SOUTHSEA SECURITIES PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION
[2005] WASAT 200
•10 AUGUST 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)
CITATION: SOUTHSEA SECURITIES PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2005] WASAT 200
MEMBER: MR D BROWN (SESSIONAL MEMBER)
HEARD: 23 MAY 2005
DELIVERED : 10 AUGUST 2005
FILE NO/S: RD 331 of 2005
BETWEEN: SOUTHSEA SECURITIES PTY LTD
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Industrial area - Caretaker's dwelling - State Planning Strategy - Protection of industry - Impact of industry - Impact of use - Public health risk - Precautionary principle
Legislation:
Metropolitan Region Town Planning Scheme 1959 (WA), s 5AA policy
Town Planning and Development Act 1928 (WA)
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant: Mr G Harjigabriel (Agent)
Respondent: Mr J Algieri (Agent)
Solicitors:
Applicant: Self-represented
Respondent: Self-represented
Case(s) referred to in decision(s):
Saint Ives Development Pty Ltd and City of Mandurah [2003] WATPAT 5
Tuna Boat Owners Association of SA Inc v Development Assessment Commission and Another; (2000) 110 LGERA 1
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
1This is a review of the decision of the Western Australian Planning Commission (the respondent) to refuse to allow development of a caretaker's dwelling and office (the development) at No 37 Dooley Street (corner of Henry Street), Naval Base (the site).
2The site is situated in the "Kwinana Industrial Area" (KIA) on the eastern side of Rockingham Road and can more particularly be described as lots 468 and 469 on certificate of title volume 2129 folio 512. Existing development on the site consists of a two level self-storage facility providing 24 hour a day access for owners renting storage space. The purpose of the application is to establish on-site security to prevent break‑ins and overcome problems associated with users of the storage facility entering the site and the storage units.
3On 21 July 2004 the applicant sought approval for the development from the Town of Kwinana (the local authority) as required under the provisions of Town Planning Scheme No 2 (the scheme) and on 2 December 2004 received conditional approval. Condition 11 of the approval required the following:
"The approval of the [respondent] must be gained prior to the commencement of development and the issue of a building licence."
Decision subject of review
4The applicant subsequently applied for the respondent's approval and, by notice dated 27 January 2005, was advised that:
"The application for approval to commence development in accordance with the plans submitted thereto (sic) is refused for the following reasons(s):
1.The proposal for a caretakers residence is contrary to the orderly and proper planning, the preservations of the amenities and is not in the public interest for the following reasons:
i)The land is zoned Industrial under the Metropolitan Region Scheme [MRS]. The purpose and intent of this zoning is to protect and promote the industrial development of the [KIA] from incompatible development including residential and related purposes;
ii)The land is located within the Kwinana Air Quality Buffer Zone where residential occupation is not supported; and
iii)An undesirable precedent will be created.
2.As a consequence of the above, the proposal is contrary to planning strategies and policies for the orderly development and use of the land in the [KIA] including, but not limited to, Commission Planning Bulletin No 70 (2004) "Caretakers" Dwellings in Industrial Areas [Bulletin 70].
5It is this decision that gives rise to the application for review.
Nature of the proposal
6The applicant gave evidence that the development would allow a more affordable way of providing site security. Until recently, security had involved periodic visits by a security company. There is currently no site surveillance, and security consists only of a fence and locked gate. Because of break‑ins, vandalism, substantial cost increases for professional security services, and difficulties with clients accessing the site, the applicant seeks to build accommodation for a 24 hour a day resident caretaker, who will supervise client access. The caretaker would be a retiree who would reside permanently on the site. The reduced cost of employing this person would provide cost-effective security. Some other person would be on site if the caretaker was absent.
Legislative framework
7The site is zoned "General Industry" in the scheme. A "Caretakers House/Flat" is listed as an "IP" use in this zone. The Scheme defines an IP use as:
"A use which will not be approved pursuant to this scheme unless Council can be satisfied that the proposed use will be dependant upon and incidental and subservient to the predominant use of the land as may be determined by Council."
