ROBERTSON and CITY OF ALBANY
[2019] WASAT 3
•10 JANUARY 2019
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: ROBERTSON and CITY OF ALBANY [2019] WASAT 3
MEMBER: DEPUTY PRESIDENT, JUDGE PARRY
MS M CONNOR (MEMBER)
HEARD: 14-16 AUGUST, 4 SEPTEMBER (VIEW) AND 12-14 SEPTEMBER 2018 - FURTHER DOCUMENTS AND SUBMISSIONS FILED ON 1, 2, 15, 16 AND 18 OCTOBER 2018
DELIVERED : 10 JANUARY 2019
FILE NO/S: DR 354 of 2017
BETWEEN: GRAEME ROBERTSON
Applicant
AND
CITY OF ALBANY
Respondent
Catchwords:
Town planning - Development application - Extractive industry - Limestone quarry - Nullaki Peninsula - Proximate to Bibbulmun Track and Nullaki campsite - Nullaki Peninsula Conservation Zone - Whether proposed development is capable of approval under City of Albany Local Planning Scheme No. 1 - Whether proposed development is consistent with orderly and proper planning Sustainable development Principles of sustainable development Whether proposed development would have unacceptable impact on amenity and character of locality as Conservation Zone - Whether proposed development would have unacceptable impact on natural environment - Whether traffic generation would exceed capacity of road system or have adverse impact on traffic flow and safety - Whether proposed variation of development standards and requirements would have adverse impact upon inhabitants of locality - Whether Bushfire Management Plan adequately addresses bushfire risk - Words & phrases: 'non defined activities'
Legislation:
City of Albany Local Planning Scheme No. 1, cl 1.4.2, cl 1.6(c), cl 1.7, cl 1.7.1, cl 1.7.1(b)(i), cl 5.2, cl 5.2.3(b), cl 5.5.14, cl 10.2, Sch 12 (CZ1), cl 2.1, cl 3, cl 3.1, cl 3.2, cl 3.3, cl 3.4, cl 4, cl 4.2.18, cl 4, cl 4.3, cl 4.5, cl 4.6(i), cl 4.6(v), cl 4.7(i)
City of Albany Town Planning Scheme No. 3
Environmental Protection (Noise) Regulations 1997 (WA)
Environmental Protection Act 1986 (WA), s 38
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2 (deemed provisions), cl 2, cl 67, cl 67(b)
Planning and Development Act 2005 (WA), s 3(1)(c), s 87(1), s 87(2), s 252(1)
State Administrative Tribunal Act 2004 (WA), s 3, s 27(2), s 35(1), s 61(2), s 61(4)(g), s 62(3)
Result:
Conditional development approval granted
Summary of Tribunal's decision:
Mr Graeme Robertson sought review by the Tribunal of the refusal by the City of Albany of a development application for an extractive industry, in particular limestone extraction, on a property situated on the Nullaki Peninsula. The site is zoned 'Conservation' and forms part of the 'Nullaki Peninsula Conservation zone' under the local planning scheme. The site is also proximate to the Bibbulmun Track and the Nullaki campsite.
The Tribunal determined that the proposed development is capable of development approval under the local planning scheme. The Tribunal also determined that the proposed development merits conditional development approval. The Tribunal found that the proposed development is consistent with orderly and proper planning, because it is broadly consistent with the objectives and provisions of the local planning scheme in relation to the zoning of the site, only limited weight should be given to a draft amendment to the local planning scheme which (if gazetted) would prohibit the proposed development in the circumstances of this case and the proposed development is consistent with the objective of the Planning and Development Act 2005 (WA) to 'promote the sustainable use and development of land in the State' and a corresponding aim of the scheme. The Tribunal also found that the impacts of the proposed development on the amenity and character of the locality, including on the recreational amenity of the Bibbulmun Track and Nullaki campsite, and on the natural environment, are acceptable.
The Tribunal concluded that the correct and preferable decision is to grant development approval for the proposed development subject to 45 conditions.
Category: B
Representation:
Counsel:
| Applicant | : | Mr K de Kerloy and Mr P Keeves |
| Respondent | : | Mr DF Nicholson |
Solicitors:
| Applicant | : | Herbert Smith Freehills |
| Respondent | : | McLeods |
Case(s) referred to in decision(s):
APP Corporation Pty Ltd and City of Perth [2008] WASAT 291
City of Kwinana v Lamont [2014] WASCA 112
Hanson Construction Materials Pty Ltd and Town of Vincent [2008] WASAT 71
Marshall v Metropolitan Redevelopment Authority [2015] WASC 226
Moore River Company Pty Ltd and Western Australian Planning Commission [2007] WASAT 98
Mount Lawley Pty Ltd and Western Australian Planning Commission [2007] WASAT 59
Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117
Paintessa Developments Pty Ltd and Town of East Fremantle [2014] WASAT 81; (2014) 85 SR (WA) 312
Puma Energy Australia and City of Cockburn [2016] WASAT 36; (2016) 89 SR (WA) 1
R v PLV [2001] NSWCCA 282; (2001) 51 NSWLR 736
Robertson and City of Albany [2018] WASAT 138
Telstra Corporation Limited v Hornsby Shire Council [2006] NSWLEC 133; (2006) 146 LGERA 10; (2006) 67 NSWLR 256
Terra Spei Pty Ltd and Shire of Kalamunda [2015] WASAT 134
WA Developments Pty Ltd and Western Australian Planning Commission [2008] WASAT 260
Wattleup Road Development Co Pty Ltd v State Administrative Tribunal [No 2] [2016] WASC 279
Wattleup Road Development Company Pty Ltd and Western Australian Planning Commission [2011] WASAT 160
Wattleup Road Development Company Pty Ltd and Western Australian Planning Commission [2014] WASAT 159
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
Mr Graeme Robertson (applicant) seeks review, under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), of the decision of the City of Albany (City or Council) to refuse development approval under the City of Albany Local Planning Scheme No. 1 (LPS 1 or Scheme) for an extractive industry, in particular limestone extraction, at Lot 9005 Rock Cliff Circle and Eden Road, Nullaki (site).
The hearing of the application for review took place over six days in Perth, during which the parties made opening statements, called witnesses and tendered documents. The parties subsequently made their closing submissions in writing with the benefit of the transcript of the evidence. The Tribunal also conducted a view of the site and locality, and the wider area, accompanied by the parties' legal representatives and expert witnesses. The view included walking along part of the Bibbulmun Track, visiting the Nullaki campsite, driving along the proposed transport route, visiting Anvil Beach lookout and viewing the location of the site from the Ocean Beach lookout to the west and the Hay River Bridge to the north.
Site and locality
The site is situated on the Nullaki Peninsula, approximately 40 kilometres west of the Albany city centre. The Nullaki Peninsula comprises an area of about 6,500 hectares, bounded by the Southern Ocean to the south, Wilson Inlet to the north and an opening between the ocean and the inlet to the west. The town of Denmark is situated to the north-west of Wilson Inlet. Ocean Beach is situated to the south of Denmark, on the western shore of the opening between the Southern Ocean and Wilson Inlet.
The Nullaki Peninsula includes about 2,500 hectares of privatelyowned land, which is zoned 'Conservation' under LPS 1 and, in particular, comprises Conservation Zone CZ1 'Nullaki Peninsula Conservation zone' (CZ1) under Sch 12 of LPS 1, and Conservation Reserve, which is vested in the City for the purposes of Landscape Protection and Recreation. The Nullaki Peninsula is aptly described by Ms Melanie Price, who is an environmental scientist called to give evidence by the applicant, as 'an iconic and scenic area on the South Coast' of the State.[1] The Nullaki Peninsula generally comprises remnant open heath coastal vegetation.
[1] Witness statement of Melanie Price dated 11 May 2018 (Exhibit 26) [29].
However, parts of the privatelyowned land on the Nullaki Peninsula have historically been and continue to be used for farming activities and the part of the site where limestone extraction is proposed in the development application was used as a limestone quarry from about 2002 to 2006 and then rehabilitated. The limestone extracted from the site during this period was used to construct roads on the Nullaki Peninsula and that extractive industry took place without development approval.
In accordance with objective (c) of the CZ1 zone set out in cl 2.1 of Sch 12 of LPS 1 ('Provide for limited wilderness retreat subdivision and development in a manner that is compatible with the conservation values of the Nullaki Peninsula') and a Subdivision Guide Plan adopted by the City in September 2007 and subsequently endorsed by the Western Australian Planning Commission (Commission), the land in the Nullaki Peninsula Conservation zone CZ1 (other than the site) has been progressively subdivided into 51 lots, with areas of about 30-40 hectares. To date, about 20 dwellings and a number of caretaker's dwellings and associated infrastructure, including driveways, have been constructed on these lots.
The site has an area of approximately 437 hectares and is the southeastern-most privately owned land on the Nullaki Peninsula in general and in the Nullaki Peninsula Conservation zone CZ1 in particular. The site adjoins a Conservation Reserve vested in the City to the south (separating the site from the Southern Ocean) and to the east and south-east. The Subdivision Guide Plan contemplates the subdivision of the site into lots of about 30-50 hectares. Subdivision approval for the site was granted by the Commission, but lapsed. More recently, a subdivision application of the site was refused by the Commission on bushfire grounds.
The Bibbulmun Track is a walking track nearly 1,000 kilometres in length between Kalamunda in the Perth Hills and Albany. According to an extract from the Bibbulmun Track Foundation website, which is in evidence, it takes six to eight weeks on average to walk the whole of the Bibbulum Track, although 'many people choose to walk on the Track for much shorter periods'.[2]
[2] Exhibit 47 page 2.
The Bibbulmun Track adjoins a small section of the northern boundary of the site at its eastern end and a section of the eastern boundary of the site at its northern end, before turning south-east towards the Nullaki campsite. The Nullaki campsite is one of 49 campsites located along the route of the Track and is situated about 300 metres from the eastern boundary of the site. South of the Nullaki campsite, the Bibbulmun Track runs adjacent to the eastern boundary of the site, generally 200 metres to 300 metres from that boundary, although in one part almost touching the boundary. The area proposed for limestone extraction in the development application is about 400 metres from the closest point of the Bibbulmun Track and about 1.5-1.6 kilometres from the Nullaki campsite.
Proposed development
The proposed development involves the extraction of approximately 1,000,000 tonnes of limestone from the site, initially at the rate of about 20,000 tonnes per year and ultimately at the rate of about 50,000 tonnes per year. The proposed limestone extraction area is in the south-eastern part of the site (proposed limestone pit or extraction area). The proposed limestone pit is set back a little over 200 meters from the coastal Conservation Reserve to the south and, at its closest point, is about 60 metres from the eastern boundary of the site. The development application originally proposed that the limestone pit would have an area of 10 hectares and that the extraction of limestone would take place in four stages. The development application also originally proposed the location of a stockpile area in the north-eastern part of the site, close to the realigned and constructed Lee Road extension. However, the development application was amended to reduce the area of the proposed limestone pit from 10 hectares to eight hectares (with extraction taking place in three, rather than four stages) and to delete the separate stockpile area. Stockpiles of extracted material are now proposed to be located within the limestone pit itself.
