Smart and Town of Port Hedland
[2008] WASAT 74
•4 APRIL 2008
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: SMART and TOWN OF PORT HEDLAND [2008] WASAT 74
MEMBER: MR J JORDAN (MEMBER)
HEARD: 7 NOVEMBER 2007 (FINAL SUBMISSIONS RECEIVED 7 JANUARY 2008)
DELIVERED : 4 APRIL 2008
FILE NO/S: DR 453 of 2006
DR 269 of 2007
BETWEEN: JOHN SMART
Applicant
AND
TOWN OF PORT HEDLAND
Respondent
Catchwords:
Town planning - Development - Use not listed - Dumping of fill in existing hole on site - Notice issued under s 214(3) Planning and Development Act 2005(WA) directing removal of fill placed without planning approval - Application to have notice set aside - Application for retrospective planning approval - No independent advice of sampling of fill - Testing of samples for hazardous material - Composition of fill - Effect on use of land - Compaction and stability - Filled hole better use of land than recreating large hole - Amend s 214(3) notice to require conditions to be complied with or fill removed
Legislation:
Planning and Development Act 2005 (WA), s 214, s 252, s 255
State Administrative Tribunal Act 2004 (WA), s 51(1)(b)
Town of Port Hedland Town Planning Scheme No 5, cl 3.26, cl 4.1, cl 4.3
Transfer of Land Act 1893 (WA), s 70A
Result:
DR 453 of 2006 is allowed in part and the notice issued under s 214(3) of the Planning and Development Act 2005 (WA) is amended by requiring the fill be removed and the land restored to its former condition within 65 days of failure to comply with all the conditions imposed in the retrospective planning approval issued for the placement of fill in the fill site in the northwest corner of Lot 62
DR 269 of 2007 is allowed by the granting of retrospective planning approval for the placement of fill in the fill site in the northwest corner of Lot 62 subject to conditions including the fill being tested for composition and stability by appropriate experts to the satisfaction of the respondent
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Mr R Bairstow (Acting as Agent)
Solicitors:
Applicant: Self-represented
Respondent: Town of Port Hedland
Case(s) referred to in decision(s):
Drake and City of South Perth and Anor [2005] WASAT 271
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The applicant lodged two applications for review with the Tribunal. The first was an application for review of a notice issued by the Town of Port Hedland directing removal of dumped waste, including building rubble, broken concrete slabs, concrete blocks and metal, in and adjacent to a borrow pit in the northwest corner of Lot 62 Greenfield Street, South Hedland. The second application was for review of the Town's refusal to grant retrospective planning approval for the dumping of matter and materials in the pit on the land.
The Town's concern was that it had not been party to the process of the dumping of the material and did not know whether the fill included hazardous material and had been stabilized. This gave rise to concerns about the suitability of the land for future use.
The applicant submitted that the fill should be allowed to remain because testing had found that the fill was not contaminated and it had been stabilized by heavy machinery and flooding of fines into spaces.
The Tribunal found that it had not been demonstrated by independent expert evidence that the composition and stability of the fill were acceptable. The Tribunal did conclude, however, that it would be appropriate to issue a conditional retrospective planning consent for the development. The Tribunal considered that it would be proper use of the site if the hole were to be filled with inert material and made stable. A retrospective planning approval was granted subject to conditions including independent experts certifying to the satisfaction of the respondent that properly sampled fill had been found inert and that the fill was stable.
The Tribunal further determined that the notice issued should be retained but with the directions in it amended so that there would be available to the applicant a period to comply with conditions imposed under the retrospective planning approval. Beyond that period, if all the conditions of the approval were not met then the applicant would be required to remove the fill.
