SANDBOURNE HOLDINGS PTY LTD and CITY OF SWAN
[2007] WASAT 38
•12 FEBRUARY 2007
SANDBOURNE HOLDINGS PTY LTD and CITY OF SWAN [2007] WASAT 38
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 38 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:219/2006 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MR L GRAHAM (SENIOR SESSIONAL MEMBER) | 11/02/07 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | The application for review is upheld subject to conditions | ||
| B | |||
| PDF Version |
| Parties: | SANDBOURNE HOLDINGS PTY LTD CITY OF SWAN |
Catchwords: | Temporary storage of sand Sand fill Sand drift Mulching Best endeavours approach Mitigation offset |
Legislation: | City of Swan Town Planning Scheme No 9 (District Zoning Scheme), cl 2.3.1 Planning and Development Act 2005 (WA), s 252(1) State Administrative Tribunal Act 2004 (WA), s 60(2) |
Case References: | Nil Nil |
Orders | On the application determined on the documents, it is ordered that:,1. The application for review is upheld, subject to the conditions outlined in Orders 2, 3 and 4.,2. That the sand fill is to be removed from the subject land on or before midnight Wednesday, 14 March 2007.,3. That the earthworks and finished level of the site following the removal of the sand fill must be stabilised to prevent sand blowing, and appropriate measures must be implemented within the time of the works and in a manner directed by the City of Swan in the event that sand is blown or drifts from the site.,4. That the requirements contained in Order 3 be completed on or before midnight Wednesday, 28 March 2007. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : SANDBOURNE HOLDINGS PTY LTD and CITY OF SWAN [2007] WASAT 38 MEMBER : MR L GRAHAM (SENIOR SESSIONAL MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 12 FEBRUARY 2007 FILE NO/S : DR 219 of 2006 BETWEEN : SANDBOURNE HOLDINGS PTY LTD
- Applicant
AND
CITY OF SWAN
Respondent
Catchwords:
Temporary storage of sand - Sand fill - Sand drift - Mulching - Best endeavours approach - Mitigation offset
Legislation:
City of Swan Town Planning Scheme No 9 (District Zoning Scheme), cl 2.3.1
Planning and Development Act 2005 (WA), s 252(1)
State Administrative Tribunal Act 2004 (WA), s 60(2)
(Page 2)
Result:
The application for review is upheld subject to conditions
Category: B
Representation:
Counsel:
Applicant : Mr RJ Hawkins (Acting as Agent)
Respondent : Mr EWT Lumsden (Acting as Agent)
Solicitors:
Applicant : Sandbourne Holdings Pty Ltd
Respondent : City of Swan
Case(s) referred to in decision(s):
Nil
(Page 3)
Summary of Tribunal's decision
1 The application for review was lodged by Sandbourne Holdings Pty Ltd against a decision of the City of Swan to refuse an application for the ongoing temporary storage of sand on a property within the Malaga Industrial Estate.
2 The reasons for refusal were substantially based on the perceived failure of the applicant to comply with previous conditions of development approval.
3 In undertaking this review, the Tribunal examined the background to the matter, the reasons behind choosing the subject land for sand fill, and the consequences of sand drift onto neighbouring properties; particularly the adjacent Lot 327 Millrose Drive.
4 The Tribunal concludes that the present situation of sand fill on this particular property is unsatisfactory on an ongoing basis, and that the sand should be removed from the site within a reasonable period of time.
5 The application for review is upheld, but only for a limited time period to allow the applicant to find an alternative site and to remove the sand.
Introduction
6 The application for review, dated 4 July 2006, was lodged by Mr Russell J Hawkins on behalf of Sandbourne Holdings Pty Ltd (applicant) against a decision of the City of Swan (respondent) on 14 June 2006 to refuse an application for the temporary storage of sand fill at the corner of Beringarra Avenue and Millrose Drive, Malaga.
7 The application was made under the provisions of s 252(1) of the Planning and Development Act 2005 (WA).
8 The refusal to commence development was issued under the relevant provisions of the City of Swan Town Planning Scheme No 9 (District Zoning Scheme) (TPS 9) for the following reasons:
"1. Refuse the application for a 12 month temporary storage of fill on lot 168 Millrose Drive and Lot 169 Beringarra Avenue, Malaga for the following reasons:
- (1) Conditions 1, 2, 3, 4 and 5 of the City's development approval dated 20 July 2004 for the temporary storage of fill on the subject lots have not been complied with.
(2) Non-compliance with the Council's resolution of 8 January 2006.
- 2. Enact its decision of 8 February 2006 and instruct its solicitors to effect legal action forthwith."
Subject land and legislative framework
9 The subject land comprises Lot 168 (No 4) Millrose Drive and Lot 169 (No 4) Beringarra Avenue, Malaga. Both lots are adjacent to Malaga Drive.
