| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : WATTLEUP ROAD DEVELOPMENT COMPANY PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2011] WASAT 160 MEMBER : JUDGE D R PARRY (DEPUTY PRESIDENT) MS M CONNOR (MEMBER)
MR P CURRY (SESSIONAL MEMBER)
HEARD : 19, 20 AND 21 SEPTEMBER 2011 DELIVERED : 10 OCTOBER 2011 FILE NO/S : DR 8 of 2011 BETWEEN : WATTLEUP ROAD DEVELOPMENT COMPANY PTY LTD Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords: Town planning - Residential subdivision - Site 1.2 kilometres to 1.7 kilometres from land used for drying or disposing of baxuite residue resulting from alumina production forming edge of the Kwinana Industrial Area - Site proximate to sand quarry - Site zoned Urban under Metropolitan Regional Scheme - Urban Deferred classification under Metropolitan Regional Scheme 'lifted' in October 2008 - Definition of off-site buffer under State Planning PolicyNo 4.1 - State
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Industrial Buffer Policy - Approximately two thirds of site is within defined buffer - Weight to be given to defined buffer in light of significant methodological concerns about a dust emissions study report utilised for the purpose of establishing the buffer - Air quality - Dust - Health and amenity impacts - Lack of adequate monitoring of air quality for health and amenity purposes - Precautionary principle Legislation:
City of Cockburn Town Planning Scheme No 3, cl 4.2.1, cl 4.3.1, cl 6.2.9, cl 6.2.10
Environmental Protection Act 1986 (WA)
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 135, s 138(2), s 251(1), s 253(2)(a)
State Administrative Tribunal Act 2004 (WA), s 31
Result: Subdivision approval refused Category: B
Representation: Counsel:
Applicant : Mr PJ McQueen with Ms CN Gleeson
Respondent : Ms CA Ide
Solicitors:
Applicant : Lavan Legal
Respondent : State Solicitor's Office
Case(s) referred to in decision(s):
Landpark Holdings Pty Ltd and Western Australian Planning Commission [2007] WASAT 130
(Page 3)
Telstra Corporation Ltd v Hornsby Shire Council [2006] NSWLEC 133; (2006) 146 LGERA 10
WA Developments Pty Ltd and Western Australia Planning Commission [2008] WASAT 260
(Page 4)
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision 1 This case concerned an application for review of the refusal of a residential subdivision application in Hammond Park. The site is approximately 1.2 to 1.7 kilometres north-east of the edge of a property used for drying and disposal of bauxite residue resulting from alumina production in the Kwinana Industrial Area. The site is also located proximate to a large sand quarry. The Urban Deferred classification of the site under the Metropolitan Region Scheme was lifted on 31 October 2008. 2 The resolution of the matter ultimately involved the balancing, in the exercise of planning discretion, of the following two considerations: 3 The Tribunal found that there is a threat of serious or irreversible environmental damage for residents of the proposed subdivision in relation to dust from the residue disposal area and the sand quarry. The Tribunal also found that there is scientific uncertainty as to the environmental damage. The conditions precedent to the satisfaction of the precautionary principle were 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. The Tribunal determined that precluding subdivision until adequate air quality monitoring at the site demonstrates acceptability is proportionate to the threat, appropriate and cost-effective. The Tribunal found that adequate air quality monitoring would require prior consultation with the Department of Environment and Conservation, monitoring for a period of at least 12 months and assessment and reporting in relation to relevant health and amenity standards and chemical composition of dust. 4 The Tribunal found that no weight should appropriately be placed on the definition by the Western Australian Planning Commission of an (Page 5)
offsite buffer from the residue disposal area affecting the site, because of significant methodological concerns in relation to the scientific assessment utilised for the purpose of establishing the buffer. The Tribunal observed that it would seem sensible for the air quality monitoring and assessment in relation to the site referred to in the previous paragraph to inform the confirmation or variation of the buffer by the Western Australian Planning Commission. The Tribunal also suggested that, in light of the significant methodological concerns raised in the evidence and the inadequate duration of the monitoring that underlay the scientific assessment used by the Western Australian Planning Commission to define the buffer, the buffer should not be reflected in the town planning framework at this stage, and that any amendment of the planning framework in this respect should await the results of the air quality monitoring and assessment at the site. 5 Balancing the planning considerations, the Tribunal found that the precautionary principle warranted 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. The Tribunal therefore affirmed the Western Australian Planning Commission's decision to refuse subdivision approval.
Introduction 6 This proceeding involves an application brought by Wattleup Road Development Company Pty Ltd (applicant), pursuant to s 251(1) of the Planning and Development Act2005 (WA) (PD Act), for review of the decision of the Western Australian Planning Commission (Commission) to refuse an application for subdivision approval of land known as Lot 121, Lot 122 and Lot 801 Wattleup Road, Hammond Park (site).
