WESTMORE CORPORATION PTY LTD and SHIRE OF CHITTERING
[2008] WASAT 290
•8 DECEMBER 2008
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: WESTMORE CORPORATION PTY LTD and SHIRE OF CHITTERING [2008] WASAT 290
MEMBER: MR M SPILLANE (MEMBER)
HEARD: 12-13 AUGUST 2008
DELIVERED : 8 DECEMBER 2008
FILE NO/S: DR 186 of 2008
BETWEEN: WESTMORE CORPORATION PTY LTD
Applicant
AND
SHIRE OF CHITTERING
Respondent
Catchwords:
Town planning - Development application - Landfill - Use not prohibited but use required Shire approval - Area zoned 'Agricultural Resource' - Land previously extractive industry - Amenity concerns
Legislation:
Environmental Protection (Noise) Regulations 1997 (WA)
Environmental Protection Act 1986 (WA) , s 38
Health Act 1911 (WA)
Planning and Development Act 2005 (WA)
Shire of Chittering Town Planning Scheme No 6 , cl 2.3.1, cl 9.4
Result:
The review is allowed
Category: B
Representation:
Counsel:
Applicant: Mr J Skinner
Respondent: Mr P Wittkuhn
Solicitors:
Applicant: Jackson McDonald
Respondent: McLeods
Case(s) referred to in decision(s):
Marley-Duncan v Corporation of the Town of Gawler [2003] SAERDC 28
Self and Shire of Serpentine-Jarrahdale [2005] WASAT 140
Stock and Shire of Victoria Plains [2005] WASAT 347
Wollongong City Council v Australian Iron and Steel Pty Ltd (1988) 67 LGRA 51
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Westmore Corporation Pty Ltd applied to the Shire of Chittering for approval to run a construction and demolition recycling and inert landfill facility on a rural property which had previously been used for extractive industries leaving a mining void on the site. Council had refused the application and Westmore Corporation Pty Ltd sought a review of the decision.
The use contemplated by the application was not prohibited by the Shire of Chittering's planning scheme, however, it was argued that Council had a policy of not accepting any waste from outside the Shire. There were also issues raised in respect of noise and dust, and several residents objected to the proposal.
The Tribunal determined that the policy Council relied on did not apply to the type of waste proposed in the application and that the development could proceed given the concerns in respect of amenity issues would be satisfactorily addressed by a 1,000 metre buffer to any sensitive land use, the fact that the proposed facility would be within a 'Special Control Area - Basic Raw Materials' and that appropriate conditions would be attached to its operation.
Approval was given for the development to proceed for 10 years.
Introduction
This review concerns an application by Westmore Corporation Pty Ltd (applicant) for a proposed construction and demolition recycling and inert landfill facility on a rural property on Great Northern Highway in the Shire of Chittering (respondent) for a limited period of 10 years.
The proposed use is not prohibited under the Shire of Chittering Town Planning Scheme No 6 (TPS 6) but is classified an 'A' use which means that the use is not permitted unless the local government has exercised its discretion by granting planning approval after giving notice in accordance with cl 9.4 of TPS 6.
A development application seeking the Shire's approval was refused by the respondent in April 2008 and the applicant has sought a review of that refusal.
The subject land
The subject land is a rural lot approximately 78 hectares in size and is described as No 4040 (Lot M1920) Great Northern Highway, Muchea on Certificate of Title Volume 1242 Folio 289 (land).
The land has been predominantly cleared for historical extractive industry operations on the site involving a clay mining operation which has ceased and which resulted in a mining void being left at the eastern end of the site which has a surface area of approximately 2 hectares and an average depth of 10 metres.
Proposed development
The application is for a proposed construction and demolition recycling and inert landfill facility, in the eastern area of the land, with all activities associated with the proposed development being confined to the mining void and the area directly to the west of the mining void.
The proposal comprises recycling of construction and demolition material and specifically involves the separation of concrete, bricks, tiles and gravel which will be crushed and screened to reduce the material to a uniform aggregate size. These aggregates will be sold as recycled building products which have a number of applications including road sub-bases, drainage aggregates and fill material.
The mining void will be progressively filled to reinstate and rehabilitate the subject land, returning the subject land to its pre-mining operations profile.
Planning framework
The land is currently zoned 'Agricultural Resource' and is within a 'Special Control Area - Basic Raw Materials' under TPS 6. The 'Basic Raw Materials' belt of which the land forms part is approximately 2.5 kilometres wide and which runs in a northsouth direction approximately 2 kilometres to the north and 6 kilometres to the south of the land.
TPS 6 defines the purpose of the 'Special Control Area - Basic Raw Materials' as being:
(a)Extraction of essential materials for roads and construction are to be permitted in areas where they will not adversely affect living environments, the landscape quality or contribute to land degradation problems during and after operations;
(b)Extraction of basic raw materials within the rural zones is to be managed in accordance with best industry practices including consideration of end use and rehabilitation at time of decommission;
(c)Appropriate buffer areas are to be applied to protect both the extractive operations as well as the living or agricultural environment in nearby areas;
(d)Council will not support development within those buffer areas, which may be detrimental to the efficiency of the industries. This is to protect the basic raw materials precincts from development that may compromise its operations.
The respondent also has in place a Local Planning Policy No 26 - Waste Management (LPP 26) and a question to be determined in the proceedings is whether that policy applies to the current proposal, and if so, what weight should be attached to it.
Evidence before the Tribunal
At the hearing of the matter a substantial amount of evidence was put before the Tribunal including reports from five experts, two of whom are acoustic experts and dealt with the issue of noise. The other three dealt with planning and environmental issues.
There were also five resident objectors who reside in the locality of the proposed development two of whom gave oral evidence. They raised a number of issues in regard to the perceived impacts of the proposed development on the amenity of the locality.
Other additional documentation tendered included various reports, historical documentation and joint expert reports from the two acoustic experts, and the three planning and environmental experts.
It became clear during the hearing that two principal issues arose to be addressed, these were:
1)Is the proposed development inconsistent with LPP 26?
2)Amenity and environmental issues which included such things as noise, dust, buffers with surrounding land uses, acid sulphate soils and environmental sustainability.
Issue 1 - Is the proposed development inconsistent with LPP 26?
This is an issue in respect of which both parties made detailed submissions.
The respondent called as its expert planning and environmental witness, Mr Hipkins, who for three years between March 2005 and 2008 was employed as a contract planner with the respondent. As it happens, Mr Hipkins was the person who drafted the LPP 26 for the respondent.
LPP 26 is a short two-page policy which states as follows:
SHIRE OF CHITTERING
LOCAL PLANNING POLICY No. 26
WASTE MANAGEMENT
1.STATUTORY CONTEXT
The Shire of Chittering, as enabled under Part 2 of Town Planning Scheme (TPS) No. 6, hereby makes this Local Planning Policy (LPP) regarding Waste Management throughout the Shire of Chittering.
Any Local Planning Policy prepared under this part shall be consistent with the Scheme and if any inconsistency arises the Scheme shall prevail.
A Local Planning Policy is not part of the Scheme and shall not bind the Local Government in any respect of an application for Planning Approval but the Local Government shall have due regard to the provisions of any Policy and the objectives that the Policy is designed to achieve before making its decision.
This policy applies to all land within the Shire of Chittering. It supersedes LPP No. 26 - Waste Management adopted by Council 15 November 2006.
