Ransberg Pty Ltd and City of Bayswater - [2016] WASAT 43

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: RANSBERG PTY LTD and CITY OF BAYSWATER [2016] WASAT 43

MEMBER: MR M SPILLANE (SENIOR MEMBER)
MS D QUINLAN (MEMBER)

HEARD: 15, 16, 17 AND 22 DECEMBER 2015, 18 JANUARY AND 24 OCTOBER 2016

DELIVERED : 14 DECEMBER 2016

FILE NO/S: DR 196 of 2015

BETWEEN: RANSBERG PTY LTD
Applicant
AND
CITY OF BAYSWATER
Respondent

Catchwords:

Town planning Development application Concrete batching plant Existing approval granted by Tribunal New proposal is superior design to existing approval Amenity impacts on locality Noise Dust Referral to Environmental Protection Authority and appeal to Minister for the Environment Evidence suggests low risk of dust exceedances Conditions and regulatory framework sufficient to manage potential amenity impacts

Legislation:

City of Bayswater Town Planning Scheme No 24, cl 1.6(b), cl 3.6, Appendix 1
Environmental Protection (Concrete Batching and Cement Product Manufacturing) Regulations 1998 (WA), reg 3, reg 4
Environmental Protection Act 1986 (WA), s 8, s 39A(3), s 39A(7), s 41, s 41(2)
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), reg 4, cl 67, Sch 2
Planning and Development Act 2005 (WA), s 252(1)(c)(i)
State Administrative Tribunal Act 2004 (WA), s 31

Result:

Application for review allowed and conditional approval granted

Summary of Tribunal's decision:

The applicant made a development application to the City of Bayswater for planning approval for a modified design of a previously approved concrete batching plant situated at Lot 2 (Nos 277279) Collier Road, Bayswater (see Ransberg and City of Bayswater [2014] WASAT 12). The existing approval had not yet been implemented. Despite professional advice that the use of the subject site for a concrete batching plant had already been approved by the Tribunal in 2014 with the existing approval setting a benchmark, and that the proposed development would have a lesser environmental impact than the existing approval, the Council resolved to refuse the application. An application to review that decision was then made to this Tribunal.
The Tribunal was of the view that, whilst it must look at the proposed development as a new application, it was a relevant consideration that there was an existing approval which the applicant intended to implement if the proposed development was not approved.
At the hearing before the Tribunal, it was agreed amongst the experts that the proposed development was a superior proposal to the existing approval in lessening both the noise and dust impacts on the amenity of the locality.
Council had referred the matter to the Environmental Protection Authority (EPA) and the Tribunal awaited that determination before providing its decision. The EPA had determined not to assess the proposal, and although the proposal raised a number of environmental issues, the EPA considered that the likely environmental effects of the proposal were not so significant as to warrant formal assessment. The EPA was of the view that the potential impacts of the proposal could be adequately managed by the proponent's mitigation and management measures as well as other regulatory processes. The decision of the EPA was appealed to the Minister for Environment who dismissed that appeal.
On the evidence before it, the Tribunal was satisfied that the application should be approved as the conditions and regulatory framework could manage any amenity impacts even if the unexpected occurred, and the average daily output of the plant exceeded 135m³/day or the number of times the plant would produce 500m³/days per year increases.
The Tribunal found that the correct and preferable decision was that the proposed development, subject to conditions, was consistent with orderly and proper planning and approval subject to conditions was granted.

Category: B

Representation:

Counsel:

Applicant: Mr P McQueen and Mr B Foley
Respondent: Mr CA Slarke

Solicitors:

Applicant: Lavan Legal
Respondent: McLeods

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

Greenelm Pty Ltd and City of Swan [2010] WASAT 142
Lavenda Pty Ltd & Anor and Town of Vincent [2006] WASAT 374
Ransberg and City of Bayswater [2014] WASAT 12
Re City of Perth; ex parte Lord & Ors [2002] WASCA 254
Self Help Addiction Resource Centre Inc v Glen Eira City Council (2005) 145 LGERA 124
Woolworths and City of Joondalup [2009] WASAT 41

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

On 29 January 2015, Ransberg Pty Ltd (applicant) made a development application to the City of Bayswater (respondent or City) for planning approval for a modified design of a previously approved concrete batching plant (proposed development) situated at Lot 2 (Nos 277-279) Collier Road, Bayswater (subject site).
On 28 January 2014 the Tribunal, in Ransberg and City of Bayswater [2014] WASAT 12 (Ransberg and City of Bayswater), approved a development application for a concrete batching plant for the subject site subject to a number of conditions which included the management of dust and noise (existing approval). The existing approval has not been implemented.
The substantive difference between the existing approval and the proposed development is that the modified design provides for the majority of activities at the subject site which produce dust emissions to now occur within a roofed building which would be enclosed on two sides thereby substantially lessening the potential for dust emissions.
In a covering letter enclosing the development application to the respondent, WA Premix, on behalf of the applicant, in justification for redesigning the approved concrete batching plant, stated:
WA Premix is confident that the current approved design complies with all relevant environmental regulations and guidelines, and operating conditions imposed by the SAT. However, the operating conditions imposed are linked to background emission levels and the emissions by others, of which WA Premix has no control. With compliance requirements including the potential shut down of the plant this represents a significant risk to the operation.
Therefore to ensure a greater level of compliance, reducing the risk of plant shut down, and provide greater protections against any potential future regulatory changes and/or tightening of operating requirements, in August 2014 the WA Premix board issued a directive to investigate whether the plant's design could be further improved in the areas of operational efficiency and environmental performance. To achieve this, the board has agreed to substantially increase the budget for the project from $1.5 million to $6 million …
The amended design presented for the City's consideration incorporates the findings of this research and represents the most efficient and highest environmental management plant possible within the constraints of the site and town planning framework whilst maintaining an efficient and profitable plant design. The proposed amendment does not involve any changes to the throughput or capacity of the plant.
The respondent's Planning and Development Services & Administration and Community Services Committee recommended approval of the development application subject to conditions. On 26 May 2015, the Council of the respondent resolved to refuse the application as it was of the opinion that the proposed development should be refused due to objections from surrounding residents regarding major health concerns from noise and dust. The resolution of Council of the respondent stated:
That Council:
1.Notes the amended plans dated 29 January 2015.
2.Reiterates its previous decision of 28 June 2011 and resolves to refuse the amended plans dated 29 January 2015 for the proposed concrete batching plant at Lot 2, Nos. 277-279 Collier Road, Bayswater, on the following grounds:
(a)The proposed concrete batching plant is not an appropriate use on the subject site, particularly given it is a noxious industry and its proximity to an established residential area.
(b)The proposed use will unduly impact on the amenity of the locality.
(c)The proposed use is not consistent with proper and orderly planning of the locality.
(d)The separation distance between the proposed development and residential dwellings is insufficient and will result in a significant reduction in amenity due to the externalities of the development, including poor visual appearance and undue dust and noise impacts.
(e)The proposed development does not comply with the height requirements of the City's Town Planning Scheme No. 24.
(f)The proposed variation to the scheme height provisions will unduly affect the amenity of the locality.
(g)The proposed variation to the scheme height provisions is not consistent with the proper and orderly planning of the locality.
(h)Consideration of the considerable objections received in relation to the proposed concrete batching plant.
On 22 June 2015, the applicant sought a review in the Tribunal of the respondent's refusal under s 252(1)(c)(i) of the Planning and Development Act 2005 (WA) (PD Act).
On 22 September 2015, the Council of the respondent reconsidered its decision pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). Despite professional advice that the use of the subject site for a concrete batching plant had already been approved by the Tribunal in Ransberg and City of Bayswater with the existing approval setting a benchmark, and that the proposed development will have a lesser impact than the existing approval, the Council resolved to maintain its refusal of the application.

