OPAL VALE PTY LTD and SHIRE OF TOODYAY
[2013] WASAT 88
•13 JUNE 2013
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: OPAL VALE PTY LTD and SHIRE OF TOODYAY [2013] WASAT 88
MEMBER: MR P McNAB (SENIOR MEMBER)
DR A HINWOOD (SESSIONAL MEMBER)
HEARD: 20, 25 AND 27 FEBRUARY AND 25 MARCH 2013
DELIVERED : 13 JUNE 2013
FILE NO/S: DR 292 of 2012
BETWEEN: OPAL VALE PTY LTD
Applicant
AND
SHIRE OF TOODYAY
Respondent
Catchwords:
Town planning - Development application - Proposed landfill development in an existing clay quarry - Clay resource important basic raw material - Waste landfill material would replace quarry clay after extraction - 'Putrescible landfill' - Significant regulation of facility by Department of Environment and Conservation - Permissible land use under Local Planning Scheme - Amendments to Local Planning Scheme imminent - Amendments would prohibit future landfill facility of this type - Significant agreement by all environmental experts on process of data collection to inform design issues - Whether approval should be given - Whether approval should be given under existing Local Planning Scheme - Conditional approval pronounced by Tribunal under existing Local Planning Scheme - Whether 'deferred commencement' should be given - Tribunal granted 'deferred commencement' approval from the date that Department of Environment and Conservation issues a future 'works approval' - Whether approval should be 'personal' to applicant - Personal approval given - Appropriate environmental conditions to regulate facility determined - Words and phrases: 'putrescible landfill'; 'deferred commencement'; 'personal approval'
Legislation:
Environmental Planning and Assessment Act 1979 (NSW), s 80(3)
Environmental Protection Act 1986 (WA), Pt V
Environmental Protection Regulations 1987 (WA), Sch 1
Planning and Development Act 2005 (WA)
Road Traffic Act 1974 (WA), s 85(1)
Shire of Toodyay Local Planning Scheme No 4
Result:
Application for review successful
Refusal set aside and conditional approval granted with deferred commencement from the issue of a 'works approval' under the Environment Protection Act 1986 (WA)
Summary of Tribunal's decision:
The Shire of Toodyay refused Opal Vale Pty Ltd planning approval under the Shire of Toodyay Local Planning Scheme No 4 in respect of a proposed landfill development which would take place in an existing quarry. The quarry was mined for clay, an important basic raw material.
Opal Vale Pty Ltd proposed that as the clay resource in the quarry was extracted, it would be replaced with certain waste material, namely 'putrescible landfill'. The facility would not be used for the disposal of waste for or by the general public. The development would have a total capacity of 2.8 million cubic metres and has a life expectancy of 20 years.
The proposed development was also regulated under the Department of Environment and Conservation's Landfill Waste Classification and Waste Definitions 1996. The Department would also have to issue a 'works approval' under the Environmental Protection Act 1986 (WA).
Such a landfill facility could be approved under the Shire of Toodyay Local Planning Scheme No 4, but proposed amendments to the Scheme (which were imminent) would prohibit such developments in the future.
The Shire of Toodyay's opposition was based on environmental concerns. Following the joint conferral of the environmental experts; the expression of tentative views by the Tribunal; and mediation in the Tribunal, the Tribunal pronounced conditional approval under the current local planning scheme.
This was because the Tribunal, after considering all of the evidence and the extensive written material filed, was satisfied as to the following matters:
1) the proposed development was a permissible land use under the Shire of Toodyay Local Planning Scheme No 4;
2) the parties' experts had effectively agreed that a landfill operation on the site could be designed and implemented in such a way as to minimise environmental risks (thereby in effect addressing the main concerns of the local objectors and the Shire of Toodyay);
3) that that process could be supported by appropriate mechanisms for data collection; and
4) that the proposal would also be regulated by the Department of Environment and Conservation as the specialised environmental regulatory agency.
Relying on other planning precedents, the Tribunal gave the proposal a 'deferred commencement' from the date that the Department of Environment and Conservation issues a statutory 'works approval'.
The Shire of Toodyay did not resist the suggested draft conditions with respect to the process of data collection in relation to geotechnical (seismic) and hydrological risks; general development and construction; the preparation of a fire management plan; mosquito control; gates and fencing; the general operation of the facility; and the provision of information to the regulatory authorities for the monitoring of the operation. In addition, the applicant offered approval 'personal' to the applicant. The Tribunal was satisfied that it was appropriate to impose all of these draft conditions.
However, the Shire of Toodyay opposed (or proposed alternative) conditions with respect to:
1) collection of water static data through regular measurement of water levels in the perimeter and pit bores through the winter-spring period;
2) confirmation from the clay extraction operator that the clay resource was no longer considered a viable basic raw material;
3) days of operation - from 7 am to 6 pm;
4) provision of a bank guarantee or cash bond; and
5) contributions to the upgrading of certain roads and road maintenance contribution costs.
The Tribunal considered the parties' respective submissions on each of these outstanding issues, and imposed appropriate conditions with respect to each of these matters.
A final set of consolidated conditions is published with these reasons.
Category: B
Representation:
Counsel:
Applicant: Mr J Skinner
Respondent: Mr McCoy
Solicitors:
Applicant: Jackson McDonald
Respondent: Civic Legal
Case(s) referred to in decision(s):
Coastal Midwest Transport and City of Canning [2012] WASAT 202
Haladhar Holdings Pty Ltd and Shire of Kalamunda [2012] WASAT 143
Keysbrook Leucoxene Pty Ltd and Shire of Serpentine-Jarrahdale [2012] WASAT 212
Meyer Shircore and Associates Architects and Shire of Augusta Margaret River [2011] WASAT 38; (2011) 75 SR (WA) 373
Phillips and Shire of Mundaring [2009] WASAT 193
Stein and Shire of Chapman Valley [2006] WASAT 105
Veterinary Surgeons Board of Western Australia v Alexander [2013] WASC 136
Weal v Bathurst City Council [2000] NSWCA 88; (2000) 111 LGERA 181
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
This is a review of the refusal by the Shire of Toodyay (Shire) of an application for planning approval under the Shire of Toodyay Local Planning Scheme No 4 (LPS 4) in respect of a proposed landfill development which would take place in an existing quarry.
