TAPPER and SHIRE OF SERPENTINE-JARRAHDALE
[2019] WASAT 144
•31 DECEMBER 2019
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: TAPPER and SHIRE OF SERPENTINE-JARRAHDALE [2019] WASAT 144
MEMBER: MS R MOORE, MEMBER
HEARD: 2 OCTOBER 2019
DELIVERED : 31 DECEMBER 2019
FILE NO/S: DR 252 of 2018
BETWEEN: EDNA TAPPER
Applicant
AND
SHIRE OF SERPENTINE-JARRAHDALE
Respondent
Catchwords:
Town planning - Retrospective application for the placement of fill - Refusal - Whether sufficient information provided to demonstrate that fill is clean and uncontaminated - Whether sufficient information provided to demonstrate that fill will not have a detrimentally impact on the environment
Legislation:
Metropolitan Region Scheme
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, cl 1, cl 60, c 61, c 65, c 67
Planning and Development Act 2005 (WA), s 252(1)
Shire of Serpentine-Jarrahdale Town Planning Scheme No 2, cl 1.4, cl 1.6, c 5.1, c 5.1.1, cl 5.10, cl 6.1, cl 6.1.1, cl 6.1.2, Pt 5, Pt 6
Result:
Application for review dismissed
Decision of respondent affirmed
Category: B
Representation:
Counsel:
| Applicant | : | Mr A Ashe (acting as agent) |
| Respondent | : | Ms O'Brien (acting as agent) |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | N/A |
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
These proceedings involve an application brought by Mrs Edna Tapper (applicant) pursuant to s 252(1) of the Planning and Development Act 2005 (WA) for review of the decision made by the Shire of Serpentine‑Jarrahdale (Shire or respondent) on 9 December 2016 to refuse development approval for the placement of fill at No 458 (Lot 3) Gossage Road, Oldbury (site).
Background
The site the subject of these proceedings is used as a pet food abattoir. Aerial photographs of the site show that fill material has been brought on to the site since about 2014. According to the respondent, a letter was issued to the applicant (and her husband, Mr Robin Tapper, since deceased) sometime in 2015 advising them that the placement and spreading of fill material on their site would require development approval. The letter was issued after a compliance investigation which included a site visit to inspect the existing fill material on site.
On 2 November 2015, Mr and Mrs Tapper submitted a development application to the respondent for 'Fill' at the site. The development application described the fill material as 'Saddlers Honey Wood Developer Meckering Sand'.
By letter dated 25 February 2016, in response to requests from the respondent for further information, Mr Alden Ashe, on behalf of Mr and Mrs Tapper, provided the following information:
•revised location plan/feature survey (marked up by hand) indicating wetland location;
•revised location plan/feature survey (marked up by hand) indicating area for top dressing at nominal depth of 100 to 200 millimetres; and
•detailed description of the top dressing material 'to ensure material will not have any potential health risk to neighbouring properties or potential ground water contaminants water' – Filling Material Assessment: Lot 1301 Gossage Rd, Oldbury prepared by Dr Peter Keating and dated February 2016 (Bioscience Report).
According to the 'Technical Report' prepared by the respondent for the assessment of the development application, the application was advertised to the community and referred to the Department of Water (DoW), the Department of Parks and Wildlife now known as the Department of Biodiversity Conservation and Attractions (DBCA), and the Department of Environment and Regulation (DER). The only community submission received stated that 'as long as the fill is clean and conforms to the natural ground level of the surrounding areas and not above the fence line there is no objections (sic)'. The DoW and DBCA provided general advice and did not raise any objections whereas the DER advised that the application did not meet the standards for the assessment of contamination and acid sulphate soils set out in published guidelines (Exhibit 3).
The respondent refused the development application on 9 December 2016 for the following three reasons:
1.Insufficient information being submitted to enable a full planning assessment to be undertaken in accordance with clause 63(1)(c) and 63(1)(d) of the Planning and Development (Local Planning Schemes) Regulations 2015.
2.Applicant failed to provide consent within specified timeframe to the Shire to undertake a peer review in accordance with Regulations 49(1)(b) & (2)(a) of the Planning and Development Regulations 2009.
3.The information provided does not demonstrate that the retrospective fill on-site is low impact in accordance with the Shire's Local Planning Policy No. 34 relating to Placement of Fill in Non-Urban Areas.