Introduction
Mr John Smart (applicant) lodged applications for review of two decisions made by the Town of Port Hedland (respondent, Town or Council) as a consequence of him proceeding to fill, with material including building rubble, broken concrete and bricks, a large hole at the rear corner of Lot 62 (Nos 153 155) Greenfield Street, South Hedland (the site or Lot 62). The two applications for review were:
1)DR 453 of 2006: brought by the applicant pursuant to s 255(1) of the Planning and Development Act 2005 (WA) (PD Act) for review of directions issued by the Council pursuant to s 214(3) of the PD Act. The direction required that the applicant was to, within 65 days, remove dumped waste (including rubble, concrete blocks and metal) in and adjacent to a borrow pit on the northwest corner of the site and to restore the land as nearly as practicable to its condition immediately before the development started; and
2)DR 269 of 2007: brought by the applicant pursuant to s 252(1) of the PD Act for review of the decision of the respondent to refuse an application for retrospective planning approval for the dumping of matter and materials of unknown quantity and composition (use not listed) on the site.
At a directions hearing on 8 August 2007, the Tribunal ordered that these two applications for review were to remain separate proceedings, but be heard together, pursuant to s 51(1)(b) of the State Administrative Tribunal Act 2004 (WA).
The site and the locality
The site, properly described as Lot 62 on Plan 23735 Certificate of Title Volume 2178 Folio 575, is in the Greenfield Street rural residential subdivision about 5 kilometres south of South Hedland residential area via Yarrie Road. From the junction of Greenfield Street and Yarrie Road, about 30 lots, 15 each side of the road, are passed to reach the site. The lots are similar in area to the site and most have a single house built on them. The houses are built on sand pads that appear to be at least 1 metre high. Greenfield Street is planned to extend south but has not yet been constructed beyond the site.
The site is at the western side of Greenfield Street. It has a frontage of 140 metres, a depth of 158 metres and an area of 2.2348 hectares. A house and associated outbuildings are erected adjacent to the southern boundary and dongas and caravans are placed in a rectangle in the centre of the lot. The hole in which the fill was dumped is located at the rear, north‑west corner of the site.
To the west of the Greenfields rural residential zone and abutting the site and other lots is a large lot over which the applicant says he has a mining lease.
Planning framework
The site is zoned "Rural Residential" under the Town of Port Hedland Town Planning Scheme No 5 (TPS 5). Clause 4.1 of TPS 5 requires planning consent for all development, with certain exceptions not relevant to this matter. For development in this zone, the Town requires side and rear setbacks of 10 metres.
The zoning table of TPS 5 lists permitted, discretionary and not permitted uses for each zone. The dumping of waste material as fill is not mentioned in the list of uses in the zoning table and cannot reasonably be included in any of the definitions of the different development categories. In circumstances where a use is not listed, the Council may, under cl 3.2.6 determine:
"(a)that the development or use is not consistent with the objectives and purpose of the particular zone or precinct and is, therefore, not permitted, or
(b)By absolute majority that the proposed development may be consistent with the objectives and purpose of the zone and an application for planning approval should be determined in accordance with Part IV, including advertising procedures of cl 4.3."
Section 214(1)(a) of the PD Act provides that a development is undertaken in contravention of a planning scheme if the development is required to comply with the scheme and is commenced otherwise than in accordance with the planning scheme. Section 214(2) provides that the responsible authority may give a written direction that the person undertaking the development stop. Section 214(3)(a) provides that the direction may require the person who undertook the development to remove or take up the development and at s 214(3)(b) restore the land as nearly as practicable to its condition immediately before the development started.
The development
The two matters the subject of the hearing are concerned with the placement of fill in a hole on the site. The applicant described the hole as being 30 metres by 15 metres with an undulating bottom because of patches of rock but with an average depth of approximately 2 metres (the hole). A sketch shows the hole as being 1 metre from the western boundary, although a visit to the site revealed the setback to be about 2 metres at one end, and 4 metres from the northern boundary. Into this hole were placed truckloads of the debris said to be from the demolition of the South Hedland Caravan Park. The applicant described the fill as being the mainly "breeze blocks" and concrete from the demolition of the ablutions block and the concrete from the pads associated with the onsite van sites. Some blue metal road base was also included.
