Skiljan and Shire Of Merredin
[2006] WASAT 313
•20 OCTOBER 2006
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)
CITATION: SKILJAN and SHIRE OF MERREDIN [2006] WASAT 313
MEMBER: MR D R PARRY (SENIOR MEMBER)
HEARD: 19 SEPTEMBER 2006 - DRAFT CONDITIONS FILED ON 28 SEPTEMBER 2006, 18 OCTOBER 2006 AND 20 OCTOBER 2006
DELIVERED : 20 OCTOBER 2006
FILE NO/S: DR 410 of 2005
BETWEEN: ARTHUR GILBERT SKILJAN
Applicant
AND
SHIRE OF MERREDIN
Respondent
Catchwords:
Town planning - Development application - Inert landfill facility - Land filling of tyres - Backfilling of gravel pits - General farming zone - Use not listed - Jurisdiction - Whether determination that the use shall be prohibited within the Scheme area is in respect of the exercise of a discretionary power - Whether use may be permitted in zone - Whether use consistent with preservation of rural character and appearance - Whether use consistent with aim to protect productive agricultural land - Potential environmental impacts - Tyre leachate - Tyre fire - Vermin - Mosquitos - Compression of tyres by baling to mitigate potential for environmental impacts
Legislation:
Mining Act 1978 (WA), s 120
Planning and Development Act 2005 (WA), s 236, s 238(4), s 238(3)(a)(i)
Shire of Merredin Town Planning Scheme No 1, cl 2.2.2, cl 2.2.4, cl 2.2.4(a), cl 2.2.4(b), cl 2.2.10, cl 6.1.1, cl 6.1.4, cl 6.2.1, cl 6.3.1, cl 6.1.4, cl 6.10
Result:
Application for review allowed
Decision of respondent under cl 2.2.4 of the Shire of Merredin Town Planning Scheme No 1 that used tyre disposal be prohibited within the Scheme Area is set aside and a decision is substituted that land filling of tyres use may be permitted within the General Farming Zone
Decision of respondent to refuse development approval for land filling of tyres set aside and decision substituted that development approval is granted subject to conditions
Category: B
Representation:
Counsel:
Applicant: Mr MJ Hardy
Respondent: Ms EM Stevenson
Solicitors:
Applicant: Hardy Bowen
Respondent: McLeods
Case(s) referred to in decision(s):
Nicholls and Western Australian Planning Commission [2005] WASAT 40
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Mr Skiljan applied to the Shire of Merredin for development approval to land fill cut or slashed tyres in gravel pits on a remote, rural property. The development was a use not listed in the local planning scheme.
The Shire determined that used tyre disposal is prohibited in the scheme area and decided to refuse the development application because the proposal was prohibited.
It was common ground that the Tribunal had jurisdiction under the scheme to review both of the Shire's decisions.
The Tribunal determined that the proposed use may be permitted in the zone. The evidence demonstrated that the use was consistent with the Shire's strategic planning for the area, provided that the potential environmental risks were appropriately mitigated and managed. The evidence also demonstrated that the potential environmental risks, of which leaching from tyres and fire were the most significant, could be appropriately mitigated and managed.
The Tribunal determined that special development approval should be granted, subject to conditions which, among other things, require that:
•only compressed, baled tyres can be land filled at the site, thereby significantly reducing the risk of leaching and fire;
•a 3.0 metre deep clay or other impermeable layer must be in place at the base of the land fill, to preclude any leachate entering the groundwater;
•the tyres must be land filled in cells and layers, separated by clean fill, to mitigate fire risk; and
•the operator must provide the Shire with an annual report in relation to the progress of the land fill and subsequently the rehabilitation of the site, accompanied by dimensioned plans and dated photographs, which demonstrates that the conditions are being complied with.
