TIMBERLANE NOMINEES PTY LTD and SHIRE OF DANDARAGAN

[2007] WASAT 150

TIMBERLANE NOMINEES PTY LTD and SHIRE OF DANDARAGAN [2007] WASAT 150

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2007] WASAT 150
Act:	PLANNING AND DEVELOPMENT ACT 2005 (WA)
Case No:	DR:101/2007	Heard:	31 MAY 2007
Coram:	MR D R PARRY (SENIOR MEMBER)	Delivered:	13/06/07
No of pages:	20	Judgment Part:	1 of 1
Result:	Application for review allowed in part Decision of respondent to grant conditional development approval for fuel storage facility varied by deleting each of the three conditions imposed by the respondent and by imposing the following condition: "Fuel stored at Lot 362 Catalonia Street, Cervantes must not be used to fuel vessels from or across Reserve 31303."
Category:	B
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Parties:	TIMBERLANE NOMINEES PTY LTD SHIRE OF DANDARAGAN
Catchwords:	Town planning – Conditional approval of development application – Retrospective approval – Fuel storage facility for crayfishing boats – Site adjoins beach which is reserved for recreation – Crayfishing boats refuelled from beach by using approximately 100 metre long fuel hose and across beach by transporting fuel containers to boats by dingy – Common user service jetty approximately 200 metres from site – Fuel at common user service jetty costs more than refuelling from and across beach – "General Use" zone of Jurien Bay Marine Park – Whether the proposed development includes use of reserve to refuel boats – Nexus – Whether condition can be imposed on approval of fuel storage facility precluding use of reserve to refuel boats – Whether development approval required to refuel boats from or across reserve – Whether use of reserve to refuel boats is appropriate – Purpose of reserve – Environmental risk – Orderly and proper planning
Legislation:	Conservation and Land Management Act 1984 (WA), s 13B, s 13D Fish Resources Management Act 1994 (WA) Land Act 1933 (WA) Land Administration Act 1997 (WA), s 46 Planning and Development Act 2005 (WA), s 238(3), s 238(4), s 252(1) Shire of Dandaragan Local Planning Scheme No 7, cl 3.4.1, cl 3.4.2, cl 4.3.1, cl 4.3.2, cl 4.8, cl 9.4, cl 10.2, cl 10.2(b), Pt 3 State Administrative Tribunal Act 2004 (WA), s 29(1)
Case References:	Newbury District Council v Secretary of State for the Environment [1981] AC 578 Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : TIMBERLANE NOMINEES PTY LTD and SHIRE OF DANDARAGAN [2007] WASAT 150 MEMBER : MR D R PARRY (SENIOR MEMBER) HEARD : 31 MAY 2007 DELIVERED : 13 JUNE 2007 FILE NO/S : DR 101 of 2007 BETWEEN : TIMBERLANE NOMINEES PTY LTD

Applicant

AND

SHIRE OF DANDARAGAN
Respondent

Catchwords:

Town planning – Conditional approval of development application – Retrospective approval – Fuel storage facility for crayfishing boats – Site adjoins beach which is reserved for recreation – Crayfishing boats refuelled from beach by using approximately 100 metre long fuel hose and across beach by transporting fuel containers to boats by dingy – Common user service jetty approximately 200 metres from site – Fuel at common user service jetty costs more than refuelling from and across beach – "General Use" zone of Jurien Bay Marine Park – Whether the proposed development includes use of reserve to refuel boats – Nexus – Whether condition can be imposed on approval of fuel storage facility precluding use of reserve to refuel boats – Whether development approval required to refuel boats from or across reserve – Whether use of

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reserve to refuel boats is appropriate – Purpose of reserve – Environmental risk – Orderly and proper planning

Legislation:

Conservation and Land Management Act 1984 (WA), s 13B, s 13D

Fish Resources Management Act 1994 (WA)
Land Act 1933 (WA)
Land Administration Act 1997 (WA), s 46
Planning and Development Act 2005 (WA), s 238(3), s 238(4), s 252(1)
Shire of Dandaragan Local Planning Scheme No 7, cl 3.4.1, cl 3.4.2, cl 4.3.1, cl 4.3.2, cl 4.8, cl 9.4, cl 10.2, cl 10.2(b), Pt 3
State Administrative Tribunal Act 2004 (WA), s 29(1)

Result:

Application for review allowed in part

Decision of respondent to grant conditional development approval for fuel storage facility varied by deleting each of the three conditions imposed by the respondent and by imposing the following condition:
"Fuel stored at Lot 362 Catalonia Street, Cervantes must not be used to fuel vessels from or across Reserve 31303."

