SOUTHERN METROPOLITAN REGIONAL COUNCIL and CITY OF CANNING
[2010] WASAT 185
•2 DECEMBER 2010
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: SOUTHERN METROPOLITAN REGIONAL COUNCIL and CITY OF CANNING [2010] WASAT 185
MEMBER: MR D R PARRY (SENIOR MEMBER)
HEARD: 2 DECEMBER 2010
DELIVERED : EDITED REASONS DELIVERED ORALLY ON 2 DECEMBER 2010
FILE NO/S: DR 489 of 2009
BETWEEN: SOUTHERN METROPOLITAN REGIONAL COUNCIL
Applicant
AND
CITY OF CANNING
Respondent
Catchwords:
Town planning Development application Materials recycling facility to replace former facility destroyed by fire Fire risk and management Fire protection strategy Peer review Practice and procedure Compulsory conferences involving fire experts and fire experts and parties
Legislation:
City of Canning Town Planning Scheme No 40
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Contaminated Sites Act 2003 (WA), s 15
Planning and Development Act 2004 (WA), s 3(1)
Result:
Development approval granted subject to conditions
Category: B
Representation:
Counsel:
Applicant: Mr PC Doherty
Respondent: Mr MJ Hardy
Solicitors:
Applicant: Woodhouse Legal
Respondent: Hardy Bowen
Case(s) referred to in decision(s):
Nil
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REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
This case concerned a development application for a regional materials recycling facility for the recycling of domestic waste, including glass, paper, metal and plastics, to replace a former facility that was destroyed by fire. A key issue for consideration was whether the proposed measures with respect to fire management and risk were adequate and appropriate. The applicant commissioned a fire protection strategy and the respondent commissioned a peer review of the strategy.
The Tribunal conducted a compulsory conference before a member who had previously mediated the matter in which the fire experts retained by the parties discussed and reviewed the fire management strategy and prepared a joint statement. The Tribunal subsequently conducted a further compulsory conference before the same member in which the fire experts and parties agreed that the measures proposed in the fire management strategy were adequate and appropriate.
Following the hearing, the Tribunal gave an oral decision it which it granted conditional development approval. The Tribunal found that:
•the proposed use is consistent with the zoning;
•the proposed use is consistent with important aspects of the State planning framework concerning sustainable use and development;
•the site is classified by the Department of Environment and Conservation as 'remediated for restricted use', including the proposed use;
•the proposed development has similar setbacks, footprint and size to the former facility, but contains improvements to address fire risk and amenity considerations; and
•the development would be subject to an extensive and quite stringent set of enforceable conditions of approval.
The Tribunal's reasons, taken from the transcript and edited in minor respects, were as follows.
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Introduction
This is an application for review of the deemed refusal by the City of Canning (City) of a development application lodged by the Southern Metropolitan Regional Council (SMRC) for approval under the Metropolitan Region Scheme (MRS) and the City of Canning Town Planning Scheme No 40 (TPS 40) of a materials recycling facility for the recycling of domestic waste, including glass, paper, metal and plastics, on Lot Pt 85 Bannister Road, Canning Vale (site).
Site
The site is located at the western end and to the north of Bannister Road in Canning Vale. It has a total area of 10.54 hectares. It is bounded by Roe Highway to the north and a railway reserve to the south. There is a bus depot and a Water Corporation facility located to its northeast. The site adjoins the Canning Vale industrial area.
The closest residential area to the site is the suburb of Leeming which is located approximately 300 metres to the south-east, separated from the site by Roe Highway. The part of the site where the materials recycling facility is proposed is separated from this residential precinct by an area of remnant bushland on the site as well as Roe Highway.
SMRC operates a regional resource recovery centre on the site comprising, in addition to the proposed development, a green waste processing facility, a waste composting facility, an education centre, an auditing facility and an administration area. The site contains the concrete foundations of an original materials recycling facility that was destroyed by fire in June 2009. The proposed development would occupy the same footprint as the former destroyed materials recycling facility.
Whilst the fire that occurred in June 2009 was investigated by the West Australian Police arson squad and the Fire and Emergency Services Authority (FESA), its cause remains a mystery. The former materials recycling facility operated for some two years before it was destroyed by fire.