8The site is zoned "Industrial" in the MRS and the current use is industrial in nature. At the time of the application the site was also affected by resolution No 46 made by the respondent pursuant to cl 32 of the MRS requiring that the local authority forward the application for development to the respondent for determination. Resolution No 46, (gazetted on 7 March 1986) recognised the significance of the KIA to the State and regional economy and the need to ensure its protection for industrial development. That resolution was amended by the respondent in December 2004 so that the application for the development no longer required determination by the respondent as previously required in the resolution. However, by resolution No 54 (gazetted 8 January 1999) the application was required to be determined by the respondent because it could be of State or regional significance, and it is this requirement that lead to the respondent's decision.
9Clause 30 (1) of the MRS requires the respondent (and the Tribunal) to have regard for the following in determining the application:
"…the purpose for which the land is zoned …under the [MRS], the orderly and proper planning of the locality and the preservation of the amenities of the locality…"
10The respondent has a number of policies which are relevant to the application and for which the respondent was required to have regard.
11Statement of Planning Policy No 1 ‑ State Planning Framework Policy (SPP 1) prepared pursuant to s 5AA of the Town Planning and Development Act1928 (WA) provides the broad State framework for use of land, and contains as one of its major principles:
"To actively assist the creation of regional wealth, support the development of new industries and encourage economic activity in accordance with sustainable principles."
12In particular SPP1 aims to "identify and secure industrial sites throughout the State". It emphasises the State and regional importance of establishing and protecting strategic industrial areas such as the KIA, and protecting them from incompatible uses. To this end it establishes in Pt A the following principles for land use decision-making:
"(a)preventing environmental problems which might arise as a result of siting incompatible land uses close together;
(b)providing suitable zoned and serviced land for industry, business and other employment and wealth generating activities; and
(c)avoiding land use conflicts by separating industry from incompatible uses."
13The Kwinana Regional Strategy (the KRS) ‑ adopted by Government in 1988 as the basis for planning the KIA and hinterland ‑ makes clear that the KIA is the State's most important industrial area, and provides that land uses within the air quality buffer zone should be primarily rural open space, non-polluting industry and other purposes which are not adversely affected by the impact of industrial emissions. It further provides that there will normally be a presumption against the further subdivision and development of land for residential and related purposes within the air quality buffer zone containing the site.
14The Fremantle‑Rockingham Industrial Area Regional Strategy (2000) (FRIARS) confirms the importance of the KIA as the State's premier industrial area. It indicates that the KIA "must be protected through the planning process which should maximise the potential for development of the area".
15Statement of Planning Policy No 4.1 Industrial Buffer Policy provides for the protection and long-term security of major infrastructure uses such as industrial zones, and for the safety and amenity of surrounding land uses. It indicates the need to protect industry, infrastructure and special uses from the encroachment of incompatible land uses, and to separate industry from residential uses. The policy also provides that defined buffers should be protected through development control.
Other planning considerations
16Bulletin 70 establishes the respondent's opposition to residential uses in industrial areas where this type of development might compromise the integrity of industrial areas and create an unacceptable residential environment. It recommends that caretakers' dwellings should generally be prohibited within zones intended to accommodate general, noxious or hazardous industries.
17The Review of the Kwinana Air Quality Buffer (2002) indicates the importance of a buffer for the KIA to protect industry from encroaching residential development which might threaten industrial activities. The review proposes a residential exclusion area that includes the site the subject of this application.
18The Environmental Protection (Kwinana) (Atmospheric Waste) Policy 1999 (the 1999 EPP) establishes upper levels of allowable airborne emissions for industrial and residential areas, and provides for a buffer between them.