The quarry is currently being used for clay extraction and is located on land situated at Lot 11 Chitty Road, Hoddy's Well in the Shire (subject land). The proposed fill will be comprised of 'putrescible landfill'. This material will be deposited in the quarry as the excavation of the clay takes place.
That is, as the clay resource is exhausted, it will be replaced with the waste material. The facility will not be used for the disposal of waste for the general public. The facility is to be operated on a site of approximately 619 hectares. However, the actual landfill operation is confined to an area of only approximately 20 hectares within that site. The development has a total capacity of 2.8 million cubic metres and has a life expectancy of 20 years.
The owner of the land has consented to the application. However, during the course of the hearing, certain third parties asserted a potential interest in the land, throwing some doubt on the consent process. We will return to this matter below.
We commence by discussing the significant issue of the regulation of the site under the environmental protection laws of this State.
Environmental regulation: Department of Environment and Conservation approval process
Apart from the planning regime, the proposed development is regulated under an instrument known as the Landfill Waste Classification and Waste Definitions 1996. This document (as at December 2009) is issued by the Chief Executive Officer of the Department of Environment and Conservation (DEC) 'to provide guidance and criteria to be applied in determining the classification of wastes for acceptance to landfills licensed or registered in Western Australia in accordance with Part V of the [Environmental Protection Act 1986 (WA) (EP Act)]'.
It is common ground that the facility would be regulated as a 'Class II Landfill Facility' requiring a DEC works approval and a licence issued under Pt V of the EP Act.
Table 1 of the Landfill Waste Classification and Waste Definitions 1996 instrument provides, so far as is relevant, as follows:
| Class II (Prescribed Premises Category 64 or 89) | Putrescible Landfill | • Clean Fill • Type 1 Inert Waste • Putrescible Wastes • Contaminated solid waste meeting waste acceptance criteria specified for Class II landfills (possibly with specific licence conditions) • Type 2 Inert Wastes (with specific licence conditions) • Type 1 and Type 2 Special Wastes (for registered sites as approved under the Controlled Waste Regulations) |
That table refers to 'Prescribed Premises Category 64'. This is a reference to 'Schedule 1 ‑ Prescribed premises' in the Environmental Protection Regulations 1987 (WA), as follows:
[Category number] 64 [Description of category] Class II … putrescible landfill site: premises on which waste (as determined by reference to the waste type set out in the document entitled [Landfill Waste Classification and Waste Definitions 1996] published by the Chief Executive Officer and as amended from time to time) is accepted for burial.
[Production or design capacity] 20 tonnes or more per year.
For the reasons set out below, the Tribunal has concluded that under LPS 4, a 'Class II Landfill' is a permitted land use with special planning approval given by the Shire or, on review, this Tribunal. However, as appears from the above, the proposed facility requires, in effect, concurrent approval from the DEC prior to construction.
The Tribunal has concluded, for the reasons detailed below, that planning approval could be given with a deferred commencement operative from the date of the DEC's works approval.
Planning framework
The subject land is, at present, zoned Rural under LPS 4. The land also falls within the Avon River Valley Special Control Area. A use class described as 'Waste Disposal and Treatment' appears in the zoning table; however, that use class is not defined.
It is common ground that the proposed development falls within that use class. As we indicated above, planning approval may be given after special notice has been given. We agree with the parties' position on this issue of the proper land use classification of the proposed development.
Importantly, however, it was drawn to our attention that LPS 4 was to be amended in the near future so as to prohibit, at least for future cases, such landfill operations. The potential consequences for the hearing of this proposed event will be discussed further below. However, it may be noted here that it formed no part of the Shire's case that planning approval, if warranted, should be affected by these proposed scheme amendments. This was an entirely proper concession to make in the circumstances.
Refusal by the Shire
The Shire initially rejected the application for planning approval on a variety of grounds. The principal grounds for refusal may be summarised as follows:
1)Insufficient[a1] information to determine both seismic and hydrogeological risks and rehabilitation outcomes.
2)No agreement from the DEC with respect to a 'financial assurance'.
3)Problems with mosquito management.
4)The creation of an undesirable precedent.
5)An alleged inconsistency with the current extractive industry licence rehabilitation plan.
6)An alleged inconsistency with the objectives of the Shire's Avon Arc Sub‑regional Strategy.
7)Adverse impacts on local amenity and tourism.
8)Certain concerns raised by Main Roads WA.
However, as the case unfolded, it became clear that the main driver for the respondent's refusal was that of alleged environmental unacceptability.
In the result, at the commencement of the hearing in this Tribunal on 20 February 2013, the only outstanding issues of environmental disagreement between the parties, based upon the combined experts' views, related to geotechnical (seismic) and hydrological risks; that is, issues of structural integrity (geological stability) and depth to groundwater and permeability.
We turn to summarise those events in the Tribunal from 20 February 2013.
Hearing on 20 February 2013: provisional views indicated
At the commencement of the hearing on 20 February 2013, the Tribunal, based upon the then state of the experts' joint statements and opinions (see above) and the respective positions of the parties, expressed the tentative view that conditional planning approval could be given if these main two remaining interrelated issues (that is, the geotechnical (seismic) and hydrological matters) could be resolved.
We reached that view for two main reasons.
First, the joint conferral of experts had concluded that, from a geotechnical point of view, the landfill facility could be constructed on the site. There was, however, disagreement about the relevant Australian Standard to be used to calculate seismic risk. In addition, it appeared that the possible instability of the existing steep pit walls would have to be mitigated by appropriate landfill design. It was also agreed that further consideration of the hydrological issues may be required to be undertaken.