Referral to the Environmental Protection Authority

On or about 20 October 2015, the respondent referred the proposed development to the Environmental Protection Authority (EPA) pursuant to s 8 of the Environmental Protection Act 1986 (WA) (EP Act). The Tribunal understands that other third parties had also referred the proposed development to the EPA on or about 6 October 2015.
On 22 December 2015, at the conclusion of the hearing of evidence in the matter, the Tribunal adjourned to consider the effect of s 41(2) of the EP Act regarding the delivery of the Tribunal's decision. On 18 January 2015, the Tribunal provided oral reasons of the Tribunal's determination that, in following the process set out in s 41 of the EP Act, the Tribunal should and would await the outcome of the EP Act referral process before delivering its decision in this matter.
On 21 March 2016, the EPA issued a notice pursuant to s 39A(3) of the EP Act of its decision not to assess the proposal. That decision of the EPA included 'Public Advice' pursuant to s 39A(7) of the EP Act. Section 39A(7) provides that, if the EPA decides not to assess a proposal, it may nevertheless give advice and make recommendations on the environmental aspects of the proposal to the proponent or any other relevant person or authority. In the present case that advice included the following:
In considering the potential direct and indirect impacts of the proposal on Human Health, Air Quality and Atmospheric Gases, and Amenity the EPA has had particular regard to:
•the use of a 'wet-mix' batching plant;
•the mitigation strategies proposed by the proponent to avoid and minimise impacts, for example:
-enclosure of all main plant components;
-multi layers of dust control;
-noise cladding and/or locating 'noisy' areas below ground;
-covering conveyors;
-restricting deliveries to between 7am and 7pm; and
-real-time dust monitoring linked to a real-time alert system.
•the air quality impact assessment and additional modelling indicating the proposal would comply with the current relevant ambient air quality criteria; and
•In summary, although the proposal raises a number of environmental issues, the EPA considers that the likely environmental effects of the proposal are not so significant as to warrant formal assessment. The EPA is of the view that the potential impacts of the proposal can be adequately managed by the proponent's mitigation and management measures.
It is also noted that other statutory processes can be used to regulate and implement the mitigation and management measures in the referral documentation, including the requirement to construct and operate the concrete batching plant through a Part V Division 3 Works Approval and Registration and planning approvals.
On 1 April 2016, the respondent advised the Tribunal that it would be exercising a right to appeal to the Minister for Environment to consider directing the EPA to reconsider its decision or conduct a formal assessment. The Tribunal understands that the respondent was one of four who appealed the decision of the EPA not to assess the proposed development. One of those appellants represented 400 signatories.
On or about 2 March 2016, the applicant, noting that the process under the EP Act may take some time, made the decision to lodge an application with the respondent to extend the time for substantial commencement of the existing approval. That application was refused by the respondent on 9 May 2016. The applicant sought a review of that decision in this Tribunal. On 13 July 2016, the Tribunal (differently constituted), extended the period within which the concrete batching plant for the existing approval must be substantially commenced to 15 July 2017.
In a report dated August 2016, the Appeals Convenor reported to the Minister for Environment regarding the appeals and recommended that the appeals be dismissed. In the summary of the report, the Appeals Convenor stated:
Having regard for the issues raised on appeal, the advice from the EPA that potential impacts arising from the proposal can be regulated through other statutory decision-making processes and noting that the development approval issued by SAT contains detailed conditions relating to dust, it is considered that the EPA's decision to not formally assess the proposal, based on the conclusion that the impacts to human health, air quality and amenity will not be so significant to require a formal assessment, is appropriate given the information available.
On 19 August 2016, the Minister for Environment dismissed the appeals against the EPA's decision not to assess the proposed development. The decision of the Minister included the following:
In relation to the capacity of the plant, the proposal considered by the EPA is for an average daily production of 135 m³ per day, with the possibility of producing up to 500 m³ per day, up to 2 days per year. While the Minister noted appellants' submissions that the plant has the capacity to produce much higher than the amount indicated by the proponent, the proposal referred to the EPA does not contemplate any production over 500 m³ per day, and the EPA is required to assess the proposal as referred. Should the proponent alter its plans, and wish to increase production beyond what it has put forward, it will need to ensure that such changes comply with relevant statutory obligations, including any applicable requirements under planning legislation and the EP Act.
…
In relation to concerns raised in respect to dust, the proponent's information indicates that admissions of particulate matter of 10 micrometres in diameter (PM10) may exceed the National Environmental Protection Measure (NEPM) for ambient air quality on two occasions per year, based on its stated maximum production of 500 m³ per day. Although this prediction is above the updated NEPM standard of zero exceedances per annum, the EPA advised that the predicted exceedances were unlikely to occur, and in any event, were less than 2% above the standard of 50 µg/m³. As such, the EPA expects the proposal will meet relevant criteria when the plant is in operation. In its public advice given at the time of determining not to assess the proposal, the EPA also noted that the plant would be subject to regulation by the Department of Environmental Regulation (DER) through consideration of the works approval.
In addition, the Minister noted that the proposal will be subject to the Environmental Protection (Concrete Batching and Cement Product Manufacturing) Regulations 1998 (Concrete Batching Regulations), which sets out a number of measures for controlling dust emissions with this type of industry. In relation to cement dust in particular, the Regulations require cement to be stored in bags or silos, the latter of which is required to be fitted with an air cleaning system through which all air from the silos must pass before being discharged to the environment. The Regulations also provide that no visible dust escapes from the premises or onto any place with the public has access. These controls are in addition to occupational health and safety requirements applicable to the site, including requirements for the proponent to ensure it complies with the relevant Safety Data Sheets in handling cement and other materials associated with the manufacture of concrete and cement.
…
Taking into account the information available to him, including the level of local interest, the Minister considered the EPA was justified in determining not to assess the proposal. The Minister noted in particular that the proposal will need to meet detailed conditions relating to dust in the SAT approval, as well as meet statutory requirements under the Concrete Batching and Noise Regulations. It follows that the Minister dismissed the appeals. DER will consider any application for a works approval for the site, and in assessing the proposal, the Minister anticipated that DER will take into account relevant environmental issues, including the issues raised in this appeal.
At the request of the parties, the Tribunal allowed a further short hearing on 24 October 2016 so that additional evidence could be provided and submissions made regarding any matters that had arisen since the Tribunal completed hearing the matter and reserved its decision on 18 January 2016.

