TERRA SPEI PTY LTD and SHIRE OF KALAMUNDA - [2015] WASAT 134

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: TERRA SPEI PTY LTD and SHIRE OF KALAMUNDA [2015] WASAT 134

MEMBER: JUDGE D R PARRY (DEPUTY PRESIDENT)
MS M CONNOR (MEMBER)

HEARD: 12, 13, 14 AUGUST AND 17 SEPTEMBER 2015
(FURTHER WRITTEN SUBMISSIONS FILED ON 16, 18, 20 AND 27 NOVEMBER 2015)

DELIVERED : 3 DECEMBER 2015

FILE NO/S: DR 98 of 2015

BETWEEN: TERRA SPEI PTY LTD
Applicant
AND
SHIRE OF KALAMUNDA
Respondent

Catchwords:

Town planning Development application Recycling (screening and crushing) of inert construction and demolition waste materials Industrial Development zone Whether proposed development capable of approval Whether proposed development properly classified as 'industrylight' under local planning scheme and therefore permissible or as 'industrygeneral' and therefore prohibited 'industrylight' use class defined in local planning scheme as 'an industry ... in which the processes carried on, the machinery used, and the goods and commodities carried to and from the premises do not cause any injury to or adversely affect the amenity of the locality' 'industry' defined in local planning scheme as 'premises used for the manufacture, dismantling, processing, assembly, testing, servicing, maintenance and repairing of goods products ...' Whether ameliorative measures to mitigate impacts of the development can be taken into account when determining whether proposed development falls within 'industrylight' use class Whether, if ameliorative measures can be taken into account when determining whether proposed development falls within 'industrylight' use class, Tribunal is satisfied that the proposed development (including all proposed ameliorative measures to mitigate impacts of the development) is one in which the processes carried on, the machinery used, and the goods and commodities carried to and from the premises 'do not cause any injury to or adversely affect the amenity of the locality' Dust Noise Visual impact Whether proposed development consistent with orderly and proper planning Effect of inconsistency between deemed provision and other provision of local planning scheme Whether nature and form of proposed development consistent with contemplation of planning framework Whether proposed development is 'transport based industry' and therefore a 'preferred land use' Whether local planning scheme amendment is a matter for consideration and, if so, what weight should be given to it Legislative expression of Coty principle in deemed provision in local planning schemes Words and phrases: 'transport based industry'

Legislation:

Environmental Protection (Noise) Regulations 1997 (WA), Sch 1, Pt A, Pt B
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 87, s 252(1), S 256(1), s 256(5), s 257B(2), s 257B(3)
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), reg 8(1)(c), reg 10(4), reg 62(2), reg 77, reg 78, reg 79, reg 80, reg 81, Sch 1 (model provisions), Sch 2 (deemed provisions), cl 27(1), cl 67, cl 67(b), cl 67(h)
Shire of Kalamunda Local Planning Scheme No 3, cl 4.2.4, cl 4.3.1, cl 4.3.2, cl 4.4.1, cl 6.1.1, cl 6.1.1(a), cl 6.2.2.1, cl 6.2.2.2, cl 6.2.2.4, Sch 1, Sch 11, Pt 3
Shire of SerpentineJarrahdale Town Planning Scheme No 2
State Administrative Tribunal Act 2004 (WA), s 27(2)
Town Planning Regulations 1967 (WA), reg 17(1), reg 17(2), reg 18(1)

Result:

Application for review dismissed
Decision of respondent to refuse development approval for recycling (screening and crushing) of inert construction and demolition waste materials affirmed

Summary of Tribunal's decision:

Terra Spei Pty Ltd sought review by the Tribunal of the decision of the Shire of Kalamunda to refuse development approval for recycling (screening and crushing) of up to 100,000 tonnes per annum of inert construction and demolition waste materials at a site in Forrestfield.
The two principal issues in the review were whether the proposed development is properly classified as 'industrylight' under the definition of that term in the local planning scheme, and is therefore capable of development approval, and whether, if the development is capable of approval, it is consistent with orderly and proper planning. The issue of whether the proposed development is properly classified as 'industrylight' under the scheme turned on whether proposed ameliorative measures to mitigate potential impacts of the development can be taken into account for the purposes of the definition of that land use and, if ameliorative measures can be taken into account, whether the Tribunal is satisfied that the proposed development (including ameliorative measures) is one in which the processes carried on, the machinery used, and the goods and commodities carried to and from the premises do not cause any injury to or adversely affect the amenity of the locality in terms of dust, noise and visual impact. The issue of consistency with orderly and proper planning turned on whether the nature and form of the proposed development is consistent with the contemplation of the planning framework and the weight to be given to a proposed amendment to the scheme which would introduce a new specific land use of Resource Recovery Centre and prohibit that land use in the subject zone.
The Tribunal determined to refuse the development application, because, although proposed ameliorative measures are required to be taken into account, the Tribunal was not satisfied that (including all proposed ameliorative measures) the processes carried on, the machinery used and the goods and commodities carried to and from the premises do not cause any injury to or adversely affect the amenity of the locality in terms of dust, noise and visual impact and the proposed development is therefore not classified as 'industrylight' under the scheme and is not capable of approval. The Tribunal also determined that, even if the proposed development were capable of approval, it should be refused consent in the exercise of planning discretion, because its nature and form is not consistent with the contemplation of the planning framework and because of the proposed amendment to the scheme.
In the course of its reasons, the Tribunal discussed aspects of the new Planning and Development (Local Planning Schemes) Regulations 2015 (WA) including 'deemed provisions' in all local planning schemes under Sch 2 of the Regulations which commenced on 19 October 2015. The Tribunal found that a provision of the applicable local planning scheme that purported to require that the proposed development be 'generally ... in accordance with' a structure plan is inconsistent with a deemed provision which requires that the consent authority merely have 'due regard to' a structure plan and therefore that the deemed provision prevails over the other provision and the requirement that the development be 'generally ... in accordance with' a structure plan is of no effect. The Tribunal also determined that cl 67(b) of the deemed provisions is a legislative expression of the socalled 'Coty principle' which has the effect that a draft local planning scheme or a draft amendment to the applicable local planning scheme is a relevant matter for consideration in a planning assessment once the draft 'has been advertised', rendering the former assessment of whether it is a 'seriouslyentertained planning proposal' otiose. The Tribunal therefore determined that the first stage of the four stage inquiry when a draft local planning scheme or a draft amendment to the applicable local planning scheme is raised for consideration in relation to a development application discussed in Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117 at [45] has been overtaken in relation to development assessment under a local planning scheme in Western Australia. However, the Tribunal also determined that once a draft local planning scheme or a draft amendment to the applicable local planning scheme has been advertised and is therefore a relevant matter for consideration in the assessment of a development application, the other three stages of the four stage inquiry discussed in Nicholls at [45], including, in relation to the third stage ('the weight to be accorded to the consistency or otherwise between the application and the draft'), the four principal criteria which should be utilised to determine weight set out in Nicholls at [59], remain applicable.