Mr Smart described sidetipper trucks that would deliver material to the site and dump it on the ground. A backhoe would then be used to move the material around so that salvageable material such as copper piping could be salvaged and plastic reticulation pipe removed. The material was then further broken up, dragged and pushed into the hole and compacted by a steel‑tracked digging machine running over it. The filled area was then covered with the local pindan dirt, dug from the hole adjacent to the fill or scraped from nearby. The resultant ground level was slightly lower than the surrounding level of the lot to allow rain and flood water from cyclones to pond to assist in fines filtering down to fill any cavities.
A visit to the site by the Tribunal revealed at the northern end of the filled area, a hole about 15 metres by 2 metres and about 2 metres deep which was in part the remainder of the hole to be filled and an area excavated to provide dirt for covering the filled area. This section of the hole remains to be filled. The applicant said any extra dirt to completely cover the filled material to ground level would be obtained from the area for which he has a mining lease to the west of the site.
The applicant is seeking retrospective planning approval for development which is the placing of the fill in the hole and to have the s 214 notice requiring removal of the fill to be set aside.
Decisions of the Council
The notice issued by the Council on 7 November 2006 under s 214(3) of the PD Act (s 214 notice) states that:
"The Development referred to in Item 2 of the Schedule ('the Development') has taken place on the land.
…
TAKE NOTICE THEREFORE:
1You are hereby immediately required to remove the Development and to restore the land as nearly as practicable to its condition immediately before the Development started to the satisfaction of the Town within 65 days after the service of this Direction on you.
…
Item 2:The Development
Dumping of waste (including building rubble, concrete blocks and metal) in and adjacent to the excavated borrow pit located in the North‑West corner on the Land.
Item 3:Particulars of Contravention
The Development is in contravention of clause 4.1.1 of TPS 5 as planning approval of the Council of the Town was not obtained prior to the commencement of the Development stipulated in Item 2 of the Schedule."
Subsequent to the issuing of the notice, an application for retrospective approval was filed by the applicant. On 25 July 2007, the respondent then resolved:
"That planning consent is refused for the construction of the USE NOT LISTED - Retrospective Approval - Dumping of matter/materials of unknown quantity and composition at Lot 62 153-155 GREENFIELD STREET, SOUTH HEDLAND RURAL ESTATE 6722, as outlined in the application received 16/03/2007 and indicated on the submitted plans due to the following reason:
Insufficient information has been provided to enable the application to be appropriately assessed, and ultimately any approval of the application."
The issues
The Tribunal did not have before it any submissions or evidence on, and was not required to consider, how the hole came to be on the site or what happened to the pindan soil excavated from it. The directions of the s 214 notice require the applicant to remove the fill and restore the land "as nearly as practicable to its condition immediately before the development started". If this direction were complied with, there would be on the site the large hole that existed prior to the unauthorised development commencing.
In refusing the application for retrospective planning approval, the respondent had an emphasis different from that of the s 214 notice. The refusal reason given refers to insufficient information being provided for assessment and any ultimate approval of the application.
From the respective comments and the issues identified by the parties, the Tribunal considers the issues to be considered are:
1)Whether the applicant has demonstrated that the composition and stability of the fill are acceptable;
2)Whether retrospective planning consent should be issued for the development; and
3)Whether there are any reasons why the s 214 notice should be set aside or the directions amended.
Whether the applicant has demonstrated that the composition and stability of the fill are acceptable
Composition of the fill
Broken concrete slabs, old breeze blocks and other masonry could be partly seen at the surface of the fill during a visit to the site. The concern is what other items, particularly heavy metals, poisons and asbestos, not readily discernable to the naked eye might also have been included with the fill. There was at least one day when trucks not hired by the applicant dumped material from an unknown source on the site. These trucks were the subject of the photographs taken on one of the days a council officer attended the site.
It was Mr Smart's evidence that on two separate occasions there have been a series of samples taken from the fill for testing. He said that the samples for each of the series of tests were collected in a similar manner. As described by Mr Smart, a backhoe was used to dig holes in selected locations in the fill. Soil was then taken from near the top, the middle and the bottom of the fill visible in each hole and placed in piles. A sample bag was then filled from each of the piles. Mr Smart said those samples were sent to Perth to be tested for selected elements and asbestos.