19On 3 December 2004 the respondent granted permission for the local authority to advertise its draft Local Planning Strategy (LPS). The period for submissions closed on 27 May 2005 by which time objections were received in respect of proposed restrictions on further heavy or noxious industry in the KIA. The applicant submits that the prospect of these further restrictions supports the case for allowing the caretaker's dwelling. The respondent argues that because of the objections to the restrictions in the strategy it cannot be assumed that the respondent will accept the strategy as advertised, or that it will be adopted in its current form as the strategy for development in the area. The respondent argues that in the circumstances the draft strategy should be given little weight in determining the merit of development. Given the importance of the KIA as the premier site for heavy and noxious industry, and the fact that the objections come from the Department of Industry and Resources, and the Kwinana Industries Council, and since the draft LPS has yet to be adopted by the local authority and the respondent as the basis for planning in this area, there must be doubt about whether the restrictions will ever be incorporated in the LPS when finally adopted. Consequently, the draft LPS does not, in my view, represent a seriously entertained planning proposal. As such it should be given little weight in the matter before the Tribunal.
Applicant's position
20The applicant's position can be summarised as follows:
•The proposed caretaker's dwelling and office are incidental to the predominant use of the site as a self-storage facility, permitted by the scheme, and compatible with the zoning of the land in both the MRS and the scheme.
•Reliable and more cost-effective security is essential for the site and for clients accessing the self-storage facility, particularly outside of normal working hours. This is best achieved by having an on-site caretaker available 24 hours a day, 7 days a week to ensure clients can access the site and individual storage units. A caretaker's presence will also enhance the safety and security of the area, and help to discourage or prevent graffiti and burglaries.
•The Environmental Protection Authority (EPA) has reviewed the proposed development and resolved that its impact is not so severe as to require formal assessment.
•A caretaker's dwelling is unique to industrial areas, is not comparable to conventional residential development, and is therefore not inconsistent with SPP 1. The development also meets the standards for this type of development contained in Bulletin 70.
•The 1999 EPP shows the site to be located on the eastern edge of the policy area. Nothing in the 1999 EPP would restrict the establishment of new land uses in this area other than the degree of allowable emissions associated with them. The policy does not indicate that current emissions in the area are so great as to preclude domestic occupation. The site is also located outside the lowest risk contour around the KIA as defined in FRIARS.
Respondent's position
21The respondent's position can be summarised as follows:
•The site is part of the premier heavy and general industrial area in the State, and an area which should be protected from new uses that might prevent the continued operation or expansion of existing uses, or the establishment of new industrial uses.
•A caretaker's residence is a residential use that is incompatible with existing industry in the KIA, will compromise opportunities for further expansion northwards of heavy, general or noxious industry, and could compromise the expansion of general industry on nearby sites, contrary to the purpose and intent of SPP 1.
•The proposed development would establish a residential use in an established industrial area of strategic State and regional significance, contrary to the intent of SPP 1 and to the established principles for development of the area as defined in FRIARS.
•Permanent occupation of the site would expose the caretaker to cumulative levels of risk from accident and pollution that pose a danger to the life or health of the occupant. Further industrial development in the area may increase the level of risk, and incompatible uses such as that proposed could frustrate or prevent expansion of existing industry, and prevent the establishment of new industry.
Risk assessment
22Mr Keith Collins, an expert in risk management, with extensive experience relating to the KIA, and with the planning implications of locating residential development and caretakers' dwellings in industrial areas, gave evidence that there was no difference between a caretaker's dwelling and a conventional dwelling when it came to assessing risk from industry; both were subject to the same period of exposure. He indicated that there is risk from off-site sources which includes sudden impact fatalities from an incident at a major plant, or from transport of dangerous goods. This risk is cumulative, and is a separate consideration to the cumulative health risk from plant emissions. He indicated that EPA Guidance Statement No 2 ‑ Guidance for Risk Assessment and Management: Offsite individual risk for Hazardous Industrial Plants‑July 2000 (EPA Statement 2) established individual fatality risk criteria for residential areas, and set the upper level risk from sudden impact fatalities in these areas at 1 in 1 000 000 per annum, whereas the acceptable level of risk in an industrial area was 10 in 1 000 000.