Introduction
These proceedings involve an application for review of two decisions made by the Shire of Merredin (Shire) following the lodgement of a development application to use Lot 29191 on Deposited Plan 192930, McPharlin Road, Burracoppin (site) for the purpose of "mining and tyre disposal as part of rehabilitation of mining" (DA). The proposed mining is in the form of two open gravel pits, the first located in the north-western part of the site, approximately 3 kilometres via an internal access road from McPharlin Road, and the second located centrally on the site, approximately 2 kilometres via an internal access road from McPharlin Road. Each pit will be developed to a size of approximately 250 metres in length, 150 metres in width and 25 metres in depth. The proposed tyre disposal is by way of back filling each pit with cut or slashed tyres brought to the site from Welshpool in Perth and unloaded directly from the truck into the pit. Tyres are not proposed to be stockpiled at the site.
A works approval has been granted by the Department of Environment for the proposed mining and tyre disposal. It is common ground that development approval is not required for the proposed mining as a result of s 120 of the Mining Act 1978 (WA). Accordingly, the DA which is now before the Tribunal is for land filling of tyres only.
The site has an area of approximately 308.5 hectares. It is in an isolated, rural location, approximately 25 kilometres east of Merredin and 14 kilometres south of Burracoppin, about half way between Perth and Kalgoorlie. Very little natural vegetation remains in the locality and on the site, as a result of mining and agricultural activities.
The site has been used for mining since 1930. On 5 November 2002, the Department of Industry and Resources (DIR) issued Mining Lease M70/112 to Mr Skiljan and another person. A notice of intent to mine gravel under Lease M70/112 was issued by the DIR on 18 November 2003. Lease M70/112 expires on 11 November 2023.
The surrounding locality is predominantly used for agriculture. The nearest residence to the site is approximately 4 kilometres to the east.
Acting President Chaney formed the opinion, under s 238(4) of the Planning and Development Act 2005 (WA) (PD Act), that the application is likely to raise complex or significant planning issues. Consequently, although the application for review is, in part, of the determination of a development application to commence a development of a value of less that $250 000 (PD Act s 238(3)(a)(i)), the proceedings were listed for determination before me.
The Shire's decisions
The DA was lodged with the Shire on 16 December 2004. On 15 March 2005, the Shire considered separate reports from its Manager of Development Services, entitled "Applications for planning consent – Uses not listed in Shire of Merredin Town Planning Scheme No 1 – Policy item" and "Application for planning consent – Gravel mining and tyre disposal operation – Reserve 20542/29191, McPharlin Road, Burracoppin – A & N Skiljan".
In the first report, the Manager of Development Services referred to Development Services having fielded several inquiries concerning the Shire's position on used tyre disposal. The Manager also referred to the lodgement of the DA. In accordance with the Manager of Development Services' recommendation, the Shire resolved as follows:
"That the Merredin Shire Council, in accordance with Clause 2.2.4(a) of the Shire of Merredin Town Planning Scheme No 1, determine that used tyre disposal be prohibited within the Scheme area."
The second report dealt specifically with the DA. In accordance with the Manager of Development Services' recommendation, the Shire resolved as follows:
"1)That the Merredin Shire Council advise Messrs A & N Skiljan that a used tyre disposal operation is a prohibited use in the Scheme area under the provisions of the Shire of Merredin Town Planning Scheme No. 1.
2)That the Merredin Shire Council advise Messrs A & N Skiljan that it refuses planning consent in relation to the application (PA19/04) submitted on their behalf by Andrew King and Associates for a gravel mining and tyre disposal operation at Reserve 20542/29191 McPharlin Road, Burracoppin.
3)That the Merredin Shire Council advise Messrs A & N Skiljan that it will consider an application for planning consent for a gravel mining operation at Reserve 20542/29191 McPharlin Road, Burracoppin upon submission of an application for planning consent form signed by the owner of the relevant property or a suitably authorised person, subject to the provision of the following additional information –
a)Duration of mining,
b)Number and type of trucks accessing the site on a daily/weekly basis,
c)Proposed operation times of mining,
d)Proposed traffic routes of vehicles involved on operation of facility,
e)More detailed site plan showing locations of machinery and structures to be used on site;
f)Any measures to be taken to screen the activities from public roads." (Reproduced as written.)
Does the Tribunal have jurisdiction?
The site is zoned "General Farming" under the Shire of Merredin Town Planning Scheme No 1 (TPS 1 or Scheme). Clause 6.1.1 of the Scheme states that a person who desires to develop land for any purpose shall make application to the Council for planning consent. Clause 6.1.4 of the Scheme states that the expression "development" includes the deposit of waste materials on land. However, it is common ground that land filling of tyres is not listed in the use classes and is not included in the general terms of any use class in the Scheme.
