;
(b)in relation to the works the subject of the application for retrospective development approval:
(i)insisted that development approval is required;
(ii)agreed to the grant of development approval by the Tribunal but said that the conditions of such approval will depend on whether or not the Tribunal agrees with OMSB's contention that the relevant land use (the decommissioning land use activities) does not require approval;
(c)agreed to the Tribunal varying the terms of the Fourth Direction by deleting the references to the erection and commissioning of the crawler crane and its use, save for its use 'for the decommissioning land use activities'.
[36] Respondent's Reply to the Applicant's Statement of Issues, Facts and Contentions (Reply SIFC).
As such, there are only three live issues before me:
(a)DR 30 of 2024: Does the use of the subject land for the relevant land use (the decommissioning works) require approval or, rather, does it fall within the bounds of an existing approval or exception (First Issue);
(b)DR 31 of 2024:
(i)do the works the subject of the application for retrospective development approval require development approval (Second Issue); and
(ii)if the answer to (b)(i) above is yes (and, given that the Shire accepts that a DA should be issued) what conditions should be imposed on such approval (Third Issue).
The hearing before me was held on 30 and 31 July 2024.
Despite the hearing being held nearly eight weeks after the Shire filed its Reply SIFC, the parties could not agree on the terms on which DR 189 of 2023, DR 28 of 2024 and DR 29 of 2024 should be settled, with the issue preventing agreement being the question of costs.
The hearing proceeded solely on the three issues above; not least because OMSB had not paid the hearing fee for DR 189 of 2023, DR 28 of 2024 and DR 29 of 2024.[37]
[37] State Administrative Tribunal Regulations 2004 (WA), reg 8(3).
On 24 September 2024, I made orders for the filing of written submissions as to the issue of costs in DR 189 of 2023, DR 28 of 2024 and DR 29 of 2024 and for that question to be determined on the papers. That question is the Fourth Issue to be determined.

The Evidence

The following documents were received into evidence:
(a)The Respondent's Section 24 Bundle of Documents, 5 April 2024 (Exhibit 1);
(b)The Respondent's Supplementary Bundle of Documents, 25 July 2024 (Exhibit 2);
(c)The Applicant's Bundle of Documents, 22 April 2024 (Exhibit 3);
(d)The Applicant's Supplementary Bundle of Documents, 17 July 2024 (Exhibit 4);
(e)Witness Statement of Andre Maxime Veder, 31 May 2024 (Exhibit 5);
(f)Expert Witness Statement of Steven Wayne Lewis, 6 June 2024 (Exhibit 6);
(g)Affidavit of Jack Daniel Hunter in Opposition to the Applicant's Application for a Stay, 18 March 2024 (Exhibit 7);
(h)Scanned maps No's 1 and 3 of 12 of LPS7 (Exhibit 8);
(i)Statement of Evidence of Len Kosova, 11 June 2024 (Exhibit 9);
(j)Expert Witness Statement of Jarrod Nathan Ross, 7 June 2024 (Exhibit 10);
(k)Joint Witness Statement of Messrs Kosova and Ross, 4 July 2024 (Exhibit 11);
(l)Statement of Evidence of George Watts, 11 June 2024 (Exhibit 12);
(m)Expert Witness Statement of Granger Hart Bennett, 7 June 2024 (Exhibit 13);
(n)Joint Witness Statement of Messrs Watts and Bennett, 18 June 2024 (Exhibit 14);
(o)Affidavit of Andre Maxime Veder, 15 March 2024, but only as to paragraphs 27 - 32 and annexures AMV3, 4 and 5 (Exhibit 15).
It is necessary to say something of the evidence given by Messrs Kosova and Ross, who are expert planners.
Prior to them giving evidence at the hearing, Mr Donaldson SC, who appeared for OMSB, submitted that 'virtually the entirety of the planning evidence … expresses opinions as to the legal construction of the relevant words of the local planning scheme …' which, he submitted, is both a question of law and, in the present case, the ultimate issue as to Issue 1.[38]
[38] ts 10, 30 July 2024.
Mr Donaldson SC is correct to say that the proper construction of a planning scheme is a question of law.[39]
[39] Australian Unity Property Limited as Responsible Entity for The Australian Unity Diversified Property Fund v City of Busselton [2018] WASCA 38 (Australian Unity), [77] - [85].
He is also correct to say that, save for certain narrow exceptions, expert evidence is not admissible as to the proper construction of a planning scheme.[40]
[40] Van der Feltz v City of Stirling [2009] WASC 142; (2009) 167 LGERA 236, [89] - [97].
Equally, it has been held that the opinion of an expert is inadmissible as to whether a proposed use falls within the proper meaning of a land use as defined in the relevant scheme.[41]
[41] City of Springvale v Heda Nominees Pty Ltd (1982) 57 LGERA 298, 310 - 311.
In this case, a critical element of Issue 1 is whether the decommissioning activities fall within the scope of the land use approved by the 2014 DA. The written evidence of both Messrs Kosova and Ross addresses this issue.
As I have noted above, the 2014 DA refers to the definition of 'Harbour or Marina Facilities' in LPS7. Mr Donaldson's submission is that that therefore requires LPS7 itself to be construed.
On the basis of the authorities referred to above, such a construction is a question of law.
I allowed the admission of the written evidence of Messrs Kosova and Ross on the basis that their evidence contained more than inadmissible expression of opinion on questions of law and that I will give no weight to that inadmissible material.[42] I confirm that I have done so.
[42] ts 70, 30 July 2024.

As to the question of expert evidence going to the ultimate issue, I note the helpful consideration of the question in Lake Macquarie.[43] Given the above, I need say no more about this.
[43] Lake Macquarie City Council v Australian Native Landscapes Pty Ltd (No 2) [2015] NSWLEC 114, [38].
Finally, Mr Watts and Mr Bennett gave concurrent viva voce evidence regarding noise and Mr Veder gave viva voce evidence of a fairly limited scope.

First Issue: Do the Decommissioning Land Use Activities Fall Within the Scope of the 2014 DA or a Relevant Exception?

The First Issue arises under DR 30 of 2024 by which OMSB seeks review of the Fourth Direction.

