URBAN RESOURCES PTY LTD and CITY OF SWAN
[2016] WASAT 81
•18 JULY 2016
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: URBAN RESOURCES PTY LTD and CITY OF SWAN [2016] WASAT 81
MEMBER: JUDGE T SHARP (DEPUTY PRESIDENT)
HEARD: 12 MAY 2016
DELIVERED : 18 JULY 2016
FILE NO/S: DR 422 of 2015
BETWEEN: URBAN RESOURCES PTY LTD
Applicant
AND
CITY OF SWAN
RespondentPAUL NOONE
WENDY NOONE
Interveners
Catchwords:
Town planning Application for review by judicial member of decision of nonlegally qualified member Scope of review Requirement to identify error of law No error of law identified
Legislation:
City of Swan Local Planning Scheme No 17, cl 10.2
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 241, s 241(1)(a), s 244, s 252, Pt 14
State Administrative Tribunal Act 2004 (WA), s 3, s 31
Result:
Application for review dismissed
Determination of Tribunal in Urban Resources Pty Ltd and City of Swan [2015] WASAT 117 affirmed
Summary of Tribunal's decision:
Urban Resources Pty Ltd sought a review by a judicial member under s 244 of the Planning and Development Act 2005 (WA) of a determination of the Tribunal constituted without a legally qualified member. The Tribunal constituted by a judicial member affirmed the Tribunal's earlier decision on the basis that the grounds of the application did not disclose any error of law. The application was dismissed.
Category: B
Representation:
Counsel:
Applicant: Mr P McQueen
Respondent: Mr C Slarke
Interveners : Mr P Pearlman
Solicitors:
Applicant: Lavan Legal
Respondent: McLeods
Interveners : Environmental Defender's Office WA
Case(s) referred to in decision(s):
A v Corruption and Crime Commissioner [2013] WASCA 288
City of South Perth v ALH Group Property Holdings Pty Ltd [2016] WASC 141
Marshall v Metropolitan Redevelopment Authority [2015] WASC 226
Permanent Trustee Australia Limited v City of Wanneroo (1994) 11 SR (WA) 1
Ruhamah Property Co Ltd v Federal Commissioner of Taxation (1928) 41 CLR 148
Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74
Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296
Temwood Holdings Pty Ltd v Western Australian Planning Commission [2001] WASCA 199
Urban Resources Pty Ltd and City of Swan [2015] WASAT 117
Zampatti v Western Australian Planning Commission [2010] WASCA 149
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
This matter comes before the Tribunal by way of an application by the applicant (Urban Resources) under s 244 of the Planning and Development Act 2005 (WA) (PD Act). The application is for a review of a decision of the Tribunal constituted by Member Ms R Moore reported as Urban Resources Pty Ltd and City of Swan [2015] WASAT 117 (Member's Decision). Under s 244(1) of the PD Act, the Tribunal, constituted by a judicial member, upon application by a party, may 'review a direction, determination or order upon a matter involving a question of law that was made by the [Tribunal] when constituted without a legally qualified member …'. Ms Moore is not a legally qualified member of the Tribunal within the meaning of s 3 of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
Background
The land the subject of the application is Lot 5892 Maralla Road, Bullsbrook being the whole of the land comprised in Certificate of Title Volume 355 Folio 124A (Land). The Land is bounded by Maralla Road and Halden Road and is located approximately 2.6 kilometres to the south of Warbrook Road and 8.2 kilometres to the west of the Great Northern Highway.
The Land is zoned 'Rural' under the Metropolitan Region Scheme (MRS) and 'General Rural' under the City of Swan Local Planning Scheme No 17 (LPS 17).
The Land comprises approximately 163 hectares. There is a sand mine area within the Land comprising approximately 110 hectares. Urban Resources has an existing approval to excavate clean sand from the Land. The existing approval was granted on 12 October 2010 under the MRS with conditions (2010 WAPC approval).
In particular, Condition 25 of the 2010 WAPC approval required Urban Resources to prepare a further transport assessment for consideration by the respondent (City) prior to the operation exceeding anticipated volume of 150,000 tonnes per annum and/or the operations exceeding 40 truck movements per day.