Clause 2.2.4 of TPS 1 provides as follows:
"If a particular use is not listed in the use classes, and is not included in the general terms of any use class, then the Council shall, upon application to it, determine either:
(a)That the use shall be prohibited within the Scheme Area; or
(b)That the use may be permitted within one or more of the zones within the Scheme Area.
The Council shall, in the latter case, decide which of the use symbols shall apply and may impose any conditions or development standards it deems fit."
The use symbols referred to in cl 2.2.4 are the symbols identified in cl 2.2.2, namely, "P" (a use that is permitted if it complies with the relevant development standards), "PS" (a use that is not permitted unless special approval to it is given by the Council), "AP" (a use that is not permitted unless approval is given to it by the Council after advertising) and "IP" (a use that is not permitted unless it is incidental to the predominant use).
It is common ground that, although cl 2.2.4 involves a strategic planning decision, the Shire's determination that used tyre disposal be prohibited within the Scheme Area is a decision which involves "the exercise of a discretionary power by the Council under the Scheme", within the meaning of cl 6.10 of the Scheme. Consequently, the parties jointly contend that Mr Skiljan has a right to seek review of both resolutions of the Shire under cl 6.10 of the Scheme and s 236 of the PD Act. Although jurisdiction cannot be found merely by consent, and despite initial concerns expressed by the Tribunal in relation to the unusual strategic planning role conferred by cl 2.2.4, the Tribunal finds that it has jurisdiction to entertain an application for review of the Shire's first resolution and, if the Tribunal determines that the proposed use may be permitted within the zone, of the Shire's second resolution.
Shall the use be prohibited or may it be permitted?
The Shire contends that the Tribunal should affirm its strategic planning decision under cl 2.2.4 of the Scheme for planning and environmental planning reasons.
Planning considerations
The Shire contends that land filling of tyres should be prohibited in the General Farming zone, because it is inconsistent with the Shire's current and likely future planning for the area.
The objects of the Scheme include:
•"to reinforce the existing pattern of land uses within the District having regard to the present and future circumstances and to define by zoning the future land use and development types permitted and guide investment decisions of intending developers, public authorities, residents and business people"; and
•"to control, regulate and coordinate public and private development, the use of land and buildings and the carrying out of works in order to improve the welfare of the residents of and visitors to the District in relation to amenity, convenience, economy and attractiveness of the environment".
The policy statement for the General Farming zone in the Zoning and Development Table is as follows:
"This zone embraces the broadacre farming areas of the Shire. It is intended to protect the economic viability of those areas generally and to preserve the rural character and appearance of the area. The lot sizes shall be at the discretion of Council based on what is locally accepted as a viable farm unit, or where a non-farming use is proposed on the amount of land required for that purpose. Council may restrict the use of any general farming activity, and in particular piggeries, which cause obnoxious odours detrimental to the amenity of residents of the Merredin town site."
Clause 2.2.10 of the Scheme states that policy statements contained in the Zoning and Development Table are statements of general policy only and do not affect the obligation of the Council to consider the circumstances and merits of each particular case.
Mr Colin Connor, a consultant town planner who gave evidence on behalf of the Shire, considers that the proposed development is inconsistent with the policy statement for the zone. In particular, he considers that the proposed development would not preserve the rural character and appearance of the area. The rural character would not be preserved, because of the potential environmental impacts, which are discussed below, signage and vehicles accessing the site through the surrounding rural locality. Mr Connor considers that, although Pit 1, which is located in a vegetated area in the northwestern part of the site, would not give rise to any great potential for visual impacts, Pit 2, which is located centrally on the site, would give rise to a potential for visual impacts from the road and other properties. Mr Connor is also of the opinion that, if the Shire chose to permit a number of used tyre disposal facilities in the General Farming zone, the cumulative effect would undermine the rural character and appearance of the area.
The Tribunal considers that the land filling of tyres in the two pits which would be created by gravel extraction is not inconsistent with the preservation of rural character and appearance of the area.
