RANSBERG PTY LTD and CITY OF BAYSWATER
[2014] WASAT 12
•28 JANUARY 2014
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: RANSBERG PTY LTD and CITY OF BAYSWATER [2014] WASAT 12
MEMBER: MR P McNAB (SENIOR MEMBER)
MR J JORDAN (MEMBER)
MR P CURRY (SENIOR SESSIONAL MEMBER)
HEARD: 29, 30 NOVEMBER AND 1 DECEMBER 2011 AND 8 OCTOBER 2013
DELIVERED : 28 JANUARY 2014
FILE NO/S: DR 242 of 2011
DR 243 of 2011
BETWEEN: RANSBERG PTY LTD
Applicant
AND
CITY OF BAYSWATER
Respondent
Catchwords:
Town planning Development application Concrete batching plant Industrial zone bordering residential area and recreation area Dust Cumulative dust from additional industrial use Amenity impacts Whether danger to public health Plant proposed new wet-mix technology Wet-mix technology approved by regulators elsewhere in metropolitan area Significant concurrent regulation of facility by Department of Environmental Regulation Permissible land use under local planning scheme Measurement of dust Lengthy adjournment of hearing to facilitate accurate dust measurement and modelling Buffer zones Whether recommended buffer zone should be adhered to Significant agreement by environmental experts on potential risks to public health from dust Evidence suggesting dust exceedences from national standards would be infrequent and generally capable of management Necessary measures for ongoing dust management and temporary cessation of activities Whether application of precautionary principle justified to warrant refusal of approval Tribunal permitting development on basis of amended conditions Words and phrases: 'precautionary principle'
Legislation:
City of Bayswater Town Planning Scheme No 24, cl 1.6, cl 3.3.1, cl 3.3.2, cl 3.6.1, cl 8.3.1.2, Appendix 1
Environmental Protection (Concrete Batching and Cement Product Manufacturing) Regulations 1998 (WA)
Environmental Protection (Noise) Regulations 1997 (WA)
Environmental Protection Act 1986 (WA), Pt V
Environmental Protection Regulations 1987 (WA), reg 5, Sch 1 Pt 2
Planning and Development Act 2005 (WA)
Metropolitan Region Scheme
Result:
Application for review allowed; conditional approvals given
Summary of Tribunal's decision:
In 2011, Ransberg Pty Ltd applied to the Tribunal for a review of the refusal by the City of Bayswater of an application for planning approval of a wetmix concrete batching plant and of a related application for retaining walls. The applicant's proposal was in respect of an industrial zoned lot located in Bayswater.
The City of Bayswater refused the planning applications because of concerns about the impact of the proposed development on the locality and whether the development would be inconsistent with orderly and proper planning. A public recreation ground and a significant number of residences were located less than 300 metres from where the proposed plant would be built.
Amenity issues of concern raised by the City of Bayswater included: the proposed plant's visual impact; the level of noise generated by the proposed plant; and, critically, the potential adverse amenity and health impacts of the additional dust that might be generated by the operation of the plant.
Material before the Tribunal indicated significant levels of preexisting background dust from other industrial operations unrelated to the applicant. Of central concern, therefore, was whether there would be a sufficient buffer or separation distance between the plant and the neighbouring residential areas.
The final hearing initially commenced in November 2011; however, the hearing concluded some 22 months later. A lengthy adjournment was occasioned by reason of the Tribunal requiring accurate data on any impact of preexisting dust upon air quality in the locality, and for the results of modelling of the potential dust emissions from the plant. The Tribunal also required further information on the alleged benefits of the relatively new technology involved in a wetmix concrete production process with regard to dust emissions and their control.
Material before the Tribunal, at that point in 2011, suggested that the plant would also require licensing and ongoing regulation by the State's departmental environmental agency, if it were to be proceeded with.
The Tribunal indicated that, on what was then known, a conditional approval may be possible if such further expert material was furnished in relation to the matters identified by the Tribunal, and that the material satisfactorily addressed any environmental or public health issues.
The Tribunal found that certain amendments to the design of the plant and its landscaping would result in an acceptable visual impact on the locality, and that with appropriate conditions, particularly in relation to operating hours, noise could be adequately controlled.
The expert evidence collected in relation to dust was complex. It suggested that exceedances of national standards for daily airborne particulates would be relatively infrequent and that dust could be managed by way of the imposition of appropriately detailed operating conditions. The Tribunal accepted this evidence. Control would include a management plan with conditions requiring the ongoing monitoring of locality air quality and the modelled impact of the plant's dust emissions triggering the temporary cessation of activities on the site if and when this was necessary to maintain daily air quality.
The City of Bayswater had submitted that the 'precautionary principle' should be applied to refuse the development. However, the Tribunal was satisfied that, having regard to the expert evidence, the concessions from the applicant on the design and operation of the plant, and by reason of the imposition of conditions requiring appropriate management practices with respect to the operation of the plant, a refusal on amenity and environmental grounds was not warranted.
The Tribunal further found that it would be consistent with orderly and proper planning to grant conditional approval of the proposed development in the location proposed because, subject to the imposition of the further conditions to ensure adequate operational responsiveness to the dust issue, the plant would be sufficiently separated from residential areas and would be development otherwise consistent with the planning objectives for industry in the zone.
The Tribunal therefore decided to allow the applications for review, and granted conditional planning approval for the two developments. The Tribunal's approvals were subject to the parties further negotiating and amending the draft conditions already jointly agreed by them. Such conditions were to be consistent with the detailed reasons issued by the Tribunal.
Category: A
Representation:
Counsel:
Applicant: Mr M Hardy
Respondent: Mr C Slarke
Solicitors:
Applicant: Hardy Bowen
Respondent: McLeods Barristers & Solicitors
Case(s) referred to in decision(s):
Keysbrook Leucoxene Pty Ltd and Shire of SerpentineJarrahdale [2012] WASAT 212
Telstra Corporation Ltd v Hornsby Shire Council [2006] NSWLEC 133; (2006) 146 LGERA 10
Wattleup Road Development Company Pty Ltd and Western Australian Planning Commission [2011] WASAT 160
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
Ransberg Pty Ltd (Ransberg or applicant) sought review under the Planning and Development Act 2005 (WA) (PD Act) of two refusals by the City of Bayswater (City or respondent) on 29 June 2011. The refused development applications were in respect of the construction and operation of a proposed concrete batching plant on vacant land at Nos 277 - 279 (Lot 2) Collier Road, Bayswater (Lot 2 or site), and a related application in respect of proposed retaining walls at the northern end of Lot 2.
The two matters, DR 242 of 2011 and DR 243 of 2011 respectively, were heard concurrently over four days in total in the Tribunal, and included an onsite inspection in the presence of the parties and certain experts. The final day of hearings took place 22 months after an adjournment, for reasons more fully explained below.
In short, it may be noted that the adjournment was occasioned by reason of the need for the applicant to provide further substantial material of an environmental nature to address certain issues raised by the Tribunal.
The background to the proposals
The following narrative is common ground and is mainly drawn from the parties' respective statements of issues, facts and contentions.
Lot 2 Collier Road, Bayswater comprises an area of 12,324m2 and is currently vacant. To the east, west and south of the site the surrounding land is used for industrial purposes, while to the north the site abuts the Joan Rycroft Reserve (which includes a playground) south of Shalford Street and a Water Corporation drainage reserve. Other industrial premises nearby include a waste concrete recycling plant, a furniture factory and a waste transfer facility. Two other concrete batching plants are located about 800 metres to the southwest of the site.
For approximately 32 years, until 2007, the site had been used as a fuel depot and service station, after which soil investigations were undertaken to investigate possible contamination of the site. As a result, remediation works were undertaken, and subsequently, the Department of Environment and Conservation (DEC) (now, the Department of Environment Regulation (DER)), advised the City that the site appeared suitable for continued commercial/industrial use.
On 20 October 2010, the City received an application for planning approval in respect of a proposed concrete batching plant. Further documents lodged in support of the application included: a Revised Site Plan; a Dust Management Plan; a Noise Assessment Report; and a Supplementary Noise Assessment Report.
Following the respondent's advertising of the development application, 312 separate written submissions and one submission from a ratepayers' delegation were received, all objecting to the proposal.
On 1 March 2011, the City received an application for planning approval for retaining walls to be erected at the rear, northern end of Lot 2.
Details of the proposals
As originally proposed, the concrete batching plant included three storage silos, each 19 metres in height, accompanied by 16 storage bins. Approximately 8,600m2 of the site would be sealed with either asphalt or cement, including those portions of the site used for the storage bins and the silos. About 3,600m2 of the site would be unsealed, resulting in approximately 10% of the site that would require landscaping, with the remainder under grass.
The design of the plant was for a wet-mix concrete production facility. This system was, it was submitted, an improvement on existing concrete production techniques. It was uncontested that such wetmix plant technology, developed in Europe, was relatively new and that there were very few previous examples known to be operating in Western Australia. However, it was understood that there were such plants built in the metropolitan area and on Barrow Island.
Production from the proposed plant involves receiving a cement supply which is unloaded to the silos using a sealed system. Cement from a tanker is to be pumped pneumatically via sealed and enclosed airslides (augers) into steel storage silos which are fitted with reverse pulse air filters to minimise dust release from the air vents. Sand and aggregate are to be delivered in a damp state and stored in partly enclosed product bins fitted with sprinkler systems.