2.DEFINITIONS
'Council' means the elected Council of the Shire of Chittering;
'Local Waste' means waste products generated within the Shire of Chittering;
'Shire' means the Shire of Chittering;
'Waste Management' means the generation, collection, transport, processing and disposal of waste products;
'Waste Products' means biosolids, household, industrial, agricultural and nuclear wastes.
3.BACKGROUND
Because of its relatively small population and low densities of settlement the Shire has difficulty collecting and disposing of household waste.
In recent years there have been attempts to concentrate industrial and agricultural wastes produced outside the Shire within the Shire for disposal. This has been perceived as being in conflict with tourism objectives for the Shire.
TPS No. 6 does not specifically refer to waste management. Waste processing and disposal would be classed within the definition of 'Industry - Noxious', which is a use that is not permitted by the Scheme in all zones. Within the Scheme there is a Local Reserve for 'Public Purposes - Land Refuse', which covers landfill sites. There is a 'special Control Area - Land Refuse' buffer of 500m from the centre of the land refuse sites.
This policy has been prepared to provide householders with an indication of what waste collection and disposal options they might expect within the foreseeable future and to provide developers/contractors with Council's view on regional waste processing and disposal and associated rezoning.
4.OBJECTIVES
The objectives of this policy are:
To reduce waste generation, in line with Government policies;
To adopt a safe and convenient local waste collection, transport and disposal methods;
To minimise the social, environmental and economic costs of waste management to Shire residents;
To exclude the Shire as a processing and dumping ground for wastes generated outside the Shire.
5.POLICY STATEMENT
Local waste generation, collection and disposal
5.1It is Council's intention within the foreseeable future that:
There shall be no kerbside waste collection within Agricultural Resource, Light Industrial and Special Use Zones;
There may be kerbside waste collection within Townsite and Rural Residential Zones.
5.2There shall be public landfills available for local waste disposal, with access to Shire residents on presentation of a tip pass.
5.3Local waste produces shall be disposed of within the Shire only at public landfills or on-site, to the satisfaction of Council's Environmental health Officer.
5.4Recycling facilities shall be provided at public landfills to assist in minimising waste generation.
Processing and disposal within the Shire of wastes produced outside the Shire
5.5There shall be no processing and/or disposal within the Shire of waste products generated outside the Shire or any rezoning in TPS No 6 to permit such activity, provided that nothing shall prevent the Council working with adjoining Local Governments to jointly address waste management issues.
It can be seen under cl 2 definitions 'waste products' are defined as:
... biosolids, household, industrial, agricultural and nuclear wastes.
That definition needs to be seen against the background set out in cl 3 of the policy which states:
...
TPS 6 does not specifically refer to waste management. Waste processing and disposal would be classed within the definition of 'Industry - Noxious', which is a use that is not permitted by the Scheme in all zones. Within the Scheme there is a Local Reserve for 'Public Purposes - Land Refuse', which covers landfill sites. There is a 'Special Control Area - Land Refuse' buffer of 500m from the centre of the land refuse sites.
...
LPP 26 would appear therefore to deal specifically with 'waste products'.
TPS 6 is the principal planning instrument for the respondent and to which LPP 26 is subservient. TPS 6 does not refer to waste products but does refer to 'waste material'.
Under the land use definitions in TPS 6 at page 53, 'landfill/refuse centre' is identified as a specific land use and is defined as 'premises used in the disposal, storage and recycling of waste material'.
Although there were differences between the parties in the statements of evidence filed prior to the hearing, at the hearing, both counsel agreed that the application before the Tribunal was properly classified as a landfill/refuse centre as defined in TPS 6.
It was also common ground that the land in respect of which the application is made is zoned 'Agricultural Resource' under TPS 6 and is within the 'Special Control Area - Basic Raw Materials' under TPS 6.
Pursuant to the zoning table of TPS 6, a landfill/refuse centre is an 'A' use within 'Agricultural Resource' zone and under the provisions of TPS 6 an 'A' use means:
... that the use is not permitted unless the local government has exercised its discretion by granting planning approval and giving special notice in accordance with cl 9.4.
It was therefore not disputed that the proposed development falls within the use class 'Landfill/Refuse centre' and is a permissible use to be approved under the Agricultural Resource zone for the disposal, storage and recycling of waste material.
Waste material is not defined in TPS 6 and a question that needs to be answered is whether 'waste material' as referred to in TPS 6 is the same as 'waste products' as referred to in LPP 26.
'Industry - Noxious' as referred to in cl 3 of LPP 26 is a use that is not permitted in all areas throughout the Shire of Chittering. It is defined in the Scheme as being an industry which is subject to licensing as 'prescribed premises' under the Environmental Protection Act 1986 (WA) (as amended) (EP Act) and/or means an industry in which the processes involved constitutes an offensive trade within the meaning of the Health Act 1911 (WA) but does not include a poultry farm or a piggery.
The third paragraph of cl 3 of LPP 26 under the heading 'Background' in LPP 26 appears to differentiate between waste processing and landfill, when it states:
Waste processing and disposal would be classed within the definition of 'Industry - Noxious', which is a use that is not permitted by the Scheme in all zones.
It then goes on to say in respect of landfill:
Within the Scheme there is a Local Reserve for 'Public Purpose - Land Refuse', which covers landfill sites.
'Landfill/refuse centre' is identified in TPS 6 as premises used in the disposal, storage and recycling of waste material'.
'Landfill/refuse centre' therefore, is seen within TPS 6 as dealing with 'waste material' and is a use which can be approved whereas LPP 26 deals with 'waste products' such as biosolids, household waste, industrial waste, agricultural waste and nuclear waste.
In Wollongong City Council v Australian Iron and Steel Pty Ltd (1988) 67 LGRA 51, Holland J, at 55, dealing with blast furnace slag stated:
In my opinion the respondent's argument breaks down at the outset and fails to honour the rule that words are to be read and understood in the context in which they are found.
Whilst the word 'waste' is an ordinary English word in common use it is a relative word and therefore capable of variations of meaning according to the context. Reliance was placed on the Shorter Oxford English Dictionary where, as a noun, 'waste' is given the meaning:-
'Refuse matter; the useless by-products of any industrial process; material or manufactured articles so damaged as to be useless or unsaleable;'
and, as an adjective, the meaning:-
'Of materials, etc.: Eliminated or thrown aside as worthless after the completion of a process: refuse. Of manufactured articles: Rejected as defective; also, produced in excess of what can be used.'
The Macquarie Dictionary was also relied on. It lists 35 meanings of which the respondent chose:-
'17.Anything unused, unproductive or not properly utilised; 3l. left over or superfluous; to utilise waste products of manufacture; 32. having served a purpose and no longer of use; 33. rejected as useless or worthless, or refuse: waste products.'
Another one listed is:-
'22.Anything left over or superfluous, as excess material, by products, etc., not of use for the work in hand.'
The dictionary meaning last quoted points up a distinction in respect of manufacturing by-products between those that are useless or worthless for any other purpose and need to be dumped and those that, while useless or worthless for the task at hand are useful or valuable for unrelated purposes and capable of being used or disposed of for those purposes. The first of these categories is 'waste' in all circumstances but the second is 'waste' only as regards the manufacturing process. It is this second sense in which, in my opinion, the word 'waste' is to be understood in the context in which it appears here.
The context is all important in cases like the present. ...
The Tribunal notes that in the report to Council, the Council officers stated:
A Planning Application has been received by Council dated 19 December 2007 from Cardno BSD to establish a Class 1 recycling and inter landfill facility at Lot 1920 Great Northern Highway, Muchea.