The rural character of the immediate area includes the use of the site for mining over a period of 75 years. Although the proposed land filling is a separate use to mining, the mining activity gives rise to the potential for the land filling to take place. Provided that the potential environmental impacts of the land filling are appropriately mitigated and managed, the ultimate restoration of the landform by a combination of tyre disposal, placement of clean fill and overburden, contouring and seeding with local native plants, is consistent with the preservation of rural character.
The proposed development would occur in an isolated location, at a considerable distance from the road, and in a topographically higher position than the road, such that it will not be perceptible from the public domain. Proposed Pit 2 is located centrally on the site, some distance from adjoining properties. Although proposed Pit 1 is located adjacent to the northern and western boundaries of the site, it is in a relatively heavily vegetated portion of the site. While, in order to accommodate the development, the site should be securely fenced and may need signage at the street boundary, there is existing boundary fencing and signage at the street boundary indicating the presence of mining activities on the site.
Mr Alan Stewart, a consultant town planner who gave evidence on behalf of Mr Skiljan, considers that, although the site is isolated, it is highly accessible by generally sealed roads from Great Eastern Highway. The development involves a maximum of three vehicle trips in and three vehicle trips out per day. As noted earlier, the tyres would be deposited directly from the vehicles into the pits and would not be stored at the site.
In consequence, the Tribunal is satisfied that the proposed development is consistent with the preservation of the rural character and appearance of the area. The Tribunal is also satisfied that the proposed development would not have a detrimental visual impact on the amenity of the area.
Furthermore, the Tribunal finds that the proposed use is consistent with the object of the Scheme to reinforce the existing pattern of land uses within the District, having regard to the present and future circumstances, because the future circumstances will include the excavated gravel pits. The proposed use reinforces mining use by facilitating its rehabilitation, provided that the potential environmental risks associated with the land fill are appropriately mitigated and managed. Further, although the proposed use is unlisted, cl 2.2.4 provides a mechanism to facilitate its approval.
Clause 2.2.4 provides that, if the Tribunal determines that the use may be permitted within the zone, it shall decide which of the use symbols identified in cl 2.2.2 shall apply. The Tribunal considers that the most appropriate use symbol in relation to a use not listed is "PS", namely a use that is not permitted unless special approval to it is given by the Council.
Consequently, a determination in this case that the proposed use may be permitted within the zone, but is not permitted unless special approval is given to it, means that any further application for special approval for the land filling of tyres in the General Farming Zone would need to be assessed on its merits. Therefore, a determination in this case that the use may be permitted within the zone is not inconsistent with the preservation of the rural character and appearance of the area in light of the potential for other applications to be made.
Finally, Mr Connor considers that the proposed use is inconsistent with the objectives for the Agricultural Area identified in the draft Shire of Merredin Local Planning Strategy (February 2006) (draft LPS). The rural economy aim of the draft LPS is to protect productive agricultural land and encourage opportunities for new and innovative agricultural industries. The strategies to achieve this aim include:
•"ensure that the use and development of rural land is compatible with agricultural activity";
•"encourage plantations, that is, mallee oil, sandalwood trees and, in appropriate areas as a means of developing environmentally sustainable alternative agriculture industry"; and
•"promote diversification of the rural economy and encourage proposals that conserve soil, water and native vegetation and reduce salinity potential".
The draft LPS was publicly advertised until 21 July 2006. It is Mr Connor's task to review the public submissions and prepare a report for the Shire. He has reviewed some of the submissions and considers that it is unlikely that too many major changes will be made to the draft LPS. He, therefore, considers that the draft LPS is a seriously-entertained planning proposal which should be given due weight.
For reasons discussed in Nicholls and Western Australian Planning Commission [2005] WASAT 40 at [46] – [49], the Tribunal considers that the draft LPS is a seriously-entertained planning proposal. In Nicholls and Western Australian Planning Commission, the Tribunal, at [59], identified the following four principal criteria which should be utilised to determine the weight which should appropriately be given to a draft planning instrument or policy:
(1)the degree to which the draft addresses the specific application;
(2)the degree to which the draft is based on sound town planning principles;
(3)the degree to which its ultimate approval could be regarded as "certain"; and
(4)the degree to which its ultimate approval could be regarded as "imminent".