The proposed development (including the movement of trucks in and out of the site) is to operate during only four months of the year, from 1 December to 31 March, and during that period is to be restricted to the hours of 7.00 am to 5.00 pm on Monday to Friday and 8.00 am to 5.00 pm on Saturday, with no operation on Sunday or public holidays. Although the proposed limestone pit has an area of eight hectares, a maximum of three hectares would be open for extraction and storage of extracted material at any one time. The proposed development also includes progressive rehabilitation of the limestone pit. As indicated earlier, part of the site was used as a limestone quarry between 2002 and 2006. As also indicated earlier, that part of the site is included within the proposed limestone pit in the development application.
The form, location and staging of the proposed development was designed by Mr Lindsay Stephens, who is an environmental and quarrying consultant with 45 years' experience and who holds academic qualifications in geology, geomorphology and botany. Mr Stephens was called to give evidence by the applicant. As Mr Stephens explained in evidence, he completed detailed field work on the site in May 2016 and selected the area of the proposed limestone pit, 'because limestone had been extracted from an existing quarry on the same site' and evidence 'demonstrates that rehabilitation of the disturbed areas is of a high standard',[3] and because the pit and associated facilities could be located and designed so as to 'minimise or negate impact on the local community and environment'.[4] Mr Stephens gave the following evidence, which was not questioned or contradicted, and which we accept:[5]
I was asked to go and look at the pit, the resource and see if they could have a limestone resource there. I looked at the site. I the highest grade limestone is actually on the ridges, and the squall limestone tends to be of lower grade. The reason that the higher grade limestone is on the ridge is because it's more it has a higher calcium carbonate content, it's more resistant to erosion, so it gets left as a ridge.
So to maximise the resource you actually want to take all the ridges, but that's not you have to make decisions. So then I looked at the site. So knowing that we needed to take part of the ridge at least, but you have to leave the ridge in place, so that from a visual amenity point of view. So the pit was selected to sit behind the ridge, and I creeped it on crept it on to the top of the ridge to about the extent that you could manage the visual management without seeing the quarry and the operations, but leaving the ridge in place. So I tried to maximise the resource, but, at the same time, minimise the impact.
The reason for leaving the eastern and northern faces and the ridges in place was to minimise noise, dust, visual.
…
So it was quite deliberate to establish the quarry in that location, so you could come in from the left-hand side or the southern edge behind the ridge. That was done very deliberately. It wasn't just an afterthought. It was done deliberately. And that's generally in the context of it. And that's how you typically operate a quarry like this.
[3] Witness statement of Lindsay Stephens dated 11 May 2018 (Exhibit 27) [15].
[4] Witness statement of Lindsay Stephens dated 11 May 2018 (Exhibit 27) [17].
[5] ts 295, 16 August 2018.
The proposed development also includes a sealed haul road for trucks accessing the proposed extraction area which would traverse an existing firebreak along the eastern boundary of the site. At the northern end of the proposed haul road, where it would intersect with the proposed realignment and construction of Lee Road (currently an unmade public road in the vicinity of the site), the haul road would be 74 metres south of where the Bibbulmun Track turns south-east away from the eastern boundary of the site and towards the Nullaki campsite. The section of the Bibbulmun Track to the south of the Nullaki campsite is generally set back 200 metres to 300 metres from the location of the proposed haul road. However, as indicated earlier, at one point, the Bibbulmun Track almost touches the eastern boundary of the site, along which the proposed haul road would run.
The transport route from the constructed haul road on the site proposed in the development application is via Lee Road, Browns Road, Lake Saide Road and Lower Denmark Road. Lee Road is currently only constructed to a gravel finish to a point approximately 1.25 kilometres east of the site's eastern boundary, although the gazetted road reserve of Lee Road extends to the eastern boundary of the site. It is common ground between the parties and the Tribunal concurs that from a flora preservation perspective, it would be preferable to realign Lee Road to the south, as it approaches the eastern boundary of the site, rather than to construct Lee Road along the currently gazetted road reserve to the eastern boundary of the site. The proposed realignment of the Lee Road road reserve would also mitigate the impact of Lee Road on the Bibbulmun Track, by relocating its western end further to the south, that is away from the Bibbulmun Track where it adjoins the eastern boundary of the site at its northern end.
The development application proposes the sealing of the entirety of the transport route, at the applicant's cost, after the first year of commercial operation of the development. Furthermore, the City commissioned an independent traffic and road safety report from Cardno (WA) Pty Ltd (Cardno), which is a consultancy specialising in land development engineering, environmental engineering, transport planning, traffic engineering and project management (Cardno report). The Cardno report was prepared by Mr Sam Laybutt, who is a traffic engineer with 10 years' experience and a Senior Road Safety Auditor and who is employed as Team Leader Transport Engineering and Road Safety by Cardno. Mr Laybutt gave evidence that, if the proposed development were to be approved, 'a series of road upgrades would be required to accommodate the volume and characteristics of the traffic generated by the proposed development and its haulage operations'.[6] Mr Laybutt identified specific road upgrades that would be required in relation to Lee Road, Browns Road, Lake Saide Road and Lower Denmark Road. Mr Laybutt gave a 'very preliminary order of magnitude cost estimate for constructing the full recommended road upgrades … in the region of $2.5 million to $3.0 million'.[7] At the Tribunal's direction, Mr Fred Wallefeld, who is a civil engineer with over 10 years' experience and who was called to give evidence by the applicant, conducted a conferral with Mr Laybutt, and Mr Wallefeld and Mr Laybutt prepared and filed a joint statement in which they agree that the 'upgrades to the proposed haulage route are necessary to accommodate the traffic generated by the proposed development'.[8] The draft, 'without prejudice' conditions of approval, filed by the City at the direction of the Tribunal, require that the agreed upgrades to the transport route be carried out by the applicant at his cost, and the applicant accepts those conditions.[9]
[6] Witness statement of Sam Laybutt dated 10 May 2018 (Exhibit 2) [48].
[7] Witness statement of Sam Laybutt dated 10 May 2018 (Exhibit 2) [54].
[8] Joint statement of Fred Wallefeld and Sam Laybutt dated 17 May 2018 (Exhibit 22) [7].
[9] See conditions 1416 in Attachment A to these reasons.
It is common ground that the necessary upgrades to the transport route to accommodate the traffic generated by the proposed development would require the removal of some native vegetation. Mr Laybutt undertook a detailed consideration of the amount of vegetation that would need to be removed in order to carry out the road upgrades that he recommends (and the applicant agrees to). At the Tribunal's direction, Mr Laybutt and Mr Stephens conferred and provided a joint statement in which they agree that 'the likely clearing of native vegetation for the haul road and parking bay on [the site] is anticipated to be around 1.0 [hectare]'[10] and that 'the amount of clearing of native vegetation along the public road transport route is likely to be around 1.6 hectares, based on the road requirements suggested by Sam Laybutt in his witness statement'.[11]
Advertising and determination of proposed development by the Council
[10] Joint statement of Lindsay Stephens and Sam Laybutt dated 30 August 2018 (Exhibit 38) [9].
[11] Joint statement of Lindsay Stephens and Sam Laybutt dated 30 August 2018 (Exhibit 38) [6].
The proposed development was advertised by the City to landowners in the area and notified the government agencies. Six submissions were received in support of the proposed development, largely on the basis of the lack of adequate local production of agricultural limestone within the Great Southern Region and contending that the proposal would have minimal environmental impacts. Sixty-nine public submissions objected to the development application on a range of grounds, principally relating to contentions of non-compatibility with the Conservation zone and adverse impacts on amenity, environment and traffic. A number of submissions were also received by the City from government agencies and public bodies.
At its meeting on 26 September 2017, the Council unanimously refused to grant development approval for the proposed development for the following reasons:[12]
[12] Exhibit 10 tab 20.
(1)The proposal does not satisfy the following matters to be considered as identified in Schedule 2, Part 9, Clause 67 of the Planning and Development (Local Planning Schemes) Regulations 2015, namely;
(a)the aims and provisions of this Scheme and any other local planning scheme operating within the Scheme area;
(b)the requirements of orderly and proper planning including any proposed local planning scheme or amendment to this Scheme that has been advertised under the Planning and Development (Local Planning Schemes) Regulations 2015 or any other proposed planning instrument that the local government is seriously considering adopting or approving[;]
(n)the amenity of the locality including the following -
(i)environmental impacts of the development;
(ii)the character of the locality;
(iii)social impacts of the development;
(y)any submissions received on the application;
(za)the comments or submissions received from any authority consulted under clause 66[.]
(2)The proposal does not comply with the general objectives of the Conservation Zone, and also the objectives contained within Schedule 12 - Conservation Zone Provisions No. CZ1 of Local Planning Scheme No.l.
Planning framework
As indicated earlier, the site is zoned 'Conservation' and, in particular, is within CZ1 'Nullaki Peninsula Conservation zone' in Sch 12 of LPS 1. The objectives of the Conservation zone are stated in cl 4.2.18 of LPS 1 as follows:
(a)Provide for residential uses upon large lots adjoining significant environmentally sensitive areas such as coastal or conservation areas where there is a demonstrated commitment to protecting, enhancing and rehabilitating the flora, fauna and landscape qualities of the particular site; and
(b)Require innovative subdivision design and development controls to:
(i)Minimise visual impacts from subdivisional infrastructure, particularly roads;
(ii)Restrict access to any sensitive areas such as beaches, conservation areas or National Parks that adjoin the zone;
(iii)Prevent land uses and development that would adversely impact on the ecological values of the site for conservation purposes; and
(iv)Provide for the safety of future residents from the threat of wild fire [sic].
Clause 4.3.1 and cl 4.3.2 of LPS 1 state as follows:
4.3.1The Zoning Table (Table 1) indicates, subject to the provisions of the Scheme, the uses permitted in the Scheme area in the various zones. The permissibility of any of the uses is determined by cross reference between the list of use classes on the left hand side of the Zoning Table and the list of zones at the top of the Zoning Table.
4.3.2The symbols used in the cross-reference in the Zoning Table have the following meanings:
'P'Means that the use is permitted by the Scheme providing the use complies with the relevant development standards and the requirements of the Scheme;
'D'Means that the use is not permitted unless the Local Government has exercised its discretion by granting planning approval;
'A'Means that the use is not permitted unless the Local Government has exercised its discretion by granting planning approval after giving special notice in accordance with clause 9.4;
'X'Means a use that is not permitted by the Scheme.
However, the Zoning Table of LPS 1 does not prescribe the permissibility of land uses in the Conservation zone in the manner contemplated in cl 4.3.1 and cl 4.3.2 of the Scheme. Rather, the Zoning Table states as follows in relation to the Conservation zone:
All land use and development to comply with clause 5.5.14 and Schedule 12.
Clause 5.5.14 of LPS 1 contains general provisions in relation to development in the Conservation zone which are not relevant to the proposed development.