Site 7 The three lots comprising the site are each relatively long and narrow, with a northsouth orientation. Lot 121 is located immediately east of Lot 122. Lot 801 is located approximately 345 metres to the east of the eastern boundary of Lot 121. Lot 801 is separated from Lot 121 by three similarly shaped and oriented properties. 8 The southern portions of the site lots and of adjoining and adjacent lots are within the land reserved for the western extension of Rowley Road and currently in the process of being publicly acquired. Because of the variable width of the proposed Rowley Road road reserve, (Page 6)
the length of the lots forming the site, excluding the road reserve, varies from approximately 300 metres to approximately 320 metres. The width of each of the lots forming the site is approximately 115 metres. The total area of the lots comprising the site is approximately 10.8 hectares.
Zoning and structure planning 9 The site is zoned Urban under the MetropolitanRegionScheme (MRS). Until 31 October 2008, the site was zoned Urban Deferred under the MRS. The site is zoned Development under the City of Cockburn Town Planning Scheme No3 (TPS 3). Under cl 4.2.1 of TPS 3, the objective of the Development zone is: To provide for future residential, industrial or commercial development in accordance with a comprehensive Structure Plan prepared under the Scheme.
(emphasis original) 10 Clause 4.3.1 of TPS 3 states that: The Zoning Table indicates, subject to the provisions of the Scheme, the uses permitted in the Scheme Area in the various zones.
(emphasis original) 11 In relation to the uses permitted in the Development zone, the Zoning Table refers to 'Note 3' which states as follows: Development and use of land is to be in accordance with an approved Structure Plan prepared and adopted under clause6.2.9.
(emphasis original) 12 Clause 6.2.9 of TPS 3 enables the 'adoption' of a proposed structure plan by the City of Cockburn (City or Council). While cl 6.2.10 of TPS 3 requires the City to forward a proposed structure plan that proposes the subdivision of land to the Commission for the Commission's endorsement within in seven days of the Council's determination under cl 6.2.9, Note 3 of the Zoning Table requires that development and use of the land in the Development zone is to be in accordance with an approved structure plan prepared and adopted under cl 6.2.9, not one that also been endorsed under cl 6.2.10. Furthermore, the objective of the Development zone refers to future residential, industrial or commercial development to be provided 'in accordance with a comprehensive StructurePlan prepared under the Scheme'. Under TPS 3, 'development' does not include subdivision: see Landpark Holdings Pty Ltd and Western Australian Planning Commission [2007] WASAT 130 at [23] (Page 7)
13 Consequently, although having 'due regard to the provisions of' TPS 3 (see PD Act s 138(2)), and as a matter of orderly and proper planning, subdivision of land in the Development zone of TPS 3 should not generally be allowed by the Commission (or by the Tribunal on review) in the absence of a structure plan endorsed by the Commission, the granting of subdivision approval in the absence of an endorsed structure plan would not 'conflict with the provisions of ' TPS 3 (see PD Act s 138(2)). On 11 December 2008, the Council adopted a structure plan pursuant to cl 6.2.9 of TPS 3 contemplating residential subdivision and development on the site. Although the Commission has not endorsed the structure plan pursuant to cl 6.2.10 of TPS 3, the endorsement of the structure plan by the Commission is not strictly required under TPS 3 in order for the proposed subdivision to be capable of approval.
Residue disposal area and sand quarry 14 The site is located between approximately 1.2 kilometres and 1.7 kilometres to the northeast of the Alcoa World Alumina Australia Ltd (Alcoa) Residue Drying/Disposal/Storage Area (RDA). Although zoned Rural under the MRS, the RDA forms what is, in effect, the eastern boundary of the Kwinana Industrial Area (KIA). The Department of State Development has identified the KIA as a vital industrial asset of the State. Alcoa uses the RDA for drying/disposing of bauxite residue resulting from its alumina production facility at Kwinana. Approximately three tons of bauxite is required to produce one ton of alumina. The drying or disposal of the bauxite residue takes place in large open areas on the RDA commonly known as the 'red mud lakes'. 15 There is a large sand quarry on the southern side of the Rowley Road road reserve to the south of Lot 801 and to the southeast of Lot 121 and Lot 122. Development approval to extract sand from the quarry was granted by the Town of Kwinana in October 2005 for five years. The Tribunal is unaware as to whether the development approval included a requirement to rehabilitate the quarry or whether a further development approval was granted. Mr Timothy Trefry, a consultant town planner called by the applicant, gave evidence that he is aware from carrying out planning work in the area to the south of the Rowley Road road reserve that the resource in the sand quarry is exhausted or nearly exhausted, and that the owner is looking to pursue to an Urban zoning under the MRS. However, at present, the sand quarry is a large, open area, approximately 50 metres to the south of the proposed subdivision on Lot 801 and to the southeast of the proposed subdivision on Lot 121. (Page 8)
Proposed subdivision 16 The proposed subdivision involves the creation of 147 residential lots, ranging in size from approximately 300 square metres to approximately 500 square metres, and two areas of public open space. The Commission sought advice from various authorities in relation to the proposal. The City advised that it supports the proposed subdivision, subject to the imposition of 32 conditions. The Department of Environment and Conservation (DEC) advised that it supports a 1.5 kilometre residential and sensitive uses exclusion area from the perimeter of the RDA which, in effect, would preclude the proposed subdivision on Lot 121 and Lot 122 and also eliminate a small number of lots in the southwestern part of Lot 801. 17 The application for review by the Tribunal was commenced on 11 January 2011 on the basis of a deemed refusal of the subdivision application, following the giving of a default notice pursuant to s 253(2)(a) of the PD Act. On 2 February 2011, the Commission reconsidered its deemed refusal of the subdivision application, in accordance with an invitation by the Tribunal pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA), and substituted an actual refusal for the following four reasons: (i) The land the subject of the application is partly within the Western Australian Planning Commission's 1.5 km residential and sensitive uses exclusion area where additional residential development as proposed in the application is inappropriate for health and amenity reasons (ii) The locality within which the lots the subject of the application lie requires substantial replanning as a result of the designation of the 1.5 km residential and sensitive uses exclusion area for the Alcoa residue storage area at Mandogalup. (iii) There is no Western Australian Planning Commission endorsed local structure plan for the subject lots as required under the provisions of the City of Cockburn Town Planning Scheme No 3. (iv) Additional residential development within the 1.5 km residential and sensitive uses exclusion area is not consistent with orderly and proper planning of the locality.