A Class 1 landfill is an unlined landfill designed to accept inert wastes only. The materials being nonbiodegradable or chemically reactive produce no leachate.
Under the heading 'Policy Implications' the officers went on to state:
Under the Shire of Chittering Local Planning Policy No 26 definitions to the following terms have been defined:
'Local Waste' means waste products generated within the Shire of Chittering.
'Waste Products' means biosolids, household, industrial, agricultural and nuclear waste.
The proposed inert landfill facility is a Class 1 type facility and does not accept any of the materials above.
Mr Hipkins, who drafted the policy, confirmed at par 15 of his written statement that:
[T]he intent of the policy as drafted by me was to cover all forms of waste.
Under crossexamination by counsel for the applicant in respect of LPP 26, it was put to Mr Hipkins:
SKINNER, MR: You accept what is proposed which is that the development is only going to be dealing with what is called construction and demolition materials.
HIPKINS, MR: Yes, I accept that.
In answer to a question regarding discussions with a representative of the applicant, Mr Hipkins stated:
HIPKINS, MR: No, no. It was this proposal but they didn't mention construction and demolition waste or dumping it on site. My discussions with them were about processing waste in a general sense. They didn't mention construction or demolition waste. Had they done so I would have changed the policy to exclude it.
The applicant argued that LPP 26 was for various reasons invalid in that it was in conflict with TPS 6 while the respondent argued that LPP 26 was relevant to the current development application and should be given significant weight.
Construction and demolition material would not in the Tribunal's opinion be described in its ordinary meaning as being biosolids, household waste, industrial waste, agricultural waste or, indeed, nuclear waste.
The Tribunal is of the view, that based on its ordinary meaning in the context in which it is found LPP 26 deals with 'waste products' which although broadly defined relate to waste products of a more noxious type, not inert waste material for which landfill/refuse centres are permitted under TPS 6 to accept material such as construction and demolition material.
Furthermore, cl 2.3.1 of TPS 6 states:
If a provision of a Local Planning Policy is inconsistent with the Scheme, the Scheme prevails.
A note following cl 2.3.1 of TPS 6 further states:
... Although Local Planning Policies are not part of the Scheme they must be consistent with, and cannot vary, the intent of the Scheme provisions, ...
In Stock and Shire of Victoria Plains [2005] WASAT 347, the Tribunal also cited authority confirming the need for policy to be consistent with the scheme.
In all the circumstances, the Tribunal is satisfied that as drafted, LPP 26 does not apply to the waste material the subject of the appeal and is not a relevant policy to be considered.
In any event, if LPP 26 did apply, it would appear, to be inconsistent with TPS 6 in that a 'Landfill/Refuse Centre' as proposed is a use which can be approved and TPS 6 does not fetter where material for that use can come from.
Issue 2 - Amenity and environmental issues
In December 2007, the proposed development was referred to the Environmental Protection Authority (EPA) under s 38 of the EP Act for assessment of any environmental impact, including issues such as noise, dust and contamination.
In February 2008, the EPA recommended a level of assessment of 'not assessed - no advice given - management under Part V of the EP Act'.
The proposal was also referred to other government agencies and advertised for public comment and referred to all land owners within a 2 kilometre radius of the proposed site.
As mentioned earlier, five witness statements from objecting residents in the locality of the proposed development were tendered by the respondent and two of those resident objectors were called by the applicant to give evidence.
This evidence raised a number of issues in regard to the perceived impacts of the proposed development on the amenity of the locality. The residents referred to the Shire tip which is also located within the 'Special Control Areas - Basic Raw Materials' area, and the fact that noise can be heard coming from it and that this development would be an exacerbation of the noise impact on their properties if approved. They also raised the issue of dust and the impact that may have.
One of the witnesses, Mr Kevin Nesci explained that he was in the preliminary stages of attempting to obtain planning approval for a caravan park on his property and he was concerned about the impact that the proposed landfill and crushing activities might have on that business.
Buffers
It was acknowledged by all parties that potential impacts to other land users from the operation of the proposed facility may include dust and noise.
The Environmental Protection Authority Guidance Statement No 3 - Separation Distances between Industrial and Sensitive Land Uses - June 2005 (Guidance Statement) is relevant to subject land and the proposed development. The separation distances between industrial and sensitive land uses in that Guidance Statement are as follows:
Table 5 Separation distance between Industrial and Sensitive land uses
| Industry | Description | Key government agency of advice or approvals | Impacts | Buffer distance required |
| Waste Disposal Inert Landfill site (Class 1) | Site only accepting inert waste, contaminated solid waste (meeting criteria for class 1, special waste (Type 1)), as specified for burial | Department of Water Local Government | Noise Dust | 150 metres for residential Internal buffer of 25 metres from boundary |
| Crushing of building material | Crushing or cleaning of waste building or demolition material | Local Government | Noise Dust | 1000 metres |
A significant amount of time was taken at the hearing identifying where precisely sensitive land uses were located and by the close of the hearing, it had been agreed by all parties that all sensitive land uses were in excess of 1,000 metres distances from the proposed location of the crusher onsite which is the distance required under the Guidance Statement.
It was also acknowledged that the 1,000 metre buffer around the crushing facility was generally within the 'Special Control Area - Basic Raw Materials'.
The respondent submitted that the applicant should not be allowed to take advantage or 'piggyback' on the 'Special Control Area - Basic Raw Materials' in which the development would be located and which two of its purposes are:
(c)Appropriate buffer areas are to be applied to protect both the extractive operations as well as the living or agricultural environment in nearby areas;
(d)Council will not support development within those buffer areas, which may be detrimental to the efficiency of the industries. This is to protect the basic raw materials precincts from development that may compromise its operations.
because Council may wish to remove the Special Control Area at some time in the future.
However, this argument does not appear to sit with Council's own Local Planning Strategy 2001 2015 (LPS) which stated aim is:
To achieve the vision, mission and aims of the Shire of Chittering and use opportunities open to it, which are outlined in the State Government Policies i.e. the State Planning Strategy, the Avon Arc Sub Regional Strategy Plan and the North Eastern Corridor Extension Strategy, and to provide a guide to development for the next 15 - 20 years.
and the fact that the LPS document recognises the importance of the 'Special Control Areas - Basic Raw Materials' and refers to the 'demand for the supply of basic raw materials including sand, gravel and clay, and that they are important industries requiring special consideration and protection' over that period whereas the life of the current development is limited to 10 years.
Noise
During the course of the hearing, three principal sources of noise were referred to. These were:
a)Reversing alarms on mobile equipment;
b)General industrial noise of operating the crusher; and
c)The noise of material dropping into the crusher.
Both the applicant and the respondent called acoustic experts and it was accepted by both experts that with agreed measures all three sources of noise could be kept within allowable limits by:
a)ensuring that all reversing alarms on mobile equipment and starting alarms on the crusher are to be smart alarms or BBK-TEK broadband alarms, or similar, rather than the standard alarms provided by the manufacturer;
b)That a 6 metre high bund be placed around three sides of the crushing area with one side only being left open; and
c)That the hopper into which material to be crushed is dropped be lined with Chutex or similar material to dampen the sound.
Apart from those specific measures, the applicant had also confirmed in its Environmental Assessment and Management Plan that other measures would be implemented to manage the noise which would include:
•Ensuring a minimum of 1 kilometre buffer is established and maintained between the nearest resident and the waste crushing and land filling operation.