No expert appeared to verify the method of sampling, nor were documents from such an expert tendered at the hearing.
First series of tests
Mr Smart said that the samples for the first series of tests were collected by Mr Muros, an ex‑employee of Western Geotechnics Group, a firm which specialises in soil sampling and compaction tests. The samples were sent by Mr Smart to Robin Salter & Associates, consulting engineers, in Perth, who sent them on to the Chemistry Centre of the Department of Industry and Resources for testing with a covering letter dated 23 May 2007.
Put into evidence were copies of test results conducted by the Chemistry Centre on three samples received 24 May 2007 described as "north, middle and south". One report by Mr Richard Clarke, principal research mineralogist dated 5 June 2007 with the reference 06F4190 stated that for each sample "asbestos not found". Some trace of glass fibre and some organic fibres were said to have been found. A second report with the reference 06E1841, dated 26 June 2007, gave concentrations in milligrams per kilogram of arsenic, cyanide and lead. This report was prepared by Ms Jenny McGuire from the Chemistry Centre.
Mr Smart produced a sketch of the north-west corner of the site with the outline of the hole drawn on it. Within the boundaries of the hole, Mr Smart had drawn three red dots with the key "soil samples".
Second series of tests
In response to comments from the Town that there was no evidence on who had taken the first samples or how it had been done and that there had been no tests for most heavy metals, Mr Smart arranged for a second series of tests. He said he engaged Mr Fred Williamson of Western Geotechnics Group and samples were taken on 2 August 2007. Photos were produced showing a man in an orange shirt and sunglasses standing next to a utility truck. A Western Geotechnics Group logo was on the door of the truck and his shirt. Another photograph has him standing next to plastic bags with a shovel. The submission was that the sample bags were sealed and next day sent to the Chemistry Centre in Perth. Ms McGuire at the Chemistry Centre tested samples received on 7 August 2007 for 19 separate elements, including heavy metals and poisons such as arsenic. The samples were described as north, east, middle and south. A report of 31 August 2008 had the reference 07E0229.
The meaning of the tests
To assist in understanding what the test results meant, the applicant put into evidence a copy of a document headed "Interpretation Report Lot 62 Greenfield Road Wedgefield Port Hedland" by Peter Keating BSc (Hons) PhD, managing director of Bioscience (attachment 'reply doc 2' of exhibit 4). The report said Bioscience was asked to provide an interpretation report of the results obtained by the Chemistry Centre as shown in the reports numbered 06F4190, 06B1B41 [sic] and 07E0229. The Bioscience report conclusion was that for the figures given for heavy metals, cyanide and asbestos "there is no reason to believe the site can be classified as a contaminated site under the Contaminated Sites Act (2003)".
Comment on composition of the fill
The respondent, had concerns about the fill including:
•that the samples were taken by an independent professional;
•that the samples were representative of the dumping over such a broad and deep area; and
•that the fill would not present an environmental or health problem in the short or long term.
Mr Smart's submission was that the photographs and the Bioscience report showed that the fill was acceptable and that there was a link between the samples, Mr Williamson and the laboratory tests. The report included the following:
"Material examined:
1.Photographs and a site map, dated 2 Aug 2007 showing the location of the excavation pits were provided, along with the contact details of Mr Fred Williamson, laboratory manager of Western Geotechnics Port Hedland branch who undertook the sampling.
2.Laboratory reports from the Chemistry Centre numbered 06F4190, 06E1B41 [sic] and 07E0229."
Subsequent to the hearing, the applicant sent a copy of a second Biotechnics report to the Tribunal and the Shire with the covering note stating "confirming Bioscience spoke to Mr Williamson".