Principal considerations on review 18 The evidence and submissions of the parties have identified three principal considerations which are to be assessed and balanced in the exercise of planning discretion as to whether to approve the proposed (Page 9)
subdivision under s 135 of the PD Act. The three principal considerations are: Planning framework 19 The town planning experts who gave evidence, Mr Trefry, Mr Andrew Trosic, the City's Manager of Strategic Planning, who was also called by the applicant, and Mr Andrew Trevor, a Principal Planning Officer with the Department of Planning, who was called by the Commission, gave the following joint evidence: The subject land has consistently been designated for residential development in strategic planning documents produced by the WAPC, the Department of Planning, City of Cockburn and landowner and their predecessors since 1987. These include: • SW Corridor Structure Plan 1993 • Jandakot Mandogalup District Planning Study 1993 • Southern Suburbs District Structure Plan 1999 • Southern Suburbs District Structure Plan - Stage 3 Hammond Park/Wattleup • Local Structure Plan - Lots 121/122/801 - Wattleup Road - 2008 … The subdivision application for Lots 121, 122 and 801 is consistent with the 2005 Southern Suburbs District Structure Plan - Stage 3 Hammond Park/Wattleup and the Local Structure Plans approved by the City of Cockburn for the subject land. 20 The proposed subdivision is also consistent with the Development zoning of the site under TPS 3 and the Urban zoning of the site under the MRS. As noted earlier, the Urban Deferred classification was 'lifted' as recently as 30 October 2008. (Page 10)
21 Subject to the weight to be given to the definition of an offsite buffer under State Planning Policy No. 4.1 - State Industrial Buffer Policy (SPP 4.1) (see below), the proposed subdivision is consistent with the strategic and statutory planning framework for the site. 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.
Designation of an off-site buffer under State Planning Policy No. 4.1 - State Industrial Buffer Policy 22 The 'objectives' set out in cl 1 of SPP 4.1 include: (1) To provide a consistent Statewide approach for the definition and securing of buffer areas around industry, infrastructure and some special uses. (2) To protect industry, infrastructure and special uses from the encroachment of incompatible land uses. (3) To provide for the safety and amenity of land uses surrounding industry, infrastructure and special uses. 23 The 'principles' of SPP4.1, set out in cl2, include the following: (1) Industries, infrastructure and special uses requiring off-site buffer areas are an important component of economic growth in WesternAustralia and are essential for the maintenance of our quality of life. These facilities and associated buffer areas must be planned for. … (3) Once an off-site buffer area is defined, the boundary should not be varied unless justified in a scientifically based study (e.g. the impacts of industry/infrastructure should be maintained within the buffer and it should not be encroached upon by sensitive uses). (4) It is essential that once an off-site buffer area is defined, it must be recognised in a town planning scheme. … (Page 11)
24 In relation to 'the definition of off-site buffer areas', SPP4.1 includes the following in cl4: The identification of an off-site buffer area requires the application of both environmental criteria and planning criteria to determine the actual size and boundaries of the buffer area. This will require the boundaries of buffer areas to meet the requirements of the Environmental Protection Authority, the Western Australian Planning Commission and the Department of Minerals and Energy. … Where an industry or authority responsible (developer) for the operation of an established facility and the Western Australian Planning Commission consider that either existing or potential land use in the vicinity has the potential to compromise the operation of that facility, the developer shall undertake a buffer definition study to define the extent of the buffer area required to secure the facility. Such a study will identify the likely emissions, hazard and risk, noise or lighting and model the development to show the extent of these outside the development site. The study should also show how amelioration could occur, and if this is not possible, the buffer distances required to enable the use to be developed. The incompatible uses that need to be avoided in the buffer area would also be identified. The Western Australian Planning Commission shall evaluate the buffer definition study recommendations when considering land use decisions that may need to be made in the relevant area. … 25 Clause 4.5 of SPP 4.1, which relates to variation of buffer areas around established industries, infrastructure or special uses, states as follows: Where an industry, infrastructure or encroaching sensitive use seeks to vary the boundary of a buffer area once defined, the variation shall not be allowed unless justified by the proponent seeking the variation in a scientifically based study. The study should comply with adopted environmental and planning criteria to the satisfaction of the Environmental Protection Authority and the Western Australian Planning Commission. A final decision on the variation of the buffer area would need to take into account the results of that study, the needs of industry and infrastructure (including any arrangements between the proponent seeking the variation, and the industry or infrastructure, to upgrade a facility to reduce the offsite buffer requirement) environmental needs and the rights of adjacent landowners. (Page 12)