•Maintain and develop, where appropriate, vegetation and screening surrounding the site.
•The crusher and front end loader will be maintained in good condition and operate appropriately and in a conservative manner.
•A maximum speed limit of 20 kilometres will be applied to all vehicles onsite. A speed limit sign will be posted close to the access point.
•Trucks will be maintained in good condition and drivers will be instructed of the requirement to use considerate driving techniques.
•The operation of site machinery will be limited.
The Tribunal is therefore satisfied, as were the experts, that with the agreed noise attenuation methods in place all noise emitted from the development can be kept within allowable limits.
Dust
In its Environmental Assessment and Management Plan, the applicant put forward the following Dust Management Plan.
A number of measures will be implemented to control the generation of dust and to prevent the release of dust emissions from the site. These include:
•covering all trucks/containers that are transported to the site. This measure will also be incorporated to trucks leaving the facility where appropriate;
•Selective timing of crushing, stockpiling and land filling operations - these activities will be suspended during severe windy conditions;
•Use of watering tractor to suppress dust emission on all relevant site activity areas including the gravel access travel;
•Watering of the inert material and recycled building products stockpiles using sprinkler systems and a watering tractor;
•Watering of material prior to land filling activities as appropriate;
•Installation of sprinkler system to the mobile crusher to control dust; and
•maintain and develop appropriate vegetation screens surrounding the site.
Mr Hipkins giving planning and environmental evidence on behalf of the respondent was critical of the Dust Management Plan. In particular, he stated there was nothing about rates of application or sufficiency of coverage and he also raised the issue of objective performance indicators.
In respect of these issues, Mr Mack who gave environmental evidence on behalf of the applicant, explained that the application of water would be to all areas susceptible to dust generation and in terms of rates of application, it would be to a level that is sufficient to minimise the dust generation. He stated in particular:
I found in the past where you actually start specifying volumes of water as soon as you don't use those volumes of water, whether they are achieving the criteria or not, you start getting into issues of potential non compliance ... generally the test is to ensure that offsite impacts either to the environment or the surrounding residences are minimised as far as practicable.
Mr Mack also suggested that the EPA would have taken into account in setting buffer distances in its Guidance Statement, issues associated with dust.
When put to Mr Mack that when you have an operation of this type, with a buffer of 1,000 metres together with a management plan whether the measures Mr Hipkins was suggesting were necessary, Mr Mack said they were not.
It was also generally agreed by the experts that the prevailing winds did not generally blow from the site towards any sensitive land uses and none of the experts were aware of any cases where a performance criteria such as suggested by Mr Hipkins had been undertaken.
Under crossexamination, in respect of receptors, Mr Hipkins stated:
I must admit with the nearest receptor being a kilometre or so away it would be debatable as to whether or not it was worthwhile.
The Tribunal is satisfied that with the Dust Management Plan as suggested by the applicant together with the 1,000 metre buffer that any dust emissions can be adequately controlled.
Acid sulphate soils
At cl 2.2.3 of the Environmental Assessment and Management Plan it states:
Acid sulphate soils are naturally occurring soils that contain iron sulphide (iron pyrite minerals). If disturbed by dewatering, drainage or soil excavation, the pyrite can oxidise thereby releasing acidity, potentially causing environmental impacts. A overview of the acid sulphate soils risk potential on the Swan Coastal Plain is provided in the Western Australian Planning Commission Planning Bulletin No 64 (WAPC No 2003). According to the Bulletin, the soils underlying Lot 1920 are rated as having a low to no risk of actual ASS or potential ASS occurring generally at depths greater than 3 metres.
In the final two paragraphs of Mr Hipkins' statement, he states:
Although the WAPC mapping shows Lot 1920 vicinity as being low to negligible risk, the Shire has experienced problems with acid sulphate soils being exposed and causing detriment to the environment in the vicinity of the site, even where acid sulphate was mapped as low to negligible in terms of risk.
I would be concerned about the lines from generic WAPC mapping, and would recommend the condition that the development not be implemented unless site specific acid sulphate surveys undertaken as certified by an appropriately qualified person, as presenting no risk.
Mr Hipkins produced photographs of a site 4 kilometres north of the subject land where there had been some indication of acid sulphate soils that had occurred due the lowering of the Great Northern Highway by half a metre in that area. Although there was some brief discussion between the experts as to when the problem of acid sulphate soils may occur, it appeared to mainly deal with the removal of topsoil.
In the circumstances of the present case, nothing more than a hypothesis was put before the Tribunal suggesting that because there might be some risk of acid sulphate soils occurring that a condition should be imposed requiring a sitespecific acid sulphate survey.
Based on the little evidence before it, the Tribunal could not be convinced to ignore the advice in the Western Australian Planning Commission's (WAPC) Planning Bulletin No 64 without some real evidence to warrant a condition as suggested.
Water contamination
In his statement of evidence, Mr Hipkins dealt in a general way with both ground water and surface water.
As to ground water, he raised issues as to whether a licence could be obtained to extract ground water and if so, whether it would be sustainable. This is a matter for the relevant licensing body for any such bore. As to whether it would affect the applicant's dust suppression, if the applicant as a condition of approval is obliged to carry out watering to suppress dust and cannot get water from a bore as suggested, then it will have to be supplied from some other source.
In respect of surface water, the Tribunal is satisfied that the matter of sufficient water was adequately dealt with in the applicant's Environmental Assessment and Management Plan dated November 2007 and that the condition suggested will satisfactorily cover the issues raised.
Visual amenity
As stated in the officers' report to Council, a historic clay mining operation previously existing on the site which resulted in a mining void which was described at one point as being a 'scar on the landscape'.
It appears that over a number of years, various extractive industry licences were granted but for whatever reason, no rehabilitation of the site was undertaken leaving it in a very poor condition.
As stated in the Environmental Assessment and Management Plan:
The visual amenity of the area proposed to be utilised by Westmore is currently in very poor condition as the site has not been rehabilitated by the mining operation. To facilitate the facility, which is located in a relatively isolated location, it currently screens the west, south and east by remanent vegetation. There is currently no visual screening along the northern boundary which enables a view from the north directly at the mining void. Westmore acknowledges that it is important to maintain and develop the visual amenity of the site. Measures that will be utilised to ensure that high levels of visual amenity are maintained and developed throughout the area include:
•Landscaping and screening - an area directly to [the] north of the mining void areas are currently void of vegetation to the historical mining operation. This area will be revegetated with native vegetation local to the area providing a screen over time. It is also recognised that the additional vegetation screen could be applied to the eastern boundary of the site and will be examined.
...
•Site rehabilitation - the land filling of inert material will restore the site's original contours and enable the rehabilitation of the site. Westmore's operations have the potential to enhance the site in the long term and add value back to the land as it has been left in a very degraded condition.
Although there was no objection taken on the basis of visual amenity, it is an issue that should be mentioned along with the other environmental issues.
Economic sustainability
The respondent's argument in respect of this issue was set out in their revised statement of issues, facts and contentions which stated:
•The mode of operation of the recycling component of the business will involve materials being transported to Muchea by heavy vehicles by road from a Jandakot facility operated by the applicant or an entity associated with the applicant.
•The proposal involves an inefficient use of energy, which generally is produced from nonrenewable resources which produce greenhouse emissions.
•No reason is provided as to why the materials can not be recycled at or near the Jandakot facility. Colocation recycling would result in more efficient use of energy, the use of less nonrenewable resources, and less greenhouse emissions.