To produce concrete, sand and aggregate are transferred from the product bins to the feed bins using a frontend loader (FEL) carrying materials in a single direction only. From these bins, automatically weighed amounts are fed to a hopper via a mechanical conveyor. Cement is fed from the storage silos and combined internally with sand, aggregate and water before being mechanically conveyed to the cement mixing trucks.
The proposed retaining walls are intended to stabilise the rear of the site and prevent further erosion. They would be built along the northern, eastern and western boundaries and would vary in height from 5 metres along the rear (northern) boundary, tapering from that height to zero about 8 metres along the eastern boundary and about 30 metres along the western boundary.
The refusals
On 29 June 2011, the City issued refusals for both planning applications.
The City refused the planning application for the concrete batching plant for reasons that can be summarised as follows:
•Concern about the proximity of a 'noxious industry' to a residential area.
•Concern about the impact on the amenity of the locality from noise and dust and on the visual amenity of the locality because of the height and appearance of the development.
•The development being inconsistent with orderly and proper planning.
The City refused the planning application for the retaining walls because it considered the walls would have an 'undue impact' on the visual amenity of the locality and would also be inconsistent with orderly and proper planning.
The two applications for review were then filed with the Tribunal.
Planning and environmental control instruments
The site is zoned General Industry under the City of Bayswater Town Planning Scheme No 24 (TPS 24). The lots adjoining to the east and west of the site, and to the south across Collier Road, are zoned General Industry under TPS 24. Immediately adjacent to the northern boundary of the site is a 15 metre wide reserve for drainage. Between the drainage reserve and Shalford Street to the north, a distance of about 105 metres, is a reserve for local public open space under TPS 24. This open space is known as Joan Rycroft Reserve. To the north of Shalford Street are single houses within a residential zone.
Collier Road and Tonkin Highway which is approximately 150 metres to the west are both reserved as primary regional roads under the Metropolitan Region Scheme (MRS). The site, adjacent lots, the drain and Joan Rycroft Reserve are all within the Industrial zone of the MRS.
The respondent characterised the use as a noxious industry, which is designated as a 'D' use within the General Industry zone under TPS 24. A 'D' use is not permitted unless the local government has exercised its discretion to grant planning approval. In 'Appendix 1 Interpretations' of TPS 24 it states:
Industry Noxious: means an industry which is subject to licensing as 'prescribed premises' under the Environmental Protection Act 1986 (as amended).
Concrete batching plants are subject to licensing as a 'prescribed premises' under the Environmental Protection Act 1986 (WA) (EP Act) and Environmental Protection Regulations 1987 (WA) (EP Regulations) (reg 5 and Sch 1 Pt 2; Category 77).
The objectives of TPS 24 are stated at cl 1.6 and include the following:
a)To zone the Scheme Area for the purposes described in the Scheme so as to strategically promote the orderly and proper development of land by making suitable provisions for the use of land within the Scheme Area;
b)To secure the amenity, health and convenience of the Scheme Area and the inhabitants thereof …
Clause 3.6.1 of TPS 24 provides that, in considering an application for planning approval, due regard must be had to certain matters. The following matters are directly relevant to the proposed development:
a)The aims and provisions of the Scheme …
b)The requirements of orderly and proper planning …
c)Any approved statement and planning policy of the [Western Australian Planning] Commission;
d)Any approved environmental protection policy under the Environmental Protection Act 1986;
e)Any relevant policy or strategy of the [Western Australian Planning] Commission and any relevant policy adopted by the Government of the State;
…
i)The compatibility of a use or development with its setting;
…
l)The likely effect of the proposal on the natural environment and any means that are proposed to protect or to mitigate impacts on the natural environment;
…
n)The preservation of the amenity of the locality;
o)The relationship of the proposal to the 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 proposal;
p)Whether the proposed means of access to and egress from the site are adequate and whether adequate provision has been made for the loading, unloading, manoeuvring and parking of vehicles;
…
v)Whether adequate provision has been made for the landscaping of the land to which the application relates and whether any trees or other vegetation on the land should be preserved;
…
(y)Any relevant submissions received on the application;
(z)The comments or submissions received from any local authority consulted under clause 3.5.1;
(aa)Any other planning consideration the local government considers relevant.
Clause 8.3.1.2 of TPS 24 provides that:
For the purpose of development within an Industrial or Commercial zone, no person shall construct a building of more than two storeys, being 9.0 metres in wall height and no more than 12.0 metres in height from the ground level to the roof pitch, within the Scheme Area unless the Council considers the building will not negatively affect the amenity of the surrounding area.
Pursuant to cl 3.3.1 of TPS 24, where an application requires the planning approval of the Council, the Council may give notice of the application to the public inviting submissions in accordance with the provisions of cl 3.3.2. The respondent gave notice of the proposed development, providing interested persons with the opportunity to comment.
In May 1997, the Western Australian Planning Commission (Commission) adopted State Planning Policy No 4.1 'State Industrial Buffer Policy' (SPP 4.1). SPP 4.1 first sets out 'Background Information', and this provides at clause 1.1:
… most industries … need to be separated from residential areas and other sensitive uses with a buffer area … to ensure that amenity (environmental quality, health and safety standards) is maintained at acceptable levels.
Commencing at page 5 of SPP 4.1 is the 'Policy', and at clause 1 are listed certain corresponding objectives which include:
(1)To provide a consistent Statewide approach for the definition and securing of buffer areas around industry, infrastructure and some special uses.
(2)To protect industry, infrastructure and special uses from the encroachment of incompatible land uses.
(3)To provide for the safety and amenity of land uses surrounding industry, infrastructure and special uses.
(4)To recognise the interests of existing landowners within buffer areas who may be affected by residual emissions and risks, as well as the interests, needs and economic benefits of existing industry and infrastructure which may be affected by encroaching incompatible land uses.
Under the heading 'Principles', SPP 4.1 states, at clause 2(1):
Industries, infrastructure and special uses requiring off-site buffer areas are an important component of economic growth in Western Australia and are essential for the maintenance of our quality of life. These facilities and associated buffer areas must be planned for.
At clause 4.4, under the heading 'How should industry and infrastructure comply with environmental and planning criteria?', SPP 4.1 states:
Industry and infrastructure normally comply with adopted environmental and planning criteria through a combination of
•appropriate management practices which should not unreasonably inhibit industry capacity or infrastructure usage; and
•off-site buffer areas.
The size of the buffer area is dependent on the management practices used. …
Clause 1.3 of the 'Background Information' in SPP 4.1 includes the sentence:
The Department of Environmental Protection is in the course of preparing a Generic Industrial Buffer Distance Review, which will form the primary guide to the need for buffers, along with appendices to this Policy.
In June 2005, the Environmental Protection Authority (EPA) produced a document 'Separation distances between industrial and sensitive land uses No 3' (Guidance Statement No 3). The listed sensitive uses include 'residential development' and 'playgrounds'. The Table at Schedule 1 of Guidance Statement No 3 stipulates that for 'concrete batching plant or cement products (bricks) manufacture', a generic buffer distance of '300 500 [metres is appropriate], depending on [the] size [of the operation]'.
Clause 4.4.1 of Guidance Statement No 3 provides that:
Where the separation distance is less than the generic distance, a scientific study based on site and industryspecific information must be presented to demonstrate that a lesser distance will not result in unacceptable impacts.
If the distance from the industrial land use to the sensitive land use is less than the recommended separation distance, and it cannot be demonstrated that unacceptable environmental impacts are likely to be avoided, then other options should generally be pursued.
These may include:
•modifying the project to reduce emissions via engineering controls such as process design, process enclosure or other means; and
•pursuing land use planning and management controls (e.g. land acquisition, rezoning) to reduce environmental impacts to acceptable levels.
In 2009, the Commission published draft State Planning Policy 4.1 'State Industrial Buffer (amended)' (draft SPP 4.1). Draft SPP 4.1 restates (from SPP 4.1) the rationale for an industrial buffer policy and includes at clause 5.2:
Proposals that satisfy recommended buffer distances in Guidance for the Assessment of Environmental Factors No 3 Separation distances between industrial and sensitive land uses (Environmental Protection Authority, June 2005) are deemed to comply with the objectives of this policy and shall form the basis of planning controls adopted by the [Commission] as a basis for local planning.
Further provisions of both SPP 4.1 and Guidance Statement No 3 are included in the discussion of the issues below.
Thus, to assist in determining whether there would be an acceptable impact on the amenity of the locality, as required by cl 3.6.1 of TPS 24, the proposed development was assessed by the parties having regard to the requirements of:
•the Environmental Protection (Noise) Regulations 1997 (WA) (Noise Regulations); and
•the Environmental Protection (Concrete Batching and Cement Produce Manufacturing) Regulations 1998 (WA) (Concrete Batching Regulations).
The relevant clauses of these instruments are also referred to in the discussion below.
Issues
The issues, as agreed between the parties, were as follows:
1)Is the proposed development consistent with orderly and proper planning, given its classification as a 'noxious industry' and its proximity to an established residential area?
2)Will the proposed concrete batching plant negatively impact upon the amenity of the surrounding area, so as to preclude a variation of the 12 metre height limit applicable to industrial development, having regard to:
a)potential noise emissions from the operation of the plant;
b)potential dust emissions from the operation of the plant;
c)the visual impact of the plant, particularly the 19 metre high silos; and
d)the separation distance between the plant and residential dwellings?