Subject site and locality

The following facts were agreed between the parties regarding the subject site:
a)it is 12,324m² in area;
b)it is currently vacant;
c)it is located on the outer perimeter of a 'General Industry' zone under the City of Bayswater Town Planning Scheme No 24 (TPS 24 or Scheme);
d)it is bordered to the north by Joan Rycroft Reserve which includes a playground;
e)beyond Joan Rycroft Reserve is a residential area comprising around 30 dwellings which are located within a 300 metre radius of the rear of the subject site; and
f)lots adjoining the subject site to the east and west, and to the south across Collier Road, are also zoned General Industry.

Proposed development

Relevant to the issues in dispute in this matter, the proposed development includes the following features:
a)trucks delivering sand and aggregate would predominantly unload inside a proposed roofed building which would be enclosed on two sides (roofed building);
b)trucks would unload into below-ground hoppers covered by a metal grate in the roofed building;
c)sand and aggregate would be conveyed from the outlet of the hopper onto a conveyer belt and deposited into storage bins located within the roofed building;
d)when required, the sand and aggregate would be further conveyed from the storage bins via the conveyer belt runs to the mixing unit which is an item of fixed plant;
e)the mixing unit would make the end product, a concrete slurry, by a wet-mix process involving the mixing of cement dust (which is stored on site in silos), aggregate, sand, water and other minor additives;
f)the concrete slurry would be pumped into agitator trucks which would then depart the subject site;
g)the conveyer belt runs, mixing unit and the area within which the concrete slurry is to be pumped into agitator trucks are all contained within the roofed building;
h)in the event of the delivery of sand and aggregate beyond the capacity of the storage bins enclosed in the roofed building, additional storage capacity would be unloaded into back-up aggregate storage bins which are located outside, walled with concrete on three sides and partly roofed; and
i)when material from the outdoor back-up aggregate storage bins is required for use it would be moved by a frontend loader.

Planning framework

The subject site is located in a 'General Industry' zone under TPS 24. The proposed development use class is classified under TPS 24 as a 'Noxious Industry' which is designated as a 'D' use which means it is a discretionary use within the General Industry zone. Appendix 1 Interpretations of TPS 24 states:
Industry Noxious means an industry which is subject to licensing as 'prescribed Premises' under the Environmental Protection Act 1986 (as amended).
Regulation 4 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regulations) stipulates that Sch 2 of the Regulations are 'deemed provisions' in all local planning schemes whether or not they are incorporated into the local planning scheme text (Deemed Provisions).
Clause 67 of the Deemed Provisions provides that, in considering an application, the local government (and the Tribunal standing in the shoes of local government) is to have due regard to a number of specific matters listed in cl 67 to the extent that those matters are considered relevant. Whilst the matters listed in cl 3.6 of TPS 24 are consistent with the Deemed Provisions, the Tribunal notes that the Deemed Provisions prevail as to the matters to have due regard and the following provisions of cl 67 are considered relevant:
(a)the aims and provisions of this Scheme and any other local planning scheme operating within the Scheme area;
…
(m)the compatibility of the development with its setting including the relationship of the development to development on adjoining land or on other land in the locality including but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the development;
(n)the amenity of the locality including the following
(i)environmental impacts of the development;
(ii)the character of the locality;
(iii)social impacts of the development;
…
(r)the suitability of the land for the development taking into account the possible risk to human health or safety;
…
(w)the history of the site where the development is to be located;
…
(y)any submissions received on the application[.]
Clause 1.6(b) of TPS 24 provides that the general objectives of the Scheme are:
To secure the amenity, health and convenience of the Scheme Area and the inhabitants thereof
Both TPS 24 Appendix 1 and the Deemed Provisions in Sch 2 of the LPS Regulations define 'amenity' as:
… means all those factors which combine to form the character of an area and include the present and likely future amenity[.]
Regulations 3 and 4 of the Environmental Protection (Concrete Batching and Cement Product Manufacturing) Regulations 1998 (WA) (concrete batching regulations) provide:
3.Minimization of dust
(1)An operator must not carry on concrete batching or cement product manufacturing unless it is carried on in such a manner that no visible dust escapes from the premises (or if there are no defined boundaries to the premises, no such dust escapes onto any place to which the public has access).
(2)An operator must immediately clean up any material spilt during concrete batching or cement product manufacturing.
4.Control of dust from trafficable areas
(1) An operator must ensure that all parts of the premises to which vehicles have access
(a) are either
(i) paved or sealed; or
(ii) treated with water or surfactants as often as is necessary;
and
(b) are swept, hosed or otherwise cleared of any loose aggregate, sand, cement, concrete or other material as often as is necessary,
to prevent loose material adhering to vehicles and to minimize dust.