On 8 October 2018, the Tribunal received an application for a review of this decision. The applicant requested an extension of time which the Tribunal granted and the matter was listed to mediation. The parties were unable to resolve the matter at mediation so the matter was listed to a final hearing on 2 October 2019.
The applicant was represented in the Tribunal by Mr Ashe, a friend, and the respondent was represented by Ms O'Brien, a town planner employed by the Shire.
Site and locality
The site has an area of 14.49 hectares with a frontage of 175 metres to Gossage Road. It contains a dwelling, a dam and a large shed, as well as other structures and has a current use of pet meat abattoir. There is a mapped wetland in the north‑east corner of the site, classified as Multiple Use and Resource Enhancement Category Wetlands. The site is located within the catchment of the Peel-Harvey Estuarine System.
Applicant's development proposal
The applicant's development proposal is to spread fill material, which has already been placed on the site, over an area of approximately 10.14 hectares to a depth of between 100 to 200 millimetres. The development approval application is considered by the respondent to be retrospective in respect to the fill material already being on site but not retrospective in regards to the proposed spreading of the material over a greater area of the site. The applicant's stated purpose for the fill is to increase the fertility of the soil on the site by applying both organic and synthetic fertilisers and nutrients to a large area of the site which she says has never been productive and at the same time fill areas of the site which are currently inundated with water.
Planning framework
The site is zoned Rural under the Shire of Serpentine‑Jarrahdale Town Planning Scheme No 2 (TPS 2 or Scheme) and Rural under the Metropolitan Region Scheme (MRS).
Clause 1.4 of TPS 2 states that the Scheme comprises the Scheme Text (including Appendix A), the Scheme Map (sheets 1 ‑ 9) and the deemed provisions set out in Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (Deemed Provisions).
The proposal requires development approval under cl 60 of the Deemed Provisions as it is 'works' as defined under cl 1 and is not a development that is exempt under cl 61.
Clause 67 of the Deemed Provisions sets out the matters that the local government (and the Tribunal on review) is to have due regard to when considering an application for development approval, and relevantly includes the following:
(a)the aims and provisions of this Scheme …;
(b)the requirements of orderly and proper planning …;
(c)any approved State planning policy;
…
(e)any policy of the Commission;
(f)any policy of the State;
(g)any local planning policy for the Scheme area;
…
(n)the amenity of the locality including the following ‑
(i)environmental impacts of the development;
…
(o)the likely effect of the development on the natural environment or water resources and any means that are proposed to protect or to mitigate impacts on the natural environment or the water resource;
…
(q)the suitability of the land for the development taking into account the possible risk of flooding, tidal inundation, subsidence, landslip, bush fire, soil erosion, land degradation or any other risk;
(r)the suitability of the land for the development taking into account the possible risk to human health or safety;
…
(w)the history of the site where the development is to be located;
…
(y)any submissions received on the application;
(za)the comments or submissions received from any authority consulted under clause 66;
(zb) any other planning consideration the local government considers appropriate.
Clause 1.6 of TPS 2 sets out the general objectives and purposes of the Scheme as follows:
(a)to secure the amenity, health, safety and convenience of the inhabitants of the District:
(b)to zone land for the purposes described in the Scheme so as to promote the orderly development of the land by making suitable provisions for land use;
(c)to reserve land for future and present public use;
(d)to make provisions for the conservation and preservation of places of natural beauty, historic buildings and objects of historic or scientific interest.
(e)to create a pedestrian and vehicular circulation system together with landscape environment which complements the wide range of activities carried on and proposed to be carried in the District.
(f)to encourage coordinated development of the District in accordance with the guidelines set out in the planning studies adopted by the Council for particular areas or the District as a whole.
(g)to make provision for other matters incidental to town planning and land use management.
Part 5 of TPS 2 sets out the requirements for development within the Scheme area. Clause 5.1.1 states that the power conferred by cl 5.1 of TPS 2 and cl 67 of the Deemed Provisions may only be exercised if the Council is satisfied that:
(a)approval of the proposed development would be consistent with the orderly and proper planning of the locality and the preservation of the amenity of the locality;
(b)the non-compliance will not have any adverse effect upon the occupiers or users of the development or the inhabitants of the locality or upon the likely future development of the locality; and
(c)the spirit and purpose of the requirement or standard will not be unreasonably departed from thereby.