26 In August 2002, the Commission, in conjunction with the former Department of Environment, Water and Catchment Protection and the former Department of Minerals and Petroleum Resources, released the Review of the Kwinana Air Quality Buffer (Review) for public comment. The Review recommended modification to the then existing Kwinana Air Quality Buffer in six areas and identified three additional areas which were subject to further investigation. However, it appears that the Review was not finalised. In October 2008, the Commission released the Review of the Kwinana Air Quality Buffer - Position Paper (Position Paper). The Position Paper outlined an interim Air Quality Buffer and identified areas for further investigation. The Position Paper stated that finalisation of the buffer would not be possible until more information is obtained, particularly in relation to the RDA. 27 At some point in 2008, the consultancy firm GHD Pty Ltd (GHD) was commissioned by Alcoa to review and update earlier modelling in relation to dust emissions from the RDA and to provide information for the purposes of the Position Paper. In June 2009, GHD completed a dust emission monitoring and modelling study for Alcoa (GHD June 2009 report). 28 At a meeting of the Kwinana Buffer Review Committee (KBRC), comprising representatives of the Department of Planning, DEC and LandCorp, held in August 2009, Alcoa contended that the results of the GHD June 2009 report showed that dust impacts from the RDA extended over the site and other properties in Hammond Park. At its meeting in August 2009, the KBRC recommended to the Commission that it should defer decisions relating to outstanding structure plans for Hammond Park until the KBRC had the opportunity to consider the DEC's technical review of the GHD June 2009 report. The Commission followed the KBRC's recommendation. 29 In December 2009, GHD provided a final dust emission monitoring and modelling report in relation to dust emissions from the RDA (GHD report). The GHD report was reviewed by the DEC and the Department of Health (DoH). On 8 April 2010, the DEC recommended the adoption of a 1.5 kilometre buffer from the boundary of the RDA. On 8 September 2010, the DoH clarified earlier advice it had given on 14 July 2010 and 11 August 2010 as follows: That the Department of Health's strategic preference is for the entire Wattleup Urban zone to exclude residential. However, based on current conditions and available scientific evidence a 1 km extension of the buffer (from the boundary of the Alcoa RDA) to the North, North-East and East, (Page 13)
30 On 8 September 2010, the Commission resolved as follows: That the Western Australian Planning Commission: 1. endorses the revised Kwinana Air Quality Buffer line of 1 km north, north east and east from the boundary of the Alcoa Residential Disposable Area land holdings; 2. endorses an additional 0.5 km extension of the 1 km buffer as a non-residential and sensitive uses (eg child minding centre, kindergartens and schools) 'transition zone' to be referenced in planning documents and memorials on lot titles; 3. notes that the possible zoning and land use planning implications of the revised buffer line including future zoning and land use will be subject to separate legislative processes; 4. the draft 'Kwinana Air Quality Buffer Position Paper (2008)' be renamed the 'Kwinana Industrial Buffer (including Air Quality) Position Paper (2008)'. 31 Although not expressly stated, it appears from the terms of the Commission's resolution, and in particular, from the statements that the 0.5 kilometre 'non-residential and sensitive uses … "transition zone"' 'extension of the 1 km buffer' is to be 'referenced in planning documents' and the 'zoning and land use planning implications of the revised buffer line including future zoning and land use will be subject to separate legislative processes', that the resolution defined a 1.5 kilometre off-site residential and sensitive land uses buffer from the boundary of the RDA for the purposes of SPP 4.1. The resolution is consistent with the objectives and principles of SPP 4.1 set out earlier. In particular, the resolution refers to the imperative in principle (4) that 'once an offsite buffer area is defined it must be recognised in a town planning scheme'. 32 Relevantly, the residential and sensitive land uses buffer defined by the Commission includes essentially the whole of Lot 121 and Lot 122 and a small area of Lot 801 in its southwestern portion. 33 The applicant presented essentially three arguments in relation to the definition of this buffer. (Page 14)
34 First, the applicant argued that the Commission's resolution of 8 September 2010 was beyond power, because it purported to vary a buffer under the Environmental Protection (Kwinana) (Atmospheric Wastes) Policy1999 (EPP), which is an environmental protection policy that operates under the Environmental Protection Act1986 (WA) (EP Act). The applicant relied on a direction by the Minister for Environment gazetted on 16 November 2010 which directed the Environmental Protection Authority (EPA) not to review the EPP at this time. However, the Commission did not, and did not purport to, make a decision in relation to an EPP under the EP Act. Rather, the Commission defined an offsite buffer for the purposes of SPP 4.1. 35 Secondly, the applicant submitted that the Commission's resolution of 8 September 2010 involved the variation of a previously designed buffer boundary and therefore that the variation required 'a scientifically based study' under principle (3) and cl 4.5 of SPP 4.1. In contrast, the Commission submitted that, as Mr Trevor said, the 8 September 2010 resolution 'constitutes the first designation of a buffer in the sense of a final buffer to be designated around the Alcoa RDA'. 36 Although not entirely free from doubt, it appears, on balance, from the following documents that the Commission is correct in its submission that the resolution of 8 September 2010 involved the first designation of a buffer from the RDA under SPP 4.1, rather than a variation of a previously defined buffer. 37 The Review referred at page 14 to a '1 km buffer to protect sensitive land uses from offsite impacts during the operational life of the [RDA]' as depicted on the 'draft Jandakot Structure Plan (WAPC, 2001)' (emphasis in bold added). The Review proposed that: … further detailed investigations are undertaken to better define the extent of the impacts from the operation of the facility.