Category: B

Representation:

Counsel:

Applicant: Mr PG McGowan
Respondent: Mr HH Jackson

Solicitors:

Applicant: Herbert Smith Freehills
Respondent: McLeods

Case(s) referred to in decision(s):

ACR Trading Pty Ltd & Anor v FatSel Pty Ltd & Anor (1987) 11 NSWLR 67; (1987) 64 LGRA 177
Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117
GMF Contractors Pty Ltd and Shire of SerpentineJarrahdale [2006] WASAT 353; (2006) 48 SR (WA) 1
Marshall v Metropolitan Redevelopment Authority [2015] WASC 226
Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117
Paintessa Developments Pty Ltd and Town of East Fremantle [2014] WASAT 81; (2014) 85 SR (WA) 312
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Ridgecity Holdings Pty Ltd and City of Albany [2006] WASAT 187
St Patrick's Community Support Centre and City of Fremantle [2007] WASAT 318

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

Terra Spei Pty Ltd (applicant) seeks review by the Tribunal, pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), of the decision of the Shire of Kalamunda (Shire or Council) to refuse development approval for recycling (screening and crushing) of up to 100,000 tonnes per annum of inert construction and demolition waste materials at Nos 251, 257 and 259 Berkshire Road, Forrestfield (site).
The construction and demolition waste materials proposed to be brought to the site for processing include bricks, concrete, paving slabs, tiles, sand and gravel. These materials are proposed to be screened, sorted and crushed to produce a range of recycled products, including sands, crushed bitumen road base, crushed concrete road base and drainage aggregates.
Construction and demolition waste products brought to the site and recycled products produced at the site are proposed to be stored in stockpiles of up to 4 metres in height (in storage bunkers of the same height required by 'without prejudice' conditions of development approval) in two open areas, each with dimensions of 30 metres by 80 metres, adjacent to side boundaries of the site. The crushing is proposed to take place in a central location, between the areas used for stockpiles, within a three sided, 5 metre high structure (proposed in order to ameliorate noise impacts) abutted by an earthen ramp on the northwestern side of the structure rising to an earthen platform 4 metres in height on the southwestern side of the structure.
The proposed development involves:
•delivery of construction and demolition waste materials to the site by truck and dumping the materials in a 30 metre wide and 80 metre long acceptance (unloading) area set back 10 metres from the northwestern boundary of the site;
•sorting the construction and demolition materials (if necessary) and stockpiling in stockpiles up to 4 metres in height (within storage bunkers of the same height) in the acceptance area;
•during crushing operations, transporting the construction and demolition waste materials from stockpiles in the acceptance area by loader or excavator up the earthen ramp along the northwestern side of the central processing area and dumping it in a temporary stockpile on the 4 metre high earthen platform abutting the southwestern end of the processing area;
•an excavator located on the 4 metre high earthen platform during crushing operations picking up the construction and demolition waste materials from the temporary stockpile and moving it over the southwestern wall of the 5 metre high structure into a primary crusher (known as 'the jaw crusher') (with the excavator extending up to 7 metres above ground level during this movement);
•after being crushed by the primary crusher, the materials being moved by open conveyor belt (part of the jaw crusher) and deposited into a secondary crusher (known as 'the horizontal impactor');
•after being further crushed by the horizontal impactor, the finished recycled products being deposited on the ground at the northeastern end of the three sided structure and then moved by loader to stockpiles up to 4 metres in height (within storage bunkers of the same height) in a 30 metre wide and 80 metre long recycled product (loading) area set back 11.5 metres from the southeastern boundary of the site; and
•loading recycled products by a loader or excavator into trucks before leaving the site.
The two principal issues in this review are whether the proposed development is properly classified as 'industrylight' under the definition of that term in the Shire of Kalamunda Local Planning Scheme No 3 (LPS 3 or Scheme), and is therefore capable of development approval under the Scheme, and whether, if the proposed development is classified as 'industrylight', it is consistent with orderly and proper planning.
The issue of whether the proposed development is properly classified as 'industrylight' under the Scheme turns on whether proposed ameliorative measures to mitigate potential impacts of the development can be taken into account for the purposes of the definition of that land use and, if ameliorative measures can be taken into account, whether the Tribunal is satisfied that the proposed development (including ameliorative measures) is one in which the processes carried on, the machinery used, and the goods and commodities carried to and from the premises do not cause any injury to or adversely affect the amenity of the locality in terms of dust, noise and visual impact. The issue of consistency with orderly and proper planning turns on whether the nature and form of the proposed development is consistent with the contemplation of the planning framework, and particularly the applicable local structure plan and design guidelines, and the weight to be given to a proposed amendment to the Scheme which would introduce a new specific land use of Resource Recovery Centre and prohibit that land use in the Industrial Development zone (which includes the site) (and in all other zones other than General Industry) under the Scheme.
For reasons set out below after referring to the site and context, the proposed development and the planning framework, the Tribunal has determined to refuse the development application, because, although proposed ameliorative measures are required to be taken into account, the Tribunal is not satisfied that (including all proposed ameliorative measures) the processes carried on, the machinery used and the goods and commodities carried to and from the premises do not cause any injury to or adversely affect the amenity of the locality in terms of dust, noise and visual impact and the proposed development is therefore not classified as 'industrylight' under the Scheme and is not capable of approval under the Scheme. The Tribunal also determined that, even if the proposed development were not prohibited and were capable of approval under the Scheme, it should be refused consent in the exercise of planning discretion, because its nature and form is not consistent with the contemplation of the planning framework and because of the proposed amendment to the Scheme.

