URBAN RESOURCES PTY LTD and CITY OF SWAN - [2015] WASAT 117

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: URBAN RESOURCES PTY LTD and CITY OF SWAN [2015] WASAT 117

MEMBER: MS R MOORE (MEMBER)

HEARD: 18, 19 AND 23 JUNE 2015

DELIVERED : 7 OCTOBER 2015

PUBLISHED : 23 OCTOBER 2015

FILE NO/S: DR 238 of 2014

BETWEEN: URBAN RESOURCES PTY LTD
Applicant
AND
CITY OF SWAN
Respondent
PAUL NOONE
WENDY NOONE
Intervenors

Catchwords:

Town planning Development application Extractive industry - General Rural Zone - Discretionary use - Truck haulage route - Impact on amenity of the locality

Legislation:

City of Swan Local Planning Scheme No 17, cl 1.6, cl 2.1, cl 4.2, cl 4.2.23, cl 4.3, cl 4.3.2, cl 4.3.4, cl 10.2, Sch 1
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 241, s 252(1)
State Administrative Tribunal Act 2004 (WA), s 31, s 37(3)

Result:

Application for review dismissed
Respondent's decision to refuse development approval affirmed

Summary of Tribunal's decision:

Urban Resources Pty Ltd sought review of the City of Swan's decision to refuse planning approval for the extraction and transportation of 500,000 tonnes per annum of sand from an approved and operational sand mine in Bullsbrook. The existing extractive industry operation had conditional approval limiting truck movements to a maximum of 40 per day. Approval of the proposal the subject of this review would result in an average of 160 truck movements per day with a maximum of 200 per day.
The Tribunal found that, as a result of the significant increase in truck movements, the proposed extraction and transportation of 500,000 tonnes per annum from the site would have a significant adverse impact on the amenity of the locality.
The Tribunal determined not to exercise its discretion under the current planning framework although the site is located within a Priority Resource Location and sand is an important basic raw material required for the development of affordable housing in the area. The Tribunal affirmed the City of Swan's decision to refuse the development application.

Category: B

Representation:

Counsel:

Applicant:     Mr M Hardy
Respondent:     Mr C Slarke
Intervenors  :     Mr I McLeod

Solicitors:

Applicant:     Hardy Bowen
Respondent:     McLeods
Intervenors  :     Environmental Defender's Office WA

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

Canning Mews Pty Ltd and City of South Perth [2005] WASAT 272; (2005) 41 SR (WA) 79
Greenelm Pty Ltd and City of Swan [2010] WASAT 142
Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74; (2006) 150 LGERA 116
Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

These proceedings involve an application brought by Urban Resources Pty Ltd (applicant), pursuant to s 252(1) of the Planning and Development Act2005 (WA) (PD Act), for review of a deemed refusal by the City of Swan (City or respondent) of an application for development approval for the extraction and transportation of 500,000 tonnes per annum of sand from the approved and operational sand mine located at Lot 5892 Maralla Road, Bullsbrook (site).
Mr Michael Hardy of Hardy Bowen appeared for the applicant and Mr Craig Slarke of McLeods appeared for the respondent. Mr Ian McLeod from the Environmental Defender's Office of Western Australia appeared on behalf of the intervenors, Mr Paul Noone and Ms Wendy Noone. Mr and Mrs Noone were granted leave to intervene pursuant to s 37(3) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) by Deputy President Judge Parry on 31 March 2015.

Background

2010 WAPC Approval

The subject site contains a sand resource and the applicant has a current development approval from the Western Australian Planning Commission (WAPC) to excavate clean sand from the site. This approval was granted on 12 October 2010, pursuant to the Metropolitan Region Scheme (MRS), with a number of conditions (2010 WAPC Approval).
Conditions 1 and 2 of the 2010 WAPC Approval limit the hours of operation to 7 am to 6 pm on Mondays to Fridays, 7 am to 3 pm on Saturdays, with no truck movements on Sundays and public holidays. Condition 3 states that the approval is valid for 10 years from the date of approval. Conditions 21 to 24 require the upgrading of specific sections of road along part of the haulage route to be used by trucks accessing the site.
Of particular relevance is condition 25 which states the following:
Prior to the operations exceeding the anticipated volumes of 150,000 tonnes per annum and/or the operations exceeding 40 truck movements per day (ie. 20 trips in and 20 trips out of the site), a further transport assessment will be required to determine whether additional treatment works are required and to investigate other transport routes. Such study is to be provided to the specification of the City of Swan and any costs associated with the study are to be borne by the proponent. Any recommendations arising from the transport assessment are to be implemented to the specification of the City of Swan prior to the operations exceeding 150,000 tonnes per annum and/or the operations exceeding 40 total truck movements per day (ie. 20 trips in and 20 trips out of the site).
In relation to condition 25 of the WAPC 2010 approval, the applicant submitted a transport assessment to the City contemplating the extraction of 500,000 tonnes of sand from the site per annum. On 8 July 2013, the City resolved to not support any increase in truck movements above the approved 40 movements per day.