Issue for determination

The issue for determination in this matter is whether the proposed development is consistent with orderly and proper planning, having regard to:
a)the compatibility of the proposed development within its setting;
b)the preservation of the amenity of the locality;
c)any relevant submission received on the proposed development;
d)securing the amenity, health and convenience of the Scheme area and its inhabitants; and
e)the history of the subject site.
It was common ground between the parties that the previous determination of the Tribunal in Ransberg and City of Bayswater, whilst relevant, did not determine the present matter before the Tribunal. It was also common ground that the proposed development was not an amendment to the existing approval and should be determined afresh on its merits as a new proposal. Whilst the Tribunal agrees with this statement of principle, it is noted that the parties and much of their evidence, on an almost unavoidable basis, approached the task of assessing the proposed development as a comparison with the existing approval.

The applicant's submissions

The applicant submits that the proposed development is consistent with orderly and proper planning, is capable of being approved and should be approved subject to conditions which manage potential amenity issues.
The applicant submits that the existing approval should be given considerable weight given that it was considered by the Tribunal in the context of the same planning framework and the applicant can implement that existing approval should it wish to do so in circumstances where the proposed development is adopting best practice internationally and is overwhelmingly superior from a planning and environmental perspective.
The applicant further submits that the proposed development will have less offsite amenity impacts than the existing approval, particularly in relation to dust emissions. Moreover, the applicant submits that the proposed development produces a better amenity outcome for the community and significantly reduces the potential that the proposed development would be shut down if and when emission targets are exceeded.

The respondent's submissions

The respondent concedes that the proposed development is superior to the existing approval in the sense that it uses improved technology, is a more efficient plant and is largely enclosed, therefore the potential for producing dust emissions is reduced. However, the respondent submits that there are proper and reasonable grounds for the Tribunal to reach a different conclusion than the Tribunal did previously when it granted the existing approval.
The respondent submits that the applicant has not demonstrated that the potentially adverse amenity impacts from dust, noise and traffic can be adequately managed. The respondent submits further that it cannot be assumed that the existing approval will be built and that this case was not concerned with the 'lesser of two evils'.
The respondent challenges by way of crossexamination and submission, not expert evidence, the assumptions of the noise and dust modelling provided by the applicant and criticises the modelling for not properly taking account of the 'worst case scenario'.
The respondent submits that, whilst the proposed development is a relatively small contributor to dust emissions in the locality, it is an incremental contributor to a situation that is already problematic.
At the hearing, the respondent relied on the National Environment Protection (Ambient Air Quality) Measure (NEPM) relating to ambient air quality being revised to a lower figure (that is, a higher standard for ambient air quality) and submitted that the proposed development should not be approved as it will cause the expected proposed new NEPM standard to be exceeded. Whilst the Tribunal awaited the outcome of the appeal by the respondent and others to the Minister for Environment, effective from 3 February 2016 the NEPM standard was formally varied (new NEPM). The new NEPM was the subject of further evidence and submissions on 24 October 2016 and is discussed later in these reasons.

The applicant's evidence

The applicant provided expert evidence from Mr Robert Sklarski in relation to town planning and Mr Gary Graham, an environmental consultant with a specialty in air quality matters, in relation to dust emissions. The applicant also provided factual evidence concerning the proposed development and the rationale for the amended design from both Mr Roger Stephens, Planning and Environment Manager, and Mr Walter Lukic, General Manager for WA Limestone Pty Ltd (WA Limestone).
The applicant also provided, attached to the first witness statement of Mr Lukic, a further expert report concerning noise, namely an acoustic assessment report dated October 2014 provided by Herring Storer Acoustics. The report notes that the proposed development is different from other forms of concrete plants in that it is a 'wet' plant and that means it is generally quieter than a 'dry' plant. Herring Storer Acoustics notes that the batching plant component is to be fully enclosed with 60 millimetre insulation panels. The report concludes that the proposed development would be compliant with the relevant noise regulations.
Mr Lukic provided a supplementary witness statement for the Tribunal's additional hearing day on 24 October 2016 in order to update the Tribunal on events since it had reserved its decision on 18 January 2016. Mr Graham also provided an affidavit regarding the new NEPM.

The respondent's evidence

The respondent provided expert evidence from Ms Patricia Morgan in relation to town planning and Dr Peter Forster, an air pollution and industrial chemist process scientist with extensive experience in matters of air quality and process emissions, in relation to dust emissions.
The applicant also provided evidence from the Mayor of Bayswater, Mr Barry McKenna, and Councillor Ms Sally Palmer, as well as nearby residents, Mr James Petrovic and Mr Barry Kramer, and Mr Edward Broad who operates Able Westchem, a manufacturing business in the General Industry zone, which adjoins the proposed development.
Even though the respondent raised issues regarding noise and traffic, the respondent did not provide any expert evidence on these matters.
The respondent provided a supplementary witness statement for the Tribunal's additional hearing day on 24 October 2016 from Dr Forster regarding the new NEPM. The respondent also provided additional information regarding Able Westchem that arose since the Tribunal had reserved its decision on 18 January 2016 from Mr Steven De Piazzi, the acting senior planning officer employed by the respondent.