Mr Hipkins states that from an environmental point of view, there seems to be an excess of energy involved in the whole process, and it is not consistent with the general trend of environmental planning to minimise energy use and he referred the Tribunal to the WAPC's Statement of Planning Policy No 2 headed 'Environment and Natural Resources Policy' and in particular, cl 5.10 referring to greenhouse gas emissions and energy efficiency.
The respondent's contentions in respect of this matter, however, were brief. No evidence was put before the Tribunal to show that any likely benefit the applicant may create through the recycling component of the development would be offset by transporting the materials from Jandakot to Muchea.
This is a novel argument and one which may well gain traction in planning over the coming years, however, it has not reached that stage as yet and in the present case, the Tribunal has been given no actual evidence to support the respondent's contentions and is being asked to make a finding on an important issue by effectively joining the dots.
In the circumstances, the Tribunal has no evidence on which it could confidently rely to draw any conclusions or indeed make any findings in this regard.
Conclusion
Allowing for the fact that LPP 26, for the reasons outlined earlier, does not apply to the present development, the matter must still be judged against the expectations of TPS 6, and the issues of orderly and proper planning.
Turning first to the question of amenity, the Tribunal fully understands the views of the objectors. However, as stated in earlier cases before the Tribunal, 'rural areas generate a variety of' externalities - mainly noise and dust emissions. One cannot expect to reside in such a zone and necessarily expect a quiet and serene rural environment': Marley-Duncan v Corporation of the Town of Gawler [2003] SAERDC 28 at [21] cited in Self and Shire of SerpentineJarrahdale [2005] WASAT 140 at [62].
In this case, the proposed development is located within a 'Special Control Area - Basic Raw Materials' which is specifically designated within TPS 6 and in which Council has also seen fit to site their own land refuse zone. The fact of the existence of the Special Control Area needs to be taken into account when considering the amenity that might reasonably be expected in areas abutting it.
Such a Special Control Area is quite resistant as to what development can be allowed within it and it would appear that the current permissible use is one of the few that would be compatible.
Apart from the buffer given by the 'Special Control Area - Basic Raw Materials', the necessary buffer of 1,000 metres required for a crushing facility under the Guidance Statement is also present.
The task the Tribunal faces is essentially to balance the concerns of the respondent against a nonprohibited land use after taking into account all of the relevant matters.
The expert evidence that if the measures discussed at the hearing are put in place in respect of noise and dust, coupled with the 1,000 metre buffer distance to the nearest sensitive land use, the topography of the area and prevailing winds, has after a thorough examination of all amenity and environmental concerns satisfied the Tribunal that the applicant has adequately addressed or met the concerns expressed.
Furthermore, given the proposed development's limited scale and fixed duration, and its setting within the 'Special Control Area - Basic Raw Materials', the Tribunal is of the view that the proposal is appropriate for the subject land.
Therefore, having carefully considered the evidence the Tribunal finds that in the circumstances of the present case that approval ought to be given upon conditions which will reflect a range of the concerns discussed.
Conditions
The respondent furnished a Minute of Proposed Conditions which was in effect the conditions initially recommended by Council officers with some amendments.
In reply, the applicant accepted some and opposed others, some entirely, others in part.
A number of issues were also raised during the hearing such as the height and extension of the bund surrounding the crusher and lining the hopper, which it was agreed needed to be covered by conditions if the development was approved.
Condition 1
Proposed condition:
1.This planning consent shall be for a period of ten (10) years from the date of issue;
This condition was accepted by both parties.
Condition 2
Proposed condition:
2.Operating including deliveries but excluding crushing shall be restricted to 7:00 to 16:00 Monday to Friday and 7:00 to 13:00 on Saturdays. Crushing shall be restricted to 08:00 to 13:00 Monday to Friday and furthermore, no crushing will be permitted during windy periods of a day.
The applicant opposed this condition and stated:
The evidence of the expert acoustic, environmental and planning consultants does not require the limitation of operating hours proposed by this proposed Condition. Subject to no crushing taking place between 06:00 and 07:00 am on any day, as recommended by the acoustic consultants, operating hours should be permitted as set out in the Management Plan.
Both acoustic engineers agreed that if the bund height is 6 metres and extended on three sides, compliance will be achieved with the Environmental Protection (Noise) Regulations 1997 (WA) (EP Regulations) between 7 am and 7 pm Mondays to Saturdays. They did not differentiate between delivery and crushing.
The operational hours stated in the management plan proposed that the site would be operational Monday to Friday from 6 am to 4 pm and on Saturdays from 6 am to 4 pm.
In the circumstances it is reasonable to impose a condition in line with the acoustic experts' recommendation that operations not start until 7 am on any day and as requested in the management plan, they will cease every day at 4 pm which it is noted is three hours earlier than the limit to which the acoustic experts stated they could extend.
Condition 3
Proposed condition:
3.The amount of putrescible waste (which is to be timber or green waste only) in inert material transported to Muchea is to be not more than 0.5% (by weight) in accordance with the amendments made to the Department of Environment and Conservation (DEC) Landfill Waste Classification and Waste Definition 1996;
The applicant opposed this condition in part and stated:
The Applicant would accept an amended Condition to the effect that the only waste permitted to be buried on site is 'Inert Waste' comprising 'Construction and Demolition Waste' as those terms are defined in the Department of Environment and Conservation (DEC) Landfill Waste Classification and Waste Definition 1996.
It is recognised that DEC Landfill Waste Classification and Waste Definition 1996 classifies timber materials, green waste, mattresses and carpets as putrescible waste. It is acknowledged by both parties that such waste cannot enter the inert landfill on the site.
However, it is recognised that from time to time a certain amount of putrescible waste may arrive at the site mixed with inert landfill and will have to be separated onsite.
In the circumstances, the Tribunal is satisfied that to impose an amended condition, condition 3 together with condition 4, which will be discussed following this, will allow proper management of that issue.
Condition 3 will therefore read:
The only waste permitted to be buried on site is 'inert waste' comprising 'construction and demolition waste' as those terms are defined in the Department of Environment and Conservation (DEC) Landfill Waste Classification and Waste Definition 1996. No putrescible waste is to be in material landfilled on the site.
Condition 4
Proposed condition:
No putrescible waste is to be in material landfilled. All putrescible material is to be taken offsite within 24 hours of arrival;
This condition was opposed in part and the applicant stated:
The applicant would accept an amended Condition to the effect that any putrescibles (or other) waste not falling within the waste permitted to be buried on site is to be taken offsite within 24 hours and deposited at an appropriate alternative facility.
Keeping in mind the comments made in respect of condition 3 above, condition 4 should read:
Any putrescibles (or other) waste not falling within the waste permitted to be buried onsite is to be separated and taken offsite within 24 hours of its arrival onsite and deposited at an appropriate alternative facility.
Condition 5
This condition was accepted by both parties and reads:
No asbestos is permitted onsite;
Condition 6
This condition was accepted by both parties and reads:
Noise testing of the crusher is to be undertaken within three months of the crusher being in operation and prepared by a suitably qualified acoustic engineer or consultancy. The results are to be provided to the Shire;
Condition 7
Proposed condition:
A Fire Management Plan is to be prepared to the satisfaction of the Chief Executive Officer in accordance with Local Planning Policy No 21. The approved plan is thereafter to be implemented throughout the life of the approval and postclosure period;
The applicant accepted this condition save that for consistency with other conditions a fire management plan should be to the satisfaction of the Executive Manager Development Services. The Tribunal accepts that this is a sensible amendment and the condition will be amended accordingly.
