PHOENIX LAND DEVELOPMENT PTY LTD and SHIRE OF SERPENTINE-JARRAHDALE

[2006] WASAT 278

PHOENIX LAND DEVELOPMENT PTY LTD and SHIRE OF SERPENTINE-JARRAHDALE [2006] WASAT 278

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2006] WASAT 278
Act:	TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)
Case No:	DR:123/2002	Heard:	17 AUGUST 2006
Coram:	MR D R PARRY (SENIOR MEMBER)	Delivered:	17/08/06
No of pages:	20	Judgment Part:	1 of 1
Result:	Application for review allowed in part Development approval granted subject to conditions
Category:	B
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Parties:	PHOENIX LAND DEVELOPMENT PTY LTD SHIRE OF SERPENTINE-JARRAHDALE
Catchwords:	Town planning – Development application – Inert landfill – Mediated outcome – Application for consent orders – Leave previously granted for resident objector to make submission – Allegation by objector of negligence by objector in relation to environmental reports Development approval granted – Practice and procedure – Application for suppression order in relation to objector – Fear of "victimisation"
Legislation:	Environmental Protection Act 1986 (WA) Planning and Development Act 2005 (WA), s 242, s 252(1) Shire of Serpentine-Jarrahdale Town Planning Scheme No 2, cl 3.2.5, cl 5.10.1, cl 6.3, cl 6.4.2 State Administrative Tribunal Act 2004 (WA), s 61(1), s 61(4), s 61(4)(d), s 61(4)(h), s 62(3) Town Planning and Development Act 1928 (WA), s 8A(1), s 62
Case References:	McLean Recycling Industries v Shire of Serpentine-Jarrahdale [2004] WATPAT 83 Re Bromfield, Stipendiary Magistrate; Ex parte West Australian Newspapers Ltd (1991) 6 WAR 153 Nil

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) CITATION : PHOENIX LAND DEVELOPMENT PTY LTD and SHIRE OF SERPENTINE-JARRAHDALE [2006] WASAT 278 MEMBER : MR D R PARRY (SENIOR MEMBER) HEARD : 17 AUGUST 2006 DELIVERED : Edited reasons delivered extemporaneously on 17 AUGUST 2006 FILE NO/S : DR 123 of 2002 BETWEEN : PHOENIX LAND DEVELOPMENT PTY LTD

Applicant

AND

SHIRE OF SERPENTINE-JARRAHDALE
Respondent

Catchwords:

Town planning – Development application – Inert landfill – Mediated outcome – Application for consent orders – Leave previously granted for resident objector to make submission – Allegation by objector of negligence by objector in relation to environmental reports - Development approval granted – Practice and procedure – Application for suppression order in relation to objector – Fear of "victimisation"

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Legislation:

Environmental Protection Act 1986 (WA)

Planning and Development Act 2005 (WA), s 242, s 252(1)
Shire of Serpentine-Jarrahdale Town Planning Scheme No 2, cl 3.2.5, cl 5.10.1, cl 6.3, cl 6.4.2
State Administrative Tribunal Act 2004 (WA), s 61(1), s 61(4), s 61(4)(d), s 61(4)(h), s 62(3)
Town Planning and Development Act 1928 (WA), s 8A(1), s 62

Result:

Application for review allowed in part

Development approval granted subject to conditions

Category: B

Representation:

Counsel:

Applicant : Mr I Rogers
Respondent : Mr PL Wittkuhn

Solicitors:

Applicant : Hardy Bowen
Respondent : McLeods

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

McLean Recycling Industries v Shire of Serpentine-Jarrahdale [2004] WATPAT 3
Re Bromfield, Stipendiary Magistrate; Ex parte West Australian Newspapers Ltd (1991) 6 WAR 153

Case(s) also cited:

Nil

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REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 Phoenix Land Development Pty Ltd sought review of the refusal of a development application for the placement of inert fill at an existing inert landfill facility.

2 Following lengthy mediation, during which the parties were advised by environmental experts, the parties requested the Tribunal to make consent orders granting development approval, subject to detailed and onerous environmental conditions.

3 As the Town Planning Appeal Tribunal had granted a resident objector leave to make a submission in relation to the application, the Tribunal required the parties to provide the objector with a copy of the consent orders and any evidence on which they relied in support of the consent orders. The objector was given notice of the hearing and was represented at the hearing by her husband who made submissions on her behalf.