The second Bioscience report is also dated 17 October 2007 and appears identical to the first except that it included the above quoted "Materials Examined", but had an additional sentence in point 1 reading "Mr Williamson has confirmed he undertook the sampling and each sample sent to Perth was a composite formed from [unreadable] sub-samples". There was no explanation of the difference in the two versions of the Bioscience report dated 17 October 2007. The second version was filed by the applicant in circumstances where the respondent had no opportunity to examine the report. A further concern of the Tribunal was that the samples with the references 06F4190 and 06E1841 were tested in May 2007 before Mr Williamson was engaged in August 2007.
The Tribunal accepts that the Chemistry Centre received samples and tested them. The results of the Chemistry Centre tests were examined by Bioscience and a conclusion drawn.
What remains a concern to the Tribunal is an independent confirmation of the link between the fill, taking samples, the transmittal of the samples and the samples received at the Chemistry Centre.
Mr Smart sent a further document to the Tribunal and the respondent after the hearing. This was received 16 November 2007 and had written on it "supplied by Fred Williamson on day of sampling" with no other explanation. It was a sheet with a Western Geotechnics label headed "Sampling Report - soil/aggregate/rock" dated 2 August 2007. The only address given on the sheet is "South Hedland Rural Estate". On the sheet it says "sketch (show details eg stock pile configuration, definition of lots, lot strata, blankets, carriage ways, changes, etc)". The sketch on the sheet is a circle within which there are four smaller circles labelled north, middle, south and east. An annotation states "samples taken from stock piles of excavated material from the locations shown". The report is unsigned. It is not known if this is the "site map dated 2 Aug 2007" referred to by Dr Keating. There is no other map of this date.
The Tribunal agrees with the respondent that the applicant had sufficient time to produce these two documents, and their authors, so that they could be examined at the hearing. The Tribunal received the two documents simply as documents but not as evidence of what they are purported to prove. The comment is made that because of the nature of the receipt and the content, these two documents have not been given any weight in forming a conclusion on the matter. The respondent, when asked to comment on the two documents, in addition to objecting to the Tribunal receiving them, also made the observation that they provide no comment on the stability of the fill.
Stability of the fill
Mr Smart contends that the fill has become stable. It was initially compacted by the large steel tracked digger running over it and then it was inundated for about eight weeks which would have moved fines into any gaps between the concrete pieces. A photograph with holes in the top of the fill was said to reveal how surface fill had been washed down into the spaces below and more pindan would be placed in these holes. Mr Smart said that the amount of dirt between the broken concrete was revealed when the sample holes were dug. It was his submission that when the additional half a metre of pindan was added to bring the fill up to ground level, there would be no problem with the stability of the area.
Mr Smart included with his evidence a letter written by Robin Salter of Robin Salter & Associates, consulting engineers, dated 6 March 2007 in which it was stated that they had been viewed the "various correspondence on the matter". It was not clear what correspondence had been viewed. Mr Salter said he had viewed the site in 2004 when advising on another matter. The opinion was offered that concrete can act as a stable fill, but the migration of fines into voids in the rubble was a problem. It was added that "inundation to allow silt and fines to fill these void zones is acceptable". The letter added that the fill would be acceptable provided "geotextile is placed over the ground once filled, to stop the fines migration in the above layer disrupting upper fill zones bearing capacity". The letter went on to provide advice on what fill would then be required to form a pad for building, how it would be drained and building techniques suitable for future construction on the site of the fill.
When asked at the hearing, Mr Smart described a geotextile membrane, not to prevent movement of fines, but one woven to allow movement of fines to fill gaps between the solid materials in the hole. The use of geotextile membranes was confused between Mr Smart and Mr Salter as to whether it was to assist or prevent movement of fines.
Mr Smart emphasised that much of the hole was within the setback area and could not be built on. The Tribunal noted that, as Mr Smart pointed out, if a building were later to be applied for, it would be necessary that a pad of at least 1 metre thickness be laid to raise the building above flood level and that compaction tests of the pad be carried out. Mr Smart initially said that he would place a notice on the title warning of the fill as suggested by the Council, but at the hearing said that after the sampling, he considered such a caveat was not necessary.
Of concern to the respondent was that there was no analysis of the stability of the profile of the fill. The respondent was also concerned that the area of fill not be sterilized from building because of uncertainty about whether acceptable building techniques could be employed.