Category: B

Representation:

Counsel:

Applicant : Mr TG Darge
Respondent : Mr CA Slarke

Solicitors:

Applicant : SRB Legal
Respondent : McLeods

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

Newbury District Council v Secretary of State for the Environment [1981] AC 578

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Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30


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REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 A company that operated a fleet of nine crayfishing boats from Cervantes started refuelling its boats from and across the beach without development approval. The beach is reserved for recreation. The company also installed a 55 000 litre bulk diesel storage tank and a fuel dispensing bowser without development approval on a property adjoining the beach in order to refuel its boats. The company subsequently applied for retrospective development approval for the fuel storage facility and sought review by the Tribunal of the Shire's decision to grant conditional development approval for the facility.

2 At the hearing, the parties agreed that each of the three conditions subject to which the Shire granted development approval should be deleted. However, the Shire contended that the development application included beach refuelling, and that this aspect of the proposal should be refused, or alternatively that a condition should be imposed on the approval of the fuel storage facility precluding use of the reserve to refuel boats.

3 The Tribunal determined that the development proposed in the development application did not include use of the reserve. However, as, in the circumstances of the case, fuel storage and beach refuelling were inextricably linked, a condition precluding fuel stored at the facility from being used to fuel vessels from or across the reserve fairly and reasonably related to the proposed development and could be lawfully imposed. The Tribunal also determined that this condition should properly be imposed having regard to the purpose of the reserve, considerations of orderly and proper planning and the potential environmental risk.

Introduction

4 Cervantes is a port for boats involved in the crayfishing industry. Timberlane Nominees Pty Ltd (applicant) is the trustee for the Generation Fisheries Unit Trust which trades as Generation Fisheries. Generation Fisheries has a fleet of nine crayfishing boats operating from Cervantes.

5 Historically, Cervantes had three private wooden jetties servicing the crayfishing fleet. The boats tied up to one of these jetties to unload their catch and were refuelled while berthed. Storage facilities and processing plants were developed on freehold and leasehold land across the beach from the jetties. Fuel storage tanks were also located on this land and fuel

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pipes ran under the beach and up onto the jetties, from where the boats were refuelled.

6 Mr Ian Rennie, the Deputy Chief Executive Officer of the Shire of Dandaragan (Shire or Council), who has been an employee of the Shire for more than 25 years, gave evidence, which I accept, that the continued use of the jetties was considered inappropriate for a number of reasons including:

"(a) the wooden jetties were ageing;

(b) the operation of private jetties inhibited the number of operators able to use jetty facilities;

(c) the proliferation of private jetties was considered undesirable, and not consistent with the designated purpose of the Recreation Reserve [namely the beach – see below]; [and]

(d) the risk of pollution through fuel spills and other contamination events was elevated by having three separate jetty facilities."

7 Mr Rennie gave evidence, which I accept, that "the solution ultimately fixed upon was for a 'common user' service jetty facility … to be developed just to the north of the three private jetties". The common user service jetty, described by Mr Rennie as offering a "state of the art" fuelling facility, was completed and became operational in 2001. It appears that the fuel storage tanks on the properties adjacent to the three old private jetties were removed at about this time. According to a letter from the Department for Planning and Infrastructure to the Shire dated 5 February 2007, a company called Comen Ltd, which was comprised mainly of local fishermen, won the public tender to provide the common fuelling facility on the basis that it would make a $500 000 contribution to the construction of the jetty and recover its contribution as part of its overall fee structure. Comen Ltd was given a 10 year exclusive right to fuel over the common user jetty to assist it in recovering its $500 000 contribution. The cost of purchasing fuel at the common user jetty is approximately 16 cents per litre more than the cost at which the applicant can purchase fuel elsewhere and refuel its boats. According to the evidence of Mr David Thompson, a director of the applicant and the managing director of Generation Fisheries, this differential amounts to approximately $100 000 per year for the Generation Fisheries fleet.