The objectives of the CZ1 zone are stated in cl 2.1 in Sch 12 as follows:
The purpose of CZ1 is to:
(a)Protect, enhance and rehabilitate the flora, fauna and landscape qualities of the Nullaki Peninsula;
(b)Provide for controlled public access to the Peninsula, the Wilson Inlet Foreshore and Anvil Beach; and
(c)Provide for limited wilderness retreat subdivision and development in a manner that is compatible with the conservation values of the Nullaki Peninsula.
Clause 3 of Sch 12 of LPS 1 in relation to the CZ1 zone concerns land use and states as follows:
3.1Within Conservation Zone Area No. 1 the following uses shall be permitted subject to the Special Approval of the Local Government:
•Caretakers [sic] Accommodation (maximum floor area 150m2), which is to be co-located with the main dwelling or located between the main dwelling and the main access point to the lot and utilised shared access. As a minimum, applications for development of caretakers' [sic] accommodation must
(a)Meet the objectives of the zone, and
(b)Be subject to the prior or concurrent approval of the Development Area for the main dwelling, and
(c)Demonstrate provision of security and management benefit to the property, and
(d)Comply with all provisions relevant to Development Areas [sic] and the development of a dwelling, and
(e)Be contained within a maximum one hectare combined Development Area as per provisions 4.1 and 4.2.
(f)Subdivision or strata titling to provide separate title to caretakers [sic] accommodation will not be permitted.
(g)[sic] Single House
3.2The following uses may be permitted subject to the Special Approval of the Local Government:
•Home Occupation; and
•Other incidental or non defined activities considered appropriate by the Local Government which are consistent with the objectives of the Zone.
3.3The following uses are not permitted with [sic] the Conservation Zone Area No. 1:
•Holiday Accommodation;
•Tourist Accommodation; and
•Relocated Dwelling[.]
It is common ground and clearly the case that reference to 'Single House' as par (g) of cl 3.1 involves a formatting error and that 'Single House' should be identified as a second bullet point within cl 3.1, rather than as par (g). Further, it is common ground and clearly the case that the proposed extractive industry development does not fall within cl 3.1. Issue 1 in this proceeding is whether the proposed development is capable of approval under LPS 1 and turns on the proper interpretation of cl 3.2 and cl 3.3 of Sch 12 of LPS 1 in relation to the CZ1 zone.
Clause 4 of Sch 12 of LPS 1 in relation to the CZ1 zone sets out various development standards and requirements, which include the following:
4.3The Development Area refers to the area within which all development on each lot (including the main dwelling, caretaker's accommodation, sheds, water storage, low fuel area and effluent disposal areas) must be confi[n]ed and is not to exceed one hectare.
…
4.5Prior to the issue of development approval, the Local Government shall require landowners to submit a comprehensive professional assessment of the selected Development Area and proposed access way/driveway in accordance with the Environmental Protection Authority Guidance Statement No. 51 Terrestrial Flora and Vegetation and No. 56 Terrestrial Fauna Surveys for Environmental Impact Assessment in Western Australia to determine the presence of rare, endangered and/or threatened flora or fauna species, and an archaeological assessment for the presence of potential Aboriginal sites. Should such species or sites be identified, the Local Government shall require the selection of an alternative Development Area or the modification of the Development Area so as to protect said sites or rare, endangered and/or threatened species.
4.6The selected development area on a lot shall be sited in consultation with the Local Government and shall achieve the following criteria:
(i)Provide for minimum setbacks of:
…
•200 metres from the coastal foreshore reserve;
…
(v)Be located off significant ridgelines and preferably within sheltered well vegetated swales;
…
4.7(i)Applications for approval of development areas shall be accompanied by a photographic assessment demonstrating that the proposed development area and the buildings proposed thereon, will blend in with the visual landscape in terms of height and rooflines, colouring/toning and form and scale, and will not dominate a land based view when viewed from Anvil Beach Lookout, a public roadway, a foreshore node or the foreshore, the coastal walk trail and/or the Ocean Beach Lookout.
…
Clause 67 of the deemed provisions in local planning schemes (including LPS 1) set out in Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regs) (deemed provisions) states, in part, as follows:
In considering an application for development approval the local government is to have due regard to the following matters to the extent that, in the opinion of the local government, those matters are relevant to the development the subject of the application
(a)the aims and provisions of this Scheme and any other local planning scheme operating within the Scheme area;
(b)the requirements of orderly and proper planning including any proposed local planning scheme or amendment to this Scheme that has been advertised under the Planning and Development (Local Planning Schemes) Regulations 2015 or any other proposed planning instrument that the local government is seriously considering adopting or approving;
(c)any approved State planning policy;
…
(g)any local planning policy for the Scheme area;
…
(m)the compatibility of the development with its setting including the relationship of the development to development on adjoining land or on other land in the locality including, but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the development;
(n)the amenity of the locality including the following
(i)environmental impacts of the development;
(ii)the character of the locality;
(iii)social impacts of the development;
(o)the likely effect of the development on the natural environment or water resources and any means that are proposed to protect or to mitigate impacts on the natural environment or the water resource;
…
(s)the adequacy of
(i)the proposed means of access to and egress from the site; and
(ii)arrangements for the loading, unloading, manoeuvring and parking of vehicles;
(t)the amount of traffic likely to be generated by the development, particularly in relation to the capacity of the road system in the locality and the probable effect on traffic flow and safety;
…
(w)the history of the site where the development is to be located;
(x)the impact of the development on the community as a whole notwithstanding the impact of the development on particular individuals;
(y)any submissions received on the application;
(za)the comments or submissions received from any authority consulted under clause 66;
(zb)any other planning consideration the local government considers appropriate.
Clause 2 of the deemed provisions states as follows:
Where a local planning strategy for the Scheme area has been prepared by the local government in accordance with the Planning and Development (Local Planning Schemes) Regulations 2015 Part 3 the local planning strategy sets out the long-term planning directions for the Scheme area.
Furthermore, cl 1.4.2 of LPS 1 states as follows:
The Scheme is to be read in conjunction with the Albany Local Planning Strategy (ALPS).
The site and the Nullaki Peninsula generally is identified as a 'Conservation' area in the Albany Local Planning Strategy (ALPS). The site is additionally identified in the ALPS as an area of remnant vegetation. The site is not identified in the ALPS as a site for limestone extraction or any other form of extractive industry.
On 31 October 2017, the Council resolved to prepare and advertise Amendment No. 29 to LPS 1 (Amendment 29). Amendment 29 is an omnibus amendment of LPS 1, which includes the following proposed amendments to Sch 12 in relation to the CZ1 zone:
Amend the text at schedule 12, clause 3.2, dot point 2 by deleting the text "or non defined".
Amend the text at schedule 12, by deleting clause 3.3 and replacing with the following text:
"3.3All other land uses, other than those listed in cl.3.1 and 3.2 above, are 'X' not permitted with CZ1."
Advertising of Amendment 29 took place between 12 January 2018 and 1 March 2018. At its meeting on 27 March 2018, the Council adopted Amendment 29 and submitted it to the Commission and, ultimately, to the Minister for Planning (Minister) for the approval of the Minister under s 87(1) of the PD Act.
When listing this matter for hearing, Judge Parry directed that there be evidence from an officer of the Commission in relation to the status of Amendment 29. In accordance with this order, the City filed a witness statement of Ms Cate Gustavsson, who is an officer of the Department of Planning, Lands and Heritage (DPLH) and holds the position of Senior Planning Officer in the Great Southern Regional Land Use Planning team of DPLH. Ms Gustavsson was not required for cross-examination. In her witness statement, Ms Gustavsson said that she is the reporting officer for Amendment 29 and that Amendment 29 was scheduled to be considered by the Statutory Planning Committee of the Commission at its meeting to be held on 14 August 2018. Ms Gustavsson also gave the following evidence:[13]
The [Statutory Planning Committee] will consider the amendment documents and make any recommendations to the Minister for Planning in respect of the amendment that the Commission considers appropriate; and then submit the documents and the recommendations to the Minister for Planning.
[13] Witness statement of Cate Gustavsson dated 2 August 2018 (Exhibit 17) [8].
The hearing of this matter commenced on 14 August 2018 and proceeded for three days. The matter was then adjourned to a view on 4 September 2018, and for the conclusion of the evidence and final submissions on 12 and 13 September 2018.
At the commencement of the reconvened hearing on 12 September 2018, we asked Mr D F Nicholson, counsel for the City, whether there was any further information available in relation to Amendment 29 and, in particular, whether the recommendation of the Statutory Planning Committee, referred to in Ms Gustavsson's witness statement, was available. Mr Nicholson indicated that the City's officers had been 'informally' advised that the Statutory Planning Committee had considered Amendment 29 at its meeting on 14 August 2018 and had made a recommendation in relation to it to the Minister, but 'because it was dealt with as a confidential matter … they didn't publish minutes of the recommendation that was made'.[14] Mr Nicholson invited the Tribunal to make an order, under s 35 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), requiring the Commission to provide to the Tribunal the minutes of the recommendation of the Statutory Planning Committee to the Minister in relation to Amendment 29. That application was joined in by Mr K de Kerloy, counsel with Mr P Keeves on behalf of the applicant, who also made an application for an order, under s 35 of the SAT Act, for any letter to the Minister concerning the recommendation to also be provided by the Commission to the Tribunal.
[14] ts 469, 12 September 2018.
On 12 September 2018, we made the following orders:
(1)Pursuant to s 35(1) of the State Administrative Tribunal Act 2004 (WA) the Western Australian Planning Commission is to file with the Tribunal by 10.00 am on 13 September 2018 the following documents, marked for the urgent attention of Judge Parry's Associate:
(a)minutes of the recommendation of the Statutory Planning Committee to the Minister for Planning in relation to Amendment 29 to the City of Albany Local Planning Scheme No 1;
(b)any letter to the Minister for Planning concerning such recommendation; and
(c)if known, the date by or on which the Minister is expected to consider any such recommendation.
(2)The Western Australian Planning Commission has leave to seek any variation to the preceding order at the commencement of the hearing of this matter at 10.00 am on 13 September 2018.
At 10.00 am on 13 September 2018, Dr S J Willey appeared on behalf of the Commission and produced the document required by par (a) of order 1 made on 12 September 2018 to the Tribunal. Dr Willey indicated that no document existed in terms of par (b) of order 1 made on 12 September 2018. Dr Willey submitted that the information sought by par (c) of order 1 made on 12 September 2018 does not 'fall within the scope of section 35, and in any event, we have no instructions when the Minister is likely to consider this matter in terms of for final approval or otherwise'.[15]
[15] ts 575, 13 September 2018.
Dr Willey also, in effect, made an application for the order made under s 35(1) of the SAT Act on 12 September 2018 to be varied so that the document produced in accordance with par (a) of that order may be viewed by the Tribunal only and is not be provided to the parties, their legal representatives or witnesses. This application was made on the basis that the minutes of the recommendation of the Statutory Planning Committee to the Minister is 'exempt matter' and therefore 'protected matter' for the purposes of s 3 of the SAT Act. That application was dismissed: Robertson and City of Albany [2018] WASAT 138. However, on the basis that the publication of the recommendation of the Statutory Planning Committee to the Minister is 'confidential information' and 'information the publication of which would be contrary to the public interest' (within the meaning and for the purposes of s 61(4)(g) of the SAT Act), Judge Parry ordered, under s 61(2) and s 61(4)(g) of the SAT Act, that the part of the proceeding concerning the recommendation by the Commission to the Minister concerning Amendment 29 'is to be held in private and only the parties' legal representatives and town planning expert witnesses may be present'.