Evidence of Mr Walter Lukic

Mr Walter Lukic is the General Manager for WA Limestone which specialises in the supply and delivery of construction materials. Mr Lukic is a qualified civil engineer and has worked in the concrete and aggregate industry in Perth for 30 years.
WA Limestone has designed, constructed and currently operates two concrete batching plants at Mandurah and Bibra Lake. WA Limestone is currently commissioning a third concrete plant in Neerabup located in the City of Wanneroo. The directors of WA Limestone are also the directors of the applicant. The applicant owns the subject site.
The estimated cost of the existing approved development is $1.5 million and the estimated cost of the proposed development is $6 million. Mr Lukic gave evidence that the applicant's directors are conservative and 'really risk averse'. Thus, even though the modelling and science concludes that the existing approval will involve minimal disruption to the business due to the risk of operations having to cease if dust limits are exceeded, the directors prefer the proposed development which involves a significant improvement to the risk factors.
Mr Lukic was asked in examination in chief as to the applicant's position regarding the implementation of the existing approval if the Tribunal did not approve the proposed development:
It's not our preferred option to do that but if the amended application is refused, we will be proceeding to implement the plant design that has been approved. In fact, we have made a start on that by procuring the front of that plant which is common to both designs. So our positon is that we will be proceeding with the construction of a plant that we have approval for which case that may be.
(T:70; 15.12.15)
Mr Lukic, when crossexamined further as to the likelihood of the existing approval being implemented if the Tribunal did not approve the proposed development in circumstances where the directors are so risk averse, stated:
I can assure you we will go ahead with this plant because we have built other plants before and the reality is and practicality is we have had very little problems operating our two plants in Mandurah and Bibra Lake and another one that we're building in the City of Wanneroo. We've had little trouble with all those installations over the last 11 years, so we're pretty confident we can do the job.
(T:75; 15.12.15)
Mr Lukic gave evidence regarding the theoretical as well as expected daily and annual capacity amounts for the proposed development as contained in the project description in the application for works approval that has been lodged with the Department of Environmental Regulation (DER).
He explained that even though the plant design for the proposed development is capable of a production rate of 125m³/hour with bursts of 150m³/hour, taking into account matters such as restriction of operating hours, plant maintenance requirements and the ability to resupply with concrete constituent materials, the theoretical maximum production capacity is 500m³/day or 156,000m³/year.
Further, he stated that those amounts are an over estimation as the dominant constraint is market demand which governs not only the quantity of concrete but also the rate at which it is produced throughout any given day. Therefore, based on experience of other plants, the expected daily capacity of the proposed development is 135m³/day or 42,000m³/year. Mr Lukic also provided evidence that, based on experience at the other plants, occasionally the applicant would produce 500m³/day. In his recollection, they had exceeded 500m³/day only twice in the last three years.
Mr Lukic also provided evidence as to the likelihood of the daily production rates regularly reaching 500m³/day or even exceeding that amount. For instance, Mr Lukic was asked if a customer placed a large order whether the proposed development could produce 800m³/day and he stated that it could be done but this has not happened yet. His experience was that a 'great day' was 500m³ as this was all a customer could handle and still get home at a reasonable time. Mr Lukic agreed with the proposition in crossexamination that the applicant would like to do 300 good days a year and said further 'that's how we did the dust modelling, I think' (T:84; 15.12.15).
Mr Lukic was questioned in crossexamination as to why, if the expected capacity was about 40,000m³/year, the applicant will not agree to a condition limiting it to that amount:
Well, because we want to grow our business and we've got conditions that are, as long as we comply with those conditions, why shouldn't we be allowed to do more metres to suit the market?---We want to have that capacity if it's called upon.
(T:85; 15.12.15)
The supplementary witness statement of Mr Lukic dated 15 September 2016 reiterated his previous evidence that the applicant intends to implement the existing approval should the proposed development be refused by the Tribunal.

The planning experts

Mr Sklarski was of the opinion in relation to the proposed development that it is consistent with orderly and proper planning for the following reasons:
a)it is an appropriate use on the subject site and is consistent with the General Industry zone;
b)the potential for adverse offsite impacts (principally noise and dust) have been thoroughly investigated by qualified and experienced technical consultants;
c)the design and manner of operation and the implementation of a range of mitigation measures, which can be controlled through the existing regulatory framework, will not have an adverse impact on the amenity of surrounding land uses or the locality;
d)there is sufficient separation distance between the proposed development and residential dwellings; and
e)enclosure of the concrete batching plant will reduce dust and noise emissions from the subject site in comparison with the existing approval.
Ms Morgan acknowledges that the existing approval, subject to obtaining a works approval from the DER, could be implemented. Ms Morgan was of the opinion that the proposed development appears at face value to be an improvement on the existing approval in that it significantly reduces the risk of negative amenity impacts. However, Ms Morgan is of the view that the location of the proposed development is undesirable as it is:
a)immediately adjacent to a recreation reserve and industrial premises that are sensitive to dust;
b)close to a residential area and well within the generic buffer for such uses; and
c)in an industrial area where air quality is already problematic.
Ms Morgan also stated that there is an increased scope for production, the impacts of which have not been modelled. If approval of the proposed development is contemplated by the Tribunal, Ms Morgan recommends a condition limiting production would be reasonable as the higher production rates have not been modelled. Ms Morgan is of the view that if the applicant desires to increase production in the future, a new planning application accompanied by evidence which demonstrates an ability to operate at the higher level without negatively impacting on amenity would be consistent with orderly and proper planning.
Mr Sklarski and Ms Morgan gave their oral evidence concurrently and were crossexamined on their opinions. Both agree that the three most likely external impacts of the proposed development were noise, dust and traffic. Both also agree that, from a planning perspective, a business such as that operated by Mr Broad, which operates in the General Industry zone where noxious industries are permitted, cannot reasonably expect the same level of amenity as other zones such as light industry or residential. Ms Morgan agreed with the proposition that the proposed conditions to control the operation of the plant were rigorous and Ms Morgan stated further that she considered the proposed conditions to be detailed and comprehensive.