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8 The Generation Fisheries fleet used the refuelling facilities at the common user jetty in the 2001/2002, 2002/2003, 2003/2004 and 2004/2005 crayfishing seasons. The crayfishing season lasts from mid November until 30 June the following year. The Generation Fisheries fleet has not used the refuelling facilities at the common user jetty in the 2005/2006 or 2006/2007 crayfishing seasons, although the fleet continues to use the jetty for other purposes at an annual fee of $2000 per boat. During the first two months of the 2005/2006 crayfishing season, the Generation Fisheries fleet used one of the old private jetties to refuel. However, in January 2006, the Department for Planning and Infrastructure removed the jetty that Generation Fisheries was using and a second jetty, leaving only one of the three original jetties. It was at about this time that Generation Fisheries commenced refuelling its fleet from the beach adjoining Lot 362 Catalonia Street, Cervantes (site).

9 The site has been used as a hard stand area for storage of fishing boats in the off season for more that 30 years. The applicant has owned this site for the last 15 years. The beach is part of Reserve 31303 which was created for the designated purpose of "Recreation" under the former Land Act 1933 (WA) and which is within in the care, control and management of the Shire under a Management Order made pursuant to s 46 of the Land Administration Act 1997 (WA) (LA Act) subject to the condition that it is "to be used for its designated purpose". Reserve 31303 is also classified as a Local Reserve for "Parks and Recreation" under Pt 3 of the Shire of Dandaragan Local Planning Scheme No 7 (LPS 7 or Scheme).

10 Beach refuelling of the Generation Fisheries fleet involves:

• the three larger boats being refuelled through an approximately 100 metre long fuel hose (transported to the boat by a dinghy) from a 2200 litre capacity tank mounted on a trailer which is driven from the site onto the beach and reversed close to the waterline (see photographs in Attachment A); and

• the six smaller boats being refuelled from transportable fuel tanks taken from the site across the beach and into dinghies which then proceed to the boats.

11 The refuelling of each of the three larger boats through the fuel hose from the fuel tank mounted on the trailer takes approximately 45 minutes. During the crayfishing season, each of the three larger boats requires
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refuelling one to two times a week and the procedure therefore takes place approximately five to six times a week. This means that the section of the beach in question is occupied by Generation Fisheries for up to four and a half hours a week during the crayfishing season.

12 At the commencement of the 2006/2007 crayfishing season, in about November 2006, the applicant installed a 55 000 litre capacity bulk diesel storage tank and a fuel dispensing bowser on the site adjacent to Reserve 31303, without having applied for development consent under LPS 7. The majority of the site and of the adjoining property to the south (which is also owned by the applicant and is used as a crayfish processing facility) is zoned "Industrial" under LPS 7. Use of land zoned "Industrial" as a fuel depot is not permitted under LPS 7, unless the Shire has exercised its discretion by granting planning approval, after giving special notice in accordance with cl 9.4 of the Scheme: see cl 4.3.1 and cl 4.3.2. Shortly after the tank was installed, the Shire requested the applicant to make an application for retrospective development approval. In late December 2006, the applicant lodged a development application with the Shire for retrospective approval of development described as "bulk diesel storage" on the site.

13 On 18 January 2007, the Shire resolved to advertise "the proposal for a fuel depot" at the site in accordance with cl 9.4 of the Scheme, to refer the application to the Department of Environment and Conservation for comment, and to "require Mr Thompson to provide detail of what activity relating to fuel transporting will occur on the foreshore 'Recreation Reserve' vested in the [Shire], and seek staff to prepare a report on the appropriateness of this activity". On 21 January 2007, Mr Thompson sent a facsimile to the Shire providing details of how Reserve 31303 is used to refuel Generation Fisheries' fleet. Based on the information provided by Mr Thompson, the Shire treated the application for development approval as involving an application for:

• retrospective approval of the development and use of the site for a fuel depot; and

• the use of Reserve 31303 for the purpose of refuelling fishing boats.

14 These two aspects were advertised for public comment in accordance with cl 9.4 of LPS 7, resulting in:

• the Department for Planning and Infrastructure (Coastal Facilities Branch) not supporting either aspect;

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• the Department for Planning and Infrastructure (State Land Services Branch) advising that use of Reserve 31303 for beach refuelling is considered incompatible with the designated purpose of the Reserve;

• the Marine Parks and Reserves Authority, which manages the Jurien Bay Marine Park abutting the coast of Cervantes, opposing both aspects;

• the Department of Environment and Conservation not supporting either aspect; and

• twelve submissions (including one petition) in opposition and two submissions in support of both aspects.