3)Would approval of the proposed concrete batching plant be inconsistent with the preservation of the amenities of the locality, having regard to the considerations referred to in paragraphs 2(a) - 2(d) (above) inclusive?
4)Does the development, as proposed, allow for a sufficient separation distance to sensitive land uses, as required by the Environmental Protection Authority's Guidance for the Assessment of Environmental Factors, Separation Distances between Industrial and Sensitive Land Uses (No 3, June 2005) (Guidance Statement No 3)?
Specifically, with regard to the retaining wall application, the following issues were said to arise:
5)Would the visual impact of the proposed retaining wall along the rear boundary have an unacceptable impact on the amenity of the locality?
6)Would it be contrary to orderly and proper planning to approve the retaining wall on the basis of landscaping to mitigate its visual impact if undertaken on land outside the boundaries of the subject land?
The issues agreed between the parties interrelate and overlap; they are addressed in the lengthy discussion below.
We observe at this point that the more critical issue is the environmental health consequences of dust emissions from the proposed development. The Tribunal's approach to having the dust issue properly addressed by the parties, so that the Tribunal could be properly informed, is set out in some detail below.
However, we commence with consideration of the expert evidence given in relation to the visual impact of the height of the proposed development.
Visual impact and height of the plant
It was agreed by Mr Damien Martin (a planner employed by the City) and Mr Lee Rodda (a planner engaged by the applicant), with input from Mr Walter Lukic, an engineer and batching plant manager employed by the applicant, that the location of the proposed plant and its silos was on a high point relative to Joan Rycroft Reserve and the houses, and that any development on the site would be plainly visible from the north. This is illustrated in the City's contour plan which was provided to the Tribunal.
During the course of the hearing, the applicant indicated that it was amenable to amending its application to redesign the cement silos to reduce their height to 12 metres, plus the additional height of their filter units. However, the number of units would have to be increased from three to four to maintain storage capacity. The Tribunal has proceeded to assess the proposal upon that basis.
We note, however, that Mr C Slarke, counsel for the City, expressed the reservation that although this height was an improvement on 19 metres, the amended proposal still may not be compliant with the 12 metre roof pitch height found in cl 8.3.1.2 of TPS 24.
The City's contour map shows that the lots adjoining the site to both the west and the east are at the same contour as the site. That is, the proposed silos would be at about the same floor level as the large sheds on those adjoining lots.
The shed on the lot to the west is 30 metres wide and the shed on the lot to the east is 60 metres wide near the northern boundary. Both sheds are up to 12 metres in height. These sheds are, respectively, 180 metres and 130 metres from Shalford Street. The industrial waste transfer shed two lots to the west is also 60 metres wide adjacent to the northern boundary, but this shed is at a lower contour.
The proposed silos are about 3 metres in diameter up to the now proposed 12 metre height, and the filters on top are of a lesser diameter. The silos would be aligned perpendicular to the northern boundary and the closest silo would be about 300 metres from Shalford Street.
We have found that in a locality and landscape dominated by industrial buildings of considerable bulk (which we have set out above), the filter units sitting above the silos, although higher than 12 metres, would 'not negatively impact on the surrounding area', including the area to the north. This is the standard required by cl 8.3.1.2 of TPS 24 in order for discretion to be exercised in respect of extra height.
In respect of this issue, our conclusion is that the height of the development as now proposed would not prevent conditional planning approval being granted.
Visual impact of retaining walls and location of landscaping
A related issue is the height and presentation of the retaining walls.
It was common ground that there are already retaining walls of similar height to what is proposed on adjoining properties to the east. Nevertheless, to improve the visual impact of the proposed retaining walls, Ransberg proposed to plant additional trees within the Water Corporation drainage reserve and on the Joan Rycroft Reserve so as to screen the proposed retaining walls from residential dwellings to the north.
A revised design submitted by the applicant for a proposed stepped retaining wall was described by Mr I Rogers, then counsel for the applicant, as involving a visual match with the existing retaining walls on the furniture manufacturing site to the west of Lot 2.
In the result, the parties agreed that if the proposal were to be approved, two conditions for the wall design would be necessary, these being, first, an (engineering) certification for the wall, and, secondly, a landscaping design approved by the City.
In this regard, we note that with the stepped wall as now proposed, there is potential for planting above and along the terrace that would soften the appearance of the wall. In addition, the photographs taken from Shalford Street supplied by the parties show mature vegetation in the reserve adjacent to the rear boundaries of the lots adjacent to the site that already partially screens those lots. The applicant has offered to provide planting in a similar location. It seems to us that planting with the same potential being established adjacent to the northern boundary of the site and then handed to the respondent might be a consideration for inclusion in a landscape plan if the proposal proceeds.
We next turn to noise control.
Noise emissions
Evidence was given by two noise experts, Mr Tim Reynolds, who was engaged by the applicant, and Mr Daniel Lloyd, who was engaged by the respondent, on the findings of both an initial noise assessment in relation to the proposal conducted by Mr Reynold's firm, and with respect to supplementary further information that flowed from plant and operational design modifications (including as to layout, additional screening and noise barrier proposals).
The experts agreed that with a wet-mix plant, noise from concrete slumping rarely occurs. On the assumption that at least some operational aspects of concrete batching would begin before 7 am (in accordance with widespread practice at other batching plants), noise emissions from this operation would need to comply with the night period under the Noise Regulations.
This would involve a night period LA10 assigned noise level of 35dB, plus an influencing factor and a transport factor, as measured at the critical nearest neighbouring residence. While the two experts disagreed on how the proximity of Collier Road and Tonkin Highway might be interpreted in the influencing transport factor, they agreed that the modelling study indicated that if only one road contributes +2dB to produce a lower overall influencing factor, compliance with the Noise Regulations would require an LA10 of 41dB.
The experts agreed that this lower level could still be achieved by reducing noise emissions from the FEL (when the hoppers are being filled) using a directional exhaust modification to the side and away from the direction of the residences.
Mr Lloyd pointed out that night-time noise levels in industrial areas can be very low, so some annoyance from night-time operations may eventuate if the area were otherwise quiet.
In the result however, the parties reached agreement that if the proposal were approved, no FELs would operate before 7 am.
The noise experts having otherwise demonstrated to the satisfaction of the Tribunal that any noise issues could be managed to comply with the Noise Regulations, the Tribunal has concluded that this issue would also not stand in the way of a conditional approval.
Separation distance from residential areas
The next issue to be addressed concerns orderly and proper planning. In this context, the issue of a proper separation distance as regards residential areas (sensitive receptors or sensitive premises) involves not only the preservation of the amenity of the locality, but also issues connected with public health and the environment.
Aerial photographs submitted by the respondent showed the recreation facilities of Joan Rycroft Reserve and the residential area adjacent to the site. A radius of 300 metres drawn from the proposed plant's rear hardstand would take in just over 30 dwellings, and a 500 metre radius would include about 111 dwellings.
As stated above, SPP 4.1 is directed to avoiding land use conflicts by the use of an appropriate buffer between sensitive uses and industrial development. The generic buffer distance for a concrete batching plant in Guidance Statement No 3 is 300 to 500 metres, depending upon the size of the plant.
Mr Slarke referred to the likely buffer distances and submitted that a concrete batching plant should be sited toward the centre of the Industrial zone.
Under clause 3 of Guidance Statement No 3, it is stated that:
The reader should be aware that generic distances do not take into account:
•cumulative impacts;
•non-typical emissions;
•…
•potential health impacts from emissions.
As part of comprehensive environmental impact management, the EPA states that it expects that these matters will also be considered and managed as appropriate.
In this review, the management of the impact of emissions is critical to the issue of whether the impact on the amenity of the locality is acceptable. Importantly, in respect of generic buffer distances, Guidance Statement No 3 advises, at clause 4.2, as follows:
It is not appropriate to use the generic separation distances where the industry involved is very large, utilises non-typical technology, or in some other way the circumstances are not typical.
Guidance Statement No 3 further recommends, at clause 4.4.1, that:
Where the separation distance is less than the generic distance, a scientific study based on site- and industry-specific information must be presented to demonstrate that a lesser distance will not result in unacceptable impacts.
Among submissions on the proposals received by the City from statutory authorities and government agencies, in a letter dated 5 May 2011, the DEC provided the following advice in relation to any prospective variation of the generic separation distances required under Guidance Statement No 3:
In accordance with draft [SPP 4.1], DEC does not believe that an adequate buffer could be accommodated if the Concrete batching plant is established on the subject lot. A proponent or responsible authority wishing to deviate from the advice in the Guidance Statement would be expected to put a well-researched, robust and clear justification arguing the need for that deviation. DEC recommends that the City refuse to grant this development application until the proponent has adequately addressed the above issue.
Mr Slarke, counsel for the respondent, said it was the City's contention that with the current proposal at the edge of the Industrial zone, there were effectively sensitive receptors very close to the site boundary. Immediately north of the site boundary there would be people using the recreation facilities on Joan Rycroft Reserve. Therefore, a facility for a noxious industry should be sited towards the centre of the Industrial zone.
The applicant argued that the technology used in the batching plant is different from that commonly used, and sitespecific studies support a buffer distance less than the generic distance of Guidance Statement No 3.
