PMR QUARRIES PTY LTD and CITY OF MANDURAH
[2010] WASAT 87
•18 JUNE 2010
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: PMR QUARRIES PTY LTD and CITY OF MANDURAH [2010] WASAT 87
MEMBER: MR P McNAB (MEMBER)
MR P CURRY (SESSIONAL MEMBER)
HEARD: 3, 5 AND 6 NOVEMBER 2010
FINAL SUBMISSIONS RECEIVED ON 9 MARCH 2010
DELIVERED : 18 JUNE 2010
FILE NO/S: DR 298 of 2006
BETWEEN: PMR QUARRIES PTY LTD
Applicant
AND
CITY OF MANDURAH
Respondent
Catchwords:
Town planning - Development application - Extractive industry - Raw materials - Limestone and sand quarrying - Rural area - Area presently zoned 'Rural' - Area destined for 'Rural Residential' use - Former quarry - Use not prohibited but use required Shire approval - Objections from neighbours concerning preservation of rural residential lifestyle - Amenity concerns regarding dust and noise - Adequacy of water supply - EPA deciding to not formally assess application - Significance of State Policy on basic raw materials - Policy favouring continued supply of such basic raw materials - Policy identifying site as an extraction area in the 'short term' - Applicant satisfactorily addressing regulatory concerns - Application for review allowed given scale and relatively low impact of proposed operation - Approval given for eight year operation - Conditions to be imposed limiting environmental and amenity impacts - Words and phrases: 'short term'
Legislation:
City of Mandurah Town Planning Scheme No 3, cl 4.7.4.1(ad), Appendix 1
Environmental Protection Act 1986 (WA)
Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA)
Environmental Protection (Noise) Regulations 1997 (WA)
Occupational Safety and Health Regulations 1996 (WA)
Peel Region Scheme
Result:
Review allowed and conditional approval given
Category: B
Representation:
Counsel:
Applicant: Mr I Rogers
Respondent: Mr C Slarke
Solicitors:
Applicant: Hardy Bowen
Respondent: McLeods Barristers & Solicitors
Case(s) referred to in decision(s):
AGC Earthmoving Group Pty Ltd and Shire of Mundaring [2008] WASAT 151
Australian Trade Commission v Hellay Laboratories Pty Ltd (2001) 114 FCR 197; (2001) 67 ALD 1
Barton v Wodogna RC [2003] VCAT 1649
Breadsell & Anor v Bundaberg City Council [2004] QPEC 60
Doncaster Road Property Partnership v Manningham CC [2004] VCAT 2445
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
This review arose from the refusal, back in 2006, of the City of Mandurah to give the applicant, PMR Quarries Pty Ltd, planning approval for limestone and sand quarrying in respect of a 90 hectare site on the Old Coast Road at Herron. The site was that of a former quarry. The land is currently zoned as 'Rural' but was destined to become, like its neighbouring properties, 'Rural Residential'. Indeed, many neighbours objected to the proposal upon the basis that their rural residential lifestyle would be adversely affected by the proposed operation.
After weighing up these concerns and other matters, the Tribunal allowed the review and gave conditional approval to the proposed development. Importantly, the duration of approval would be for two consecutive terms of four years, making a total of eight years. A review of the operation would take place after the first four year period.
The Tribunal reached its position having particular regard to the expert evidence and 'the relatively small impact of the proposal; the history of the site; and the expectations and assumptions of the overall planning framework'. A State policy, which tended to favour the exploitation of the State's basic raw materials (including limestone), had expressly identified the site as an extraction area, in effect, to be developed in the 'short term'.
The Tribunal announced its decision after hearing the evidence and after a site visit, but delayed the publication of its reasons until after the parties had negotiated, with the help of their experts, complex environmental and amenity protection conditions. Eventually these conditions were agreed upon between the parties, with the assistance of a member of the Tribunal. On this point, the practice adopted by the Tribunal was recorded by the Tribunal as follows:
To this end Mr Curry, a member of the Tribunal (and an expert in his own right) as originally jointly constituted to hear the matter, was expressly released with the consent of the parties, but without prejudice to his ability to participate in these reasons (or indeed, if necessary, to rule upon any outstanding conditions) to facilitate through mediation this process of the formulation of appropriate conditions.
At the end of this process, the only remaining matter where no consensus could be reached was with respect to the duration of the operation. The applicant submitted that a term of 15 years was appropriate; the respondent City of Mandurah submitted that five years was reasonable, especially given the 'short term' reference in the State Policy on raw materials. As indicated, the Tribunal considered that a total period of eight years was appropriate.
What follows are the formal reasons for the decision pronounced by the Tribunal late last year, and the Tribunal's decision and reasons on the issue of the duration of the approval.
Introduction
This review concerns the refusal of the respondent City of Mandurah (City) to grant planning approval to PMR Quarries Pty Ltd (PMR or applicant) for an extractive industry (limestone and sand quarrying) on their land at Lot 5, Old Coast Road, Herron (Lot 5 or subject land).
The Tribunal has upheld the review and has approved the development upon detailed conditions, bringing to an end a matter that commenced in the Tribunal back in 2006.
Critically, we have reached the view that the scale of the proposed operations is relatively low impact and can be managed in a fashion which brings relative certainty to the course of the works over the duration of the development.
At the conclusion of the evidence, and after a site visit and deliberation, the Tribunal pronounced that it was satisfied that conditional approval for a fixed period ought to be given to the proposed development. In summary, this position was reached having regard to that evidence (particularly the expert evidence); the relatively small impact of the proposal; the history of the site; and the expectations and assumptions of the overall planning framework. The pronouncement was also based upon clarification during the hearing as to the scope of the project in relation to the subject land.
These are therefore our written reasons for that decision, reasons which we indicated would be given at a later date. Importantly, at the time that a decision was pronounced, the Tribunal indicated that the efforts of the parties should then be directed to working out what that fixed period should be, and otherwise regulating the operation and ameliorating the environmental and amenity impacts (such as they were) by the formulation of comprehensive conditions.
To this end Mr Curry, a member of the Tribunal (and an expert in his own right) as originally jointly constituted to hear the matter, was expressly released with the consent of the parties, but without prejudice to his ability to participate in these reasons (or indeed, if necessary, to rule upon any outstanding conditions) to facilitate through mediation this process of the formulation of appropriate conditions. This process, as often happens, took several months of negotiation. We note that the experts' evidence and concerns (see below) were, in effect, fed back into the final regulatory outcome through this extended process.