4 Following the hearing, the Tribunal gave an oral decision in which it granted development approval. The Tribunal determined that the environmental and health impacts of the development were acceptable.

5 Prior to the publication of the Tribunal's reasons in written form, the objector applied for a suppression order in relation to her name and submission on the basis that she feared that she would be victimised.

6 The Tribunal's reasons, taken from the transcript and edited in minor respects to aid clarity, were as follows. The application for the suppression order is considered at the end of these reasons.

Introduction

7 These proceedings involve an application brought pursuant to s 8A(1) of the Town Planning and Development Act 1928 (WA) (TPD Act) (see now Planning and Development Act 2005 (WA) (PD Act), s 252(1)) for review of the decision of the Shire of Serpentine-Jarrahdale (Shire) to refuse development approval for the placement of inert landfill on land comprising an existing inert landfill facility at Lot 1 Jackson Road, Oldbury (site).

8 The portion of the site on which the development application proposes the placement of fill is approximately 250 metres in length and

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approximately 40 - 80 metres in width and has an area of approximately 2 hectares. The height of the proposed landfill is 2.5 metres, which is consistent with the height of areas which have already been filled within the existing facility. Development approval for the existing facility was apparently granted by the Minister for Planning in April 1999.

9 In July 2002, the Shire granted retrospective development approval for the existing facility. There is an existing stormwater drain and an existing leachate drain, separated by a clay bund and a noise abatement bund at or adjacent to the eastern, southern and western boundaries of the adjoining lot to the south, which also forms part of the existing landfill facility. The drains and bunds then continue along the eastern and western boundaries of the site and bisect the site immediately to the north of the area the subject of the proposed fill, although there may need to be some additional work on the northern side of the proposed fill to complete the leachate drain.

10 The result is that the entire existing and proposed landfill area is essentially surrounded by the drains and bunds. There is also an existing leachate dam on the site and an existing leachate dam on the adjoining property to the south, which are connected to the leachate drain system. The northern half of the site comprises Bush Forever, low closed forest, woodland and open shrubland. The proposed landfilling area is immediately adjacent to the Bush Forever area and is separated from it by the drains and bunds referred to. To the east of the site is a conservation management category wetland. Two residences are located within 150 metres of the site.

11 "Inert landfill" is defined in the Landfill Waste Classification and Waste Definitions 1996 published by the Department of Environment as comprising six types of fill. These are:

1) clean fill;

2) Type 1 inert waste, which is building and demolition waste, not mixed with other waste and not including asbestos;

3) contaminated solid wastes meeting waste acceptance criteria specified for Class 1 land fills;

4) Type 2 inert waste, which is used, rejected or unwanted tyres with specific licence conditions;

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5) Type 3 inert waste, which is waste material from Department of Environment licensed secondary waste treatment plants, subject to Department of Environment approval; and

6) Type 1 special waste, which is specifically managed asbestos waste, such as stabilised asbestos waste in bonded mix.

12 Importantly, inert landfill does not include putrescible, hazardous, intractable or biomedical wastes.

13 The site is zoned "Rural" under the Shire of Serpentine-JarrahdaleTown Planning Scheme No 2 (LPS 2 or Scheme). The proposal constitutes a use not listed. Clause 3.2.5 of LPS 2 provides that:

"If the use of land for a particular purpose is not specifically mentioned in the zoning table and cannot reasonably be determined as falling within the interpretation of one of the use categories the Council may:

(a) determine that the use is not consistent with the objectives and purpose of the particular zone and is therefore not permitted; or

(b) that the proposed use may be consistent with the objectives and purpose of the zone and thereafter follow the advertising procedures of Clause 6.3 in considering an application for planning consent."

14 The objectives of the "Rural" zone are stated in cl 5.10.1 of LPS 2 as follows:

"The purpose and intent of the Rural Zone is to allocate land to accommodate the full range of rural pursuits and associated activities conducted in the Scheme Area."

15 The Shire considers that the proposed use may be consistent with the objectives and purpose of the "Rural" zone. The Tribunal agrees. In terms of the range of rural pursuits and associated activities conducted in the Scheme area, it is to be noted that the range of uses contemplated in the "Rural" zone include extractive industry, noxious industry, light industry, market, motel and public amusement. The Shire may, therefore,
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at its discretion, permit the proposed development, after notice of the application has been given in accordance with cl 6.3 of LPS 2.