Secondly, as appears from the above, the DEC is and was always to be a significant regulatory agency as regards the landfill and would, in any event, have to license the facility in accordance with the EP Act.
Accordingly, the Tribunal referred the matter for immediate mediation with Mr Curry, a Senior Sessional Member of the Tribunal. The mediation foreshadowed possible discussion on outstanding issues as regards the draft conditions to be imposed if final planning approval were to be given.
Significantly, an officer of the DEC attended a later continuation of this mediation with Mr Curry. We are grateful for the DEC's cooperation and contribution.
As a result of the mediation process, a further joint conferral of expert witnesses' statement (authored by Mr Gordon, Mr Passmore, Mr Stsikowski, Mr Stephens and Mr Watkins) was prepared. This important document outlined a process for the collection of certain information to be gathered in connection with the outstanding hydrological issues related to depth of water to landfill liner and permeability.
Hearings on 25 and 27 February 2013: conditional approval given
On 25 and 27 February 2013, the Tribunal formally received, as exhibits, a large number of the documents (including the various objectors' submissions) which had been filed in the proceedings. Importantly, these documents included the revised joint conferral witness statements.
The Shire did not seek to cross‑examine on any of these statements; this was, in the circumstances, an entirely appropriate course of action.
The Tribunal carefully considered that material and in particular any fresh developments with respect to the experts' views, and confirmed its earlier indication that it was satisfied that conditional approval could be given to the proposed development. At the time, we said:
The tribunal is satisfied … on the material that [we have received that it is an] appropriate planning outcome that regulates the proposal in a proper way from an environmental and planning point of view. (T:25; 27.02.13)
In summary, this was because:
1)the proposed development was a permissible land use under LPS 4;
2)the parties' experts had effectively agreed that a landfill operation on the site could be designed and implemented in such a way as to minimise environmental risks (thereby in effect addressing the main concerns of the local objectors and the Shire);
3)that process could be supported by appropriate mechanisms for data collection; and
4)the proposal would also be regulated by the DEC as the specialised environmental regulatory agency.
We should note that recently the Supreme Court of Western Australia, in Veterinary Surgeons Board of Western Australia v Alexander [2013] WASC 136 (Pritchard J), has reminded tribunals and other similar decision‑makers, at [119], that:
[w]here … the expert witnesses agree, the Tribunal is … bound to take that evidence into account, although it remains for the Tribunal to attribute to that evidence such weight as it considers appropriate, having regard to the other evidence before it.
In the light of these cogent reasons, the Shire, properly, did not resist the logic that if the Tribunal thought fit, conditional approval to the development ought to be given, and given under the existing LPS 4.
We record our acknowledgement of the Shire's engagement in a process which, in our view, which we stated at the time, has resulted in atimely outcome that arguably 'ha[d] led to a much better result [for] the community' (T:24; 27.02.13).
To this end, the applicant submitted that it would be appropriate for the Tribunal to grant a deferred commencement of planning approval linked to the outcome of the DEC process. In other words, if the DEC approved the landfill facility's works then the planning approval would 'automatically' come into effect.
We agreed with this course, if it were available to the Tribunal as a matter of planning law (see further below). And, because of the proposed amendment to LPS 4, referred to above, such a deferred commencement would, if available, overcome the problem which was summarised in the hearing by the Presiding Member in this way (emphasis added):
I should just note that we have been advised [that] there is a scheme amendment [to LPS 4] … The issues, facts and contentions [documents] raise it. The effect of which would be [that] if [the amendment] was signed into law, [it] would … take away the tribunal's jurisdiction to grant an approval, and at the moment it would, if the deferred commencement model were given final approval by the tribunal, that would have the effect of being … an interest which ha[d] accrued … which would not be affected by the scheme amendment. We understand [that] the scheme amendment['s] intention was to prevent such activities for the future in any event. (T:10; 25 02.13)
We note that this Tribunal in Meyer Shircore and Associates Architects and Shire of Augusta Margaret River [2011] WASAT 38; (2011) 75 SR (WA) 373 gave, with deliberation, a decision with brief reasons at the conclusion of the hearing under a town planning scheme where that scheme's repeal was imminent. Like the case here, full reasons were published by the Tribunal at a later point.
Deferred commencement
The model for this mechanism of deferred commencement arises out of Coastal Midwest Transport and City of Canning [2012] WASAT 202 (Midwest) which was relied upon by Mr Skinner for the applicant. Mr Skinner's proposed condition 3 reads as follows:
This approval, while otherwise current and effective as a planning approval from the date of these Orders, commences and can only be acted upon from the date that the Department of Environment and Conservation ('DEC') issues a works approval under the Environmental Protection Act 1986 (WA) in respect of Stage 1 of the Facility ('Works Approval').
In Midwest, planning approval had been sought for a crossover widening. Approval was given by the Tribunal from the date that the Commissioner for Main Roads WA (Commissioner) issued advice that the Commissioner's approval had been granted for a six month trial of access by certain Restricted Access Vehicles (RAVs). If such an approval had not been issued by the Commissioner within two years of the date of the Tribunal's decision, then planning approval for the crossover widening would lapse. Member Jordan said, at [77] ‑ [79]:
The Tribunal has decided that RAVs using the site would be acceptable in planning terms, but this is meaningless unless the RAVs can use [the relevant street]. It is not unusual that a planning approval be [made] conditional upon an action by a third party if it is clear that the third party is most likely to be taking that action in the immediate future. The evidence does support a realistic expectation that Main Roads will issue a formal decision on RAVs in … the near future.
