Wattleup Road Development Co Pty Ltd v State Administrative Tribunal [No 2]
[2016] WASC 279
•6 SEPTEMBER 2016
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: WATTLEUP ROAD DEVELOPMENT CO PTY LTD -v- STATE ADMINISTRATIVE TRIBUNAL [No 2] [2016] WASC 279
CORAM: CHANEY J
HEARD: 3-4 MAY 2016
DELIVERED : 6 SEPTEMBER 2016
FILE NO/S: CIV 1769 of 2015
BETWEEN: WATTLEUP ROAD DEVELOPMENT CO PTY LTD
Applicant
AND
STATE ADMINISTRATIVE TRIBUNAL
First RespondentWESTERN AUSTRALIAN PLANNING COMMISSION
Second RespondentALCOA OF AUSTRALIA LTD
Third Respondent
Catchwords:
Administrative law - Judicial review - Report and recommendation to Minister under Planning and Development Act 2005 - Precautionary principle - Whether irrelevant consideration - Application of precautionary principle - Adverse planning precedent - Subdivision - Effect of dust from neighbouring property - Adequacy of dust monitoring
Legislation:
Alumina Refinery Agreement Act 1961 (WA)
Environmental Protection Act 1986 (WA), s 4A
Planning and Development Act 2005 (WA), s 3(1), s 3(1)(c), s 32, s 81, s 82, s 135, s 138, s 138(3), s 138(4), s 165, s 246(1), s 246(2), s 246(2)(b), s 251(1)
State Administrative Tribunal Act 2004 (WA), s 27(2), s 105(1)
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant: Mr S Penglis & Mr P McQueen
First Respondent : No appearance
Second Respondent : No appearance
Third Respondent : Mr P G McGowan
Solicitors:
Applicant: Lavan Legal
First Respondent : No appearance
Second Respondent : No appearance
Third Respondent : Clayton Utz
Case(s) referred to in judgment(s):
Alliance to Save Hinchinbrook v Environmental Protection Agency [2006] QSC 84; (2006) 145 LGERA 32
Applicant A169 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 8
Aspen Pty Ltd v State Planning Commission (Unreported, WATPAT 13 of 1998, 21 October 1988)
Austin Construction Company (Aust) Pty Ltd v North Sydney Municipal Council (1967) 14 LGRA 154
BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 399; (2004) 138 LGERA 237
Blick v Ashfield Municipal Council (1957) 3 LGRA 131
Blissett and Western Australian Planning Commission [2012] WASAT 54
BP Australia Ltd v Campbelltown City Council (1994) 83 LGERA 274
Collis Radio Ltd v Secretary of State for the Environment (1975) 29 P&CR 390; (1975) 73 LGR (UK) 211
Cornhill and Western Australian Planning Commission [2009] WASAT 9
Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163
Crowle v Manly Municipal Council (1950) 17 LGR (NSW) 217
Emmott v Ku-ring-gai Municipal Council (1954) 3 LGRA 177
Environment East Gippsland Inc v VicForests [2010] VSC 335; (2010) 30 VR 1
Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522
Friends of Hinchinbrook Society Inc v Minister for Environment (1997) 142 ALR 632
Girvan v Willoughby Municipal Council (1952) 18 LGR (NSW) 222
Goldin v Minister for Transport [2002] NSWLEC 75; (2002) 121 LGERA 101
Hewison and Shire of Augusta‑Margaret River [2014] WASAT 62
Humby v Woollahra Municipal Council (1964) 10 LGRA 56
Leatch v National Parks and Wildlife Service (1993) 81 LGERA 270
Marshall v Metropolitan Redevelopment Authority [2015] WASC 226
Marshall v Western Australian Planning Commission (1995) 15 SR (WA) 170
Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117
Re Carey; Ex parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501
Telstra Corp Ltd v Hornsby Shire Council [2006] NSWLEC 133; (2006) 146 LGERA 10
Thio and Western Australian Planning Commission [2009] WASAT 88
Tuna Boat Owners Association of SA Inc v Development Assessment Commission [2000] SASC 238; (2000) 77 SASR 369
Watson on behalf of Nyikina & Mangala v Backreef Oil Pty Ltd [2013] FCA 1432
Wattleup Road Development Co Pty Ltd v State Administrative Tribunal [2016] WASC 11
Wattleup Road Development Co Pty Ltd v Western Australian Planning Commission [2015] WASCA 104
Wattleup Road Development Company Pty Ltd and Western Australian Planning Commission [2011] WASAT 160
Wattleup Road Development Company Pty Ltd and Western Australian Planning Commission [2014] WASAT 159
Zampatti and Western Australian Planning Commission [2009] WASAT 127
Zampatti v Western Australian Planning Commission [2010] WASCA 149
CHANEY J: The applicant (Wattleup) and another party, Primewest (Wattleup) Pty Ltd (Primewest), each applied to the second respondent, the Western Australian Planning Commission (Commission), for approval of a subdivision of approximately 10.8 ha of land at Wattleup Road, Hammond Park. The Commission did not deal with the applications within the time prescribed by the Planning and Development Act 2005 (WA) (PD Act) and, pursuant to s 251(1) of the PD Act, Wattleup and Primewest sought a review in the State Administrative Tribunal (Tribunal) of the deemed refusal.
After the applications for review were lodged with the Tribunal, the Minister for Planning formed the opinion, under s 246(1) of the PD Act, that the applications for review raised issues of such State or regional importance that it would be appropriate for them to be determined by the Minister. The Minister therefore called in the applications under s 246(2) of the PD Act and, pursuant to s 246(2)(b), directed the Tribunal to hear the applications and, without determining them, refer them with recommendations to the Minister for determination.
Notwithstanding that the matter was then before the Tribunal, at a meeting on 26 November 2013, the Commission resolved to advise the Tribunal that it supports the approval of the applications for subdivision subject to certain conditions.
The Tribunal gave leave to the third respondent, Alcoa of Australia Ltd (Alcoa), to intervene in the proceedings for the Tribunal. The Tribunal heard evidence over eight days between May 2014 and September 2014. On 21 November 2014, the Tribunal published and delivered to the Minister its report and recommendations - Wattleup Road Development Company Pty Ltd and Western Australian Planning Commission [2014] WASAT 159 (2014 Report). The Tribunal considered that the correct and preferable decision under s 27(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) is that the applications for review should be dismissed and subdivision approval should be refused. It recommended that the Minister dismiss the applications and, in lieu of the deemed refusal by the Commission, substitute a decision that the applications for subdivision be refused.
Wattleup instituted an appeal under s 105(1) of the SAT Act against the recommendation of the Tribunal in the 2014 Report. On 28 May 2015, the Court of Appeal dismissed the appeal on the basis that it was incompetent because a recommendation under s 246(2)(b) of the PD Act is advisory in nature and is not a decision to which s 105(1) of the SAT Act applies ‑ Wattleup Road Development Co Pty Ltd v Western Australian Planning Commission [2015] WASCA 104.
Before the delivery of the appeal decision, Wattleup commenced these proceedings for judicial review of the 2014 Report. An issue was raised in these proceedings as to whether or not the report and recommendations of the Tribunal were amenable to judicial review. That issue was dealt with as a preliminary issue, and on 13 January 2016, I delivered a decision ruling that judicial review was available - see Wattleup Road Development Co Pty Ltd v State Administrative Tribunal [2016] WASC 11.
The question now for determination is whether the Tribunal erred in any of the respects set out in the grounds of the application and, if so, whether the report of the Tribunal should be quashed and the matter referred back to the Tribunal for further consideration.
The 2011 Decision
In order to address the applicant's contentions, it is necessary to understand the background of an earlier application by Wattleup for subdivision of the land which was ultimately dealt with by the Tribunal - see Wattleup Road Development Company Pty Ltd and Western Australian Planning Commission [2011] WASAT 160 (2011 Decision).