16 Clause 6.4.2 of LPS 2 sets out eight matters for which the Shire and the Tribunal on review must have regard in the determination of a development application. These considerations include, materially, any submissions received, the orderly and proper planning of the locality and the preservation of the amenity of the locality.

17 Notice of the development application was given in accordance with cl 6.3, and 11 submissions were received, four in support and seven in opposition to the development application. The submissions in opposition to the development application related principally to potential water contamination, leachate run-off, noise impacts and the need for rehabilitation of the site.

The Shire's determination and lodgement of appeal

18 In July 2002, the Shire accepted its officer's recommendation to refuse the development application for the following two reasons:

"1. The placement and deployment of additional fill on the subject land is contrary to the 50 metre buffer distance to the adjoining Bush Forever site located to the north.

2. The placement and deployment of additional fill on the subject land will be located within the 150 metre buffer zone [of a dwelling] prescribed by the draft Code of Practice 'Inert Landfilling Operations' (1997)."

19 In September 2002, the applicant's predecessor in title appealed to the former Town Planning Appeal Tribunal (TPAT) against the refusal of development approval. The Shire maintained its two grounds for refusal in the appeal and added the following two grounds:

"3. The Code of Practice as a planning policy must be afforded due weight. The application of the Code of Practice to any particular proposal must be considered on the merits of the particular proposal. The application of the Code of Practice for the proposal under appeal has been considered on the merits of the proposal and is appropriate.

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4. The placement and deployment of additional fill on the subject land would be contrary to the Water and Rivers Commission buffer distance of 50 metres from the edge of wetland dependent vegetation. The buffer is appropriate on the merits of the particular proposal."

20 It appears that the appeal did not progress in any substantive way, because the proposal the subject of the development application was referred to the Environmental Protection Authority (EPA) for environmental assessment under the Environmental Protection Act 1986 (WA).

Leave granted to Mrs Nield to make submissions

21 Mrs Christine Nield objected to the development application and in April 2003 made an application to TPAT for leave to make a submission in relation to the appeal, pursuant to s 62 of the TPD Act (see now PD Act s 242). The President of TPAT, Mr Peter McGowan, considered Mrs Nield's application on 19 April 2004.

22 Notwithstanding the fact that Mrs Nield lives approximately 1 kilometre from the site and that, at the time, the Shire actively contested the appeal, in part because of the impact on residential properties closer to the site than Mrs Nield's, Mr McGowan granted Mrs Nield's application to make a submission: see McLean Recycling Industries v Shire of Serpentine-Jarrahdale [2004] WATPAT 83. Mr McGowan emphasised at [6] of his decision that the leave he granted was simply to make submissions, not to be joined as a party. In the course of his reasons, Mr McGowan noted that Mrs Nield is concerned in particular about dust, noise and other impacts of the proposed development on her residential amenity.

Environmental assessment and appeal

23 The EPA decided not to formally assess the proposal. Four appeals were then made to the Minister for Environment against the EPA's decision, including one by Mr Paul Nield, Mrs Nield's husband. The appeals were considered together. The grounds of appeal were as follows:

"• Potential for contamination of ground and surface waters;

• Filling within 50 metres of the adjacent Bush Forever site and wetland;

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• Final landfill height and post closure management;

• Dust lift-off; and

• Aboriginal heritage."

24 The appeals were dismissed on 2 December 2003. The appeal decision summary report (appeals report) includes the following in relation to the first ground of appeal, namely potential contamination of ground and surface waters:

"This proposal is for the landfilling of clean fill and inert waste (type 1) at the premises and that inert waste (type 1) mainly consists of building and demolition waste. On this basis, the potential for contamination of ground and surface water is considered to be minimal. Due to the inherent nature of some demolition material, it is recognised that some levels of contamination (organochlorins and organophosphate pesticides) may exist; however, the leachability of these is expected to be low. In the event that the waste is contaminated, the containment concentration (and possible leachability) must be below the levels which would be required under licence conditions ...

The Department of Environmental Protection (DEP) has advised that the proponent has, in fact, constructed a leachate containment system designed to capture any leachate produced at the landfill and directed to dedicated sewerage ponds and that this system was approved as meeting the intent of the works approval conditions issued for this [sic] premises. It is understood that this leachate drain has been constructed around the perimeter of the premises including Lot 1 and that there are two dedicated ponds designed to collect and store any leachate and run-off collected from the site ...