Mr Collins indicated that a study in 1995 (Kwinana Industrial Area Risk Analysis Update ‑ Cumulative Study (1995 study) established the cumulative risk levels from all hazardous uses in the KIA, for both existing industry and an expected expansion southwards. At that time the level of risk for the site was below the upper limit set for residential areas; that is, 1 in 1 000 000. An extension of the 1995 study in 1998 (the 1998 study) looked at the risk impacts of extending major hazardous industry northwards toward Hope Valley; that is, in the direction of the site. He indicated that the cumulative risk level for the site from potential future northern expansion of heavy industry, establishment of a "Major Hazard Facility" and/or transport of dangerous goods by road or rail in the area, is expected to rise above the current acceptable level set by the EPA for residential areas. He indicated that EPA Statement 2 set the level of cumulative risk for the site at 10 in 1 000 000, which is ten times higher than the limit set for residential areas. Approval to the caretaker's dwelling would mean that the risk level for the site would have to be lowered to conform to the limit set for residential areas. This would restrict the expansion of existing industry, and establishment of new industry, and would be contrary to Government policy to protect industrial areas from residential encroachment. The northern expansion of heavy industry, and growth of other industry in the vicinity of the proposed development, would be "severely restricted or prevented" because of their cumulative impact on a residence; that is, the caretaker's dwelling.
Air quality
24Dr Paul Van Buynder, a doctor of medicine and senior environmental health specialist with the Health Department of Western Australia, gave evidence for the respondent that, because of community concerns, potential health impacts on the occupant of the caretaker's dwelling, and in the absence of certainty regarding exposure and risk, it was a mandatory requirement of public health that an adequate buffer be maintained between residential development and industry. He indicated that industries in the KIA operate either continually or for extended hours outside of normal business hours, and that serious health issues can result from co-location of housing and industry. He emphasised the need to maintain buffers between these uses, and that "no distinction should be made between a caretaker's residence and a residential dwelling".
25Dr Van Buynder indicated that emission standards for the KIA as set by the 1999 EPP divides the KIA into different zones for assessing objectives for air-borne sulphur dioxide and particulates, and that currently the ambient sulphur dioxide levels for the site were within acceptable limits. The 1999 EPP also sets dust limits, but there are no health guidelines for this form of measurement and no limits in the 1999 EPP for particulates of less than 10 microns (PM10) which is the national health standard associated with increased cardiorespiratory mortality and respiratory morbidity.
26According to Dr Van Buynder the 1999 EPP was limited in the standards it set, and this occurred because of an expectation at the time of its adoption that it would be subsumed into a state EPP for air quality, which was then (and is still) under development. He described this situation as inconsistent with air quality approaches at a national level as contained in the National Environment Protection Measures (NEPM) guidelines which include additional guidelines for particulates in the form PM10, nitrogen dioxide, carbon monoxide, photochemical oxidants (as ozone), and lead. He indicated that a current national "air toxics" review was likely to identify guidelines for other substances. He indicated that whilst air quality in the KIA buffer zone meets the requirements of the 1999 EPP, the EPP itself does not reflect current national standards, or proposed additions to them. The absence of adequate standards has led to an absence of rigorous monitoring for the full range of substances across the Kwinana air‑shed. Although study is underway to remedy the lack of data, uncertainty remains about the safety of the KIA air‑shed for residents.
Public health concerns
27Dr Van Buynder indicated that there is public concern about air quality in the Kwinana air‑shed and its effect on local residents, although no conclusive connection has been made between these concerns and atmospheric conditions. According to Dr Van Buynder the accepted principle in situations such as this is to establish appropriate buffers between polluting industry and vulnerable residents. Public health considerations, and concerns about current guidelines and monitoring, should include the potential of the current industrial zone for further development.