The Proscribed Land Use

In the Fourth Direction, the Shire demands that the 'decommissioning land use activities' stop and not recommence.
The 'decommissioning land use activities' are set out in full above at para [54(2)]. They may be summarised as: (1) the off-loading and receipt of waste from ships; (2) the processing of that waste, including its fragmentation by cutting using 'hydraulic sheers, an excavator, a grinder and an oxy cutter'; (3) the stockpiling of the waste; and (4) its transfer to other vessels or trucks.
OMSB agrees that those activities have been carried out.
Mr Veder's witness statement[44] says that in September 2023, OMSB was 'awarded a contract' with Liberty for 'landside' works associated with the decommissioning of Chevron's structures as part of its Thevenard Island Retirement Project. He says that those activities include the following:[45]
(a)receipt of vessels at the port;
(b)the off-loading of materials, including by crane;
(c)transport of modules to the bunded laydown area on Lot 13;
(d)the repackaging of materials, including its segmentation to permit further transport by road;
(e)the storage of materials on the hardstand at the facility; and
(f)transferring the materials to other vessels or trucks for onwards transport.
[44] Witness Statement of Andre Maxime Veder, 31 May 2024 (Exhibit 5).
[45] Exhibit 5, para 15.
The issue of greatest concern to the Shire is the 'segmentation' of large, bulky, steel segments. In this regards, Mr Veder's evidence is that:
(a)the segments are 'large' and bulky' and that it 'can be physically impossible or is otherwise too costly and too inefficient to further transport the segments in that gross form to the ultimate destination';[46]
(b)the segmentation is carried out by the following equipment: an excavator with a shear claw; an excavator with a magnet which is used to pick up and move materials for further cutting by the shear claw; oxy cutters and hand cutting tools such as grinders;[47]
(c)the type of equipment used for segmentation depends 'on the nature and properties of the particular structure' so that there is 'no prescriptive sequence for segmenting that can be applied to all structures, and no one piece of equipment is used more frequently than another';[48] and
(d)procedures are implemented to 'mitigate any potential impacts of the segmentation'.[49]
[46] Exhibit 5, para 23.
[47] Exhibit 5, para 26.
[48] Exhibit 5, para 27.
[49] Exhibit 5, para 28.
Mr Veder's written evidence also sought to put those segmentation activities in context. He said that:
(a)The original contracted period was for the works to be undertaken over 85 days, although delays have extended that period.[50]
(b)Between the start of the Thevenard decommissioning campaign in November 2023 and the date of his witness statement (31 May 2024), OMSB had processed ~1,400T of waste, being ~10% of its capacity under the Licence of 13,500T/annum.[51]
(c)That waste had been received via three vessels and, over the same period, OMSB 'received approximately 100 vessel calls for ancillary services, not in connection with fragmentation activities'.[52]
[50] Exhibit 5, para 24.
[51] Exhibit 5, para 25. As noted above, the sum of 13,500T/annum appears to represent the sum of 10,000T of scrap metal and 3,500T of general waste as permitted under the Licence.
[52] Exhibit 5, para 33.
The decommissioning land use activities are also evidenced by the photos and video attached to the Affidavit of Mr Hunter (Exhibit 7).[53] Mr Hunter is a Shire officer, holding the position of Coordinator, Planning and Lands. He swore the affidavit in March 2024 in opposition to OMSB's application for a stay, but it was tendered at the beginning of the hearing without opposition and Mr Hunter was not required for cross-examination.
[53] Affidavit of Jack Daniel Hunter in Opposition to the Applicant's Application for a Stay, sworn 18 March 2024 (Exhibit 7).
The affidavit attaches still photos which he took and a video taken by a drone operated by another employee.
Shown in both is a very large piece of plant which resembles (and I assume is) part of an offshore oil and gas platform. Although the angles from which the photos/video are shot may distort perspective, it would appear that the platform is about as tall (or taller) than the three level shipping container wall, which is located behind it in the photos. A large excavator with what I was told is a 'shear claw' is working to dismantle or segment the platform.
Closer to the water is the crawler crane, which appears much larger than the excavator. What appears to be waste/scrap steel is 'stored' in the area around the crane and excavator up to a height of approximately half that of the excavator's tracked wheels. Another, apparently smaller, excavator is in the background, also apparently working on/in the scrap steel.
It is fair to say that the photos and video do not show what I would say represents an 'ordinary' harbour/port area. Rather, if the land on which the activities were taking place were not immediately adjacent to the water, I would have said that at first glance the activities appear to show a materials recycling facility. Such a conclusion would appear to be consistent with the prescribed premises categories provided for by the Licence and described above at paras [41] and [42]. I will return to this evidence in more detail below.

The 2014 DA and its Proper Construction

OMSB says that the decommissioning land use activities are authorised, and do not need further approval, as they fall within the scope of the 2014 DA.[54]
[54] See, for example, Applicant's Written Submissions, para 170.
As noted above, Condition 1 of the 2014 DA requires that the development 'must comply with the definition of HARBOUR OR MARINA FACILITIES as contained in Appendix 2 of [LPS7]'.
The full text of that definition is set out at para [31] above.
Ultimately, for reasons which follow, the critical question is whether the decommissioned land use activities are 'incidental to' the activities of 'loading, unloading and maintaining cargo … ships'.
However, before turning to that it is necessary to address the question of what, if any, documents external to the 2014 DA may be used to assist in the construction process.

General Principles of Construction of Development Approvals

Relevance of the Application for Development Approval

In the very recent case of Reid[55] the appellant submitted that Allandale Blue Metal,[56] and the line of cases referred to therein:
establish that the content and scope of a grant of development approval depends on the terms of the approval, construed in their context and having regard to the fact that the approval has an enduring function as a public document that is intended to be relied on by persons other than just the appellant. The appellant also submits that these cases establish, as a general principle, that the content and scope of a grant of development approval may extend to documents other than the approval itself, but only to the extent that they are incorporated into the development approval expressly or by necessary implication.
[55] City of Gosnells v Reid [2024] WASCA 155 (Reid), [14].
[56] Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; (2013) 195 LGERA 182.
The above passage contains two sentences, each of which describe a proposition. The first proposition refers to the terms of the approval which must be construed within its context. I will address this further below.
The second proposition (that the application for approval is only to be referred to for the purposes of construing the approval if it is incorporated into the terms of the approval) was rejected by the Court on the basis of recent NSW authority and, critically, the relevant provisions (and particularly cl 73) of the deemed provisions.
The Court held that:[57]
it is the development for which development approval is sought that will mark out the boundaries of any development approval that is granted under the relevant statutory scheme, subject to anything specified in an approval granted under cl 73(b) or 73(c) of the deemed provisions.
[57] Reid, [44] (Buss P & Vandongen JA) and [615] - [616] (Lundberg J). Emphasis in original.
That is, the Court held that, at least where the deemed provisions apply, the application for approval can and must be considered in the task of construing a development approval.
The 2014 DA was issued prior to the commencement of the deemed provisions (19 October 2015), LPS7 contains nothing comparable to cl 73 (and the table of amendments does not suggest that previous versions of LPS7 were any different in this regard).
But, in any event, the 2014 DA does expressly refer to, and thereby incorporate, the application. It provides that 'Planning Approval [was granted] for planning application number 14-76, for development on the subject land as described above' (italics added).
However, the application does not assist in the present task of construction in any meaningful way. The application form does not provide for a description of the proposed development and the cover letter is expressed in very broad terms, describing the development as '[t]he proposed Onslow Marine Support Base (OMSB)' and saying that:
OMSB's main use will be serving the resource industry with access to maritime activities via the proposed wharf and LCT boat ramp. In addition to these facilities, OMSB will provide car parking and office (single storey modular) facilities to support the base operations.
Neither do the plans attached to the application (most of which form part of the 2014 DA as 'approved' plans) assist in carrying out the present task. In effect they show a marine loading area, three storage areas, a washdown area and wastewater plant, and some ancillary structures.