Whilst it appears that there may be a low risk of contamination from the landfilling of inert wastes, previous monitoring has not detected levels of contamination above relevant standards for similar waste types."

25 The appeals report includes the following in relation to the second ground of appeal, namely filling within 50 metres of adjacent Bush Forever site and wetland:
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"Comment on the proposal to fill was sought from the [Water and Rivers Commission (WRC)] and the Department of Planning and Infrastructure (DPI). The WRC has accepted a reduced buffer distance of 10 metres (to begin from the furthermost extent of the wetland dependent vegetation) for the wetland on the basis that a vegetated bund may better aid in the retention of values of the adjacent wetland site when compared to the degraded nature of the buffer area ...

The DPI has advised that due to the fact that a leachate drain and bund have already been constructed immediately abutting the Bush Forever site and that potential contamination of this Bush Forever site is minimal, it is possible that the reduced setback of 50 metres previously recommended to the Bush Forever site could be reduced. It is also advised that a revegetation plan and plant species list (endemic plant species) should be provided and approved for the proposed revegetation works for the bunds prior to any construction of fill occurring."

26 The appeals report includes the following in relation to the fourth ground of appeal, namely dust lift-off:

"The appellant has raised concerns regarding dust lift-off from landfilling operations and that this dust may be potentially contaminated. You also believe that the bunds constructed around the boundary of the premises gives rise to wind turbulence which causes dust events. As advised previously, this proposal is for the landfilling of clean fill and inert waste type 1. Inert waste type 1 mainly consists of building and demolition waste and, on this basis, the potential for contamination is considered to be minimal. When assessing a proposal, the EPA considers if other [decision-making authorities (DMAs)] can manage certain aspects of a proposal.

In this instance, the EPA considers that the [Department of Environmental Protection] (as a DMA) can readily manage dust impacts from the facility under the provisions of Part V of the Environmental Protection Act 1986, that is, through a licence. The DEP has advised that it will require all areas on the premises which have the potential to generate dust to be kept in a moist condition such that no visible dust crosses the boundary of the premises. This will also be regulated by the DEP."

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27 The appeals report's conclusion was as follows:

"It is considered that the issues raised in appeals can be adequately managed under the provisions of Part V of the Environmental Protection Act 1986 and through the development approval conditions which can be applied to the site if additional landfilling on Lot 1 is approved by the Shire and on that basis the Minister has supported the EPA's decision of the level of assessment."

Mediation before TPAT and SAT

28 The parties have embarked on what can be described as a marathon mediation process involving five sessions over about two years, as well as, it appears, a considerable amount of work and discussion between the parties outside the mediation sessions. The mediator was a senior member of TPAT and is now a senior sessional member of SAT. A report to the Shire dated 27 March 2006 includes the following:

"There has been a long running mediation in [the] appeal. The appeal has been taken over by the now owners of the land. As a result of a significant amount of further information and preparation of a post-closure management plan in the mediation process the point has now been reached where council is in a position to decide whether it will consent to the State Administrative Tribunal issuing a planning approval ...

Now that a more comprehensive post-closure management plan has been put forward and the Shire has also engaged an independent environmental consultant to comment on the landfill it is considered that the council can support approval with a significantly reduced bond ...

It is recommended that SAT be advised that council consents to the approval of the developments on Lot 1 Jackson Road and Lot 12 Bird Road subject to the conditions as outlined in the recommendation."

29 This recommendation was accepted by the Shire with some amendments to the proposed conditions.

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Consent orders

30 Following the mediation, the parties now seek consent orders upholding the application for review in part and granting development approval, subject to 16 conditions.

31 The conditions are detailed and onerous in relation to environmental safeguards.

32 Condition 2, in effect, defers commencement of the landfill operation under the approval until four test pits are made and sampling in the existing landfill is conducted which demonstrates compliance with objective standards in relation to groundwater quality.

33 Condition 3 restricts the approval to inert fill.

34 Condition 5 not only requires a bond to secure compliance with conditions of approval, but ensures that the Shire has a right of access to the site to do any works necessary to give effect to conditions, including testing, and to be compensated for the cost out of the bond.

35 Condition 7 requires a surface land form and recontouring and vegetation management plan to be lodged with and approved by the Shire and then implemented.