Amenity issues
28Dr Van Buynder gave evidence that a residential dwelling within the KIA would be exposed to noise levels above limits acceptable in residential areas, and to potential impacts from odour incidents. He also indicated that allowable exposure levels to pollutants and chemicals in industrial areas are higher than in residential areas because workers are only exposed to the impacts 40 hours per week. In residential areas the allowable level of exposure is lower because residents can be exposed to impacts 24 hours per day 7 days per week; worker cohorts in industrial areas are also healthier than the general public and do not contain vulnerable groups such as children. It was his view that allowing residential uses in industrial areas could lead to a lowering of acceptable standards to conform to residential standards, forcing industry into unreasonable and extensive technological responses. He stressed that, because of community concern, potential health impacts, and lack of certainty about exposure and risk, it was a mandatory requirement in terms of public health protection that an appropriate buffer zone be maintained between industry and housing. Dr Van Buynder was strongly of the view that any form of residential development in the KIA is unacceptable.
29Mr Robert Holmes, employed by the Environmental Protection Authority, gave evidence that the current sulphur dioxide levels for the KIA were within the acceptable levels for residential areas set by the 1999 EPP and the NEPM guidelines. He explained that the Kwinana EPP identified separate air quality zones and set standards for emissions depending on whether the area was industrial or residential. He highlighted the potential for further industrial development in the KIA, and the potential for sulphur dioxide levels to reach the maximum level set in the EPP and exceed the upper level set by the NEPM guidelines. His evidence suggests that because of prevailing winds the site is affected by impacts from heavy, polluting industry located to the south west of the site.
Comments
30The evidence shows that the State has identified the KIA as the premier heavy and general industrial area in the State, and a resource that is to be protected to allow industry to development to its full potential. The respondent, through its resolutions under cl 32 of the MRS, and its various policies relating to the KIA, recognises the importance of controlling non-industrial development in the area and to this end has established guidelines for assessment of development applications. The evidence also shows that:
•There is a lack of adequate data and monitoring that would allow the full range and level of airborne pollution in the area or its impacts on the site to be quantified;
•The cumulative risk to the health of an occupant of the caretaker's residence could be unacceptably high;
•A residence on the site could impact on further development of the KIA;
•The sulphur dioxide levels at the site are compatible with the standards for residential areas, and that these levels have improved over time with improved technologies, but that they could increase with further industrial expansion.
•The use is of a benign nature that does not present a threat to its neighbours, and could be allowed depending on its potential to disrupt existing and future industrial uses.
31Mr Harjigabriel, a land‑use planner giving evidence for the applicant, indicated that the development was not a conventional residence and was consistent with the respondent's Bulletin 70 with respect to allowing a caretaker's residence in industrial areas. He also put the view that a caretaker in an industrial area would, because of his occupation, accept a lower standard of amenity in terms of noise and odour. However, he was not able to say (understandably) whether a caretaker would accept a greater risk to his health than a person living in a residential area.
32Bulletin No 70 sets out the circumstances where a caretaker's dwelling might be acceptable in an industrial area, and makes clear in cl 5 the need to discourage residential uses in industrial areas that might compromise the integrity of industrial areas and create unacceptable residential environments. To this end cl 6 of the bulletin recommends this type of development generally be prohibited in areas intended for general, noxious or hazardous industry. Bulletin No 70 is meant to provide guidelines for the proper planning of industrial areas, and I can see nothing in the document that would preclude the proposed use unless it can be shown that it would compromise the integrity of the KIA and create an unacceptable residential environment.
33In my view the caretaker's dwelling is a residence and should be subjected to the same considerations as a house in a conventional housing area in terms of exposure to cumulative risk of physical harm from industrial plants and transport of dangerous goods. Mr Collins' evidence shows that, if the development was approved, the EPA acceptable upper level of risk in what is now an industrial area with an acceptable level of risk of 10 in 1 000 000 would be reduced to 1 in 1 000 000 to reflect the existence of the dwelling. According to Mr Collins, industries could not satisfy this level. Such an outcome would have the potential to hinder existing industry and future development of the KIA which, on the evidence, can expect to see the introduction of new and expanding heavy, general and noxious industry, in one form or another. In my view, this would be clearly at odds with the State's planning for the area, and would be good reason to prevent the introduction of a residential use into the industrial zone.