The Tribunal has concluded that, in the circumstances of this matter, there may be imposed, what can be termed as, a deferred commencement condition; that is, a decision must first be made on allowing RAVs … before the development application for the crossover widening is enlivened. A similar type of condition has been used elsewhere: Dyldam Developments Pty Ltd v Baulkham Hills Shire Council [2001] NSWLEC 297, at [12], and was approved by the House of Lords in Grampian Regional Council v Aberdeen District Council (1983) 47 P & Cr 633. The Tribunal considers such a condition appropriate and within the ambit of s 29(3) of the SAT Act.
In these circumstances, the Tribunal considers it appropriate to approve the crossover widening, but effective only from when RAVs are allowed access … The approval could be conditioned accordingly.
In McLeod 's Planning & Development WA, Presidian Legal Publishing, at [18.300.55], the observations of Mr Jordan are effectively endorsed and supplemented as follows:
It is not unusual that a planning approval be conditional upon an action by a third party if it is clear that the third party is most likely to be taking that action in the immediate future. Pursuant to such a deferred commencement condition, the approval would only be enlivened once the action is performed by the third party: Coastal Midwest Transport and City of Canning [2012] WASAT 202 at [77]; Dyldam Developments Pty Ltd v Baulkham Hills Shire Council [2001] NSWLEC 297 at [12]; Grampian Regional Council v Aberdeen District Council (1983) 47 P & Cr 633. Such a condition is, for the Tribunal, within the ambit of s 29(3) of the SAT Act: Coastal Midwest Transport, above, at [78].
Conditions imposed on a development or subdivision will sometimes involve a third party. Such conditions can, for example, involve work such as a median strip or a sewerage connection. Conditions of this type 'might be imposed when there is a genuine likelihood that the condition can be satisfied within the life of the approval granted and are not speculation': Dalcorp Holdings Pty Ltd and Town of Victoria Park [2011] WASAT 18 at [48].
It is not consistent with orderly and proper planning to approve a subdivision subject to a condition that it requires the agreement of a third party in the absence of any evidence that such agreement can be obtained: Bernardini and WAPC [2010] WASAT 105.
In New South Wales, deferred commencement is expressly available under s 80(3) of the Environmental Planning and Assessment Act 1979 (NSW). However, such a power 'does not free a consent authority from its obligations to consider all relevant matters as required by … the Environmental Planning and Assessment Act 1979 (NSW)': Planning and Development Service NSW, Westlaw AU, at [E784]. See, for example, Weal v Bathurst City Council [2000] NSWCA 88; (2000) 111 LGERA 181, where a deferred commencement condition linked to approval from the Environment Protection Authority (otherwise unobjectionable in principle) effectively left unresolved the regulation of the noise impact, which was significant, of the development in question.
We are satisfied here that the applicant's proposed deferred commencement condition is consistent with the authorities cited and is otherwise appropriate in the circumstances of the case.
Proposed conditions
The applicant provided to the Tribunal a draft of proposed orders to permit the proposed development to proceed, upon conditions. These draft conditions dealt with:
1)the process of data collection in relation to geotechnical (seismic) and hydrological risks;
2)general development and construction;
3)the preparation of a Fire Management Plan;
4)mosquito control;
5)gates and fencing;
6)general operation of the facility; and
7)the provision of information to the regulatory authorities for monitoring the operation.
These matters were expressed in 23 conditions on a draft document containing some 28 conditions.
In respect of these 23 conditions, the Shire, whilst not consenting, did not oppose the Tribunal, if it thought fit, giving consent generally upon such terms or similar. Consistently with what is said above, we are satisfied that these 23 conditions should be imposed upon the proposed development. Their detail may be found below.
However, the Shire objected to a number of the proposed conditions and the parties were invited to make written submissions on whether the Tribunal should impose such conditions.
Thus, the Tribunal was to make a determination on the documents in respect of these unresolved matters. The last submission filed by the parties was received on 14 March 2013.
The six remaining (disputed) conditions (namely, conditions 4(c), 14, 19, 27, 27A and 28 in the draft) dealt with the following specific matters:
1)Condition 4(c): collection of water static data through regular measurement of water levels in the perimeter and pit bores through the winter-spring period;
2)Condition 14: confirmation from the clay extraction operator that the clay resource was no longer considered a viable basic raw material;
3)Condition 19: days of operation ‑ from 7 am to 6 pm;
4)Condition 27: provision of a bank guarantee; and
5)Condition 27A (new condition): significant contribution to the upgrading of certain roads; and Condition 28: road maintenance contribution costs.
Other than as regards the conditions objected to (or proposed as an alternative) by the Shire, formal conditional approval was pronounced by the Tribunal on 27 February 2013, with effect from that date.
Resolution of disputed conditions
Proposed condition 4(c): collection of water static data through regular measurement of water levels in the perimeter and pit bores through the winter-spring period
The original issues of seismic and hydrological assessment were effectively resolved via mediation. The draft condition reflects a process of collecting information relevant to the proposal through the regular measurement of water levels in both the perimeter and pit bores through the winter‑spring period. The joint conferral of expert witnesses' statements specified collection of the data over winter and that that data be collected over a time period sufficient to better determine or define the static water level.
The respondent did not agree with the applicant's suggested wording and sought inclusions to the effect that the collection of information was to be by way of a suitably qualified independent person and that the data collection was to take place monthly, and then between the months of April and December.
The applicant agreed with the use of a suitably qualified person or persons, but not with the suggested timeframe. This was because a condition specifying April would require additional data collection, starting in effect from 2014. Further, the request for monthly testing may not meet the requirements of the necessary data collection, in that either more frequent or less frequent monitoring may be appropriate, depending upon the weather during the testing period.
The Tribunal concludes that monitoring may be more frequent and should be not less than that collected monthly, with the commencement of sampling from 1 June (as far as is practicable with respect to June, being the month in which these reasons are published) to December 2013. We reach this view as it is generally more consistent with the experts' views on the matter, and in our view, it provides a suitable regime of measurement. Minimum monthly testing over the period specified is proportionate and reasonable having regard to the environmental issues at stake.