36 Condition 8 requires all leachate to be contained within the landfill facility.

37 Condition 12 requires that any windblown waste is to be regularly removed from the premises, fences and roads and that any windblown waste emanating from the premises is collected and removed on a weekly basis or more frequently when directed by the Shire.

38 Condition 13 requires that all areas from which dust may be generated are maintained in a moist condition, so that no visible dust crosses the boundary of the premises.

39 Condition 14 requires an annual monitoring report, including measures to suppress dust and to prevent windblown waste.

40 Condition 15 requires a management plan to be lodged with the Shire, approved by it and then implemented, to ensure that only inert waste is placed on the site.

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Mrs Nield's submission

41 The Tribunal required the parties to provide Mrs Nield with a copy of the consent orders and any evidence on which they proposed to rely in support of the consent orders. Mrs Nield was given notice of the hearing of the application today and was represented by her husband, who made submissions on her behalf.

42 Mr Nield makes essentially three submissions.

43 First, Mr Nield submits that the leachate drains do not work.

44 Second, Mr Nield submits that both environmental reports are "negligent" and that further investigation should be undertaken before any approval is granted.

45 Third, Mr Nield refers to common law on riparian rights and pollution.

Consideration of the application

46 I consider that the correct and preferable decision in this case is to grant development approval, subject to the detailed and onerous conditions jointly proposed by the parties, with three amendments, to which I will come. I am satisfied that the detailed environmental assessment which has taken place since the commencement of the proceedings and the detailed and onerous conditions proposed mean that the Shire's original two reasons for refusal and the two additional reasons formulated after the commencement of the appeal no longer warrant refusal of the development application. I am also satisfied that the environmental and health impacts of the development are acceptable.

47 As noted earlier, the appeals report considered that the potential for contamination of ground and surface water is minimal. The existing leachate and stormwater system has been designed to collect and store any leachate and run-off from the site. The Water and Rivers Commission and the Department of Planning have each accepted that the circumstances of the case permit the buffer distance of 50 metres to the Bush Forever area and wetland to be reduced to the point proposed.

48 Furthermore, as part of the mediation process, the applicant retained Mr Paul Robinson of ENV Australia, environmental scientists, and the Shire retained an environmental engineer employed by Cardno BSD, Mr Andrew Mack, to assess the application and advise them in relation to environmental risk. Both Mr Robinson and Mr Mack attended the

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mediation on 23 January 2006. They also undertook site inspections, reviewed each other's work and had discussions outside the mediation session.

49 In his report to the Shire dated 21 March 2006, Mr Mack stated as follows:

"Landfills accepting inert waste are classified as class 1 facilities and the definition of "inert" is provided within the Landfill Waste Classification and Waste Definitions 1996. Essentially, inert materials are those that are non-biodegradable, non-flammable and not chemically reactive and can include construction and demolition waste, asphalt waste (resulting from road construction) and casting sand. Because these materials are 'inert' and meet the requirements above, they essentially pose little risk to the environment and/or human health and are unlikely to form any leachate or other emissions. Their storage or deposition is therefore usually subject to less stringent criteria than other types of potentially more harmful waste materials.

The location and construction of inert landfill facilities is therefore also subject to similarly less stringent criteria. They can be located in areas which are far more environmentally sensitive than other classes of landfills and are often subject to less scrutiny and fewer design requirements, the premise being that the risk posed by the material contained within these facilities is negligible ...

Given the location of the facility (within clay soils) and the design specifications, it is likely that the operations are, in fact, perhaps potentially superior from an environmental protection perspective than a great number of similar 'inert' facilities. The leachate and drainage system, assuming it is functioning appropriately and as designed, should provide an appropriate risk protection mechanism to ensure that any non-inert leachate is directed to the leachate storage ponds on site where it is retained. The entire system appears to have been designed to ensure that all potential contaminants are retained on site."

50 It is worth quoting Mr Mack's summary to his letter to the Shire in full, insofar as it relates to the proposed development. His reference to CBSD is to Cardno BSD:
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"CBSD has been involved with the investigations associated with the Oldbury landfill since September 2005. This has involved discussions with the Shire of Serpentine-Jarrahdale, a review of the preliminary post-closure management plan Class 1 - Inert Landfill Jackson and Bird Roads Oldbury WA prepared by ENV Australia, subsequent discussions with ENV, a site inspection, document review and attendance at mediation on 23 January 2006.