Under Condition 25 of the 2010 WAPC approval, Urban Resources submitted a transport assessment to the City for the proposed increase in levels of extraction to 500,000 tonnes per annum. On 8 July 2013, the City resolved not to support any increase in truck movements above the conditioned 40 movements per day.
In April 2014, Urban Resources' planner lodged an application for development approval pursuant to both LPS 17 and the MRS with the City and with WAPC respectively 'for the extraction and transportation of 500,000 tonnes per annum of sand from approved and operational sand mine located at [the Land]' (Application).
In the absence of a response from the City, on 15 July 2014, Urban Resources applied to the Tribunal under s 252 of the PD Act for a review of the City's deemed refusal of the Application.
The review proceeding commenced and the matter was referred to mediation. The City was subsequently ordered to reconsider its deemed refusal pursuant to s 31 of the SAT Act.
On 24 February 2015, the WAPC approved the Application with conditions (2015 WAPC approval). Urban Resources says that the conditions in the 2015 WAPC approval did not limit the tonnage of material to be excavated nor did they limit the number of truck movements or the route to be used by trucks accessing the land. However, that is not entirely correct. Condition 2 of the 2015 WAPC approval limits the approved extraction of materials to 500,000 tonnes per annum.
The City, however, refused the Application at its ordinary council meeting on 25 February 2015 and the review proceeding in the Tribunal was programmed to a hearing.
The Tribunal, constituted by Ms Moore, heard this matter over three days on 18, 19 and 23 June 2015 (Review Hearing). The Tribunal reserved its decision.
On 7 October 2015, the Member dismissed the application for review and affirmed the decision made by the City on 25 February 2015 to refuse development approval. The Member's Decision was published on 23 October 2015.
Member's Decision
The Tribunal's determination and the reasons for the determination are set out in the Member's Decision.
At [3] [31] of the Member's Decision, the Tribunal describes the background to the City's decision and key aspects of the statutory and policy planning framework, including the 2010 WAPC approval, the 2015 WAPC approval, LPS 17, State Planning Policy No 2.4 Basic Raw Materials (SPP 2.4) and the MRS itself.
At [32] [33] of the Member's Decision, the Tribunal sets out what the parties identified as the principal issues for determination as follows:
[32]The respondent identified, and the applicant agreed, that the following three issues arise for determination in this matter:
1.Should the proposed development be refused as a consequence of the adverse effect of increased truck movements on amenity?
2.Is it consistent with orderly and proper planning to approve the proposed development?
3.In the event the proposed development is approved, should conditions be applied to address hours of operation, truck routes and the number of truck movements?
[33]The main consideration is the amenity impact arising from the transportation of 500,000 tonnes per annum of excavated sand from the subject site …
At [34] to [36], the Tribunal sets out the approach to be taken to assess the amenity impact.
The evidence given by a number of local residents is described at [37] to [42]. Expert evidence given at the hearing is described at [43] to [50].
The Tribunal then made the following findings:
[51]The development application the subject of this review described the proposed route to be taken by trucks entering and leaving the site. The evidence led by both parties initially focused on the proposal by the applicant that the truck movements would be split equally between a north and a south route. The applicant submitted a revised haulage route at the end of the hearing which the respondent and the intervenors objected to on the basis that the decision under review and the majority of the hearing had been predicated on the original proposal identified in the [traffic management plan].
[52]The Tribunal notes these concerns about the change in the proposed haulage route by the applicant late in the proceedings but does not believe that this prevents the appropriate assessment of the development application under review. The changes are only in relation to the route taken by trucks after the intersection of Warbrook Road and Railway Parade and for the purposes of assessing the impact on amenity the Tribunal considers the immediate locality to be the haulage route from the subject site along Halden Road and Warbrook Road to the intersection of Warbrook Road and Railway Parade.