The site is zoned Industrial under the MRS and Mixed Business under TPS 40. However, the zoning under TPS 40 also includes additional uses, and in particular, the additional use of General Industry.
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Proposed development
The proposed development was the subject of a development application lodged in August 2009. The application proposed a fully enclosed steelclad building occupying the same footprint as the original materials recycling facility. That footprint is approximately 10,200 square metres. The proposed materials recycling facility provides for the sorting and separation of comingled recyclables, with the resultant paper, newspaper, cardboard, steel, aluminium and plastics transported along conveyor belts to be baled and thereafter used locally, interstate and overseas to make new products.
The City sought further information from SMRC, particularly in relation to the issue of fire and proposed methods to ensure that the fire that occurred in June 2009 would not recur. SMRC provided further information. However, the City's officers considered that it was insufficient to be able to make a determination in relation to the application.
SAT proceeding
Consequently, the proceeding was commenced as an application for review of the deemed refusal of the development application. Following the commencement of the proceeding, the matter was referred for mediation and two mediation sessions took place at that time. The Tribunal then required the respondent to file a statement of issues, facts and contentions and the applicant to file a responsive document. The Tribunal listed the matter for a final hearing over three days to commence on 2 August 2010.
In its statement of issues, facts and contentions dated 15 April 2010, the City identified four issues for determination in the proceeding, namely:
1) Is the proposed materials recycling facility capable of approval under the City of Canning Town Planning Scheme No 40?
2)Is the proposed materials recycling facility an appropriate land use on the site?
3) Is it appropriate to approve the materials recycling facility where the potential contamination of the land as a result of a catastrophic fire incident and the suppression methods employed has not been assessed?
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4)Are the measures proposed to be implemented by the applicant with respect to fire management and risk adequate and appropriate?
On 2 July 2010, the hearing date was vacated and relisted to commence on 2 November 2010. That occurred, in part, in consequence of a notice of classification issued by the Department of Environment and Conservation (DEC) in respect of the site under s 15 of the Contaminated Sites Act 2003 (WA) (CS Act). The notice classified the site as 'possibly contaminated investigation required'. The hearing was subsequently relisted to commence on 30 November 2010.
The DEC ultimately determined, after further investigation and assessment, that the site is 'remediated for restricted use' and so classified the site under the CS Act. In particular, the DEC determined that the site is suitable for the proposed development. In consequence of that determination, and further information and discussion at a compulsory conference on 15 November 2010, the City sought leave to delete the first three issues for determination as identified in the statement of issues, facts and contentions and the corresponding contentions supporting those issues. That application was not opposed and was granted.
Fire management and risk
The fourth issue, which relates to fire management and risk, was the subject of expert assessment and evidence in the proceeding. In particular, the applicant presented evidence from Mr Richard Hinch and Mr Maurice Tong. Mr Hinch is a fire investigator and fire safety auditor, and Mr Tong is also a fire investigator with extensive experience in relation to fire safety assessment. Mr Hinch prepared a fire protection strategy for the proposed facility. The executive summary of the fire protection strategy states as follows:
This fire protection strategy was developed to provide the Southern Metropolitan Regional Council [SMRC] with the best and most operationally practical building design that incorporates both passive and active fire safety systems for the proposed re-build of the Materials Recycling Facility [MRF] at the SMRC's Regional Resources Recovery Centre [RRRC] located at 350 Bannister Road[,] Canning Vale.
Although the final design and layout of the proposed MRF is not yet determined, the fire protection strategy for the re-build of the MRF is based on the requirements of the Building Code of Australia [BCA] and appropriate Australian Standards.
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The strategy considers the occupancy use of the MRF, the potential fire risks associated with the occupancy use of the building and determines the most practical means of achieving the desired fire safety outcomes based on the operational requirements of the MRF and the Performance Requirements of the BCA.
The strategy identifies three [3] main operational arrears [sic] within the MRF, it identifies the potential fire risks within those three areas and identifies the fire protection measures/systems and operational procedures to put in place to minimise the potential fire risk of each area. The three specific areas identified are, [1] the Waste Receival and Presort Floor; [2] the Processing Floor [includes the Baled Product Despatch Area]; and [3] the Finished Product Area.