The environmental experts

Mr Graham and Dr Forster prepared a comprehensive joint statement of expert witnesses which includes the following:
a)The opinion of Dr Forster minuted by the respondent in its Ordinary Council Minutes of 22 September 2015 where he has concluded that 'there now appears no impediment from a dust risk perspective to refuse the application for the proposed batching plant' is predicated on the effective implementation of the proposed dust control measures at all times.
b)Dr Forster stated that he is of the opinion that the modelling performed on behalf of the applicant is of an acceptable standard and the outcomes can be relied upon to inform potential risk to human health.
c)In relation to the compliance concern raised by Dr Forster based on an observation he made on a visit to the applicant's Mandurah facility, Mr Graham noted that the Mandurah plant is not directly comparable to the proposed development, Mandurah uses a 10 year old drymix process whereas the proposed development will use a modern wet-mix technology.
d)Both agreed that the operation of the proposed development needs to be performed with suitable and adequate dust control measures, including but not limited to frequent sweeping and wetting of hard standing areas and the operation of water sprays on the temporary overflow material storage bins.
e)Both agreed that the technology for the proposed development is superior to the existing approval in respect of environmental performance and that acceptable dust emission outcomes can be achieved subject to correct operation of the equipment and maintenance of equipment being carried out at appropriate intervals.
f)Both agreed that independent auditing of dust controls, monitoring systems and monitoring results should be carried out on a periodic basis.
g)Mr Graham is of the view that, in regard to environmental performance, the throughput of the proposed development is not the defining metric. Throughputs of 135m³/day and 500m³/day are notional values relating to average and peak conditions; however, the demonstration of compliance with the air quality criteria is the relevant compliance standard, not the throughput which is unrelated to human health. Dr Forster considers that there is an element of uncertainty in predictions of dust impacts in the event that the applicant has a need to operate for a period of time above the average and peak rates.

Dr Forster and Mr Graham gave their oral evidence concurrently and were crossexamined on their opinions. Mr Graham provided further explanation to assist the Tribunal in understanding the assumptions in the modelling, in particular Tables 23 to 26. Dr Forster and Mr Graham also provided further written evidence to assist the Tribunal's consideration of the new NEPM.
Aspects of the new NEPM that are relevant to this matter can be summarised briefly as follows:
a)introduction of a new annual average standard for particles as PM10 of 25 micrograms per cubic metre;
b)the amendment of the 24 hour average standard for particles as PM10, in that while the 50 micrograms per cubic metre maximum is maintained, the days of permitted exceedance per year is deleted; and
c)a new definition of 'exceptional event' is added, and clause 18 is amended to include new subclauses (3A) to (3D).
At the time of the hearing of this matter in December 2015, the ambient air NEPM criterion allowed up to five days of exceedances in a year. The new NEPM introduced following the hearing has deleted reference to five days of permitted exceedances. The levels said to reach an exceedance derive from the background level (that is, the contribution from the surrounding area that is independent of the proposed development) added to the incremental contribution from the proposed development. Both the expected average day of 135m³ and a 'good day' of 500m³ are modelled across a year. The model predicts that operation of the existing approval at 500m³/day would exceed five times in a year and at 135m³/day would exceed twice. On the other hand, the model predicts that operation of the proposed development at 500m³/day would exceed two times in a year and at 135m³/day would never exceed.
Mr Graham explained that the removal of the allowance for five days of exceedances per year in the new NEPM was replaced with a regime which now provides that, for the purpose of reporting compliance, monitoring data that has been determined as being directly associated with an 'exceptional event' is excluded. The new NEPM defines 'exceptional event' as meaning:
[A] fire or dust occurrence that adversely affects air quality at a particular location, and causes an exceedance of 1 day average standards in excess of normal historical fluctuations and background levels, and is directly related to: bushfire; jurisdiction authorised hazard reduction burning; or continental scale windblown dust.
Mr Graham stated that, based on his experience, and consistent with the views of the experts in the decision of the Tribunal in 2014 in Ransberg and City of Bayswater, the highest daily levels of particulates in the Perth region (the days on which 50 micrograms per cubic metre maximum is exceeded) are associated with those days on which 'exceptional events' occur, such as smoke from local or regional bushfires, or large-scale hazard reduction burning.
The modelling assumptions seek to be conservative by modelling the 'worst case scenario'. Of note, there is a further conservative or 'worst case' aspect to the modelling assumptions in that, whilst 500m³/day is modelled across a whole year, the expectation is that 500m³/day will only actually occur once or twice. Therefore, the predicted two exceedances would only potentially occur if the maximum background levels occur on the same day as the plant produces 500m³, which in the Tribunal's view is unlikely.
In his supplementary witness statement dated 16 September 2016, Mr Graham concluded that the modelling conducted had been based on an operational throughput without consideration of the proposed conditions of approval which would limit operations in circumstances that dust levels were elevated. When the development proposal is considered together with the proposed conditions, it is Mr Graham's opinion that the potential environmental impacts from the proposed development can be appropriately managed and there is no reason based on air quality constraints in the new NEPM that the proposed development should not be approved.
Dr Forster, in his supplementary witness statement dated 3 October 2016, confirmed the validity of Mr Graham's predictions. Dr Forster also stated that the highest concentrations of particulates are largely attributed to smoke emissions from bushfires and prescribed burns. Dr Forster again emphasised the significance of the burden imposed on the proposed development to ensure dust emission controls are maintained at all times to the levels of efficiency described by the applicant to accord with the predictions in the modelling.