Site and context

The site has a battleaxe shape as it comprises three former, similarly sized and shaped allotments, only one of which had a frontage to Berkshire Road, with the second lot being a northeast prolongation of the first lot and the third lot adjoining the second lot to its southeast. The site has a total area of approximately 3.04 hectares. The topography of the site and surrounding area is relatively flat.
The site forms part of an area bounded by Berkshire Road to the southwest, Milner Road to the northwest, Sultana Road West to the northeast and Roe Highway to the southeast. This area is zoned Industrial Development under the Scheme (other than four lots designated as 'Bush Forever' in the northeastern part of this area), constitutes a 'special control area' (the Forrestfield/High Wycombe Industrial Area DA01) under cl 6.1.1 and Sch 11 of the Scheme, and is the whole area the subject of the Forrestfield/High Wycombe Industrial Area Stage 1 Local Structure Plan (LSP). (In these reasons, this area is referred to as the 'LSP area').
As Mr Ray Haeren, a town planner called by the Shire, said in evidence, the LSP area 'generally contains a mix of ruralresidential and industrial activities.' It is an area in the course of transition to development contemplated by the Industrial Development zoning, the LSP (endorsed by the Western Australian Planning Commission on 11 November 2013) and the Forrestfield/High Wycombe Industrial Area Design Guidelines (adopted by the Council and effective from 27 August 2012) (Design Guidelines) which apply to the LSP area and also to areas to the northeast of Sultana Road West and to the northwest of Milner Road. To the northeast of Sultana Road West is an established rural residential area and to its north is the High Wycombe residential area. The properties on the southwestern side of Berkshire Road (opposite the site) are zoned Light Industry under the Scheme and, as Mr Haeren said in evidence, comprise '[l]ight industry/warehouse style development'. To the southwest of those properties is land zoned as General Industry under the Scheme and developed under that zoning. Approximately 500 metres to the southeast of the site, on the other side of Roe Highway, is the established Forrestfield residential area.
The site adjoins land also zoned Industrial Development under the Scheme to the northwest and southeast and a 'Bush Forever' site to the northeast. The LSP contemplates an extension of Nardine Close, which runs southeast from Milner Road and currently terminates in a culdesac to the northwest of the site, to continue to the southeast and, with a slight adjustment in its alignment to avoid the Bush Forever site, to occupy a 20 metre strip of the site and adjoining and adjacent properties. If and when Nardine Close is extended, it will join up with Ashby Close, which runs northeast from Berkshire Road through lots to the southeast of the site and currently terminates in a culdesac, and another road that the LSP contemplates will ultimately join up with Sultana Road West to the northeast of the LSP area.
The LSP area forms part of the KewdaleHazelmere area which, as the LSP states in clause 3.2, is 'a major strategic area for the freight industry in Perth and Western Australia.' As the LSP also states in clause 3.2, this area has 'an extensive road and rail intermodal freight infrastructure network' and is also strategically located to the southeast of Perth Airport. The LSP area forms the southeastern portion, which is approximately one third, of the draft Forrestfield North District Structure Plan Area. The draft Forrestfield North District Structure Plan (dated February 2015) describes that area as 'arguably WA's most important transport interchange, where road, rail and air services meet to facilitate the movement of people and goods that are essential to the economy of both the State and the nation.'

Proposed development

On 30 May 2014, the Shire granted development approval to the applicant for a development described as 'Warehouse, Office and Storage of Inert Materials' at the site. (The applicant referred to the development the subject of the development approval granted to it in May 2014 as 'Stage 1' and to the development the subject of this review proceeding as 'Stage 2'; this terminology is adopted for the purposes of these reasons.)