10 Lot 169 is 2,148 square metres in area and is zoned "service station" in TPS 9, whilst Lot 168 is 5945 square metres in area and zoned "general commercial". The total land area is 8093 square metres and is contained within the Malaga Industrial Estate.
11 The subject land is relatively flat and has been used for the temporary storage of sand. There are a number of new or relatively new commercial premises nearby.
12 The matter is covered under cl 2.3.1 of TPS 9:
"2.3.1 Application for approval to commence development
' … no person shall commence or carry out any development unless the Council's approval has first been obtained'."
Respondent's position
13 The respondent's position is broadly contained within a letter dated 6 April 2006 to the applicant. It explains:
"The reasons for Council not granting any temporary approvals for the site are outlined in the report to Council dated 8 February 2006. It is the responsibility of the landowner to maintain the site in accordance with the terms of the development approval so as not to cause a nuisance to neighbouring properties. It is clearly evident that appropriate
(Page 5)
- measures have not been undertaken on a regular basis to contain the sand and maintain the site.
Council's resolution requires the site to be reinstated to its original ground level within 60 days of the date of Council's decision. This 60 day period expires on 9 April 2006. Should the sand not be removed by this date the matter will be referred to the City's Development Compliance Section and the City's solicitors for appropriate legal action."
14 In a "refusal to commence development″ of 8 February 2006, which preceded the current refusal of 14 June 2006, the following conditions were imposed:
"a) The site is to be reinstated to its original ground level and the land treated to prevent erosion of the soil.
b) All fencing is to be reinstated on all lot boundaries."
Applicant's position
15 The position of the applicant is contained in an attachment to the application for review. It explains:
"The grounds upon which it is requested that the decision of Council be reversed are:
A) Sandbourne were [sic] never in breach of any Council requirement or order at the time the application was refused;
B) That the sand has been in situ for a number of years now and problems arising from the disturbance of mulching by persons or persons unknown which have caused sand to drift from time to time have always been dealt with immediately upon receipt of formal and proper advice or request from Council;
C) An inspection of the adjoining landowners properties by Sandbourne within the last two months have indicated that there would appear to be no substantial sand drift affecting the adjoining owners and roadways and drains inspected did not indicate any degree of sand cover or blockage;
(Page 6)
- D) Sandbourne is prepared to carry out whatever reasonable and sensible works are required after receipt of proper notice from Council to ensure yet again that the sandfill is properly stabilised and will not create a nuisance for adjoining owners;
E) The outcome of Sandbourne's negotiations with the environmental authority should be concluded shortly and the sand can be moved to its rightful location."
Planning issues
16 The principal planning issue is whether, in the circumstances of this case, the ongoing temporary use of the subject land for the storage of sand should be continued or terminated.
Assessment of proposal
Background
17 The background to this matter is outlined:
(a) An application for "approval to commence development" for the temporary storage of sand on the subject land was received by the respondent on 8 November 2005.
(b) The application was refused by the respondent on 8 February 2006.
(c) On 21 February 2006, a request for reconsideration of the decision of 8 February 2006 was lodged by the applicant with the respondent.
(d) On 6 April 2006, the applicant was advised:
"Please be advised that the City has no provisions under its Town Planning Scheme to reconsider decisions made by the Council in respect to development applications. Applicants have a right of appeal to the State Administrative Tribunal within 28 days of the date of the determination, however please note that this appeal period has since lapsed."
(e) On 1 May 2006, a new application for "approval to commence development" for the temporary storage of sand on the subject land was lodged with the respondent.
(Page 7)
- (f) On 14 June 2006, a new "refusal to commence development" was issued by the respondent.
(g) The application for review, dated 4 July 2006, was lodged with the Tribunal and a directions hearing held on 26 July 2006.
(h) On 28 July 2006, Mr RJ Hawkins, for the applicant, wrote to the Tribunal in accordance with Order 2 of the Tribunal of 26 July 2006 advising:
" … I have made contact with our Engineers, Cardno BSD Pty Ltd with a view to arranging for the Contractors to carry out the necessary works to:
(a) Secure the security fence surrounding the stored sand on Lots 168 and 169;
(b) To earthwork the sand pile to ensure that it is evenly spread and satisfactory for recoating with mulch;
(c) To further work the sand to ensure that the 'batter toe' is 1.5 metres inside the surrounding fence;
(d) To re-mulch the sand pile with suitable material to reduce the incidence of sand drift.
Sandbourne will use [its] best endeavours to ensure that the matters above are carried out by the middle of August and certainly no later than 31 August 2006."