The passive fire protection methodologies include locating the electrical motor control cabinets in a specially designed airconditioned room attached externally to the MRF building, carrying the electrical supply cables to the fixed plant/equipment via approved cable trays, and when not in use, parking all mobile plant in a designated area.
Active fire systems will include a full[y] automatic fire sprinkler system throughout the building that complies with the requirements of the BCA and appropriate Australian Standards and a fully automatic fire alarm system that incorporates infrared CCTV and triple spectrum optical fire detectors to be monitored by FESA or other designated monitoring authority.
The strategy also requires that all large mobile plant that operates within the MRF be fitted with engine compartment fire detection and suppression systems.
The strategy has also considered potential fire risks external to the MRF, such as waste collection/delivery vehicles, deliberate fires and bushfires, and where appropriate, makes recommendations to minimise these potential fire risks.
The Fire Protection Strategy links directly to the Southern Metropolitan Regional Council's Fire Safety Management Plan [FMSP] for the MRF; the FMSP for the MRF has been developed as part of an overall Risk Management Plan for the Regional Resource Recovery Centre in Canning Vale.
The FMSP includes key performance indicators that will be used to monitor fire safety at the MRF when it is rebuilt.
The fire protection strategy was subjected to a peer review by Mr Richard Welsh, a fire safety engineer retained by the City. In his witness statement dated 11 November 2010, Mr Welsh raised several issues concerning the fire management strategy that required
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further clarification by Mr Hinch. The fire experts attended a compulsory conference on 17 November 2010 conducted by the member of the Tribunal who had previously mediated in the matter, and the experts subsequently prepared a joint statement to assist the Tribunal based on their discussions at the compulsory conference, indicating the matters upon which they agree, the matters upon which they disagree and the reasons for any disagreement.
The experts' joint statement dated 23 November 2010 was presented to the Tribunal and to the parties on 24 November 2010. The fire experts agreed in their joint statement that the proposed fire management strategy would be an appropriate strategy for the proposed development if certain specified issues were dealt with. These issues included, principally, the provision of further information in relation to specific matters by Mr Hinch and confirmation by FESA as to whether the Planning for Bushfires Protection Guidelines (2nd ed, 2010) is applicable to the proposed development.
As a result of the receipt of the joint statement by the fire experts, the Tribunal conducted a directions hearing on 25 November 2010 in which it invited FESA to provide advice on the matter referred to by the experts, and referred the matter for a further compulsory conference on 30 November 2010 in order for the fire experts to be able to confirm at that conference that they had all of the information necessary to express concluded views and for the parties and the fire experts to discuss, and if possible reach agreement in relation to, conditions subject to which the application could be approved if the Tribunal decides to grant development approval in the exercise of planning discretion. The Tribunal also relisted the hearing to take place today, 2 December 2010, so that there would be sufficient time for the compulsory conference to take place on 30 November 2010 and for the parties to have the opportunity to consider the outcomes of the compulsory conference.
In the meantime, on 26 November 2010, Mr Hinch revised the fire management strategy, it appears, to reflect matters discussed in the process that I have described. On 29 November 2010, the Tribunal received advice from FESA stating its view that the Planning for Bushfires Protection Guidelines is not applicable to the proposed development.
On 30 November 2010, the fire experts and the parties attended the compulsory conference. The fire experts agreed that they had all of the
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information they needed to express concluded views and they agreed that the revised fire management strategy is appropriate for the proposed development. The parties reached agreement in relation to all conditions, other than one, in the event that the Tribunal determines to grant development approval. The parties then produced a document entitled 'Unobjectionable Conditions' that contains the conditions that they agree should be imposed if the Tribunal decides to grant approval. I will return to the one condition in dispute shortly.
Assessment of proposed development
In consequence of the process that I have described, the parties agree that there is no longer any substantive issue requiring determination. In particular, the City agrees that the four issues that were originally identified in the statement of issues, facts and contentions have been satisfactorily addressed by the process. While the City does not consent to the grant of development approval, it does not oppose the grant of development approval by the Tribunal. Significantly, it is agreed by the parties, based on the advice of the fire experts, that the measures proposed to be implemented by SMRC in the form of the fire management strategy prepared by Mr Hinch and revised on 26 November 2010 to address fire management and risk are adequate and appropriate.