The planning approach reflected in the draft LPS is likely to be brought into force within the reasonably foreseeable future. However, the draft LPS should be given minimal weight in this case, because it does not relevantly address the circumstances of the specific application. In particular, the two pits which are the site of the proposed land filling are not productive agricultural land and are unlikely to be capable of development for new and innovative agricultural industries. Furthermore, the two pits occupy a relatively small portion of the site. Assuming that the remainder of the site is productive agricultural land, the use of the pits for land filling of tyres is not inconsistent with the protection of productive agricultural land or the encouragement of opportunities for new and innovative agricultural industries, provided that the potential environmental impacts of the land filling are appropriately mitigated and managed.
Environmental considerations
Dr Margaret Matthews, a strategic policy consultant in relation to waste management, gave evidence on behalf of the Shire. Dr Matthews has considerable, recent experience in relation to the potential environmental impacts associated with the land filling of tyres. Among other projects, she has undertaken a review, on behalf of the Department of Environment, of the management of used tyres at land fill sites, in order to develop guidelines for tyre land fill operations. In the course of this review, Dr Matthews considered the potential risks and impacts of tyre handling and burial, along with issues relating to the recovery of tyres from land fills. Dr Matthews' study found that the most commonly reported potential environmental impacts associated with tyre storage are:
•compounds leaching from the tyres and contaminating soil, groundwater and surface water;
•tyre fires causing the release of pyrolytic oils and other compounds into the soil and groundwater, smoke and contaminated run-off of water used to extinguish fire; and
•tyre piles forming breeding grounds for insects, particularly mosquitos, rodents and other animals.
The literature indicates that two of the most important factors in avoiding or reducing potential tyre leachate are not burying cut or shredded tyres and ensuring that contact with groundwater is avoided. Burial of cut or shredded tyres significantly increases the risk of soil contamination through tyre leachate, because of the exposure of metals. Dr Matthews considers that appropriate mitigation of leachate risk requires both the lining of the base of a landfill with an artificial liner or clay with a depth of 3.0 metres and the compression of the tyres by a process known as baling. Baling compresses tyres, thereby excluding air and water, without the need for cutting. It is a process available in Western Australia. The combination of a base layer and compression of tyres by baling would, in Dr Matthews' opinion, significantly reduce the potential for environmental harm from the proposal.
Mr David Kaesehagen, an environmental scientist, gave evidence on behalf of Mr Skiljan. Mr Kaesehagen agrees with Dr Matthews that burial of cut tyres significantly increases the risk of contamination through tyre leachate. However, Mr Kaesehagen considers that, if a 3.0 metre deep clay base were required, the risk of environmental harm would be acceptable without any other measure, because of the remote location of the site and the small number of bores in the area.
Under crossexamination, Mr Kaesehagen frankly conceded that he has only limited experience in relation to land filling of tyres and that Dr Matthews knows more about this area than he does.
The Tribunal prefers the evidence of Dr Matthews over Mr Kaesehagen in relation to the measures which are required in order to appropriately mitigate and manage the risk of leachate, because of Dr Matthews' considerable, relevant and recent experience in relation to the question before the Tribunal. Moreover, although the site is in an isolated location, consistently with the policy statement of the General Farming zone and the provisions of the draft LPS referred to earlier, it would be contrary to the strategic planning for the area to allow a development which has a potential to adversely affect agricultural viability of land on the site and in the locality. Further, for reasons discussed below, compression of tyres by baling would have significant benefits in mitigating other environmental risks.
Although tyres are very difficult to ignite, once burning, tyre fires are very difficult to extinguish. The literature indicates that tyres are able to burn in a land fill. Tyre fires usually have major environmental impacts, including air, water and soil pollution. Dr Matthews considers that compression of tyres by baling significantly reduces the risk of tyre fire. Although Mr Kaesehagen considers that fire risk is sufficiently mitigated by a requirement for a fire management plan, the Tribunal prefers Dr Matthews' evidence, for the reasons discussed earlier.