The parties and their legal representatives are to be congratulated on their participation in this process which has saved both time and money, focused effort on the real issues to be determined and produced, arguably, a better planning outcome.
In the result, all of the conditions were argued out and agreed upon by the parties, except as to the fixed period of approval. We will return to this matter below and give our reasons for deciding on a period of eight years (comprising an initial period of four years, and then a further period of four years, subject to satisfactory compliance to date with the conditions imposed).
Accordingly, the scope of what has been finally approved is to be found in those conditions and the associated plans which are referred to in our formal orders set out at the conclusion of these reasons. These orders, in effect, include the finally agreed staged areas of development, and the associated works that will ameliorate the impact of the proposal on the locality.
Context of the subject land
The following description, history and context of the subject land is given by the respondent, and is common ground (emphasis added):
The subject land … :
(a)has a total area of approximately 90.7 [hectares];
(b)is located on the eastern side of Old Coast [R]oad, approximately 600 metres from Lake Clifton, and 1.5 to 1.9 [kilometres] from the Lake Clifton thrombolites;
(c)contains a quarry pit, the land having been [sic] historically been used for [an] extractive industry from time to time from around 1981 until 2004;
(d)is partly cleared and is otherwise covered with remnant vegetation, although much of the understorey has been degraded due to previous quarrying operations and cattle grazing.
Lot 5 is owned by [PMR]. WA Limestone is the business name of that company.
During 1995 the parent lot of which Lot 5 at that time formed part was subdivided by [PMR] in order to create 26 rural residential lots.
The issues to be determined
The following main issues were agreed upon by the parties:
1)Whether the proposed extractive industry is an appropriate land use in the locality:
a)having regard to the recommended buffer distances in the Environmental Protection Authority's Guidance for the Assessment of Environmental Factors Separation Distances Between Industrial and Sensitive Land Uses No 3 as to existing residences; and
b)otherwise as an outcome of orderly and proper planning.
2)Whether the noise emissions that the proposed extractive industry would generate are acceptable;
3)Whether the dust emissions that the proposed extractive industry would generate are acceptable; and
4)Whether there is adequate water available to deal with the dust management issues.
As we have indicated, none of these matters or concerns, either singularly or collectively, were, in the result, sufficient impediments to the grant of conditional planning approval.
The planning framework, history of the subject land and the planners' evidence
We first note that in respect of an earlier version of the development, the Environmental Protection Authority (EPA) determined not to formally assess the proposal and an appeal against that decision of the EPA was dismissed by the Minister in early 2009 (Appeal Determination). We will return to one aspect of the Appeal Determination below, in relation to the regulation of dust emissions.
We turn to consider the planning instruments.
So far as the finally approved development is concerned, all of the relevant land is currently zoned 'Rural' under both the City of Mandurah Town Planning Scheme No 3 (TPS 3) and under the Peel Region Scheme (PRS). The respondent also noted that the majority of the land surrounding Lot 5 was zoned 'Rural Residential' although 'some [of the] land to the west and north west' was zoned 'Rural' under TPS 3.
An initial concern arose as to whether the proposed development extended to parts of Lot 5 which were zoned 'Rural Residential' under TPS 3. It appears that, as Mr Slarke, counsel for the respondent, submitted, by reason of cl 4.7.4.1(ad) of TPS 3, neither the City nor the Tribunal could approve any extractive industry on those relevant parts of the subject land by reason of an express prohibition on extraction and quarrying. It appears that this issue disappeared in July 2009 when a 'Second Revised Proposal' was submitted by the applicant.
Because of the manner in which the proceeding unfolded, the finally approved development could be seen as, in effect, arising out of the 'fourth version' of what was originally proposed. However, the hearing initially proceeded on what Mr Slarke called the 'third iteration in terms of the design of the pit'. In the event, the approved proposal is, as has been noted, confined to land zoned 'Rural'.
The land use 'Industry Extractive' is defined in Appendix 1 of TPS 3 but, curiously, does not appear in any zoning table of TPS 3. The respondent noted that:
It is unclear whether the proposed Extractive Industry should be treated as a use not listed, and therefore permissible pursuant to [cl] 3.2.3, or as a not permitted use pursuant to [cl] 3.2.2 of TPS 3.
The City itself seems to have adopted the first course and, for example, advertised the proposal for public comment, ultimately adopting the central position that:
To the extent the proposed Extractive Industry is permissible within the Rural zone, it is not an appropriate land use in the locality.
In our view, although the matter is not completely free from doubt, the better view is that an extractive industry may be approved in a 'Rural' zone under TPS 3. This would seem to follow, in part at least, from the express prohibition on quarrying land zoned 'Rural Residential'. The review has proceeded upon this basis.
Whether, in the circumstances, it is 'an appropriate land use in the locality' is therefore the real question in this review. On this issue, the respondent submitted that:
To grant approval for the proposed Extractive Industry would not be consistent with orderly and proper planning as:
(a)no provision of [TPS 3] suggests that an Extractive Industry is a use which is consistent with the purpose and intent of the Rural zone;
(b)Lot 5 is identified as land which will be rezoned to Rural Residential, consistent with other land in the locality;
(c)the majority of land in the locality has been rezoned Rural Residential, and is being progressively developed for that purpose;
(d)[PMR] contributed to the development pressure within the locality by the rezoning and subsequent subdivision and development for Rural Residential purposes of the northern part of the parent lot of Lot 5;
(e)an Extractive Industry is plainly inconsistent with the desired future use of Lot 5 and the locality.
Furthermore approval of the proposed Extractive Industry has sterilised the development potential of Lot 3 to the south, and is likely also to sterilise the development potential of Lot 7 to the east and Lot 11 to the west. That result could not be consistent with orderly and proper planning.
With respect to the context of Lot 5, the Tribunal has had regard to the following matters identified by the respondent (emphasis added):
Lot 5 is shown in the Peel Region Scheme - Strategic Minerals and Basic Raw Materials Resource Policy as an 'Extraction Area', reflecting that designation in State Planning Policy 2.4 Basic Raw Materials [SPP 2.4]. Pursuant to SPP 2.4, an Extraction Area is defined as 'Existing extractive industries operating under the Mining Act 1978, the Local Government Act 1996, a regional planning scheme or a town planning scheme. They should be protected in the short term but will eventually be replaced by other uses or reserves'.
Lot 5 is within the study area of the [r]espondent's Lake Clifton/Herron Structure Plan ('Structure Plan'). Pursuant to the Structure Plan, Lot 5 is identified as a Rural Living area with proposed lot sizes of a 2 [hectare] minimum, and 5 [hectare] average.