19 At an on-site mediation on 18 September 2006, which was attended by representatives of the applicant and the respondent and an adjoining property owner who had been experiencing the problem of windblown sand, the applicant agreed that:
1. Sandbourne was prepared to re-mulch those portions of the site where sand became exposed.
(Page 8)
- 2. The additional mulching to be completed when advised of sand drift problems by the adjoining owner; subject only to the availability of the relevant contractors.
20 These commitments were included in a letter to the Tribunal dated 18 September 2006 on the understanding that the matter would be returned to Council for consideration. There was an understanding that Council support for the continued use of the subject land for sand storage was a possibility.
21 The following order was made on 18 September 2006:
"Following the on-site mediation on Monday, 18 September 2006, the matter is referred to the respondent to reconsider its decision under review as required by Order 6 of the Tribunal on 26 July 2006."
22 An advice to the Tribunal on 1 December 2006 from the respondent stated:
"Further to the SAT's order of 18 September 2006, the City reconsidered its decision at the Ordinary Meeting of Council on 29 November 2006 where Council resolved to:
Advise the State Administrative Tribunal that the Council is prepared to grant approval for the temporary storage of sandfill … subject to the following:
(a) The sand fill to be removed from the subject lots by 31 December 2006 as indicated by Mr Hawkins at the onsite SAT mediation of 18 September 2006.
(b) The earthworks and finished level of the site following the removal of the sandfill must be stabilised to prevent sand blowing, and appropriate measures must be implemented within the time of the works and in a manner directed by the City in the event that the sand is blown or drifts from the site.
(c) In the event of failure to comply with (a) and (b) above, the matter be referred to Council's solicitors for appropriate legal action."
23 A draft Minute of Consent Orders dated 1 December 2006 reflecting the Council resolution was signed by the respondent and countersigned by
(Page 9)
- the applicant on a "best endeavours" approach. However, in the view of the respondent, the open-ended nature of the commitment from the applicant did not constitute consent, and a directions hearing was sought by the respondent.
24 In a letter to the Tribunal dated 1 December 2006, the applicant explained:
"Whilst Sandbourne is prepared to comply with the requirements it can only use a 'best endeavours' to have the sand moved by 31st of December 2006.
We are sure it will be accepted that activity within the contracting industry particularly pre-Christmas is extremely high and due to the delay in responding to the proposition put, Sandbourne may have difficulty in having the sand moved during the month of December.
As stated, however, the commitment is given to remove it as soon as possible with the comment that it is likely to be given the above early in the New Year. Accordingly the Minute of Consent Orders is accepted to Sandbourne subject to the above."
25 At a directions hearing on 5 December 2006, the following order was given:
"As agreed between the parties the matter is to be determined by Sessional Member Graham entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA)."
26 In undertaking this review, the Tribunal will give due regard to all of the documentation and not limit itself to the differences between the parties with respect to the draft Minute of Consent Orders.
The rationale for sand fill on the subject land
27 The rationale for using the subject land for the temporary storage of sand is broadly explained in the letters dated 21 February 2006 and 1 May 2006 from the applicant to the respondent:
(a) Sandbourne Holdings Pty Ltd is a major developer of land in the Malaga Industrial Area and is the owner and developer, through the Industrial Freeway Joint Venture, of substantial parcels of land to the east of Malaga Drive.
(Page 10)
- (b) Sandbourne has no real desire to have its surplus sand stored on the subject land.
(c) The background circumstances relate to the actions of the Environmental Protection Authority (EPA) and the Water and Rivers Commission declaring the balance of the Sandbourne/Industrial Freeway Joint Venture land (balance land) at the eastern end of Beringarra Avenue and Victoria Avenue as a Conservation Category Wetland.
(d) When the last completed industrial land subdivision took place, there was surplus sand fill available for storage on a small portion of land owned by Sandbourne at the eastern end of the estate.
(e) The proposed land for storage was rejected by the EPA and the subject land was chosen for temporary storage.
(f) As a consequence of the EPA refusal, the company and Council commenced joint legal action against the EPA. The action was lost.
(g) Attempts to resolve the conflict with the EPA by way of a so-called "mitigation offset" are proceeding at a cost of some hundreds of thousands of dollars. A "Framework for Developing a Mitigation Strategy" has been prepared by the consultants, Cardno BSD, on behalf of Sandbourne to identify an appropriate offset wetland.
(h) Subject to a satisfactory resolution with the EPA, the "balance land" will be available and the sand can be removed from the subject land.
(i) Sandbourne acknowledges that sand storage on the subject land should not cause nuisance to neighbouring properties or landowners.
28 It is clear to the Tribunal that the circumstances leading to the use of the subject land for sand fill have been brought about by circumstances outside the control of the applicant. It is also clear that the land use has, subject to the appropriate conditions, been supported over time by the respondent.