The 2011 Decision concerned a review by the Tribunal of a deemed refusal for a subdivision application which was substantially similar to the subdivision the subject of these proceedings. Although initially a deemed refusal, in response to an invitation by the Tribunal to reconsider the application, the Commission substituted an actual refusal. In the 2011 Decision, the Tribunal identified three principal considerations to be assessed and balanced in the exercise of planning discretion. Two of those were consistency with strategic and statutory planning framework, and the precautionary principle. It concluded that the proposed subdivision was consistent with the strategic and statutory planning framework for the site and continued:
Such a finding would usually be a powerful and compelling consideration in deciding whether to grant subdivision approval in the exercise of planning discretion. However, consistency with the strategic and statutory planning framework does not set aside environmental planning considerations in cases where they properly arise for consideration in a planning assessment. In particular, consistency with the planning framework does not negate the precautionary principle in circumstances where it applies [21].
The Tribunal then proceeded to discuss the precautionary principle by reference to the decision of Preston CJ in Telstra Corp Ltd v Hornsby Shire Council [2006] NSWLEC 133; (2006) 146 LGERA 10 (Telstra Corp), where his Honour explained the nature and application of the precautionary principle. The Tribunal considered that, having regard to the purpose of the PD Act being to 'promote the sustainable use and development of land in the State', and to the provisions of State Planning Policy No 1 - State Planning Framework Policy (SPP1), the precautionary principle was applicable in the case of the proposed subdivision. It reached that conclusion because it found that the proposal gave rise to a threat of serious or irreversible environmental damage for future residents of the proposed subdivision and there was scientific uncertainty as to the environmental damage [49]. The threat of serious or irreversible environmental damage with which the Tribunal was concerned was the impact on the proposed residential land of dust from the adjoining land occupied by Alcoa and used as an alumina refinery, and in particular the dust which might emanate from Alcoa's residue drying/disposal/storage area (RDA).
Having identified that the precautionary principle was applicable in the circumstances of the case before it, the Tribunal continued:
As noted earlier, a finding, such as in this case, that a proposed subdivision is consistent with the long term strategic and statutory planning for a site would usually be a powerful and compelling consideration in favour of approval. However, in the circumstances of this case, the precautionary principle warrants refusal, unless and until adequate air quality monitoring is undertaken and reviewed in relation to the site demonstrating that the proposed subdivision would be acceptable in relation to dust health and amenity impacts. The evidence shows that dust can cause significant adverse health and amenity impacts. Furthermore, the Urban Deferred classification was 'lifted' in the face of advice from the EPA that there could not be confidence in predictions about air quality in the vicinity of the site. As, under the precautionary principle, it must be assumed that the threat of serious or irreversible environmental damage is no longer uncertain but is a reality, precluding subdivisions until adequate monitoring of air quality on the site demonstrates the acceptability of the proposal is a proportionate, appropriate and costeffective measure to ensure that the incoming population will not be exposed to unacceptable health or amenity impacts [66].
The Tribunal continued:
There is a threat of serious or irreversible environmental damage for residents of the proposed subdivision in relation to dust from the RDA and the sand quarry to the south and south-east of the site. Furthermore, there is scientific uncertainty as to the environmental damage. The conditions precedent to the satisfaction of the precautionary principle are therefore established. Consequently, a precautionary measure may be taken to avert the anticipated threat of environmental damage, provided that it is proportionate to the threat. Precluding subdivision until adequate air quality monitoring at the site demonstrates the acceptability of the proposal is proportionate to the threat, appropriate and cost-effective. Adequate air quality monitoring requires prior consultation with the DEC, monitoring for a period of at least 12 months and assessment and reporting in relation to relevant standards for PM10 and TSP and chemical composition of dust [68].
The Tribunal noted that the case ultimately involved the balancing, in the exercise of planning discretion, of the finding that the proposed subdivision is consistent with long‑term strategic and statutory planning framework for the site against the precautionary principle. It concluded that the precautionary principle was 'an overwhelming consideration in favour of refusal of the proposed subdivision'. It concluded:
Balancing the planning considerations, the Tribunal considers that, in the circumstances of this case, the precautionary principle warrants refusal of the proposed subdivision, unless and until adequate air quality monitoring is undertaken and reviewed in relation to the site demonstrating that the proposed subdivision would be acceptable in relation to the health and amenity impacts of dust [71].
2014 Report
In the 2014 Report, after outlining the background of Wattleup's application and the events leading to the hearing before the Tribunal, the Tribunal recited the background of the 2011 Decision. It made specific reference to [66] and [68] of that decision, which are set out above.
The Tribunal continued:
As Alcoa correctly submits, the present proceedings are not a 'continuation' of the earlier Wattleup proceeding. These are fresh applications for review. Furthermore, as Alcoa submits, 'nothing in the [2011 Wattleup decision] did or could constitute a direction by the Tribunal, satisfaction of which, precludes the full exercise of discretion by the Tribunal in these proceedings.' In the 2011 Wattleup proceeding, the Tribunal also did not have the benefit of the detailed air quality evidence given by five of the eight air quality expert witnesses called in the present proceedings and did not have the benefit of submissions from Alcoa. Nevertheless, consistently with the Tribunal's determination in the 2011 Wattleup decision, as a matter of orderly and proper planning, in order for the consent authority to approve the proposed subdivisions, it must be demonstrated to its satisfaction that the proposed subdivisions are acceptable in relation to the health and amenity impacts of dust [15].
The Tribunal then referred to dust monitoring which had been undertaken following the 2011 Decision, and in particular during the period 1 July 2012 to 31 July 2013.
At [20], the Tribunal noted that the parties had agreed with the Tribunal's identification of the following issues, being the 'four principal issues' arising in determination in the proceedings:
1)Whether the proposed subdivisions are acceptable in relation to the health and amenity impacts of dust.
2)Whether the proposed subdivisions are consistent with the applicable planning framework.
3)Whether the proposed subdivisions would adversely affect the industrial amenity of the RDA.
4)Whether approval of the proposed subdivisions would set an adverse planning precedent.
The Tribunal referred to the expert evidence of eight experts who had given their evidence concurrently in relation to air quality in a panel session which occupied four days of the hearing. Those experts were [22]:
Witness
Expertise
Called by
Professor Thomas Lyons
Meteorologist with over 40 years' postdoctoral experience; Professor of Environmental Science, Murdoch University
Applicants
Dr Victor Kabay
Environmental scientist with 78 years' experience in impact assessment, regulatory approval, air quality and environmental risk assessment; Senior Consultant, Peter J Ramsay & Associates
Applicants
Dr Peter Forster
Environmental consultant and chemist with 23 years' experience including air quality monitoring, measurement and impact assessment; Director, ChemSearch Pty Ltd
Applicants
Mr Martin Matisons
Toxicologist who has held senior scientific positions with Commonwealth and State organisations for 25 years; Principal Toxicologist, Environmental Health Directorate, DoH
Commission
Ms Constance Dewan
Environmental scientist and chemist with 22 years' experience; Senior Environmental Officer, Air Quality Management Branch, DER
Commission
Mr Robin Ormerod
Environmental scientist who has practised as an air quality consultant for 35 years; Practice Leader Air Quality and Meteorology, Pacific Environment Ltd
Alcoa
Mr Christopher Gwynne
Environmental engineer who has practised as a consultant environmental engineer for 15 years; Principal Environmental Engineer, Pollution Management Team, GHD Pty Ltd
Alcoa
Mr Patrick Coffey
Environmental engineer with over 40 years' experience, including 20 years working on air quality and air emissions management for Alcoa; Principal Consultant Air, Corporate Environment and Sustainability, Alcoa
Alcoa
The Tribunal noted that the regulatory standard in Western Australia for health impacts of dust on residential populations is the National Environment Protection (Ambient Air Quality) Measure (NEPM) standard of PM10, meaning 50 micrograms per cubic metre of dust particles with a maximum diameter of 10 micrometres, averaged over 24 hours. The Tribunal noted that all of the experts agreed that the applicant's monitoring was appropriately carried out and demonstrated compliance with the PM10 NEPM standard. It was therefore satisfied that the health impacts of dust were acceptable for the proposed subdivisions during the year of monitoring. It did not, however, accept that the site was not presently subject to dust levels which would pose an unacceptable health impact because the monitoring results could not reasonably be relied upon as predictive of health impacts of dust on the site at present or in the future [25].