The Stage 1 development approval authorises the applicant to construct an office building and a warehouse at the Berkshire Road frontage in the roughly northwestern half of what is now the handle of the battleaxe forming the site. As at the hearing of this proceeding, the applicant had not commenced construction of these parts of the approved Stage 1 development. The Stage 1 development approval also authorises the storage of construction and demolition waste materials in two areas in the rear, northeastern part of the site. The Stage 1 development application proposed the storage of up to 40,000 tonnes of construction and demolition waste materials at the site. Although the Shire did not condition the Stage 1 development approval to restrict storage of materials at the site to 40,000 tonnes, the environmental licence granted by the Department of Environment Regulation on 12 February 2015 restricts the quantity of inert waste accepted at the site to 40,000 tonnes per annual period.
The applicant commenced using the northeastern part of the site for storage of construction and demolition waste materials in early 2015. The photographs of the site in evidence show, and a view of the site conducted by the Tribunal accompanied by the parties and their representatives on 17 September 2015 confirmed, that there are extensive stockpiles of construction and demolition waste materials up to about 4 metres in height in open areas in the northeastern part of the site.
On 19 February 2015, Ms Lorraine Elliott, a town planner, lodged the Stage 2 development application with the Shire for approval of 'recycling (crushing and screening) of inert construction and demolition materials' at the site. The development application was accompanied by a letter from Ms Elliott and an Environmental Assessment and Management Plan for 'Stage 2 Screening and Crushing Operations' (February 2015) (EAMP) prepared by Talis Consultants Pty Ltd. The EAMP was approved for release by Mr Andrew Mack, an environmental engineer who holds the position of Environmental Services Section Leader with Talis.
The proposed Stage 2 development utilises the approved access way along the eastern part of the front section of the site for trucks to enter with construction and demolition waste materials and to leave with recycled products. The development application also proposes the construction of a weighbridge to the northeast of the approved warehouse.
Ms Elliott stated in her letter that '[b]ased on the initial annual throughput of 100,000 tonnes, the operation on average would take approximately 13 loads on site per day.' She also said that the equipment to be used as part of the Stage 2 development 'includes the gatehouse, weighbridge, water reticulation systems, one jaw crusher (primary crusher), one horizontal impactor (secondary crusher), 2 loaders, 2 excavators, 2 semitrailers, 6 truck and trailers, and water cart to be used on the site during summer for dust suppression purposes'.
The EAMP states that:
It is anticipated that for the first two years the site will be operated on a campaign basis, with material being stored in stockpiles for one month followed by the crushing operations for a week or on a campaign basis.
Section 7 of the EAMP states that '[t]o ensure that appropriate management measures are devised, Talis has identified all key potential environmental aspects associated with the proposed operations at the site.' The listed 'key potential environmental aspects' include noise and dust. However, neither the EAMP nor Ms Elliott's letter identifies visual impact as a matter for consideration and does not provide any assessment of that issue.
Section 9 of the EAMP describes 'engineering and management measures' to ensure that 'the potential environmental impacts identified will be appropriately minimised and managed'.
Section 9.1 of the EAMP is entitled 'Noise Management' and states as follows:
As mentioned previously, there are several sources of noise associated with the proposed development including operation of equipment and machinery, vehicle movements and the movement of materials. Currently, the most significant source of noise is the movement of vehicles at the site.
To ensure that noise emissions are minimised as part of the Stage 2 proposal, the following measures will be implemented on site:
•Noise emissions from site operations will be controlled to ensure compliance with the Noise Regulations including:
•Crushing and screening is undertaken inside a 5.0 m high threesided structure (concrete cast insitu retaining wall); and
•Excavator is operating from a 4.0 m high earth ramp and feeds the material into the crusher inside the closure.
•Waste receival and the operation of equipment and machinery on site will be restricted to operational hours only;
•Vehicles will be restricted to a maximum speed of 5 km per hour (km/h) at the site;
•Noise reducing workplace procedures will be adopted such as tipping waste onto the tipping floor and into storage areas slowly and from the lowest height possible;
•The use of reverse beepers as a safety strategy will be replaced with alternative visual safety devices (where practical and appropriate);
•Vegetation screens will be developed and maintained, where appropriate, surrounding the site; and
•All equipment and machinery will be maintained in good working condition.
Noise modelling conducted for the site demonstrates that the management measures listed above will be sufficient to appropriately manage noise emissions at the site and ensure compliance with the Environmental Protection (Noise) Regulations 1997.
Appendix F to the EAMP is an acoustic assessment report in relation to the proposed development dated 16 February 2015 by Sealhurst Pty Ltd (Sealhurst) (Sealhurst report). The Sealhurst report was authorised by Mr Daryl Thompson, an acoustic engineer who holds the position of Director with Sealhurst.
Section 9.2 of the EAMP, which is entitled 'Dust Management', states as follows:
To manage the generation of dust on site, DC Recycling will implement the following management measures:
•Both the jaw and impact crusher will include an inbuilt dust suppression system consisting of sprinklers over the hopper, end of the conveyor and other discharge points;
•A sprinkler system will be incorporated within the material acceptance, processing and storage areas;
•Vehicles will be restricted to a maximum speed of 5 km/h at the site;
•Site operations will be stopped during periods of high winds;
•Vehicles will enter and exit the site via sealed access road;
•The site will be cleaned of dust, dirt and sand on a daily basis;
•All inert waste materials will be confined within the designated storage area;
•Undesired materials such as nonrecyclable inert materials, timber, metal and plastics and small volumes of green waste will be stored in designated hardstand areas prior to being transported off site for recycling or disposal;
•The shade cloth on the perimeter fence will be maintained to restrict the offsite movement of any dust generated;
•Vegetation screens will be developed and maintained, where appropriate, surrounding the site;
•Water cart will be utilised on site as required (mainly on internal roads); and
•Materials will be dampened prior to processing.
As mentioned previously, rainfall onto the buildings on site will be stored in a nominal 10,000 L water tank. Based on current rainfall, these are anticipated to be filled by rainfall for the majority of the year. During the dry summer months, additional water for dust suppression will be supplied by a water cartage contractor.
It is anticipated that the implementation of the engineering and management measures listed above will be sufficient to manage dust at the site.
On 16 March 2015, the development application was refused by the Council (under delegation, by Mr Andrew FowlerTutt, Manager Development Services) for the following reasons:
1.The use is considered to fall within the use class Industry General which is an "X" (not permitted) use in the Industrial Development zone.
2.The proposal is considered to be inconsistent with Schedule 11 Part 3 Forrestfield/High Wycombe Area DA 1 of the Local Planning Scheme No. 3.
3.The proposal is considered to be inconsistent with the orderly and proper planning of the locality.