The work described above has allowed CBSD to undertake a full and proper assessment of the operations, their location, the design of the facility, their regulatory regime and potential implications with respect to the environment and human health. CBSD therefore provides the following concluding statements with respect to this work:

• The operations are potentially constructed within an ideal setting in that based on the available information the landfill appears to be constructed within a clay soil formation. This is likely to have the effect of retaining any leachate from the facility;

• The information provided with respect to the design of the facility (particularly with respect to the draining and leachate collection system) appears to demonstrate that it is appropriately engineered and would be more than sufficient for an inert landfill facility;

• The site appears to have been the subject of an intensive period of scrutiny in past years (most notably through the Standing Committee process). This has suggested that the operations pose no risk to the environment and/or human health and have been appropriately managed and regulated. It would also be fair to say that no similar facility has been subjected to the same level of investigation;

• The preliminary post-closure management plan reviewed by CBSD was lacking in detail and failed to provide appropriate justification and evidence to support the conclusions drawn. Further discussions and evidence has since been provided by ENV to rectify this;

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• Notwithstanding the details provided above CBSD suggests that further information is required to further quantify the materials disposed of within the landfill and therefore the potential risks to the environment and/or human health. Information is also required to verify that the systems on site are appropriately engineered to mitigate the potential risk. To this end a sampling and analysis programme (SAP) is currently being developed by ENV with an independent review being undertaken by CBSD;

• CBSD suggests that it is more than likely that the operations will pose little risk to either the environment or human health but the intrusive work provided for within the SAP should provide further demonstrable evidence supporting this assertion;


...

• With respect to the matter of extending the landfill area further to the north (effectively to the boundary of the Bush Forever and wetland site) it is recommended that this should be contingent on the findings of the SAP described above. It would be reticent to suggest that expansion into the northern areas of Lot 1 could occur without having demonstrable evidence to indicate that the operations to the south have been undertaken appropriately and that the systems in place (leachate and stormwater etc) have performed adequately. This need not however be achieved by a simple refusal for Lot 1. An approval subject to a condition that no further filling on Lot 1 is to occur until and unless groundwater test results are demonstrated to be satisfactory would also be effective. It is also suggested that any expansion will also be subject to scrutiny from the DOE and would be likely to warrant an application for works approval (at the very least)." (Emphasis added.)

51 Condition 2, as proposed by the parties, gives effect to the last point made by Mr Mack. There is a question as to whether the Tribunal should grant approval in circumstances where the result of this information is not
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available to it. The Tribunal will not generally grant approval, even by consent, where essential information as to risk or impact is not before it.

52 However, in this case, approval subject to condition 2 is appropriate, because of:

(i) the expert evidence that "it is more than likely that the operations will pose little risk to either the environment or human health";

(ii) the solid factual basis for this opinion in terms of the nature of the soil, the existing leachate and stormwater management system, the position of other authorities and experience referred to in the environmental appeals report; and

(iii) the fact that the consent will not permit filling to occur unless the further testing proves satisfactory in terms of known and objective standards.

53 I am satisfied on the qualified evidence that the development application warrants approval, subject to conditions. The evidence and conditions satisfactorily address Mrs Nield's principal concerns referred to in Mr McGowan's decision and Mr Nield's submissions made today.

54 In particular, as to Mr Nield's first submission, the environmental appeals report noted the Department of Environment's advice that the leachate containment has been constructed to contain leachate on site. Moreover, condition 8 requires that the leachate drains be erected and installed and then maintained in a fully functioning state around the area the subject of the proposed fill. Failure to comply with this condition, as indeed any condition, involves a breach of the PD Act.

55 In relation to Mr Nield's second submission, the environmental reports are not negligent. The environmental engineers appear to have approached their task in a professional, considered and appropriate manner. The work done on behalf of the applicant has been subject to peer review undertaken on behalf of the Shire. The Tribunal does not consider that further investigation should be undertaken before approval is granted, although it notes that there will be further investigation before the proposed fill can be placed on the site. However, the evidence before me shows that the development is likely to pose little risk to either the environment or human health.