Mr Rogers, Ransberg's then counsel, in his opening address highlighted examples of metropolitan concrete batching plants operating successfully with separation distances much less than 300 metres. He contended that this industry was highly regulated, requiring both works approval and licensing by the DER under the EP Act, as prescribed premises under Category No 77 of the EP Regulations. Moreover, the industry was also subject to the Concrete Batching Regulations, as well as industry guidelines for the operation of batching plants.
Ransberg had submitted with its development application a table of proposed compliance details under the Concrete Batching Regulations.
Further, acknowledging community concerns about the toxicity of flyash as a concrete ingredient, Mr Lukic said that no flyash would be used at this plant.
Importantly, it was a matter of agreement between the environmental experts, Mr Andrew Mack (engaged by the respondent), and Mr David Ross (engaged by the applicant), that although neither had prior experience of wetmix operations, and relied on the literature for their understanding of such matters, it appeared that the technology for concrete batching plants had progressed since the time when Guidance Statement No 3 was issued. And, overall, the experts shared the view that the proposed plant's design and operating system would enable industry best practice for environmental management to be implemented.
We accept their view notwithstanding that in later evidence given by Mr David Pitt (an expert on dust and engaged by the respondent), it was suggested that, in regard to concrete materials handling facilities situated very close to sensitive premises, 'best practice' now involves the enclosure of such facilities in order to minimise noise and fugitive dust: see also our conclusions on wetmix operations, below.
The Tribunal concluded that because of the use of what is currently 'nontypical' (wetmix) technology and the opportunity for scientific study based on site specific information, the development should not be refused as a matter of course because of non-compliance with the generic buffer distance of Guidance Statement No3.
The course adopted by the Tribunal to obtain necessary information to properly determine whether the proposed development might be allowed in the location proposed is set out in the discussion below.
As was noted above, the critical issue in the review is the amount of dust that would be produced by the concrete batching operation and whether design and management measures could control the environmental impact of the dust.
We turn first, however, to the issue of preexisting dust levels.
Is there a pre-existing dust problem at the proposed site?
In the first round of hearings, the expert planning witnesses, Mr Martin and Mr Rodda, told the Tribunal they both understood that an unrelated building waste concrete-crushing facility on the corner of Jackson Street (immediately to the south of the subject land) operated as a 'prescribed premises' under both an EPA works approval and applicable environmental regulations because of the amount of dust it produced.
Under cross-examination, both experts agreed that this plant was located much closer than the 1,000 metres minimum generic buffer distance from sensitive premises given by Guidance Statement No 3 for building waste concretecrushing facilities. Mr Martin said the plant had operated since about 2004 but remained a problematic operation for the City in terms of compliance with control measures for its fugitive cement dust emissions.
Neither of the two environmental experts, Mr Mack and Mr Ross, knew of any relevant prior studies on the characteristics or quality of the local airshed. Mr Mack said that he had worked on considerations of potential cumulative contributions to dust by neighbouring industries and that he considered that the public submissions on the proposals indicated that there was a perceived and perhaps an actual dust problem in the residential area in question.
In evidence submitted by the City, witness statements from nearby residents included observations about dust, and expressed concerns as regards its impact upon air quality and community health, including the wellbeing of those believed to be most vulnerable to health conditions related to dust. Such concerns were also repeatedly reflected in the large number of submissions arising from the advertising of the proposal. Residents north of Joan Rycroft Reserve reported their suburb and their families as already being adversely impacted upon by visible dust, the source of which was mostly attributed to the industrial area to the south. A related concern was the proximity and recreational use of Joan Rycroft Reserve itself, which included a children's playground.
At this stage of the proceedings, the environmental experts agreed that:
1)the proposal could be regarded as a large concrete batching plant and that there was a risk, or potential for, a new industry to contribute to a cumulative impact on air quality;
2)the local airshed's characteristics were unknown, as were its current air quality, including the quantity and nature of the particulates; and
3)satisfactory air quality baseline monitoring was desirable before operations began, and that no reliance should be placed on effective regulation in the absence of such data.
Mr Mack expressed the concern that without such baseline monitoring, it was not known whether further industrial development would 'nudge' the levels of particulates over acceptable levels.
Mr Ross expressed the view that in such circumstances, any future operational monitoring should not be relied upon if background air quality had not been established. He said that it would be unfair if the burden of air pollution compliance should fall alone upon a new industry with a small potential contribution to what might be a cumulative problem.
While it was clear that improved management of nearby industries and facilities could result in improving future background air quality, under questioning from the Tribunal, the environmental experts conceded that it was also possible that over time, due to other local cumulative impacts, air quality could deteriorate to a point where management would be unable to make improvements by the 'fine-tuning' of the operation.
The Tribunal formed the view that obtaining the relevant 'baseline' data was necessary if the Tribunal was to be sufficiently informed on what additional impact the proposed development would have on any dust problems in the locality: see below on the steps taken by the parties in this regard following the Tribunal's announcement of its 'interim' position as at December 2011.
Dust standards
It was common ground amongst all of the environmental experts that the appropriate standard for airborne particulates, as a healthbased criterion, is the National Environmental Protection (Ambient Air Quality) Measure (or NEPM). NEPM has been adopted by the DER in conjunction with the Department of Health, at least as an interim measure ahead of any legislated standard.
NEPM refers to the invisible fraction of suspended particles with an aerodynamic diameter smaller than 10 micrometres, known as the PM10 level, and stipulates a maximum of 50 micrograms of particles per cubic metre of air (μg/m3), measured continuously and averaged over 24 hours, and an annual overall daily average not to exceed 30μg/m3. The NEPM reporting standard also allows for up to five individual daily averages to exceed 50μg/m3. (The latest version of NEPM may be found in The National Environmental Protection Council's 2010 discussion paper reviewing NEPM.)
Mr Ross noted that cement was a source of respirable dust, to which Mr Mack added that crystalline silica was a listed component of cement and is a known carcinogen.
These two experts did not disagree with Mr Slarke when he put to them that there did not appear to be any mechanism under Pt V of the EP Act that would apply NEPM for particulates as a regulatory standard for air quality.
At the resumed hearing, the Tribunal also drew the parties' attention to the World Health Organisation (WHO) Fact Sheet No 313 (updated September 2011) which restated 2005 Air Quality Guidelines with interim targets for outdoor air pollution, including an annual mean PM10 value of 20 micrograms per cubic metre. WHO also stated, under the heading 'Particulate matter - Guideline values', that:
… As no threshold for PM has been identified below which no damage to health is observed, the recommended value should represent an acceptable and achievable objective to minimize health effects in the context of local constraints, capabilities and public health priorities.
The Tribunal will return to material concerning these dust standards below when dealing with the precautionary principle. There is also discussion of appropriate dust standards in our discussion of the experts' views on background dust monitoring (see below).
The Tribunal's interim position as at December 2011
Shortly after closing addresses on 1 December 2011, the Tribunal briefly deliberated on the state of the written and oral evidence then before the Tribunal. The Presiding Member (Mr McNab) stated the Tribunal's general and provisional position, based upon this material, as follows:
From our consideration of the evidence to date, we have formed the view that if the evidence currently before us [were to be] supplemented in two critical respects … then subject to our consideration of that evidence[,] informed by expert advice, we can see no reason why the [proposal] should not be granted conditional approval …
First [we would need] sufficient technical and environmental information on the wet mix operation, such as, and this is for example, the Barrow Island environmental assessments of the engineering design of the wet mix proposal [there] and any other similar authoritative assessments from elsewhere such as would justify or verify the claims of the applicant as to the superior performance characteristics of this system. …
[S]econd[ly] [we would need] supplementary site specific studies which include[d] the following information: (a) information on baseline air quality; and (b) modelling to show the dispersion characteristics as regards any relevant dust discharges. …
This process is broadly similar to what occurred in another major environmental case in the Tribunal, namely Keysbrook Leucoxene Pty Ltd and Shire of SerpentineJarrahdale [2012] WASAT 212 (Keysbrook Leucoxene) (cf at [7] - [8]).
The proceedings were then adjourned in order for the parties to consider these matters.
Terms of reference for further investigations and their implementation
In a letter to the Tribunal dated 8 December 2011, the solicitors for the applicant summarised what they understood was the Tribunal's provisional position as follows:
We refer to the Tribunal's comments at the conclusion of the hearing in this matter on Thursday, 1 December 2011, namely that, on the evidence received, there was no basis for refusing an approval (i.e. a conditional approval could be granted) provided the evidence was supplemented to the Tribunal's satisfaction in the following two critical areas:
(a)Sufficient technical and environmental information on the wet mix concrete batching operations including those used at Barrow Island and authoritative assessments of the use of similar facilities that justify and support our contentions that wet mix concrete batching is superior in terms of processes and environmental issues (i.e. dust emissions); and
(b)The provision of site specific information or a study showing:
(i)information on baseline air quality; and
(ii)modelling to show the dispersion characteristics of dust.
…
The letter then went on to outline Ransberg's response, the key parts of which were as follows:
The Applicant confirms that it will supplement the evidence as required.
In this regard the Applicant advises as follows:
Technology Review
1.The Applicant will provide additional data, diagrams and photographs of concrete batching technology, with particular focus on the Western Australian context and environmental benefits of the 'wetmix' batching process. In reviewing the environmental benefits of the proposed plant, the plant should be considered in the context of the existing concrete batching plants within Western Australia, rather than a comparison of solely the 'wetmix' and 'drymix' batching processes. The review shall consider the two recently commissioned 'wetmix' plants on Barrow Island. The additional innovations in overall plant design and layout, separate to the mixing process, provide tangible environmental and operational benefits and must also be considered as part of the review.