The Tribunal therefore determines that condition 4(c) is to read: 'arrange for a suitably qualified independent person to measure the water levels at a minimum of once per month from 1 June (and as far as is practicable with respect to June 2013) to December 2013 in the perimeter bores and the pit bores to better define the winter static water levels'.
Proposed condition 14: confirmation from the clay extraction operator that the clay resource was no longer considered a viable basic raw material
The respondent proposed that 'prior to the commencement of construction of each landfill cell at the facility, the applicant must provide the Shire with confirmation and data from the clay extraction operator that the clay resource is no longer considered to be viable basic raw material'.
The applicant objected to the insertion of the emphasised words 'and data' into the proposed condition.
The respondent originally requested a condition which specified the collection of samples and the submission of test results to demonstrate that the clay resource was no longer viable prior to the construction of each cell. The respondent now wants the wording to include 'and data' so that it can assure itself that landfill will not be deposited onto the site unless and until this valuable basic material resource has been expended.
The applicant agreed to provide the Shire with confirmation from the clay extraction operator that the clay resource would no longer be considered viable. The applicant submitted that the Shire already has confirmation from Austral Bricks (the current extractive licence holder) that the landfill would not interfere with the clay extraction activities over the life of the clay resource and that the arrangement for extracted material to be stockpiled in advance on site, if necessary, removes the need for this condition. Further, the applicant points to economic self‑interest in maximising the exploitation of the clay deposits.
The Tribunal concludes that the additional words 'and data' are unnecessary in the circumstances. We generally agree with the applicant's submissions and we further agree with the conclusion reached by the respondent's own (expert) Manager of Planning and Development (from June 2012, cited by the applicant) to the effect that what was proposed does not put at risk the policy objective of maximising exploitation of this recognised strategic basic raw material.
Proposed condition 19: days of operation (from 7 am to 6 pm)
The respondent disagrees with the landfill site operating on a Saturday and hence wishes to have a condition limiting operation of the facility from Monday to Friday. This is said to be in recognition of the importance of tourism in the area and is allegedly consistent with relevant planning documents such as the Avon Sub-Regional Economic Strategy (see at pages 69 and 70). The Shire argues that daytrips from Perth will increase and it wishes to maintain an environmentally sensitive 'green' Shire.
The applicant submits that there are in fact no tourist activities in the immediate locality of the site, nor is the road network in the vicinity of the development a primary tourist route. Further, the applicant says that it is unaware of any such similar prohibitions being placed upon clay extraction and other activities using heavy trucks in the Shire.
The Tribunal concludes that the conditions of operation proposed by the applicant should be retained. Assuming, for the moment, the validity and relevance of the respondent's general case on this point, little weight can be given to the respondent's arguments absent any material of substance pointing to a diminution in tourism or a detrimental effect on the tourism values in either the locality of the site or, for that matter, the Shire as a whole. In any case, we suspect that such material, if it were available, would demonstrate at best only a very marginal impact upon such activities.
The hours of operation for entry into the facility for the purposes of disposing waste or any other activity related to the waste disposal operations should be Monday to Saturday (excluding public holidays) from 7 am to 6 pm.
Proposed condition 27: provision of a bank guarantee
The respondent sought the imposition of a mechanism to provide financial assurance against the possibility of the unsatisfactory completion of the eventual rehabilitation of the site. The proposed condition sought by the respondent is as follows:
Prior to the commencement of operation of the facility, the applicant shall provide a cash bond of $120,000 to the Shire of Toodyay as a performance guarantee against the satisfactory completion of the rehabilitation of the site, such funds to be held in an interest bearing account, with the interest forming part of the bond. The performance guarantee will be refunded at a rate of 50% following completion of the final stage of rehabilitation works and 50% at the conclusion of the three year monitoring period. Any such bond is to be accompanied by a bonding agreement and written authorisation from the owner of the land that the respondent may enter the site to complete or rectify any outstanding work. The respondent will recover the bond, or part thereof as appropriate, for any costs to the respondent in completing and/or rectifying the outstanding works. If the Shire's reasonable costs on completing the rehabilitation of the site exceeds the (bank guarantee/bond) [then] the outstanding balance will be raised as a charge against the subject land.
The respondent submits that such an arrangement is appropriate, given the 20 year life of the project; that the value of a fixed sum bank guarantee might be eroded by inflation; and that the consenting landowner as a beneficiary of the planning approval 'should accordingly provide the appropriate security'.
The applicant would prefer a bank guarantee and not a cash bond, but the applicant is prepared to agree to a cash bond as specified and has no objection to this being held by the respondent in an interest bearing account, as suggested.
However, the applicant objects to any charge against the land of, in effect, a third party, and submits that the Tribunal has, in any event, no power to impose such a condition. The applicant notes that there will be parallel obligations with respect to rehabilitation under the DEC licensing regime which, it is said, effectively invokes 'the primary [State] legislation relating to rehabilitation'.
The Tribunal agrees generally with the applicant. Assuming that a third party such as the landowner in such circumstances could be the subject matter of such a condition (which we think is, perhaps, a doubtful proposition), at the very least it would seem that that owner's informed consent would have to be forthcoming. There is no evidence of such consent and it seems unlikely that any landowner would give their consent in such circumstances, at least not without the parties entering into complex agreements to cover relevant contingencies.
With respect, the Tribunal declines to be the catalyst for such impractical and speculative arrangements.
Conditions 27A (new condition): a significant contribution to the upgrading of certain roads; and Condition 28: road maintenance contribution costs
The respondent proposed an additional condition 27A as follows:
Prior to the commencement of operation of the Facility, the applicant is to contribute an amount $98,222 being equivalent sharing of total private contributions to the upgrading and sealing of Salt Valley and Fernie Roads proportional of the respective regularity and size of the loads to be carried on the said roads. The entry to the facility is to be upgraded to allow the access and egress by trucks without crossing to the wrong side of Salt Valley Road. All works to be completed to the satisfaction of the Manager Works and Services, Shire of Toodyay.