2014 City of Swan Development Application

In April 2014, Roberts Day, on behalf of the applicant, submitted to the City an application for development approval 'for the extraction and transportation of 500,000 tonnes/per annum of sand from the approved and operational sand mine located at Lot 5892 Maralla Road, Bullsbrook'.
In the covering letter dated 22 April 2014, Roberts Day summarised the main points of the accompanying Traffic Management Plan (TMP) as follows:
1.The sand excavation and cartage will be undertaken over 240 working days of the year and over an 11-hour day (6AM – 5PM). This results in about 160 truck movements per day or about 16 truck movements per hour on the road network.
2.Sand cartage destinations from this quarry will either be located within Ellenbrook area to the south or within Bullsbrook area to the north.
3.For sand transport to Ellenbrook area, the trucks will travel along Warbrook Road to Railway Parade, turn right into Railway Parade and continue to travel south to designated destinations. The trucks will travel back to the quarry along the same route.
4.For sand transport to Bullsbrook area, the trucks will travel from Warbrook Road to Railway Parade, turn left into Railway Parade and travel north along Railway Parade/Muchea South Road to Rutland Road, turn right into Rutland Road continue to travel eastwards and turn left into Great Northern highway to arrive to the designated designation. The trucks will travel back to the quarry along the same route.
5.Preliminary modelling indicates that the trips would be equally split between the Ellenbrook and Bullsbrook destinations.
6.A stand-alone management and allocation system, similar to the existing management and allocation system, will be developed by the Proponent.
The TMP was prepared by Transcore and also stated that when considering the road upgrades already undertaken by the applicant and the proposed improved management and allocation system, the number of anticipated trucks can be accommodated by the existing road network without undermining traffic operations and safety.
The accompanying development application report prepared by Talis Consultants included the TMP as an appendix and also noted that once the proposed PerthDarwin highway commenced construction, the traffic routes associated with the site would need to be revisited.

City's decision

On 15 July 2014, the applicant applied to the Tribunal for a review of the City's 'deemed refusal' of the 2014 City of Swan Development Application. The matter was referred to mediation, following which, in accordance with s 31 of the SAT Act, the Tribunal invited the City to reconsider its 'deemed refusal'.
Prior to the reconsideration, the proposal was advertised to 155 properties that directly abut Warbrook Road, Railway Parade and Rutland Road. The City received 63 objections and 5 nonobjections. The objections were concerned with bad truck driver behaviour (speeding and resultant danger); volume of truck movements; inadequate capacity of the road network to accommodate truck volumes; pollution (including risk of silicosis from silica transportation); impact of noise on rural amenity; and spillage of sand.
The planning officer's report prepared for the City's Council meetings on 4 February 2015 and 25 February 2015 recommended conditional approval of the proposal but the City resolved to refuse the 'proposed increase in operation volumes of approved extractive industry' at its meeting on 25 February 2015 for the following reason:
1.The increase in truck movements along the local road network will adversely impact the rural amenity of the locality.
The City also resolved to recommend that the WAPC also refuse the proposal.

2015 WAPC Approval

On 24 February 2015, the WAPC granted approval to the proposal with conditions. The conditions did not limit the tonnage of material able to be excavated on the site, nor did it limit the number of truck movements or the route to be used by trucks accessing the site.

Site and locality

The subject site is bounded by Maralla and Halden Roads, and is located approximately 2.6 kilometres to the south of Warbrook Road and 8.2 kilometres to the west of Great Northern Highway. It has an area of approximately 163 hectares.
On 19 June 2015, the Tribunal had the benefit of a view of the haulage route starting at the site travelling along Halden Road and right on to Warbrook Road to the intersection of Railway Parade. The Tribunal then travelled south along Railway Parade to Maralla Road as well as north along Railway Parade to Neaves Road.