Other General Principles

In Forrest,[58] Musikanth J cited the following as general principles of construction of development approvals:
[58] Forrest v City of Busselton [2024] WASC 478, [34] - [38].
In undertaking the construction exercise, it must also be kept in mind that planning or development approvals constitute unilateral acts 'expressed in a formal manner, required and intended to operate in accordance with [their] own terms'.
Such approvals:
(1)have 'an inherent quality that it will be used to the benefit of subsequent owners and occupiers … [and] … must be construed in accordance with [their] enduring functions'; and
(2)are 'not the result of a bargaining process between two or more parties'. Their meaning 'must be determined objectively, having regard to those matters which do not focus on the circumstances in which the consent was given by reference to what was known both to the applicant and the consent authority'.
The enduring nature of such approvals encourages 'a fair but liberal reading' of the rights they confer.
They are to be construed not as documents drafted with legal expertise but to achieve practical results.
Moreover, [the relevant] condition … is to be construed according to its terms, not according to any mistaken understanding as to the basis upon which it was apparently imposed.

The Role of 'Context'

While Musikanth J in Forrest does not mention context, the first proposition put forward by the appellant in Reid, quoted above, submits that the terms of the approval must be construed within their context.
Such an approach has support in the authorities.[59]
[59] See, for example, House of Peace Pty Ltd v Bankstown CC (2000) 106 LGERA 440, 449, [37]; City of Swan v Investments (WA) Pty Ltd [2011] WASC 17; (2011) 181 LGERA 228, 233 (City of Swan v Investments (WA)), [17].
In City of Swan v Investments (WA) Pty Ltd, Johnston J held that, at least where there is ambiguity, context may include consideration of the 'objective framework of facts within which the approval came into existence, which may throw light on the meaning of the ambiguous provision'.[60]
[60] City of Swan v Investments (WA) [17].
In its written submissions, and in its oral opening, OMSB submitted that the definition of Harbour or Marina Facilities in LPS7 is to be construed by reference to various external documents, including the Management Order,[61] the Ground Lease,[62] the Framework,[63] and the Strategy.[64]
[61] Applicant's Written Submissions, para 165.
[62] Applicant's Written Submissions, para 167.
[63] Applicant's Written Submissions, para 168.
[64] Applicant's Written Submissions, para 169.
However, OMSB's case was not put on the basis that each of those documents forms part of the 'objective framework of facts within which the approval came into existence'. Rather, it submitted that those documents were 'extrinsic materials' that may be considered in the course of construing LPS7, which must occur (it submitted) as it is the source of the definition of Harbour or Marina Facilities.
I will address first OMSB's submissions as to extrinsic materials, and then consider whether I can have regard to any of those documents as forming part of the 'objective framework of facts within which the approval came into existence'.

Extrinsic Documents Considered in Construing LPS7

As I understand the submissions, OMSB's position is, in effect, as follows:
(a)Condition 1 of the 2014 DA applies the definition of 'Harbour or Marina Facilities' as contained in LPS7;
(b)in order to properly construe that definition, one must therefore construe LPS7;
(c)the relevant principles of construction require that planning schemes be construed by a consideration of the relevant text 'as a whole and in its context';[65] and
(d)the 'context' in this case is to be understood broadly. In his oral opening submissions Mr Donaldson SC referred in this regard to the relevant Chapter of Statutory Interpretation in Australia.[66]
[65] Australian Unity, [77]; Reid, [147(1)].
[66] D Pearce, Statutory Interpretation in Australia (9^th ed, 2019), Chapter 3.
I do not agree.
While the definition incorporated into Condition 1 is taken from a planning scheme, the condition itself forms part of a development approval, the principles for construction of which are different from those concerning a planning scheme.
Most relevantly, and as has been mentioned previously, development approvals have an 'enduring nature'[67] which informs the construction of the approval. As Spigelman CJ put it in Winn:[68]
A public document, such as a development consent, constitutes a unilateral act on the part of the consent authority expressed in a formal manner, required and intended to operate in accordance with its own terms. It has ... an inherent quality that it will be used to the benefit of subsequent owners and occupiers. It is also a document intended to be relied upon by many persons dealing with the original grantee, or assignees of the grantee, in such contexts as the provision of security. In some respects it is equivalent to a document of title. It must be construed in accordance with its enduring functions.
[67] Forrest, [35] - [36]; House of Peace Pty Ltd v Bankstown CC (2000) 106 LGERA 440, 450, [41] (Mason P, with whom Stein and Giles JJA agreed).
[68] Winn v Director General of National Parks and Wildlife and Ors [2001] NSWCA 17; (2001) 130 LGERA 508, [4] (Spigelman CJ).
I understand the term 'enduring' to be used in that and other authorities to refer to both an approval's ongoing and unchanging nature.
As such, the 'enduring' nature of a development approval militates against construing the terms of Condition 1 as incorporating a definition which might change from time to time if and when LPS7 is amended to change (or delete) the definition of Harbour or Marina Facilities.
In the present case that definition has not been amended in LPS7 since the 2014 DA was issued (or, as best I can tell, at all). However, the prospect that a future iteration of the Shire's local planning scheme (whether LPS7 or its replacement) might amend the definition, or delete it altogether, reinforces the conclusion that Condition 1 should be seen as incorporating the definition of Harbour or Marina Facilities as it was contained in LPS7 at the time 2014 DA was issued.
That conclusion is supported by the relevant provisions of LPS7 (through the deemed provisions) itself which provides a particular, and very limited, regime for the amendment of a development approval.
Clause 77 of the deemed provisions allows for the amendment or cancellation of a development approval upon the application by '[a]n owner of land in respect of which development approval has been granted …'. It does not allow for the amendment or cancellation by unilateral action of the local government (or, indeed, anyone else).[69]
[69] Clause 5.13 of LPS7, which would have effect in the absence of cl 77 of the deemed provisions, is similarly limited - i.e. it allows amendment or revocation on application from the landowner, however, its scope is more limited as such power only arises 'prior to the commencement of the use or development subject of planning approval.
Further, it is well established that in the absence of a particular statutory power to do so, there is no power to amend a development approval at all.[70]
[70] Aznavourv City of Mandurah (2002) 124 LGERA 173, 185, [38] (Roberts-Smith J).
If OMSB's submissions were correct, the Shire could avoid the lack of power in the deemed provisions to cancel or vary the terms of the 2014 DA by amending or deleting the relevant definition in LPS7.
I do not accept that as the correct approach.
Rather, in my view, the definition of Harbour or Marina Facilities incorporated into the 2014 DA is that which was contained in LPS7 at the time the 2014 DA was issued.[71]
[71] I note that the ASIFC, 22 April 2024, at para 77 contends that the 'effect of incorporation of a use defined in a planning instrument is that the meaning or effect or connotation of the words in the planning instrument can change over time'. No authority is cited for that contention.
In so finding I acknowledge that there is some strength to the submission put by Mr Donaldson SC that it would have been simple, had the draftsperson wished to ensure that the permitted use under the 2014 DA did not alter, to write out the LPS7 definition of Harbour or Marina Facilities, rather than refer to LPS7 in Condition 1.
Against that submission is that development approvals are not, generally speaking, drafted by lawyers and should not be scrutinised as if drafted by a parliamentary draftsperson.[72]
[72] City of Swan v Investments (WA), [18].
In my view, while the submission has some strength, it cannot overcome the preceding analysis.
But in any event, even if I am wrong and the proper construction of the 2014 DA requires me to engage in the process of construing LPS7, the 'context' within which such a process should occur does not, in my view, permit consideration of those documents on which OMSB relies.
In Van Der Feltz,[73] Murphy J (as his Honour then was) said as follows:
It is important to note what context means for the purposes of statutory interpretation. Context means the words used in the instrument and their development within it, the legislative history, the statutory context furnished by legislation in pari materia, and the existing state of the law in which the statute was enacted, including the then understanding of equity and the common law … (citations omitted)
[73] Van Der Feltz v City of Stirling [2009] WASC 142; (2009) 167 LGERA 236, [67].