Dust Assessment
Stage 1 - Dust Dispersion Modelling
2.This stage involves the predictive modelling of emissions from the proposed plant.
3.The Applicant will:
(a)engage independent air quality consultants to assess and quantify the potential emissions for each potential emission source of the proposed plant; and
(b)request historical dust monitoring records from the City for the locality (as described in the evidence of Mr Martin).
4.The independent consultants are to review and analyse available historical dust monitoring records and prepare a report of the findings of their analysis of the data.
5.The independent consultants are to conduct modelling of predicted emissions of the proposed plant and any likely addition to the locality area.
…
15.It is expected that this stage 1 modelling will be completed mid January 2012 and a decision can be made on the requirements of stage 2 monitoring and modelling.
16.The stage 1 modelling will provide a sound indication of the potential for dust impacts on the residences to the north.
Stage 2 - Site Baseline Monitoring and Modelling
17.Stage 2 is on site and pre-construction monitoring and running the stage 1 model again, within a defined period after monitoring.
18.If the predicted modelling under stage 1 shows that no emissions reach the residential area to the north the utility in proceeding with stage 2 modelling is questionable as the proposed plant would not be increasing emissions at the residential area.
19.If however the results show that the proposed plant may influence emissions at the residential area then the level of predicted impact will be used to determine what level of baseline assessment needs to be done.
20.Should an investigation be required it would involve a program of monitoring, analysing the results and then using an interpolation model to predict results for areas that were not physically sampled (i.e. the residences).
…
At subsequent directions hearings on 9 December 2011 and 6 February 2012, it was agreed that this letter, speaking generally, set an agenda for further defining the investigations that would be needed following the Tribunal's expression of its provisional views.
The Tribunal granted a request by then counsel for the applicant, Mr Hardy, for a two month adjournment to enable Ransberg to plan to best effect the required baseline monitoring of air quality.
At a further directions hearing held on 17 July 2012, the Tribunal was informed that the dust experts appointed by each party had reached agreement on how the baseline monitoring was to be undertaken, and that in fact a three month period of monitoring had been accomplished, ending in early July 2012. Work on technology verification and the dispersion modelling was also underway.
On 25 September 2012, then counsel for the respondent, Mr Nicholson, informed the Tribunal that the City, having had time to review the results of the three month dust monitoring in a report supplied by Ransberg, had concluded that because certain monitoring data were missing from the record of monitoring so far, existing concerns over air quality had not been allayed. While the City did not agree with the applicant that data substitution could overcome the monitoring report's alleged deficiencies, the City had no issue with Ransberg proceeding to complete the predictive modelling report.
The parties, sensibly, consented to one of the Tribunal's panel members, Mr Curry, mediating any technical issues between the dust experts while remaining on the hearing panel. (A similar practice was followed in Keysbrook Leucoxene, at [10]).
Following two mediations at a subsequent directions hearing on 5 February 2013 we were informed that Ransberg had extended the baseline monitoring period so as to make data substitution unnecessary, and that five sets of reports and data had been supplied to the City. The matter was again adjourned into mediation after which programming orders were made for the resumed final hearing. This was held in October 2013.
Background dust monitoring
At the resumed final hearing, the Tribunal turned first to the issue of the background dust monitoring.
The Tribunal heard evidence from two expert witnesses on air quality and dust, Mr Gary Graham (engaged on behalf of the applicant), and Mr David Pitt, previously mentioned, engaged by the respondent.
Mr Graham addressed the results of the two baseline air quality monitoring programs which had been conducted at the subject land and which covered the period from 6 April 2012 to 6 April 2013. As is set out above, the purpose of the monitoring was to collect sitespecific data to assist with the quantification of baseline conditions at the site for use in subsequent studies.
The experts agreed that the 12 months of onsite ambient (background) air quality monitoring had been collected at an air quality monitoring station established on the site. Data were collected on background dust conditions in terms of total suspended particles (TSP); PM10 particles (see above) measured via a Tapered Element Oscillating Microbalance (TEOM); monthly dust deposition rates; and local wind conditions from an onsite weather station. It was also agreed by the experts that the monitoring had been properly conducted to meet the required technical standards.
Under questioning from the Tribunal, the experts confirmed that throughout the 12 month monitoring period there had been, with respect to the critical measurement, no PM10 24 hour averages exceeding the 50μg/m3 NEPM standard. This was despite measured daily averages reaching between 40 and 50μg/m3 on nine days over summer, three days in autumn and one day in the spring months. The mean 24 hour average PM10 for the whole year was 23.1μg/m3 which compares with the NEPM standard of 30μg/m3 for a whole year.
The monitoring results for summer measurements (December to February) also demonstrated that winds at the site were either from the southeast or south south-east during the majority of the hours when background PM10 levels rose above the level of 25μg/m3. Accordingly, at times of relatively poor air quality, any fugitive dust from the subject land would be likely to be carried towards the sensitive residential premises.
In his witness statement, Mr Pitt observed that the background PM10 concentrations measured at the site were approximately 43% higher than those measured over the same period at the DER's Caversham monitoring site, northeast of Perth and the site. The highest daily levels of particulates in Caversham were generally associated with smoke received from fires or burning off elsewhere in the southwest region. The experts agreed that this site would be the nearest site for comparison of airborne particulates. Mr Pitt also stated that the long term record from Caversham showed significant betweenyear variations in ambient air quality, which meant that any one year's background monitoring results had a limited capacity to predict another year's results.
Dust dispersion modelling
The second air quality issue is in relation to the modelling of dust dispersion from the site of the proposed plant. As this issue is particularly critical as to whether or not the proposal ought to be approved, it is necessary to closely examine the detail of the modelling and its underlying assumptions.
Mr Graham explained to the Tribunal that likely dust emissions from the proposed plant had formed the basis of an Air Quality Impact Assessment (AQIA). This study used the AUSPLUME method of atmospheric dispersion modelling, applying a range of input data required to predict fugitive emissions and the anticipated air quality impacts of the proposed batching plant's operation.
The experts agreed that it was very difficult to predict actual operational emissions. During the past year, the two experts had jointly designed sensitivity tests on possible sources of dust with the aim of reducing these uncertainties. In addition to meteorological data, input data for the modelling included the identification and description of emission sources from the operation, applicable emissions controls, details of local topography, and the location of the five closest sensitive receptors among the residences to the north and northeast.
Six main emission sources were identified in the study:
1)trucks dumping aggregates and sand;
2)FEL operations in relation to aggregates and sand;
3)miscellaneous transfer points (including the pneumatic conveyor);
4)mixer loading;
5)road haulage; and
6)aggregates and sand storage piles in the bins.
Modelling 'scenario 1' was designed to represent a maximum daily production rate of 500m3, while 'scenario 2' represented a typical daily production rate of 135m3.
In Mr Pitt's view, the higher figure for scenario 1 would be closer to 400m3 per day as the claimed annual capacity of the plant was 120,000m3. This was the figure likely to be assessed by the DER for licensing purposes.
The experts agreed that the USA's Environmental Protection Agency's Handbook AP42 specified updated emissions factors for concrete batching plants. These were the factors that were used and documented in the AQIA and better reflected more recent technological advances in the industry. These emissions factors were less conservative than the older comparable emissions factors taken from the Australian National Pollution Inventory (NPI) emissions factor handbook for estimating emissions from concrete batching plants.
The experts also agreed that an Environmental Management System that incorporated an Environmental Management Plan (EMP) and an ambient dust monitoring system would provide an ongoing mechanism to minimise the potential for adverse dust impacts.
The experts noted that the applicant's submitted dust management plan assumes a continuously high standard of 'housekeeping' for the yard area on the site and relied heavily upon water sprays and washdown control of site dust. An overall dust control factor of 50% was assumed for modelling of emission factor controls to be achieved by watering. Mr Graham stated that some emissions sources had no water control factor applied, such as that from the FEL operation, other than the periodic wash-down of spillages.
It was uncontested that the average dust deposition rate for the project site was measured at 2.7 grams per square metre per month during the March to July period. This figure was used for modelling purposes. Importantly, the additional (incremental) dust deposition predicted by the model to result from the project was below 0.1 grams per square metre per month.
The experts further agreed that the AQIA demonstrates that the anticipated ground level impacts at the closest residential receptor locations would comply with the relevant assessment criteria for PM10, for both scenarios of concrete production referred to above. For scenario 1, for the higher throughput, two days of exceedances of the PM10 24 hour NEPM standard of 50 micrograms are predicted at one of the receptors, with one exceedance predicted at three of the other receptors. Under scenario 2, two exceedances are still predicted for one receptor, but (only by very narrow margins) none at the other four.
However, the experts' joint statement cautioned that:
1.1… as with all modelling studies, there are inevitably a wide range of uncertainties that may result in model under- or overprediction, and demonstration of compliance through dispersion modelling does not necessarily indicate that the ambient air quality criteria will be achieved in reality if the plant was operational.
Importantly, Mr Graham was of the view that in any future operational context, actual compliance with the NEPM criteria for PM10 at the sensitive premises would need to be monitored. Both experts agreed that there were interstate precedents for planning approval conditions that would control the incremental contribution a facility made to 24 hour average PM10 levels at sensitive receptors.