15 On 22 February 2007, the Council accepted its officer's recommendation and made the following two resolutions:

"That Planning Approval be granted for locating a bulk storage fuel tank on Lot 362, Catalonia Street, Cervantes, subject to the following conditions;

• Compliance with LPS 7.

• Approval of the Department of Planning and Infrastructure – Environment and Natural Resource Management – Coastal Planning, relating to costal set backs and environmental issues.

• Approval of the Department of Consumer and Employment Protection, being current."

"That the application for the use of portion of Reserve 31303 for the purpose of re-fuelling of fishing boats be declined as the use is not compatible with the purpose of the Management Order in favour of Council, following receival of advice from the Department of Planning and Infrastructure – Coastal Facilities, and Department for Planning and Infrastructure – Land Asset Management. Further the proposed use is not in accordance with the Strategic intent of development of the Cervantes foreshore in the vicinity of the Cervantes Keys Projects." (Both resolutions reproduced as written.)

16 On 21 March 2007, the applicant commenced these proceedings pursuant to s 252(1) of the Planning and Development Act 2005 (WA)
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(PD Act) for review of the Shire's decision in its first resolution made on 22 February 2007 to grant conditional development approval for the fuel storage facility at the site. In particular, the applicant seeks the deletion of the conditions in the second and third bullet points of the Shire's resolution. The applicant contends in the proceedings that the second resolution does not convey a reviewable decision, because it did not apply for development approval for use of Reserve 31303.

17 In the week prior to the final hearing, the Shire indicated that it consents to the deletion of the conditions contained in the second and third bullet points of its resolution. At the commencement of the hearing, Mr CA Slarke, counsel for the Shire, properly conceded that the condition contained in the first bullet point of the Shire's first resolution is too vague to be lawfully imposed and agreed to its deletion. However, Mr Slarke contends that the development proposed in the development application which is the subject of this review includes the use of Reserve 31303 to refuel fishing boats and that the Tribunal should affirm the Shire's decision to refuse this aspect of the proposed development. Alternatively, Mr Slarke contends that the Shire's second resolution made on 22 February 2007 can be fairly construed as a condition subject to which it granted development approval for the fuel storage facility on the site and the Tribunal should confirm this condition. Mr Slarke suggests that, if this "condition" is not sufficiently clear, the Tribunal, exercising functions and discretions under s 29(1) of the State Administrative Tribunal Act 2004 (WA) corresponding to those exercisable by the Shire in making the decision to grant conditional development approval, should impose a condition that gives effect to the intent of the Council's resolution.

18 The President formed the opinion that, although the proceedings concern development with a value of less than $250 000 (see PD Act s 238(3)), the application is likely to raise complex or significant planning issues (see PD Act s 238(4)), and listed the matter for hearing before me in Cervantes. By consent, I conducted the hearing at the Shire offices. I took a view of the site and of the locality accompanied by representatives of the parties. At the conclusion of the hearing I made the following orders:

1. The application for review is allowed in part.

2. The decision of the respondent made on 22 February 2007 to grant conditional development approval for a fuel storage facility at Lot 362 Catalonia Street, Cervantes is varied as follows:

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(a) each of the three conditions imposed by the respondent are deleted; and

(b) the following condition is imposed:

"Fuel stored at Lot 362 Catalonia Street, Cervantes must not be used to fuel vessels from or across Reserve 31303."

19 I said that I would provide written reasons for my decision. These are my reasons.

Issues for determination

20 The following four principal issues arise for determination in this review:

(1) Does the development which is proposed in the development application include use of Reserve 31303 to refuel fishing boats?

(2) If the answer to (1) is "no", could a condition be imposed on the approval of the development application for the fuel storage facility precluding use of Reserve 31303 to refuel fishing boats?

(3) Is development approval required for the use of Reserve 31303 to refuel fishing boats?

(4) Is use of Reserve 31303 to refuel fishing boats appropriate having regard to relevant environmental planning considerations?

21 I will address each of these issues in turn.

Does the development proposed in the development application include use of the Reserve?