On 14 September 2018, Judge Parry made a corresponding nonpublication order, under s 62(3) and s 61(4)(g) of the SAT Act, that the recommendation by the Commission to the Minister concerning Amendment 29 'is not to be published by the Tribunal or any party other than in the parties' addenda to their closing submissions in writing'.
In determining 'the correct and preferable decision at the time of the decision upon the review' under s 27(2) of the SAT Act, we have had regard to the recommendation by the Statutory Planning Committee of the Commission to the Minister. In accordance with the non-publication order, we will not refer to that recommendation in these reasons.
Issues for determination
The following seven issues arise for determination in this review:
1.Whether the proposed development is capable of approval under LPS 1.
2.Whether the proposed development is consistent with orderly and proper planning.
3.Whether the proposed development would have an unacceptable impact on the amenity and character of the locality as a Conservation zone.
4.Whether the proposed development would have an unacceptable impact on the natural environment.
5.Whether the traffic generated by the proposed development would exceed the capacity of the road system in the locality or have an adverse affect on traffic flow and safety.
6.Whether the proposed variation of development standards and requirements applicable under Sch 12 of LPS 1 would have an adverse impact upon the inhabitants of the locality or the likely future development of the locality for the purposes of cl 5.2.3(b) of LPS 1.
7.Whether the Bushfire Management Plan submitted by the applicant adequately addresses bushfire risk.
However, it is common ground between the parties and we agree that for reasons discussed below, issue 5 (traffic impact) and issue 7 (bushfire risk) have been satisfactorily addressed by expert evidence and draft conditions of approval proposed by the City on a 'without prejudice' basis and agreed to by the applicant.
We will now address each of the issues in turn.
Is the proposed development capable of approval under LPS 1?
The City submits that 'the proposed development is not capable of approval under the relevant provision (cl 3) governing use permissibility within CZ1 as it is not a use specified as permissible within that zone'.[16] The City also submits that this interpretation is supported by 'the legislative history of the Nullaki Peninsula Conservation Zone' as part of the 'context' within which the provisions of cl 3 of Sch 12 in relation to CZ1 are to be interpreted.[17] In contrast, the applicant submits that the proposed development is capable of development approval under LPS 1, because it is a 'non defined activity' within the meaning of the second bullet point to cl 3.2 of Sch 12 in relation to CZ1 and, in any case, because it is not included in the specified uses which 'are not permitted with [sic] the Conservation Zone Area No. 1' in cl 3.3 of Sch 12 in relation to CZ1.
[16] City's closing submissions [5].
[17] City's closing submissions [55].
As indicated earlier, under cl 3.1 of Sch 12 in relation to CZ1, 'Caretakers [sic] Accommodation (maximum floor area 150m2)' and 'Single House' are 'uses [which] shall be permitted subject to the Special Approval of the Local Government' within CZ1. The proposed development is clearly not a use which 'shall be permitted subject to the Special Approval of the Local Government' under cl 3.1.
As also indicated earlier, cl 3.2 and cl 3.3 of Sch 12 of LPS 1 in relation to CZ1 state as follows:
3.2The following uses may be permitted subject to the Special Approval of the Local Government:
•Home Occupation; and
•Other incidental or non defined activities considered appropriate by the Local Government which are consistent with the objectives of the Zone.
3.3The following uses are not permitted with [sic] the Conservation Zone Area No. 1:
•Holiday Accommodation;
•Tourist Accommodation; and
•Relocated Dwelling[.]
The principles in relation to the proper interpretation of provisions of local planning schemes were set out by the Tribunal in Paintessa Developments Pty Ltd and Town of East Fremantle [2014] WASAT 81; (2014) 85 SR (WA) 312 as follows at [20][21]:
Under s 87(4) of the PD Act, [a local planning scheme] 'has full force and effect as if it were enacted by [the Planning Act]'. The Court of Appeal has recently said the following in relation to statutory interpretation:
The High Court of Australia has iterated, and reiterated, that the starting point and ending point for the task of statutory construction is the statutory text. The context, including legislative history and extrinsic materials, has utility only to the extent that it assists in fixing the meaning of the statutory text: Thiess v Collector of Customs [2014] HCA 12 [22] (the court); Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 87 ALJR 98, 107 [39] (the court); Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27, 4647 [47] (Hayne, Heydon, Crennan & Kiefel JJ). The duty of a court is to give the words of the statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, but not universally, that meaning will correspond with the grammatical meaning of the provision: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [78]. (City of Kwinana v Lamont [2014] WASCA 112 at [47]).
In giving the words of a planning scheme the meaning that the maker of the scheme is taken to have intended them to have, the terms of the planning instrument:
… will ordinarily be construed in a manner which acknowledges that planning schemes are largely the work of town planners, not parliamentary counsel; ergo, they should be read as a whole and applied in a practical and commonsense, and not an overly technical way, and in a fashion which will best achieve their evident purpose.
(Chiefari v Brisbane City Council [2005] QPELR 500 at 502 (Wilson J); referred to by the Tribunal in Galloway and Associates and City of Melville [2007] WASAT 238 at [41]).
Applying these principles of interpretation, in our view, the proposed development is capable of approval under LPS 1. We accept the City's submission that the proposed development is not a 'non defined activity' within the meaning of cl 3.2 of Sch 12 of LPS 1 in relation to CZ1. The applicant submits that:[18]
Where the activity (i.e. extraction of lime) is not mentioned in cl 3 of CZ1, it falls within the phrase 'non defined activities' and is properly characterised as a non defined activity. Accordingly, it is to be dealt with under cl 3.2 of CZ1.
[18] Applicant's closing submissions [28].
However, as the City submits, reading the expression 'non defined activities' in the context of the Scheme as a whole, this expression clearly refers to activities which are 'not "defined" in the manner set out in cl 1.7 of LPS 1'.[19] In particular, cl 1.7.1 of LPS 1 states as follows:
Unless the context otherwise requires, words and expressions used in the Scheme have the same meanings as they have:
(a)In the Planning and Development Act 2005; or
(b)If they are not defined in that Act:
(i)In the Dictionary of defined words and expressions in Schedule 1; or
(ii)In the Residential Design Codes.
[19] City's closing submissions [24].
The 'Dictionary of defined words and expressions in Schedule 1' of LPS 1 (referred to in cl 1.7.1(b)(i) of the Scheme) includes the following 'land use definition' in Pt 2 of that Schedule:
industry extractive means an industry which involves the extraction, quarrying or removal of sand, gravel, clay, hard rock, stone or similar material from the land and includes the treatment and storage of those materials, or the manufacture of products from those materials on, or adjacent to, the land from which the materials are extracted, but does not include industry mining[.]
The proposed development plainly falls within the defined meaning of the term 'industry extractive'. It is, therefore, not a 'non defined activity' within the meaning of cl 3.2 of Sch 12 of the Scheme in relation to the CZ1 zone.
However, in our view, the proposed development is capable of approval under LPS 1, because it is not included in the specified 'uses [which] are not permitted with[in] the Conservation Zone Area No. 1' in the bullet points in cl 3.3 of Sch 12 in relation to CZ1. As the applicant submits, it is contextually relevant to contrast the specified and limited list of 'uses [which] are not permitted' in CZ1, set out in cl 3.3 of Sch 12 in relation to CZ1, with the terms of the equivalent clauses concerning 'not permitted' land use in Sch 12 of LPS 1 in relation to each of the other two nominated Conservation zones under LPS 1, namely CZ2 'Rainbows End, Big Grove Conservation zone' (CZ2) and CZ3 'Torbay Beach Road, Kronkup Conservation zone' (CZ3). In relation to CZ2, following cl 3.1 (which states that 'Single House' is a '"P" permitted [use]' in that zone) and cl 3.2 (which states that five specified uses 'are "D" discretionary uses' in that zone), cl 3.3 states as follows:
All other land uses, other than those listed in 3.1 and 3.2 above, are 'X' not permitted within CZ2.
Similarly, in relation to CZ3, following cl 3.1 (which states that 'Single House' is a '"P" permitted [use]' in that zone), cl 3.2 (which states that five specified uses 'are "D" discretionary uses' within that zone) and cl 3.3 (which states that the Council 'may permit chalet/cottage units' on Lot 5 as shown on the Subdivision Guide Plan), cl 3.4 states as follows:
All other land uses, other than those listed in 3.1-3.3 above, are 'X' not permitted within CZ3.
Clause 3.3 of Sch 12 in LPS 1 in relation to CZ1 is expressed in significantly different terms to cl 3.3 of Sch 12 in relation to CZ2 and cl 3.4 of Sch 12 in relation to CZ3, because it specifically nominates only three land uses which 'are not permitted' in CZ1, whereas the equivalent clauses in relation to CZ2 and CZ3 expressly prohibit '[a]ll other land uses, other than those listed in [the earlier provisions of cl 3]'. As the applicant submits:[20]
The absence of any similar statement in CZ1 [to the statement in cl 3.3 in relation to CZ2 and cl 3.4 in relation to CZ3] supports the conclusion that it was not intended to generally prohibit all other land uses or activities except for the land uses or activities specified in cll 3.1 and 3.2 of CZ1 of Schedule 12.
[20] Applicant's closing submissions [11].
The City's proposed interpretation of cl 3 of Sch 12 of LPS 1 in relation to CZ1, under which the proposed development is not capable of development approval under LPS 1, ultimately involves 'reading in[to]' cl 3.3 of Sch 12 in relation to CZ1 the prohibition of 'industry extractive' or 'all other uses, other than those listed in cl 3.1 and cl 3.2' as in the 'catch all' prohibitions in cl 3.3 of CZ2 and cl 3.4 of CZ3. However, as Spigelman CJ observed in R v PLV [2001] NSWCCA 282; (2001) 51 NSWLR 736 at [88]:[21]
… There are many cases in which words have been read down. I know of no case in which words have been read up.
[21] Original emphasis.
There is no basis on which to in effect 'read in' (or 'read up') the prohibition of the proposed land use on the site in cl 3.3 of Sch 12 of LPS 1 in relation to CZ1.
The City submits that, rather than seeking to 'read in' any additional prohibition or prohibitions in cl 3.3, its 'suggested interpretation of use permissibility' arises by 'reading clauses 3.1, 3.2 and 3.3 in accordance with their terms and by reason of the absence of any other enabling provision permitting the approval of additional uses'.[22] The City's essential submission is that because the proposed use does not fall within cl 3.2 (or cl 3.1), it is not capable of being approved within CZ1. Referring to the definition of the word 'may' in The Macquarie Dictionary as 'to have permission to' and 'to be possible', the City submits as follows:[23]
[I]n accordance with that ordinary grammatical meaning the respondent submits that the intent of clause 3.2 was to set out the uses that were possible or capable of being approved within CZ1, in addition to the uses already stipulated in clause 3.1 as uses that "shall be permitted", and excluding uses specifically not permitted under cl.3.3 to the extent [that] they could be considered to fall within the scope of cl.3.2.