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56 In relation to Mr Nield's third submission, riparian rights or the common law concerning pollution do not bear on the correct and preferable decision in this case. The effect of the environmental assessment and conditions is that impacts will be satisfactorily addressed on site. Although Mrs Nield's concerns appear to be genuinely held, they are misplaced in light of the detailed environmental assessment which has been undertaken during the proceedings and the conditions subject to which approval will be granted.

57 Finally, although the proceedings have taken far longer to conclude than ought to have been the case, the parties are to be congratulated for the sensible and constructive approach that they have taken to mediation and discussion. Their expert advisers are also to be congratulated for the professional and constructive approach they have taken to their discussions.

58 The result, as is so often the case through mediation facilitated by the Tribunal, is that a superior community planning outcome has been able to be achieved compared to a win/loss Tribunal determination.

Orders

59 The Tribunal makes orders in accordance with the consent orders signed by the representatives of the parties with the following amendments.

60 Condition 1, which requires that the development is to comply with the plans, should be supplemented by the following two sentences:

"The height of fill placed on the area to be filled must not exceed 2.5 metres. On the cross section the dimension of 2.0 metres to the top of the fill is amended to 2.5 metres and the dimension of 2.5 metres to the top of the noise abatement bund is amended to 4.8 metres."

61 The insertion of these two sentences is required, in the Tribunal's opinion, for the avoidance of doubt. It emerged during the course of the hearing today that there is a discrepancy between the two plans annexed to the consent orders, in that whereas the plan of the proposed development indicates that the height of fill in the area to be filled is 2.5 metres and that the top of the noise abatement bund is 4.8 metres, the cross section, while not to scale, indicates that the top of the fill is 2.0 metres and that the top of the noise abatement bund is 2.5 metres.

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62 The Tribunal had the benefit of evidence from Mr Robinson and Mr Mack, who each indicated that the assumption on which they had premised their work and discussions accorded with the height of the proposed fill being 2.5 metres and the height of the noise abatement bund being 4.8 metres.

63 Condition 6, which requires notification in the form of a memorial on title, should be amended to delete the words "section 12A of the Town Planning and Development Act 1928" and to substitute in their place the words "section 165 of the Planning and Development Act 2005".

Application for suppression order

64 Following the Tribunal's decision set out above, Mrs Nield applied for an order suppressing publication of her name and "any personal remarks in relation to the application", on the basis that she feared that she would be "victimised". The application is not opposed by Phoenix Land Development Pty Ltd but is opposed by the Shire.

65 Section 62(3) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) provides that the Tribunal may, in the circumstances described in s 61(4), order that any evidence given before the Tribunal, the contents of any documents produced to the Tribunal or any information that might enable a person who has appeared before the Tribunal to be identified, is not to be published. The circumstances described in s 61(4) are:

"(a) to avoid endangering the national or international security of Western Australia or Australia;

(b) to avoid damaging inter-governmental relations;

(c) to avoid prejudicing the administration of justice;

(d) to avoid endangering the physical or mental health or safety of any person;

(e) to avoid offending public decency or morality;

(f) to avoid endangering property;

(g) to avoid the publication of confidential information or information the publication of which would be contrary to the public interest; or

(h) for any other reason in the interests of justice."

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66 The Tribunal does not consider that any of the circumstances described in s 61(4) of the SAT Act are established. In particular, a generalised fear that Mrs Nield will be "victimised" is not sufficient to establish that her safety would be endangered (s 61(4)(d)) or that, for any other reason, it is in the interests of justice to make a suppression order (s 61(4)(h)).

67 Furthermore, it is a "fundamental principle of the administration of justice that it be carried out in public": Re Bromfield, Stipendiary Magistrate; Ex parte West Australian Newspapers Ltd (1991)6 WAR 153 at 165 per Malcolm CJ; SAT Act s 61(1). The hearing in this case was an open hearing. Although only the representatives of the parties, their expert witnesses and Mr Nield attended the hearing, it was publicly notified and open to the public. Had a member of the public attended the hearing, she or he would have heard the reasons set out above. It is appropriate that, subject to the establishment of one or more of the circumstances listed in s 61(4) of the SAT Act, written reasons, which are simply an edited version of oral reasons given at a public hearing, should not exclude any part of the reasons. Moreover, TPAT's reasons for decision, granting Mrs Nield leave to make a submission and identifying her by name, is available in the public domain, including on Mrs Nield's application for a suppression order is, therefore, dismissed.

I certify that this and the preceding [68] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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MR D R PARRY, SENIOR MEMBER