(emphasis in bold added) 38 As noted earlier, it appears that the Review was not finalised. When the final report of the Jandakot Structure Plan was published by the Commission in August 2007, it stated: The buffer associated with the Alcoa bauxite residue storage area poses a significant timing constraint to the potential for land use change and in particular, urban development. Urban development is only supported in areas not affected by the buffer, as finally determined. In areas impacted by the buffer, urban development should be deferred until the buffer is no (Page 15)
39 The applicant emphasised that Figure 4 of the Southern Suburbs District Structure Plan - Stage3, Hammond Parks/Wattleup (SSDSP), which was adopted by the Council on 11 August 2005, showed a '1 km Alcoa Mud Lakes Buffer' to the south of the site. However, cl 4.1 of SSDSP stated as follows: 40 It appears from these documents that, prior to September 2010, the Commission had not defined a buffer around the RDA for the purposes of SPP 4.1, but had only indentified 'draft' or 'proposed' buffers which were subject to ongoing reviews and investigations. 41 Finally, the applicant submitted that, if the Commission's resolution of 8 September 2010 did in fact define a 1.5 kilometre offsite residential and sensitive uses exclusion buffer around the RDA, then the Tribunal should place little weight on the definition of that buffer in light of the evidence of Dr Victor Kabay, an environmental scientist called by the applicant. 42 The GHD report appears to have been the only scientific assessment prepared for the purpose of establishing the buffer and was clearly an important element in the process. Ms Mirella Goetzmann, a toxicologist employed by the DoH and called by the Commission, described the GHD report as the 'catalyst' for the buffer review. 43 Dr Kabay raised two principal methodological concerns in relation to the GHD report, neither of which was answered by evidence or submissions on behalf of the Commission. Firstly, Dr Kabay cast (Page 16)
significant doubt on the adequacy of the AUSPLUME model used in the GHD report for predicting dust dispersion at the RDA. Dr Kabay explained that the AUSPLUME model was not adequate for the study in question, because it cannot accurately model complex terrain near the source of dust emissions. Secondly, Dr Kabay cast doubt on the manner in which the model was calibrated against real world data. 44 A third inadequacy of the GHD report highlighted in the applicant's case was that it utilised only six weeks of monitoring. As Ms Constance Dewan, an environmental scientist employed by the DEC and called by the Commission, said in evidence, 12 months of monitoring should be used for the modelling in such cases. 45 In light of Dr Kabay's evidence and the inadequate duration of the monitoring undertaken for the purposes of the GHD report, the Tribunal considers that no weight should be placed upon the definition of the 1.5 kilometre residential and sensitive uses exclusion buffer in the Commission's resolution of 8 September 2010.
Precautionary principle 46 The Tribunal discussed the precautionary principle in WA Developments Pty Ltd and Western Australia Planning Commission [2008] WASAT 260 at [37] - [41] as follows: (Page 17)
sustainable development involves a cluster of elements or principles. Six are worth highlighting. Having identified each of the six elements or principles of ecologically sustainable development, Preston CJ proceeded, at [125183], to comprehensively consider the precautionary principle. The precautionary principle has been defined as: Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing costeffective measures to prevent environmental degradation. (Rio Declaration on Environment and Development, … Principle 15). In Telstra, Preston CJ held, at [128], as follows: The application of the precautionary principle and the concomitant need to take precautionary measures is triggered by the satisfaction of two conditions precedent or thresholds: a threat of serious or irreversible environmental damage and scientific uncertainty as to the environmental damage. These conditions or thresholds are cumulative. Once both of these conditions or thresholds are satisfied, a precautionary measure may be taken to avert the anticipated threat of environmental damage, but it should be proportionate: N de Sadeleer, Environmental Principles: From Political Slogans to Legal Rules, Oxford University Press, 2005 at 155. At [130], his Honour recognised that threats to the environment that should be addressed include indirect threats. 47 In addition to the purpose of the PD Act, to 'promote the sustainable use and development of land in the State', the precautionary principle is also implicitly recognised in State Planning Policy No1 - State Planning Framework Policy (SPP 1). The general principles for land use planning and development in Pt A of SPP 1 include: 1. The primary aim of planning is to provide for the fair, orderly, economic and sustainable use and development of land. 2. The State Planning Strategy identifies the five key principles which further define this primary aim and describe the considerations which influence good decision-making in land use planning and development. Planning should take account of and give effect to, these principles and related policiesto ensure integrated decision-making throughout government. • Environment: To protect and enhance the key natural and cultural assets of the State and deliver to all West Australians a high
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quality of life which is based on environmentally sustainable principles.