The Tribunal noted that the air quality expert witnesses also agreed that the currently accepted regulatory standard in the area of the site for amenity impacts of dust on residential populations is the Kwinana Environmental Protection Policy (Kwinana EPP) standard of Total Suspended Particulates (TSP) of 90 micrograms per cubic metre of dust particles of any size, averaged over 24 hours. It noted that the applicants' monitoring did not detect any exceedances of that standard but that that monitoring for TSP was undertaken for a total of only 72 or 74 days (there was a discrepancy in the evidence as to the total number of days), or only approximately one‑fifth of the monitoring year. The Tribunal referred to the evidence of various of the witnesses as to the significance of the frequency of monitoring. After noting that the applicant had conferred with the Department of Environment and Conservation (DEC) and the Department of Health (DoH) in relation to the monitoring regime, the Tribunal said (at [30]):
Ms Dewan's evidence does not provide a satisfactory explanation as to why DEC/DER and DoH required sampling for amenity purposes for days adding up to only approximately one-quarter of the year and accepted sampling for amenity purposes for days adding up to only approximately one-fifth of the year. Sampling for a full year may well be 'costly' and 'onerous'. However, the proposed subdivisions would facilitate the introduction of large, permanent, residential populations on the site in circumstances where '[t]here is a threat of serious or irreversible environmental damage for residents of the proposed subdivision in relation to dust from the RDA and the sand quarry …' (2011 Wattleup decision at [68]). The 'cost' and 'onerousness' of undertaking a full year of monitoring for amenity purposes, rather than days adding up to one-fifth or one‑quarter of a year, is necessary given the proximity of the site to the RDA and the WA Limestone sand quarry and the nature of the proposal. In the circumstances of this case, daily monitoring for TSP is not only 'ideal', but necessary for an adequate monitoring program [30].
More detailed reference was then made to the evidence of various experts as to the significance of sampling periods.
The Tribunal then referred to evidence as to sampling of TSP taken by Alcoa at Sayer Road, which is a short distance to the west of the site. The Tribunal said:
In light of Mr Gwynne's and Mr Coffey's sound criticism, we do not accept the correctness or utility of Dr Forster's 'correlation' assessment in relation to the results of sampling at Sayer Road. Although the Sayer Road monitoring station is located north of the RDA, whereas the site is located northeast of the RDA, and although the Sayer Road monitoring station may well be affected by nearfield dust sources which may not affect the site (just as the site may be affected by nearfield dust sources, such as the sand quarry, which may not affect the Sayer Road monitoring station), the Sayer Road monitoring station is located only 300 metres closer to the RDA than the site. The fact that TSP monitoring was undertaken at the Sayer Road monitoring station for approximately 360 days between July 2012 and June 2013 and that 12 exceedances of the Kwinana EPP TSP amenity standard were observed in that location during that period, whereas only 72 or 74 days of TSP monitoring was undertaken during the same period at the site, strongly suggests that had TSP monitoring been undertaken at the site for the full year or close to it, exceedances of the amenity standard would have been observed. (Interestingly, in its submissions, Alcoa notes that the two exceedances of PM10 that were recorded in the applicants' monitoring at the site (26 February 2013 and 10 April 2013) occurred on days when no TSP sampling was undertaken at the site) [48].
The Tribunal continued:
However, even if the Tribunal were to ignore the results of TSP monitoring at Sayer Road during the period of the applicants' monitoring, the Tribunal considers that the applications warrant refusal because of the absence of evidence that would be necessary to satisfy it that the proposed subdivisions are acceptable in relation to the amenity impacts of dust even in the year of monitoring [49].
The Tribunal observed that the TSP amenity monitoring undertaken on behalf of the applicants 'plainly does not satisfy the Tribunal's contemplation in the 2011 Wattleup decision at [18], of "monitoring for a period of at least 12 months …"' (original emphasis). The Tribunal was not satisfied that the proposed subdivisions were 'acceptable in relation to the amenity impacts of dust, whether in relation to the year of dust monitoring between July 2012 and June 2013, currently or in the future'.
Having reached that conclusion, the Tribunal dealt with what was described by some of the experts as a gap in the ability to assess acceptability of air quality from an amenity perspective. That gap was said to be that the 24 hour averaging under the Kwinana EPP TSP standard is likely to 'mask' the true adverse impacts of dust, both generally and from the RDA, in particular upon residents of the proposed subdivisions. After discussing the evidence in relation to that issue, the Tribunal concluded:
As Alcoa submits, the inadequate sampling of TSP at the site in the applicants' monitoring (onefifth of a year) and the failure to meaningfully address the 'gap' by only providing 24 hour averaged TSP sampling results for the 72 or 74 days between July 2012 and June 2013, are each 'fatal' to approval of the proposed subdivisions in the exercise of planning discretion. As Alcoa also submits, it would be 'unsafe' for the Tribunal (or the Minister) to treat the applicants' monitoring as addressing real amenity concerns. In consequence of these two failures in the monitoring and other evidence presented or relied upon by the applicants, the Tribunal is not satisfied that the proposed subdivisions are acceptable in relation to the amenity impacts of dust, even during the applicants' monitoring year [63].
The Tribunal then proceeded to address what it described as further reasons for the Tribunal not to be satisfied by the applicants' monitoring and other evidence presented or relied upon by the applicants as demonstrating that the proposed subdivisions were acceptable in relation to health and amenity impacts of dust.
The first of those reasons was that the data already gathered was not reliable to predict the future air quality at the site because conditions affecting dust may change in the future. The Tribunal concluded that even if, contrary to its earlier conclusion, the applicants' monitoring had demonstrated that the proposed subdivisions were acceptable in relation to amenity, it could not be relied upon to demonstrate that air quality would be acceptable in the future. The evidence before the Tribunal was that Alcoa anticipated operating the RDA for at least the next 20 years and that the current State agreement allows the RDA to operate for another 30 years until 2045.
The Tribunal identified three aspects of the evidence which they found indicated that relevant circumstances are likely to be different in the future with the result that the impact of dust from the site was likely to be greater from time to time. The first of those was evidence as to meteorological conditions which affect dust generation. The Tribunal accepted Alcoa's submission that it is likely there would be dust seasons which experience heightened dust levels over that which was measured in the 2012/2013 monitoring period, and that absence of evidence of the worst case scenario is a 'fatal omission' which by itself justified a recommendation for refusal. The second aspect of the evidence related to the effects of climate change. The Tribunal accepted evidence to the effect that anticipated hotter, drier conditions in future would result in increased dust emissions. The third aspect related to changes in frequency or intensity of winds.
The third reason was that the applicants' monitoring and evidence did not take into account the likely changes in operations at the RDA in the area of the RDA most approximate to the site [88]. The Tribunal referred to evidence that the height of the RDA would increase by 24.3 m from the current height of 55.7 m AHD to 80 m AHD between 2015 and 2027 [89]. The Tribunal concluded that it is likely that the significant increase in height of the RDA will result in an increase in dust generation in the direction of the land the subject of the application, which increase in dust would persist until the RDA is vegetated after it reaches 80 m AHD [94].
The Tribunal then turned to various aspects of the evidence relied upon by Wattleup as demonstrating that the proposed subdivisions were acceptable in relation to the health and amenity impacts of dust. The first aspect of that evidence was evidence of Dr Forster based on the chemical analysis of dust found at the site from which Dr Forster characterised the contribution of dust from the RDA as 'something small'. The Tribunal preferred the contrary evidence of other experts on that issue.
The second aspect concerned evidence in relation to dust from a limestone quarry in the vicinity of the site. Again, the Tribunal preferred contrary evidence of other experts on that issue.