By 'the legislative history', I understand his Honour to include material such as law reform commission reports, Hansard and other documents which have informed the development of the legislation in question.
If so, and with respect, the above summary appears to be entirely consistent with the relevant, and much more fulsome, chapter of Statutory Interpretation in Australia. Certainly, there does not appear to be anything referred to by the learned author of that textbook as 'extrinsic material' which may be legitimately used to construe legislation that is not included in Murphy J's passage in Van Der Feltz.
Accordingly, in my view, the relevant 'context' to which regard may be had in the construction of planning schemes (and, on OMSB's case, the 2014 DA) is much narrower than that put forward by OMSB, and do not include any of the Ground Lease, Strategy, Management Order or Framework.

Consideration of Documents as Part of the Objective Background of Facts

Plainly, documents that post-date the 2014 DA (it was issued on 5 December 2014) cannot form part of the objective framework of facts 'within which the approval came into existence'.
That excludes from consideration the Strategy, which was endorsed in June 2021. It also excludes the amended Ground Lease; being the version of that document which from 2024 defines the 'specified purpose' to which the leased land may be used as including the decommissioning land use activities.
The Management Order was made in 2010. Even if I could have regard to it (and for present purposes I will assume, without so finding, that I can) it does not assist me.
The Management Order provides that the land reserved under the LAA is '[t]o be utilised for the designated purpose of "Harbour Purposes" only' and for 'purposes ancillary or beneficial to that purpose'.
As such the Management Order does no more than limit the use of the subject land under a different regime to the one I am concerned with, using the same word as is used in the definition in question.
That is, the Management Order describes the relevant purpose as 'Harbour Purposes' while Condition 1 of the 2014 DA uses the defined term 'Harbour or Marina Facilities'. To use the Management Order as context for the proper construction of the 2014 DA would require me to give meaning to the phrase 'Harbour Purposes' in the context of a Management Order made under the LAA and then use that to inform the meaning of Harbour or Marina Facilities in LPS7. I see no utility in doing so.
The Framework was finalised in August 2014. It was prepared for, and approved by, the Department of Transport as the department with responsibility (for the Minister for Transport as the Management Body under the Management Order) for managing the Beadon Creek Boat Harbour.
At the risk of repeating myself, section 4.1 of the Framework says that its purpose is to 'outline the [Department's] intention for future land use development of the Harbour' and that the Framework is to:[74]
… be used for information purposes only. [It] is a non-statutory guiding document and should be used to inform the approval process and as a basis for communicating expectations with proponents and [the Shire].
[74] RBOD, page 401.
Further, section 4.4 identifies certain 'Preferred Land Uses' for each of the precincts.
In that sense it seems to me that the Framework was a document which might be said to form part of the 'objective framework of facts within which the approval came into existence' in that it was prepared by the Department of Transport (i.e. the entity with responsibility for management of the subject land) for the express purpose of advising the Shire and proponents (i.e. OMSB) of what land uses it (the Department) preferred for the relevant precincts.
As I have previously outlined:
(a)The subject land is located within Precinct 1, within which section 4.4 identifies 'Minor engineering and fabrication' as a 'preferred land use'.
(b)'Minor engineering and fabrication' is defined as 'industry-light as defined by LPS7, and must be related to the function and management of the port facility'.[75]
(c)In contrast, 'engineering and fabrication' is a preferred land use in Precincts 3, 4 and 5 (but not Precinct 1) and is defined as 'industry as defined by LPS7 and must be related to the function and management of the port facility.' [76]
[75] RBOD, page 410.
[76] RBOD, page 410.
The difference between 'industry' and industry-light' in the relevant definitions in LPS7 is that the latter is defined, in effect, as 'an industry' which does not result (taking into account any actual or proposed ameliorative measures)[77] in adverse amenity impacts within the relevant locality.[78]
[77] Terra Spei Pty Ltd and Shire of Kalamunda [2015] WASAT 134 (Terra Spei), [79].
[78] LPS7, Appendix 2 - Definitions; RBOD, page 68.
The Joint Statement of Messrs Watts and Bennett was to the effect that, despite the construction of a wall of shipping containers stacked three high to ameliorate noise impacts, the noise levels emitted from the subject land due to the decommissioning land use activities are higher than the 'assigned noise levels' under the Noise Regulations.[79]
[79] Exhibit 14.
As the Tribunal said in GMF:[80]
Compliance with the Noise Regulations is a necessary, but in some cases not sufficient criterion, to ensure that the noise emissions from a proposed development would not have an unacceptable acoustic impact on the locality.
[80] GMF Contractors Pty Ltd and Shire of Serpentine-Jarrahdale [2006] WASAT 353; (2006) 48 SR (WA) 1, [61]; Terra Spei, [137].
Accordingly, I am satisfied and I find that the decommissioning land use activities, and particularly the segmentation activities, could not be said to satisfy the definition of 'industry-light' and therefore the definition in the Framework of 'minor engineering and fabrication'.
The result is that to the extent that the Framework is relevant to the construction of the 2014 DA it is contrary to OMSB's preferred construction of that document.

The Terms of Condition 1

As noted above, Condition 1 of the 2014 DA provides that:
At all times, the development the subject of this planning approval must comply with the definition of HARBOUR OR MARINA FACILITIES as contained in Appendix 2 of the Shire of Ashburton Town Planning Scheme No. 7.
As also noted above that definition does not appear to have changed since the 2014 DA was issued. It appears as follows:[81]
Harbour or marina facilities any land or buildings used for and incidental to the purposes of loading, unloading and maintaining cargo and defence ships, or the mooring, berthings of passenger and/or recreational vessels, including premises at which berths or pens, and fuelling servicing, storage (including storage on land) areas, sales facilities for boating gear and equipment, providores, other offices, storerooms, jetties, piers, embankments, quays and moorings associated with these facilities.
[81] RBOD, page 66.
The definition appears to be incomplete. It expressly refers to 'premises at which…' but does not end with '…are located'. In my view the definition makes no sense without those final words, but nothing turns on this in the resolution of the issue before me.