In my opinion, the proposed materials recycling facility warrants approval in the exercise of planning discretion under the MRS and TPS 40 for the following reasons.
Firstly, the proposed use is consistent with the Industrial zoning of the site under the MRS, and the zoning under TPS 40, which, as I have noted, specifically provides for the additional use of General Industry on the site. In this regard, I accept the evidence of Mr Stephen Allerding, a consultant town planner called on behalf of SMRC.
Secondly, the proposed use is consistent with important aspects of the State planning framework concerning sustainable use and development. State Planning Policy No 2 Environment and Natural Resources (SPP 2) contains in cl 4 objectives including 'to promote and assist in the wise and sustainable use and management of natural resources'. SPP 2 is divided into a series of general and specific policy measures. One of the policy measures in cl 5 includes consideration of greenhouse gas emissions and energy efficiency. SPP 2 recognises the importance of ensuring that decisionmaking takes into account the need for the reduction of greenhouse gas emissions by means of or including increasing energy efficiency. An important provision of SPP 2
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under cl 5.1 is that planning decisionmaking should 'Actively seek opportunities for improved environmental outcomes including support for development which provides for environmental restoration or enhancement;'. The proposal is plainly consistent with these provisions of SPP 2. It will result in less landfill and the appropriate reuse of materials.
The proposal is also consistent with the Western Australian State Sustainability Strategy (Sustainability Strategy) that was published and endorsed by the cabinet in 2003. The Sustainability Strategy contains as its fourth goal the following:
Plan and provide settlements that reduce the ecological footprint and enhance quality of life at the same time [by] … [r]educing and managing waste.
The strategy aims to develop 'a Strategic Framework for Waste Management, including detailed plans for each waste stream (including hazardous waste), towards zero waste by 2020'. In order to implement this strategic direction to achieve zero waste, the strategy identifies as important the prevention of waste generation, the maximising of the recovery and recycling of resources from waste, as well as making improvements in the residual waste stream. Again, the proposed development is plainly consistent with the strategy and is an important means by which the strategy is to be achieved in southern Perth. Mr Allerding said in his witness statement that 'the proposal to establish the new MRF that actively seeks the abatement of greenhouse gas emissions and a more sustainable use of resources meets the general and specific objectives' of the State planning framework.
Thirdly, the site is now classified by the DEC as 'remediated for restricted use', including the proposed use of the site.
Fourthly, as Mr Allerding said, 'The proposed new MRF is near identical to the original MRF in terms of its setbacks, footprint and size, however important changes have now been made to address fire management'. The opportunity has been taken as a consequence of the need to reinstate the facility following the fire to upgrade the technology of the materials recycling facility. Mr Phillip Waddington, who has experience in the design, installation and commissioning of such facilities, gave evidence that the proposed design 'will be the most advanced, efficient and safe MRF in Australia' and 'will embrace the world's leading edge technology for MRFs'.
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Fifthly, in relation to fire management, as noted earlier, the fire management strategy is considered by the fire experts to be adequate and appropriate.
Sixthly, as Mr Allerding also said, 'In terms of the preservation of the amenity of the locality the operation of the new MRF is a relatively benign use in terms of noise and dust and to the extent that they are created, they will be substantially confined to the new MRF building'. Mr Waddington observed the development includes a 'misting system' to will settle airborne dust to the ground and have a 'comprehensive dust extraction and collection system'.
Finally, the proposed development would be subject to an extensive and quite stringent set of enforceable conditions of approval. The conditions require the operator to commission and implement management plans by suitably qualified and independent experts in relation to stormwater and surface water management, pest control management, management of litter and mitigation of noise. The conditions also require the implementation of the fire management strategy that I have referred to. Conditions 12 to 15 state as follows:
12.If any complaint is made to the Applicant's complaints hotline (telephone number 1300 556 726) (Hotline) in relation to the MRF, the Applicant shall, within 72 hours of the receipt of that complaint, notify the Respondent of the making of that complaint.