Planning framework

The site and the rest of the LSP area (other than the Bush Forever site) is zoned Urban under the Metropolitan Region Scheme (MRS). The Bush Forever site is reserved as Parks and Recreation under the MRS.
As noted earlier, the site and the rest of the LSP area (other than the Bush Forever site) is zoned Industrial Development under the Scheme. Clause 4.2.4 of LPS 3 states that the objectives of the Industrial Development zone are:
•To provide for orderly and proper planning through the preparation and adoption of a Structure Plan establishing the overall design principles for the area.
•To permit the development of the land for industrial purposes and for commercial and other uses normally associated with industrial development.
Clause 4.3.1 and cl 4.3.2 of the Scheme state as follows:
4.3.1The Zoning Table (Table 1) indicates, subject to the provisions of the Scheme, the uses permitted in the Scheme area in the various zones. The permissibility of any uses is determined by cross reference between the list of uses [sic] classes on the left hand side of the Zoning Table and the list of zones at the top of the Zoning Table.
4.3.2The symbols used in the cross reference in the Zoning Table have the following meanings:
'P'means that the use is permitted by the Scheme providing the use complies with the relevant development standards and requirements of the Scheme;
'D'means that the use is not permitted unless the local government has exercised its discretion by granting planning approval;
'A'means that the use is not permitted unless the local government has exercised its discretion by granting planning approval after giving special notice in accordance with clause 9.4;
'X'means a use that is not permitted by the Scheme.
There are no uses designated by the symbol 'A' in the Zoning Table in relation to the Industrial Development zone. Only one use, namely 'Car Park', is designated by the symbol 'P' in the Zoning Table in relation to the Industrial Development zone, meaning that a car park is a use that is 'permitted by the Scheme providing the use complies with the relevant development standards and requirements of the Scheme'. The Zoning Table designates 13 uses by the symbol 'D' in relation to the Industrial Development zone, meaning that these uses are 'not permitted unless the local government has exercised its discretion by granting planning approval'. The 13 uses that are capable of development approval under this designation in the Industrial Development zone are Caretakers Dwelling, Fuel Depot, IndustryLight, Logistics Centre, Lunch Bar, Office, Research and Technology Premises, Showroom, Storage, Telecommunications Infrastructure, Trade Display, Transport Depot and Warehouse. All other uses listed in the Zoning Table are designated by the symbol 'X' in relation to the Industrial Development zone, meaning that all other uses are 'not permitted by the Scheme', that is, they are prohibited development in the Industrial Development zone. The prohibited uses in the Industrial Development zone include IndustryGeneral.
The term 'industrylight' is defined in Sch 1 of the Scheme as follows:
"industry light" means an industry
(a)in which the processes carried on, the machinery used, and the goods and commodities carried to and from the premises do not cause any injury to or adversely affect the amenity of the locality;
(b)the establishment or conduct of which does not, or will not, impose an undue load on any existing or proposed service for the supply or provision of essential services[.]
The term 'industry', which is incorporated into the definition of the term 'industrylight', is defined in Sch 1 of the Scheme as follows:
"industry" means premises used for the manufacture, dismantling, processing, assembly, testing, servicing, maintenance and repairing of goods products, and if on the same land as any of these operations, the storage of goods, the work of administration or accounting, the selling of goods by wholesale or retail and the provision of amenities for employees, where incidental operations carried out on the land[.]
It is common ground between the parties, and plainly the case, that the proposed development falls within the definition of 'industry' under the Scheme. The proposed development is 'premises used for the manufacture … [or] processing … of goods [or] products …'.
The applicant contends, and the Shire disputes, that the proposed development falls within the definition of 'industrylight' under the Scheme. This dispute is resolved under issue 1 below.
It is common ground between the parties that, if the proposed development is not properly classified as 'industrylight', within the meaning of that term under LPS 3, then it falls within the definition of 'industrygeneral', which is a prohibited land use in the Industrial Development zone. The term 'industrygeneral' is defined in Sch 1 of the Scheme as follows:
"industry general" means an industry other than a cottage, extractive, light, mining, rural or service industry[.]
We agree with the parties' joint position. It is unnecessary to set out the definitions of 'industrycottage', 'industryextractive', 'industryrural' or 'industryservice' in Sch 1 of the Scheme. The proposed development does not fall within any of those definitions.
As noted earlier, the LSP area is a 'special control area', and in particular a 'development area', under cl 6.1.1(a) and Sch 11 of the Scheme. Clause 6.2.2.1 of the Scheme states as follows in relation to development areas:
The local government requires a Structure Plan for a Development Area, or for any particular part or parts of a Development Area, before recommending subdivision or approving development of land within the Development Area.
Clause 6.2.2.4 of the Scheme states that:
Schedule 11 describes the Development Areas in more detail and sets out the purpose and particular requirements that may apply to the Development Area.
Part 3 of Sch 11 of LPS 3 identifies the LSP area as Development Area 1 and states in relation to this area that 'the structure plan for this area is to ensure that general and heavy industrial uses are not permitted.'
As noted earlier, the LSP exists for the LSP area including the site.
Clause 6.2.2.2 of LPS 3 states that, where a structure plan exists, 'the subdivision and development of land is to generally be in accordance with the Structure Plan …'. However, the requirement in cl 6.2.2.2 of the Scheme for development to be 'generally … in accordance with' a structure plan is inconsistent with cl 27(1) of the deemed provisions for local planning schemes in Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regulations) (deemed provisions) which came into force on 19 October 2015 under s 256(1) of the PD Act.
Section 256(1) and s 256(5) of the PD Act state as follows:
(1)The Minister may make regulations prescribing provisions that deal with any or all of the following
(a)carrying out the general objects of local planning schemes;
(b)any matter set out in Schedule 7.
…
(5)The regulations must designate each provision prescribed under subsection (1) as
(a)a model provision, being a provision to which section 257A applies; or
(b)a deemed provision, being a provision to which section 257B applies.
Regulation 10(4) of the LPS Regulations states as follows:
The provisions in Schedule 2 are deemed provisions, being provisions to which section 257B of the Act applies, and are applicable to all local planning schemes, whether or not they are incorporated into the local planning scheme text[.]
Furthermore, reg 8(1)(c) of the LPS Regulations expressly states that:
The documents that comprise a local planning scheme are the following
…
(c)if any of the provisions set out in Schedule 2 have not been incorporated into the local planning scheme text those provisions[.]
Section 257B(2) and s 257B(3) of the PD Act state as follows:
(2)Deemed provisions, as amended from time to time, have effect and may be enforced as part of each local planning scheme to which they apply, whether they are prescribed before or after the scheme comes into force.
(3)If a deemed provision that has effect as part of a local planning scheme is inconsistent with another provision of the scheme, the deemed provision prevails and the other provision is to the extent of the inconsistency of no effect.
Clause 27(1) of the deemed provisions states as follows:
A decisionmaker for an application for development approval or subdivision approval in an area that is covered by a structure plan that has been approved by the Commission is to have due regard to, but is not bound by, the structure plan when deciding the application.
In consequence of s 257B(2) of the PD Act and reg 8(1)(c) and reg 10(4) of the LPS Regulations, cl 27(1) of the deemed provisions has effect as part of LPS 3. In consequence of s 257B(3) of the PD Act, as the requirement of cl 27(1) of the deemed provisions (for the Council and the Tribunal on review to have 'due regard to' the LSP when deciding the development application the subject of this proceeding) is inconsistent with the requirement of cl 6.2.2.2 of LPS 3 (that the development must be 'generally … in accordance with' the LSP), cl 27(1) of the deemed provisions prevails over cl 6.2.2.2 of LPS 3 and to the extent that cl 6.2.2.2 of LPS 3 requires development to be 'generally … in accordance with' the LSP, it is of no effect. In short, when deciding the development application, the Tribunal is required to have due regard to, but is not bound by the LSP, and the Scheme does not require that the proposed development is to be generally in accordance with the LSP.
Clause 67 of the deemed provisions, which, under s 257B(2) of the PD Act and reg 8(1)(c) and reg 10(4) of the LPS Regulations, has effect as part of LPS 3, states, in part, as follows:
In considering an application for development approval the local government [and the Tribunal on review] is to have due regard to the following matters to the extent that, in the opinion of the local government [or the Tribunal], those matters are relevant to the development the subject of the application
(a)the aims and provisions of this Scheme and any other local planning scheme operating within the Scheme area;
(b)the requirements of orderly and proper planning including any proposed local planning scheme or amendment to this Scheme that has been advertised under the Planning and Development (Local Planning Schemes) Regulations 2015 or any other proposed planning instrument that the local government is seriously considering adopting or approving;
…
(h)any structure plan … that relates to the development;
…
As the LPS Regulations including the deemed provisions commenced operation after the conclusion of the hearing, the Tribunal required the parties to file submissions in relation to the effect of the LPS Regulations and the deemed provisions on this matter. The parties filed a joint submission dated 18 November 2015 in which they both contend that the LPS Regulations do not materially affect the determination of the matter. The Tribunal agrees.
As the parties jointly submit, under reg 79 of the LPS Regulations, a 'planning instrument' made under the PD Act before the 'commencement day' (that is, 19 October 2015) and in accordance with the Town Planning Regulations 1967 (WA) (TP Regulations) (which were repealed by reg 78 of the LPS Regulations) 'continues in force as if it were a planning instrument of the same type made under the [PD] Act in accordance with these regulations'. The definition of 'planning instrument' in reg 77 of the LPS Regulations includes 'a local planning scheme' (par (f)) (such as LPS 3), 'a structure plan' (par (h)) (such as the LSP) and 'a local planning policy' (par (e)) (such as the Design Guidelines). Thus, the Scheme, the LSP and the Design Guidelines continue in force as if they were planning instruments of the same type made under the PD Act in accordance with the LPS Regulations.