A concern of the Tribunal is that any fill to restore the hole to usable vacant land be stable when completed so that it is not a potential problem for future owners, whether as a building site or open land. This requires certification from an appropriate expert looking at the site once filled. There is not yet any expert opinion of the stability of the fill in the hole.
Whether retrospective planning consent should be issued for the development
With the conclusions above reached on the first issue, the Tribunal does not consider that it would be an appropriate planning outcome for the applicant to be supported in his submission that unconditional retrospective planning approval be simply issued for the development that has been carried out on the site.
Mr Bairstow expressed the opinion that retrospective approval of the fill would create a situation in which building over the filled site could either not occur or at best would be significantly compromised from the usual standards that would apply. Sterilising an area from building or allowing a substandard area in which unusual measures would need to be taken would compromise orderly and proper planning because a significant area would have to be planned around.
The Tribunal is of the view that insisting on the fill being removed and the large hole reinstated would not be in the interests of orderly and proper planning. A 2 metre deep hole would also have to be planned around. There was evidence that during the annual wet season, and particularly after cyclonic rains, the hole would fill with water, which would create a hazard, particularly, as the applicant commented, because of the soft mud at the bottom. The Tribunal has formed the view that it would be sound use and management of the site to have the hole filled. The land could be more readily used for its zoned purpose of rural residential.
The concern is whether it would be appropriate to consider a conditional retrospective planning approval for the existing fill. The evidence does not provide support for the applicant's assertion that there is the required link between the fill, the sampling and the testing. The applicant insisted the people he engaged to assist him with the soil sampling were professionals. This might be so, but there was no independent evidence from those people or of any contact between these people and the Town on the methods being used. This evidence is considered necessary because the fill will not be visible once the final layer of pindan is placed on it.
The applicant pointed out that the hole was within the side and rear setback areas. This is relevant to the extent that building in the very rear corner of the building envelope would be unusual. This does not diminish, however, the need for any fill to be inert and stable, and certainly should not be considered to condone others creating borrow pits in the setback area.
The Tribunal has no reason to doubt the applicant's assertion that he has no desire to contaminate his land and that he has gone to some trouble to stabilise the fill. That he has been prepared to engage consultants is evidence of this. However, there needs to be created afresh independent evidence in support of the development because of the impact there could be from contaminated and unstable fill.
The respondent, as directed by the Tribunal, provided draft conditions that it considered should be imposed were the Tribunal persuaded that planning approval be granted. Mr Smart argued that no conditions were necessary because of the way he had filled the hole and the results of the tests. The Tribunal considers that there is a case for granting an approval, but subject to conditions being imposed that would establish where the fill is located, and whether it was stable and not contaminated. The respondent included conditions in its schedule that required this.
The respondent also listed a condition requiring the Council be indemnified against any future claim arising from the stability or composition of the fill. The Tribunal does not consider such a condition should be imposed. It is not usual planning practice that an indemnity be included with a properly conditioned planning approval. The respondent also recommended conditions that relate to works for the construction of a building pad and a restrictive covenant to bring attention to particular building methods required on the site of the fill. No building is proposed and conditions of this type can be imposed at the time of a building application. The Tribunal is of the view that a notice on title is required only to identify that there is an area of fill. A sign placed on the site was also suggested by the respondent, but if there were to be an endorsement on the title and because any future development would require Council approval, a sign is not considered to be an appropriate longterm measure.
It might be that conditions imposed on any retrospective planning approval might not be able to be met. There is in this instance a s 214 notice already in place. This could be amended to provide time for conditions to be met, but in the event that they are not met for the fill to be removed.
Whether there are any reasons why the s 214 notice should be set aside or the directions amended
In considering the s 214 notice, the Tribunal has had in mind the considerations set out in Drake and City of South Perth and Anor [2005] WASAT 271 (Drake) at [90] - [97] (which was concerned with a notice under s 10 of the Town Planning and Development Act 1928 (WA) now replaced with s 214 of the PD Act). The matters to be considered are interdependent and together give rise to a conclusion on whether or not the discretion should be exercised to give direction under s 214 of the PD Act. In this instance, the Tribunal has concluded that there should be direction under s 214, but with amended terms.