13.By 31 July each year, the Applicant (or operator) must submit to the Respondent a report (Report), for the previous financial year, that includes:
(a)the number and type of complaints referred to in condition 12 and whether and how such complaints have been resolved;
(b) a report from an accredited or qualified fire engineer or FESA on:
(i)any significant fire or fire[]related incident within the MRF;
(ii)measures taken to deal with those fires or fire[]related incidents, including whether or not the attendance of the fire brigade or service was required; and
(c)the result of any:
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(i)testing of the emergency evacuation system and drills;
(ii)fire safety audits; and
(iii)reviews of the FMS.
14.Not more than once in every 6 month period, for a period of 2 years from the date of commencement of the use of the Development, the Applicant will, (in consultation with the Respondent) appoint a suitably qualified and independent town planner (Monitor) to provide a written report (Report) on whether the Respondent has, in 6 months preceding the date of appointment of the Monitor, operated the Development in compliance with these conditions.
15.The Respondent shall meet the costs of each Report to a maximum of $1,500 in relation to each Report, unless the parties agree to the contrary in writing.
These conditions are unusual in their stringency. Conditions of this nature are not normally imposed on planning approvals. However, I am satisfied that they are reasonable and appropriate in the circumstances of this case, having regard to the nature of the proposal, the fact that they are not opposed by the applicant, and the fire incident in 2009, the cause of which remains a mystery.
The one condition in the 'Unobjectionable Conditions' that the parties have a dispute in relation to concerns the hours of operation of the proposal. The parties are in agreement that if the application is to be approved, then the development can operate Monday to Saturday. SMRC proposes commencement of operation at 6 am whereas the City proposes 7 am, and the applicant wishes to operate until 10 pm whereas the City proposes that the hours be restricted to 7 pm in the evening. SMRC contends that the hours of operation are necessary because it will operate two shifts of eight hours each, one from 6 am to 2 pm and the second from 2 pm to 10 pm. SMRC says that two shifts will be necessary to accommodate the throughput anticipated for this facility. SMRC also notes that these hours are substantially the same hours as were in operation prior to the fire and that it has not received any complaints in relation to the hours of operation or the consequences of the hours of operation.
I am satisfied that it is appropriate to grant approval for the hours sought by SMRC, given the previous history of use and the significant distance between the proposed facility and the closest residential premises on the far side of Roe Highway. The evidence also indicates that,
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to operate in a satisfactory manner in terms of impacts, including noise impacts, the development would have to comply with environmental legislation in addition to the planning approval. For those reasons, I am satisfied that operating between 6 and 7 in the morning and between 7 and 10 in the evening, Monday to Saturday, does not give rise to any unreasonable amenity or environmental impact.
Conclusion
The parties are to be congratulated for the constructive and sensible way in which they have proceeded in the matter. The City properly identified environmental planning issues in its statement of issues, facts and contentions in April 2010. It indicated that it did not have sufficient information in order to be able to make a decision. The development application is obviously a major application concerning a facility in relation to which there may well have been some controversy in consequence of the unexplained fire. For the City to have sought detailed information in relation to fire management was understandable and appropriate.
During the course of the proceeding, the information necessary for an informed assessment of the application, and to appropriately regulate the development if approved, was obtained through the processes that I have outlined, in particular the mediation process and the commissioning of the fire management strategy and the peer review of the strategy by Mr Welsh. The final part of the process, namely, the compulsory conference between the fire experts and subsequently the compulsory conference involving the fire experts and the parties, resulted in agreement as to appropriate and quite stringent conditions to regulate the development. Having initially identified the issues in the statement of issues, facts and contentions, the City recognised that circumstances had moved on to the point where those issues were not serious matters for consideration or determination.
The processes that I have referred to have enabled an informed assessment of the application and the approval of the proposal. The proposal is an important regional materials recycling facility which facilitates the key objective in s 3(1) of the Planning and Development Act 2005 (WA) to promote the sustainable use and development of land in the State. As a result of the processes that have occurred during the course of this proceeding, that objective can be met at the site in a manner which is nevertheless acceptable in terms of amenity and environmental
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impacts and in a manner that appropriately addresses and mitigates the risk of fire.
Orders
For these reasons, the Tribunal makes the following orders:
1.The application for review is allowed.