(emphasis in bold and italics added) 48 Clause 3 of SPP 1 'elaborate[s] on these principles and describe[s] the factors which represent good and responsible decision-making in land use planning' including as follows: 49 The Tribunal considers that the precautionary principle is applicable in the case of the proposed subdivision as there is a threat of serious or irreversible environmental damage for residents of the proposal and scientific uncertainty as to the environmental damage, for the following reasons. 50 The RDA includes large open areas that generate 'fugitive' dust (dust not from a point source such as a stack). As Ms Dewan said, prevailing winds during the dry, summer months are from the south and south-west, that is, from the RDA towards the site. Between 21 October 2006 and 17 February 2010, the DEC received seven complaints in relation to dust from the RDA, of which four were from properties to the north, north-east and east of the RDA. While the properties in question were all within 900 metres of the RDA, importantly, as Ms Dewan and Ms Goetzmann explained, these complaints related to visible dust, whereas smaller, nonvisible dust particles, which, as discussed below, may have adverse health impacts, are likely to be transported further on the wind, because of their lighter weight. 51 Ms Goetzmann gave the following evidence in relation to the potential impact of dust on human health, which was not questioned or contradicted by evidence called on behalf of the applicant and which the Tribunal accepts: (Page 19)
Health professionals and scientists are most concerned with particles small enough to be inhaled by humans. Particles larger than PM10 [10 micrograms per cubic metre] are usually caught in the nose and throat and expelled while PM10 and smaller particles may lodge throughout the lungs. The finer the particles the deeper into the lungs they are [inhaled] and the greater the risk of an adverse reaction. For instance particles 2.5 microns and less in diameter have a greater capacity to penetrate the alveoli [gas exchange cells] of the lungs and travel across the cellular membrane. The health effects that result from exposure to high levels of dust generally tend to be specific to the cardio-pulmonary system although evidence is emerging of ultra fine particles affecting other systems of the body. Health effects from exposure to high levels of dust range from minor coughs to exacerbation of asthma and cardiac events in susceptible individuals. Anyone can be affected by high levels of dust but the risk is greatest for individuals with clinical respiratory and cardiovascular disease, the elderly, babies and young children. Substantial evidence exists demonstrating the link between exposure to PM and increased risk of cardiac and respiratory disorders. Epidemiological studies provide the best means of examining population effects resulting from real-world concentrations and mixtures of PM. Epidemiological evidence is supported by clinical and toxicological studies that are designed to elucidate the mechanisms by which particles induce adverse health effects. Hence, in evaluating the health effects of PM scientists consider the results of a wide range of studies. Current research has not been able to determine a concentration level below which PM does not affect cardiopulmonary health. Health effects are seen at very low levels and the effects increase steadily as the particle concentration increases. Hence it is not possible to define a scientific valid 'safe' level at which the majority of the population will be spared adverse health effects. This is also true for other key air pollutants of ozone, nitrogen dioxide and sulphur dioxide. 52 Ms Dewan gave evidence that the DEC's dust complaints data showed that 'common health impacts in Kwinana include impacts on the respiratory system and eyes'. She referred to the experience of impacts on the respiratory system including asthma attacks, congestion, wheezing, uncontrollable coughing, running nose, and sinus, and impacts on the eyes including a burning sensation in the eyes and blurred vision. Ms Dewan also referred to the experience of other impacts, including dizziness and vertigo, nausea, headaches and sore throats. In addition to the adverse health impacts of dust, Ms Dewan also referred to experience of adverse amenity impacts, including dust being deposited on cars and inside houses, soiling of clothes on washing lines, contamination of rainwater tanks and dust deposited on market gardens. (Page 20)
53 Although none of the complaints to which Ms Dewan referred were from the site or from adjoining or adjacent properties, as noted earlier, the dust complaints received by the DEC related to visible dust, whereas it is likely that invisible dust, with adverse health consequences, will be transported further on the wind, because of its smaller, lighter composition, than visible dust. Furthermore, the site and properties in the vicinity presently have a very low residential density and a ruraltype amenity. As Ms Dewan and Ms Goetzmann both observed, people living in a ruraltype environment have different expectations of amenity in terms of dust and other factors than people living in a more closely developed area. As Ms CA Ide submitted on behalf of the Commission, there are significantly fewer people who currently reside in the area and who could potentially be affected by dust (and complain to the DEC) than would be the case following the proposed subdivision. Dr Kabay estimated that there are presently only approximately 35 residences within 1.5 kilometres of the RDA to the north, northeast and east. The proposed subdivision would, in itself, increase the number of residences by about 300% within 1.5 kilometres of the RDA. 54 Furthermore, as noted earlier, there is a large sand quarry a short distance to the south of Lot 801 and to the south-east of Lot 121 and Lot 122. While Mr Trefry gave evidence that the resource at the sand quarry is exhausted or nearly exhausted, there is no evidence before the Tribunal that the use will end prior to the occupation of the proposed residential allotments. Furthermore, even if extraction of sand has ceased or will cease by the time the residential lots are occupied, there is no evidence before the Tribunal that there is an obligation to remediate the quarry or as to the timeframe for any required remediation. Further, while, as Mr Trefry said, it is not uncommon for sand quarries to be located proximate to development areas, in the absence of an adequate buffer or an obligation to promptly rehabilitate the sand quarry, it is likely that the quarry will have adverse consequences in terms of dust for residents in the proposed subdivision. In this regard, the DEC records of complaints in the vicinity of the KIA between 21 October 2006 and 17 February 2010 demonstrate a cluster of dust complaints within an area of 1 kilometre of the Readymix Sand Quarry. While the sand quarry to the south of the site is a different quarry to the Readymix Sand Quarry associated with the cluster of complaints, it is significant that the whole of the site is within 1 kilometre of the quarry to its south. As Ms Dewan said, having regard to the proximity of the quarry to the south of the site and the experience of complaints within 1 kilometre of the (Page 21)