Furthermore, reg 81 of the LPS Regulations states as follows:
A development application made but not determined under a local planning scheme before commencement day is to be taken to be a development application made under the local planning scheme as that scheme is continued under regulation 79 and is to be determined in accordance with the local planning scheme as so continued.
As the parties jointly submit, under reg 81 of the LPS Regulations, the Stage 2 development application, which was made but not relevantly determined under LPS 3 before 19 October 2015, is taken to be a development application under LPS 3 as it is continued under reg 79 of the LPS Regulations and is to be determined in accordance with LPS 3 as so continued (and relevant deemed provisions).
The explanatory section of the LSP in section 1.0 states as follows:
… The Structure Plan is intended to primarily facilitate the development of logistics and transport based industries that can take advantage of the location of the land and its proximal relationship with key transport infrastructure.
To this effect, clause 5.2.1 of the LSP states as follows:
(a)Although the permissibility of uses is as set out in Table 1 in the Scheme, the Structure Plan intent is to facilitate land uses that take advantage of the land[']s strategic location in respect to major transport infrastructure, including Perth Airport, Roe Highway and Tonkin Highway. On this basis, logistics and other transport based industries are preferred land uses to take advantage of the land[']s locational attributes.
(b)When considering development applications for 'D' and 'A' uses under the Scheme, consideration will be given to the extent that the proposed use supports the Structure Plan intent in accordance with (a) above.
Paragraphs (a) and (b) of clause 5.2.1 of the LSP are also repeated as paragraphs 10 and 11, respectively, of the 'Structure Plan Notes' on the structure plan itself.
The explanatory section in clause 1.0 of the LSP also states that a 'key issue' addressed by the LSP is:
Development criteria to ensure a high quality of development.
Consistently with 'a high quality of development' being a 'key issue' for the LSP, clause 9.1 of the LSP includes the following:
The Structure Plan seeks to respond to the Shire's intent to oversee the development of a high standard, attractive, functional and sustainable industrial area, which will attract a range of businesses eager to locate within the area, offering ease of access to both customers and suppliers.
In addition to the usual industrial uses, the Shire will encourage the establishment of complimentary and progressive industries such as research and development facilities.
The Structure Plan, in conjunction with the Forrestfield/High Wycombe Industrial Area Design Guidelines (the Guidelines) aims to complement the attractiveness of the industrial area[']s geographic and strategic location and to encourage design features, construction quality and landscaping of a high standard which will ensure the Forrestfield/High Wycombe Industrial area is a sought after location for business relocation, and a prestigious industrial address.
The objectives for the Structure Plan are as follows:
…
•To ensure that industrial development does not adversely impact on the amenity and safety of adjoining land uses.
…
Associated objectives of the Guidelines that are also relevant to the Structure Plan are as follows:
•To encourage attractive quality developments that are well designed, with functional and efficient buildings and site layouts.
•To ensure that industries are environmentally compatible with surrounding zones and activities.
•To promote the development of high quality, attractive and sustainable landscaped areas and streetscapes.
…
The Design Guidelines are consistent with these objectives and provisions of the LSP. Clause 1.1 of the Design Guidelines states as follows in relation to 'Background':
It is apparent that industrial areas in many parts of the Perth metropolitan area have often reflected inadequate attention to building design, site layouts, appropriate land uses and site landscaping. This has resulted in industrial areas with rudimentary shed structures, often with offices, storage sheds and areas designed and arranged in a seemingly haphazard manner, with poor vehicle accessibility and parking arrangements, minimal landscaping, signage clutter, unsightly perimeter fencing and visually unattractive streetscapes. The Shire of Kalamunda is committed to ensuring this will not be the case in the new Forrestfield/High Wycombe Industrial Area.
Clause 1.2 of the Design Guidelines contains the following:
Vision/Statement of Intent
The Shire of Kalamunda is firm in its resolve to oversee the development of a high standard, attractive, functional and sustainable industrial area, which will attract a range of businesses eager to locate within the area, offering ease of access to both customers and suppliers.
In addition to the usual industrial uses, the Shire will encourage the establishment of complementary and progressive industries such as research and development facilities particularly in regard to Stage 3 of the Industrial area.
The Design Guidelines aim to complement the attractiveness of the industrial area's geographic and strategic location, and to encourage design features, construction quality and landscaping of a high standard which will ensure the Forrestfield/High Wycombe Industrial Area is a soughtafter location for business relocation, and a prestigious industrial address.
The Shire of Kalamunda will insist upon a high standard of presentation and quality for new development in order to maintain the value of existing and future business investment throughout the Design Guidelines Area.
Consistently with this Background and Vision/Statement of Intent, the Design Guidelines Objectives set out in clause 1.5 of the Design Guidelines include the following:
•To encourage attractive developments that are well designed, with functional and efficient buildings and site layouts;
…
•To promote the development of high quality, attractive and sustainable landscaped areas and streetscapes;
…
•To minimise the impact of new industrial development on the environment and amenity of neighbouring residential properties;
…
•To avoid unsightly and poorly planned and maintained developments; and
•To maintain the value of existing and future business investment by insisting upon quality development throughout the Policy Area.
No new developments, nor the uses or processes carried out onsite, shall be permitted to adversely affect the amenity of the Design Guidelines Area or its immediate surrounds due to poor building or site appearance. …

Issues for determination

The following two principal issues arise for determination in this review:
1)Whether the proposed development is properly classified as 'industrylight' under LPS 3 and therefore permissible or as 'industrygeneral' under LPS 3 and therefore prohibited.
2)Whether the proposed development is consistent with orderly and proper planning.
We will address each of these issues in turn.

Is the proposed development properly classified as 'industrylight' and therefore permissible or as 'industrygeneral' and therefore prohibited?