Lot 5 is recognised as an existing limestone quarry by the [Coastal and Lakelands Planning Strategy - Dawesville/Binningup] ('the Planning Strategy'). The Planning Strategy notes that a 500 metre minimum buffer distance between a limestone quarry and residences is generally recommended where blasting is not required, because of noise and dust emissions associated with the quarrying activity.
The Tribunal has also had regard to the following matter of a 'buffer zone' noted by the respondent:
The [EPA] document Guidance for the Assessment of Environmental Factors Separation Distances Between Industrial and Sensitive Land Uses No 3 ('Guidance Statement No 3') recommends that an Extractive Industry involving sand and limestone extraction involving no grinding or milling works should have a buffer distance of 300 [metres] to 500 [metres] from sensitive land uses, depending on size.
As to adjoining Lot 3 (to the south), the respondent submitted as follows:
… In January 2009 Lot 3 was re-zoned from 'Rural' to 'Rural Residential'. A Subdivision Guide Plan was prepared as a requirement of the scheme amendment process.
The [Western Australian Planning Commission - WAPC] required the Subdivision Guide Plan to be modified to include a notation that the proposed new lot closest to Lot 5 will not be supported by the WAPC until such time as:
(1)the [WAPC] is satisfied that quarrying activities on Lot 5 Old Coast Road have permanently ceased; or
(2)the proponent can satisfactorily demonstrate that the building envelope for this lot will not be affected by unacceptable noise levels from the proposed quarry operation on Lot 5 Old Coast Road; or
(3)the Subdivision Guide Plan has been amended to the satisfaction of the Council and the [WAPC] to the extent necessary to satisfactorily overcome any predicted adverse noise impacts from the quarry site.
As to the Lake Clifton/Herron Structure Plan (an instrument, at the time of hearing, awaiting endorsement from the Western Australian Planning Commission), the Tribunal notes in particular cl 3.1 and Precinct C (which indicate rural residential development) and notation 6 (buffer zones due to quarry activities). Mr Slarke's opening submission on these matters was as follows (emphasis added):
SLARKE, MR: … The way I encourage the [T]ribunal to read [these provisions] is that the City was merely acknowledging the fact that the quarry exists and that that gives rise to planning issues.
McNAB, MR: Yes.
SLARKE, MR: It did not set out a formula as to how those issues would be appropriately dealt with but a clear end use we say in the short term or, in fact, now is rural residential development.
McNAB, MR: That supports your condition for if there was approval for five years, no more than five years [sic].
SLARKE, MR: Yes.
McNAB, MR: And that is to review this at the end of five years or that five years is the likely time frame for all of this to fall into place.
SLARKE, MR: No, well, I will elaborate on that in a moment but the primary contention is that this site is no longer deserving of any protection under the [State's] basic raw materials policy [SPP 2.4].
McNAB, MR: I see.
SLARKE, MR: To the extent it has had protection, that is finished. If that is wrong, we say the longest that that protection could be further extended would be five years, at which time the land should be - at least, if the applicant does not wish to rezone the land, at least it should not preclude any development for rural residential purposes on neighbouring land because, in effect, that is what the protection of this quarry will do.
The applicant called Mr S Fairfoul, an expert planner, who, in particular, drew attention to one of the stated aims of the PRS in relation to the 'timely extraction of … raw materials'; and cl 5.4.3(iii) of the State Planning Policy 2.5 Agricultural and Rural Land Use Planning (SPP 2.5) dealing with such activities as 'generally acceptable' on a casebycase basis 'in rural areas'. Mr Fairfoul thought the proposed use was consistent with the planning framework, particularly the 'Rural' zoning of the subject land. Further, he gave his opinion that:
The [d]evelopment is not the intended ultimate use of the [s]ite, but rather a temporary use to extract the resource. The [s]ite is to be rehabilitated at the completion of mining activities, with the ultimate use being [a] 'RuralResidential' subdivision. This is in accordance with SPP 2.4 and the adopted Lake Clifton/Herron Structure Plan.
On the other hand, Mr Slarke's position is consistent with the evidence of Mr S Allerding, an expert planner called by the respondent. Mr Allerding told the Tribunal that:
[In] the context of this matter, rural residential lots have been created surrounding this site. Whilst it is noted that SPP 2.4 does identify this site as being an extraction area, it only requires protection in the 'short term'. Approval of this application [in its original form] would enable the ongoing operation of quarrying up until 2030. This is considered to amount to [the] 'long term' and beyond the time frame for which SPP [2.4] aimed to protect such a resource from mining. Removal of raw material resources prior to introduction of a sequential use is good planning, however, it is apparent that in this instance, given the scale of operations, it is incapable of managing issues of dust and noise.
The proposal must be considered against what is orderly and proper and as rural residential lots have been created nearby to the quarry site, it is now proper to consider the potential impacts on those lots and only permitting mining activities where it can be soundly demonstrated that those residents will not be adversely affected. It is considered that the applicant has not demonstrated that those residents will not be adversely impacted upon and therefore it would not be proper [or] orderly to approve this application.
As has been indicated, the Tribunal was eventually satisfied that the operation could be properly conditioned to address the concerns alluded to by Mr Allerding. Moreover, the intent of SPP 2.4 would be met by fixing the duration of approval at eight years, as we have done, as this would, in our respectful opinion, broadly meet the concept of 'short term' contemplated by SPP 2.4. This matter is discussed further in some detail, below.
In AGC Earthmoving Group Pty Ltd and Shire of Mundaring [2008] WASAT 151 (AGC Earthmoving Group), at [18], the Tribunal observed as follows:
Importantly, [SPP 2.4] has application to the matters under review. That policy is premised upon the notion that a 'ready supply of basic raw materials close to established and developing parts of the metropolitan region is ... essential in keeping down the costs of land development and contributing to affordable housing.': cl 3.1. At cl 3.4.5 of that policy the following statement appears … :
'3.4.5The policy is designed to facilitate the extraction of basic raw materials close to the major markets in the metropolitan region and to avoid sensitive development close to basic raw material resources which could otherwise inhibit extraction of the resource. The policy also recognises the importance of ensuring the extraction of basic raw materials occurs with minimum detriment to the local amenity and environment ... and in a manner which allows for future use and development consistent with long-term planning intentions for the area.'
Later in its reasons in the same case, at [93], the Tribunal observed '[c]ritically, such an exercise of judgment [in balancing the factors for and against a proposal for extraction in a rural area, the decisionmaker] must also take into account the broadly facilitative premises of State Planning Policy 2.4' (emphasis added).