The Ordinary Meaning of 'Harbour'

In its written opening submissions, OMSB describes as 'unarguable' that 'readying unloaded cargo for transport from a Harbour Facility or a port, is incidental to unloading cargo'.[82]
[82] Applicant's Written Submissions, para 162 (also para 163).
Those written submissions also refer to the evidence of Mr Steven Lewis who, those submissions assert, 'opines that common works undertaken at ports include the offloading and storage of cargo as well as the segmenting of structures to enable subsequent transport'.[83]
[83] Applicant's Written Submissions, para 167.
The Expert Witness Statement of Steven Wayne Lewis (Exhibit 6) was received into evidence without objection and Mr Lewis was not required for cross-examination.
I accept that he is an expert in the operations of major ports, having been Chief Executive Officer of ports in this State and Queensland between 2003 and 2023, including the CEO of the then Dampier Port Authority (now part of the Pilbara Port Authority) for 11 years.[84] He was also a director of Ports Australia, the relevant national association.[85] He states that he has visited Beadon Creek and Ashburton 'on many occasions' up to June 2014.[86]
[84] Exhibit 6, paras 6 - 7.
[85] Exhibit 6, para 8.
[86] Exhibit 6, para 9.
I have two main difficulties with his evidence, notwithstanding that it was not challenged by the Shire. The first is that he opines that, in effect, the decommissioning land use activities/segmentation works being carried out are an example of activities that 'can … be considered common work that is undertaken at ports' in circumstances where I infer (from the fact that he refers to visiting Beadon Creek up to 2014 but not since) that he has not, in fact, witnessed those works occurring.
The second difficulty is more fundamental. It is that, as the foregoing indicates, his evidence goes to what activities are commonly carried out in Australian ports more generally.
Indeed, the first of five questions asked by OMSB's solicitors in the letter engaging him to give evidence, and the most relevant in this regard, is one which asks him to explain 'the nature of operations and works customarily or commonly undertaken at ports in Western Australia such as Onslow Port'.[87]
[87] Exhibit 6, page 3 of 10.
That is, his evidence goes to the common meaning of the term 'port', which he (elsewhere) says is a synonym for 'harbour'.[88]
[88] Exhibit 6, para 46(b).
However, the ordinary meaning of a defined term is not relevant to the construction of a statutory definition. As Banks-Smith J noted in Shalom:[89]
… it is the words of the definition that matter. As stated by the High Court in Owners of the Ship 'Shin Kobe Maru' v Empire Shipping Co Inc,[90] '[i]t would be quite circular to construe the words of a definition by reference to the term defined'.
[89] City of Swan v West Australian Shalom Group Inc [2017] WASC 217, [51].
[90] Owners of the Ship 'Shin Kobe Maru' v Empire Shipping Co Inc [1994] HCA 54; (1994) 181 CLR 404, 419. Notwithstanding subsequent decisions of other courts, including intermediate appellate courts, the High Court has not rejected the principle, which remains authoritative: see the commentary in DC Pearce, Statutory Interpretation in Australia (10^th ed, LexisNexis), 310 [6.8].
Notwithstanding my previous finding that the definition is included in the 2014 DA, in my view the same result should follow here, as the principle remains applicable; to do otherwise is 'quite circular'.
Accordingly, in my view, the ordinary meaning of 'port', as a cognate term for 'harbour', 'does not colour the meaning to be given to the definition' of the defined term in this case: 'Harbour or Marina Facilities'.[91]
[91] Owners of the Ship 'Shin Kobe Maru' v Empire Shipping Co Inc 419.
The result is that, in my view, that aspect of Mr Lewis' evidence is irrelevant to the task of properly construing the meaning of the definition of 'Harbour or Marina Facilities', which must focus on the words of the definition rather than the ordinary meaning of the terms 'harbour' and 'marina'.

The Subject Land is used for Loading and Unloading of Cargo Ships

Based on the evidence of Mr Veder, discussed above, it is clear and I find that the subject land is 'land … used for … the purposes of loading, unloading and maintaining cargo … ships'. It also contains 'storage (including storage on land) areas'.

Are the Decommissioning Land Use Activities Incidental to Un/Loading?

The Legal Test

As previously noted, the real issue of contention is the permissibility of the various activities by which very large steel offshore structures are segmented into smaller pieces.
The definition of Harbour or Marina Facilities does not expressly refer to anything which might be said to cover those activities.
Rather, if OMSB is correct, those activities must be said to be 'incidental to' the loading, unloading and maintaining [of] cargo ships.
In my view, and I find, the phrase 'incidental to' in the definition of Harbour or Marina Facilities in LPS7, as incorporated into Condition 1 of the 2014 DA, applies the concept of an incidental use as that term is commonly understood in planning law.[92]
[92] G & G Corp Asset Management Pty Ltd and Presiding Member, Metropolitan East Joint Development Assessment Panel [2018] WASAT 9 (G & G Corp), [17].
Accordingly, the question whether the decommissioning land use activities are 'incidental' to the loading and unloading of cargo ships is a question of fact and degree.
As Gibbs CJ said in Lizzio v Ryde,[93] whether certain activities are to be regarded as incidental to another, dominant use or constitute another use again is a question of fact and degree.
[93] Lizzio v Ryde Municipal Council (1983) 155 CLR 211, 216 - 217.
The same point was made by Teague J in Northcote Food Wholesalers[94] when he said:
[T]here is no single test to determine dominant against ancillary, and that different criteria, themselves not readily susceptible of classification, perhaps relating to appearance or association, perhaps of a planning nature (like traffic or parking), perhaps of a monetarily quantitative nature (like revenue), perhaps of a geographically quantitative nature (like scale) are looked to as appropriate in the circumstances of each case.
[94] Northcote Food Wholesalers Pty Ltd v Northcote City Council(1994) 84 LGERA 54, 67, cited with approval in G & G Corp, [25] and Reid v City of Gosnells [2023] WASC 48, [226]. See, also, City of Gosnells v Reid [2024] WASCA 155, [523] - [524].
In this regard, OMSB submitted that it is 'unarguable' that ports (harbours) do what they can, within physical and other limitations, to facilitate the movement of goods between land and sea, including the modification of those goods. I accept that is so; it appears to be consistent with common sense and experience.
I also accept that, in this case, the various activities being undertaken in order to segment large portions of offshore oil and gas platforms into smaller portions are being carried out for the purpose of allowing the further transport of those portions which have previously been unloaded at the subject land. The Shire did not suggest otherwise, and in any event, it is consistent with the evidence of Mr Veder.
That is, I accept (and find) that there is a relationship or connection between the decommissioning land use activities and the loading and unloading of cargo.
But that does not mean that the relationship or connection is one of dominant and incidental land uses. Rather, whether the relationship or connection satisfies that description requires a consideration of all of the facts and circumstances. That is, a relationship or connection is a necessary, but not sufficient, step to finding that one land use is incidental to another.[95]
[95] City of Swan v Taylor [2005] WASCA 88, [67].
I turn, then, to consider the relevant facts and circumstances.