[53]The existing amenity in the immediate locality is rural, characterised by open agricultural land with houses set back, but visible, from the road. Evidence has been presented to the Tribunal regarding the rural lifestyle of the local residents which includes the keeping of animals and the riding of horses. Evidence has also been presented in regard to the existing traffic volumes along Halden and Warbrook Roads.
[54]If the applicant was granted approval to increase their truck movements to an average of 160 a day that would mean an extra 120 truck movements per day on average which is an extra 720 per week. This can be considered in the context of the December 2014 traffic count which identified a total of 1717 vehicle movements in a week, of which approximately 15% were trucks. An additional 720 truck movements gives a total of 2,437 total vehicle movements per week of which 40% will be truck movements. Obviously this rough calculation is based on a snapshot traffic count taken during one week in December 2014 only but it does help the Tribunal to quantify the degree of impact.
[55]In terms of future amenity, it was common ground that the locality will be affected by the construction of the Perth Darwin National Highway (PDNH) at some point in the future. Having said that, the Tribunal is of the view that, notwithstanding the existence of the PDNH Concept Plan, there are still many uncertainties regarding timing and points of access which make it difficult to assess the impact of the PDNH on the future amenity of the locality.
[56]While it is acknowledged that rural amenity is not the same as residential amenity, the Tribunal is satisfied that such a significant increase in truck movements will have a significant adverse impact on the amenity of the locality by limiting the rural and residential activities of the residents of the area, particularly in the immediate locality of Halden Road and Warbrook Road (to the intersection of Railway Parade). The Tribunal agrees with the submissions of the respondent and the intervenors that an average of 160 (or a maximum of 200) truck movements per day is beyond the reasonable contemplation of the current planning framework.
[57]The planning framework, which includes SPP 2.4 and LPS 17, identifies the site as being located within a Priority Resource Location. SPP 2.4 acknowledges the importance of basic raw material resources (such as sand) being located close to established and developing parts of the metropolitan region in order to keep down the costs of land development and contribute to the availability of affordable housing. In this case the site is within close proximity to a number of new residential developments. Notwithstanding this, one of the objectives of SPP 2.4, is to 'ensure that the use and development of land for the extraction of basic raw materials does not adversely affect the environment or amenity in the locality of the operation during or after extraction'.
[58]Mr Pearce [Urban Resources' expert planning witness] also argued that duration of impact is a legitimate consideration and that sand extraction is a temporary activity which may be exhausted within 12 years in this particular location. The time frame of 12 years is predicated on an extraction rate of 500,000 tonnes per annum which is obviously dependent on external factors such as product demand. Notwithstanding this, the Tribunal is of the opinion that the amenity of the locality, which includes the existing and future amenity, will be affected to such a degree by the significant increase in truck movements resulting from the proposed excavation of 500,000 tonnes of sand per annum that discretion should not be exercised even if it is a limited resource.
[59]In exercising discretion under LPS 17, the local government, and the Tribunal on review, is to have regard to a number of matters, including the preservation of the amenity of the locality, and the amount of traffic likely to be generated by the proposal. In terms of traffic generated by the proposal, the Tribunal is satisfied that the road system has sufficient capacity to carry the proposed number of trucks and that safety concerns could be satisfied by conditions requiring works to be undertaken by the applicant such as widening the sealed section of Warbrook Road to 7 metres and possibly reducing the speed limit.
[60]One of the objectives of the General Rural Zone is to 'ensure the use and development of land does not prejudice rural amenities, and to promote the enhancement of rural character'. The Tribunal is of the view that while it is expected that a number of different vehicle types will be using the road network in the locality, including slow moving agricultural vehicles and larger transportation trucks, the proposed number of truck movements is such a significant increase that it has the potential to prejudice the rural amenity through an increase in associated noise, dust and vibration and the impact on the rural lifestyle including the keeping of animals and the riding of horses in the immediate locality.
[61]Balancing all of the planning considerations in the exercise of planning discretion the Tribunal finds that the proposal to increase the excavation and transportation of 500,000 tonnes of sand per year from the subject site should be refused because of its significant adverse impact on the amenity of the locality.