Readymix Sand Quarry, the DEC would 'definitely expect complaints' from residents of the proposed subdivision. 55 Furthermore, as Ms Dewan said, the 'cumulative impacts of dust' from the RDA and the sand quarry to the south of the site 'should be considered' in relation to the subdivision of the site. Ms Dewan also explained that: The range of air contaminates and other risk factors in the Kwinana Industrial Complex should be considered as well as synergistic effects that could occur, impacting on the surrounding sensitive receptors. Air pollutants emitted from industry in the KIA include volatile organic compounds (VOCs), Particulate Matter (PM), Oxides of Nitrogen (NOx), Oxides of Sulphur (SOx), heavy metals and polycyclic aromatic hydrocarbons (PAHs). Every combination of VOCs, PM, NOx and SOx has the potential for synergistic/potentiating irritant effects. Heavy metals and PAHs have the potential for systemic synergistic effects. The magnitude of effects will depend on the substances. 56 Finally, there has not been any adequate monitoring of dust and other airborne pollutants in relation to the site. The applicant relied on monitoring undertaken by 360 Environmental on behalf of Prime West Management Ltd at Lot 117 and Lot 805 in the vicinity of the site in January to March 2008 (360 Environmental report) which was apparently relied upon by the Commission in deciding to 'lift' the Urban Deferred classification on 31 October 2008. However, as Ms Dewan explained, the monitoring undertaken by 360 Environmental was inadequate to assess the health and amenity impacts of dust on the site for three principal reasons. First, a minimum of 12 months of monitoring is required in order to capture a full range of seasonal variations in wind and atmospheric conditions and in order to be able to determine whether the site would comply with the National Environmental Protection Measure (NEPM) health standard of 50 micrograms per cubic metre which may be exceeded (averaged over 24 hours) on only five occasions during a 12 month period. Second, the 360 Environmental monitoring did not include Total Suspended Particles (TSP) which is an amenity criterion. Third, the 360 Environmental monitoring and consequent report did not address the chemical composition of dust. 57 Dr Kabay and Dr Peter Forster, who is also an environmental scientist called by the applicant, conceded that 'a longer measurement period [than the three months of monitoring used by 360 Environmental] would have been preferable'. However, Dr Kabay considered that one can have 'some degree of confidence' in the 360 Environmental report, because the three months from January to March 2008 are likely to have (Page 22)
been the three driest months and no significant concentration from industry was recorded in the monitoring. Dr Forster expressed the opinion that the proposed subdivision 'would be most likely [to] comply with the NEPM and therefore be acceptable from a health impact perspective', principally because of the findings of the 360 Environmental monitoring and report, analysis of monitoring data from South Lake from 2008 to 2011, changes in the operation of the RDA, and 'best practice' and licence enforcement by regulatory authorities. 58 However, while January to March 2008 were likely to have been amongst the driest months of the year, the months before and after this period may also have been dry and windy. Reliance cannot properly be placed on the 360 Environmental monitoring and report, because of the inadequate period of monitoring and the failure to assess TSP and the chemical composition of dust. Indeed, while the 360 Environmental monitoring appears to have been relied upon by the Commission in deciding to 'lift' the Urban Deferred classification on 31 October 2008, significantly, the EPA advised the Commission shortly before the lifting of the classification (consistently with the evidence of Ms Dewan) that: The dust monitoring data provided [in the 360 Environmental report] … has been conducted for an insufficient length of time to enable any confidence in predictions about the impacts of amenity dust. Without definitive data, over a substantial time period which is unlikely to be forthcoming in the near future, no definitive positions can be provided by the EPA. 59 Dr Forster considered that the trends in PM10 concentrations at the site were similar to those at South Lake, which is a residential area to the north, well removed from direct influence of any emissions from the RDA or the KIA generally. He referred to monitoring data at South Lake from 2008 to 2011 and suggested that this supported his view that the proposed subdivision is likely to comply with the NEPM standard over a 12 month period. However, as Dr Forster recognised when as asked by the Tribunal, his analysis based on monitoring data at South Lake is linked to the adequacy of the 360 Environmental monitoring in the vicinity of the site. While monitoring undertaken at South Lake was adequate, it cannot properly be used in the circumstances of this case to support an argument that air quality is acceptable in health and amenity terms at the site, because Dr Forster's analysis incorrectly assumed the adequacy of the period of the 360 Environmental monitoring as a basis of comparison with South Lake data. (Page 23)