[22] City's closing submissions [47].
[23] City's closing submissions [46] (original emphasis).
We do not accept the City's submission for each of two reasons. First, the City's proposed interpretation of cl 3 necessarily requires, in effect, reading into cl 3.3 a further land use prohibition or prohibitions. Secondly, the City's submission misconstrues the meaning of cl 3.2. That provision identifies 'uses [which] may be permitted subject to the Special Approval of the Local Government'. It does not state or mean that uses which are not referred to in that clause (and are not uses which 'shall be permitted subject to the Special Approval of the Local Government' under cl 3.1 or uses which are 'not permitted' under cl 3.3) are incapable of development approval under LPS 1. The evident purpose of cl 3.2 is to enable specified uses to be permitted subject to 'the Special Approval' of the Council, not to prohibit the approval of other uses. Furthermore, 'Special Approval' is not the only pathway to development approval recognised by the Scheme. As indicated earlier, the Zoning Table of LPS 1 does not prescribe the permissibility of land uses in the Conservation zone in the manner contemplated in cl 4.3.1 and cl 4.3.2 of the Scheme, stating rather that 'All land use and development [is] to comply with clause 5.5.14 and Schedule 12'. However, it is contextually relevant to note that cl 4.3.2 refers to and prescribes the meanings of the following symbols used in relation to other zones in the Zoning Table:
…
'P'Means that the use is permitted by the Scheme providing the use complies with the relevant development standards and the requirements of the Scheme;
'D'Means that the use is not permitted unless the Local Government has exercised its discretion by granting planning approval;
'A'Means that the use is not permitted unless the Local Government has exercised its discretion by granting planning approval after giving special notice in accordance with clause 9.4;
…
Thus, the Scheme recognises the granting of development approval by pathways other than 'Special Approval' of the Council. The fact that the proposed extractive industry use may not be permitted subject to the Special Approval of the Council under cl 3.2 of Sch 12 of LPS 1 in relation to CZ1 does not mean that the proposed use cannot be granted development approval under the Scheme, as development approval other than by 'Special Approval' is recognised by the Scheme.
Finally, as indicated earlier, the City refers to the 'legislative history of the Nullaki Peninsula Conservation Zone' as part of the 'context' within which the provisions of cl 3 of Sch 12 of LPS 1 in relation to CZ1 are to be interpreted.[24] The Nullaki Peninsula Conservation Zone was first introduced as Amendment No. 130 (Amendment 130) to the then City of Albany Town Planning Scheme No. 3 (TPS 3), which was the precursor to LPS 1. In its original proposed and advertised form, Amendment 130 included the following part '2':[25]
Include a Conservation zone within the Use Class/Zoning Table No 1 and show Residential Dwelling House, Caretakers [sic] House/Flat as "P" uses, Home Occupation as an "AA" use and all other uses as "X" uses.
[24] City's closing submissions [55].
[25] Exhibit 10 tab 26 page 1.
Amendment 130 in both its original proposed and advertised form and in its gazetted form, also included inserting Sch 5 in relation to Conservation Zones into TPS 3. In its original proposed and advertised form, cl 3 of Sch 5 contained the following provision in relation to land use in the Conservation Zone Area 1 (which is now CZ1):[26]
[26] Exhibit 10 tab 26 pages 6-7 (emphasis added).
3.1Within Conservation Zone Area 1. the following uses are permitted:
-Residential Dwelling House.
-Caretakers [sic] Accommodation (maximum floor area 150m2).
3.2The following uses may be permitted subject to the Special approval [sic] of Council:
-Home Occupation.
-Extractive Industry
-Other incidental or non defined activities considered appropriate by Council which are consistent with the objectives of the Zone.
However, the gazetted form of Amendment 130 omitted 'Extractive Industry' from the list of uses which 'may be permitted subject to the Special approval of Council' in cl 3.2 of Sch 5. The circumstances in which the use was omitted are referred to in the City's following submission:[27]
It is also relevant to the interpretation of clause 3 that the initial form of Amendment 130 included the use of "Extractive Industry" as a use that "may be permitted" in the Conservation Zone, however this provision was not supported by the Department of Environmental Protection or by [the Commission] "due to potential adverse impacts on the landscape, flora and fauna". The final form of Amendment 130 as gazetted was modified in accordance with [the Commission] requirements to omit the use of "Extractive Industry" as a use that may be permitted.
[27] City's closing submissions [59].
In particular, the Minister required the following modifications to be made to Amendment 130 for the following reasons before it was gazetted:[28]
[28] Exhibit 10 tab 28 page 3.
NO
MODIFICATION
REASON
10
Provision 3.2 modify to delete reference to extractive industry as a use that may be permitted or alternatively specifically identify extractive industry sites on the Subdivision Guide Plan and utilise provisions to continue such industries to these specific sites.
Such allowance presents concerns due to potential adverse impacts on the landscape, flora and fauna. If sites are specifically identified impacts can be determined.
11
Include new Provision 3.3 to read:
"No development within Conservation Zone Area No 1 may proceed without the Special Approval of Council."
Requested by Council to ensure comprehensive assessment of all development.
The Minister also required the following modification to be made to part '2' of Amendment 130 for the following reason before it was gazetted:[29]
[29] Exhibit 10 tab 28 page 2.
2
General Conservation Zone Provisions
Modify part "2" to read:
"Include a Conservation Zone within the Use Class/Zoning Table and under the Conservation Zone column include the terminology "Refer to Schedule 5."
This will apply to all Conservation zones not only the current proposal and will provide the flexibility to control various uses on a case by case basis, depending on the circumstances prevalent for each Conservation Zone.
The City submits as follows:[30]
What is of significance then is that industry – extractive was specifically required to be removed as a use that "may be permitted", in the absence of any extractive industry sites identified on the Subdivision Guide Plan. That legislative history clearly militates against an interpretation of clause 3.2 that would now permit approval of industry-extractive as a use that may be permitted. The legislative history demonstrates that was not the legislative intent as the use of 'industry – extractive' was removed as a use that may be permitted in the absence of extractive industry sites being shown on the Subdivision Guide Plan.
[30] City's closing submissions [60].
The City also submits that:[31]
[The] legislative intent apparent from [Amendment 130 as gazetted] was to limit uses that could be approved to the uses of Residential Dwelling House, Caretakers [sic] Dwelling [sic] and Home Occupation, namely that uses that 'are permitted' and 'may be permitted', with the addition of incidental or non defined activities considered appropriate by Council which are consistent with the objectives of the Zone.
[31] City's closing submissions [58].
However, as the Court of Appeal said in City of Kwinana v Lamont [2014] WASCA 112 at [47], '[t]he context, including legislative history and extrinsic materials, has utility only to the extent that it assists in fixing the meaning of the statutory text' (citations omitted). As the Court of Appeal also said there, the duty of the Tribunal 'is to give the words of the statutory provision the meaning that the legislature is taken to have intended them to have' and 'the starting point and ending point for the task of statutory construction is the statutory text'.
Clause 3 of Sch 12 of LPS 1 in relation to CZ1 must be interpreted in accordance with its terms, read in context. Those terms are different to Amendment 130 to TPS 3. In particular, although Amendment 130 as gazetted appears to have prohibited extractive industry development on the site (by providing in cl 3.3 of Sch 5 of TPS 3 that '[n]o development within Conservation Area No 1 may proceed without the Special Approval of Council' and by not including 'Extractive Industry' in cl 3.1 of Sch 5 of TPS 3, which prescribed uses which 'are permitted', or in cl 3.2 of Sch 5 of TPS 3, which prescribed uses which 'may be permitted subject to the Special approval [sic] of Council', in that area), cl 3.3 of Sch 12 of LPS 1 does not prohibit all land uses, other than those listed in cl 3.1 and 3.2, but rather prohibits only three specified land uses, namely Holiday Accommodation, Tourist Accommodation and Relocated Dwelling, in the CZ1 zone. The proposed land use does not fall within cl 3.1, cl 3.2 or cl 3.3 of Sch 12 of LPS 1 in relation to CZ1. Consequently, it is capable of development approval under LPS 1. In particular, as the proposed use does not fall within cl 3.3, it is not a prohibited use on the site under the Scheme.
Is the proposed development consistent with orderly and proper planning?
As indicated earlier, cl 67(b) of the deemed provisions states as follows:
In considering an application for development approval the local government is to have due regard to the following matters to the extent that, in the opinion of the local government, those matters are relevant to the development the subject of the application
…
(b)the requirements of orderly and proper planning including any proposed local planning scheme or amendment to this Scheme that has been advertised under the Planning and Development (Local Planning Schemes) Regulations 2015 or any other proposed planning instrument that the local government is seriously considering adopting or approving;
…
In Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 at [179]-[182], Pritchard J considered the meaning of the expression 'orderly and proper planning' and emphasised that an assessment as to whether a proposed development is consistent with orderly and proper planning requires an objective, disciplined, methodical, logical and systematic approach. Her Honour said the following (citations omitted):
179The starting point for determining the meaning of the phrase 'orderly and proper planning' in s 66(1)(d) of the MRA Act is the ordinary and natural meaning of those words. The ordinary meaning of the word 'proper' includes 'suitable for a specified or implicit purpose or requirement; appropriate to the circumstances or conditions; of the requisite standard or type; apt, fitting; correct, right'. The ordinary meaning of the word 'orderly' includes 'characterised by or observant of order, rule, or discipline'. In other words, to be orderly and proper, the exercise of a discretion within the planning context should be conducted in an orderly way - that is, in a way which is disciplined, methodical, logical and systematic, and which is not haphazard or capricious.
180The planning discretion should be directed to identifying the 'proper' use of land - that is, the suitable, appropriate, or apt or correct use of land. In order to do so, the exercise of discretion would clearly need to have regard to any applicable legislation, subsidiary legislation and planning schemes (such as region schemes, town planning schemes, local planning schemes) and policy instruments. The State Administrative Tribunal has observed that 'at the heart of orderly and proper planning' is a public planning process which permits the assessment of individual development applications against existing planning policies 'so that the legitimate aspirations found in the planning framework may be translated into reality'.
181However, there is no reason in principle why planning legislation and instruments will be the only matters warranting consideration in determining what is a 'proper' planning decision. The matters which warrant consideration will be a question of fact to be determined having regard to the circumstances of each case.
182While the exercise of discretion will involve a judgment about what is suitable, appropriate, or apt or correct in a particular case, that judgment must (if it is to be 'orderly') be an objective one. If the exercise of discretion is to be an orderly one, the planning principles identified as relevant to an application should not be lightly departed from without the demonstration of a sound basis for doing so, which basis is itself grounded in planning law or principle. A broad range of considerations may be relevant in that context.