Finally, although the Shire also raised the potential environmental and amenity risks of mosquitos, pests and vermin, Dr Matthews and Mr Kaesehagen agree that the impact of the proposal would be relatively minimal in this regard, given the location of other water bodies, the fact that the tyres would not be mixed with food products and the isolated location of the site.
Dr Matthews and Mr Kaesehagen also agree that the location of the site is appropriate for the proposed use, because it is in a remote location away from populated centres, and much of the natural landscape has been modified.
In consequence of the foregoing discussion, the Tribunal finds that the proposed use may be permitted within the General Farming zone under cl 2.2.4(b) of the Scheme. The evidence demonstrates that, provided the potential environmental impacts are appropriately mitigated and managed, the use may be permitted. The Tribunal also finds that the appropriate use symbol for the proposed use in the zone is "PS", namely a use that is not permitted unless special approval to it is given by the Council.
Should special approval be given?
Clause 6.2.1 of the Scheme confers a discretion on the Shire (and the Tribunal on review), in the case of an application for permission to carry on a use marked "PS" in the Zoning and Development Table, to give notice of the application in accordance with the clause. Although the proposed use is not marked "PS" in the Zoning and Development Table, but rather is allocated that symbol under cl 2.2.4, it is appropriate that the Tribunal consider whether to give notice.
The Tribunal does not consider that notice is warranted in the circumstances of this case. The Shire did not contend that, if the Tribunal decides that the use symbol "PS" shall apply, advertising of the application is appropriate. Furthermore, because of the remote location of the site and the capacity to appropriately mitigate and manage the impacts of the proposed use, advertising is not necessary.
Clause 6.3.1 of the Scheme requires consideration of the provisions of the Scheme, the existing and likely future character and amenity of the neighbourhood, including the question of whether the proposed development is likely to cause injury to character and amenity, and any other matters the Council considers relevant.
In light of the discussion earlier in these reasons, the Tribunal is satisfied that the development application warrants special approval, subject to appropriate conditions.
Conditions
The Tribunal considers that conditions should be imposed which broadly reflect Dr Matthews' opinion as to appropriate mitigating and management measures.
The evidence indicates that the groundwater level on the site ranges from 25 to 50 metres. It is appropriate, therefore, that the 3.0 metre clay base should have its top no deeper than 22 metres below natural ground level.
Dr Matthews referred to draft guidelines prepared for baled tyres, for fire mitigation purposes, which recommend limiting the size of each cell within the pit to a maximum of 45 metres by 45 metres, with a minimum of 0.5 metre clean fill between layers, and a maximum of four layers, with a total depth of 13.9 metres. Dr Matthews was not crossexamined in relation to this evidence, although she did not raise a concern in oral evidence as to the base of the land fill being at 26 metres below ground.
There is capacity in a pit having a depth above clay base and below the top overburden of 21 metres to have more than four layers of compressed tyres. The Tribunal considers that, if the clean fill between tyre layers is 1.0 metre, five layers of up to 3.0 metres each can be appropriately accommodated, with fire risk mitigated by the compression of the tyres and the clean fill between cells and layers.
Other conditions should be imposed to reflect elements of the proposal and conditions agreed between the parties. In addition, a condition should be imposed to require the applicant/operator to provide an annual report to the Shire in relation to the progress of the land fill and subsequently of the rehabilitation.
Finally, Mr Skiljan submits that, as he is not aware of any currently available process for compressing/baling truck tyres, truck tyres should not be required to be baled. However, for reasons discussed earlier, baling of all tyres is necessary on the evidence to mitigate potential environmental harm. If truck tyres cannot be baled, then they cannot be land filled at the site.
Conclusion
The parties jointly contend that, in the circumstances of this case, the Tribunal has jurisdiction to make a strategic planning decision under cl 2.2.4 of the Scheme as to whether land filling of tyres use shall be prohibited within the Scheme Area or may be permitted within the General Farming zone. The Tribunal considers that a determination under cl 2.2.4 relevantly involves the exercise of a discretionary power under the Scheme and is, therefore, within jurisdiction.
The Tribunal has determined that the proposed use may be permitted within the General Farming zone. The evidence demonstrates that the use is consistent with the Shire's strategic planning for the area, given that it is proposed to take place within gravel pits created by mining, provided that potential environmental risks are appropriately mitigated and managed.