Parties' positions

As noted earlier, the definitions of the terms 'industry' and 'industrylight' in Sch 1 of the Scheme are as follows:
"industry" means premises used for the manufacture, dismantling, processing, assembly, testing, servicing, maintenance and repairing of goods products, and if on the same land as any of these operations, the storage of goods, the work of administration or accounting, the selling of goods by wholesale or retail and the provision of amenities for employees, where incidental operations carried out on the land;
"industry light" means an industry
(a)in which the processes carried on, the machinery used, and the goods and commodities carried to and from the premises do not cause any injury to or adversely affect the amenity of the locality;
(b)the establishment or conduct of which does not, or will not, impose an undue load on any existing or proposed service for the supply or provision of essential services[.]
As also noted earlier, it is common ground, and plainly the case, that the proposed development is an 'industry' within the meaning of that term in the Scheme, because it is 'premises used for the manufacture … [or] processing … of goods [or] products …'. It is also common ground, and plainly the case, that if the proposed use is not properly classified as 'industrylight', within the meaning of that definition in Sch 1 of LPS 3, then it falls within the definition of 'industrygeneral' in Sch 1 of LPS 3 and is, therefore, a prohibited use in the Industrial Development zone under cl 4.3.1 and cl 4.3.2 of the Scheme.
The Shire contends that the proposed use is not properly classified as 'industrylight' and is therefore prohibited under the Scheme, for two alternative reasons. The Shire's first argument, in summary, is as follows:
(a)In the absence of ameliorative measures with respect to (at least) noise and dust, the proposed use will plainly cause injury to or adversely affect the amenity of the locality;
(b)Ameliorative measures are not to be taken into account when determining whether the proposed use falls within the use class 'industrylight';
(c)It follows that the proposed use is not an 'industrylight' and is therefore a prohibited use.
Secondly, and alternatively, the Shire contends:
In the event the Tribunal concludes that ameliorative measures may be taken into account when classifying the use … :
(a)It is not possible to conclude on the evidence available that the use is an industry in which the processes carried on, the machinery used, and the goods and commodities carried to and from the premises do not cause any injury to or adversely affect the amenity of the locality;
(b)As it is not possible to conclude the use fits within the 'industrylight' definition, the use must either be classified as 'industry' or 'industrygeneral' and is therefore prohibited.
The applicant contends that, when the definition of 'industry' is incorporated into the definition of 'industrylight' in LPS 3, ameliorative measures at the particular industrial premises must be taken into account in determining whether the processes carried on, the machinery used, and the goods and commodities carried to and from the premises do not cause any injury to or adversely affect the amenity of the locality. The applicant also contends that, when the land use classification 'industrylight' is construed in this way, then, on the evidence presented in this case, the Tribunal should be satisfied that (including ameliorative measures at the premises to mitigate potential amenity impacts) the processes carried on, the machinery used, and the goods and commodities carried to and from the premises do not cause any injury to or adversely affect the amenity of the locality.

Can ameliorative measures be taken into account?