They further agreed that the modelling study and subsequent AQIA conducted for this proposal predicted the worst case scenario for dust dispersion from any plant emissions to that received at the nearest residential housing. The numerical relationship between the worst case scenario for particulates travelling downwind to the sensitive receptors compared with onsite air quality, impacted by operational emission sources at the plant, had been established by the modelling. That numerical relationship could be used as a quantitative basis for setting allowable limits to operational emissions and their impact on PM10 levels.
In practical terms, implementing such limits could be facilitated by ongoing monitoring involving retention of the established TEOM (PM10) monitor located near the site's northern boundary, and installing a nearby second TEOM off the site, in accordance with measurement standards.
Mr Pitt's view was that any such demonstration of compliance could not be achieved in less than approximately three years of operations, by which time the facility might reasonably be expected to have reached maximum throughput, with the associated dust emissions and impacts becoming established.
The design and technology of wet-mix concrete plants
The related issue raised by the Tribunal and addressed by the applicant related to the need to demonstrate 'authoritative assessments from elsewhere such as would justify or verify the claims of the applicant as to the superior performance characteristics of [the wet-mix] system' in relation to dust control.
For Ransberg, its counsel, Mr Hardy, submitted, as an overarching consideration, that it was possible to distinguish between what was 'best practice' and what was 'best' in relation to the design of such a plant. While it was theoretically possible to design and construct a completely enclosed concrete batching plant with virtual exclusion of dust emissions, this was not an economic proposition for this site in its planning and commercial context, and for which continuous night-time production was not contemplated.
Uncontested documentary evidence provided by Mr Lukic (for the applicant) indicated that the DEC had conducted an Environmental Assessment Report in 2010 (Assessment Report) on a proposal for the construction of a wet-mix concrete batching plant at Lot 201 Miguel Road, Bibra Lake. The Assessment Report cited a premises throughput capacity of concrete production of 135,000 tonnes per year. The Assessment Report's 'Location of Premises' noted that:
Lot 201 Miguel Road, Bibra Lake is surrounded by industrial and commercial land uses on neighbouring properties. The closest residential area to the proposed premises is the suburb of Yangebup, located approximately 300 m south east from the proposed premises at its closest residential point …
The DEC's 'Proposal Description' records that:
The concrete batching plant works using fresh, wet cement in its process … aggregate materials are fed into the hopper bins using a front end loader. A conveyor system then feeds the aggregates into the electric powered batching plant, where they are mixed with water for transfer into waiting concrete trucks. Mixing is undertaken through a fully automated process, and plant mixes for different concrete blends are controlled through the inputs into the system by the Plant Manager at the computer console …
In DEC's documented risk assessment, in acknowledging that there was the potential for dust emissions during construction and then operation of the plant, it was said that these emissions will be managed under the Concrete Batching Regulations.
Mr Lukic told the Tribunal that this facility was now undergoing commissioning, and that there was another wet-mix plant operating on Barrow Island.
In the above 'interim' position (as of December 2011), the Tribunal indicated that it would need to be satisfied that there was independently assessed evidence (or equivalent) that the proposal's new technology and operating system was not likely to generate a problematic level of fugitive dust, under sustained yearin/yearout maximum levels of production throughput. Both normal operating conditions (and those involving contingencies for example, any component failures say, as regards dust filters, or accidents) would be relevant to establishing such justification. A suitable line of evidence might arise from one year or more of dust monitoring in relation to the performance assessment of a plant similar to that presently contemplated.
The applicant was unable to offer any such evidence; but, on the other hand, nor was there evidence refuting the applicant's claims. The Tribunal accepts the broad evidence of technological improvements inherent in the design of the technology but, in the absence of any quantified independent record, the Tribunal must regard the environmental performance of wetmix technology in limiting dust emissions as being, at this stage, unconfirmed.
It is indeed curious, given the applicant's sustained efforts at base line monitoring and general engagement on the environmental aspects of the proposal, that such data could not be located. Nevertheless, for the reasons given below, such defects have not been in the end fatal to the applicant's case.
Should the precautionary principle be invoked to justify refusal?
In relation to dust issues and their possible impacts upon health and amenity, in Wattleup Road Development Company Pty Ltd and Western Australian Planning Commission [2011] WASAT 160 (Wattleup Road) the Tribunal had applied the 'precautionary principle' to refuse certain development. See Wattleup Road, at [46] [71]. Mr Slarke, for the respondent, submitted that the application of this principle would justify refusal of the proposal.
This principle arises, in part, from the objectives of the PD Act and State Planning Policy No 1 State Planning Framework Policy (SPP 1). At clause 3 of SPP 1 it is stated that:
The protection of environmental assets and the wise use and management of resources are essential to encourage more ecologically sustainable land use and development. Planning should contribute to a more sustainable future by:
…
iv.adopting a risk-management approach which aims to avoid or minimise environmental degradation and hazards;
…
In Wattleup Road, at [65], the Tribunal cited with approval Telstra Corporation Ltd v Hornsby Shire Council [2006] NSWLEC 133; (2006) 146 LGERA 10 (Telstra). In Telstra, Preston CJ said, at [128]:
The application of the precautionary principle and the concomitant need to take precautionary measures is triggered by the satisfaction of two conditions precedent or thresholds: a threat of serious or irreversible environmental damage and scientific uncertainty as to the environmental damage. These conditions or thresholds are cumulative. Once both of these conditions or thresholds are satisfied, a precautionary measure may be taken to avert the anticipated threat of environmental damage, but it should be proportionate: N de Sadeleer, Environmental Principles: From Political Slogans to Legal Rules, Oxford University Press, 2005 at 155.
In Environmental and Planning Law in New South Wales (Federation Press: 3rd ed, 2012) the learned authors say of this decision, at 26:
This is an important judgment, as it not only analyses the precautionary principle and identifies the process for its application, but also emphasises that the principle operates to shift the evidentiary burden of proof. Consequently, once a threat of serious or irreversible harm has been established, the precautionary principle operates to create the assumption that the threat is certain, requiring action on the part of the decisionmaker.
The Tribunal accepted the following expert evidence in Wattleup Road, at [51]:
Health professionals and scientists are most concerned with particles small enough to be inhaled by humans. Particles larger than PM10 … are usually caught in the nose and throat and expelled[,] while PM10 and smaller particles may lodge throughout the lungs. … [P]articles 2.5 microns and less in diameter have a greater capacity to penetrate the alveoli [gas exchange cells] of the lungs and travel across the cellular membrane.
The health effects that result from exposure to high levels of dust generally tend to be specific to the cardio-pulmonary system … [a]nyone can be affected by high levels of dust but the risk is greatest for individuals with clinical respiratory and cardiovascular disease, the elderly, babies and young children.
Substantial evidence exists demonstrating the link between exposure to PM and increased risk of cardiac and respiratory disorders …
Current research has not been able to determine a concentration level below which PM does not affect cardiopulmonary health … it is not possible to define a scientific valid 'safe' level at which the majority of the population will be spared adverse health effects.
The Tribunal's view in Wattleup Road, at [68] and [71], was that:
There is a threat of serious or irreversible environmental damage for residents of the proposed subdivision in relation to dust from the [Residue Drying/Disposal/Storage Area] and the sand quarry to the south and southeast of the site. Furthermore, there is scientific uncertainty as to the environmental damage. Conditions precedent to the satisfaction of the precautionary principle are therefore established. Consequently, a precautionary measure may be taken to avert the anticipated threat of environmental damage, provided that it is proportionate to the threat, appropriate and cost-effective. Adequate air quality monitoring requires prior consultation with the DEC, monitoring for a period of at least 12 months and assessment and reporting in relation to relevant standards for PM10 and TSP and chemical composition of dust.
…
Balancing the planning considerations, the Tribunal considers that, in the circumstances of this case, the precautionary principle warrants refusal of the proposed subdivision, unless and until adequate air quality monitoring is undertaken and reviewed in relation to the site demonstrating that the proposed subdivision would be acceptable in relation to the health and amenity impacts of dust.
Mr Slarke argued that for similar reasons, refusal of the proposal was the correct and preferable decision in this review.
In terms of 'serious environmental damage', Mr Hardy did acknowledge how little 'headroom' there was in terms of meeting NEPM health standards for particulates and that exceedances could result in his client not being able to continue operations. Operational responsiveness is a matter to which the Tribunal will return below. In any case, Mr Hardy argued that by reason of:
•the baseline monitoring which had been undertaken;
•the nature of the plant;
•the manner in which draft conditions were formulated; and
•the way in which it was anticipated that the EMP could be developed and implemented under the operator's Environmental Management System,
there would be no 'irreversible environmental damage'.
We accept that it is appropriate to apply the precautionary principle here. However, we think that the concessions given by Ransberg in the light of the experts' evidence and the measures proposed will mean that refusal is not warranted.
In particular, the Tribunal is satisfied that a full and proper 12 months of background monitoring of PM10 and TSP has been carried out at the site, and that the likely dispersion emissions from the proposed facility have been properly modelled. Hence, the scientific uncertainties are fewer than in Wattleup Road and the combined effect of this with the capacity for onsite control of emissions (including shut downs) significantly lowers the potential risk to public health arising out of the operation of a wet-mix plant.