However, it should be emphasised that the location and nature of the use on the site is unusual. In particular, the unusual characteristic of the gravel extraction mining activity both provides the context for and facilitates the carrying out of the proposed use in a manner which is consistent with the existing and likely future strategic planning for the area.
Environmental issues have been properly raised by the Shire as environmental planning considerations in relation to both the strategic planning consideration and the development assessment consideration. However, the evidence of Dr Matthews demonstrates that the environmental issues can be properly managed.
Whereas the DA contemplates the dumping of slashed or cut tyres into the pits to a depth of 25 metres, the development approval that the Tribunal grants is conditioned on only tyres compressed by baling, which significantly reduces potential for leachate and fire, and not slashed or cut tyres, being land filled at the site. Furthermore, conditions require that the operator must ensure and satisfy the Shire that there is a 3.0 metre deep clay or comparable impermeable layer between 22 metres and 25 metres below natural ground level and that the pits are divided into cells and layers, broadly in accordance with Dr Matthews' recommendations. The operator must also provide to the Shire an annual report in relation to the progress of the land fill and subsequently the rehabilitation of the site, accompanied by dimensioned plans and dated photographs of the land fill, which demonstrates that the conditions are being complied with.
Orders
The Tribunal makes the following orders:
1.The application for review is allowed.
2.The decision made by the respondent on 15 March 2005, in accordance with cl 2.2.4(a) of the Shire of Merredin Town Planning Scheme No 1, that used tyre disposal be prohibited within the Scheme area, is set aside and a decision is substituted that land filling of tyres may be permitted within the General Farming zone with the application of the use symbol "PS".
3.The decision of the respondent made on 15 March 2005 to refuse development approval for a used tyre disposal operation at Lot 29191 on Deposited Plan 192930, McPharlin Road, Burracoppin is set aside and a decision is substituted that special development approval for land filling of tyres is granted subject to the conditions in Attachment A.
Attachment A
Conditions of development approval land filling of tyres at Lot 29191 on Deposited Plan 192930, McPharlin Road, Burracoppin
1.Tyres shall only be land filled at the site within Pit 1 and Pit 2 on the aerial photograph of the site showing proposed site layout which is Appendix 2 to the document entitled "Burracoppin mining and tyre disposal A & N Skiljan" prepared by Andrew King and Associates dated February 2003, and at a depth of between 22 metres below natural ground level and 1.0 metre below natural ground level.
2.All tyres land filled at the site must be compressed through baling off the site before being brought to the site. Tyres land filled at the site must not be slashed, shredded, cut or uncompressed.
3.Before any tyre is land filled at the site, the applicant or operator must ensure and satisfy the Shire that there is in place a clay or comparable impermeable layer at the base of the pit that is to be land filled of at least 3.0 metres in depth and having its uppermost surface no deeper than 22 metres below natural ground level, in order to preclude any leachate from entering groundwater. The applicant must advise the Shire at least seven days prior to commencing work on lining any pit to be constructed on the site and permit twice weekly inspections of the work by authorised officers of the Shire.
4.Tyres land filled at the site shall be land filled in cells no greater in area than 45 metres x 45 metres, with 2.0 metre wide firewalls of clean compacted fill between cells, and in layers no higher than 3.0 metres, with a minimum of 1.0 metre clean fill between layers, with a maximum of five layers.
5.All tyre bales deposited into a pit on the site to be covered by soil to a minimum depth of 1.0 metre within 24 hours of deposit.
6.No used tyre is to be deposited on the site until a fire management plan (FMP) has been approved by the Chief Fire Control Officer of the Shire and all aspects of the FMP that are required to be implemented prior to the commencement of the operations are implemented in accordance with the requirements of the FMP.
7.The FMP must be:
7.1prepared in conjunction with the local bush fire brigade responsible for the area in which the site is located;
7.2consistent with the principles of the Western Australian Hazardous Materials Emergency Management Plan; and
7.3incorporate the protocols identified in Pt 4 of the Environmental Issues Assessment prepared for the applicant by Ecoscape Pty Ltd, attached as Annexure DBK 1 to the witness statement of David Bruce Kaesehagen (Ecoscape report).