The first consideration is that in the interests of proper and orderly use of land planning law should be complied with. As noted in Drake, at [93] in the interests of equal justice this prevents a particular individual winning a private advantage others cannot enjoy. Damage may also be done to the environment in such circumstances, which it is the purpose of planning law to avoid.
The respondent said, and the applicant did dispute, that there are similar large holes on other lots in this rural residential zone. The Tribunal is of the view that all land owners should be subject to the scrutiny usually associated with a planning application. If development has commenced without an application, then a notice can require certain steps or the development must be removed and the site restored. In this instance, if steps are not taken then the fill should be removed.
A second consideration identified in Drake at [94] is important in that it refers to the impact of the contravention of the planning scheme on the affected locality and local environment. The development has contravened setback requirements of TPS 5, but it must be said that this was dictated by the location of the existing hole which is not an issue in these proceedings. The concern is the fact of the development itself. The development would not be noticeable once the fill is covered with the final layer of pindan and this is a concern. Unknown material at an unknown level of compaction would not be visible and this might have consequences for subsequent users. It is important that development not be apparent to the casual observer when of this type, and be completed to an acceptable standard.
A third consideration is the factual circumstances of the contravention of the town planning scheme. The applicant presented to the Tribunal as an owner who would not knowingly contaminate his land. Of concern to the Tribunal, however, is that at least on one occasion the truck of a third person drove uninvited onto the site and dumped loads of fill. How many loads of fill of unknown composition and from where is not known. If conditions are not complied with that reveal fill to be satisfactory then it should be removed.
Another consideration is the expense and inconvenience involved in remedying the contravention. The respondent ordered that the fill be removed and the site restored to how it was before the contravention. Digging out the fill and the respondent's requirement that it be dumped at its tip for a fee would be a cost but not in the view of the Tribunal one too great to be reasonably imposed. More significant would be the "cost" of there being recreated a large hole which would be a disadvantage and danger in the management of the site. The Tribunal is of the view that the cost to the applicant should in the first instance be that of expert assessment of the composition and stability of the fill in a process that includes at appropriate stages the involvement of the respondent.
If a s 214 notice is to remain, the Tribunal believes that directions in it should be amended so that there is available to the applicant a period to satisfy all the imposed conditions, including having independent persons certify to the satisfaction of the respondent that properly sampled fill has been found inert and that the fill is stable. Beyond that period, if the conditions are not complied with then the fill should be removed. It would then be necessary for the applicant to commence afresh the planning application process should he wish to fill with other fill the hole that would be recreated on the site.
Conclusion
On the first issue, the Tribunal does not consider it has been demonstrated that the composition and stability of the fill are acceptable. There was at least one day when unknown trucks dumped loads not organised by the owner. The first series of samples were not obtained and handled by an acknowledged professional company. The second series of tests were apparently obtained by a professional company, but the only evidence of this is essentially two photographs. There is not any acceptable evidence from this independent company on exactly what procedures were used and from precisely where the samples were taken. The Tribunal has accepted that the Bioscience report explains what the Chemistry Centre found in the samples it tested, but there is confusion in that report as to who was responsible for the samples.
On the second issue, the Tribunal has concluded that it would be appropriate to issue a conditional retrospective planning consent for the development which has been carried out and for which approval is being sought. The Tribunal considers that it would be proper and orderly planning if the hole were to be filled. It has been accepted that broken pieces of concrete and masonry, properly compacted with finer material filling any gaps, would be appropriate fill in this location on this site. The development would only be acceptable if it were certified that the fill was inert and not contaminated by asbestos, heavy metals or poisons. Any approval should also be conditional upon the fill being stable so that in the future should there be a building pad and structure placed over it, or even if it is simply left as vacant land, there is no subsidence which may become a hazard. Any future owner should have notice of the area of fill so any building foundations and services can be designed accordingly.