The Tribunal concluded, at [62] of the Member's Decision, that the proposed extraction and transportation of 500,000 tonnes per annum of sand from the subject site will have significant adverse impact on the amenity of the locality. The Tribunal went on to say that while sand is considered to be an important basic raw material and an appropriate land use in principle in this location, the provisions of the planning framework, which includes SPP 2.4 and LPS 17, do not support approval of developments that have significant adverse impacts on the amenity of the locality. The Tribunal dismissed the application for review and affirmed the City's decision to refuse the development application.
Legislative scheme
Section 241(1)(a) of the PD Act provides as follows:
SAT to have regard to certain matters
(1)In determining an application in accordance with this Part the State Administrative Tribunal is to have due regard to relevant planning considerations including
(a)any State planning policy which may affect the subject matter of the application[.]
Section 244 of the PD Act relevantly provides as follows:
SAT review of some SAT decisions
(1)The State Administrative Tribunal constituted by a judicial member may, of its own motion or upon an application made under subsection (3), review a direction, determination or order upon a matter involving a question of law that was made by the State Administrative Tribunal when constituted without a legally qualified member as defined in section 3(1) of the State Administrative Tribunal Act 2004.
(2)The State Administrative Tribunal constituted by a judicial member may
(a)affirm the direction, determination or order; or
(b)revoke the direction, determination or order and substitute another direction, determination or order that the State Administrative Tribunal could have made in relation to that matter.
(3)An application for a review of a direction, determination or order upon a matter involving a question of law may be made, in accordance with the regulations and rules made under the State Administrative Tribunal Act 2004, by a party within one month after the direction, determination or order is given to the party.
…
Section 252 of the PD Act provides as follows:
Decision made in exercise of discretionary power under planning scheme
(1)Subject to subsection (3), if
(a)under a planning scheme, the grant of any consent, permission, approval or other authorisation is in the discretion of a responsible authority; and
(b)a person has applied to the responsible authority for such a grant; and
(c)the responsible authority has
(i)refused the application; or
(ii)granted it subject to any condition,
the applicant may apply to the State Administrative Tribunal for a review, in accordance with this Part, of the responsible authority’s decision.
(2)Subject to subsections (1) and (3), an applicant may apply to the State Administrative Tribunal for a review, in accordance with this Part, of the responsible authority’s decision under a local planning scheme or an improvement scheme as to
(a)the classification of a use under the planning scheme; or
(b)the permissibility of a use that is not listed under the planning scheme.
(3)Subsections (1) and (2) do not affect the operation of a right given or taken to be given by a planning scheme to apply for a review of a decision, but where rights are given or taken to be given by a planning scheme and under subsection (1) or (2), the exercise of one of those rights extinguishes the other right to apply for a review of the same decision.
The nature of the review
A judicial member of the Tribunal may review a direction, determination or order 'upon a matter involving a question of law' that was made by the Tribunal when constituted without a legally qualified member; s 244(1) of the PD Act.
The Review Hearing was a review hearing de novo. However, a review under s 244 of the PD Act is a review by rehearing, which 'carries its own character, by reference to a unique statutory heritage'; Zampatti v Western Australian Planning Commission [2010] WASCA 149 (Zampatti) at [109].
Pullin JA in Zampatti at [27] held that 'an applicant for review by a judicial member must demonstrate that there has been some step taken by the … member in arriving at its conclusion which involved a ''question'' of law', but that '[i]f the law is referred to [in the member's decision] but the parties were not in issue about the law then there will be no "question" of law.'
Pullin JA also held that it is 'a prerequisite of jurisdiction that the question of law identified must be really, and not colourably involved'; Zampatti at [28].
If a decision does involve a question of law, then the whole of the decision and not merely the question of law is open to review; Ruhamah Property Co Ltd v Federal Commissioner of Taxation (1928) 41 CLR 148 at 151; Temwood Holdings Pty Ltd v Western Australian Planning Commission [2001] WASCA 199 at [12] [15].
If the issues involved in the case under review were only issues of fact, then there will be no question of law involved and there will be no right of review; Zampatti at [28].