Clause 5.10 of TPS 2 states that the purpose and intent of the Rural Zone is to allocate land to accommodate the full range of rural pursuits and associated activities conducted in the Scheme area.
Clause 65 of the Deemed Provisions together with Pt 6 of TPS 2 refers to planning consent for unauthorised existing development. The development application the subject of this review is for planning approval of unauthorised fill on the subject site. Clause 6.1 relevantly states the following:
6.1.1The Council may grant planning approval to a use or development already commenced or carried out regardless of when it was commenced or carried out, providing the development conforms to the provisions of the Scheme.
6.1.2Development which was unlawfully commenced shall not be rendered lawful by the occurrence of any subsequent event except the granting of planning approval and the continuation of the development unlawfully commenced shall be deemed to be lawful development upon the granting of planning approval.
Other documents relevant to these proceedings are:
•Shire of Serpentine-Jarrahdale Rural Strategy 2013 Review (December 2017) (Rural Strategy);
•Shire of Serpentine‑Jarrahdale Local Planning Policy 4.7: Placement of Fill in Non‑Urban Areas (previously LPP 34 but now known as LPP 4.7) (LPP 4.7);
•Western Australian Planning Commission (WAPC) Statement of Planning Policy No 2.1: The Peel‑Harvey Plain Catchment (SPP 2.1);
•WAPC Guideline for the Determination of Wetland Buffer Requirements;
•Department of Water and Environmental Regulation Landfill Waste Classification and Waste Definitions 1996 (as amended 2018); and
•DER Assessment and management of contaminated sites: Contaminated sites guidelines ‑ December 2014 (Contaminated Sites Guidelines).
Issues for determination by Tribunal
The respondent identified the following issues as arising for determination by the Tribunal in this matter:
1.Has sufficient information been provided to demonstrate that the fill is clean/uncontaminated?
2.Has sufficient information been provided to demonstrate that the fill will not adversely impact on the environment?
3.Is the development application capable of approval based on the information provided?
In essence, the respondent is concerned about the origins of the fill material already placed on site and has requested the applicant to undertake further testing to demonstrate that the fill material is not contaminated and will not have an adverse impact on the environment. The applicant's response to these concerns is that an investigation into the source of the fill material has already been undertaken and the material on site has been tested and found to be 'suitable for use on site as it is unlikely to have an impact on human health, environmental values or groundwater quality' (Bioscience Report).
Both parties presented evidence from environmental experts. Dr Peter Keating appeared for the applicant and Mr Andrew Mack appeared for the respondent. Both witnesses have environmental expertise. Dr Keating has a Ph.D in Biochemistry from the University of Western Australia (UWA) and operates Bioscience Pty Ltd which provides analytical and technical consulting services. Dr Keating is the author of the Bioscience Report. Mr Mack has a Bachelor of Environmental Engineering from UWA and is an Associate Director of Talis Consultants, an environmental consultancy.
The respondent also presented expert planning evidence from Mr Ashwin Nair, a town planner employed by the respondent.
It was Mr Nair's opinion that the placement of fill on the site may be consistent with the objectives and purpose of the Rural Zone set out in TPS 2 if it could be established that the fill material was clean and that there were no environmental risks arising from its placement on the site. His concern about the development proposal arises from his belief that the fill is not clean and consists, in part, of mulch material that may have come from another site which has been classified by the DER as potentially contaminated. Mr Nair had concerns particularly given the location of the site within the Peel Harvey Coastal Plain and it being adjacent to a resource enhancement wetland.
In his written witness statement, Mr Nair referred to a report on testing undertaken in 2015 of some of the material on the subject site. The Tribunal was told that this report was prepared for and used as evidence in other Tribunal proceedings not related to this site. The Tribunal explained to the parties that it was inappropriate for this report to be introduced as evidence in these proceedings for a number of reasons. These included the fact that the report was prepared for use in entirely different proceedings and for entirely different reasons, and that the authors of the report were not called to give evidence. However, the applicant's representative, Mr Ashe, was extremely keen for the report to be taken into evidence as he believed it provided the evidence that the respondent knew where the fill material had come from, when it had come to the site, and that the material was not contaminated. The report, in the form of Attachment 4 to Mr Nair's witness statement (Exhibit 6), was accepted as evidence by the Tribunal on the basis that the Tribunal would decide the appropriate weight to be given to it.