34With respect to the possible levels of pollution likely to be experienced by the site when new or expanded industry occurs in the area, Dr Van Buynder's evidence would suggest that there is insufficient evidence to determine the current level of risk to human health for people living 24 hours a day 7 days a week in the KIA, or the likely risk from further industrial development. He does however indicate that, properly tested for the full range of relevant air-borne substances (something that does not currently occur in this State, and is not provided for in the EPA criteria for pollution levels) the risk to human health would be shown to be unacceptable in public health terms, and higher than the national guidelines contained in the ambient air NEMP, to which the State is a signatory, and which will become compulsory in 2008. Notwithstanding the absence of scientific evidence to support the Health Department's position in this matter, the respondent argues that the site could currently experience an unacceptable level of pollution above the standard for residential development, and may have an even higher level when further polluting industrial development occurs.
Precautionary principal
35In the past the former Town Planning Appeal Tribunal endorsed acceptance of the 'precautionary principle' that scientific uncertainty should give rise to caution in granting development approval that may cause environmental harm. This position was confirmed in Saint Ives Development Pty Ltd and City of Mandurah [2003]WATPAT 5 where reference was made to a number of decisions confirming acceptance of the precautionary principle including a decision of the Full Court of the Supreme Court of South Australia in Tuna Boat Owners Association of SA Inc v Development Assessment Commission and Another; (2000) 110 LGERA 1, which expressed the precautionary principle in the following terms (6):
"The precautionary principle means that measures to prevent or to forestall damage to the environment should not be postponed merely because of the lack of full scientific certainty as to the need for such measures. That is, when assessing a development proposal as to which a relevant authority has an incomplete understanding of the risks to the environment, it is appropriate to have regard to such risks, and especially long-term risks, when assessing the proposal even though it is not known that they will eventuate. Relevant risks include the risk of medium or longer term harm emerging as the result of consequences of the development that are not presently known. In such a case the risk of harm from impacts not presently known must be carefully evaluated. In other words, one should proceed with care when the environmental impacts of a proposal are not all known. It is appropriate to take measures that will forestall or prevent the risk of damage to the environment from impacts that are not presently known or fully understood."
36This same precautionary principle is relevant to the current application where there is an incomplete understanding of the impacts of locating the use on this site. In this instance it is not that the proposed development might cause some as yet undefined risk to the physical environment, but that by allowing the application the development itself may be put at risk from the impacts of the industrial environment. The absence of scientific data, and uncertainty about the location and nature of further development in the KIA, prevents the current and future impact of industry on the residential use from being accurately established.
37The evidence of Dr Van Buynder indicates that a proper assessment of the full range of pollutants in the Kwinana air-shed cannot be made on current scientific data, but that the risk of a cumulative health impact is, in his opinion, high. Adoption in 2008 of revised NEMP guidelines and subsequent updating of the 1999 EPP guidelines for locating residential uses would, in his view, prevent the use locating on this site. Conversely, approval of the application would, under revised guidelines, prevent industry from expanding or locating in this area because of the presence of the residential use.
38On the evidence, I am satisfied that there is a real level of risk for an occupant of a residence on the site that might only be revealed through comprehensive testing of the full range of pollutants in the Kwinana air‑shed. I am also satisfied that the presence of the dwelling could result in allowable emissions for this area being reduced, to the detriment of industry. Such an outcome would be contrary to orderly and proper planning as expressed in the respondent's comprehensive plans and guidelines that have been formulated for the Kwinana area.
39Apart from the cumulative off-site risk from surrounding industry that makes residential occupation of this site unacceptable, I find that because of the possible risks to both the caretaker and to industry itself, the application for approval to the caretaker's dwelling should be dismissed.
Orders
40The orders of the Tribunal are:
1. The application for review is dismissed; and
2. The decision of the respondent is affirmed.
I certify that this and the preceding [40] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR D BROWN, SESSIONAL MEMBER
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