Condition 8
Proposed condition:
A Refuelling Management Plan is to be prepared to the satisfied of the Chief Executive Officer.
Incorporating
(i)all onsite fuel storage and refuelling to take place within a lined and bunded area;
(ii)any fuel leakages or spills to be cleaned up within 24 hours;
(iii)As part of the closeout plan, contaminated soils is to be disposed of to the satisfaction of the Chief Executive Officer.
The operator from time to time is to ensure that the approved Refuelling Management plan is implemented at all times.
The applicant accepted this condition save that for consistency the Refuelling Management Plan referred to should be to meet the satisfaction of the Executive Manger Development Services, again, this condition will be amended accordingly.
Condition 9
Proposed condition:
The entire site being fenced off with security measures in place to prevent illegal dumping of waste.
The applicant opposed this in part and stated:
The entire site is already adequately fenced. The Applicant would accept an amended Condition requiring that the existing fencing of the entire site be maintained so as to prevent illegal dumping of waste.
In the circumstances, the Tribunal believes a reasonable [condition] would be:
The entire site be fenced off and maintained in a condition so as to prevent illegal dumping of waste.
Condition 10
This condition was accepted by both parties and reads:
Within nine months, of the date of this planning consent, screen landscaping belts of local species 10m wide shall be installed and thereafter maintained at the northern and eastern boundaries in addition to a landscaped earthen bund wall 2m high being provided along the boundary to Wandena Road;
Condition 11
Proposed condition:
All stormwater shall be retained onsite.
This condition is opposed and the applicant stated:
It is not practical given the size of the site, to require that all stormwater be retained on site.
This is not an issue in respect of which any evidence or submissions were put before the Tribunal.
However, par 5.4, par 5.5, par 7.3, par 7.4 and par 7.5 of the applicant's Environmental Assessment and Management Plan, sets out a proposed methodology and management measures for stormwater and surface water on the site, including water sampling, a proposed dewatering process and operational surface water management.
These measures appear to appropriately deal with the matter and in the circumstances, the condition will be amended to read:
That a stormwater and surface water management plan as per the Environmental Assessment and Management Plan will be furnished to the Executive Manager Development Services and the applicant will at all times ensure that stormwater and surface water is managed on site in accordance with that plan.
Condition 12
This condition was accepted by both parties and reads:
Within three months, the proponent shall submit to Council evidence of currency of public liability insurance for landfill operations. The issue of approval shall not, in any way render the Shire of Chittering liable for any damage or injury of any kind to any member of the public; such liability shall be the sole responsibility of the applicant.
Conditions 13
Proposed condition:
A Rehabilitation Plan (also referred to as a close plan) shall be submitted for approval by Council incorporating:
(i)statement of end use;
(ii)final contouring plan, rehabilitation and land management;
(iii)measures for compaction of landfill;
(iv)revegetation and landscaping.
- and it shall be the responsibility of the landowner from time to time to fully implement the Rehabilitation Plan after cessation of the landfill (and during the landfill toe the extent relevant) in all respects.
This condition was accepted by the applicant save that again for consistency, the Rehabilitation Plan should be to the satisfaction of the Executive Manager Development Services. As before, that amendment will be made.
Condition 14
Proposed condition:
This approval shall not be acted upon unless Main Roads of Western Australia grants access to, and egress from, the site via Great Northern Highway, and further grants a restricted vehicle access permit for road trains for access and egress accordingly.
This condition and condition 15 will be discussed together.
Condition 15
Proposed condition:
There is to be no access to the site from any point (including from Wandena Road) other than from Great Northern Highway.
The applicant dealt with both these conditions together and opposed them in part stating:
The Applicant would accept an amended condition combining both Condition 14 and Condition 15, to the effect that access to the site should only be from Great Northern Highway. The Applicant acknowledges that such access will require the approval of Main Roads Western Australia will include a requirement for a restricted vehicle access permit, but this is a separate approval requirement that is not appropriate that it be a condition of planning approval.
The Tribunal is of the view that it is reasonable for condition 14 and condition 15 to be combined and that access to the site to be only from Great Northern Highway and that no access is allowed from any other point. It is acknowledged that to gain access to the site from Great Northern Highway an approval from Main Roads granting the necessary permits will be necessary and a condition that the applicant must gain such approval and permits prior to commencing development.
Condition 16
Proposed condition:
Prior to any on-site works including prepatory [sic] works, a Dust Management Plan is to be prepared by an appropriately-qualified person for approval by the Shire Planner, which is to provide for best practice dust suppression measures, and without limitation to include the following:
•details for watering of materials;
•watering in the crushing process;
•specific dust attributes of the intended materials;
•rates of application and sufficiency of coverage of watering;
•ensuring accessibility to all exposed areas, and not confined to convenientlyaccessible landfill faces;
•specifics of wind behaviour in the particular locality;
•dust suppression in the dumping and maneuvering [sic] process.
The operator is responsible to ensure that the Dust Management Plan is implemented at all times in the undertaking of the development.
The applicant opposed condition 16 in part and stated:
The applicant says that the dust management measures proposed in the Management Plan are sufficient to satisfy the respondent regarding dust control. If a Dust Management Plan is required, the applicant would accept an amended condition requiring that a plan covering the matters set out in the first, second, fifth and seventh bullet-points of the proposed Condition. The applicant would also cover the matters in the fourth bullet-point, but on that the basis that rates of application and coverage have to be flexible in order to deal with particular on-site conditions. The applicant would also cover the matters in the sixth bullet-point, by reference to the wind roses already provided to the respondent, but the applicant does not agree to a requirement which would in effect require a meteorological station to be set up on-site. Finally, for consistency with other Conditions, any Dust Management Plan should be to the satisfaction of the Executive Manager Development Services.
Keeping in mind the Tribunal's comments in respect of dust management in the body of the decision the Tribunal acknowledges that there is a Dust Management Plan within Environmental Assessment and Management Plan. However, the Tribunal is of the view that it is appropriate that a condition be included necessitating the lodgement of a Dust Management Plan and would largely accept the respondent's condition with amendments including the third dot point which states:
•specific dust attributes of the intended materials;
be deleted as there was no basis given and no evidence before the Tribunal to support such a condition.
The fourth dot point be amended to read 'details of planned application and water coverage to deal with on-site conditions' and the sixth dot point be amended to read 'specifics of wind behaviour in the particular locality based on the wind roses prepared by the applicant'. For the purpose of consistency the Dust Management Plan should also be to the satisfaction of the Executive Manager Development Services and the words 'and without limitation' in the fourth line of the first paragraph will also be deleted.
Condition 16A
Proposed condition:
The operator from time to time shall at all times ensure sufficient water is accessible on-site to undertaken dust suppression pursuant to condition 16, if necessary by means of water transported by tanker onto the site. This planning consent does not grant permission for the installation or use of any bore, which requires separate and specific approval from the Department of Water and planning consent from the Shire.
The applicant opposes this condition in part and states that they would agree to an amended condition deleting the second sentence of the proposed condition, which they submit is not appropriate as a condition of planning approval.
The Tribunal agrees with the applicant's contention and will delete the second sentence of condition 16A as separate approvals will be required if bores are necessary.