Thirdly, the Tribunal had regard to a matter of common ground, namely that the RDA is managed according to 'world's best practice'. They referred to the evidence of Dr Honey, Alcoa's Western Australian operations residue manager, to the effect that, whilst Alcoa controlled dust well, it is not always possible to prevent dust emissions. The Tribunal concluded that, although the evidence showed that Alcoa made every reasonable effort to mitigate and minimise dust impacts, it is inevitable and unavoidable that dust from the RDA will affect the surrounding locality to some extent [107].
For all the reasons canvassed by the Tribunal, it concluded that the evidence did not satisfactorily demonstrate that the proposed subdivisions are acceptable in relation to health and amenity impacts of dust, and that that conclusion warranted refusal of the subdivision applications.
The Tribunal then turned to the question of whether or not the proposed subdivisions were consistent with the applicable planning framework. It noted that in the 2011 Decision, the Tribunal had concluded that the proposed subdivisions, which were essentially identical to the subdivisions under consideration, were consistent with the strategic and statutory planning framework for the site. The Tribunal observed, however, that following, and as result of, the 2011 Decision, the City of Cockburn amended the Southern Suburbs District Structure Plan ‑ Stage 3 Hammond Park/Wattleup to acknowledge that existing modelling in relation to the area in which the site is located should be given no weight, and that fresh modelling was necessary to be undertaken. The Tribunal concluded that, by reason of its determination that acceptability of the subdivision from a health and amenity aspect had not been demonstrated, the requirement for future structure planning to await determination as to acceptability meant that the proposed subdivisions were inconsistent with the applicable planning framework.
The Tribunal then addressed the issue as to whether the proposed subdivision would adversely affect the industrial amenity of the RDA. It concluded that the industrial amenity of the RDA would be affected by approval of the proposed subdivision by reason of the likely responses of future residents of the proposed subdivision in the event that their health and amenity were adversely affected by the emission of dust.
The Tribunal also concluded that the proposed subdivision would set an adverse planning precedent by reason of the fact that there are at least five other lots in the vicinity which have similar characteristics to the site and might in future become the subject of applications for subdivisions [117].
Grounds of application
The grounds upon which Wattleup seeks to quash the 2014 Report can be summarised as follows:
1.In concluding that Wattleup's proposed subdivision was not acceptable in relation to health and amenity impacts of dust and was thereby not consistent with the applicable planning framework, the Tribunal:
•erred in law by taking into account an irrelevant consideration (ground 1.1) or alternatively misdirecting itself (ground 4.1) by applying the precautionary principle to the determination of an application for subdivision approval pursuant to the PD Act;
•in the alternative, erred in law (ground 1.2) or misdirected itself (ground 4.2) in the manner in which it applied the precautionary principle by wrongly elevating a 'principle of caution' into a rebuttable presumption of harm or alternatively failing to consider whether the proposed precautionary measure was proportionate, including whether a notification pursuant to s 165 of the PD Act such as that contained in the draft conditions proposed by the Commission is a sufficient measure to address the concerns identified by the Tribunal;
•erred in law (ground 1.3) or misdirected itself (ground 4.4) in finding that, notwithstanding that Wattleup had established to its satisfaction that the health impacts of dust were acceptable for the proposed subdivision during the year of monitoring, there was an onus on Wattleup to establish that the health (and amenity) impacts of dust would be acceptable in the future and in respect of factors which, by their nature, are not capable of reasonable prediction;
•erred in law (ground 1.4) by failing to take into account in reaching its decision (ground 4.3) Alcoa's licence pursuant to the Environmental Protection Act 1986 (WA) (EP Act) and the sections of the EP Act relating to the licence (and in particular any non‑compliance with its terms), the Alumina Refinery Agreement Act 1961 (WA) and particularly cl 6 of the First Schedule, and sections 7.2 and 8.4.3 of Alcoa's 2012 Strategy document.
2.The Tribunal erred in law (ground 2) or misdirected itself (ground 4.5) in finding that approval of the proposed subdivision would set an adverse planning precedent which represented a further reason for refusal of the proposed subdivision.
3.The Tribunal erred in law (ground 3 and ground 4.6) in finding that the industrial amenity of the RDA constituted a reason, or further reason, to refuse Wattleup's application for residential subdivision approval, such finding being manifestly unreasonable in the sense that no reasonable decision‑maker could have made such a finding.
A further ground, to the effect that the finding that the application for subdivision should be refused was manifestly unreasonable, was abandoned by Wattleup at the hearing.
The test for judicial review of the 2014 Report
The alternative characterisations of each of the complaints underlying the grounds of review as set out in grounds 1, 2 and 3 or alternatively as set out in ground 4 were designed by the applicant to cover the characterisation of the Tribunal, in performing its function under s 246(2)(b) of the PD Act, as either an administrative tribunal or as an inferior court. An inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction, or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist (the narrow test). An administrative tribunal falls into jurisdictional error if it makes an error of law which causes it to identify a wrong issue, ask itself a wrong question, ignore relevant material, rely on irrelevant material or, in some circumstances, make an erroneous finding or reach a mistaken conclusion by which the purported exercise of its power is thereby affected (the broad test): Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163, 179.
Alcoa accepted that, in making a recommendation under s 246 of the PD Act, the Tribunal was not exercising the powers under the SAT Act which led to the characterisation of the Tribunal in Re Carey; Ex parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501 as an analogous inferior court. Alcoa accepted that the Tribunal was, in making the 2014 Report, acting as an administrative tribunal such that the broad test for jurisdictional error applied. Because of the conclusions I have reached below as to the merits of the grounds of review, the distinction is irrelevant in the present case. It is not necessary for me to explore that issue in detail.
I am inclined, however, to the view that the concession by Alcoa was correctly made. As McLure P observed in Wattleup Road Development Co Pty Ltd v Western Australian Planning Commission [2015] WASCA 104 [38] ‑ [39], a direction of the Minister under s 246(2) of the PD Act takes what was a reviewable decision outside the scope of the Tribunal's general final review power, and instead empowers the Tribunal to perform an advisory function. The Tribunal is not, in preparing a report and recommendations to the Minister, determining the legal rights of the parties.
Grounds 1.1 and 4.1 - application of the precautionary principle
It is generally accepted that what is referred to as the 'precautionary principle' is the formulation found in the Intergovernmental Agreement on the Environment 1992 (1992 Intergovernmental Agreement) at cl 3.5.1 which provides:
Where there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation. In the application of the precautionary principle, public and private decisions should be guided by:
1.careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment; and
2.an assessment of the risk‑weighted consequences of various options.
That formulation is found in s 4A of the Environmental Protection Act 1986 (WA), which stipulates that the precautionary principle, defined in those terms, is a matter to which regard is to be had in meeting the object of the EP Act to protect the environment of the State.
The precautionary principle is not expressly referred to in the PD Act. The purposes of the PD Act are to provide for the efficient and effective land use planning system in the State, and to promote the sustainable use and development of land in the State: PD Act, s 3(1).
Grounds 1.1 and 4.1 assert error on the part of the Tribunal in applying the precautionary principle to the determination of the application. In Wattleup's written submissions, extensive reference was made to various decisions in Australia which had considered the application of the precautionary principle to decision‑making under various legislative schemes. They included Leatch v National Parks and Wildlife Service (1993) 81 LGERA 270 (Leatch) (concerning a licence under the National Parks and Wildlife Act 1974 (NSW)), where Stein J noted that, in order to test the relevance of the precautionary principle to the provisions of the National Parks and Wildlife Act, it is necessary to examine the subject matter, scope and purpose of the enactment. On undertaking that review, Stein J concluded that, while there is no express provision requiring consideration of the precautionary principle, it could not be said to be an extraneous matter and its application was consistent with the subject matter, scope and purpose of the Act (282 ‑ 283).
In BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 399; (2004) 138 LGERA 237 (BGP Properties), McClellan CJ considered the application of the precautionary principle to decisions under the Environmental Planning and Assessment Act 1979 (NSW). That Act specifically required a consent authority to have regard to the public interest, and to the principles of ecologically sustainable development. Chief Justice McClellan concluded that, in the application of those principles, 'the precautionary principle must be utilised' [113].