Pullin JA and Kenneth Martin J expressed different views in relation to whether s 244 of the PD Act requires the demonstration of an error of law in the primary decision. Pullin JA held that it only requires demonstration of a question of law in relation to the primary decision; Zampatti at [27]. Kenneth Martin J held that s 244 requires a demonstration of an error of law; Zampatti at [51].
In that regard, the Tribunal's approach in a review under s 244 of the PD Act has consistently been that the inquiry by the judicial member is as to whether the nonlegally qualified member has made an error in relation to the question of law involved.
Questions of law involved
Urban Resources has identified what it says are the questions of law involved in the Member's Decision as follows:
1)was the Member required to have 'due regard' to the 2015 WAPC approval and, if so, did the Member give 'due regard' to that approval? (Question 1);
2)did the Member apply the correct test for rural amenity and the likely impact on the existing and future amenity of the locality? (Question 2);
3)did the Member correctly apply the test for determining the weight to be attributed to SPP 2.4? (Question 3); and
4)was the Member required to consider all the objectives and considerations of the planning framework? (Question 4).
Urban Resources says that the questions of law involved 'include these questions' (my emphasis). However, it is a requirement of this review that Urban Resources provides 'a statement of the grounds for review clearly identifying the question or questions of law said to be involved', see paragraph 7 of Practice Note 4 Review of Decisions of the Tribunal under s 244 of the [PD Act]. I am therefore proceeding on the basis that these are the only questions of law identified by Urban Resources.
Disposition
Question of law said to be involved Question 1
Before I turn to consider Question 1 as framed, namely whether the Member was required but failed to have due regard to the 2015 WAPC approval, I should note that, during Urban Resources' counsel's submissions at the hearing before me (T:1314; 12.05.16), and also from the terms of counsel's written submissions (see, for example, applicant's written submissions dated 18 December 2015 at paragraph 24), it became apparent that Urban Resources is contending that the Member failed to have due regard not only to the 2015 WAPC approval, but also the 2010 WAPC approval.
For the reasons which follow, I have concluded that the Member did have due regard to both the 2010 WAPC approval and the 2015 WAPC approval and so it is unnecessary to comment any further on the formulation of Question 1.
As Martin CJ noted in A v Corruption and Crime Commissioner[2013] WASCA 288 at [88] [89] (A), the factors which a decisionmaker is bound to consider, as a condition of the valid exercise of the power conferred on it, are determined by construction of the statute in which the discretionary power is conferred. If the discretion is unconfined by statute, the factors must be determined by implication from the subject matter, scope and purpose of the relevant Act.
Under s 241 of the PD Act, the Member when making her determination was to have 'due regard' to relevant planning considerations.
In A at [92], Martin CJ and Murphy JA observed that one view of what is required to satisfy the duty to take into account or, in this case, have 'due regard' to relevant considerations is that, provided the matter is given some consideration, the duty is discharged. However, their Honours note that there is also authority to the effect that the duty requires proper, genuine and realistic consideration of the relevant matter.
In Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 (Marshall) at [115], Pritchard J held that, in the particular legislative scheme being considered by her, the requirement to 'have regard to' means that active or positive consideration must be given.
In the context of the PD Act, I consider that to have due regard to relevant planning considerations, the requirement is to give proper, genuine and realistic consideration to them. To give 'positive consideration' might suggest, as Martino J in City of South Perth v ALH Group Property Holdings Pty Ltd [2016] WASC 141 at [46] similarly concludes, that the City had to make a decision consistent with the 2015 WAPC approval, which I do not believe is the case.
The City in its written submissions dated 27 January 2016 accepts that both the 2010 WAPC approval and the 2015 WAPC approval are relevant planning considerations in this case. That is unquestionably the case.
Upon a reading of the Member's Decision and the transcript of the Review Hearing, it is clear that the Member did in fact have due regard to all relevant planning considerations. Paragraph 15 of the Member's Decision refers expressly to the 2015 WAPC approval, although the Member did say that the 2015 WAPC approval did not limit the tonnage of the material able to be excavated nor the number of truck movements or the route to be used by the trucks accessing the site (which, as I have already observed earlier in these reasons, is not entirely correct). I also note the exchanges between the Member and counsel for Urban Resources at T:3839; 18.06.15 and T:4950; 19.06.15.