(Page 11)
The consequences of the sand fill
29 In a letter dated 21 February 2006, the applicant advised:
(a) When the sand was originally moved to the site it was mulched for stabilisation.
(b) Subsequent unauthorised access by pedestrians and motor vehicles destabilised the mulching and caused sand drift. Further re-mulching took place when requested.
30 Following the stealing of sand from the site, the subject land was totally fenced. This action was not successful, as soil was again disturbed.
31 Based on photographic evidence by the respondent on 23 January 2006 and 14 June 2006, the following is clear:
(a) The height of the sand fill appears to exceed 1.8 metres.
(b) The mulching on the surface of the sand appears to have broken down extensively on the batters and elsewhere.
(c) The cyclone fence with star picket supports has been disturbed, thereby providing unauthorised access to the site.
(d) There is clear evidence of sand drift into the adjacent Lot 327 Millrose Drive.
32 In the view of the Tribunal, the attempts to stabilise the sand have been unsuccessful over extended periods of time, due to unauthorised trespass. The inevitable consequence has been the movement of windblown sand into nearby properties; particularly the adjacent Lot 327 Millrose Drive.
Conclusions
33 The application for review was lodged by Sandbourne Holdings Pty Ltd against a decision of the City of Swan to refuse an application for the ongoing temporary storage of sand on the subject land. The reasons for refusal were substantially based on the perceived failure of the applicant to comply with previous conditions of development approval.
34 In undertaking the review, the Tribunal has examined the background to the matter, the reasons for choosing the subject land for
(Page 12)
- sand fill and the consequences of sand drift onto neighbouring properties; particularly the adjacent Lot 327 Millrose Drive.
35 From the perspective of the applicant, the company has been a major developer of land in the Malaga Industrial Estate and when the last completed industrial land subdivision took place, there was surplus sand fill available for storage on land owned by them at the eastern end of the estate. However, the application for storage was rejected by the EPA on the grounds that the land was a Conservation Category Wetland.
36 Attempts to resolve the impasse by way of a so-called "mitigation offset" have continued on the basis of identifying an appropriate offset wetland. There is, however, no information before the Tribunal on progress in this matter.
37 In any event, these circumstances have led to the use of the subject land for sand storage which has proven to be a less than satisfactory solution with the breakdown of the surface mulch. This appears to have been caused by unauthorised trespass by pedestrians and vehicles, with boundary fencing broken and sand stolen.
38 From the perspective of the respondent, it would appear that although previous approvals have been granted on an annual basis, they are no longer happy with the situation due, it would seem, to complaints relating to sand drift. Although there is no specific information to this effect on file, it is certainly the understanding of the applicant, following ongoing liaison with the occupier(s) of the adjacent site(s), and a belief that complaints have been made direct to the respondent. This was expressed in a letter to the respondent dated 1 May 2006:
"It is quite clear that the moves made by Council to reject the first made application resulted from complaints from nearby neighbours as a result of sand material blowing from the site into their premises. This is regrettable and the writer tried on a number of occasions to respond to the calls of a neighbour to discuss this matter."
39 In the view of the Tribunal, the applicant appears to have responded to formal complaints of sand drift, and to have made genuine attempts to address the problem. However, it must also be said that the applicant's approach has been a "reactive″ one rather than a "proactive" one by monitoring the situation itself, and immediately attending to a breakdown in the surface mulch.
(Page 13)
40 The Tribunal concludes that the present situation of the temporary use of the subject land for sand storage is unsatisfactory at this particular site, and that the sand should be removed within a reasonable period of time. A limit of 31 December 2006 was contained within a draft Minute of Consent Orders which was agreed to by the applicant, but on an openended "best endeavours" approach. This approach was unsatisfactory to the respondent.
41 In the view of the Tribunal, the application for review should be upheld to the extent that the applicant is given a reasonable period of time to find an alternative site and to remove the sand. Just what progress, if any, has been made to date on these matters is unknown, but the following orders are made to ensure a resolution of the issue.
Orders
42 For the foregoing reasons, the orders of the Tribunal are as follows:
1. The application for review is upheld, subject to the conditions outlined in Orders 2, 3 and 4.
2. That the sand fill is to be removed from the subject land on or before midnight Wednesday, 14 March 2007.
3. That the earthworks and finished level of the site following the removal of the sand fill must be stabilised to prevent sand blowing, and appropriate measures must be implemented within the time of the works and in a manner directed by the City of Swan in the event that sand is blown or drifts from the site.
4. That the requirements contained in Order 3 be completed on or before midnight Wednesday, 28 March 2007.
I certify that this and the preceding [42] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR L GRAHAM, SENIOR SESSIONAL MEMBER
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