In Environment East Gippsland Inc v VicForests [2010] VSC 335; (2010) 30 VR 1, Osborn J held, unsurprisingly, that the precautionary principle applied to determinations under the Sustainable Forests (Timber) Act 2004 (Vic), because s 5(4)(b) of that Act specifically identified the precautionary principle as a guiding principle of ecologically sustainable development.
On the other hand, Sackville J in Friends of Hinchinbrook Society Inc v Minister for Environment (1997) 142 ALR 632 rejected an argument that the precautionary principle had application to the World Heritage Properties Conservation Act 1983 (Cth) (World Heritage Act). His Honour found that the precautionary principle in the form adopted in the 1992 Intergovernmental Agreement, which post‑dated the World Heritage Act by nine years, was not a relevant consideration that the minister was bound to take into account in exercising powers under that Act. His Honour found however that the minister had, without mentioning the precautionary principle, taken a cautionary approach in the light of scientific uncertainty as to risk to world heritage values. There was no suggestion that the requirement for caution was an irrelevant consideration.
In Alliance to Save Hinchinbrook v Environmental Protection Agency [2006] QSC 84; (2006) 145 LGERA 322, Jones J in the Supreme Court of Queensland, after considering the Marine Parks Act 1982 (Qld) and the Marine Parks Regulation 1990 (Qld) and noting that there was no express obligation in those legislative instruments to apply any such principle, found that there was no procedural error by the original decision‑maker occurring by reason of any failure to apply the precautionary principle [35].
In Watson on behalf of Nyikina & Mangala v Backreef Oil Pty Ltd [2013] FCA 1432, Siopis J in the Federal Court held that the language of s 39 of the Native Title Act 1993 (Cth) imposed no obligation to adopt the precautionary principle such that a failure to do so would amount to a failure to have regard to a relevant matter. Justice Siopis concluded that the Tribunal in that case had, in any event, applied a cautious approach consistent with the precautionary principle notwithstanding that it was not obliged to do so. His Honour concluded, in effect, that the precautionary principle was neither a mandatory consideration nor an irrelevant consideration, but one which the Tribunal was entitled to take into account.
These cases do no more than demonstrate that whether the precautionary principle is a mandatory consideration, a non‑mandatory consideration that may be taken into account, or an irrelevant consideration in the sense that it is not open to take it into account, depends upon the particular statutory framework under which the relevant decision was being made.
The question of whether or not it is open to a decision‑maker exercising the discretion under s 135 of the PD Act to have regard to the precautionary principle turns on the subject matter, scope and purpose of the PD Act. The discretion under s 135 is conditioned by s 138, which imposes a mandatory requirement to have due regard to the provisions of any applicable local planning scheme and, subject to the exceptions in s 138(3), not to give an approval that conflicts with those provisions. Section 138(4) requires that, despite the exceptions set out in s 138(3), the Commission is to ensure that an approval complies with the provisions of a local planning scheme to the extent necessary for compliance with an environmental condition relevant to the land in question. That requirement is consistent with the notion that environmental considerations are of importance in meeting the objects and purposes of the PD Act. That notion is reinforced by s 81 and s 82 of the PD Act, which require proposed local planning schemes or proposed amendments to local planning schemes to be referred to the Environmental Protection Authority (EPA) for possible assessment under the EP Act. Section 32 of the PD Act makes those provisions applicable to proposed, or proposed amendments to, State planning policies under pt 3 of the PD Act.
As noted above, one of the purposes of the PD Act is to 'promote the sustainable use and development of land in the State' (s 3(1)(c)). There is nothing in the PD Act which expressly excludes consideration of the precautionary principle. Consideration as to the sustainable use of land clearly invites consideration of environmental factors. Like Stein J in Leatch and McClellan CJ in BGP Properties, I consider that consideration of the precautionary principle is a consideration of relevance to the assessment of sustainable use and development of land. That view is reinforced by the apparent importance of environmental considerations in relation to the local planning schemes and State planning policies. Both of those instruments are important mechanisms in the achievement of the purposes of the PD Act. It would be surprising if, in considering the sustainable use of land, a decision‑maker exercising discretion under s 135 of the PD Act was prohibited from having regard to a guiding principle of the EP Act. The precautionary principle is not an extraneous matter which a decision‑maker exercising the discretion under s 135 of the PD Act is precluded from taking into account. To say that it was open to the Tribunal to have regard to the precautionary principle is not to say that the principle is elevated to a principle of law: Tuna Boat Owners Association of SA Inc v Development Assessment Commission [2000] SASC 238; (2000) 77 SASR 369 [34] (Doyle CJ, Duggan and Lander JJ agreeing).
Despite Wattleup's written submissions in relation to these grounds, counsel for Wattleup accepted, in the course of oral submissions, that 'simply because it's not referred to as a guiding principle in the PD Act doesn't mean that there was an error by the Tribunal in having regard to what we say is the true precautionary principle and how it applies' (ts 25). Rather, counsel submitted that the Tribunal erred in the manner in which it applied the precautionary principle. That contention is the subject of grounds 1.2 and 4.2. The position accepted by Wattleup in oral submissions was in my view correct. It follows that grounds 1.1 and 4.1 are not made out.
Grounds 1.2 and 4.2 - manner of application of the precautionary principle
Grounds 1.2 and 4.2 assert an error of law in the manner in which the Tribunal applied the precautionary principle. Two errors are said to have been made. The first is that the Tribunal elevated a principle of caution to a rebuttable presumption of harm. The second is that it failed to consider whether the proposed precautionary measure, namely refusal of the subdivision application, was proportionate in that the Tribunal failed to consider whether a notification pursuant to s 165 of the PD Act was a sufficient measure to address the Tribunal's concerns.
The first contention it said to arise from the Tribunal's reference in the 2014 Report [13] to [66] of the 2011 Decision (set out above at [11]). The Tribunal's reference to an assumption, under the precautionary principle, that serious or irreversible environmental damage is a reality was no doubt, as Wattleup submits, drawn from the court's observation in Telstra Corp. That paragraph is headed 'Shifting of the burden of proof', and reads:
If each of the two conditions precedent or thresholds are satisfied ‑ that is, there is a threat of serious or irreversible environmental damage and there is the requisite degree of scientific uncertainty ‑ the precautionary principle will be activated. At this point, there is a shifting of an evidentiary burden of proof. A decision‑maker must assume that the threat of serious or irreversible environmental damage is no longer uncertain but is a reality. The burden of showing that this threat does not in fact exist or is negligible effectively reverts to the proponent of the economic or other development plan, programme or project [150].
It should be noted, however, that the court went on to say [154]:
It should be recognised that the shifting of the evidentiary burden of proof operates in relation to only one input of the decision‑making process ‑ the question of environmental damage. If a proponent of a plan, programme or project fails to discharge the burden to prove that there is no threat of serious or irreversible environmental damage, this does not necessarily mean that the plan, programme or project must be refused. It simply means that, in making the final decision, the decision‑maker must assume that there will be serious or irreversible environmental damage. This assumed factor must be taken into account in the calculus which decision‑makers are instructed to apply under environmental legislation (such as s 79C(1) of the EPA Act). There is nothing in the formulation of the precautionary principle which requires decision‑makers to give the assumed factor (the serious or irreversible environmental damage) overriding weight compared to the other factors required to be considered, such as social and economic factors, when deciding how to proceed: D Farrier, 'Factoring biodiversity conservation into decision‑making processes: The role of the precautionary principle' in R Harding and E Fisher, Perspectives on the Precautionary Principle, (Federation Press, 1999), p 108.
It can be accepted that, were the Tribunal to consider that the assumed factor was, by itself, determinative of the application for approval, or the precautionary principle is a rule of law requiring refusal of the application, it would fall into error. I do not, however, consider that the Tribunal proceeded on that basis.