The City contends that approval of the proposed development would be contrary to orderly and proper planning for the following two reasons:[32]
[1]the nature and form of the proposed development is inconsistent with the nature and form of development contemplated by the planning framework; and
[2]the proposed development is likely to impair the effective achievement of the planning objective of Amendment No 29 to LPS 1, which is relevantly to prohibit approval of any uses other than those referred to in clauses 3.1 and 3.2 … .
[32] City's closing submissions [86].
On the evidence before the Tribunal, we consider that the proposed development is consistent with orderly and proper planning, because it is broadly consistent with the objectives and provisions of LPS 1 in relation to the zoning of the site, we consider that only limited weight should be given to the inconsistency between the proposed development and Amendment 29 in the circumstances of this case and the proposed development is consistent with the objective of the PD Act to 'promote the sustainable use and development of land in the State' and a corresponding aim of the Scheme. We have come to these findings for the reasons that follow.
Objectives of the Conservation zone
The Scheme sets out objectives for the Conservation zone generally and also for the individual Conservation zone identified in Sch 12. As indicated earlier, cl 4.2.18 of LPS 1 sets out the following objectives of the Conservation zone:
(a)Provide for residential uses upon large lots adjoining significant environmentally sensitive areas such as coastal or conservation areas where there is a demonstrated commitment to protecting, enhancing and rehabilitating the flora, fauna and landscape qualities of the particular site; and
(b)Require innovative subdivision design and development controls to:
(i)Minimise visual impacts from subdivisional infrastructure, particularly roads;
(ii)Restrict access to any sensitive areas such as beaches, conservation areas or National Parks that adjoin the zone;
(iii)Prevent land uses and development that would adversely impact on the ecological values of the site for conservation purposes; and
(iv)Provide for the safety of future residents from the threat of wild fire [sic].
Objective (a) of the Conservation zone indicates that the primary focus of development in the zone is 'residential uses upon large lots'. However, as found earlier, extractive industry is capable of development approval in the CZ1 zone. Furthermore, the circumstances of the site and the location of the proposed development are highly unusual, because the site is a uniquely large property within, and located at the south-eastern end of, the CZ1 zone, and the proposed limestone pit is located in the southeastern part of the site, with the consequence that the nearest residential property is some 2.3 kilometres away from the proposed pit area.
Although objective (b)(i) of the Conservation zone is concerned with '[minimising] visual impacts from subdivisional infrastructure, particularly roads', rather than development more broadly, for reasons set out at [108]-[128] below, the proposed development does minimise visual impacts not only of the proposed haul road on the site, but also of the development more broadly, particularly and significantly, the proposed limestone pit.
The proposed development is consistent with objective (b)(ii) of the Conservation zone to '[r]estrict access to any sensitive areas such as beaches, conservation areas or National Parks that adjoin the zone', because the site is fenced and access to the site would be controlled.
For the reasons set out at [132] below, the proposed development is broadly consistent with objective (b)(iii) of the Conservation zone to '[p]revent land uses and development that would adversely impact on the ecological values of the site for conservation purposes'.
Furthermore, the proposed development is consistent with objective (b)(iv) of the Conservation zone to '[p]rovide for the safety of future residents from the threat of wild fire [sic]'. This is because the proposed development includes providing a secondary emergency access for the 51 wilderness retreat lots on the Nullaki Peninsula, which currently only have one point of access and egress via Eden Road. As Mr Samuel Williams, who is a consultant town planner with 20 years' experience and who was called by the applicant, described Eden Road, 'it's one long cul de sac' and 'it does not meet the requirements of [State Planning Policy 3.7 Planning in Bushfire Prone Areas SPP 3.7]'.[33] The proposed development includes sealing the firebreak on the northern boundary of the site as well as the firebreak on the eastern boundary in its northern part to where it meets the proposed realigned constructed Lee Road at the eastern boundary of the site. The applicant proposes to provide an easement in gross benefiting the City over the sealed firebreaks abutting the northeastern and northern boundaries of the site. Therefore, although these parts of the site would remain in private ownership, they would provide a secondary emergency accessway linking the proposed realigned and constructed Lee Road with Rock Cliff Circle, which would be of great benefit in terms of providing for the safety of residents on the Nullaki Peninsula. As Mr William Burrell, who is a consultant town planner with over 40 years' experience and who was also called by the applicant, said in evidence:[34]
And the benefit I see from the development of the pit is that you will end up with a circulating system.
You would be able to come in from either direction, and there will be choices, and those choices actually can even if you can't get out along the roads themselves, you can at least get to a water's edge and find sanctuary as a result of that improved access. So I would see the pit producing other than the single cul-de-sac, it produces a circulating system, and that's a clear benefit for fire safety. Not fire safety for the pit itself, but fire safety for all the community on the Nullaki.
Objectives of the CZ1 zone
[33] ts 585, 13 September 2018.
[34] ts 596, 13 September 2018.
As indicated earlier, the objectives of the CZ1 zone are set out in cl 2.1 of Sch 12 of LPS 1 as follows:
The purpose of CZ1 is to:
(a)Protect, enhance and rehabilitate the flora, fauna and landscape qualities of the Nullaki Peninsula;
(b)Provide for controlled public access to the Peninsula, the Wilson Inlet Foreshore and Anvil Beach; and
(c)Provide for limited wilderness retreat subdivision and development in a manner that is compatible with the conservation values of the Nullaki Peninsula.
The City called Mr Joe Algeri, who is a consultant town planner with over 25 years' experience, to give evidence. There was a disagreement between Mr Williams and Mr Burrell, on the one hand, and Mr Algeri, on the other hand, as to whether objectives (b) and (c) of the CZ1 zone are relevant to the proposed development. Mr Burrell considers that objective (c) is relevant to the proposed development, because the word 'development' in the phrase '[p]rovide for limited wilderness retreat subdivision and development …'[35] is to be read independently of the words 'limited wilderness retreat subdivision' and:[36]
… development is a very broad term. It includes clearing, clearing for a house, clearing for driveways, public roads, extractive industries, clearing for agricultural pursuits as well as actively improving the landscape and amenity of the area to achieve the lifestyle advantages that this subdivision was proposing.
[35] Emphasis added.
[36] ts 556, 12 September 2018.
Mr Williams expressed the opinion that objective (c) of the CZ1 zone is relevant because:[37]
… I read this that it's stating it's a limited wilderness retreat. So it's limited in its environmental values. It's not a high class or high quality conservation land. And I also believe that the word development covers what the lime pit extractive industry application is.
…
I believe it makes allowance for development of other uses to be considered, such as a lime pit.
[37] ts 559, 12 September 2018.
In our view, objective (c) of CZ1 is not relevant to the proposed development. As Mr Algeri said, Mr Burrell's opinion in relation to objective (c) involves a misreading of that provision. Objective (c) uses the composite expression 'limited wilderness retreat subdivision and development'. As Mr Algeri said:[38]
… if the term … [']development['] was meant to be more expansive, then, (c) should have been drafted without the words "limited wilderness retreat". So if it had read “provide for subdivision and development in a manner that is compatible with the conservation values of the Nullaki Peninsula, then, I would read that wholly differently. … But in my reading of (c) is it's referring to subdivision and development in the context of limited wilderness retreat. And I don't read it any other way, your Honour. So, again, I don't believe (c) would be relevant.
[38] ts 557, 12 September 2018.
Furthermore, contrary to Mr Williams' evidence, the word 'limited' is not a reference to 'limited in its environmental values', but rather limited in terms of the scale of wilderness retreat subdivision and development so that such development is compatible with the conservation values of the Nullaki Peninsula.
In relation to objective (b) of the CZ1 zone ('Provide for controlled public access to the Peninsula, the Wilson Inlet Foreshore and Anvil Beach'), Mr Williams expressed the opinion that this objective is relevant to the proposed development for the following reason:[39]
Because the objectives of the [C]onservation zone is to continue to provide for public access, controlling public access. And if a lime pit is going to be on the peninsula, you still need to control public access because you will have to they will (indistinct) have to have controlled public access to the lime pit because the public will be permitted, through truck companies, onto the peninsula.
[39] ts 558, 12 September 2018.
In our view, objective (b) of CZ1 is not relevant to the proposed development, because, as Mr Algeri explained:[40]
Your Honour, my reading of (b) is that it there's an objective to promote public access to the peninsula, Wilson Inlet and Anvil Beach. But it uses the words controlled, in my mind, so that that access is simply not unfettered, that it is controlled in some manner. But I don't interpret the word control meaning that there should be some sort of limitation more broadly on access to the peninsula. And I don't understand how that could then be relevant to this application insofar as there will be a private style of development on the land and use of the existing firebreak. I just don't see how that's relevant in any way.
[40] ts 560, 12 September 2018.
Objective (a) of the CZ1 zone is certainly relevant to the proposed development and a key question in this review is whether the proposed development is broadly consistent with the objective to '[p]rotect, enhance and rehabilitate the flora, fauna and landscape qualities of the Nullaki Peninsula'.
In relation to flora, the City called and relied on the evidence of Mr Andrew Mack, who is an environmental consultant with over 20 years' experience. Mr Mack expressed the opinion that the 'flora survey data [utilised in the evidence presented by the applicant] is outdated and incomplete'[41] and that the 'clearing of vegetation, its impacts on the ecology and the broader impacts in terms of amenity in my opinion do not present as development that is compatible with the conservation values of the Nullaki Peninsula and the CZ1 area'.[42] Although Mr Mack acknowledged that the proposed development would take place in stages, with a maximum of three hectares open for extraction and storage at any one time, and that the proposed limestone pit would be progressively rehabilitated through the lifetime of the development, he considers that 'you would never get a total rehabilitation' and 'in that sense, there is going to be some permanent change to the environment in this area', with the consequence that the environmental impact of the proposal is 'unacceptable'.[43]
[41] Witness statement of Andrew Mack dated 11 May 2018 (Exhibit 30) [7.40].
[42] Witness statement of Andrew Mack dated 11 May 2018 (Exhibit 30) [7.41].
[43] ts 337, 16 August 2018.
The 'flora data' obtained for the purposes of the development application and utilised in the evidence presented by the applicant comprises two survey reports prepared by Ms Kathryn Kinnear and Dr Karlene Bain of the environmental consultancy Bio Diverse Solutions, which is located in Albany.[44] The first Bio Diverse Solutions survey report (dated 19 April 2016) concerns a vegetation community survey undertaken over a 770 hectare area including the site. The report states that this comprised 'broad vegetation mapping, assessment of vegetation condition, weed mapping and disease mapping across the survey area'. The vegetation type and condition mapping was carried out on 6 April 2016 by Dr Bain, who is a botanist. The report states that '[t]he vegetation was assessed in detail using longitudinal transects that strategically targeted the range of diverse ecotypes present on site, as identified using aerial photographs and visual observation'. Flora species 'were systematically recorded and collections of plant specimens were made where further identification was required'. The report acknowledges that '[t]hreatened species were not specifically targeted during survey work', but states that these 'were included in species lists where they were encountered'.
[44] Exhibit 32.