Planning framework

The site is zoned Rural under the Metropolitan Region Scheme (MRS) and General Rural under the City of Swan Local Planning Scheme No 17 (LPS 17 or Scheme).
Clause 1.6 of LPS 17 contains the aims of the Scheme which are to:
(a)Provide for a range of compatible housing and associated development, in neighbourhoods with a community identity and high levels of safety and amenity.
(b)…
(c)Encourage development that will strengthen the economic base of the District and provide convenient and efficiently located employment for the community.
(d)Ensure coordinated and efficient use and development of land within the District, and to avoid ad hoc development that would result in land use conflicts, excessive travel and/or transport demand or adverse impacts on the environment.
(e)Protect and enhance the quality of the urban and rural living environments of the District, and to provide for such development as is consistent with the maintenance of efficient services and amenities within the District.
(f)Promote the health, safety, convenience and the economic and general welfare of the community, and to ensure the use and development of land does not result in significant adverse impacts on the physical and social environment.
(g)Promote the judicious management of natural resources of particular regional and local significance including bushland, water catchments, waterways, agricultural land and basic raw materials, and to promote the protection of air quality.
(h)Protect objects and places of particular natural, historic, architectural, scientific and cultural significance.
Clause 2.1 of LPS 17 provides that local government determinations made under the Scheme are to be consistent with the Local Planning Strategy.
Clause 4.2 of LPS 17 sets out the Zone objectives and states that they 'will be applied by Council to determine the appropriateness in a particular zone of discretionary uses'.
Clause 4.2.23 contains the objectives of the General Rural Zone which are to:
(a)facilitate the use and development of land for a range of productive rural activities, which will contribute towards the economic base of the region;
(b)provide for a limited range of compatible support services to meet the needs of the rural community, but which will not prejudice the development of land elsewhere which is specifically zoned for such development;
(c)ensure the use and development of land does not prejudice rural amenities, and to promote the enhancement of rural character;
(d)ensure that development and land management are sustainable with reference to the capability of the land and the natural resource values.
The proposed land use 'Industry Extractive' is a 'D' use in the General Rural Zone in the Zoning Table in cl 4.3 of LPS 17. A 'D' use 'means that the use is not permitted unless the local government has exercised its discretion by granting planning approval'. Clause 4.3.4 of LPS 17 also contains the following note:
In considering a 'D' or 'A' use, the local government will have regard to the matters set out in clause 10.2.
Clause 10.2 of LPS 17 sets out the matters that the local government is to have due regard to when considering an application for planning approval. The following matters are relevant to the consideration of this application:
(a)the aims, objectives and provisions of the Scheme and any other relevant town planning schemes operating within the Scheme area (including the Metropolitan Region Scheme);
(b)the requirements of orderly and proper planning including any relevant proposed new town planning scheme or amendment, or region scheme or amendment, which has been granted consent for public submissions to be sought;
(c)any approved statement of planning policy of the Commission;
…
(o)the preservation of the amenity of the locality;
…
(r)the amount of traffic likely to be generated by the proposal, particularly in relation to the capacity of the road system in the locality and the probable effect on traffic flow and safety;
…
(z)any relevant submissions received on the application[.]

Bullsbrook Townsite and Rural Strategy endorsed draft 2008

Mr Daniel Pearce, the applicant's expert planning witness, made reference to the location of the subject site within the western 'Resource Precinct' as identified in the Bullsbrook Townsite and Rural Draft Strategy (BTRS). This draft strategy was discussed in a previous matter before the Tribunal, Greenelm Pty Ltd and City of Swan [2010] WASAT 142 (Greenelm), where the Tribunal found at [26] the following:
Given that the BTRS did not result from a Commission initiative, has been 'on hold' for the past two years and there is no indication whatsoever as to the Commission's attitude towards it or as to a timeframe for its adoption, the Tribunal considers that it should be given no weight in this review.
The Tribunal agrees with the submissions made by Mr Slarke and finds that this draft strategy should be given no weight in these proceedings as there is no evidence that the document has been progressed since 2008.