The Relevant Facts and Circumstances

The Evidence

As the quoted passage (above) from Teague J's decision in Northcote Food Wholesales indicates, different criteria may be looked at depending on the case.
Messrs Ross and Kosova expressed their views about these matters in their viva voce (and, in the case of Mr Ross, written) evidence.
Mr Ross opined that, as the 'proportion of materials being segmented is small in the context of the quantity of overall cargo received by the broader port operation, it would be appropriate to determine this as incidental to the primary use of the subject site'.[96]
[96] Exhibit 10; Expert Witness Statement of Jarrod Nathan Ross, 7 June 2024, (Exhibit 10) para 44 c).
However, his written statement advises that his description of the 'proportion' of the materials being segmented as 'small' comes from Mr Veder's witness statement.[97] In cross-examination, he confirmed that he had not undertaken his own assessment of the relative proportions.[98]
[97] Exhibit 10, para 44 c).
[98] ts 74 - 75, 30 July 2024.
My own review of Mr Veder's witness statement was unable to identify any portion of it which describes the proportion of materials being segmented as 'small'.
Rather, as I have previously identified, Mr Veder's evidence states that in the relevant time period only three of 100 ships that had berthed at the port 'contained cargo that required segmenting'.[99] There does not appear to be any other relevant material upon which Mr Ross might have relied in this regard.
[99] Exhibit 5, para 33.
Further, there is nothing in Mr Veder's witness statement that provides an explanation (if any) of the relationship between the number of ships and the volume of material unloaded. Without more, I do not accept Mr Veder's evidence as providing a proper foundation for Mr Ross' opinion.
Mr Kosova's evidence as to the issue of incidental use did not form part of his written witness statement. Rather, in giving viva voce evidence, he said that he was prompted to consider the matter when listening to the parties' opening submissions.[100] Plainly, such an approach is far from ideal. The issue should have been anticipated prior to the parties' opening submissions and proper notice given.
[100] ts 81, 30 July 2024.
Mr Kosova's evidence was that there were seven factors relevant to the determination of whether the decommissioning land use activities could be characterised as incidental.[101] I did not understand him to suggest that he considered those factors to be exhaustive, but in any event, in light of the statements of principle set out above, they could not be.
[101] ts 79 - 80, 30 July 2024.
Mr Donaldson SC was critical of several of Mr Kosova's factors. He suggested, in effect, that they did not assist in the resolution of the matter.[102] There is some force to the criticism.
[102] ts 82 - 84, 30 July 2024.
The first and second of Mr Kosova's 'factors' reframe the question by enquiring as to the extent to which the particular activity is captured by the original application/approval and any conditions imposed. There may well be some utility in asking the same question in different ways but the first and second 'factors' do not seem to me to do much more than that.
His third and fourth 'factors' ask whether the second use is 'naturally incidentally subordinate to and typically attached to the primary use' and 'whether the second use arises from the ordinary and approved operations'? These matters appear to me to go to whether there is a relationship or connection between the activities in question and the dominant use, and the proportionality of that relationship.
I have already held that there is a relationship or connection in this case. Proportionality is a matter which may in some cases be relevant and even determinative. In this case the (lack of) evidence makes an assessment of proportionality difficult, as my discussion regarding cargo quantities above demonstrates.
Mr Kosova's fifth and sixth factors are concerned with inputs and outputs: whether the second use 'involves activities, equipment, resources or other inputs that are typically expected of that site',[103] and whether the second use 'generate[s] outputs or impacts that are over and above what is ordinarily expected of [sic - or?] typically already occurring [and/or], the capability of the existing infrastructure and facilities on site to accommodate that proposed use'.
[103] By 'site', I understood him to mean a site being used for the relevant dominant use.
I agree with Mr Kosova that those matters may be, and in this case are, particularly relevant to the determination. As I will explain in more detail below, the activities being undertaken, the equipment being used, and the noise emitted as a result of those activities are, in my view, decisive in this case.

In its Respondent's Proposed Without Prejudice Conditions Post Conferral document, the Shire included a table outlining its position in relation to certain proposed conditions (and which incorporates the Shire's understanding of OMSB's position in relation to each condition) that it says should be imposed in two scenarios: (1) if I determine that the 'decommissioning use' is 'within or incidental to, the scope of the existing approvals'; and (2) if I determine that the decommissioning use is not within the existing approvals.
Following a directions hearing on 23 August 2024, I made orders for the filing of further written submissions from each party going to the question of noise, and for the reservation of the decision from the day the respondent's submissions were received.
As I have found that the decommissioning use is not within the scope of the 2014 DA (and not covered by any other exceptions), it is to the second of the Shire's two alternatives I turn.
The second of the two tables contained five conditions. The first condition was not pursued. For consistency, I will use the numbering used by the Shire.

Approved/As Constructed Plans etc

The Shire's proposed Condition 2 provides:
This approval is confined to the physical works required for the construction of the 'Hardstand Works to Install Subsurface Liner' as depicted on the attached approved plans forming part of the application and titled as follows:
(a)'Hardstand Works Site Plan Lot 561 Beadon Creek Road, Onslow';
(b)'Liner Bund Layout Section A: A Cross Sections';
(c)'Liner Bund Layout Section B: B Cross Sections'; and
(d)'Liner Bund Plan View'.
Those are the plans which were included as part of the without prejudice application for retrospective approval.
The Shire's proposed Condition 4 provides:
Within 30 days from the date of this approval, written certification shall be provided by a practicing civil, structural or hydrological engineer (or other suitably qualified person deemed acceptable by the Shire of Ashburton) confirming that the approved works have been constructed in compliance with the approved plans referenced in condition 2.
OMSB's position, as recorded in the Respondent's Proposed Without Prejudice Conditions Post Conferral, is that Conditions 2 and 4 should not be imposed as OMSB has provided to the Shire 'as constructed plans and [the] Curtis Barrier Report'.
I have not been provided with either the 'as constructed' plans and 'the Curtis Barrier Report',[164] although Mr Veder's evidence included that OMSB had the 'bunded lay down area designed to meet the specifications set out in the Prescribed Premises Licence'.[165] He also says that the Curtis Barrier report 'concluded that all works were carried out to the project specification and testing to the relevant international standards'.[166]
[164] Mr Veder's witness statement (Exhibit 5, para 20) says that it was prepared in December 2023.
[165] Exhibit 5, para 20.
[166] Exhibit 5, para 20.
The Shire's position, as recorded in the Respondent's Proposed Without Prejudice Conditions Post Conferral, and as expressed at the directions hearing on 23 August 2024, was in effect that it had only recently (at that time) received the 'as constructed' plans and the Curtis Barrier Report and that it was 'not in a position to confirm that the [as constructed] plans prepared satisfy necessary engineering standards to allow this condition to be removed in the time provided'.
Unfortunately, it has taken much longer than I had hoped to complete these reasons.
But one result is that there has now been more than enough time for the Shire to consider the 'as constructed' plans and 'the Curtis Barrier Report' and reach its own conclusion as to whether or not:
(a)there is a material difference between the plans which formed part of the application and the 'as constructed' plans and the implications thereof; and
(b)the Curtis Barrier Report is sufficient for the purposes of its proposed Condition 4.
I assume that it has done so. If not, it should have done and should do so now.
If it is satisfied that the works have been installed consistently with the relevant plans, and the Curtis Barrier Report is sufficient for its purposes, there may no longer be a need for any condition.
However, if that is not the case then, subject to further submissions, it may be necessary or appropriate to impose Conditions 2 and 4.
In short, the Shire's conclusions should be the subject of (further) conferral between the parties with a view to finalising the appropriate conditions.
In the circumstances, I will give the parties some time for that to occur and then hear from the parties as to how they wish to proceed.

Restriction on Use

The Shire's proposed Condition 3 provides as follows:
The physical works the subject of this approval shall not be used for any purpose not authorised by current development approvals or permitted as of right by the Shire's operative District Planning Scheme or Planning and Development (Local Planning Schemes) Regulations 2015.
OMSB made no submissions in this regard.
In my view the condition is unnecessary in that it does no more than re-state the law.
To the effect that there is any doubt, these reasons confirm that the subject land may not be used for the decommissioning land use activities unless and until approval is obtained for them.