Before turning to the 2014 Report, it should be noted that [71] of the 2011 Decision (set out above at [13]), the Tribunal's conclusion that the precautionary principle warranted refusal was couched in terms of '[b]alancing the planning considerations' and considering the matter 'in the circumstances of this case'. That approach reflects the correct application of the principle.
Paragraph 15 of the 2014 Report is set out above (at [15]). The reference to a requirement for demonstration to the Tribunal's satisfaction that the proposed subdivisions are acceptable in relation to health and amenity impacts of dust reflects the first issue which the parties posed in the 2014 proceedings (set out above at [17]). Resolution of that issue required the Tribunal to consider and analyse the extensive expert evidence in relation to potential dust problems for future residents of the proposed subdivision. The 2014 Report reveals a detailed analysis of that evidence and the conclusions which the Tribunal drew from it. The merits of the Tribunal's analysis and its conclusions of fact are not, of course, open to review in these proceedings. It reached the conclusion at [51] that it was not satisfied that the proposed subdivisions are acceptable in relation to the amenity impacts of dust.
A fair reading of the Tribunal's reasons supports the conclusion that the Tribunal merely addressed the issue which the parties recognised as requiring determination in the application, namely the acceptability of the proposed subdivision in relation to the health and amenity impacts of dust. Clearly, the Tribunal had a great deal more information on that issue in the context of the 2014 Report than it had in the 2011 Decision. However, as the Tribunal recognised, the proceedings in 2014 required that it examine the evidence then available to determine the acceptability of the proposed subdivision. In doing so, it did not apply the precautionary principle to the exclusion of other considerations. In substance, the Tribunal simply reached the view that, notwithstanding the testing which had been undertaken since the 2011 Decision, there remained scientific uncertainty as to the effects of dust, and in its discretion recommended against approval. It did not elevate the principle to a presumption of law.
The second basis upon which it is said that the Tribunal misdirected itself or made an error of law in its application of the precautionary principle is that it failed to consider whether refusal of the application was a proportionate response to the risk of harm. The specific matter which Wattleup submits should have been considered by the Tribunal was the proposal contained in draft conditions suggested by the Commission that a notification be placed on the titles of the subdivided blocks pursuant to s 165 of the PD Act. Reliance was placed on the observations of Nicholson J in Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522 where his Honour said:
On the face of the Tribunal's reasons it was prepared to be persuaded to depart from what it regarded as the applicable policy. However, in reaching the conclusion that proper controls can only be achieved by application of the policy, the Tribunal failed to give proper, genuine and realistic consideration to the merits of the case in that it did not properly consider whether the requisite level of control could be achieved by other means (529).
See also Ipp J at (537 ‑ 538).
By analogy, Wattleup contends that, in applying the precautionary principle, the Tribunal failed to give proper, or any, attention to whether a proportionate response to the risk was to require notifications on title as a condition of approval.
The requirement that a precautionary measure, taken in accordance with the precautionary principle, be proportionate is extracted from Telstra Corp, where the Court said:
The precautionary principle embraces the concept of proportionality. The concept of proportionality is that measures should not go beyond what is appropriate and necessary in order to achieve the objectives in question. Where there is a choice between several appropriate measures, recourse should be had to the least onerous measure and the disadvantages caused should not be disproportionate to the aims pursued [166].
The draft conditions submitted to the Tribunal by the Commission included draft condition 25, which read:
A notification, pursuant to section 165 of the Planning and Development Act 2005 is to be place [sic] on the Certificates of Title of the proposed lots within or partially within the WAPC's plan titled 'Revised Kwinana Industrial (including Air Quality) Buffer, as of 21 September 2010 (as per the attached plan) advising of the existence of a hazard or other factor. Notice of this notification is to be included on the diagram or plan of survey (deposited plan). The notification is state [sic] as follows:
'This lot is located in proximity to industrial operations within and associated with the broader Kwinana industrial area and therefore may be affected by dust from that area. The Department of Health advises that dust may adversely impact amenity and well‑being. Individuals who may be more susceptible to the adverse health effect of fine and coarse dust particulars include the elderly, children and people with pre‑existing respiratory and cardiovascular health conditions' (Western Australian Planning Commission).
Section 165 of the PD Act relevantly provides:
(1)This section applies when the Commission considers it desirable that owners or prospective owners of land comprised in ‑
(a)a plan of subdivision or proposed plan of subdivision; or
(b)a strata/survey-strata plan or proposed strata/survey‑strata plan under the Strata Titles Act 1985,
be made aware of hazards or other factors seriously affecting the use or enjoyment of that land and determines that the title and land register in respect of that land should be noted accordingly.
(2)When this section applies, the Commission may cause a notification of the hazard or other factor affecting the use or enjoyment of the land to be prepared in a form acceptable to the Registrar of Titles and deposited with the Authority.
(3)Where a notification is deposited under subsection (2), the Registrar of Titles is to endorse or note the title and land register in respect of the land with that notification.
...
Wattleup's submission is that the Tribunal erred in law by failing to consider whether a requirement to comply with the proposed draft conditions was a proportionate response to the risk to health and welfare from dust. There are several reasons why there is no substance in this contention.
The first is that it elevates the requirement to have regard to the draft condition in the context of consideration of proportionality to a mandatory relevant consideration. There is no basis for that proposition. The precautionary principle is not a rule of law. An error in its application is not an error of law.
Secondly, a notification on title could have no effect on manifestation of the risk which was of concern to the Tribunal. The Tribunal was not satisfied that the proposed subdivision did not propose an unacceptable risk in relation to the health and amenity impacts of dust. The fact that potential residents may, if they undertake a title search prior to purchasing, have notice of the risk to their health and amenity does not logically make that risk any more acceptable.
Thirdly, as Pritchard J noted in Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 [135], it has never been the case that a decision‑maker will be required to expressly mention every relevant consideration in order to establish that that consideration was in fact taken into account ‑ Applicant A169 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 8 [27]. Given the fact that a notification under s 165 of the PD Act would not of itself ameliorate the potentially harmful effects of dust, it is unsurprising that the Tribunal did not specifically make reference to that draft condition in its reasons. It does not follow that the Tribunal did not have regard to the draft conditions.
Grounds 1.2 and 4.2 are not made out.
Grounds 1.3 and 4.4 ‑ finding an onus on Wattleup to establish acceptability of future dust impacts
At [25] of the 2014 Report, the Tribunal said:
The Tribunal is, therefore, satisfied that the health impacts of dust were acceptable for the proposed subdivisions during the year of monitoring. However, the Tribunal does not accept the Commission's submission that the 'evidence before the Tribunal is that the subject land is not presently subject to dust levels which would pose an unacceptable health impact' … because, for reasons set out below, the applicants' monitoring results cannot reasonably be relied upon as predictive of the health impacts of dust on the site at present or in the future (original emphasis).
In its written submissions, Wattleup summarised the reasons by which the Tribunal reached the conclusion which it did in [25] in the following terms:
96.1in the case of monitoring for amenity (TSP):
96.1.1testing had not been carried out on a daily basis for a full year;
96.1.2Wattleup's failure to address what the air quality expert witnesses each recognise is 'a gap in the ability to assess the acceptability of air quality from an amenity perspective' ... as the 24 hour averaging under the Kwinana EPP TPS standard is likely to 'mask the true adverse impact of dust, both generally and from the RDA in particular, upon residents of the proposed subdivisions', holding that 'in light of the evidence of the expert witnesses set out earlier and the prevailing south‑easterly winds on summer afternoons, during the so‑called "dust season", it is highly likely that residents of the proposed subdivisions would experience adverse amenity impacts of dust during shorter, concentrated periods than the 24 hours averaging periods used for TSP monitoring under the Kwinana EPP' and that 'whilst lasting less than 24 hours, such adverse amenity dust impacts on residents of the proposed subdivisions are likely to be real and material';
96.2in the case of monitoring for amenity and health (TSP and PM10);
96.2.1it was 'unlikely that relevant conditions during the monitoring year were representative of the future' by reason of:
(a)the meteorological conditions during the period of Wattleup's air quality monitoring 'were not "worst case" conditions for dust generation (in regard to rainfall and wind)' and
(b)'climate change ... indicates that relevant dust generating conditions are likely to be greater in the future'
(c)likely changes in operations at the RDA (original emphasis).