What weight the Member gave to the 2010 WAPC approval and the 2015 WAPC approval is not a matter before me. As Pritchard J pointed out in Marshall at [117], it is for the decisionmaker to determine the appropriate weight to be given to those matters and the decisionmaker will not err in law merely because it fails to place 'adequate weight' upon a consideration which it is bound to take into account. See also A at [95]. There was no requirement on the Member to attach any particular weight to the particular matters which she has taken into account.
The Tribunal did not err in law in relation to Question 1.
Question of law said to be involved Question 2
I next turn to Question 2, namely, did the Member apply the correct test for rural amenity and the likely impact on the existing and future amenity of the locality?
Urban Resources says that the Tribunal in the Member's Decision 'incorrectly exercised its discretion outlined in LPS 17 by failing to properly assess the impact of the proposed development on amenity'; applicant's written submissions dated 18 December 2015 at paragraph 37.
Urban Resources points out that '[t]he well established test for determining the impact on amenity' is set out in Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296 (Tempora) at 304.
In Tempora, the Town Planning Appeal Tribunal (TPAT) said that in determining the amenity of a locality, TPAT must first determine, as a matter of fact, the objective character of an area that represents the present state of amenity. TPAT should then determine the manner in which the proposed use may affect the existing amenity. The third and concomitant inquiry is the degree to which the new use will have an effect on the existing amenity.
Urban Resources further points out that the Tribunal upon a review of a decision is also required to have regard to future amenity in making the assessment; Sunbay Developments Pty Ltd and Shire of Kalamunda [2006]WASAT74 (Sunbay) because the definition of amenity under LPS 17 includes future amenity.
In particular, Urban Resources submits that the Member, when assessing future amenity, 'applied the test set out in Tempora incorrectly by attaching undue weight to the residents' subjective views of the proposed development rather than applying an objective assessment of impact as required by law'; applicant's written submissions dated 18 December 2015 at paragraph 42.
I disagree that Question 2 as formulated by Urban Resources involves a question of law. The determination of the amenity of a locality is a question of fact; Tempora at 304. The assertion that the Tribunal attached undue weight to residents' subjective views of the proposed development rather than applying an objective assessment of impact, which I do not agree with, does not in any event involve a question of law. As I have already said, a decisionmaker will not err in law merely because it fails to place particular weight upon a consideration which it is bound to take into account.
In any event, it is clear from the Member's Decision, particularly at [35] [37] of the Member's Decision, that the Member did in fact take the approach set out in Tempora and in Sunbay.
The Tribunal did not err in law in relation to Question 2.
Question of law said to be involved Question 3
I now turn to Question 3, namely, did the Member correctly apply the test for determining the weight to be attributed to SPP 2.4?
It is not in dispute that the Member should have had regard to State planning policy. It is an express requirement of s 241(1)(a) of the PD Act to do so.
However, Urban Resources says that the Member, in determining the weight to be given to SPP 2.4, did not give 'considerable weight' to it but should have done so. Urban Resources concedes that it is a matter for the Tribunal to determine what weight is to be given to SPP 2.4, but says that the Member did not take the step of assessing the weight to be given to SPP 2.4 against the criteria set out in Permanent Trustee Australia Limited v City of Wanneroo (1994) 11 SR (WA) 1 (Permanent Trustee).
In my view, this 'test' in Permanent Trustee is not a test to determine the weight to be applied to SPP 2.4, but sets out the criteria to determine whether SPP 2.4 should be given any weight at all or, as it was put in Permanent Trustee at 16, 'can be regarded as a seriously entertained proposal'.
There is no question that the Member had regard to SPP 2.4 when making her determination. Paragraph 57 of the Member's Decision describes the planning framework to include SPP 2.4. The Member notes that SPP 2.4 acknowledges the importance of basic raw material resources (such as sand) being located close to established and developing parts of the metropolitan region but that one of the objectives of SPP 2.4 is to 'ensure that the use and development of land for the extraction of basic raw materials does not adversely affect the environment or amenity in the locality of the operation during or after extraction'.