The cost specified was only an 'estimate' made by the Shire. The respondent argues that 'the equitable distribution of the cost of such infrastructure ought to be shared through an upfront contribution to the initial cost … as well as through a road maintenance contribution during the life of the project'.
In reply, the applicant contended:
32.Despite the Respondent's Statement of issues, Facts & Contentions raising an issue regarding traffic-related matters, the Respondent elected not to lead any traffic-related evidence for consideration by the Tribunal.
33.The Applicant has led evidence before the Tribunal on traffic‑related issues including:
(a)the Shawmac Report …
(b) the Landform Research Report at 9.7 …
(c)further evidence of Anthony Shaw …
and
(d)evidence of Larry Smith …
All of this evidence is uncontested.
34.The Respondent seeks this contribution to the upgrading and sealing of Salt Valley Road and Fermie Road in addition to the separate condition … seeking a contribution to the maintenance of these roads.
35. The evidence before the Tribunal, which appears to be acknowledged by the Respondent in its submissions, establishes that Salt Valley Road and Fernie Road have already been upgraded and sealed up to the turnoff for the Facility to a standard sufficient for existing Class 1 landfill facility operated by the Applicant. As referred to in the Landform Research Report, the Applicant in fact undertook the upgrading and sealing works on the section of Salt Valley Road from Chitty Road for the purposes of the Class 1 landfill facility.
36. The uncontested evidence before the Tribunal is that the additional traffic likely to be generated by the Facility is not such as to require any further widening or upgrading of Salt Valley Road or Fernie Road.
37. Further, despite the precise amount referred to in the proposed condition, there is no evidence before the Tribunal justifying the amount in question.
The applicant has a strong case on this issue. We accept the applicant's contentions. We can see no justification, in the material before us, for the condition sought by the respondent.
The respondent also sought an annual road maintenance contribution equivalent to an amount of $0.50 per tonne of material transported per year for expenses incurred in respect of the repair and maintenance of relevant roads (condition 28). The payment was to be for the life of the facility, based on estimated tonnage. The respondent denied that the charge could be characterised as an unauthorised (or unconstitutional) tax. Alternatively, the respondent sought a flat contribution 'of $10,000 per annum, based on a proposed annual tonnage of 20,000 tonnes'.
The applicant submitted that it had no objection in principle to the payment of a contribution to the cost of maintaining and repairing relevant roads that could be demonstrated to be affected by the proposed development's traffic.
However, the applicant submitted that the respondent's proposed condition went beyond the model offered by s 85(1) of the Road Traffic Act1974 (WA) ‑ dealing with statutory liability to pay to local governments for heavy traffic damage ‑ as the contribution would not be sufficiently sourced in the damage caused by relevant traffic nor in the costs of repair or maintenance.
The applicant offered an alternative for condition 28. This drew, in part, on a similar condition approved by the Tribunal and found in Keysbrook Leucoxene Pty Ltd and Shire of Serpentine‑Jarrahdale [2012] WASAT 212 (Keysbrook) (Conditions of Approval in DR 139 of 2010, condition 17). The applicant's draft of condition 28 was as follows:
The applicant shall be responsible for the cost of maintaining and repairing damage to the roads controlled by the Shire which are used by heavy haulage traffic to deliver Class II waste at the Facility, to the extent that such traffic contributes to the need for such maintenance and repair. Prior to the commencement of operation of the Facility, a Road Maintenance Plan based on this principle and including;
a)an audit of the condition of relevant roads prior to the commencement of the operation of the Facility;
b)appropriate maintenance standards and associated requirements and responsibilities;
c)the estimated average annual cost of road maintenance and repairs for the duration of operation of the Facility; and
d) the amount of the contribution to such cost to be paid by the applicant,
shall be lodged with the Shire for approval and the Road Maintenance Plan shall be implemented throughout the duration of operation of the Facility.
The Tribunal accepts the draft put forward by the applicant as reasonable, and one that contains a sufficient nexus to likely actual maintenance‑causing events in relation to relevant roads. That it is based upon the model for one of the approvals given in Keysbrook, albeit a condition arising out of a mediated outcome, also suggests that the proposal has merit.
Applicant's offer to make planning approval personal to applicant
The applicant submitted that it would be appropriate, having regard to such cases as Stein and Shire of Chapman Valley [2006] WASAT 105 at [87]; Phillips and Shire of Mundaring [2009] WASAT 193; and Haladhar Holdings Pty Ltd and Shire of Kalamunda [2012] WASAT 143, for planning approval to be made 'personal' and thus limited to the applicant itself.
The applicant submitted that such a condition would address the respondent's expressed concern about the applicant 'being replaced by another operator' given the 'length of time' that the proposed facility is expected to operate.
Such a condition may be appropriate where 'the management expertise and experience of the applicant are likely to be significant in reducing the amenity impacts' of an environmentally sensitive proposed use. Given that such a proposed condition seems to be common cause here and otherwise supported by principle, the Tribunal has decided that approval will be made personal to the applicant. The limitation will be inserted into paragraph 2 of the Tribunal's final orders (see below).
Third party intervention
As mentioned at the commencement of these reasons, certain third parties 'asserted a potential interest in the land, throwing some doubt on the consent process'. On 19 March 2013, the Shire brought to the Tribunal's attention this possible interest as a result of a detailed email that the Shire had received from Mr KP Judge, who is a lawyer residing in Monaco. Mr Judge alleged (emphasis added):
I am a director of Agett Investments Pty Ltd ('Agett') which is the trustee of the Agett Trust, owner of Wunda‑Y Farm.
I am also a director of Karratta Pty Ltd [('Karratta')], the trustee of the 'Wunda‑Y Unit Trust', (which is 50% owned by Agett and 50% owned by Simon Farrell, the owner of the Williamson Farm) and owner of the exclusive right to extract clay from both the Williamson and Wunda‑Y farms until 2024.