Wattleup's submissions as to why those reasons were inadequate are, for the most part, nothing more than submissions as to the merits of the case. The submissions are essentially complaints that evidence, which Wattleup undoubtedly relied upon in urging the Tribunal to reach a different decision from that which it did, should have led the Tribunal to a different conclusion. Those submissions do not in substance raise a question of law.
A principal area of complaint is that the Tribunal concluded that '[i]n the circumstances of this case, daily monitoring ... is not only "ideal", but necessary for an adequate monitoring programme'. It is submitted that there is no evidence to suggest that daily monitoring for amenity was required, and that the Tribunal's approach was manifestly unreasonable. The Tribunal traversed at some length evidence relating to the frequency of air testing that had been undertaken and the views of the different experts as to the adequacy of that frequency - 2014 Report [23] ‑ [48]. At [41] and [42], the Tribunal set out evidence given by Mr Ormerod and Mr Gwynne respectively in the following terms:
However, Mr Ormerod also gave the following evidence:
24-hour TSP, for example. So so we're dealing with a you know, 365 days in a year a sample of 80 days, so we we conceivably have, on some of those other 280odd days in the year, higher concentrations than have been measured on those 80 days. So we don't know the answer to that; therefore, it's not possible to say strictly whether conditions do comply with with the standard or not.(T:176.9177.2; 02.09.14)
Similarly, Mr Gwynne, who also has considerable relevant experience and gave balanced, objective and helpful expert evidence, said:
GWYNNE, MR: So that means that we've actually really only got 72 24hour samples which is, I don't believe, sufficient to draw too many conclusions from. …
And, I mean, by contrast, I Alcoa's monitoring at at Sayer Road there's 360odd daily TSP samples from just down the road and my my my interpretation that that the 72 are not necessarily representative is based on comparison in some in part, and based on comparison with those where they did, on other days, measure higher concentrations.
THE D. PRESIDENT: So Alcoa does it every day?
GWYNNE, MR: Every day at Sayer Road, which is a short distance to the west. So I guess in terms of sufficiency, I don't deem that to be a sufficient monitoring program to characterise the now. The the origin of the, you know, three-day and six-day monitoring programs is to assess longer term I guess, to assess against longer term criteria. So the idea of taking a sample every three days or a sample every six days is in order for you to collect a databank which you can then assess against, say, an annual average. So you take all your 70 or 80 samples you collect over the year, you average them out, and you assess against an average criterion, and in that basis you should if you take, you know, a sample every three days or a sample every six days, it should average out to the same number as if you had taken a sample every day. That's the the statistical theory behind behind not doing every day. But if you are assessing against a 24 24hour criterion, if you sample anything less than every 24 hours, you are running the risk of missing a a compliance or you can't state that you're you're always in compliance. You can state that you were in compliance for 72 days, but but no more. (T:179.9, 180.5‑181.2; 02.09.14)
Much of the Tribunal's discussion concerned the issue of fluctuations, from day to day or within any particular day, of dust levels. In that context, the basis upon which the Tribunal concluded that daily monitoring was desirable can be readily appreciated. There was evidence which enabled the Tribunal to reach the conclusion which it did, and it cannot be said that the Tribunal's conclusion was manifestly unreasonable.
It is not necessary to deal with the various other criticisms made in Wattleup's submissions as to the Tribunal's failure to be satisfied as to the adequacy of previous testing. The submissions do no more than go to the merits of the Tribunal's decision, a matter not susceptible to review in these proceedings.
Grounds 1.4 and 4.3 ‑ failing to take into account Alcoa's licence pursuant to the EP Act
As noted above, the Tribunal expressly found that the evidence showed that Alcoa made every reasonable effort to mitigate and minimise dust impact. It concluded, however, that it was inevitable and unavoidable that the dust from the RDA would affect the surrounding locality [107]. That finding was based on the evidence of Dr Honey which was set out in [106] of the reasons.
Wattleup's complaint under these grounds is that, notwithstanding the various statutory obligations on Alcoa to minimise dust emissions, the Tribunal proceeded on an erroneous basis that it ought to deal with the application on the basis that Alcoa conducted itself in a manner inconsistent with its statutory and licensing obligations. The Tribunal did not fail to have regard to Alcoa's conduct in controlling dust emissions in accordance with its obligation, as the finding in [107] makes clear. Wattleup's complaint that consideration of the statutory obligations, and the opportunities for enforcement of those obligations, should have led the Tribunal to a different decision does not raise any question of law. It amounts to no more than an attack on the merits of the Tribunal's decision.
Grounds 1.4 and 4.3 are not made out.
Grounds 2 and 4.5 ‑ finding approval of the proposed subdivision would set an adverse planning precedent
Wattleup accepted at the hearing that, if its arguments in relation to the earlier grounds were not upheld, it would not be entitled to the remedy it seeks even if grounds 2 and 4.5 were upheld. That is because the Tribunal's finding that the proposed subdivisions would set an adverse planning precedent was expressly said to be 'a further reason for refusal of the proposed subdivisions' [118]. It was not the primary basis upon which refusal was recommended. Given the conclusions which I have reached in relation to the preceding grounds, it is not necessary that I address grounds 2 and 4.5. Notwithstanding that, I propose to say something about the Tribunal's application of the concept of adverse planning precedent.
At [116], the Tribunal said:
It is settled planning law that adverse planning precedent is a relevant matter for consideration in the exercise of planning discretion if:
1)the proposed subdivision or development is not in itself unobjectionable; and
2)there is more than a mere chance or possibility that there may be later undistinguishable applications: Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117 at [74].
The Tribunal concluded that the proposed subdivisions were 'not in themselves unobjectionable' because it had not been demonstrated that they were acceptable in relation to health and amenity impacts of dust, and that there was 'certainly more than a mere chance or possibility that there may be later undistinguishable applications, given that there are at least five other lots on the southern side of Wattleup Road that have substantially similar characteristics to the site' [117]. On that basis, the Tribunal concluded that approval of the proposed subdivision would create an adverse planning precedent and that that was a reason to refuse the application.
The Tribunal referred to Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117 [74] (Nicholls) to support its explanation of the concept of adverse planning precedent. Nicholls was a decision of Senior Member Parry (as he then was) who, as a presidential member of the Tribunal, presided over the Tribunal which prepared the 2014 Report. At [74] of Nicholls, Senior Member Parry adopted the criteria stated by Lloyd J in Goldin v Minister for Transport [2002] NSWLEC 75; (2002) 121 LGERA 101 (Goldin) as to the circumstances in which precedent is a relevant consideration, those being circumstances which were repeated in [116] of the 2014 Report. The Senior Member said that those criteria were consistent with Western Australian authority in Aspen Pty Ltd v State Planning Commission (Unreported, WATPAT 13 of 1998, 21 October 1988) and Marshall v Western Australian Planning Commission (1995) 15 SR (WA) 170.
It is correct to say that the statement in Nicholls as to when adverse planning precedent is a relevant consideration has been adopted in the State Administrative Tribunal frequently since Nicholls was decided - see for example Zampatti and Western Australian Planning Commission [2009] WASAT 127 [19] ‑ [20] (affirmed on appeal in Zampatti v Western Australian Planning Commission [2010] WASCA 149); Thio and Western Australian Planning Commission [2009] WASAT 88 [46]; Blissett and Western Australian Planning Commission [2012] WASAT 54 [29]; Hewison and Shire of Augusta‑Margaret River [2014] WASAT 62 [66]; Cornhill and Western Australian Planning Commission [2009] WASAT 9 [57]. Wattleup contends that the approach outlined in Nicholls is an error because it is ultimately based on an incorrect application of authority.