On the third issue, the Tribunal has found that there are reasons for retaining the s 214 notice but with the directions in it amended. The Tribunal believes that the directions in the notice should be amended so that there is available to the applicant a period to comply with planning conditions imposed including independent experts certifying to the satisfaction of the respondent that properly sampled fill has been found inert and that the fill is stable. Beyond that period, if the conditions of the approval are not met then the applicant would be required to remove the fill.
The Tribunal has appreciated that the respondent has approached this matter with caution because of the potential consequences of contaminated and unstable fill and the presence of other similar sized holes in the locality. The Tribunal has concluded, however, that it makes planning sense to have the hole filled in a suitable manner. It has been noted that the applicant has shown a willingness to make the effort of using suitable machinery and engaging experts. At the hearing the applicant argued that the testing and compacting done to date should be sufficient. What has been missing, however, has been any contact between the experts and the Town so that it can be objectively established that the fill is not contaminated and is stable. The necessary sampling and testing must be done afresh with the appropriate involvement of the Town if the development is to be allowed.
The Tribunal has decided that the applicant should be afforded the opportunity to establish the suitability of the fill by a conditional retrospective planning approval and by amending the directions in the s 214 notice.
Orders
In the matter of DR 269 of 2007:
1.The application for review be allowed and retrospective development approval be granted for the dumping of fill including building rubble, bricks and pieces of concrete in the hole in the north-west corner of Lot 62 Greenfield Street, South Hedland Rural Estate, 6722, subject to compliance with the following conditions:
(i)Within 30 days of the State Administrative Tribunal's decision the applicant provide to the Town of Port Hedland (the Town) drawings by a licensed surveyor of the area in which fill has been dumped and which still has to be filled (the fill site).
(ii)Within 30 days of the State Administrative Tribunal's decision:
(a)The applicant appoint a suitably qualified environmental or geotechnical consultant;
(b)The consultant compile, to the satisfaction of the Town, a suitable testing programme to ensure that the fill site is environmentally safe. The program should cover the following minimum points;
(i)The extent of the fill site;
(ii)The depth of the fill site;
(iii)The composition of materials of the fill site including testing for heavy metals, poisons and asbestos; and
(iv)A specified pattern and a number of random test sites within the fill site area.
3.Within 60 days of the Town being satisfied with the testing programme of condition 3, the testing programme is to be implemented in its terms and reported upon by the environmental or geotechnical consultant to the Town.
4.Within 60 days of the Tribunal's decision the unfilled area of the fill hole site to be filled to complete the development.
5.Fill placed in the fill site to complete the development is to be tested and found to be free of contaminants to the satisfaction of the Town.
6.Within 30 days of satisfying the conditions of planning approval the applicant is to, at his expense and to the satisfaction of the respondent, place a notification, pursuant to s 70A of the Transfer of Land Act 1893 on the Certificate of Title of the lot advising of the existence of the fill site and that the advice of the Town of Port Hedland must be obtained before any development on or adjacent to the fill site or any work is carried out that will disturb the fill site.
7.Within 90 days of the Tribunal's decision the applicant is to suitably stabilize the fill site using methods endorsed by the Town of Port Hedland or is to provide certification from a suitably qualified engineer or geotechnical expert that the fill site has been stabilized, to the satisfaction of the Manager, Planning.
In the matter of DR 453 of 2006:
1.Having regard to the planning approval now granted for the development, the application for review of the direction issued under s 214(3) of the Planning and Development Act 2005 by the respondent on 7 November 2006 be allowed in part by:
(i)Paragraph 1 under the heading "Take Notice That" being amended to read:
"You are hereby required to remove the Development and to restore the land as nearly as practicable to its condition before the Development started to the satisfaction of the Town within 65 days of failure to satisfy all the conditions imposed on the planning approval now issued for Lot 62 set out above in the decision of the Tribunal in the determination of the application for review reference DR 269 of 2007."
I certify that this and the preceding [67] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J JORDAN, MEMBER