60 Mr Trosic gave evidence that, in accordance with the Alcoa's long term management strategy dated 2005, the use of Area F in the eastern part of the RDA was to cease in 2010 and that this area is to be rehabilitated by 2015. However, there is no direct evidence that the rehabilitation timeframe is likely to be met and there is no legislative requirement of which the Tribunal is aware mandating compliance. Indeed, the evidence indicates that Alcoa is entitled to use the RDA for bauxite residue storage and disposal until at least 2045. 61 In relation to Dr Forster's reliance on 'best practice' and licensing enforcement by regulatory authorities, we prefer the evidence of Ms Dewan and Ms Goetzmann, who both have significant experience in relation to the environmental effects of industry and on the capacity of regulatory authorities to manage and mitigate those effects. As Ms Dewan and Ms Goetzmann explained, 'best practice' today is unlikely to reflect 'best practice' in the future, there is greater potential for accidental release of pollutants as industrial plants age, and there are significant resourcing constraints on regulatory authorities such as the DEC and the DoH. As Ms Dewan said: We have the tools on paper but it is not a very strong tool [in practice]. The licence does help, but I do not think it is a very strong tool really. It is all to do with the resources. Some times the conditions are just enough to keep control of the emissions but it is not enough to ensure best practice. 62 Similarly, Ms Goetzmann said: My observation is that if the regulatory licensing arrangements worked in the best way then industries would not be confined to particular areas with buffers around them. Further, there will be accidents, there will [be] unintentional emissions. The greater the hazard of pollutants, the larger the buffer. In reality you need a combination of instruments and tools because you don't really understand all impacts where you have a number of industries. 63 It follows that there is a threat of serious or irreversible environmental damage for residents of the proposed subdivision and scientific uncertainty as to the environmental damage. The precautionary principle and the need to take precautionary measures is triggered. 64 Mr PJ McQueen, who appeared with Ms C N Gleeson on behalf of the applicant, submitted that the precautionary principle should not result in refusal of the application, because this principle has, in effect, already been applied in the planning processes in relation to the site, culminating in the 'lifting' of the Urban Deferred classification on 31 October 2008. (Page 24)
However, the decisions of earlier planning authorities do not address or answer the reasons for the applicability of the principle referred to earlier. Moreover, as noted earlier, the Urban Deferred classification was 'lifted' in the face of advice from the EPA that the 360 Environmental monitoring and report, on which the change in zoning was based, was 'conducted for an insufficient length of time to enable any confidence in predictions about the impacts of amenity dust'. 65 As the precautionary principle applies in the circumstances of this case, as Preston CJ said in Telstra Corporation Ltd v Hornsby Shire Council [2006] NSWLEC 133; (2006) 146 LGERA 10 at [150]: … [a] decision-maker must assume that the threat of serious or irreversible environmental damage is no longer uncertain but is a reality. …
Balancing of considerations 66 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.
Conclusion 67 This case ultimately involves the balancing, in the exercise of planning discretion, of the following two considerations: (a) The finding that the proposed subdivision is consistent with the long-term strategic and statutory planning framework for the site, which would usually be a (Page 25)
powerful and compelling consideration in favour of approval of the proposal; and (b) The precautionary principle which, in the circumstances of this case, is an overwhelming consideration in favour of refusal of the proposed subdivision. 68 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. 69 The Tribunal has found that no weight should appropriately be placed on the definition by the Commission in its resolution of 8 September 2010 of an offsite buffer from the RDA affecting the site, because of significant methodological concerns in relation to the scientific assessment utilised for the purpose of establishment of the buffer. It would seem sensible for the air quality monitoring and assessment in relation to the site, referred to in the previous paragraph, to inform the confirmation or variation of the buffer by the Commission under SPP 4.1. Furthermore, while SPP 4.1 states that a defined offsite buffer 'must be recognised in a town planning scheme', in light of the significant methodological concerns raised by Dr Kabay's evidence and the inadequate duration of the monitoring that underlay the scientific assessment used to define a 1.5 kilometre residential and sensitive uses offsite buffer from the RDA, the Tribunal suggests that that buffer should not be reflected in the town planning framework at this time, and that any amendment of the planning framework in this respect should await the results of the monitoring and assessment referred to in the previous paragraph. 70 Finally, although the Commission also argued that the proposed subdivision should be refused because the Commission has not endorsed a (Page 26)
structure plan in relation to the site and because of the failure of the structure plan adopted by the Council to provide for noise mitigation measures in consequence of the proposed construction of Rowley Road to the south of the site, the Tribunal would not have refused the proposed subdivision for either of these reasons. Subdivision of land in the Development zone of TPS 3 should not generally be approved in the absence of a structure plan endorsed by the Commission. However, in the circumstances of this case, the Council has adopted a structure plan under TPS 3 in relation to the site and the only inadequacy of the adopted structure plan that the Commission has identified is a failure to incorporate noise mitigation measures in consequence of Rowley Road. Having regard to the applicant's acoustic advice, if the proposed subdivision had otherwise warranted approval, it could have been approved subject to a condition requiring the construction of a 2.4 metre high acoustic barrier and other noise mitigation measures required by the applicant's acoustic report. 71 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.
Orders 72 The Tribunal makes the following orders: |