In Goldin, Lloyd J undertook a detailed analysis of New South Wales cases in which the question of precedent as a relevant planning consideration was considered. At [7], Lloyd J said:
In Emmott v Ku-ring-gai Municipal Council (1954) 3 LGRA 177, Sugerman J said (at 182):
'It is sometimes contended that a proposed development, in itself unobjectionable, should not be allowed because it is likely to lead to others of a similar character and the totality would prove objectionable. That depends, inter alia, upon the existence of a sufficient probability that there will be further applications for a number of undistinguishable developments of the same class sufficient in their totality to bring about the objectionable condition of affairs. Here it seems, as I have said, unlikely that all the hypothetical subdivisions shown on the plan tendered by the council would be sought. Applications must be considered on their own merits and it would appear to be unduly onerous to refuse an application, unobjectionable on its individual merits, on the mere chance of probability that there may be later applications sufficient, if approved, to produce in their totality some undesirable condition. In such a case as the present, if what originally appeared to be a mere possibility or chance turned out later to become a distinct possibility, there would be no reason why the council should not at that stage call a halt, if it should then appear proper to do so. Justice is not offended in these circumstances by the refusal of further applications calculated to lead to objectionable conditions after the granting of one or more earlier applications unobjectionable in themselves.'
After references to various other decisions, Lloyd J returned to consideration of the passage set out above. At [28], his Honour said:
A number of things could be said about these authorities and the competing submissions upon which they are based. In Emmott v Ku‑ring‑gai Municipal Council, Sugerman J considered the proposition that a proposed development which is itself unobjectionable should not be allowed because it is likely to lead to other developments of a similar character, the totality of which would prove objectionable. His Honour went on to say that this is in turn dependent upon 'a sufficient probability that there will be further applications for a number of undistinguishable developments of the same class sufficient in their totality to bring about the objectionable condition of affairs'. As I understand the decision, if the Court is entertained with an application for a proposed development which is both objectionable in itself and where there is a sufficient probability that there will be further applications of a like kind, then the fact that a consent would operate as a precedent may be taken into consideration (original emphasis).
It is the last sentence in that paragraph which reflects its explanation of the appropriate consideration of adverse planning precedent relied upon in both Nicolls and the 2014 Report. In Goldin, Lloyd J was considering the relevance of considerations as to adverse planning precedent in a context where the primary decision‑maker had concluded that the proposed development had an undesirable visual impact and was therefore 'not unobjectionable', and that approval would 'tend to lead inexorably to' further similar applications. The two conditions that Sugerman J had identified as requiring that the application be considered on its own merits without regard to 'adverse planning precedent' were not present in the case before Lloyd J. It was for that reason that Lloyd J concluded in the case before him that adverse planning precedent was a valid consideration.
In Emmott v Ku-ring-gai Municipal Council (1954) 3 LGRA 177 (Emmott), Sugerman J found that it was unlikely that the hypothetical subdivisions feared by the council would be sought. The decision does not address a situation where:
(1)a proposed development is itself unobjectionable; and
(2)approval is likely to lead to other developments of a similar character, the totality of which would prove objectionable; and
(3)there is a sufficient probability that there will be further applications for a number of indistinguishable developments of the same class which in their totality would bring about the objectionable condition of affairs.
In his analysis of this issue in Goldin, Lloyd J referred to a number of decisions which had found considerations of adverse planning precedent to be a relevant consideration. At [18], his Honour referred to a subsequent decision of Sugerman J which corrected a misprint in the passage from Emmott set out above, saying:
In Shellcove Gardens Pty Ltd v North Sydney Municipal Council (1960) 6 LGRA 93, Sugerman J said (at 104):
'Hence it may be expected that other developers would seek to follow an example which had been set. Notwithstanding that each application must be considered on its individual merits and that there is no such thing as binding precedent in these matters, if one application were granted it might prove difficult for the council to refuse others unless the circumstances were distinguishable. Here there is more than a mere "chance or possibility" of later applications, but a distinct probability (see Emmott v Ku-ring-gai Municipal Council [(1954) 3 LGRA 177, at p 182], where the words "chance of probability" appear as a misprint for "chance or possibility"; and the question of precedent has also been referred to in other cases in this Court, of which Crowle v Manly Municipal Council [(1950) 17 LGR (NSW) 217, at p 223]; Vacuum Oil Co v Ashfield Municipal Council [(1956) 2 LGRA 8 at p 11]; and Connell v Cumberland County Council [(1958) 4 LGRA 38, at p 48], were cited in argument).'
Justice Lloyd referred to various other decisions where adverse planning precedent was found to be a relevant consideration, apparently without regard to the question of whether or not the proposal under consideration was in itself 'not unobjectionable'. Those included Crowle v Manly Municipal Council (1950) 17 LGR (NSW) 217, 223; Girvan v Willoughby Municipal Council (1952) 18 LGR (NSW) 222, 222 ‑ 223, 224; Blick v Ashfield Municipal Council (1957) 3 LGRA 131, 133 ‑ 134; Humby v Woollahra Municipal Council (1964) 10 LGRA 56, 67; Austin Construction Company (Aust) Pty Ltd v North Sydney Municipal Council (1967) 14 LGRA 154, 162; and BP Australia Ltd v Campbelltown City Council (1994) 83 LGERA 274. Reference was also made, with apparent approval, to the English decision in Collis Radio Ltd v Secretary of State for the Environment (1975) 29 P&CR 390; (1975) 73 LGR (UK) 211 where Lord Widgery CJ (with whom Ashworth and Michael Davis JJ agreed) said:
This is a problem which has appeared in the administration of the planning law since its inception. There is no doubt whatever that, human nature being what it is, if permission is granted for a particular form of development on site A, it is very difficult to refuse similar development on site B if the circumstances are the same. It must happen constantly in practice that a local planning authority refuses planning permission in respect of site A, because of the consequences which it fears might flow in respect of sites B, C and D. No court has so far said that that is not a proper consideration to be adopted by a planning authority, and Mr Glidewell acknowledges, as one would expect, that he is putting forward a proposition which, so far, at any rate, is not to be found in the books.
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In all planning cases it must be of the greatest importance when considering a single planning application to ask oneself what the consequences in the locality will be; what are the side effects which will flow if such a permission is granted. In so far as an application for planning permission on site A is judged according to the consequence on sites B, C and D, in my judgment no error of law is disclosed, but only what is perhaps the most elementary principle of planning practice is being observed (216 ‑ 217).
In my view, none of the cases reviewed in that analysis precludes consideration of planning precedent with respect to a development which is itself unobjectionable but there is a sufficient probability that there will be further applications for similar developments which, in their totality, would bring about an objectionable planning outcome provided the likelihood of those other applications is established on the evidence. The question might most commonly arise in the context of the exercise of discretion to relax a standard or depart from a planning policy as illustrated in cases like Marshall v Western Australian Planning Commission (1995) 15 SR (WA) 170.
That is not to say, however, that the test as explained in Nicholls, and adopted by the Tribunal in the 2014 Report, was erroneous. Even if adverse planning precedent may be a relevant (in the sense of permissible rather than obligatory) consideration in a wider category of cases than suggested in Nicholls, it is clearly a permissible consideration in the circumstances specified in Nicholls. Given the Tribunal's conclusion that the proposed subdivision was not unobjectionable, its application of the approach suggested in Nicholls was not in error.
Grounds 3 and 4.6 ‑ impact on industrial amenity of the RDA
Like the previous grounds, these grounds fall away by reason of the conclusions which I have reached in relation to grounds 1.1 ‑ 1.4 and 4.1 ‑ 4.4. The essence of the applicant's contention in relation to these grounds was that the Tribunal's conclusion as to the adverse effect on industrial amenity of the RDA if the subdivision was approved was manifestly unreasonable. That contention assumes that the Tribunal's conclusion that it was not satisfied that the proposed subdivisions were acceptable in relation to the health and amenity impacts of dust was attended by jurisdictional error. That proposition having been rejected, there is no substance in grounds 3 and 4.6.
Conclusion
It follows that none of the grounds of review are established, and the application will be dismissed.
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