For many years until 2004, Karratta owned both the Williamson and Wunda‑Y farms and until mid 2008, farming operations were conducted on both farms (and several other farms in the [Shire's] area), in a farming partnership that included me personally, and Simon and Tony Farrell (now deceased).
We have previously provided the [Shire] with a copy of the Vesting Deed (the 'Vesting Deed') signed in April 2004 … which explains the transfer of ownership of Williamson Farm to Mr Farrell and the Wunda‑Y farm to Agett and confirms Karratta's exclusive right to conduct clay extraction operations on both farms until April 2024.
The operation of clay extraction activities on both the Williamson and Wunda‑Y farms has for many years been licensed to Prestige Brick ('Prestige'), now part of the Austral Bricks [('Austral')] group, including at the time Opal Vale made its Application for the Landfill licence [sic, planning application] which is now the subject of these SAT proceedings. Karratta continues to permit Prestige to carry on clay extraction operations on both farms and this will continue until April 2014 when Karratta's exclusive right to extract clay from both farms, will expire.
I am however aware that in connection with the Application, Opal Vale represented to the [Shire] that it had permission/consent from Prestige to conduct its proposed rubbish landfill operation, using as the site for that landfill operation, the very large operating pit on the Williamson farm.
This 'consent/permission' was falsely obtained and was subsequently retracted after it was discovered by Prestige]/Austral that in 2010, Mr Farrell had falsely represented to Prestige/Austral that the right to extract clay operations on [the] Williamson farm was then owned by Mr Farrell.
Prestige/Austral have acknowledged to Karratta and Agett that it accepts that the right to extract clay from both the Williamson and Wunda‑Y farms has at all times and continues to rest exclusively with Karratta and the agreement reached with Mr Farrell in mid 2010 (critical to the Opal Vale Application) was therefore null and void from inception and of no force or effect.
It was Prestige/Austral[s'] discovery in 2012 that the right to agree and determine all matters in relation to the clay extraction operations on the Williamson and Wunda‑Y farms continues to be exclusive to Karratta that lead [sic] to the withdrawal of the Prestige/Austral 'consent/permission' used by Opal Vale (in conjunction with Mr Farrell) in connection with the Application and I believe you have a copy of the Lavan Legal [solicitors'] correspondence confirming the withdrawal of this consent/permission.
On 25 March 2013, an urgent hearing was convened where these issues were discussed with the parties, interested parties and Mr Judge (via telephone). The applicant strongly resisted any suggestion that the consent of the owner of the land was either missing from the record or was otherwise defective or void.
Although by then the Tribunal had already pronounced conditional planning approval (but had not yet issued written orders) before these third party matters came to the Tribunal's attention, the Tribunal made an order in the following terms:
In order to allow any third party sufficient time to consider the steps that they might take (if any) to restrain the Tribunal, or to otherwise bring proceedings that might affect the jurisdiction of the Tribunal in the current proceeding, the Tribunal suspends any action that it might take, or is still to take, until the close of business on 3 April 2013.
To this date, to the Tribunal's knowledge, no action as might have been available, contemplated or foreshadowed was or has been taken which either affected or might affect the Tribunal's jurisdiction or decision.
Accordingly, so far as the Tribunal is concerned, it is unnecessary to pursue this matter any further.
Final orders
For the reasons given above, the Tribunal makes the following consolidated orders, replacing the Tribunal's orders of 27 February 2013 but without affecting the conditional planning approval given on that day under LPS 4:
1.The application for review is allowed, with effect from 27 February 2013.
2.The refusal of the Shire of Toodyay is set aside and planning approval personal to the applicant is granted under the Shire of Toodyay Local Planning Scheme No 4 for the proposed landfill development as generally described in the document 'Management and Rehabilitation Program of Clay Pit, Class II Landfill, Lot 11 Chitty Road, Toodyay' by Landform Research dated January 2012 (Application Document) and shown in Attachments 1 to 4 of the document 'Opal Vale Clay Pit ‑ Landfill Design and Closure' by IW Projects dated January 2012 which is Appendix 2 to the Application Document (facility), subject to the conditions set out in paragraphs 3 to 28 of these orders.
Deferred commencement
3.This approval, while otherwise current and effective as a planning approval from the date of these orders, commences and can only be acted upon from the date that the Department of Environment and Conservation issues a works approval under the Environmental Protection Act 1986 (WA) in respect of Stage 1 of the facility (works approval).
4.The applicant is to:
(a)install an additional five bores located around the perimeter of the landfill area, drilled to the water bearing horizon, in approximately the locations shown on the plan attached to the orders of 27 February 2013 as Annexure A (perimeter bores);
(b)install five bores within the landfill area for each stage of the facility, the approximate locations of which for Stage 1 are shown on Annexure A, drilled to a depth of 5 metres below the proposed design base level of the landfill area at the location of each bore as shown on the Landfill Earthworks Layout Plan Drg No OV‑WA‑02 prepared by IW Projects dated May 2012 (pit bores);
(c)arrange for a suitably qualified independent person to measure the water levels at a minimum of once per month from 1 June (and as far as is practicable with respect to June 2013) to December 2013 in the perimeter bores and the pit bores to better define the winter static water levels;
(d)further investigate the material in the existing pit and walls and undertake further calculation of seismic risk by reference to both AS4678‑2002 and AS1170.4‑2007;
(e)utilise the information referred to in 4(c) and 4(d) above to confirm or inform the final engineering design of the facility, including the batter slopes, shape and base level of each landfill stage, for the purposes of seeking the works approval;
(f)provide the information referred to in 4(c) and 4(d) above to the Department of Environment and Conservation at the time of seeking the works approval; and
(g)provide a copy of the information referred to in 4(c) and 4(d) above, together with a copy of the application for the works approval, to the Shire of Toodyay at the time of seeking the works approval.