The Tribunal finds that the most this report can contribute to these proceedings is that at some time in the past the respondent believed that some of the material on the site was a compost product that had been supplied by a company free of charge to Mr Tapper (who has since died). The Tribunal finds that the report is of little value for any other purpose, particularly as the author of the report was not called to give evidence and there was no opportunity for the Tribunal to validate the veracity of the assumptions made in the report.
Whether sufficient information has been provided to demonstrate that the fill is clean/uncontaminated
As set out earlier in these reasons, the planning framework requires the consideration of relevant local planning policies. In this case, LPP 4.7 which addresses the placement of fill in non-urban areas is relevant.
The purpose of LPP 4.7 is to:
1.Ensure that the filling of land does not adversely impact on the amenity, environment or cultural features of the locality in which it is being undertaken.
2.Minimise environmental impacts on water resources and vegetation.
3.Ensure visual impact is minimised on neighbouring properties.
4.Inform landowners, developers and the community on the important considerations associated with the placement of fill, while improving customer service.
5.Ensure that applications for the filling of land are detailed in a consistent manner.
6.Detail the information requirements to be supplied by applicants at the development application stage.
Clause 2.9 of LPP 4.7 provides that the respondent has a general presumption against filling land where the fill material is not clean, or comprises waste (including green waste); where the fill material contains or has the potential to contain acid sulphate; or the fill material contains contaminated material (eg asbestos) or dieback.
Schedule 1 of LPP 4.7 contains 'Impact Significance Guidelines' which are intended to assist in the determination of the level of impacts associated with each application to fill land. Both parties spent time referring to the Impact Significance Matrix in Table 1 but ultimately it is of limited use because the nature of fill is still the contested characteristic of the development application, whether the development is assessed as having low, moderate or high impact. Fill characteristics such as: duration of filling works; traffic movements; vegetation clearing; fill size; fill location; water table height; amenity visual impacts; and sensory (noise, dust and vibration) impacts have all been addressed.
Once again, we return to the main area of dispute between the parties which is: does, or will, the placement and/or spreading of the fill material on site have an adverse impact on the environment? In order to determine this, the respondent submits that it is necessary to understand the makeup of the material on site, particularly when there is doubt about the source of the material. Mr Ashe submits that this has been addressed by Dr Keating's report and notes that neither the DoW nor the DBCA raised any objections to the development proposal.
The Tribunal ordered the environmental experts to confer, in the absence of the parties, prior to the hearing. Mr Mack and Dr Keating did this and produced a written statement setting out their areas of agreement and disagreement. They agreed that Mr Tapper brought the fill material on to the site for the purpose of filling the part of the site which was subject to inundation. This was done without any approvals from the Shire. The exact volume of material imported on to the site is uncertain because while the extent is known, the depth is not. The area of the fill is approximately 1.5 hectares and has a maximum depth of 1.5 metres.
Mr Mack and Dr Keating agreed that the wetlands on the site have very low levels of environmental attributes, functions and values and ought not be a significant consideration in this matter. They also agreed that there is no material difference whether the imported materials are left in situ or spread over the site, but that it was important to verify that the material was 'fit for purpose' and did not present an unacceptable risk to the environment, human health or any environmental value. Finally, they agreed that the respondent could have reported the site as a suspected contaminated site but did not do so.
In February 2016, on behalf of his company Bioscience Pty Ltd, Dr Keating undertook a Tier 1 risk assessment of the site in accordance with the Contaminated Sites Guidelines which he described in his witness statement (Exhibit 8) as follows:
The work involved ascertaining the origin of the material by interviewing Mr Robin Tapper, now deceased, and using aerial mapping using Nearmaps to confirm the removal of material from source sites at a similar time to the observed placement at Gossage Road. I used hand tool to dig pits into the then spread material, digging four holes at each of four locations. I was satisfied after digging four areas to the depth of natural soil that the material was sufficiently uniform that further digging was not required. I collected one composite sample from each the 4 pit in each area and delivered it under a Chain of Custody to SGS, which is a NATA accredited laboratory. I specified analytes to be tested according to my desktop investigations, from reviewing previous analytical results from those materials, thereby specifying Contaminants of Potential Concern that might cause environmental harm. When the analytical results were received, I concluded that material did not pose a threat to human health, environmental values or groundwater on the site, nor to the neighbouring environs.