We are satisfied that, subject to a consideration of the other evidence, the planning framework in this case by itself would not stand in the way of PMR's proposal. Indeed, arguably, the planning framework is generally supportive of such proposals.
Other evidence received by the Tribunal
Apart from the planners' evidence, already referred to, the Tribunal received various witness statements from objectors in the locality, namely Mr J Franks, Mr J Gregory, Mr B Kotz and Ms T Timmins. In part, these statements reflected local concerns that the City had already received,
during each [previous] advertising period in opposition to the quarry on grounds which may be summarised as traffic safety, vegetation removal (including Tuart trees), sensitive environmental elements (thrombolites, Lake Clifton and the Peel-Harvey Estuary) dust, noise, ground water impacts and incompatibility with surrounding RuralResidential development.
Sensibly, the residents' witnesses statements did not result in any crossexamination and their legitimate amenity concerns may be generally accepted. These will, of course, have to be balanced against a suite of other factors which are discussed in these reasons.
The Tribunal also heard from various experts: Mr T Reynolds (engaged by the applicant) and Mr T George (engaged by the respondent) on noise; and Mr L Stephens (engaged by the applicant) and Mr C Baldock (engaged by the respondent) on dust, water and related environmental matters.
The Tribunal turns to discuss the central issues arising from this other evidence.
Noise emissions
An expert acoustical assessment of modelled noise emissions from the proposed quarry was undertaken by the applicant in 2006. This was updated in 2008 and again in 2009 for the adjusted quarry footprint and to incorporate further modelling of noise received at the closest residences on Old Coast Road, Clifton Downs Road and Caledonia Close.
Expert witnesses, Mr Reynolds (for the applicant) and Mr George (for the respondent), agreed that the major reduction of traffic on Old Coast Road, since the opening of the Forrest Highway, has had the effect of reducing the masking effect that traffic noise would previously have had on noise received at existing and likely future residences adjacent to that road.
They also agreed that tonal noise from the proposed quarry may be received at residences and, on that basis, a tonality penalty of +5 dB adjustment was required, in accordance with the Environmental Protection (Noise) Regulations 1997 (WA) (regulations). It was common ground that in the event that the development was to proceed, it would be required to comply with the regulations; the assigned noise level that would determine compliance or otherwise with the regulations would be the daytime LA10 parameter of 45 dB(A).
Mr Reynolds outlined the inputs to, and the assumptions behind, the modelling which had been done. Modelling had assumed daytime only operations, Monday to Saturday. The modelling was conducted by single point calculations and assumed that noise sources would be located within what was then understood to be stage 1 of the quarry area, using operational noise based on sound power data measured for similar equipment at another quarry operated by the applicant.
Noise contours were presented for what were considered to be 'worst case' scenarios for finished pit contours with a relatively open landform, rather than the case where operational noise would otherwise be masked during earlier stages, with machinery sited close behind working pit faces. The modelling also included the effects of local wind conditions.
The output indicated that several of the noisesensitive locations were within areas of noise exceedences predicted by the model, including the case where, say, a bulldozer would be required to be close to the existing surface level (such as in overburden removal) and also when both a crusher and a front end loader operated simultaneously.
The acoustics experts agreed that the modelling indicated that the range of operational practices used for noise attenuation during quarrying operations could not deliver noise compliance at the sensitive residences in the absence of bunding for noise screening around the pit.
Under crossexamination, Mr Reynolds conceded that the 2009 modelling to establish a 'worst case' scenario for operating the pit was based on a combination of loader and truck operating together, but not with a crusher. Mr Reynolds said that the modelling otherwise indicated for noise compliance at the sensitive northern residences, the crushing operation 'need[ed] to be held further away from those residences to the north because they're the most critical ones' and therefore ought to be located in the southern half of the completed pit area.
Mr Reynolds also explained that the work that he and Mr George did, prior to their joint statement, showed that the critical noise source above other operating levels was a bulldozer working near the surface. Bulldozer noise was the governing factor in determining how high the soundshielding bunds would need to be constructed to achieve effective noise control in the later stages when the pit area contours were more open.
The experts also agreed that bulldozer use during the initial treeclearing operation required for the pit area would be likely to cause the loudest exceedences of the 45 dB assigned noise level, when only the natural ground contours provide any noise shielding. Consideration of the applicant's proposed management plan for cleared vegetation and wood also raised the issue of likely chainsaw use being involved in disposal of the timber felled at some stage after clearing. Mr George's experience was that chainsaws can be louder than bulldozers.
Mr Reynolds stated that for the construction of sections of the required bunds closest to sensitive premises in the west and the north, noise from bulldozer activity would also be likely to exceed the 45 dB assigned levels temporarily until the bund height was built up sufficiently to selfshield that construction activity. Although he felt that it was a 'grey' area under current regulatory practice, both land clearing and the building of the bunds could be undertaken as earthworks construction activities on a construction site, for which an assigned noise level for quarry operations may not apply, provided that there was an exemption under the regulations. A works approval may also be granted under statute by the Department of Environment and Conservation (DEC).
Importantly, the experts presented an agreed bunding design with alignments superimposed upon a fourstage pit development plan. The design depicted continuous bunding to be pushed up from the quarry side only, and actively revegetated wherever this was required.
Mr George reported that the provisional measurements of the bunds that he and Mr Reynolds had designed were as follows: stages 1 and 2, along the western side, 5 metres high and about 410 metres long and along the eastern side at 2 metres high and 380 metres long; the bund for stage 3 would be 5 metres high and 550 metres long; along the north and northeastern sides the bund would be 4 metres high and 270 metres long; for stage 4, along the west and northern sides, the bund would be 5 metres high and 580 metres long; and on the eastern side, 4 metres high and 270 metres long.
The experts agreed that bunds could be constructed progressively as the operational area of the quarry moved at first south before progressing generally north in the later stages. They both considered that to construct the bunding along the west side of stages 1 and 2 could take three weeks if undertaken as a whole.
Beyond addressing existing noisesensitive premises, the experts confirmed that the modelling also predicted that, under some conditions, there would be noise exceedences received to the south, including the northern part of the proposed subdivision of Lot 3.
As has been mentioned, with respect to Lot 3, the WAPC 'required the Subdivision Guide Plan to be modified to include a notation that the proposed new lot closest to Lot 5 will not be supported by the WAPC until such time' as certain conditions are met with respect to quarrying activities on Lot 5.