22 Mr Slarke submits that use of Reserve 31303 for refuelling fishing boats ultimately forms part of the application for development approval. Mr Slarke notes that Mr Thompson provided details of this activity to the Shire. He notes that there was no objection or adverse comment by the applicant to the Shire's advertising of the two aspects of what it considered to be single development, namely, the fuel storage facility at the site and the beach refuelling from the Reserve. Finally, Mr Slarke submits that the application for review itself does not assert that the

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applicant only applied for development approval for the fuel storage at the site.

23 Mr TG Darge, counsel for the applicant, submits that the application made by his client was purely for the fuel depot at the site. The applicant did not apply for development approval for use of Reserve 31303 for beach refuelling.

24 The Tribunal finds that the development which is the subject of the development application does not include the use of Reserve 31303 for refuelling. The development application form and accompanying documents clearly identified the proposed use as "bulk diesel storage" and the property the subject of the proposed use as the site. Although, in response to the Council's request, Mr Thompson provided details of the beach refuelling which was occurring and was proposed to continue to occur on Reserve 31303, the applicant did not make application for development approval for that use. Furthermore, it was not open to the Council to include use of Reserve 31303 in the development application under consideration by its advertising of it. Finally, the failure of the application to the Tribunal to assert that the development application does not include use of the Reserve does not alter the fact that the application made by the applicant to the Shire did not seek approval for that use. The officer's report to the Council meeting on 18 January 2007 correctly described the proposal in the application as "proposed bulk storage of fuel on Lot 362 Catalonia Street, Cervantes".

Could a condition be imposed precluding use of the Reserve to refuel boats?

25 Mr Slarke submits that a condition which would preclude use of Reserve 31303 to refuel boats is capable of lawful imposition on approval of the fuel storage facility at the site and is reasonable and appropriate in the circumstances of the case. In contrast, Mr Darge submits that the disposal of fuel is a separate issue to its storage at the site.

26 In Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30 at [57], McHugh J in the High Court of Australia endorsed the test for the validity of a condition of planning approval articulated by the House of Lordsin Newbury District Council v Secretary of State for the Environment [1981] AC 578 in the following terms:

"A condition attached to a grant of planning permission will not be valid therefore unless:

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1. The condition is for a planning purpose and not for any ulterior purpose …

2. The condition reasonably and fairly relates to the development permitted.

3. The condition is not so unreasonable that no reasonable planning authority could have imposed it."

27 I consider that a condition precluding fuel stored at the site from being used to fuel vessels from or across Reserve 31303 satisfies each of the Newbury tests endorsed in Temwood Holdings and is, therefore, capable of lawful imposition.

28 It follows from the discussion in relation to issue (4) below that the condition is for the planning purposes of maintaining the purpose of Reserve 31303, promoting orderly and proper planning of the locality, and minimising the potential for environmental harm. The condition is not for any ulterior purpose.

29 The condition reasonably and fairly relates to the development permitted, because, in the circumstances of this case, storage of fuel for crayfishing boats and the refuelling of the boats from and across the beach are inextricably linked. Although, as I have found, the development application made to the Shire did not seek approval for beach refuelling on Reserve 31303, the development proposed in the development application is plainly to facilitate that use. It has no other purpose.

30 Finally, as is apparent from the discussion below in relation to issue (4), the condition is not manifestly unreasonable; indeed, it is manifestly reasonable and appropriate on a proper assessment of the proposed development under LPS 7.

Is development approval required for use of the Reserve to refuel boats?

31 In its statement of issues, facts and contentions, the applicant asserts that approval is not required for its use of Reserve 31303 to refuel fishing boats. It contends that Reserve 31303 has been used since the mid 1970s, and is continuing to be used, in association with the shipyard at the site for crayfishing vessels and that "this association with the shipyard includes refuelling and a range of other industrial fishing activities". Mr Thompson gave evidence that, since the applicant's purchase of the site in 1991, "Reserve 31303 has been continually used as part of the crayfishing industry operations in this location [including] activities

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associated with access, launching vessels, unloading catch, baiting and refuelling". He gave evidence that eight or nine local fishermen currently refuel across Reserve 31303 by carrying fuel containers to dinghies.