At the hearing before me (T:12; 12.05.16), counsel for Urban Resources pointed to the words in [33] of the Member's Decision where the Member states:
The main consideration is the amenity impact.
Counsel points out that the objectives of SPP 2.4 are in fact fourfold, namely to:
1)identify the location and extent of known basic raw materials;
2)protect priority resource locations, key extraction areas and extraction areas from being developed for incompatible land uses which could limit future exploitation;
3)ensure that the use and development of land for the extraction of basic raw materials does not adversely affect the environment or amenity in the locality of the operation during or after extraction; and
4)provide a consistent planning approval.
Counsel observes that amenity is therefore merely one of four objectives of SPP 2.4 but that the 'almost the entire focus, with respect, of the [Member] …' was the effect of vehicular traffic, noise, blasting, dust and vibration.
Counsel then says this:
Well, why is [amenity] the main consideration? Who says it's the main consideration? The policy doesn't say it's the main consideration. In fact, the policy says quite the contrary.
(T:12; 12.05.16)
The answer to counsel's question, of course, lies in the formulation by the parties of the issues to be determined by the Member at the Review Hearing. I have set out those issues earlier in these reasons.
In the applicant's closing submissions before the Member at the Review Hearing, Urban Resources through counsel confirmed that 'those issues are issues required to be addressed for the purposes of this application'; applicant's closing submissions dated 23 June 2015 at paragraph 22.
In the same submissions, counsel for Urban Resources also said:
The effect of vehicular traffic on the amenity of the surrounding area and the availability and suitability of road access are the only factors arising from the range of considerations which are apposite to the present proposal.
(Applicant's closing submissions dated 23 June 2015 at paragraph 31)
I conclude that the Member did have due regard for SPP 2.4 and that the weight which she gave to it was entirely a matter for her.
The Tribunal did not err in law in relation to Question 3.
Question of law said to be involved Question 4
Finally, turning to Question 4, was the Member required to consider all the objectives and considerations of the planning framework?
Urban Resources submits that the Tribunal erred in its application of the planning framework, namely SPP 2.4 and LPS 17.
At [31] of the Member's Decision, the Member sets out the relevant considerations under clause 6.3 of SPP 2.4.
It is clear from [47] [48] and [59] of the Member's Decision that the Member considered the significance of the resource in a Priority Resource Location and weighed that against the amenity impact of the development.
As I have already mentioned, the other considerations mentioned in clause 6.3 of SPP 2.4 were not the subject of contest or dispute at the Review Hearing.
Similarly, the only issue arising from the objectives of the General Rural zone concerned rural amenity and, again as I have already mentioned, Urban Resources did not assert that any other objective was regarded as being of significance to it.
At [22] of the Member's Decision, the Member sets out in full the objectives of the General Rural zone. Clause 10.2 of LPS 17 is entitled 'Matters to be considered by Local Government' and provides that whether a particular matter is a relevant consideration is a matter to be determined by the decisionmaker.
Clearly, not all matters listed in cl 10.2 of LPS 17 will be relevant considerations in the determination of every development application.
Urban Resources' assertion that the Member applied SPP 2.4 as an instrument to restrict development rather than as an instrument to facilitate development is not supported by anything in the Member's Decision. At [62] of the Member's Decision, the Member found that 'sand is considered to be an important basic raw material and an appropriate land use in principle in this location.' Further, I consider it to be a relevant consideration that the Member's Decision did not prevent the continuation of an extractive industry on the Land. The 2010 WAPC approval permits extraction of material and remains operative.
The Tribunal did not err in law in relation to Question 4.
Orders
1.The application for review under s 244 of the Planning and Development Act 2005 (WA) is dismissed.
2.The determination of the Tribunal in Urban Resources Pty Ltd and City of Swan [2015] WASAT 117 is affirmed.
I certify that this and the preceding [77] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE T SHARP, DEPUTY PRESIDENT
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