State Planning Policy No 2.4 Basic Raw Materials

State Planning Policy No 2.4 Basic Raw Materials (SPP 2.4) is a statement of planning policy that the Tribunal is to have due regard to under s 241 of the PD Act. SPP 2.4 sets out the matters which are to be taken into account when considering, among other things, development applications for extractive industries. The City is one of the local governments to which the policy applies.
Clause 3.1 of SPP 2.4 says that basic raw materials such as sand are 'produced relatively cheaply, with the major cost being the transport to the construction site'.
Clause 5.1 of SPP 2.4 contains the objectives of the policy as follows:
•identify the location and extent of known basic raw material resources;
•protect Priority Resource Locations, Key Extraction Areas and Extraction Areas from being developed for incompatible land uses which could limit future exploitation;
•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;
•provide a consistent planning approval process for extractive industry proposals including the early consideration of sequential land uses.
It is common ground that the subject site is located within a Priority Resource Location which, according to clause 6.1.1 of SPP 2.4 is a location of regionally significant resources which should be recognised for future basic raw materials extraction and not be constrained by incompatible uses or development.
Clause 6.3 of SPP 2.4 sets out relevant considerations in determining an application for an extractive industry operation:
•the significance of the resource in terms of its positioning in a priority resource location, key extraction area, or extraction area;
•the effect of the proposed extractive industry on any native flora and fauna … ;
•the effect of the proposed extractive industry on agricultural land;
•the effect of vehicular traffic, noise, blasting, dust and vibration on the amenity of the surrounding area having regard to existing and future uses;
•the ability to rehabilitate the land to a form or for a use which is compatible with the longterm planning for the site and surrounding area;
•the availability and suitability of road access;
•the ability to stage the extraction operations to avoid conflicts with adjacent land uses.

Discussion of the issues

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?
The main consideration is the amenity impact arising from the transportation of 500,000 tonnes per annum of excavated sand from the subject site. The assessment of amenity impact has been addressed by the Tribunal in a number of decisions.
In Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296 (Tempora), the Town Planning Appeal Tribunal observed at page 304:
The determination of the amenity of the locality is a question of fact and consists of three parts: the existing amenity, the manner in which the proposed use will affect the existing amenity and the degree of impact on the locality.
In Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74; (2006) 150 LGERA 116 (Sunbay), at [21], the Tribunal held that the general approach to the assessment of amenity impact set out in Tempora is sensible and should be followed, and at [28] found that:
… Although an assessment of the impact of a development on the existing or likely future amenity of the locality must take into consideration positive, negative and neutral impacts on all parts of the locality, it is open in planning assessment to refuse an application because of the extent of the impact on a part of the locality or on a single property. Were it otherwise, the overall amenity of a locality would be undermined incrementally, application by application.
Also in Sunbay, as submitted by Mr Slarke, the Tribunal confirmed that the approach taken in Canning Mews Pty Ltd and City of South Perth [2005] WASAT 272; (2005) 41 SR (WA) 79 at [48] is correct, and that:
… in undertaking this objective inquiry [into the qualities and characteristics which constitute and create residential 'amenity'], a specialist planning tribunal is assisted not only by the expert opinions of town planners, but also by the views of residents. Indeed, residents of a locality are often well placed to identify the particular qualities and characteristics which contribute to their residential amenity[.]