In support of its submission that '[a]meliorative measures are not to be taken into account when determining whether the proposed use falls within the use class "industrylight"', the Shire relies on the decision of the Tribunal in GMF Contractors Pty Ltd and Shire of SerpentineJarrahdale [2006] WASAT 353; (2006) 48 SR (WA) 1 (GMF).
GMF involved an application for review of the refusal of a development application for a waste transfer and recycling station on land zoned Rural under the Shire of SerpentineJarrahdale Town Planning Scheme No 2 (TPS 2). The applicant in that case conducted an earth moving, bitumen paving, land clearing and demolition business and proposed to crush approximately half of the nonorganic waste it removed from properties around Perth on the land the subject of the development application.
In GMF, the Tribunal determined that the proposed recycling use was an 'Industry', but did not fall within the definition of 'Industry Light', as those terms were defined in TPS 2. Significantly, the Tribunal determined that, on its proper interpretation, the definition of the term 'Industry Light' in TPS 2 did not allow proposed measures to mitigate the impacts of noise and dust generated by the recycling process to be taken into account. The proposed use was therefore properly classified as 'Industry General' under TPS 2, which was a prohibited use. The development application was refused on this basis. The Tribunal also determined that, if the proposed use were capable of approval, it would warrant refusal in the exercise of planning discretion.
The definition of 'Industry Light' in TPS 2 (set out at [28] of GMF) was in substantially the same terms as the definition of 'industrylight' in LPS 3. However, the applicant in this case submits that GMF is distinguishable from the present case, because the definition of 'Industry' in TPS 2 (set out in GMF at [29]) was materially different to the definition of 'industry' in LPS 3. In particular, the definition of 'Industry' in TPS 2 commenced with the words 'means the carrying out of any process in the course of trade or business for gain …', whereas the definition of 'industry' in LPS 3 commences with the words 'means premises used for …'.
We agree with the applicant that GMF is distinguishable in this case, because of the materially different definitions of the terms 'Industry' in TPS 2 and 'industry' in LPS 3. Because, these terms are incorporated, respectively, into the definitions of 'Industry Light' in TPS 2 and 'industrylight' in LPS 3, the materially different wording of these terms in the two schemes has the consequence that GMF is not authority to the effect that ameliorative measures are not to be taken into account when determining whether the proposed use falls within the use class 'industrylight' under the Scheme in this case.
The principles in relation to the proper interpretation of local planning schemes were set out by the Tribunal in Paintessa Developments Pty Ltd and Town of East Fremantle [2014] WASAT 81; (2014) 85 SR (WA) 312 (Paintessa) at [20] [21] as follows:
Under s 87(4) of the PD Act, TPS 3 'has full force and effect as if it were enacted by [the PD Act]'. The Court of Appeal has recently said the following in relation to statutory interpretation:
The High Court of Australia has iterated, and reiterated, that the starting point and ending point for the task of statutory construction is the statutory text. The context, including legislative history and extrinsic materials, has utility only to the extent that it assists in fixing the meaning of the statutory text: Thiess v Collector of Customs [2014] HCA 12 [22] (the court); Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 87 ALJR 98, 107 [39] (the court); Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27, 4647 [47] (Hayne, Heydon, Crennan & Kiefel JJ). The duty of a court is to give the words of the statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, but not universally, that meaning will correspond with the grammatical meaning of the provision: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [78]. (City of Kwinana v Lamont [2014] WASCA 112 at [47]).
In giving the words of a planning scheme the meaning that the maker of the scheme is taken to have intended them to have, the terms of the planning instrument:
… will ordinarily be construed in a manner which acknowledges that planning schemes are largely the work of town planners, not parliamentary counsel; ergo, they should be read as a whole and applied in a practical and commonsense, and not an overly technical way, and in a fashion which will best achieve their evident purpose.
(Chiefari v Brisbane City Council [2005] QPELR 500 at 502 (Wilson J); referred to by the Tribunal in Galloway and Associates and City of Melville [2007] WASAT 238 at [41]).
Incorporating the definition of 'industry', the term 'industrylight' in LPS 3 relevantly means:
[premises used for the manufacture, dismantling, processing, assembly, testing, servicing, maintenance and repairing of goods [or] products] … in which the processes carried on, the machinery used, and the goods and commodities carried to and from the premises do not cause any injury to or adversely affect the amenity of the locality … .
As the applicant submits, the 'composite effect of the definition [of "industrylight" incorporating "industry"] necessarily requires a consideration of the process within the context of the premises'. Although the composite nature of the definition is most unfortunate and confusing, it is apparent that, in contrast to the definition in GMF, its focus is on a particular industrial premises ('… premises used for …'), rather than on a general class of industry ('… the carrying out of any process …'). Furthermore, as the focus of the definition is on a particular industrial premises used for the manufacture, dismantling, processing, assembly, testing, servicing, maintenance or repairing of goods or products, the land use definition of 'industrylight' in LPS 3 requires that all aspects of the operation of that industrial premises, including ameliorative measures to mitigate potential amenity impacts of the use, must be considered in determining whether the processes carried on, the machinery used, and the goods and commodities carried to and from the premises do not cause any injury to or adversely affect the amenity of the locality.
Consequently, in our view, the grammatical meaning of the term 'industrylight' in LPS 3 is that proposed ameliorative measures at the premises must be taken into account in determining whether the processes carried on, the machinery used, and the goods and commodities carried to and from the premises do not cause any injury to or adversely affect the amenity of the locality and hence, relevantly, whether the proposed use is properly classified as 'industrylight' for the purposes of LPS 3 and is therefore capable of development approval.
In GMF the Tribunal applied the reasoning of the New South Wales Court of Appeal in ACR Trading Pty Ltd & Anor v FatSel Pty Ltd & Anor (1987) 11 NSWLR 67; (1987) 64 LGRA 177 (ACR) in which the Court construed the defined meaning of the land use 'offensive or hazardous industry'. The term 'offensive or hazardous industry' considered in ACR was defined to mean, unless the context or subject matter otherwise indicated or required '… an industry which, by reason of the processes involved or the method of manufacture or the nature of the materials used or produced, requires isolation from other buildings'. Kirby P (with whom Samuels JA and Hunt AJA agreed) held in ACR at 7475; 185 as follows:
Pointing to the totally contained activities carried on, with absolutely no evidence of emission of odour or other pollutants, the appellants argue that they passed each of the tests laid down. Theirs was not an activity which required (that is, for planning purposes) isolation from other buildings. Their activities could just as readily be close to other buildings because none of the processes involved, methods of manufacture or nature of the materials used or produced were such as to "require" isolation. This was because of the procedures which the appellants had adopted. …
The difficulty for the appellants is that the ordinance does not refer to the activities of a particular development except, relevantly, by reference to the industry of the developer. ... [L]ooking at the ordinance in its plain terms, both in the phrase "offensive or hazardous industry" and in the definition itself ("means an industry which") the emphasis is upon the "industry". It is not upon the particular activities of the buildings or works used. Nor does it appear to contemplate sub-branches of an industry. What is required is a classification of the 'industry' in which the activities impugned may most readily be classified. Obviously such classifications involve a degree of arbitrariness. Or, at least, of arguable categorisation. The criteria mentioned in the definition are stated in the alternative. In judging the "industry", it is sufficient if any one of the three criteria is such as to require isolation from other buildings. The definition does not read "an industry which, by reason of the way in which it is conducted … requires isolation from other buildings". It is expressed in perfectly general terms. It is pivoted on the word "industry".

However, this is not necessarily the case. If the term 'waste disposal facility' is not defined in Amendment 68 as gazetted, then the meaning of that term would need to be determined in accordance with the principles of interpretation set out in Paintessa above. This requires an analysis of text, context and purpose, with the meaning ordinarily corresponding with the grammatical meaning. Given that the definition of 'resource recovery centre' in the required modified version of Amendment 68 is taken from the model provisions and excludes the term 'waste disposal facility', the definition of that term in the model provisions may well form part of the legislative context in which the equivalent term in LPS 3 would be construed. But in any case, the meaning of the term 'waste disposal facility' could be interpreted even if it is not defined in the Scheme.
The Minister has not required the inclusion of the term 'waste disposal facility' in LPS 3. However, even if the Minister ultimately requires a further modification to Amendment 68 to include this term, the Tribunal still considers that ultimate approval of Amendment 68 in a form that would prohibit the proposed development is reasonably certain and reasonably imminent.
Finally, the applicant submits that, given the Minister's broad discretion, it does not follow that Amendment 68 will be finally approved by him in its currently modified form. However, the Minister could have refused to approve Amendment 68, but he did not. Rather, the Minister required a modification to substitute the definition in the recently gazetted model provisions without any other modification. Although the Minister has a broad discretion to approve, refuse to approve or require a further modification of Amendment 68, we consider that ultimate approval of Amendment 68 in the presently modified form is reasonably certain and reasonably imminent.

Conclusion

The Tribunal is not satisfied that the proposed development of recycling (screening and crushing) of inert construction and demolition waste materials (including all proposed ameliorative measures to mitigate impacts of the development) is one in which the processes carried on, the machinery used, and the goods and commodities carried to and from the premises do not cause any injury to or adversely affect the amenity of the locality in terms of dust, noise and visual impact. The proposed development is, therefore, properly not classified as 'industrylight' as that term is defined in LPS 3, but, rather, is properly classified as 'industrygeneral' as that term is defined in LPS 3. The proposed development is, therefore, prohibited in the Industrial Development zone under the Scheme.
It follows that the application for review should be dismissed and the decision of the Council to refuse development approval for the proposed development should be affirmed.

Orders

The Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision of the respondent made on 16 March 2015 to refuse development approval for recycling (screening and crushing) of inert construction and demolition waste materials at Nos 251, 257 and 259 Berkshire Road, Forrestfield is affirmed.

I certify that this and the preceding [243] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE D R PARRY, DEPUTY PRESIDENT