32 Clause 4.8 of LPS 7 states that the Scheme is not to be taken to prevent "the continued use of any land for the purpose of which it was being lawfully used immediately prior to the Gazettal date". The Gazettal date of the Scheme was 24 October 2006. Given the seasonal nature of crayfishing, it would be sufficient to satisfy this provision that Reserve 31303 was being lawfully used for beach refuelling at the end of the 2005/2006 season, namely, in June 2006. However, the Tribunal is not satisfied that the use of Reserve 31303 for beach refuelling of boats was lawful as a matter of planning law in June 2006.

33 As noted earlier, historically, the crayfishing fleet in Cervantes was refuelled at the three private wooden jetties via pipes under the beach. Although the applicant did not present evidence as to when planning control first commenced in Cervantes, the Tribunal assumes for the purposes of this review, and it is likely to have been the case, that the jetty refuelling pre-dated planning control. However, that use ceased and was abandoned at about the time that the common user jetty was commissioned. Furthermore, the applicant's beach refuelling use is different to the jetty refuelling that historically occurred. Finally, the applicant's beach refuelling use only began in early 2006, well after the commencement of planning control. The evidence does not reveal when other fishermen commenced transporting fuel across the beach to dinghies. In any case, this is not the method that was historically used.

34 It follows that development approval is required for use of Reserve 31303 to refuel boats. There is no evidence that development approval has been sought or obtained to authorise that use.

Is use of the Reserve to refuel boats appropriate?

35 Mr Slarke contends that the applicant's use of Reserve 31303 to refuel crayfishing boats is inappropriate and warrants the imposition of a condition on the approval of the fuel storage facility at the site to preclude it, for four reasons. The fourth reason, which was effectively added on the eve of the hearing, concerns the lawfulness of the use of Reserve 31303 under the LA Act. As I said at the conclusion of the hearing, because this issue was raised so late and could not be properly responded to, and because I accept Mr Slarke's other three contentions and consider that they warrant the imposition of the condition set out earlier, I have not considered the fourth contention in this review.

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36 Clause 3.4.1 of LPS 7 provides that a person must not use a Local Reserve or commence or carry out development on a Local Reserve without first having obtained development approval under the Scheme. Clause 3.4.2 provides that, in determining an application for development approval, the Shire is to have regard to the matters set out in cl 10.2 and the ultimate purpose intended for the Reserve. Although this review does not concern a development application for approval for the use of Reserve 31303, the Tribunal must have regard to the requirements of orderly and proper planning in assessing the development application for the fuel storage facility and in determining subject to what conditions it should properly be approved: LPS 7 cl 10.2(b). The requirements of orderly and proper planning relevantly include having due regard to the ultimate purpose intended for Reserve 31303, as beach refuelling from the Reserve is inextricably linked to the proposed development.

37 I accept Mr Rennie's evidence that "a fundamental problem" with the use of Reserve 31303 for fishing boat refuelling is that it cannot be reasonably said to be consistent with the designated purpose of the "Recreation" reservation under the LA Act or the "Parks and Recreation" reservation as a Local Reserve under the Scheme.

38 Mr Darren Evans, a town planner who gave evidence on behalf of the applicant, characterised the relevant portion of Reserve 31303 as "degraded with little or no remanent vegetation … having little conservation or recreation value, with its amenity dominated Marine based industry". Although it is correct that the foreshore adjacent to the applicant's other property to the south is "degraded", because concrete and rock has been piled on to the beach, the portion of the beach used by the applicant for beach refuelling, which is between the site and the water, is not degraded at all. The amenity of this section of foreshore is certainly affected by marine based industry. However, I do not accept that it is of "little conservation or recreation value". This portion forms part of the wider foreshore of Cervantes to which the public has access and which is reserved for recreation. Notwithstanding the placement of concrete and rock to the south, it is possible to walk along the whole of the foreshore. Furthermore, the Shire of Dandaragan Strategic Plan, which was advertised for public comment in April 2007 and was adopted by the Shire on 24 May 2007, identifies as one of its actions:

"To … deliver a staged enhancement of the Cervantes foreshore as a vibrant recreational precinct by undertaking the following,

…

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In consultation with the community, develop and implement plans for the staged enhancement of the Cervantes foreshore as a premier recreational precinct and tourist attraction." (cl 1.2.5)

39 As Mr Rennie said, the Shire's Strategic Plan reinforces the intended ultimate purpose of Reserve 31303 for recreation.