The Tribunal was presented with evidence from a number of residents along the haulage route. The residents located on the Halden Road and Warbrook Road section of the haulage route, include:
•Ms Lynn Kirkby at 166 Halden Road;
•Mr Tim McLennan and Ms Patricia Stubbs at 5 Warbrook Road;
•Mr Paul Noone at 515 Warbrook Road; and
•Ms Wendy Noone at 515 Warbrook Road.
Ms Kirkby lives the closest to the site and expressed her concern about the noise of trucks travelling along Halden Road (especially as they change gears and brake); the early arrival of trucks to the site (prior to 7 am); dust generation from trucks on Halden Road; and safety aspects of trucks travelling along the local roads. Ms Kirkby's main concern was that an increase in truck activity from the currently allowed 40 per day to the proposed 160 per day and the proposed earlier start time of 6 am would be 'unbearable'. It was her opinion that 'it will be impossible to live any sort of normal life with truck movements averaging around 160 per day.
Mr McLennan and Ms Stubbs run a small horticultural operation on the corner of Warbrook Road and Railway Parade. They expressed their concern about a large increase in truck movements exposing them to the 'racket coming from truck exhausts, gear changing and loud exhaust brakes'; increased congestion and the possibility of traffic accidents at this intersection; decreased property values; air pollution from silica sand and diesel fumes; and vibration from trucks.
Mr and Ms Noone live on Warbrook Road approximately half way between Halden Road and Railway Parade. They prepared witness statements, gave oral evidence during the hearing and presented a video showing trucks travelling along the route. Mr Noone's primary concern was 'the traffic safety threat generated by the trucks'. As stated earlier, Mr and Ms Noone were granted leave to intervene in these proceedings and accordingly engaged a traffic expert 'to assess safety issues along the haulage route'. They also referred to a period of time in 2011 when they counted the truck movements and found that they were in excess of 140 in one day.
Ms Noone is a Detective Senior Constable with the Western Australian Police and at times works night shifts requiring her to sleep during the day. Her evidence was that it has been difficult to sleep due to vibration of the bedroom windows and wooden roof trusses when the trucks pass her home. She stated:
I know that a rural area is going to have a certain level of noise associated with rural activity and I have been able to cope when truck movements have been limited because they tend to concentrate the movements in the morning. However, when the trucks have not been limited they keep going all day and it is not possible for me to get any rest during the day.
She is also a horse riding instructor and trains off track thoroughbred race horses in her spare time. This involves exercising her horses regularly in the Gnangara Pines plantation area which she describes as a short hack along Warbrook Road to the west. One of her concerns regarding the development under review was that 'if truck movements continued all day and there was only three to five minute intervals between trucks passing it would be impractical and dangerous to ride horses along the road during the day'.
Mr Pearce gave expert planning evidence on behalf of the applicant and referred to the definition of 'amenity' contained in Sch 1 of LPS 17 which means 'all those 'factors which combine to form the character of an area and include the present and likely future amenity'. It was his opinion that the factors that combine to form the character of the area of the General Rural Zone 'include the typical amenity impacts of productive rural activities such as the operation of heavy vehicles and machinery, aerial spraying, chemical treatments and animal husbandry'. He was also of the view that the truck movements arising from the proposal are consistent with the types of impact of other productive rural activities that may be legitimately conducted in the General Rural Zone and also make use of the public road network.
During the hearing, Mr Pearce was asked to define the existing amenity of the locality. He agreed with Mr Hardy that the locality could be divided into the immediate locality of Halden Road and the section of Warbrook Road between Halden Road and Railway Parade, and the wider locality which is the extended haulage route along Railway Parade both towards the north and the south.
After referring to an aerial photograph of the area and referencing the site view attended by the parties and the Tribunal earlier in the day, Mr Pearch also agreed with Mr Hardy that:
•the perimeter of the subject site contains largely native vegetation;
•Halden Road is characterised by open pastures with some dwellings (including Ms Kirkby's);
•travelling east along Warbrook Road there is open agricultural land with evidence of animal husbandry and generally low level residential development.
In terms of the wider locality (past the intersection of Warbrook Road and Railway Parade), there is residential development know as Annie's Landing and Equis Lakes to the south; agricultural land and a nature reserve to the east; and travelling north along Railway Parade there is open agricultural land, low density residential development with some animal husbandry.
The applicant and the intervenors both called traffic engineers to give expert traffic evidence. Mr Behnam Bordbar was called by the applicant and Mr Andrew McDougall was called by the intervenors.
As indicated earlier in these reasons, the intervenors were particularly concerned about traffic safety along the haulage route. Mr Bordbar and Mr McDougall disagreed on a number of technical issues, including the overall width of trucks, and whether Main Roads or Austroad guidelines should be applied in regard to the width of the roads. Ultimately, Mr McDougall said that upgrading Warbrook Road to a sealed width of 7 metres would reduce concerns regarding safety 'to a point where it wouldn't be worth fighting against'.
Mr McDougall provided traffic count reports as an attachment to his written witness statement. These traffic counts were conducted from 1 to 8 December 2014 at a number of locations along the haulage route. The traffic counts indicated that out of a total of 1717 vehicle movements along Warbrook Road, 260 were semitrailers and approximately 212 of those were attributed to the applicant, which is consistent with the applicant operating up to 40 vehicles per day as per their 2010 WAPC Approval.
The respondent did not call any expert traffic evidence but submitted that an increase of an extra 120 truck movements per day would have an adverse impact on the amenity of the locality through increased noise, dust, vibration, poor truck driver behaviour and the subsequent impact on rural lifestyle:
On average, residents of Warbrook Road and Halden Road will suffer a truck movement approximately every 3 ¾ minutes. However in reality, truck movements are not evenly spread over days or working hours. On some days truck movements are likely to substantially exceed 160. It is likely that some hours of operation, particularly in the morning, will generate substantially more than 16 truck movements.
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 TMP.
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.
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.
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 2437 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.
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.
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.
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'.
Mr Pearce 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.
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.
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.
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.

Conclusion

The Tribunal has determined 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. 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. It follows that the application for review should be dismissed and the City's decision to refuse the development application should be affirmed.

Orders

For the reasons above, the Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision made by the City of Swan on 25 February 2015 to refuse development approval for 'the extraction and transportation of 500,000 tonnes/per annum of sand from the approved and operational sand mine located at Lot 5892 Maralla Road, Bullsbrook' is affirmed.
I certify that this and the preceding [63] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS R MOORE, MEMBER