Condition 17
This condition was accepted by both parties and reads:
All vehicles['] loads entering and leaving the site shall be covered to prevent the spread of material;
Condition 18
Proposed condition:
Internal access road shall be constructed and sealed to a 7m wide standard that minimizes dust emission from machinery and traffic, to the satisfaction of Council.
The applicant opposed this condition in part by stating:
The evidence before the Tribunal does not disclose a requirement that the access road be sealed (which would cost approximately $1.5m) or that it be widened to 7m (which would require the removal of existing vegetation). The applicant would accept an amended condition to the effect that the internal access road be constructed to a standard to minimise dust emissions from machinery and traffic, to the satisfaction of the Executive Manager Development Services.
The Tribunal accepts that it is important that the road be of a standard that it will not deteriorate with the expected heavy trucks that will use it and more importantly to ensure that dust emissions are minimised.
The Tribunal is satisfied that the Executive Manager Development Services can decide what is necessary in the circumstances in terms of width for safety purposes and finish to minimise dust emission without the need for complete sealing or unnecessary widening. Therefore, a condition stating that the '[i]nternal access road be constructed to a standard to ensure safety, and minimise dust emissions from machinery and traffic to the satisfaction of the Executive Manager of Development Services' will be adequate particularly in respect of the development having a limited life.
Condition 19 and condition 19A
Both these conditions are accepted by both parties and read:
19.The operations including the crusher shall comply with the requirements of the Environmental Protection (Noise) Regulations 1997 in respect to noise;
19A.The operator shall ensure that no sitebased vehicle uses a beeper. Any reversing alarm on such vehicles shall be a broadband reversing alarms, eg. 'croakers'
Condition 20
The respondent confirmed at the hearing that this proposed condition could be deleted.
Condition 21
Proposed condition:
Crushing shall not occur in the following areas:
(i)within 250m at any point along the Wandena Road lot boundary;
(ii)within 40 metres of any designated water course;
(iii)within 1km of any house.
The applicant opposed this condition in part and stated:
... The applicant would accept an amended Condition to the effect that crushing shall occur only in the area identified for crushing on plans submitted to the Tribunal.
As the issue of noise from the crusher was a significant issue, during the hearing and all of the acoustic evidence and measurements in relation to distance from sensitive land uses related to the crusher being in a particular position as proposed by the applicant, there is no question that that is where the crusher should be located and stay located.
In the circumstances, the condition should read:
Crushing is only to occur in the area within the bunds and identified for crushing on the plans submitted for approval.
Condition 22, condition 23 and condition 24
The respondent confirmed at the hearing that each of the proposed conditions could be deleted.
Condition 25 and condition 26
Both of these conditions were accepted as proposed by both parties and they read:
25.An annual report shall be submitted to the Council that includes:
(i)the progress of the landfill activity;
(ii)surface water capture and reuse;
(iii)progress and landfill/recycling;
(iv)contingency actions and outcomes; and
(v)community complaints and responses.
26.If the development, the subject of this approval, is not substantially commenced within a period of 12 months from the date of approval, the approval shall lapse and be of no further effect. Where an approval has lapsed, no further development shall be carried out without the further approval of Council having first been sought and obtained;
Condition 25A
(it is noted that the numbering should read 26A, etc, but for reasons of consistency, the numbering used by the parties will be retained.)
Proposed condition:
25A.This planning consent shall not be acted upon unless a sitespecific Acid Sulfate Soils Survey is undertaken by an appropriatelyqualified person and furnished to the Shire prior to any development occurring, certifying that the implementation of the development will present no risk with regard to Acid Sulfate Soil. The Acid Sulfate Soils Survey is to extent to, but is not limited to, the water body onsite and the bed of that water body.
This condition was opposed by the applicant who stated:
The proposed Condition is not reasonably required. It is not in dispute that the site is designated as having no known risk of acid sulphate soils.
The Tribunal commented on this issue in the body of the decision and there was no evidence put before the Tribunal apart a suggestion that the State planning policy should not be entirely relied on which was supported with photographs of acid sulphate soils 4 kilometres away.
The Tribunal is of the view that without further evidence it would not be reasonable to impose such a condition.
Condition 25B
25B.Within 3 months from the grant of this planning consent, a DeWatering Resource Study is to be prepared by an appropriately qualified person for approval by the Shire Planner. The Study is to identify whether the water to be extracted from the mining void is environmentally acceptable for reuse in dust suppression and fire safety. If so, the Study is to propose a plan for the storage and reuse of water for those purposes only in a manner which also minimises loss through evaporation. Nothing in this condition is to be taken to indicate that such water will be sufficient throughout the life of landfill for such purposes. If the Study indicates that the water would be unacceptable for dust suppression, then the Study is to make provision for the storage, delivery and reuse, whether on a commercial basis or otherwise, of the water within the district of the Shire of Chittering. Having regard to the scarcity of water resources within the Shire, no water is to be:
•spread over the site (except pursuant to the Study for dust suppression, fire control or watering of newlyplanted vegetation); or
•deployed outside of the district of the Shire of Chittering.
The applicant opposed this in part and stated that:
There is no evidence before the Tribunal justifying the various matters referred to in the proposed condition. The applicant would, however, accept an amended Condition requiring the preparation of a DeWatering Resource Study for approval by the Executive Manager Development Services setting out the proposed use of water to be extracted from the existing mining void and requiring that the water be tested before any such use to ensure it is appropriate for that use.
When dealing with the issue of storm water at condition 11, the Tribunal referred to applicant's Environmental Assessment and Management Plan. The Tribunal is of the view that it would be reasonable in the circumstances to require the applicant to prepare a Dewatering Resource Study in line with what is suggested in its Environmental Assessment and Management Plan for approval by the Executive Manager Development Services setting out the proposed use of water to be extracted from the existing mining void and requiring that the water be tested before any such use to ensure that it is appropriate for that use. It is also reasonable that the condition specify that if the study indicates that the water is not acceptable for the proposed use, then the study is to make provision for that water in terms approved by the Executive Manager Development Services.
Condition 25C
This condition was accepted by the applicant and reads:
Only the existing mining void is to be used for landfilling, and that void is not to be further deepened or widened through further excavation or otherwise.
Condition 25D
Proposed condition:
25D.Prior to commencing any landfilling, a Staged Landfilling Plan is to be prepared for the approval of the Shire Planner, which shows the staging of landfilling and sets out cells of landfilling and materials and specifications for the progressive covering of landfill material on a cellbycell basis in accordance with best practice, so that he amount of exposed unsightly material at any given time is minimised.
The applicant opposes that in part and states:
The applicant would accept an amended Condition providing that prior to commencing any landfilling, a Stage Landfilling Plan is to be prepared for the approval of the Executive Manager Development Services showing the staging of landfilling. The other matters referred to in the proposed Condition are applicable to a putrescibles landfill, but are not appropriate for a landfill operation limited to the material referred to in Condition 3 above.
The Tribunal accepts the amendments as suggested by the applicant would be reasonable in the circumstances of a landfill that may only take inert landfill, particularly in light of condition 3 above and the fact that any other waste must be removed from the property within 24 hours and the condition will be amended accordingly.
Condition 25E
The condition was accepted by the applicant and reads:
The operator from time to time is responsible to ensure that any windblown waste is removed from the premises, fences and roads, and any windblown waste emanating from the premises is collected and removed on a weekly basis or more frequently when directed by the Shire.