We turn to discuss what further measures ought to apply to the proposed development in the light of the potential risk to public health. These matters must go into the mix of conditions.
Further measures
The results of a year's monitoring for background particulates demonstrate compliance with the NEPM. Modelling the emissions on the proposed operations of the plant indicates that particulates can be managed to meet the NEPM, although only marginally so, and a small number of exceedances of the NEPM for daily average PM10 levels are predicted to occur at the nearest residences.
Uncertainties remain, however, regarding both background PM10 (such as from inter-annual weather differences) and PM10 levels at sensitive premises due to error factors in the modelling.
Mr Hardy also submitted that it was possible that future external events in background air quality, such as a series of large bushfires or changes in rainfall, could mean air quality standards and the outcomes for particulates, which were properly but imperfectly modelled for the proposal, are not necessarily achieved over any one year. Such circumstances, which would be entirely beyond the control of the applicant should be, he submitted, properly contemplated and pragmatically acted upon.
There may also be ongoing regulatory problems with regard to dust emissions from nearby facilities, already the subject of many community complaints and concerns. There appears to be no wider prospect of regulatory control for cumulative PM10 levels at dust-generating sites. The NEPM is a public health standard, not a regulatory criterion for licensing purposes.
The Tribunal has therefore not been given any satisfactory assurance that ambient air quality in the locality will necessarily improve over time rather than deteriorate further.
The Tribunal accepts the City's contention that it is possible that air quality, measured by PM10 levels at the sensitive premises, may not comply with the NEPM with the plant at full production throughput. Even so, importantly, the experts' evidence suggests that any 'threat of serious or irreversible environmental damage' from Ransberg's proposals could be avoided by proper management of the operation.
Any failure to control emissions is very likely to impact upon PM10 levels at sensitive receptors downwind. The Tribunal accepts Ransberg's concession to the effect that the applicant must, and would, carry all the operational risks. To this end, the risk of unacceptable emissions would be further reduced if the plant's operations were subject to conditions that set maximum acceptable onsite dust levels and stipulated when operations would be suspended or shut down. This would occur when continuous monitoring of ongoing emissions and ambient air quality triggered threshold mechanisms.
On the related issue of the wet-mix design of the plant, the Ransberg proposal is, as we have seen, for a concrete batching plant with many advanced features of modern wet-mix technology and operational improvements for dust control, albeit in an unenclosed facility. In assessing the benefits arising from wet-mix technology, as has already been indicated, an important underlying area of risk and uncertainty arises from the failure of the applicant to provide the Tribunal with satisfactory evidence, either from Australia or from overseas, of the alleged improvements in dust emission associated with wet-mix batching plants.
The Tribunal takes the view that the Assessment Report for a similar wet-mix plant at Bibra Lake, conducted by then DEC for the purposes of licensing under Pt V of the EP Act (see above), indicates that, at least for some regulatory purposes, the design and technology has been evaluated and has been found to be acceptable in relation to a new concrete batching plant to be constructed to operate at a metropolitan location.
The applicant had initially proposed that, if approval were to be given, the period of operational monitoring needed to characterise and validate the plant's operation would be one year of data. The respondent's dust expert, Mr Pitt, had argued that more than one year would be needed, because it was desirable to give the plant's operators the opportunity to finetune their procedures and then to gauge emissions over at least one year under full production throughput. This would probably necessitate three years' monitoring. Arguably, even a limited application of the precautionary approach would justify a continuing collection of emissions performance data.
The Tribunal prefers Mr Pitt's suggested approach because of the importance of having accurate data in a relatively marginal situation for air quality, such as this, where cumulative dust impact is critical. In other words, there remains a basis for the continuing and indefinite risk that total particulates at sensitive residences may exceed the NEPM, and that continuing monitoring would be required as the evidentiary trigger for an appropriate response or shutdown. A sensible approach requires a condition to be imposed upon the applicant to resource the ongoing independent monitoring of dust emissions and predicting air quality at the key receptors. This should be continued indefinitely or until the City is satisfied that the operating experience of cumulative air quality has shown that the risk of exceeding the NEPM standard for annual particulates has abated.
Moreover, the Tribunal agrees with the City, in that the trigger criteria and the component elements of a system capable of responding to problem air quality must be certain at the outset. For example, it must be clear how the key information about the likely circumstances of dust particulates' exceedance, such as on a day of high background concentration, would be conveyed to site management and acted upon. Similarly, it must be clear as to how dust monitoring would connect with site operations. A mechanism capable of prompt and reliable triggering of alerts and shutdown actions, for specific operations or for wholeofplant, must be outlined. That mechanism, and its resourcing, must be conditioned for approval to be granted and should not, in the Tribunal's view, be left entirely to the future detail of an EMP.
Finally, we address the issue of the fairness of an implied cost burden falling on the applicant as the 'last one in' where a potentially significant, if minor, dust source among other industries leads to a cumulative pollution impact. The Tribunal is of the view that this risk or cost should be carried by the applicant as an incident of the proposed land use. Ransberg would be, in effect, using the last possible part of the particulates pollution 'budget' for the locality.
Conclusions on the main issues
DR 243 of 2011 Retaining walls at the northern end of the site
In summary, the Tribunal has concluded that the stepped retaining wall now proposed at the northern end of the site and at the retaining walls along sections of the respective side boundaries would not have an unacceptable adverse visual impact on the residential area to the north. The rear boundary wall as now proposed would be of less bulk, would be generally consistent with the wall on the adjacent property, and would be softened by the proposed landscaping. The Tribunal has determined that the now proposed rear retaining walls should be approved.
DR 242 of 2011 Concrete batching plant
This review required the Tribunal to determine whether exercising the discretion available under TPS 24 and allowing the proposed noxious industry would be consistent with orderly and proper planning, having regard to all the circumstances, particularly the proximity to the site of an established residential area; that is, in determining the merits of the proposal, the Tribunal was required to give proper consideration to sound town planning principles, any relevant town planning scheme provisions and any relevant policies.
TPS 24 requires that particular consideration be given to the preservation of the amenity of the locality.
The Tribunal examined the elements of the proposed development that the parties agreed would directly impact on the local amenity. The Tribunal found that noise would be appropriately controlled by the applicant's proposed design modifications and control of operating hours. The Tribunal further found that the proposed modified height of the development would not negatively affect the visual amenity of the surrounding area and therefore could be supported, as provided for under TPS 24. This was because the bulk of the silos were to be reduced to the allowed height of 12 metres, and the limited extension above this height would have limited impact at a distance of over 300 metres from the residences and relative to the bulk of the existing industrial structures on neighbouring lots.
Critical to determining whether there would be an amenity impact that would be fatal to the proposed development was the issue of potential dust generated by the operations of the plant and whether there would be sufficient buffer distance between the plant and the neighbouring residential area. Under SPP 4.1, a buffer distance is required between the proposed development and the neighbouring residential area. The related Guidance Statement No 3 stipulated a generic buffer distance of 300 metres, but also provided that this distance could be varied in circumstances of nontypical processing techniques and scientific study based on site and industryspecific information.
Determining whether the buffer distance separating the proposed development and the residential area could be, in effect, reduced involved the balancing of the following considerations:
1)The proposal involves a relatively new wetmix technology which has elsewhere in the Perth metropolitan region been assessed and approved under the EP Act to operate close to sensitive premises. However, in the absence of independent verification of long-term dust emissions from concrete batching plants using this technology, to be confident that actual emissions from such a plant at this site are acceptable when under full production on a year-in, year-out basis, the Tribunal would require an extended operational record of monitored emissions.
2)Jointly designed dust monitoring showed that a year's background monitoring for particulates demonstrates compliance with NEPM. Modelling of emissions from the proposed development indicated that particulates could be managed to meet the NEPM, but a small number of exceedances of the NEPM for daily average PM10 levels are likely to occur at the nearest residences. While acknowledging the predicted modelled exceedences and error factors in the modelling, the Tribunal accepted the experts' evidence that 'any threat of serious or irreversible environmental damage' from Ransberg's proposals could be avoided by proper management of the operation.
3)It was established that on days with high background levels of particulates, any significant dust emissions from the site could cause exceedances of the NEPM standard for PM10 particulates at the closest sensitive premises.
4)The Tribunal concluded that because of: the reduced uncertainty resulting from sitespecific studies conducted over a year; the predictive modelling; and the capacity for onsite air quality management, a refusal based on any alleged lack of certainty was not warranted.
5)The Tribunal accepted Ransberg's concession to the effect that it would carry the operational risk of operations being shut down or suspended when continuous monitoring revealed dust particulate concentrations triggering such action. This is a proper and reasonable concession.
6)Planning conditions are warranted to mandate the operational response mechanisms which would be capable of minimising site emissions at levels liable to compromise the achievement of daily NEPM PM10 levels at nearest sensitive premises. Corresponding conditions are also required for continuous, as well as retrospective monitoring and reporting of background PM10 and site emissions, in realtime, to inform both site operations and the community of particle levels predicted at the nearest sensitive premises, until such time that the background air quality has improved or that the City is satisfied that the dust emissions performance record justifies cessation of monitoring.
The Tribunal has therefore concluded that, with conditions requiring appropriate management practices, the modified concrete batching plant now proposed warrants approval. In short, the development would be consistent with orderly and proper planning because, subject to conditions, it would be sufficiently separated from the residential area as required by SPP 4.1, and would be consistent with the planning objectives of TPS 24.