In this regard, the acoustics experts also agreed that, even when completed, their initial bunding plan for the eastern side may not be sufficient to alleviate potential noise problems to Lot 7 and Lot 3 to the east and south of the quarry footprint. This could therefore have the effect of Lot 3 being effectively cordoned off from subdivision during the proposed quarry's operational life. They further agreed that compliance with the WAPC conditions for Lot 3 could be achieved by constructing another bund to the south of the existing pit, designed to be of an appropriate alignment and adequate height, but those dimensions could not be stated without further modelling.
The question of the timing of eventual bund removal and rehabilitation was also raised and Mr George stated that he would prefer the bunds to remain for the life of the quarry, rather than to attempt stagewise removal and rehabilitation when their noiseshielding function was no longer critical.
Mr George also advocated a 'proactive' approach to the periodic monitoring of noise levels, perhaps annually, as the crushing operation moved around in an expanding pit, in order to test noise compliance and add objectivity to the investigation of any complaint or uncertainty, in a similar way to that recommended (by the respondent's expert witness) for the dust control issue.
Based on the evidence before the Tribunal, particularly as reflected in the joint statement prepared by Mr Reynolds and Mr George, and having regard to a commitment to complete the noise modelling work agreed as a basis for the design of all necessary earthworks, the issues associated with noise emissions do not indicate refusal of the development, but rather go to conditions. The conditions that have eventuated by consent take into account these experts' concerns.
Water supply
It was common ground that the proposed quarry would depend upon the reliable and ready availability of water for a tanker to be maintained on site to implement the dust management plan directed at dust suppression. This was to be achieved mainly by truck 'wet down' and spray treatments of the road and tracks, but also for water cannon use when a stockpile was to be accessed during dry conditions.
Expert witnesses for both the applicant, Mr Stephens, and for the respondent, Mr Baldock, agreed that the volume of water they expected that would be required annually for these purposes was less than 1,500 kilolitres per year, approximately equivalent to the domestic use volume for a single rural residential property. With regard to other supply options, the porous limestone surface geology was not conducive to surface water reclamation, so water must be sourced either from an onsite bore or by carting it from external supplies. Groundwater recharge was expected to increase locally within cleared land during quarrying operations, returning to previous rates after rehabilitation, so onsite groundwater availability could be expected to continue without significant impact.
Any application for groundwater abstraction under licence would be assessed against and restricted by the South West Coastal Groundwater Management Review. An email to the respondent from the Department of Water, dated 1 April 2008, stated that a bore application for even 5,000 kilolitres for the 90.7 hectares comprising Lot 5 would fall well within maximum allowable allocation on a per hectare basis.
Mr Stephens gave evidence that if, for any reason, a bore application were to be refused, the applicant would otherwise truck water in from off site. Mr Baldock stated that onsite water tanks were necessary to ensure that water was always available, whatever its source of supply.
Based upon the commitment of the applicant to secure an adequate onsite water supply, the Tribunal is satisfied that the applicant would be capable of providing adequate water supplies for dust mitigation purposes. Appropriate conditions will secure this objective.
Dust control
Evidence was given with regard to the potential impact of the development on existing residents nearby to Lot 5; possible future rural residential dwellings nearby; and possible water quality impacts, such as increased turbidity at Lake Preston. With respect to the neighbouring lots and residences, potential risks were said to affect amenity and went to the quality of drinking water, all residences being dependent upon onsite rainwater collection from roof catchments and tank storage for their domestic supplies.
Potential dust impacts were addressed in the proposed management plan and dust reduction measures featured in quarrying, processing and transport elements of the proposal.
Importantly, the expert witnesses (Mr Stephens for the applicant and Mr Baldock for the respondent) agreed in a joint statement that 'dust [could] be managed' if the quarry proceeded; that the methods outlined in the dust management plan were typical of those used in smaller quarries (such as here), and that these arrangements were capable of preventing impact from dust at 'sensitive' premises, and at Lake Clifton, if the quarrying operations were well managed; they also agreed that 'trigger' measures for dust control were needed.
Mr Stephens gave evidence that the limestone resource remains moist throughout the year, which assisted with dust suppression during extraction and crushing, as well as encouraging the growth of microscopic plants which quickly colonise exposed limestone faces when left undisturbed. Dust management was essential in the dry months of the year, when there would be a seasonal risk of dust generation from vegetation clearing operations, disturbance of topsoils and bunding construction. A residual cover of tall vegetation over much of the site, combined with strategic planting of tall screening shrubs during the first winter of operations would further reduce any dust movement from the site.
Access roads and quarry tracks were considered to present the main potential source of windborne limestone dust. In addition, vehicles and machinery involved in ripping, screening and loading on quarry floors or wherever there was loose, dry material, could become sources of dust if surfaces were not treated by wetting down. Mr Stephens said that the proposed management plan included sealing the quarry access road with bitumen, as both a dust and noise prevention measure for nearby residences.
Mr Stephens outlined the applicant's procedures for responding to any quarryingrelated complaints from the community, which usually involved a 24hour period of initial investigation by the operator which could be followed up by an investigation by a ranger from the relevant local government if a problem was evident. Mr Stephens understood that PMR's existing limestone quarries on the Swan Coastal Plain received 'very few' complaints.
Mr Stephens contended that the applicant's quarry operators successfully used visual monitoring of dust as a trigger measure for initiating dust control or for the invoking of additional measures as normal operating procedures. He stated that the DEC's normal licensing criterion for dust control was 'no visible dust' across the boundary and referred to the commitment made in the proposed management plan (see page 26) which would be implemented whenever necessary:
In the event of dust management not being able to be achieved, such as bore breakdown or exceptional weather conditions, the dust generating activities will be stopped until conditions improve, to minimise impact upon adjoining land holders.
Mr Baldock expressed the view that being able to refer to dust monitoring data was important for objective monitoring and for overcoming lagtime delays in responding to any complaints that might arise within any sensitive land use community surrounding Lot 5. Mr Baldock said that the dust trigger should be the results from a monitoring station that operated continuously during times when the site was being worked, allowing a trigger value to be set at which additional management was needed.
It was further contended by Mr Baldock that the trigger value should be based on the National Environment Protection (Ambient Air Quality) Measure (NEPM), which would be 50 micrograms per cubic metre for particles of 10 micrometres or less, as a 24-hour average not to be exceeded more than five days per year. This would be best measured at the boundary of nearby Lot 11. Appropriate monitoring devices could detect and record particular dust events in real time. A contingency plan should be included in the management plan to identify measures to be put in place if dust concentrations exceeded the standards set out in the NEPM.