Consideration and findings

The respondent submitted that an inference could be drawn that the applicant did not have any intention to proceed with the existing approval if the Tribunal did not approve the proposed development. This submission was based on the fact that the applicant had only sought works approval for the proposed development and not the existing approval that Mr Lukic said the applicant would proceed with if they were unsuccessful in these proceedings along with the risk to the operation of the business with the inferior existing approval.
The Tribunal considers that an equally competing inference could be drawn that the applicant was confident of getting approval for the proposed development as it was considered by all of the experts to be superior concerning the management of amenity issues such as noise and dust and the applicant did not wish to waste resources in seeking a works approval for the inferior existing approval if they did not need to. If the applicant was unsuccessful in obtaining approval for the proposed development, the applicant can simply put in an application for works approval for the existing approval.
Therefore, as there are equally available competing inferences that can be drawn and based on the Tribunal's findings in relation to the evidence of Mr Lukic below, the Tribunal considers that the inference that the respondent seeks is not reasonably open on the evidence.
The Tribunal finds that Mr Lukic was an impressive witness who provided evidence that was both reliable and credible. His evidence was clear, cogent, and candid. Therefore, the Tribunal accepts the evidence of Mr Lukic in its entirety. In particular, the Tribunal notes Mr Lukic provided evidence that the applicant intends to implement the existing approval if the proposed development is not approved. Indeed, the applicant already has on order the plant that is common to both proposals. These findings of fact distinguish the hypothetical scenario considered in Re City of Perth; ex parte Lord & Ors [2002] WASCA 254 at [41] - [42].
The Tribunal finds that the potential capacity of the proposed development is the same as the existing approval. In this regard, the Tribunal notes the evidence of Mr Lukic that the actual capacity is expected to average 135m³ per day and that occasionally, perhaps two or three times a year, capacity may be around 500m³ on a particular day.
The Tribunal also notes the evidence of Mr Lukic to the effect that the proposed development is a business, and when demand calls upon it do so, the applicant may at some time in the future, more often have days that exceed 500m³. However, this is only a possibility at this point in time, with no certainty as to any timeframe.

Noise, dust and traffic

The applicant sought to convince the Tribunal that the correct and preferable decision is that the proposed development with conditions will not have an adverse impact on amenity, in particular noise, dust and traffic. In this regard, the applicant provided expert evidence concerning noise and dust emissions. The applicant submits that traffic issues can be managed with a condition requiring a traffic management plan to be approved by the respondent.
In contrast, it is noted that, whilst the respondent raised the issues of noise and traffic as reasons to refuse the proposed development, the respondent did not provide any expert evidence addressing those issues. Submissions by the respondent do not constitute evidence. The Tribunal understands the reasoning for the opinions expressed in the acoustic assessment report dated October 2014 provided by Herring Storer Acoustics. Without any expert evidence to challenge the noise report and absent any glaring error of fact or logic that is apparent to a non-expert, the Tribunal is of the view that the applicant's expert opinion and modelling as to noise impacts of the proposed development should be accepted. The Tribunal is further satisfied that a condition requiring a noise management plan can address any issues that may arise.
The respondent raised a concern or belief, via the resident objections, that residential streets may be used for what is commonly known as a 'rat run' rather than the preferred Collier Road and Tonkin Highway. The Tribunal is satisfied, if the Tribunal was to approve the proposed development, that this issue can be managed by the respondent in the traffic management plan provided for in the proposed conditions.
These proceedings are somewhat unusual in that, in matters that are material to the Tribunal's reasons for decision, where there are experts of corresponding expertise, there is very little to no disagreement amongst those experts.
Dr Forster was concerned by his observations at the Mandurah plant operated by the applicant that dust was generated from wheel movement and was not attended to whilst he was present. All the facts and circumstances surrounding that instance other than what Mr Graham observed are not adequately known by the Tribunal. The Tribunal considers that little significance can be attached to this evidence. If the Tribunal was to approve the proposed development, the Tribunal is of the view that the proposed condition in this matter involving a truck washdown area as well as the requirement to comply with the concrete batching regulations should adequately address the issue raised by Dr Forster. The Tribunal is further of the view that any potential compliance concerns that Dr Forster raises are not significant to this determination for two reasons. Firstly, the Tribunal assumes that the applicant will comply with any conditions imposed and secondly, the evidence before the Tribunal does not disclose any compliance concerns in the past.
The new NEPM standard does not actually set the standard in this State. The Tribunal notes that, whilst the new NEPM is now effective, there is no substantive evidence before the Tribunal as to how it will be applied, or phased in, in this State. In any event, the new NEPM remains at 50 micrograms per cubic metre and the only relevant issue of any significance is the removal of five permitted exceedances per year. The Tribunal accepts the modelling conclusion that there would be no exceedances at 135m³/day modelled across the whole year and the predicted two exceedances would only potentially occur if the maximum background levels occur on the same day as the plant produces 500m³, which the Tribunal finds is unlikely. The Tribunal also accepts the evidence of Mr Graham, agreed with by Dr Forster, that any exceedances are likely to be associated with 'exceptional events' and therefore to be excluded from the monitoring data.
There is some evidence before the Tribunal as to how the new NEPM will be applied in this State; that is, the decision of the EPA, the recommendation of the Appeals Convenor and the decision of the Minister for Environment. The Tribunal considers it is significant that they all still reached the view they did regarding the proposed development following the introduction of the NEPM.
The Tribunal notes in relation to separation distances that the EPA, the Appeals Convenor and the Minister for Environment acknowledged that the distance between the proposed development and sensitive receptors is less than the generic distance recommended in EPA Guidance Statement No 3. However, such policy provides that where separation distances are not met, site and industry specific studies should be undertaken to demonstrate that the proposal will not result in unacceptable impacts. The EPA was satisfied that the site-specific modelling and its peer review was sufficient for the EPA to conclude that the proposed development would not result in unacceptable impacts off site with noise and dust levels meeting applicable criteria. The Appeals Convenor and the Minister for Environment agreed with the EPA's approach in relation to separation distances. The Tribunal also concurs with that approach.
Therefore, with two exceptions, the Tribunal accepts the applicant's submission that the planning framework relevant to the proposed development is substantially the same as it was when the existing approval was allowed by the Tribunal. As to the two exceptions, firstly, the Tribunal notes that the Deemed Provisions are now in place though they do not differ substantially from what is provided for in TPS 24. Secondly, the Tribunal also notes that the new NEPM is now in place, but for reasons expressed above does not consider that the new NEPM is a significant barrier to approval of the proposed development.
The Tribunal has considered the amenity concerns raised by the residents and adjacent business balanced against the expert evidence as well as the comparison with the inferior existing approval in terms of protecting amenity issues and in particular dust emissions. It is the Tribunal's view that the concerns of the residents and adjacent business, whilst relevant, should be given little weight as these concerns do not match the objective facts and expert evidence as found by the Tribunal: Woolworths and City of Joondalup [2009] WASAT 41 at [76] - [77] citing Self Help Addiction Resource Centre Inc v Glen Eira City Council (2005) 145 LGERA 124 at [56].
The Tribunal is of the view that the concerns of the residents and nearby businesses are better ameliorated by the proposed development than the existing approval. The Tribunal is further satisfied and finds that the conditions to be imposed together with the regulatory framework will sufficiently address any amenity issues including noise, dust and traffic and any potential issues which may arise if capacity is higher than presently expected.
The respondent referred to the precautionary approach consistently taken by the Tribunal in relation to matters of public health and safety: see, for instance, Greenelm Pty Ltd and City of Swan [2010] WASAT 142 at [57] and Ransberg and City of Bayswater at [149]. However, the Tribunal has no evidence in this matter that public health and safety will be compromised or that serious environmental harm which is irreversible will result from the proposed development with appropriate management conditions in place. It would therefore not be appropriate to apply the precautionary principle in those circumstances.