Draft conditions
The parties undertook to complete agreed draft conditions for both matters. This document was received by the Tribunal in December 2013 and, for the record, those agreed conditions are reproduced below.
The Tribunal will require the parties to negotiate in good faith to bring into the Tribunal, as soon as is practicable, a set of consolidated amended conditions (including amended plans), being conditions not inconsistent with these reasons. With the parties' consent, Mr Curry will be available to assist with this task.
DRAFT CONDITIONS AGREED BY THE PARTIES
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DR 242 of 2011
1.The development/use subject of this approval must be SUBSTANTIALLY COMMENCED within a period of two (2) years of the date of this approval notice. If the development is not substantially commenced within this period, this approval shall lapse and be of no further effect. Where an approval has lapsed, no development/use shall be carried out without the further approval of the City having first been sought and obtained.
2.The development shall be carried out only in accordance with the terms of the application as approved herein, and any approved plan, including any plan approved as a component of the Environmental Management Plan required by condition (7).
3.On completion of construction, all excess articles, equipment, rubbish and materials being removed from the site and the site left in an orderly and tidy condition.
4.All stormwater and drainage runoff produced onsite is to be disposed of onsite via the use of soakwells, approved by the Director of Technical Services. The soakwells must deal with the entire land area and be designed to contain a 24hr storm duration and 100-year ARI.
5.Unless otherwise approved by the City of Bayswater, the vegetated area at the rear of the lot, depicted as 'Landscaping and Grassed Area' on the revised concept plan, is not to be used for the storage of materials or vehicles.
6.Activities associated with the use of Lot 2 (Nos. 277-279) Collier Road, Bayswater (Land) shall not cause the concentration of particulate matter as PM10 at the location referred to in Condition 7(i), first dot point, to exceed:
(a)12.4µg/m3 as a 24-hour average on any day when the ambient concentration (inclusive of the contribution from emissions from the Land) exceeds 50µg/m3 of particulate matter as PM10 as a 24-hour average; or
(b)500µg/m3 as a 15-minute average.
7.Documentation for a proposed Environmental Management System (EMS) compliant with AS/NZS ISO 14001:1996 shall be submitted to the City for approval prior to the issue of a building permit. The EMS shall incorporate an Environmental Management Plan (EMP). The EMP shall address the following issues to the satisfaction of the City:
(i)Dust and Particulate Management, including:
• The use of a TEOM (PM10) monitor to be located at the previous monitoring location close to the boundary, as the primary monitoring method;
• The use of a Beta Gauge (PM10) monitor at a second location sited in accordance with AS/NZS 3580.1.1 (as far as practical), to allow the incremental PM10 concentrations to be determined;
• The TEOM monitor to be operated in accordance with AS/NZS 3580.9.8;
• The Beta Gauge monitor is to be operated in accordance [with] AS/NZS 3580.9.11;
• The Applicant is to formalise the approach for determining incremental PM10 concentrations in a procedure prior to implementation;
• The TEOM and Beta Gauge monitors are to be maintained by an organisation accredited by the National Association of Testing Authorities (NATA) in respect to the operation of those monitors;
• The use of an anemometer with a 10 metre pole, unless a lower pole is approved by the City;
• PM10 concentrations from the TEOM and Beta Gauge monitors, and wind speed and wind direction from the anemometer, shall be averaged over a time period of not more than 15-minutes and electronically recorded;
• Summaries of the results of monitoring including each 24-hour average PM10 concentration are to be provided quarterly to the City by no more than 30 days after each quarter. The quarterly summary must identify and highlight the date and time on which the monitoring showed the PM10 concentration exceeded:
(a)50µg/m3 as a 24-hour average; and
(b)500µg/m3 as a 15-minute average; and
• An annual report prepared by the body carrying out the dust monitoring, which reviews whether the dust received at the nearest sensitive premises has been compliant with the NEPM PM10 standard, the extent to which the development contributed to any exceedences of 24-hour average PM10 concentrations greater than 50µg/m3, and whether the development has complied with the requirements of Condition 6.
The annual report referred to above, shall be submitted by no more than 30 days after each calendar year to which the data relates.
The requirement for continued dust monitoring may be reviewed by the City at the request of the Applicant following the provision of an EMS audit required by condition (9).
(ii)Noise management, including the use of appropriate acoustic barriers and low noise front end loaders;
(iii)Surface water management;
(iv)Landscaping;
(v)Visual amenity;
(vi)Waste management;
(vii)Light overspill;
(viii)Traffic management;
(ix)Storage of hazardous and/or dangerous goods;
(x)Complaints management;
(xi)Contingency measures to be adopted in the event of potential or actual unacceptable emissions from the site; and
(xii)Checklists and personnel responsibilities for actions assigned by the EMP.
8.The Environmental Management System (EMS) and Environmental Management Plan (EMP) approved by the City of Bayswater shall be implemented, and the development must at all times comply with the approved EMS and EMP.
9.The Environmental Management System must be audited by an independent appropriate body at least every three (3) years from the anniversary of this approval, and the results of the audit must be provided to the City of Bayswater.
10.Any portion of the site to be used for movement or parking of vehicles and/or onsite storage of empty bins, must be sealed and drained to the satisfaction of the City of Bayswater.
11.Uncovered parking bays shall be a minimum of 5.5m x 2.5m.
12.Truck parking bays are to conform to the relevant Australian Standards.
13.A bin area is to be provided of not less than 10m2 and with a permanent water supply and drainage facility for wash-down. The bin area is to be screened by a gate and brick walls or other suitable material to a height of not less than 1.8m.
14.Bins are to be washed only in the wash-down facility within the bin area, drained to a silt trap and disposal of via the Water Corporation sewer system or if this is not available, a leach drain soakwell system which is separate to the stormwater disposal system, or approved system, to the satisfaction of the City of Bayswater.
15.One (1) driveway shall be permitted onto Collier Road. The driveway shall be constructed to the City of Bayswater standards for commercial driveways.
16.Redundant driveways shall be removed and the verge and its vegetation made good at the applicant[']s cost, prior to the commencement of concrete batching operations.
17.No earthworks shall encroach onto the Collier Road road reserve.
18.No stormwater drainage shall be discharged off-site.
19.The applicant shall make good any damage to the existing verge vegetation within the Collier Road reservation, prior to the commencement of concrete batching operations.
20.No storage of materials outside the approved buildings is permitted.
21.A copy of an approval issued by the Department of Environment and Conservation - Licensing Section for the operation of the facility shall be submitted to the City prior to operations commencing.
22.A truck wash-down area is to be provided in accordance with the requirements of the Environmental Protection (Concrete Batching and Cement Product Manufacturing) Regulations 1998 and in a location approved by the City of Bayswater. Trucks may only be washed down in the approved wash down area.
23.Operating hours are to be restricted to 6:00am to 6:00pm Monday to Saturday (public holidays excluded), however no front end loader may operate prior to 7:00am.
24.The cement storage silos are to be reduced to a maximum of 12.5m in height. Amended plans showing the reduced height of the silos must be submitted with the application for a building permit.
25.The owner, or the applicant on behalf of the owner, shall comply with the City of Bayswater policy relating to Percent for Public Art, and provide an Art Project for a minimum value of one per cent ($15,000) of the estimated total cost of the development ($1,500,000). Prior to the lodgement of a building permit application, the owner/applicant shall submit details to the City, including plans of the artwork, its cost and construction, and other matters relating to the artwork's on-going maintenance and acknowledgements in accordance with the City's Percent for Public Art Policy. Upon the City receiving this information, the Art Project shall be presented to Council for its consideration and determination. The approved public art shall be installed prior to the submission of an Occupancy Permit for the subject development, and thereafter maintained at the cost of the owner/applicant.
DR 243 of 2011
1.The development/use subject of this approval must be SUBSTANTIALLY COMMENCED within a period of two (2) years of the date of this approval notice. If the development is not substantially commenced within this period, this approval shall lapse and be of no further effect. Where an approval has lapsed, no development/use shall be carried out without the further approval of the City having first been sought and obtained.
2.Retaining walls exceeding 500mm in height (above natural ground level) are to be designed by a certified practising engineer, to the satisfaction of the City of Bayswater.
3.Revised plans depicting a stepped retaining wall on the rear (northern) boundary of Lot 2 and associated landscaping shall be submitted to and approved by the City of Bayswater prior to the issue of a building permit. The plan for the proposed landscaping shall identify the proposed species, planting rate and location of vegetation, with a view to achieving dense screening vegetation to a minimum height of 3m, but including 5m specimens.
4.On completion of construction, all excess articles, equipment, rubbish and materials being removed form the site and the site left in an orderly and tidy condition.
Orders
For the foregoing reasons the orders of the Tribunal are:
1.The applications for review are allowed in accordance with these orders.
2.The decisions under review are set aside and in lieu thereof will be a decision giving planning approval for the proposed developments (as amended), to operate from today, upon draft amended conditions to be negotiated in good faith and approved by the Tribunal, and otherwise not inconsistent with these reasons.
3.The parties are to bring in a new consolidated draft of the conditions, to be attached to the approvals, within 28 days.
4.The matters are to be listed for directions, if needed, on 21 March 2014.
5.The parties have liberty to apply.
I certify that this and the preceding [174] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P McNAB, SENIOR MEMBER
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