The Bioscience Report describes the work undertaken in more detail and estimates that 30% of the fill material is mulch from BioOrganics with the remaining 70% being sandy top soils from two different residential developments. The residential developments are the Terra Novis development located in Wandi, Lyon Road and the Anketell South development in Anketell, Treeby Road.
Mr Mack was of the view that despite these investigations, there is still uncertainty about the origin of the fill material and that the provision of the contaminated site reports cited by Dr Keating would not necessarily change his views in relation to the material. Mr Mack had concerns that the fill material was not homogenous in nature and included construction and demolition materials (which he had seen on site and had not been cited by Dr Keating), organics and soil/sands. He was concerned that the material could have come from somewhere other than the source sites identified by Dr Keating as there was no evidentiary trail demonstrating the source of the material, its contamination status, its movement and use at the site.
It was Mr Mack's opinion that, given the level of uncertainty regarding the origin of the fill material, and in light of his experience elsewhere with unauthorised fill and contaminated sites, the material and site should be tested in a manner more consistent with the Contaminated Sites Guidelines. He believed that for a Tier 1 risk assessment to be reliable, good evidence about where the material had come from (and testing at the source locations) would be required.
Both parties referred to comments received by the respondent from DER in a letter dated 14 June 2016 (Exhibit 2) as supporting their respective positions. The final paragraph of this letter reads as follows:
The Shire provided DER with a copy of a report submitted by the applicant entitled 'Filling material assessment: Lot 1301 Gossage Rd, Oldbury' prepared by Bioscience. The assessment does not meet the standards for the assessment of contamination and acid sulfate soils set out in published guidelines. The limited information provided does not indicate possible contamination of the fill material or that the provisions of the Contaminated Sites Act 2003 apply.
The applicant submits that the last sentence of this paragraph can be taken to mean that 'DER acknowledges the information is limited, but is suitably satisfied with the limited information to make their comment on the status of the fill material'. The applicant also submits that the respondent did not request the applicant to report to the standards referred to (in the Contaminated Sites Guidelines). Finally, the applicant submits that the testing requested by the respondent is not reasonably required particularly as it will cost a minimum of $35,000 (according to a quote from RPS dated 12 August 2016 in Exhibit 3).
The Tribunal does not accept the applicant's interpretation of the comments by DER and is of the view that the comments support the Tribunal's view that the assessment undertaken by Dr Keating is not sufficient to establish whether the fill material is likely to have an adverse impact on the environment. The Tribunal is not persuaded by the applicant's submissions that the testing required by the respondent is both expensive and unnecessary. The unknown multiple sources of the material, the volume of the material, the location of the site within the catchment of the Peel-Harvey Estuarine System, and the timeframe over which the material has been being received at site are all factors that lead the Tribunal to the view that it is appropriate in this case to take a precautionary approach and require further testing of the material on site prior to any development approval being granted.
In this case, the Tribunal finds that there is not sufficient information about the makeup of the material on site for an approval to be granted allowing the fill material to remain on site in either its current location or spread over the site as proposed. The Tribunal accepts Mr Mack's evidence of other materials in the fill that have not been reported by Dr Keating and therefore finds that the material is not necessarily homogenous fill. The Tribunal is not satisfied that the limited testing undertaken by Dr Keating provides sufficient certainty that the material is not contaminated and will not lead to adverse impacts on the environment. This testing may have been sufficient if the source sites of the material could be established with more certainty. Unfortunately, the Tribunal is of the view that there is not sufficient evidence regarding the origin of the material, despite Dr Keating's best attempts.
The Tribunal therefore finds that the correct and preferable decision is to refuse to grant development approval for the retrospective placement and spreading of fill material on the subject site.
Orders
For these reasons the Tribunal makes the following orders:
1.The application is dismissed.
2.The decision of the respondent made on 9 December 2016 to refuse the development application is affirmed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS R MOORE, MEMBER
31 DECEMBER 2019
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