Time Limit and Remediation Conditions

The Shire's proposed Condition 5 provides as follows:[167]
This approval is time-limited and shall expire and cease to have effect at 5.00pm WST on 31 December 2040, by which time all physical works authorised by this approval shall be wholly removed to the satisfaction of the Shire of Ashburton.
[167] Underlining added.
Subject to the question whether the underlined words should be added, OMSB is content for this condition to be imposed.
While the deemed provisions make clear that there is a power to impose time limited conditions,[168] they are not commonplace. They tend to be imposed where the planning regime is in a state of flux.[169]
[168] Clause 72 of the deemed provisions.
[169] See, for example, S Willey, Planning and Environmental Law in Western Australia (Lawbook Co, 2021), 298 [12.30].
Nonetheless, I see no reason why the time-limit should not be imposed, particularly as there is no resistance to it from OMSB. I note that the end date is six months after the current expiry date of the Ground Lease.
As to the underlined words, the Shire is the responsible authority with a duty to ensure compliance with the conditions.[170] In my view, the inclusion of the underlined words will avoid dispute by making sure that the Shire has the final say as to whether OMSB (or any subsequent occupier) has complied with the condition.

Proposed Condition as to Noise

[170] P & D Act, s 4 (definition of 'responsible authority') and s 211.

As noted previously, one of the issues upon which the parties disagreed regarding appropriate conditions was as to noise.
The Respondent's Proposed Without Prejudice Conditions Post Conferral proposes conditions which require a noise management plan to be prepared and implemented, but only if I find that the decommissioning land use activities are within, or incidental to, the scope of existing approvals.
I agree that such a condition should not be contemplated in circumstances where I find that the decommissioning land use activities are not within, or incidental to, the scope of existing approvals.
That is because the noise being addressed by the condition is emitted as a result of the decommissioning land use activities (the use of the subject land), rather than the works the subject of this approval (the installation of the sub-surface liner).
I have previously referred to the definition of 'development' in the P&D Act, which refers to both the use and the development of land, and in the decisions of UWA v City of Subiaco and Claude Neon.[171]
[171] See, also, the discussion of these two issues by Burt CJ in UWA v City of Subiaco 1980 52 LGRA 360, 363 - 364.
In reality, most development approvals will encompass both concepts - the works necessary to facilitate a use and the use itself (either explicitly or implicitly).[172]
[172] BDL Cable & Electrical Co Pty Ltd v Brighton CC [1990] 72 LGRA 227, 233.
But that is not the case here, where OMSB has made clear that: (1) in its view it does not require approval for the decommissioning land use activities; and (2) consistent with the first contention, it sought retrospective approval only for the works that had previously been carried out to install the subsurface liner. OMSB's without prejudice application for retrospective approval of the installation of the subsurface liner was very clear:[173]
The subject application is not for the use of the land, as the proposed works are consistent with the existing approval use and as such no further use approval is required.
[173] RBOD, page 881.
The second limb of the test for validity of planning conditions requires that a condition imposed on a development approval must fairly and reasonably relate to the development the subject of the approval.[174]
[174] Reid v WAPC [2016] WASCA 181, [35] - [37].
As the approach taken by the parties acknowledges, in the present circumstances there is no connection or relationship between the consequences of the works undertaken for the installation of the subsurface liner and a condition which would seek to ameliorate noise emitted due to the use of the land above that liner.
Accordingly, it is not necessary for me to address this issue.
Nonetheless, as it was argued before me, I will address it as it may assist the parties in their negotiations regarding any future application for approval for the decommissioning land use activities.
The dispute between the parties, and between their respective experts, Messrs Bennett and Watts, is whether the 'assigned noise levels' under reg 7 of the Noise Regulations apply to the noise being emitted from the decommissioning land use activities, or whether those activities fall within reg 13 of the Noise Regulations.
Regulation 13(2) of the Noise Regulations provides that reg 7 'does not apply to noise emitted from a construction site as a result of construction work carried out between [certain hours] if the occupier of the premises or public place' satisfies certain criteria.
The Shire submits that the subject land is not a 'construction site' and the decommissioning land use activities are not 'construction work'.
As to 'construction site', Ms Moharich for the Shire noted that that term is defined by reg 13(1) to mean 'premises or a public place on which the sole or principal activity is the carrying out of construction work' and that, by Mr Veder's own viva voce evidence, those works are: [175]
not the sole or principal activity that is occurring on site. [He] made it clear that this is only a component of a number of other campaigns that are being run to drop rocks into the ocean, and to send - I think, send heads of lettuce out to provision people on ships.
[175] ts 217, 31 July 2024.
I agree. It is clear that there are other activities which are being carried out on the subject land which are other than the decommissioning land use activities.
As I have previously noted, Mr Veder's unchallenged written witness statement describes how in the relevant period only three of 100 ships which berthed at the subject land discharged cargo which was then 'segmented'.
I agree with Ms Moharich that that evidence is fatal to OMSB's submission that the decommissioning land use activities represent the 'sole or principal' activity on the subject land, with the result that it is not a 'construction site' for the purposes of reg 13 of the Noise Regulations.

Issue 4 - Costs

I have previously described how the Shire's Reply SIFC considerably narrowed the issues between the parties and effectively avoided the need to consider the matters the subject of proceedings DR 189 of 2023, DR 28 of 2024 and DR 29 of 2024.
Those proceedings were not the subject of any argument at the hearing on 30 and 31 July 2024. Indeed, as I made clear at the time, as the hearing fee for those proceedings had not been paid, they were stayed pursuant to reg 8(3) of the State Administrative Tribunal Regulations 2004 (WA).
In effect, the parties were agreed that orders could be made in each of the three proceedings by which the direction the subject of each proceeding was set aside and OMSB be granted leave to withdraw its application.
However, throughout, OMSB indicated that it may seek its costs.
By orders made 24 September 2024, I allowed OMSB until 15 October 2024 to make an application for its costs and provided for an exchange of submissions, after which the issue of costs was reserved.

The Principles

In Danni, SM Willey said as follows, with which I respectfully agree:[176]
18It is trite law that the starting point is that each party will bear their own costs in a review proceeding. However, I retain a residual discretion to make an order for costs if I am satisfied it is appropriate. For a costs order to arise in the Tribunal's review proceeding, it will usually flow from the conduct of a party which, in all of the circumstances, is found to be unreasonable.
19In Questdale, Murphy JA (Martin CJ, Corboy J agreeing) explained that:
Although s 87(2) does not in terms say that the discretion [to make a costs order] is to be exercised if it is fair and reasonable in all the circumstances of the case to do so, the judicial nature of the exercise and the scheme of the SAT Act indicates that, broadly speaking, that is the legislative intention.

OMSB's Submissions

[176] Danni and Town of Cambridge [2023] WASAT 123, [18] - [19]. Internal citations omitted.