2.The deemed decision of the respondent to refuse development approval for a materials recycling facility for the recycling of domestic waste - including glass, paper, metal and plastics on Lot Pt 85 Bannister Road, Canning Vale is set aside and a decision is substituted that development approval is granted under the Metropolitan Region Scheme and the City of Canning Town Planning Scheme No 40 subject to the following 15 conditions:
1)The Development shall comply with and be carried out in accordance with the plans submitted by Allerding and Associates dated 25 February 2010 and subject to any amendments or alterations necessitated by the Fire Management Strategy (FMS) referred to below (Approved Plans).
2)The Development may operate from 6am until 10pm Monday to Saturday. The operator shall ensure that these hours are adhered to. Outside these hours the operator may clean, maintain and repair the Development (including the structure of the building and any vehicle, plant and equipment). Nothing in this paragraph restricts the operator's ability to respond to a fire or other emergency.
3)The applicant shall implement the FMS prepared by Ric Hinch & Associates dated 26 November 2010 (FMS), a copy of which is attached hereto.
4)Prior to the issue of the building licence in respect of the Development, the Applicant (or operator) shall ensure the:
(a)preparation of a stormwater and surface water management plan by a suitably qualified and independent engineer to ensure that:
(i)no washings, industrial waste or waste water are permitted to enter into storm water drains; and
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(ii)any activity with the potential to contaminate the storm water system, is to be isolated and is not permitted within the hard stand area;
(b)preparation of a management plan by [a] reputable pest control company addressing the control of vermin on the Site;
(c)preparation of a management plan addressing the control of litter on the Site; and
(d)preparation of a noise management plan by a suitably qualified and independent acoustics consultant addressing and controlling the emission of any noise arising from the use and operation of the Development such that it is not offensive to sensitive use.
5)The applicant shall implement each of the management plans referred to in the previous paragraph.
6)Car parking is to be provided in accordance with the Approved Plans. Approved car parking areas must be paved, sealed, marked and drained and thereafter maintained to the reasonable satisfaction of the Respondent's CEO to accommodate and be available at all times for all workforce, company and visitor vehicles.
7)Waste and baled materials shall be stored only within a building or within a sealed waste container, except for waste metals and glass, which may be stored in unsealed containers.
8)Landscaping, as outlined on the Approved Plans is to be established prior to the Development first becoming occupied or commencing operations, and be thereafter maintained in reasonable condition. Landscaping is to be protected by kerbing or similar barrier.
9)Any pollutants emanating from chemical spills or the wash down or maintenance of any vehicle or equipment on Site shall be captured and removed from the Site.
10)All external walls less than 21 metres from the alignment of any street boundary shall have a minimum 2 metre high masonry, concrete or glass façade unless otherwise approved by the Respondent's CEO.
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11)The proposed development [is] to be connected to the Minister's sewer, to the satisfaction of the Water Corporation. If industrial waste is to discharge to sewer, a permit will be required by the Industrial Waste Section.
12)If any complaint is made to the Applicant's complaint hotline (telephone number 1300 556 726) (Hotline) in relation to the MRF, the Applicant shall, within 72 hours of the receipt of that complaint, notify the Respondent of the making of that complaint.
13)By 31 July each year, the Applicant (or operator) must submit to the Respondent a report (Report), for the previous financial year, that includes:
(a)the number and type of complaints referred to in condition 12 and whether and how such complaints have been resolved;
(b)a report from an accredited or qualified fire engineer or FESA on:
(i)any significant fire or fire[]related incident within the MRF;
(ii)measures taken to deal with those fires or fire[]related incidents, including whether or not the attendance of the fire brigade or service was required; and
(c)the result of any:
(i)testing of the emergency evacuation system and drills;
(ii)fire safety audits; and
(iii)reviews of the FMS.
14)Not more than once in any 6 month period, for a period of 2 years from the date of commencement of the use of the Development, the Applicant will (in consultation with the Respondent) appoint a suitably qualified and independent town planner (Monitor) to provide a written report (Report) on whether the Respondent has, in 6 months preceding the date of appointment of the Monitor, operated the Development in compliance with these conditions.
15)The Respondent shall meet the costs of each Report, to a maximum of $1,500 in relation to each Report, unless the parties agree to the contrary in writing.
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I certify that this and the preceding [56] 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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