However, as far as Mr Baldock was aware, meeting the NEPM standard had never been imposed as a condition on a limestone quarry in the region, although it was often used as the air quality standard in other mining industry contexts and it was the current interim standard for ambient air quality used by the DEC.
Mr Baldock also argued that any risk of rainwater hardening and domestic supply maintenance costs from scaling (which could result from dissolved limestone dust in water systems in the longer term) could likewise be gauged from periodic monitoring of the water supply quality at the most sensitive dwellings.
The applicant's witness on environmental management planning, Mr Stephens, also gave evidence on the regulatory requirements of the intended operations, and with particular regard to crushing and screening machinery. Applications for quarrying activities on land, other than Crown (State) land, in the City of Mandurah require extractive industries licensing under the City's local laws. In addition to amenity issues of dust management and sensitive dwellings, the Tribunal also heard evidence on dust and the proximity of Lake Clifton and its aquatic environmental values. The latter are the subject of the EPA's Guidance Statement 28 Protection of the Lake Clifton Catchment (1998) and also certain DEC correspondence in relation to the application. We note that a broad range of concerns in this regard featured in the 2006 community submissions received on the proposal by the respondent.
Mr Stephens said that the applicant will need to obtain a licence from DEC for any mobile crushing plant to operate. This would regulate impacts such as noise and dust so as to comply with the Environmental Protection Act 1986 (WA).
Similarly, an expectation that some future operations of the quarry might need to be licensed was signalled by the Minister in the final paragraph of the Appeal Determination in relation to an appeal against a decision not to assess the proposal:
[T]he Minister dismissed the appeal and advised DEC of her expectation that it will consider matters of noise and dust management in its assessment of the licence application for the 'prescribed premises'…
Thus, it appears that further regulation might take place beyond anything that the Tribunal might impose.
Given the evidence before the Tribunal, particularly as reflected by the joint statement prepared by Mr Stephens and Mr Baldock, the issues associated with dust emissions do not indicate refusal of the development, but rather go to conditions, albeit conditions that will be complex in nature. Again, the conditions that have eventuated, by consent, take into account these experts' concerns.
Conclusions on the merits of the proposal
We have judged the nature, scope and impact of the proposal against the aims of the planning framework, the concerns of the neighbours and objectors, the environmental and amenity factors and reached a position similar to that of the Tribunal in AGC Earthmoving Group. There, the Tribunal held, at [94] [96]:
In our view, the present proposal, given its scale and relatively limited impact, is positively contemplated by the planning framework as a potential land use if after thorough examination of any amenity and environmental concerns or factors (and having regard to such conditions as may be appropriate), enquiry suggests that the overall impact will be justified in the context of the proposal.
In our view, the evidence, on balance, suggests that the applicant has objectively and satisfactorily addressed or met every reasonable or relevant regulatory concern expressed by the respondent's witnesses (including the objectors), and that the proposal, given its relative scale, limited impact and fixed duration, is otherwise appropriate for the subject land …
Therefore, approval ought to be given to the proposal upon certain conditions, conditions which will reflect the extensive range of regulatory concerns discussed [in the reasons].
Here, all regulatory conditions otherwise being in place, we turn to consider the one outstanding matter: the period to be fixed for the development.
Conditions - duration of approval
The competing arguments of the parties on the duration of the development were addressed in lengthy written submissions filed by the parties. In short, the applicant seeks a 15 year approval period; the respondent says that five years is appropriate.
In the case of the respondent, Mr Slarke's submissions may be summarised as follows:
1)A reasonable term in the circumstances is five years.
2)This term would meet the 'shortterm' requirement found in SPP 2.4, namely as an identified extraction area protected from incompatible land uses.
3)Regard should be had in calculating the period to both the date of effect of SPP 2.4, from 2000, and to the previous use of the site as a quarry by PMR (until 2005 approximately).
4)The planners both thought that the 'short term', in context, envisaged a period of some five to 10 years but not 15 years.
5)Regard should also be had to the demand for rural residential development in the locality, contributed in part by the subdivision and related activities of PMR. Similarly, regard should be had to the existing rural residential residents' expectations and to the impact and delay which 15 years of quarrying would have.
6)SPP 2.4's expectations of 'shortterm' protection should outweigh other speculation about the demand for basic raw materials.
7)A five year period, in effect, would allow the management of the operation (and the conditions) to be reviewed.
8)Regard should be especially had to the owner of adjoining Lot 3's special position by reason of the restrictive notation added by the WAPC to the Subdivision Guide Plan.
The respondent cited also Australian Trade Commission v Hellay Laboratories Pty Ltd (2001) 114 FCR 197; (2001) 67 ALD 1 (FC) at [47] [50] (per Finkelstein J) on the meaning to be attributed to the analogous phrase 'shortterm basis'. His Honour, with respect, correctly observes, amongst other things, that '[i]t is necessary to have regard to the thing that is being measured' and that the 'choice [of period] is an exercise of judgment about which reasonable minds may differ'.
Mr Rogers, for the applicant, submitted in summary as follows:
1)Documents in the planning framework including the Coastal and Lakelands Planning Strategy Dawesville/Binningup generally contemplate the continued operation of the quarry on Lot 5 until rural residential development takes place.
2)The demand for the resources contained within Lot 5 is recognised in that document and in other State documents. Indeed the former Department of Industry and Resources favoured, it appears, a 20 year time frame for exploitation of the resource.
3)Other land is available in the locality to meet relevant rural residential demand.
4)The regulatory steps taken will minimise the impact of the quarrying operations on present and future residents.
5)The regulatory mechanisms themselves contemplate inspection or direction from the City in respect of certain specified matters, giving the City sufficient power to ensure effective management of the operations.
In the Tribunal's view a period of eight years (with an initial period of four years, and then a further consecutive period of four years, subject to generally satisfactory compliance to date with the conditions imposed) would be reasonable in the circumstances.
The review obligation after the first period of four years is, in our view, a necessary concomitant of the eight year period of approval, and a reminder of the importance of compliance with the detailed conditions and plans worked out by the parties.
We have reached a period of eight years for the following reasons.