40 The use of Reserve 31303 for beach refuelling is inconsistent with the purpose of the reservation, both because it precludes or inhibits access to part of the Reserve for a substantial period during the crayfishing season and because the beach refuelling use is not for recreational or ancillary purpose, but rather is for a private, commercial purpose. It matters not that there are other, more attractive sections of the Reserve for people to swim, walk or otherwise recreate. The beach is available for recreational purposes and the Shire's Strategic Plan aims to enhance its attraction.

41 Furthermore, the use of Reserve 31303 for beach refuelling is inconsistent with the orderly and proper planning of the locality. As Mr Rennie observed, beach refuelling in this location is contrary to orderly and proper planning "in that it undermines the proper planning reasons for the creation of the [common user jetty], and reintroduces, and perhaps increases, some of the problems which the [common user jetty] was intended to address". The Department for Planning and Infrastructure has made essentially the same point in correspondence to the Shire. One of the main reasons for creating the common user jetty was to ensure that all refuelling of the crayfishing fleet took place from that jetty. The common user jetty is approximately 200 metres to the north of the site.

42 The use of the foreshore for refuelling is also plainly inconsistent with orderly and proper planning reflected in the action set out in the Strategic Plan.

43 Mr Evans considers that the use of the foreshore for refuelling is consistent with orderly and proper planning, because it is consistent with Policy No DC 6.1 - Country Coast Planning Policy (DC 6.1) published by the Western Australia Planning Commission. Clause 3.2.1 of that Policy gives priority to coastal dependent developments over non coastal dependent developments. Clause 3.2.2 identifies marine industries as "essential services" and orders these industries above public recreation and amenity. However, I accept Mr Rennie's evidence that, in the circumstances of this case, DC 6.1 does not have the effect that the use of Reserve 31303 for beach refuelling is consistent with orderly and proper

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planning or that it is appropriate, because the Reserve is expressly reserved for recreational purposes and the Council and the Tribunal on review should properly give appropriate weight to that reservation and the fact that the Generation Fisheries fleet is able to be refuelled at the common user jetty 200 metres to the north of the site without use of the Reserve.

44 Mr Evans also considers that the use of the Reserve for refuelling is consistent with orderly and proper planning, because it is done at Wedge Island, which is reserved for "Parkland, Recreation and the Letting of cottages thereon". However, there is no common user jetty available at Wedge Island. The Island is Crown land vested in the Department of Environment and Conservation. Mr Kevin Crane, the Marine Park Coordinator of the Jurien Bay Marine Park and an officer of the Department of Environment and Conservation, expressed the sensible policy position of the Department in relation to Wedge Island and similar places that in this large and sparsely populated State, where fishing and related industries often pre-date the establishment of marine parks and other controls, beach refuelling may be acceptable where there is an ongoing historical use and no better alternative. However, in the case of Cervantes, there is an available and better alternative which is consistent with orderly and proper planning, namely, the common user facility.

45 Mr Darge submits that the use of the Reserve to refuel boats is consistent with the nature of the locality, the industrial use of the adjoining properties and the maintenance of the "Industrial" zoning of the site, and is therefore consistent with orderly and proper planning. However, the reserve is not zoned "Industrial", but rather is reserved for "Parks and Recreation" under the Scheme. Refuelling facilities are available at the common user jetty. The industrial use and zoning of the site does not make ancillary use of the adjoining beach acceptable.

46 Finally, I accept Mr Slarke's submission that beach refuelling is undesirable, in the circumstances of this case, because it involves elements of risk to the Jurien Bay Marine Park and to the beach which are unnecessary given the existence of the common user facility.

47 The Cervantes coast, like over three quarters of the Jurien Bay Marine Park, is zoned "General Use" under s 13B of the Conservation and Land Management Act 1984 (WA) (CLM Act). Under s 13D of the CLM Act, aquaculture, commercial fishing and recreational fishing may be carried out in the General Use zone in accordance with the requirements of the Fish Resources Management Act 1994 (WA). However, Mr Crane

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explained that the ecological value of the Jurien Bay Marine Park includes the whole park. The key component of the park is that it includes a large temperate reef that creates shallow lagoons and supports a diverse range of flora and fauna. He noted that while refuelling is not prohibited in the zone, "there is necessarily an element of risk of spillage involved in any refuelling activity" and to minimise this risk, refuelling requires "best environmental practice". Best practice refuelling is reflected in the licensed refuelling facility at the common user jetty. Beach refuelling at Cervantes "cannot be described as best practice". Additionally, Mr Crane expressed the opinion that it is undesirable to have multiple fuel outlets within or adjacent to the marine park area. Multiplying the number of outlets necessarily multiplies the risk of spillage.