Condition 25F
Proposed condition:
Except as otherwise provided in any other condition, the operator from time to time is responsible to ensure that the development is undertaken in accordance with the Cardno BSD Environment Assessment and Management Plan lodged with the Shire and dated November 2007.
The applicant accepted the proposed condition but stated:
... that the Condition should also not apply to the extent that matters may otherwise dealt with in any other approval required for the operation of the development.
The Tribunal is of the view that the condition as proposed is reasonable if the words 'or other necessary approvals' were added after the word 'condition' in the first line of the proposed condition.
Condition 27
The respondent confirmed at the hearing that this condition could be deleted.
Additional conditions
The parties agreed that a condition should be included to acknowledge the increased height of the proposed bunds and the increased extent of the bunds to ensure compliance with the EP Regulations.
In the circumstances a condition will be included to the effect that the height of the bund surrounding the crusher will be extended to a height of 6 metres and that that area of the bund be extended in the manner agreed by the acoustic consultants for both parties which will, in their opinion achieve compliance with the EP Regulations.
Orders
The Tribunal therefore orders:
AThe application for review is allowed.
BThe decision under review is set aside and substituted in its place will be a decision granting planning approval for the applicant's proposed construction and demolition recycling and inert landfill facility at No 4040 (Lot M1920) Great Northern Highway, Muchea, for a period of 10 years subject to the following conditions:
(1)This planning consent shall be for a period of 10 years from the date of issue.
(2)The site may only operate between the hours of 7 am and 4 pm Monday to Saturday.
(3)The only waste permitted to be buried on site is 'inert waste' comprising 'construction and demolition waste' as those terms are defined in the Department of Environment and Conservation (DEC) Landfill Waste Classification and Waste Definition 1996. No putrescible waste is to be in material landfilled on the site.
(4)Any putrescibles (or other) waste not falling within the waste permitted to be buried onsite is to be separated and taken offsite within 24 hours of its arrival onsite and deposited at an appropriate alternative facility.
(5)No asbestos is permitted onsite.
(6)Noise testing of the crusher is to be undertaken within three months of the crusher being in operation and prepared by a suitably qualified acoustic engineer or consultancy. The results are to be provided to the Shire of Chittering.
(7)A Fire Management Plan is to be prepared to the satisfaction of the Executive Manager Development Services in accordance with Local Planning Policy No 21. The approved plan is thereafter to be implemented throughout the life of the approval and postclosure period.
(8)A Refuelling Management Plan is to be prepared to the satisfaction of the Executive Manager Development Services incorporating:
(i)all onsite fuel storage and refuelling to take place within a lined and bunded area;
(ii)any fuel leakages or spills to be cleaned up within 24 hours; and
(iii)as part of the closeout plan, contaminated soils is to be disposed of to the satisfaction of the Executive Manager Development Services.
The operator from time to time is to ensure that the approved Refuelling Management Plan is implemented at all times.
(9)The entire site be fenced off and maintained in a condition so as to prevent illegal dumping of waste.
(10)Within nine months, of the date of this planning consent, screen landscaping belts of local species 10 metres wide shall be installed and thereafter maintained at the northern and eastern boundaries in addition to a landscaped earthen bund wall 2 metres high being provided along the boundary to Wandena Road.
(11)That a stormwater and surface water management plan as per the Environmental Assessment and Management Plan will be furnished to the Executive Manager Development Services and the applicant will at all times ensure that stormwater and surface water is managed on site in accordance with that plan.
(12)Within three months, the proponent shall submit to Executive Manager Development Services evidence of currency of public liability insurance for landfill operations. The issue of approval shall not, in any way render the Shire of Chittering liable for any damage or injury of any kind to any member of the public; such liability shall be the sole responsibility of the applicant.
(13)A Rehabilitation Plan (also referred to as a close plan) shall be submitted for approval by Executive Manager Development Services incorporating:
(i)statement of end use;
(ii)final contouring plan, rehabilitation and land management;
(iii)measures for compaction of landfill; and
(iv)revegetation and landscaping.
and it shall be the responsibility of the landowner from time to time to fully implement the Rehabilitation Plan after cessation of the landfill (and during the landfill toe the extent relevant) in all respects.
(14)Access to the site is to be from Great Northern Highway only and the applicant must gain all necessary approvals for such access from the relevant authorities.
(15)Prior to any onsite works including any preparatory works a Dust Management Plan in line with the Dust Management Plan contained in the applicant's Environmental Assessment and Management Plan dated November 2007 is to be prepared to the satisfaction of the Executive Manager Development Services and such plan is to include:
•details for watering of materials;
•watering in the crushing process;
•details of planned application of water coverage;
•details of accessibility to all exposed areas and not confined to landfill faces;
•specifics of wind behaviour in the particular locality based on the wind roses prepared by the applicant; and
•dust suppression in the dumping and manoeuvring process.
(16)The operator from time to time shall at all times ensure sufficient water is accessible on-site to undertaken dust suppression pursuant to condition 15, if necessary by means of water transported by tanker onto the site.
(17)All vehicles' loads entering and leaving the site shall be covered to prevent the spread of material.
(18)The intended access road be constructed to a standard to ensure safety and minimise dust emissions from machinery and traffic to the satisfaction of the Executive Manager Development Services.
(19)The operations including the crusher shall comply with the requirements of the Environmental Protection (Noise) Regulations 1997 (WA) in respect to noise.
(20)The operator shall ensure that no sitebased vehicle uses a beeper. Any reversing alarm on such vehicles shall be a broadband reversing alarms, for example, 'croakers'.
(21)Crushing is only to occur in the area within the bunds and identified for crushing on the plans submitted for approval.
(22)An annual report shall be submitted to the Executive Manager Development Services that includes:
(i)the progress of the landfill activity;
(ii)surface water capture and reuse;
(iii)progress and landfill/recycling;
(iv)contingency actions and outcomes; and
(v)community complaints and responses.
(23)If the development, the subject of this approval, is not substantially commenced within a period of 12 months from the date of approval, the approval shall lapse and be of no further effect. Where an approval has lapsed, no further development shall be carried out without the further approval of Executive Manager Development Services having first been sought and obtained.
(24)Within three months from the grant of this planning consent, a DeWatering Resource Study is to be prepared for approval by the Executive Manager Development Services. Such report is to set out the proposed use of the water to be extracted from the mining void and the regime of testing that will be carried out to ensure the water is appropriate for that use. If the water is not appropriate for that use, details must be provided as to what is to be done with the water.
(25)Only the existing mining void is to be used for landfilling, and that void is not to be further deepened or widened through further excavation or otherwise.
(26)Prior to carrying out any landfilling a Stage Landfilling Plan is to be prepared for the approval of the Executive Manager Development Services showing the planned staging.
(27)The operator from time to time is responsible to ensure that any windblown waste is removed from the premises, fences and roads, and any windblown waste emanating from the premises is collected and removed on a weekly basis or more frequently when directed by the Shire of Chittering.
(28)Except as otherwise provided in any other condition, or other necessary approvals, the operator from time to time is responsible to ensure that the development is undertaken in accordance with the applicant's Environment Assessment and Management Plan lodged with the Shire of Chittering and dated November 2007.
(29)Prior to carrying out any crushing operations at the site, the applicant is to ensure that the receiving hopper is suitably lined and bunds to a height of 6 metres and extended as agreed by the acoustic experts, but in any event, sufficient to ensure compliance with the Environmental Protection (Noise) Regulations 1997 (WA) are in place.
I certify that this and the preceding [163] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR M SPILLANE, MEMBER
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