The second survey report by Bio Diverse Solutions (dated 4 April 2017) involved a level 1 flora and vegetation survey carried out on 22 March 2017 in relation to the proposed realigned route of Lee Road to the eastern boundary of the site. The survey report states that '[t]he vegetation was assessed in detail using longitudinal transects that strategically targeted the range of diverse ecotypes present onsite, as identified using aerial photographs and visual observation'. As in relation to the earlier survey of the 770 hectare area including the site, flora species were 'systemically recorded and collections of plant specimens were made where further identification was required'.
Ms Price, who is an environmental scientist with over 20 years' experience, including the past seven years in the Albany area, independently assessed the two Bio Diverse Solutions survey reports. Ms Price gave the following evidence:[45]
I am not aware of any environmental standards which would regard surveys conducted and reported on in April 2016 to be out of date in relation to the current application for approval. The land and the vegetation surveyed sits within a stable environment which would not be expected to alter significantly in only a couple of years. In my opinion the surveys conducted by Ms Kinnear in 2016 are a reliable guide to the vegetation and flora of the surveyed area as it exists today.
[45] Witness statement of Melanie Price dated 11 May 2018 (Exhibit 26) [46].
However, as we found earlier, the change in landform and topography on the site would be barely perceptible from the closest viewing positions off the site (the Bibbulmun Track and the lookout near the Nullaki campsite to the northeast) and would be scarcely perceptible or imperceptible from the other viewing locations which are located further away. Furthermore, on Ms Price's unchallenged evidence, the postdevelopment landform, namely 'a tiered shape … isn't actually that dissimilar to some of the cliff and coastal structure that's there already'.[176]
[176] ts 348, 16 August 2018.
The City submits that the two flora surveys by Ms Kinnear and Dr Bain do not satisfy the requirement in cl 4.5 of Sch 12 of LPS 1 in relation to the CZ1 zone that landowner submit '… a comprehensive professional assessment of the selected Development Area and proposed access way/driveway in accordance with the Environmental Protection Authority Guidance Statement No. 51 - Terrestrial Flora and Vegetation … to determine the presence of rare, endangered and/or threatened flora … species'.[177] The City relies on the evidence of Mr Mack in support of this submission. However, as indicated earlier, Mr Mack's evidence is that 'further work is required to determine [the presence of rare, endangered and/or threatened flora species], particularly, relating to the need for a clearing permit to be applied for'.[178]
[177] City's closing submissions [145].
[178] ts 337, 16 August 2018 (emphasis added).
Although the Department of Water and Environment Regulation may require further flora survey work to be undertaken in order to obtain a clearing permit under the EP Act, we are satisfied on the evidence of Ms Price, who provided an independent assessment of the two flora surveys prepared by Ms Kinnear and Dr Bain, that those documents generally satisfied the requirement in cl 4.5 of Sch 12 of LPS 1 in relation to the CZ1 zone. As Ms Price said in evidence:[179]
So having reviewed the vegetation documentation, which did include flora surveys, it does appear to me [to] be adequate and comprehensive. I think the author of that document did make the point that there hadn't been some seasonality for, say, threatened flora, but I think the threatened flora that was mentioned later on was potentially orchids, which is probably unlikely that you would find orchids at this site because it doesn't contain suitable habitat, so the risk of that is relatively low.
So in in that instance, I do believe that the vegetation surveys that I've read are adequate to inform this proposal in terms of their breadth and scope and scale.
[179] ts 358, 16 August 2018.
Finally, in relation to this issue, the applicant proposes the following condition of development approval, should the Tribunal determine that the proposed development merits the grant of approval:
During the operation of the extractive industry, the operator shall spend 60 cents per tonne of limestone sold per financial year, up to a maximum of $30,000, such funds to be used to maintain and protect the environmental attributes of the Nullaki Peninsula, including, but not limited to, maintaining:
(a)the conservation values of the Nullaki Peninsula;
(b)the applicant's vermin proof fence;
(c)the five electronic gates providing property access for Lot owners within the Nullaki Peninsula from public roads through the vermin proof fence across three public roads;
(d)the proposed fire escape egress along the northern perimeter of Lot 9005; and
(e)strategic firebreaks across the Nullaki Peninsula.
The applicant shall include evidence of the allocation and expenditure of the funds in the annual compliance report required to be prepared in accordance with condition 43.
Although it was not explicitly put in these terms, the condition proposed by the applicant involves, in effect, the application of the sixth principle of sustainable development referred to by Justice Preston in Telstra Corporation Limited v Hornsby Shire Council [119], namely 'the internalisation of environmental costs into decision-making for economic and other development plans, programs and projects likely to affect the environment'. The Tribunal has not, to date, applied the sixth principle of sustainable development in planning review proceedings.
For the reasons set out earlier, we consider that the proposed development would have an acceptable impact on the natural environment. Therefore, the condition proposed by the applicant is not strictly necessary in order for the development to be approved. However, as the condition was proposed by the applicant and as Mr Mack, Ms Price and Mr Bowman each consider that the condition would have environmental benefits, we will impose it.
Would the traffic generated by the proposed development exceed the capacity of the road system in the locality or have an adverse affect on traffic flow and safety?
As indicated earlier, Mr Wallefeld and Mr Laybutt agree that, if the proposed haulage route is upgraded in the manner proposed by Mr Laybutt and agreed by Mr Wallefeld, then the traffic generated by the proposed development would not exceed the capacity of the road system and would not have an adverse affect on traffic flow and safety.
The City formulated 'without prejudice' conditions of approval requiring the applicant to carry out or fund the necessary improvement works to the public road system.[180] As also indicated earlier, these conditions are agreed to by the applicant.
Would variation of development standards and requirements applicable under Sch 12 of LPS 1 have an adverse impact upon the inhabitants of the locality or the likely future development of the locality for the purposes of cl 5.2.3(b) of LPS 1?
[180] Conditions 14-16 in Attachment A to these reasons.
For the reasons given at [139]-[147] above, the proposed development is generally compliant with all of the development standards and requirements in cl 4 of Sch 12 of LPS 1 in relation to the CZ1 zone, other than cl 4.3 which imposes a development standard that the Development Area 'must be confined and is not to exceed one hectare'. However, for reasons given at [136]-[138] above, we are satisfied that the noncompliance with the development standard in cl 4.3 will not have an adverse effect upon the inhabitants of the locality or the likely future development of the locality for the purposes of cl 5.2.3(b) of LPS 1.
Is the Bushfire Management Plan submitted by the applicant adequate to address bushfire risk?
The applicant submitted a Bushfire Management Plan dated 6 May 2018 prepared by Mr Peter Bidwell, who is employed by the bushfire consultancy Working on Fire, to the City. The City sought comments from the Department of Fire & Emergency Services (DFES) in relation to the Bushfire Management Plan under SPP 3.7 and the Guidelines for Planning in Bushfire Prone Areas. On 27 June 2018, DFES informed the City that it had assessed the Bushfire Management Plan and the planning report submitted with the development application and advised as follows:[181]
As the proposed development is not considered a high-risk land use it should be noted that future referral to DFES is not required.
[181] Exhibit 10 tab 40 page 3.
The City accepts and we concur that bushfire risk is satisfactorily addressed by conditions 35 and 36 of the 'without prejudice' conditions which state as follows:[182]
35.A revised Bushfire Management Plan shall be submitted for approval of the City of Albany acting reasonably, prior to commencement of operations.
36.The Bushfire Management Plan as approved by the City of Albany shall be implemented to the reasonable satisfaction of the City of Albany.
Conclusion
[182] Exhibit 52.
We have determined that the proposed development is capable of development approval under the Scheme, that it is consistent with orderly and proper planning and that its impacts on the amenity and character of the locality and upon the natural environment are acceptable. Consequently, the 'correct and preferable decision at the time of the decision upon the review' under s 27(2) of the SAT Act is to grant conditional development approval.
As indicated earlier, in accordance with the Tribunal's programming orders, the City provided a set of draft, 'without prejudice' conditions of development approval. The applicant initially contested a number of the proposed conditions. However, during the course of the proceedings, the parties had discussions in relation to the conditions and ultimately 44 conditions of development approval were agreed. We have amended condition 14(i) to require the applicant to use gravel and spread topsoil on or apply spray sealing to the shoulders of the haul road to encourage growth of vegetation on the shoulders. We also impose the condition proposed by the applicant requiring the operator to spend 60 cents per tonne of limestone sold per financial year (up to a maximum of $30,000) 'to maintain and protect the environmental attributes of the Nullaki Peninsula'. We consider that the conditions set out below will appropriately regulate the approved development.
Orders
For these reasons, we make the following orders:
1.The application for review is allowed.
2.The decision of the City of Albany made on 26 September 2017 to refuse development approval for extractive industry at Lot 9005 Rock Cliff Circle/Eden Road, Nullaki is set aside and in its place a decision is substituted that development approval is granted subject to the conditions in Attachment A.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MF
Associate
10 JANUARY 2019
Attachment A
GENERAL
1.Except to the extent inconsistent with any other conditions set out hereunder, all development on the site shall comply with the Excavation and Rehabilitation Management Plan dated August 2018 and any subsequent amendments to that Management Plan as may be agreed in writing between the applicant and the City of Albany from time to time.
2.Excavation, storage and extraction activities shall be contained within an eight hectare area in the location depicted in the plan and entitled "Lot 9005 Eden Road, Nullaki Peninsula Concept Final Contour Plan" drawn by Landform Research dated 21 August 2018 which is annexed to these conditions. A maximum of three hectares will be open for extraction and storage of extracted material at any one time. The perimeter of the area to be worked must be pegged and clearly marked to ensure that all earthworks are contained within the approved area.
3.If the development, the subject of this approval, is not substantially commenced within a period of 24 months from the date of approval, the approval shall lapse and be of no further effect. Where an approval has lapsed, no further development shall be carried out without the further approval of City of Albany having first been sought and obtained.
4.Except as otherwise approved by the City of Albany, the hours of operation of the extractive industry, including the movement of trucks in or out of the site, shall be restricted to:
a.the period of 1 December to 31 March; and
b.the hours of 7.00am - 5.00pm Monday to Friday, and 8.00am - 5.00pm Saturday, with no operation of the extractive industry permitted on Sundays or Public Holidays.
5.The applicant shall ensure that the site is kept in a neat and tidy condition at all times. When vehicles and equipment are not in use they shall be located in such a manner as to minimise their view from outside the site to the reasonable satisfaction of the City of Albany.
ENVIRONMENTAL
6.The site shall be suitably rehabilitated and re-contoured on a per hectare basis, including re-battering of banks and reseeding and stabilising of former extraction areas, in accordance with the Excavation and Rehabilitation Management Plan to the reasonable satisfaction of the City of Albany.
7.The applicant shall enter into a deed of agreement with the City of Albany providing for payment prior to commencement of operations of a refundable bond/bank guarantee of $24,000 (calculated at $3000.00 per hectare of excavation area) for remediation and rehabilitation work (if required) and authorising the City to enter onto the subject site to carry out rehabilitation and remediation works in the event of the applicant's failure to undertake such works in accordance with the Excavation and Rehabilitation Management Plan. The deed of agreement shall be prepared by the City's solicitors at the cost of the applicant.