In our view, SPP 2.4 is the dominant or controlling instrument on this point. Its use of the phrase 'short term' indicates, as the planners thought, an indicative period of exploitation of the resource over many years and in planning law and practice periods of five to 10 years could not be said to be unusual in reference to either shortterm or mediumterm time frames. Thus, to take an example, Breadsell & Anor v Bundaberg City Council [2004] QPEC 60 records a resolution of a local government authority, albeit dealing with infrastructure, as follows (at [10], emphasis added):
Council's Adopted 'Bundaberg Sewerage Scheme - Strategy Report' does not include the site in its Short Term (10 year) or Long Term (30 year) future planning for the provision of infrastructure for the City …
In Doncaster Road Property Partnership v Manningham CC [2004] VCAT 2445 an expert planning witness is recorded as follows (at [97], emphasis added):
… In the long term, i.e. beyond 10 years, [the expert] considered that the highest and best use would remain for a car sales and service centre for various reasons, including that there will be insufficient demand for residential apartments …
So too, Barton v Wodogna RC [2003] VCAT 1649 (at [20], emphasis added):
The use of the review site and surrounding land for rural purposes was confirmed in the study, however, they are within an area that is a long term option for rural living, being beyond 10 years.
The exploitation of the basic raw materials in Lot 5, as is expressly contemplated by SPP 2.4, would ordinarily be expected to take place with 'deliberate speed' (that is, in an orderly way), and to compress that period to, say, just five years from now would be, in the particular circumstances, to possibly put at risk the exploitation of the entirety of the valuable resource identified by the State and located within Lot 5.
An eight year period, although relatively lengthy, is however not inconsistent with a rezoning and development process for the subject land as it moves towards 'Rural Residential' status. As the current development will be carefully staged and managed, the impact upon third parties will be relatively low, certain and sequential, and also be capable of being monitored over that period of time.
Conclusions
For the reasons stated above, we pronounced in late 2009 that conditional approval would be given to the development. Our reasons for fixing the period of approval at eight years are also given above.
Orders
The formal orders of the Tribunal will be:
1.The application for review is allowed.
2.The decision under review is set aside and in substitution for that decision will be a decision to grant planning approval for limestone and sand quarrying to operate from today's date for a period of eight years on Lot 5, Old Coast Road, Herron upon the following schedule of conditions:
Schedule of Conditions
Approval
(i)Development approval for a limestone and sand quarrying operation on Lot 5 Old Coast Road, Clifton (the site) is granted subject to the following conditions.
Term of Approval
(ii)Subject to this clause, this planning consent shall be for a total period of eight years consisting of two consecutive four year periods from the date of issue. After the first four year period the City of Mandurah is to review, as soon as is practicable, the applicant's general compliance with these conditions (including compliance with any associated plan, permit or direction) and if the same is found to be generally satisfactory, the second four year period shall thereupon commence.
(iii)If the development, the subject of this approval, is not substantially commenced within a period of 24 months from the date of approval, the approval shall lapse and be of no further effect. Where an approval has lapsed, no further development shall be carried out without the further approval of City of Mandurah having first been sought and obtained.
Hours of Operation
(iv)Unless otherwise approved by the City of Mandurah, the hours of operation and movement of trucks in or out of the site shall be limited to 0700 - 1900 hours, Monday to Saturday, excluding public holidays.
No crushing operations on the site shall be carried out on Saturdays.
Management Plan
(v)Except to the extent inconsistent with any other condition set out hereunder, the undertaking of the quarry operations on the site is to comply in all respects and at all times with the approved Excavation Rehabilitation Management Plan dated October 2009 (Management Plan) and any subsequent amendments to that Management Plan as may be agreed in writing between the owner(s) of the land and the City of Mandurah.
Excavation area
(vi)Excavation is limited to the area and depth shown on the attached plan titled 'Amended Pit Design July '09', dated 9 July 2009 (excavation area) and marked 'A', and is to be carried in accordance with the staging plan shown on the attached plan titled 'Extension of limestone excavation and staging', dated December 2009 and marked 'C'.
(vii)The excavation area shall be progressively rehabilitated when final contour levels and grades for each stage are achieved and within 12 months of the closure of each stage, with such rehabilitation being in accordance with the Management Plan and Extractive Industry Licence conditions.
(viii)Notwithstanding anything contained within the Management Plan, no excavation is to occur within 2 metres of groundwater.
Bunds
(ix)Prior to commencement of any excavation on or removal of materials from the site, the operator must construct bunds around the excavation area, in the locations and to the lengths and heights depicted on the attached plan marked 'B', as agreed by the acoustic experts to be sufficient to ensure compliance with the Environmental Protection (Noise) Regulations 1997 (WA) with respect to Lot 3 (to the south of the site), Lot 11 (to the west of the site), Lot 7 (to the east of the site) and the rural residential lots to the north and northeast.
(x)Unless otherwise approved by the City of Mandurah the bunds must be constructed during the months (May to September) and any clearing associated with the development, including clearing for the construction of the bunds and ongoing clearing of the excavation area during the term of this approval, must be undertaken only during the months (May to July).
(xi)Prior to any clearing associated with the development being undertaken, the operator must inspect mature trees within an area to be cleared for the reasonable presence of fauna and wherever possible, and based on the assessment of an independent fauna expert or licensed wildlife relocator, relocate, with the assistance of that expert or relocator, any fauna and reestablish any hollows (from any mature trees to be felled) within the remnant vegetation outside the excavation area.
(xii)Revegetation of the bunds must be undertaken during the same winter months in which the bunds are constructed using local indigenous and fast growing species listed in section 6.11 of the Management Plan and planted at a rate of not less than 100 trees and shrubs per 100 linear metres.
(xiii)All operations, except for the initial clearing of vegetation on the site for the purpose of construction of the bunds, must occur in the area within the bunds on the site depicted on the plan referred to in condition (x).
Security fencing
(xiv)A perimeter fence, to an appropriate rural standard sufficient to retain sheep and livestock, restricting vehicle and pedestrian access to the site must be constructed prior to commencement of site works and maintained thereafter.
Access and crossover
(xv)Access to the site is to be from Old Coast Road at the existing access point.
(xvi)Prior to the commencement of development on the site, the crossover onto Old Coast Road shall be located, constructed and drained to the specifications and satisfaction of the City of Mandurah and Main Roads WA.
(xvii)The intended access road from Old Coast Road to the excavation area must be constructed to a standard to ensure safety and minimise dust emissions from machinery and traffic to the satisfaction of the Manager of Planning.
Dust management
(xviii)The operator must undertake, and ensure, that:
(a)all vehicle loads leaving the site are covered;
(b)all stockpiles of materials on the site; and
(c)the access road to and all trafficable areas on the site,
are watered down or treated and maintained in a manner which prevents or minimises the generation of airborne dust.