8.The requirements of the FMP must be complied with at all times.
9.No used tyre is to be deposited on the site until adequately designed stormwater settling ponds are constructed on the site. Such settling ponds must be designed so as to ensure that all surface water that collects on the site is directed away from tyre disposal areas and into the settling ponds.
10.No used tyre is to be deposited on the site until a water storage tank with a 72 000 litre capacity is installed on the site together with couplings compatible with standard issue Fire and Emergency Services Authority and local bush fire brigade plant.
11.The water storage tank required by condition 10 is to be maintained at full capacity at all times.
12.A road condition survey of McPharlin Road and South Burracoppin Road is to be undertaken at the cost of the applicant, and in consultation with the Shire as to its scope and adequacy, prior to the use of either road for transportation of gravel or used tyres.
13.McPharlin Road and the intersection of McPharlin Road with South Burracoppin Road to be upgraded in accordance with the recommendations of the road condition survey to a standard that will permit the safe passage of the vehicular traffic travelling to and from the site.
14.McPharlin Road and its intersection with South Buracoppin Road to be maintained by the applicant/owner of the site to the standard identified in condition 13 at all times that the roads are to be used for carting used tyres to and from the site.
15.No used tyre is to be deposited on the site until a site rehabilitation management plan (RMP) addressing the protocols referred to in Pt 5 of the Ecoscape report have been approved by the Shire.
16.The requirements of the RMP must be complied with at all times.
17.No used tyre is to be deposited on the site until a mosquito and vermin control plan has been prepared to the reasonable satisfaction of the Shire and implemented to the extent required prior to the deposit of tyres on the site.
18.The requirements of the mosquito and vermin control plan must be complied with at all times.
19.The Shire must be supplied with a copy of the results of the first six monthly groundwater testing within seven months of the commencement of the disposal of used tyres on the site and thereafter must be supplied with copies of new groundwater testing at six monthly intervals.
20.The site must be kept in a neat and tidy condition at all times.
21.No material or equipment that is not directly related to the disposal of tyres or the mining activities permitted on the site is to be stored on the site.
22.No used tyre must be deposited on the site until a dust management plan consistent with the applicant's proposal has been approved by the Shire and all aspects of that plan required to be implemented prior to the commencement of operations are implemented.
23.The dust management plan must be complied with at all times.
24.Warning signs to the satisfaction of the Shire are to be placed at the entry to the site and around each pit prior to the commencement of development and must be maintained at all times.
25.The existing boundary fencing is to be maintained in sound condition at all times and the applicant must construct and maintain a secure gate and fencing at the access to the land from McPharlin Road.
26.The gate referred to in condition 25 above is to be locked securely when no person is present on the site.
27.This approval is valid for a period of two years only. If development is not substantially commenced within this period, a new planning application must be made to the Shire before commencing or continuing development.
28.All tyres to be land filled at the site must be unloaded directly from the truck into the pit and must not be stockpiled on the site.
29.At least 1.0 metre of overburden and soil must be placed on top of the uppermost level of tyres to form a final ground level which replicates natural ground level and contours.
30.The final landform must be covered with topsoil or suitable growth medium and seeded with locally indigenous trees and plants. The operator must ensure that trees and plants are established on Pit 1 and Pit 2 and must maintain the trees and plants for at least two years after the completion of land filling in the relevant pit.
31.Trucks conveying tyres for land filling at the site may only enter and exit the site during daylight hours.
32.A maximum of three trucks conveying tyres to be land filled at the site may enter and exit the site per day.
33.No materials or waste products other than compressed tyres, clay or other impermeable material to form the base layer of the pits, and clean fill or soil may be placed into the pits.
34.The applicant or operator must provide an annual report to the Shire in relation to the progress of the land fill and subsequently the rehabilitation of the site which demonstrates that these conditions have been and are being complied with. The annual report must include dimensioned plans and dated photographs of the land fill carried out in Pit 1 and Pit 2. The first annual report must be provided on or before 20 October 2007 and annual reports must be provided thereafter on or before 20 October each year until at least three years after the completion of the rehabilitation of the site.
I certify that this and the preceding [61] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR D R PARRY, SENIOR MEMBER
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