8.The applicant shall control declared weeds throughout the site to the reasonable satisfaction of the City of Albany.
9.The excavation activities are to be restricted to a level no lower than 2 metres above the highest known water table.
10.The applicant shall not undertake any washing of excavated material on the development site.
11.Prior to the commencement of operations the applicant shall undertake and submit to the City of Albany a targeted Spring flora survey of the selected development area and the proposed access way/driveway to determine the presence of rare, endangered and/or threatened flora species. Should such species be identified the applicant shall prepare an alternative footprint that minimises visual impact and preserves the identified threatened flora, to the reasonable satisfaction of the City of Albany.
TRAFFIC AND ENGINEERING
12.The applicant shall submit a detailed design for the internal haul road for the approval of the City of Albany, acting reasonably. The design shall be accompanied by a Risk Management Plan which outlines residual road safety risks resulting from any applicable design constraints (e.g. width, grade) and the controls to manage these risks.
13.Prior to the commencement of operations the applicant shall submit a Traffic Management Plan for the approval of the City of Albany. The Traffic Management Plan shall address vehicle use and movements associated with the development both on site and off site and shall implement suitable operating procedures so as to ensure that trucks are not using the haulage route while the school bus is operating. The applicant shall comply, and shall ensure its contractors comply, with the Traffic Management Plan as approved by the City of Albany.
14.Prior to the commencement of haulage of limestone from the site the following upgrades to the road network shall be undertaken at the full cost to the applicant, to the reasonable satisfaction of the City of Albany:
(a)Lower Denmark Road/Lake Saide Road intersection - widening of intersection to accommodate left turns for RAVs.
(b)Lake Saide Road SLK 0.0 - 2.75 - clear vegetation on the inside of curves.
(c)Lake Saide Road SLK 2.75 - 3.85 - widen to 7.6m.
(d)Lake Saide Road SLK 3.85 - 5.55 - widen to 5.8m with isolated narrow sections, restrict operating speeds to 40km/h. Clear vegetation for sight lines.
(e)Lake Saide Road/Browns Road intersection - widen intersection to accommodate RAV4 turning movements. Clear vegetation for sight lines.
(f)Browns Road SLK 0.0 - 0.47 - widen to 5.8m except for bridge, restrict operating speeds to 40km/h. Clear vegetation for sight lines.
(g)Browns Road/Lee Road intersection - widen intersection to accommodate RAV4 turning movements. Clear vegetation for sight lines.
(h)Lee Road SLK 0.0 to end of road - construct and widen to 5.8m, restrict operating speeds to 40km/h. Clear vegetation for sight lines.
(i)Sealing of the entire internal haulage road on the subject site using gravel to construct its shoulders and spreading topsoil on or applying spray sealing to the shoulders to encourage growth of vegetation on the shoulders.
15.Prior to the end second year of commercial operations, the applicant shall seal the following road sections in accordance with Austroads design guidelines and to the reasonable satisfaction of the City of Albany:
(a)Lake Saide Road - SLK 2.75 to 5.55
(b)Browns Road - SLK 0.0 to 0.47
(c)Lee Road - SLK 0.0 to site boundary.
16.The applicant shall not transport more than 20,000 tonnes of extracted material from the site in any 12 month period prior to undertaking the following further road upgrades:
(a)Lake Saide Road SLK 0.0 - 2.75 - widen seal to a minimum 6.0m and formation to 8.0m. Clear vegetation for sight lines.
(b)Lake Saide Road SLK 3.85-5.55-widen to 7.6m, seal, restrict operating speeds to 40km/h. Clear vegetation for sight lines.
17.Extraction from the excavation site shall not exceed 50,000 tonnes in any 12 month period. Laden truck movements from the site shall not exceed fourteen (14) per day.
18.Prior to commencement of operations, the applicant shall engage an accredited and suitably qualified independent expert to undertake, in consultation with Main Roads WA, a review of the load bearing capacity of Brown Roads Bridge for Restricted Access Vehicles, or vehicles with greater than standard axle loadings associated with the extractive industry use. The review shall be submitted to and approved by the City of Albany prior to commencement of operations. If the review requires upgrade works to be undertaken by the applicant, the upgrade works shall be undertaken to the reasonable satisfaction of the City of Albany prior to commencement of operations.
19.Where damage is caused to the road pavement and/or bitumen seal as a result of heavy haulage operations from the subject site, such damage shall be rectified at the applicant's expense and to the reasonable satisfaction of the City of Albany.
20.The applicant shall liaise with school bus operator to establish a traffic schedule to avoid potential conflicts with school bus operations and document this in the Traffic Management Plan. No truck movements shall be undertaken during the times that the school bus services the area, unless otherwise agreed in writing by the City of Albany, acting reasonably.
21.At the completion of each stage of excavation, the landowner shall ensure that all excavation faces, non operational stockpiles and bund walls are safe and stable.
22.The crossover from Lee Road to the internal haul road is to be constructed in accordance with City of Albany standard industrial crossover specifications and to be located and maintained to the reasonable satisfaction of the City of Albany.
23.Turning radius of crossover to be of a size suitable for large trucks and the width of the crossover shall be sufficient to accommodate two trucks (one entering and one exiting the site) to the reasonable satisfaction of the City of Albany.
24.Any crossovers to residences or businesses along the proposed haulage route are to be formed and provided with 2 metres of bitumen, and the entire internal haulage road on the applicant's land shall be constructed using road base quality material and bitumen sealed.
25.A maximum speed limit of 20 kilometres per hour shall be applied to all internal roads, driveways and vehicle accessways and signs in this regard shall be displayed at the entrances to the site.
26.The applicant shall pay a contribution to road maintenance calculated in accordance with the Heavy Vehicle Cost Recovery Policy Guideline for Sealed Roads published by the Western Australian Local Government Association as amended from time to time.
HAZARDOUS CHEMICALS
27.No onsite fuel storage or major servicing of equipment shall take place on the site.
28.The applicant shall:
(a)implement measures to avoid the risks of spills or leaks of chemicals including fuel, oil or other hydrocarbons; and
(b)ensure that no chemicals or potential liquid contaminants are disposed of on site.
NOISE
29.All activity at the site is to comply with the Environmental Protection (Noise) Regulations 1997 (WA). The applicant will undertake a noise compliance audit when operations commence to ensure compliance with the Environmental Protection (Noise) Regulations 1997 (WA), to the reasonable satisfaction of the City of Albany.
30.Standard high pitched reversing beepers are to be removed from all excavation vehicles used on the site and alternative warning measures such as flashing lights or broadband reversing alarms known as 'croakers' (subject to compliance with the relevant Australian Standard and any Worksafe codes) are to be fitted to these vehicles instead.
31.No blasting of material is permitted as part of extraction operations, unless a separate written approval has been obtained from the City of Albany.
DUST
32.The developer shall prevent the generation of visible particulates (including dust) from access ways, trafficked areas, stockpiles and machinery from crossing the boundary of the subject site by using where necessary appropriate dust suppression techniques including but not limited to the installation of sprinklers, utilisation of water tankers, mulching, or by the adoption and implementation of any other suitable land management system in accordance with the Department of Environment and Conservation's dust management guidelines dated March 2011 and the City of Albany Prevention and Abatement of Sand Drift Local Law 2000.
33.Verification of the efficacy of the measures to control dust proposed in the Excavation and Management Plan submitted by the applicant will be subject to auditing as part of the annual Compliance Report and the City may require alternate actions if the measures prove ineffective.
34.The landowner shall ensure that all loads leaving the site are to be enclosed or completely covered by a secured impermeable tarpaulin or some other effective mechanism used to prevent dust nuisance.
FIRE RISK MANAGEMENT
35.A revised Bushfire Management Plan shall be submitted for approval of the City of Albany acting reasonably, prior to commencement of operations.
36.The Bushfire Management Plan as approved by the City of Albany shall be implemented to the reasonable satisfaction of the City of Albany.
TEMPORARY BUILDINGS/STRUCTURES
37.A building permit is to be obtained for the construction or placement of any permanent or temporary structures on site such as a site office where required under Building Act 2011 (WA).
38.Any buildings/structures associated with the excavation activities such as a site office, toilet facilities or sea containers used for storage are to be located so that they are screened from view from outside the site to the reasonable satisfaction of the City.
STATUTORY REQUIREMENTS
39.If required, a licence from the Department in accordance with the Environmental Protection Act 1986 (WA) and Environmental Protection Regulations 1987 (WA) in respect of:
(a)the site as a prescribed premises for quarrying operations; and
(b)the use of the crusher on the site for quarrying operations,
must be obtained prior to the commencement of the quarrying or crushing operations on site.
40.The applicant shall comply with the relevant clauses and provisions of the City of Albany Local Laws relating to the Extractive Industries.
41.The applicant is to comply with the requirements of the Environmental Protection Act 1986 (WA) and the Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA) prior to the clearing of any native vegetation.
42.Approval of the Commissioner of Main Roads under the Road Traffic (Vehicles) Act 2012, in consultation with the City of Albany, must be obtained prior to the use of Restricted Access Vehicles on any road accessing the site.
COMPLIANCE REPORT
43.The applicant shall submit an annual compliance report to the City of Albany by 30 May each year. The annual compliance report shall include:
(a)an internal compliance audit of all the development and licence approval conditions and Management Plan requirements undertaken by a suitably qualified person to the reasonable satisfaction of the City;
(b)details of all community complaints and complaint responses;
(c)annual tonnage of extracted material in the previous calendar year;
(d)log of cartage trucks to and from the site recorded on a daily basis during period of operation; and
(e)other information reasonably requested by the City relevant to management of any impact arising from the operation of the extractive industry.
44.In the event the City:
(a)is not satisfied with any audit contained in an annual compliance report; or
(b)receives a complaint from a member of the public indicating that the applicant has failed to adequately implement measures contained in a Management Plan,
then the City acting reasonably may by notice in writing require the applicant to take the action stipulated in the notice in order to ensure the approved Management Plans are complied with. The applicant shall promptly comply with any notice issued by the City pursuant to this condition.
EXPENDITURE BY APPLICANT TO MAINTAIN AND PROTECT ENVIRONMENTAL ATTRIBUTES OF THE NULLAKI PENINSULA
45.During the operation of the extractive industry, the operator shall spend 60 cents per tonne of limestone sold per financial year, up to a maximum of $30,000, such funds to be used to maintain and protect the environmental attributes of the Nullaki Peninsula, including, but not limited to, maintaining:
(a)the conservation values of the Nullaki Peninsula;
(b)the applicant's vermin proof fence;
(c)the five electronic gates providing property access for Lot owners within the Nullaki Peninsula from public roads through the vermin proof fence across three public roads;
(d)the proposed fire escape egress along the northern perimeter of Lot 9005; and
(e)strategic firebreaks across the Nullaki Peninsula.
The applicant shall include evidence of the allocation and expenditure of the funds in the annual compliance report required to be prepared in accordance with condition 43.
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