OMSB submits, in effect, that the Shire acted unreasonably in waiting until 6 June 2024, to indicate (by an application for leave to file its Reply SIFC) that it would withdraw the First, Second and Third Directions or agree to the Tribunal making orders to that effect.
OMSB says that by that date it had already:[177]
applied for and been granted stays in respect of each of the Directions, prepared all its evidence including from three expert witnesses, which was filed on 7 June 2024) and expended significant costs in relation to the Directions. The Shire has forced OMSB to address three different cases, each of which were abandoned at late notice.
In the absence of explanation, the late withdrawal gives rise to an inference that the Shire did not genuinely consider the merits of OMSB's application until shortly before the hearing. This contributed to additional unnecessary costs and time being spent by OMSB between 8 December 2023/22 February 2024 and 6 June 2024. The late withdrawal of the Directions also complicated the documents and OMSB's preparation, as unnecessary matters had to be covered. Such conduct justifies the award of costs against the Shire.
To continue to operate prior to the agreement to withdraw the Directions, OMSB was required to make stay applications to the Tribunal in respect of the Directions. Such stay applications would have been unnecessary if the Shire had withdrawn the Directions earlier.
[177] Applicant's Application for Costs, 15 October 2024, paras 19 - 21.
I do not accept those submissions.
DR 189 of 2023 was concerned with the First Direction, which (as described above at para [44]) was issued on 8 December 2023, and which required OMSB to 'stop, and not recommence' the works which were then being carried out to install the sub-surface liner.
Following OMSB's application for review, filed on 14 December 2023, the matter came before me on 20 December 2023. I referred the matter for mediation on that day, following which orders were made by consent to the effect that the operation of the First Direction was stayed and OMSB would apply by 28 December 2023 for development approval 'for the works and for the decommissioning land use activities' at the subject land.
As I have previously indicated the application actually made was limited to the works being undertaken.
As the Shire's submissions indicate, the effect of those orders was to allow the works the subject of the First Direction to continue with the result that the First Direction, which sought to stop the works occurring, quickly became redundant when the works were completed.[178]
[178] Respondent's Submissions on Costs, 29 October 2024, para 7.
What then happened has also been set out above:
(a)on 22 December 2023, OMSB applied for development approval of the works;
(b)on 22 February 2024, the Shire:
(i)refused that application; and
(ii)issued the Second Direction, which sought the removal of the works.
On 22 February 2024, the Shire also issued two further directions: to stop work on the sea container wall (Third Direction) and to stop decommissioning works (Fourth Direction).
The First and Second Directions were the subject of DR 189 of 2023 and DR 28 of 2024 respectively. They both concerned the works the subject of the application for development approval which was refused and was then the subject of a hearing (DR 31 of 2024).
In those circumstances, I do not accept that OMSB was put to any additional cost by the failure to withdraw the First and Second Directions until June 2024.
In short, had all three matters gone to hearing, it seems reasonable to think that OMSB would have argued that:
(a)the First Direction is redundant;[179] and
(b)the Second Direction is unlawful because no approval is required.
[179] OMSB's asserts its redundancy in its SIFC, para 89.
The argument that the First Direction is redundant would have been unanswerable, and the argument that the Second Direction is unlawful because no approval is required is effectively the same argument that OMSB ran in DR 31 of 2024; i.e. that no approval is required.[180] But in both cases, the refusal of the retrospective application for approval which became the subject of DR 31 of 2024 meant that neither of those two Directions needed to be addressed. That is, from 29 February 2024 DR 189 of 2023 and DR 28 of 2024 required no real work to be done on them.
[180] See the OMSB SIFC at paras 105 - 107.
When I say that it 'seems reasonable to think' that OMSB would have argued its case in a particular way, I do so in the absence of anything from OMSB to the contrary. In that regard, OMSB's submissions that the late withdrawal of the First and Second Directions 'contributed to additional costs and time being spent' and 'complicated the documents and OMSB's preparation, as unnecessary matters had to be covered', amount to bare assertions; there is nothing in the way of examples to support the assertion.
Neither is there anything in the Schedule of Costs that assists in understanding what might amount to 'wasted' expenditure or unnecessary duplication.
OMSB seeks 100% of its costs in preparing its application for review and its application for a stay in each of DR 189 of 2023 and DR 28 of 2024. There is nothing to explain the relationship between the incurring of those costs in December 2023 and February 2024 and the Shire's 'late' withdrawal of the First and Second Directions.
Neither is there any explanation for the claim of 50% of the costs of preparing its SIFC and Bundle, preparing its evidence and preparing for and attending hearings.
By the Third Direction, the Shire sought the removal of the shipping container wall, which was constructed by OMSB on advice from its acoustic engineers in an attempt to ameliorate the noise being emitted from the decommissioning activities.
The hearing (of, relevantly, DR 30 of 2024) proceeded on the basis that the wall was necessary for noise attenuation and Messrs Bennett and Watts gave their evidence in that regard.
Again, it is unclear to me what would have changed,[181] and therefore what costs were thrown away, as a result of the Shire's 'late' indication that it was content for the Third Direction to be withdrawn.
[181] In its SIFC, OMSB contends that the container wall is not 'development'. That is a legal argument but there is no suggestion that it was pursued beyond the bare assertion prior to 6 June 2024. Mr Veder's witness statement (Exhibit 5, paras 29 - 31) describes the nature of the wall and the reason (acoustic attenuation) for its construction. There is nothing in those brief paras that would have been unnecessary if the Third Direction had been withdrawn earlier.

Certainly, there is nothing but bare assertion in OMSB's submissions and my previous comments as to the Schedule of Costs apply equally in this regard.
Finally, the same may be said for the failure of the Shire, until 6 June 2024, to withdraw that part of the Fourth Direction concerning the crawler crane.
For these reasons, I will dismiss OMSB's application for costs.

Conclusion and Orders

For the above reasons, I find as follows.
First, in DR 30 of 2024, I have found that the activities described as decommissioning land use activities are such as to require approval, which has not occurred.
Accordingly, I will dismiss OMSB's application for review of the Fourth Direction with the result that the Fourth Direction will remain in effect, prohibiting the carrying out of those activities on the subject land.
Second, in DR 31 of 2024, I have found that the works for the installation of the sub-surface liner, being the subject of OMSB's without prejudice application for development approval, require approval.
I will set aside the Shire's refusal of the application for development approval and substitute it with a decision that development approval is granted subject to conditions. Given what I have said about the Shire's proposed Conditions 2 and 4, I will hear from the parties in that regard before making the relevant orders.
Finally, in DR 189 of 2023, DR 28 of 2024 and DR 29 of 2024, I will dismiss OMSB's application for costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
FA
Associate to Deputy President
18 MARCH 2025

Waste Type	Process(es)	Process Limits and/or Specifications
Scrap metal	Receipt, handling, and/or cutting prior to export	Cutting and fragmenting using hydraulic shears and grinders. …
General waste (including crib waste, fabrics)	Receipt, handling, and storage only	Putrescible wastes removed from premises within 72 hours of unloading.
Electrical waste (air-conditioners, cables)	Receipt, handling, and storage only	Stored in suitable bins or containers.
…	…	…
Subsea infrastructure (Termination unit, assemblies, umbilical end units)	Receipt, handling, and storage only. Unspooling, cutting, and handling flexibles.	Biofouled waste removed from premises within 72 hours of unloading.
Hazardous waste (as defined in the Dangerous Goods and Radiation Management Plans)	Receipt, handling, and storage only	All NORM[32] material will be stored in clearly labelled sealed UN rated drums or inside shipping containers. …
Medical waste (Clinical waste such as sharps, sanitary products etc.)	Receipt, handling, and storage only	Clinical wastes removed within 72 hours of unloading.
Packaged liquid wastes	Receipt, handling, and storage only	Drums or material that contain liquid must be stored on plastic, bunded pallets.