5.If the works approval has not been issued by the Department of Environment and Conservation within two years from the date of this approval, then this approval shall lapse and be of no further effect.
Substantial commencement
6.If development of the facility is not substantially commenced within a period of one year from date of issue of the works approval, then this approval shall lapse and be of no further effect.
General development and construction
7.The final engineering design of the facility, including the batter slopes and shape and base level of each landfill stage, shall be implemented in accordance with the works approval issued by the Department of Environment and Conservation.
8.The facility is to be confined to that part of Lot 11 Chitty Road, Toodyay that has been used for an extractive industry and such adjacent land as is required for its operations, as identified in the application document.
9.No existing vegetation is to be removed for the operation of the facility (not including vegetation required to be removed for the initial or staged construction of the facility as set out in the application document).
10.Approval for any effluent disposal systems to be located at the facility shall be sought from the Shire of Toodyay through the lodgement of an 'Application to Construct or Install an Apparatus for the Treatment of Sewage'.
11.All groundwater/stormwater management and watercourse protection measures detailed in the Water Management Plan (contained in the application document) shall be implemented prior to the commencement of operations at the facility.
Fire Management Plan
12.Prior to the commencement of operation of the facility, the applicant must prepare and implement a Fire Management Plan, such plan being submitted to the Shire of Toodyay for approval.
13.Prior to the commencement of operation of the facility, the applicant must prepare and implement a Mosquito Management Plan, such plan being submitted to the Shire of Toodyay for approval.
Confirmation that clay resource no longer a viable basic raw material
14.Prior to the commencement of construction of each landfill cell at the facility, the applicant must provide the Shire of Toodyay with confirmation from the clay extraction operator that the clay resource is no longer considered to be a viable basic raw material.
Gates and fencing
15.Lockable gates are to be installed at all entries to the facility and are to be locked at all times when the facility is not manned.
16.All boundary fencing around Lot 11 Chitty Road, Toodyay shall be a sufficient rural fence, as defined by the respondent's local law relating to fencing, and must be installed prior to the commencement of operations.
17.Prior to the commencement of operation of each landfill cell at the facility, a 2 metre high temporary mesh fence must be erected as shown on the site layout plan detailed in the application document, or otherwise located so as to act as a litter trap for waste items being disposed of in the landfill cell in question. All such fencing must be removed at the completion of the landfill.
Operation of the facility
18.Only waste in conformity with the requirements of Class II, Category 64 Landfill, as defined under the Department of Environment and Conservation's Landfill Waste Classification and Waste Definitions 1996 (as amended), shall be disposed at the facility.
19.The hours of operation for entry to the facility for the purposes of disposing waste or any other activity related to the waste disposal operation shall be Monday to Saturday (excluding public holidays) 7 am to 6 pm.
20.Measures shall be taken to minimise the amount of dust pollution associated with the waste disposal site and trucks transporting materials to the facility, as detailed in the Off Site Impacts Management Plan (contained in the application document). This includes the covering of all truck loads entering or leaving the Shire of Toodyay.
21.The facility must be maintained in a tidy condition at all times and any landfill and waste disposal items must be contained within the 2 metre temporary mesh fence referred to in condition 17. If any materials leave the approved landfill area, they must be collected and disposed of by the applicant.
22.All trucks entering the Shire of Toodyay in connection with the facility shall comply with the respondent's Policy A.8 ‑ Oversize Vehicles.
23.At no time can Chitty Road be used by trucks accessing the facility.
24.The facility is not to be used by the general public for the disposal of domestic waste.
Information to be provided to the Shire of Toodyay
25.The applicant is required to provide the Shire of Toodyay with a copy of the information and report required to be submitted quarterly by the applicant to the Department of Environment and Conservation, or such other information as may reasonably be required to identify the quantity of waste that has been disposed of to landfill in the facility.
26.The facility must be rehabilitated in accordance with the Rehabilitation Management Plan detailed in the application document, or any alternative rehabilitation plan approved by the Department of Environment and Conservation and the Shire of Toodyay. The rehabilitation works must be completed within the first winter months following the re‑establishment of the final contour ground levels and maintained for a period of three years thereafter.
Cash bond
27.Prior to the commencement of operation of the facility, the applicant shall provide a cash bond of $120,000 to the Shire of Toodyay as a performance guarantee against the satisfactory completion of the rehabilitation of the site, such funds to be held in an interest bearing account, with the interest forming part of the bond. The performance guarantee will be refunded at a rate of 50% following completion of the final stage of rehabilitation works and 50% at the conclusion of the three year monitoring period. Any such bond is to be accompanied by a bonding agreement and written authorisation from the owner of the land that the respondent may enter the site to complete or rectify any outstanding work. The respondent will recover the bond, or part thereof as appropriate, for any costs to the respondent in completing and/or rectifying the outstanding works.
Road maintenance
28.The applicant shall be responsible for the cost of maintaining and repairing damage to the roads controlled by the Shire of Toodyay which are used by heavy haulage traffic to deliver Class II waste for disposal at the facility, to the extent that such traffic contributes to the need for such maintenance and repair. Prior to the commencement of operation of the facility, a Road Maintenance Plan based on this principle and including:
(a)an audit of the condition of relevant roads prior the commencement of operation of the facility;
(b)appropriate maintenance standards and associated requirements and responsibilities;
(c)the estimated average annual cost of road maintenance and repairs for the duration of operation of the facility; and
(d)the amount of the contribution to such cost to be paid by the applicant,
shall be lodged with the Shire of Toodyay for approval and the Road Maintenance Plan shall then be implemented throughout the duration of operation of the facility.
I certify that this and the preceding [83] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P McNAB, SENIOR MEMBER
[a1]Should these be in full from Council documents – would be a lengthy list or should we refer to the relevant Exhibit??
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