Conclusion

The Tribunal is of the view that, whilst it must look at the proposed development as a new application, it is a relevant, but not determinative, consideration that there is an existing approval that the Tribunal has found as a matter of fact that the applicant intends to implement if the proposed development is not approved.
Significantly, the proposed development is universally agreed amongst all the experts to be a superior proposal to the existing approval in lessening the noise and dust impacts on the amenity of the locality.
Whilst not determinative on its own, it is also relevant to this decision that the EPA determined not to assess the proposal, for reasons detailed earlier in this decision, as the EPA considers that the overall environmental impact does not warrant an assessment and the setting of formal conditions by the Minister for Environment. It is noted that the objections raised with the EPA in its public comment process were consistent with the objections raised before the Tribunal. Furthermore, the EPA's decision was upheld on appeal to the Minister for Environment. It is also relevant to the Tribunal's decision that the EPA and the Minister for Environment all made their decision after the introduction of the new NEPM.
The Tribunal is therefore satisfied with the information derived from the modelling, that the conditions to be imposed on the approval, together with the regulatory framework will be adequate to monitor and control any exceedances or issues that may arise concerning traffic, dust and noise.
On the basis of the evidence before the Tribunal, in particular the expert evidence of Mr Graham, Dr Forster and the decision of the EPA as well as the Minister for Environment, if the unexpected occurs that the average begins to exceed 135m³/day or the number of 500m³/day per year increases, the Tribunal is satisfied that the conditions and regulatory framework can manage the amenity impacts.
The Tribunal is therefore of the view that the correct and preferable decision is that the proposed development, subject to conditions, is consistent with orderly and proper planning, having regard to:
a)the compatibility of the proposed development within its setting;
b)the preservation of the amenity of the locality;
c)any relevant submission received on the proposed development;
d)securing the amenity, health and convenience of the Scheme area and its inhabitants;
e)the history of the site; and
should and will be approved.

Conditions

The Tribunal is of the view that the proposed development should be subject to conditions, in particular those which seek to control and manage amenity issues relating to traffic, noise and dust emissions. The parties are substantially in agreement as to the relevant conditions to be imposed, with some exceptions, namely, the contribution to public art (proposed condition 26), the wind fence along the boundary with the premises operated by Mr Broad (proposed conditions 27(c) and 28) and production limits (proposed condition 39) which are considered below.
Furthermore, the proposed agreed condition 37 refers to 'an attached landscape plan' that was not provided to the Tribunal. The condition has therefore been amended to provide that landscaping and reticulation shall be completed in accordance with a detailed landscape plan approved by the City of Bayswater prior to occupation of the development and thereafter maintained to the satisfaction of the City of Bayswater.

Public art (proposed condition 26)

The applicant opposes the condition proposed by the respondent in relation to the flat percentage of development cost calculation for public art in accordance with the respondent's policy. The applicant submits that there is a public benefit regarding amenity in the proposed development in comparison with the existing approval and therefore some discretion should be exercised in favour of the applicant relating to the public art contribution. The Tribunal does not accept that argument and the applicant has not satisfied the Tribunal that the public art condition in the terms suggested by the respondent should not be imposed in this case: Lavenda Pty Ltd & Anor and Town of Vincent [2006] WASAT 374 at [27].

Wind fence (proposed conditions 27(c) and 28)

The respondent proposes conditions 27(c) and 28 that require the provision of a wind fence along the side boundary adjoining 273275 Collier Road, Bayswater for the purpose of reducing the transmission of airborne dust particles to the adjoining lot operated by Mr Broad's Able Westchem. It is proposed that the wind fence shall be constructed prior to commencement of operations and thereafter maintained to the satisfaction of the respondent.
Originally the applicant did not object to these conditions. However, the applicant advised the Tribunal in submissions made on 24 October 2016 that it now objects to the wind fence on the basis that the applicant submits Able Westchem is not a 'sensitive' premises and that it exists without relevant approvals. The applicant submits that the Able Westchem premises are 'prescribed premises' as defined under the EP Act and therefore the premises should have a works approval and a prescribed premises licence issued by the DER.

Orders

1.The application for costs is allowed.
2.Within 21 days of the date of these orders, the respondent is to pay to the applicant's costs of the review proceedings fixed in the total amount of $112,772.73 being $68,059.31 in legal fees (inclusive of GST); $6,249.00 in disbursements; and $38, 464.42 in consultants' fees.

I certify that this and the preceding [64] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR M SPILLANE, SENIOR MEMBER