(xix)The operator must at all times carry out the quarry operations in accordance with, and must implement the dust management, suppression and mitigation measures contained in, section 6.4 of the Management Plan to ensure that no visible dust leaves the site boundaries.
(xx)The operator must at all times ensure sufficient water is accessible on-site to undertake dust suppression pursuant to conditions (xviii) and (xix), if necessary by means of water transported by tanker onto the site.
(xxi)When winds are sufficiently strong to negate the effects of the dust management, suppression and mitigation measures contained in section 6.4 of the Management Plan, the operator must cease the quarry operations on the site until conditions improve and compliance can be achieved.
(xxii)In addition to any other condition, if an officer of the City of Mandurah inspects the site and is satisfied that any of the quarry operations on the site are generating an unreasonable amount of dust, or that any of those operations are not compliant with any of the conditions relating to dust emissions (including noncompliance with the dust management measures contained in the Management Plan), the City of Mandurah may direct in writing that:
(a)an amended dust management plan is submitted and approved; or
(b)the activities on the site are brought into compliance with this approval, as the case may be.
In this condition 'an unreasonable amount of dust' means visible dust crossing the site's boundary and visibly excessive dust on the site.
Vegetation
(xxiii)Planting of screening vegetation, comprising indigenous species listed in section 6.11 of the Management Plan and planted at a rate of not less than 500 trees and shrubs per hectare, is to be:
(a)undertaken in the winter of 2010 or 2011 following this approval and within those portions of the site along its western and eastern boundaries, as identified on the revegetation plan attached and marked 'D'; and
(b)thereafter maintained at all times while the quarry operations on the site continue.
(xxiv)Remnant vegetation outside the excavation area is to be protected from the quarry operations and transport movements at all times.
(xxv)A vegetation clearing permit from the Department of Environment and Conservation (Department) in accordance with the Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA) must be obtained prior to the commencement of the quarry operations on site.
(xxvi)Any stockpiling of vegetation resulting from clearing of land and the construction of the bunds shall be classified as trade waste. The cutting, grinding, chipping or mulching of trade waste vegetation to be utilised for soil stabilisation and/or dust suppression on site must occur behind the bunds during their construction and thereafter in the area within the bunds. Trade waste vegetation not utilised on site must be disposed of at an approved landfill site or to licensed timber operators only.
Dieback and weed management
(xxvii)The operator must at all times implement the management practices contained in sections 6.7 and 6.8 of the Management Plan to control the spread of noxious weeds, dieback and other diseases harmful to vegetation on the site.
Noise management
(xxviii)The operator must at all times carry out the operations, including crusher, in accordance with, and must implement the noise management, suppression and mitigation measures contained in, section 6.3 of the Management Plan to ensure that the requirements of the Environmental Protection (Noise) Regulations 1997 (WA) in respect to noise are complied with.
(xxix)Crushing is only to occur in the area within the bunds on the site.
(xxx)To ensure that the amenity of nearby residences is not unduly interfered with, vehicles, equipment and machinery used on the site (other than trucks collecting limestone or sand from the site) must not use reversing beepers unless those beepers are required for the safe conduct of operations on the site (in accordance with the provisions of the Occupational Safety and Health Regulations 1996 (WA) and the Environmental Protection (Noise) Regulations 1997 (WA)) or it is demonstrated that no acceptable alternative exists. Any reversing alarm on any vehicle, piece of equipment or machinery shall be broad-band reversing alarms, for example, 'croakers'.
(xxxi)In addition to any other condition, if an officer of the City of Mandurah inspects the site and is satisfied that any of the quarry operations on the site are generating an unreasonable amount of noise, or that any of those operations are not compliant with any of the conditions relating to noise emissions (including noncompliance with the noise management measures contained in the Management Plan), the City of Mandurah may direct in writing that:
(a)an amended noise management plan is submitted and approved; or
(b)the activities on the site are brought into compliance with this approval, as the case may be.
In this condition 'an unreasonable amount of noise' means noise which exceeds the levels assigned by the Environmental Protection (Noise) Regulations 1997 (WA).
Department licence
(xxxii)If required, a licence from the Department in accordance with the Environmental Protection Act 1986 (WA) and Environmental Protection Regulations 1987 (WA) in respect of:
(a)the site as a prescribed premises for quarrying operations; and
(b)the use of the crusher on the site for quarrying operations,
must be obtained prior to the commencement of the quarry, crushing or screening operations on site.
Notice, ongoing reporting and directions
(xxxiii)The operator must give the City of Mandurah reasonable notice, but in any event not less than seven days' notice, of:
(a)the day(s) or date(s) on which or when crushing operations are to be carried out on the site; and
(b)the expected duration of the crushing operations.
(xxxiv)The operator of the site must:
(a)cause to be kept a complaints log in which the following is to be recorded:
(1)the date and time, where relevant, of each complaint made and received;
(2)the means (telephone, email or mail) by which the complaint was made;
(3)any personal details of the complainant that were provided or, if no details were provided, a note to that effect;
(4)the nature of the complaint;
(5)the steps or actions taken in, and the timing of, the response to each complaint, including any followup contact with the complainant; and
(6)if no actions or steps were taken in relation to the complaint/enquiry, the reason(s) why no actions or steps were taken;
(b)respond as soon as possible, and in any event within three working days, to any complaint received;
(c)provide the complaints' log to the City of Mandurah upon request; and
(d)cause to be provided to the City of Mandurah, concurrently with any reports being provided to the Department of Environment and Conservation (Department), all reports prepared and submitted to the Department as required by and forming part of the operator's monitoring and reporting requirements contained in any licence(s) issued by the Department in accordance with the Environmental Protection Act 1986 (WA).
(xxxv)By 31 January each year, the operator must submit to the City of Mandurah an annual report that includes:
(a)the progress of the excavation activities;
(b)the progress of rehabilitation undertaken and completed;
(c)the measures taken to suppress and minimise dust;
(d)the measures taken to suppress and minimise noise; and
(e)the number and type of community complaints and responses.
(xxxvi)The City of Mandurah may provide to the operator its comments and any recommendations as to how the operation of the site or the use should be changed in order to address any matter identified in the report.
(xxxvii)The operator must alter the operation of the site or the manner in which the use is carried out as directed in writing by the City of Mandurah, in response to any comments and recommendations agreed between the operator and the City of Mandurah, and the operation of the site or the use shall thereafter be carried out in accordance with any such direction.
I certify that this and the preceding [98] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P McNAB, MEMBER
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