48 Although Mr Crane has not undertaken a specific assessment of the way Generation Fisheries carries out beach refuelling or of the operation of the common user facility, he gave three specific reasons why he is of the view that refuelling off the beach involves a greater environmental risk than a purpose built facility. First, boats that are refuelled off the beach are more likely to move about than boats refuelled at the jetty. Second, there is a greater risk of rupture, because of the greater length of hose required for beach refuelling and the pressure and tension created by pulling the hose out to the boat. Third, beach refuelling gives rise to the potential for a vessel to come across the hose and sever it.

49 Mr Thompson gave evidence that his boats are always anchored at both the front and the back when being refuelled and that the fuel line sinks to the bottom, rather that staying on the surface. He said that over the two seasons in which he has used beach refuelling, he has never had a fuel spill. He noted that both refuelling methods he uses are manned at all times and that emergency safety procedures are in place. In contrast, Mr Thompson said that there is no emergency plan and no automatic cut off at the common user jetty. The applicant has obtained a dangerous goods storage licence from the Department of Consumer and Employment Protection for the fuel storage facility at the site, and that Department is aware of the beach refuelling, because its officer observed, photographed and videoed the refuelling of vessels from the trailer. The applicant holds an insurance policy regarding transferring of dangerous goods via the beach to a boat or boat to boat to the value of $5 million.

50 However, for the reasons identified by Mr Crane, beach refuelling involves elements of risk so that it could not be described as "best environmental practice" when the common user jetty is available. Even if anchored at both front and back, a boat is unlikely to be as stable

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as if it is tied to a solid jetty. The applicant did not provide any satisfactory response to Mr Crane's evidence about the additional risk created by the length and tension of the pipe. Although Mr Thompson's intention is to allow the hose to sink during the operation, for a time at least, it will be on or near the surface, with consequent risk. While the quantity of fuel that is likely to be released into the environment in the event of a rupture of the pipe - provided that the rupture is recognised immediately and the flow of fuel manually cut off - is not significant, beach refuelling in this case creates a risk of environmental harm that is avoidable and unnecessary.

51 Mr Thompson gave evidence that on Sunday 27 May 2007, four days before the hearing, he was contacted by a "concerned ratepayer" who told him that there was a fuel spill at the common user jetty. Mr Thompson said that he went down to the jetty with a camera and observed and photographed diesel fuel in the water adjacent to the jetty. He said that he spoke to a fisherman who told him that the fuel in the water was worse when boats were refuelling.

52 The Tribunal is not satisfied that there was a fuel spill from the common user jetty. Mr Thompson said that he looked down to see where the fuel was coming from, but could not see any of the pipes leaking. Furthermore, the Tribunal has serious doubts about the veracity of this aspect of Mr Thompson's evidence. Although the common user jetty has been operating for five years, there is no evidence of any leak prior to the Sunday of the week of the hearing. Although Mr Thompson said that he had the names and telephone numbers of the "concerned ratepayer" and the fisherman, and although the applicant was represented by counsel, no independent witness was called to corroborate this evidence. Because the evidence was presented orally, the Shire was unable to make enquiries or properly test the evidence.

53 For these reasons the Tribunal considers that the use of the Reserve for beach refuelling is inappropriate having regard to relevant environmental planning considerations.

Conclusion

54 The Tribunal has determined that the development proposed in the development application which is the subject of this review does not include the use of Reserve 31303 to refuel fishing boats. However, the Tribunal has also determined that a condition can and properly should be imposed to preclude beach refuelling of fishing boats with fuel stored at the proposed facility. In the circumstances of this case, there is an

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inextricable link between the storage of fuel for crayfishing boats at the site and the refuelling of the boats from and across the beach. Consequently, a condition which precludes fuel stored at the site from being used to fuel vessels from or across the Reserve fairly and reasonably relates to the proposed development and should properly be imposed having regard to the purpose of the Reserve, considerations of orderly and proper planning and the potential environmental risk.

I certify that this and the preceding [54] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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MR D R PARRY, SENIOR MEMBER

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Attachment A