CITATION : LAKES ACTION GROUP ASSOCIATION (INCORPORATED) and SHIRE OF NORTHAM & ANOR [2005] WASAT 185

BETWEEN : LAKES ACTION GROUP ASSOCIATION (INCORPORATED)

Ministerial referral of representations under Town Planning and Development Act 1928 (WA), s 18(2a) to Tribunal for report and recommendations - Whether first respondent had failed to enforce its town planning scheme - Whether planning approval granted for a quarry

State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA)

State Administrative Tribunal Act 2004 (WA)

Town Planning and Development Act 1928 (WA), s 18(2a)

Lakes Action Group Association (Incorporated) v Shire of Northam and Another [2004] WATPAT 195

Lakes Action Group Association (Incorporated) v Shire of Northam and Another [2005] WASAT 8

1 In January 2004, the Lakes Action Group Association (Inc) complained to the Minister of Planning and Infrastructure that the Shire of Northam had failed to enforce its town planning scheme. Its specific complaint was that the Shire was permitting BCG (Australia) Pty Ltd to operate a quarry without planning approval.

2 The Minister asked the Tribunal to investigate the complaint and report. The Tribunal conducted a hearing and has concluded that planning approval had been given for the quarry and accordingly recommends to the Minister that no further action be taken.

3 BGC (Australia) Pty Ltd (the second respondent) operates a quarry within the Shire of Northam. It has done so since mid-1990. In January 2004, Mr Michael Reeves wrote on behalf of Lakes Action Group Association (Inc) ("the applicant") to the Minister for Planning and Infrastructure (the Minister). His letter asserted that the quarry was operating without the requisite approval under the Shire of Northam Town Planning Scheme (No 2) (TPS2 or Scheme), and requested that that assertion be treated as a representation pursuant to s 18(2) of the Town Planning and Development Act 1928 (WA) (TPD Act). The Minister took advice on the representation from the State Solicitor's Office, and by letter dated 5 October 2004, referred the applicant's representation and the letter of advice from the State Solicitor's Office to the Town Planning Appeal Tribunal pursuant to s 18(2a) of the TPD Act. The functions of the Town Planning Appeal Tribunal were assumed by the State Administrative Tribunal (Tribunal) upon the enactment of the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA) and the State Administrative Tribunal Act 2004 (WA) on 1 January 2005.

4 Section 18(2a) of the TPD Act requires this Tribunal to make a report and recommendations to the Minister in relation to the representation. This is that report.

5 The scope of this report has been the subject of two earlier decisions, one by the former President of the Town Planning Appeal Tribunal (Lakes Action Group Association (Incorporated) v Shire of Northam and Another [2004] WATPAT 195) and one by this Tribunal (Lakes Action Group Association (Incorporated) v Shire of Northam and Another [2005] WASAT 8).

6 As both of those earlier decisions determine, the scope of this report is to address the representation made by the applicant, namely, whether or not the use of the quarry by the second respondent was or was not the subject of an approval under TPS 2.

7 It was common ground between the parties that the proposed quarry required both planning approval under TPS 2 and an extractive industry licence under the Shire of Northam By-laws Relating to Extractive Industries (the By-laws).

"Every application for planning approval shall be in writing addressed to the Shire Clerk and shall be accompanied by such plans and other information as is required by the Scheme or which may be necessary to enable Council to gain a complete understanding of the proposed development, including a site plan showing the location of all building and all works proposed."

9 On 28 March 1990, a company called Merman Pty Ltd (Merman) wrote to the Shire Clerk of the first respondent. The letter advised that Merman "wishes to proceed with the development of a quarry on the property known as Koobeja (Lot 1881 Great Southern Highway)". The letter attached drawings showing the location of the quarry, pit design access road details, plant and stock pile areas.

10 Lot 1881 is located in a Rural Zone 3 under TPS 2. The proposed quarry fell within the definition of "Industry Extractive" under the Scheme. An "Industry Extractive" was an "AA" use in a Rural Zone 3, that is, "a use that is not permitted unless Planning Approval is granted by the Council".

11 Mr Alan John Middleton, the Chief Executive Officer of the Shire of Northam, is, and was at the relevant time, responsible for advising the Council of the first respondent on town planning matters. He caused the letter of 28 March 1990 from Merman to be referred to the Council's Works Committee and to the Town Planning Committee on 30 March 1990. The Works Committee resolved that "Merman Pty Ltd be advised Council has no objection to the quarry being established on Koobeja, Lot 1881, as per the plans submitted". The Works Committee also resolved that the applicant should be advised to seek approval from the Department of Conservation and Land Management and the Water Authority of Western Australia, and resolved that the proposal should be referred to the Environmental Protection Authority for comment.

12 The Town Planning Committee resolved that the "application from Merman Pty Ltd be supported and the applicant be advised of the requirements to obtain approval from the Water Authority of Western Australia, Department of Conservation and Land Management and Environmental Protection authority".

13 At its meeting on 6 April 1990, the Council of the first respondent adopted the recommendations of both the Works Committee and the Town Planning Committee in relation to Merman's proposal.

14 On 10 April 1990, Merman again wrote to the first respondent. The letter submitted what it described as "an alternate application for an extraction permit on the northern part of the property known as Koobeja (Lot 7, Part 1881) Great Southern Highway". The letter explained that Merman proposed to operate from "the Southern Site", being the site identified in the letter and plans submitted on 28 March 1990. It foreshadowed difficulties with that proposal from the West Australian Water Authority because the proposed quarry was located within the Mundaring Weir catchment area. The alternative was proposed because it was outside of the catchment area. The letter explained the proposed operation of the alternate site, and again attached drawings as to the location, pit design, access road details, plant and stock pile areas.

15 On 26 April 1990, Mr Middleton wrote to Merman advising it of the Council resolution of 6 April 1990. On the same day, he referred the proposal to the Environmental Protection Authority.

16 The following day, 27 April 1990, the Works Committee considered the proposed alternative location of the quarry suggested in Merman's letter of 10 April 1990. Mr Middleton took the view that it was not necessary to refer the matter again to the Town Planning Committee because it had already examined the proposal for a quarry on the lot and made its recommendation to the Council. The Works Committee resolved that "approval be granted to Merman to operate the quarry on Koobeja (Lot 7, Part 1881)". On 4 May 1990, the Council resolved to adopt the Works Committee recommendation. That resolution was conveyed to Merman by letter dated 21 May 1990 advising that "Council has indicated that it has no objection to an Extractive Industry commencing on the northern part of the property known as Koobeja location Pt 1881 lot 7, Great Southern Highway. This approval is subject to an application for licence being made under the Council's Extractive Industry By-laws and detailed contour maps and reclamation works being detailed together with the necessary bonds being deposited to ensure that rehabilitation work is carried out."

17 On 29 May 1990, an application under the By-laws was received by the first respondent, and an Extractive Industry licence was issued to Merman on 7 June 1990.

18 Although the papers do not make clear the relationship between the second respondent in these proceedings and Merman, there was no issue that the second respondent is entitled to the benefit of any approvals or licences granted to Merman.

19 The representation made to the Minister by the applicant which is the subject of this report is that the first respondent has failed to enforce the provisions of its town planning scheme by permitting the continued use of Lot 1881 as a quarry when that use has not been approved pursuant to TPS 2. The applicant contends that the resolution of 4 May 1990 adopting the Works Committee's recommendation that "approval be granted to Merman to operate a quarry on Koobeja Lot Location 1881", and the letter to Merman of 21 May 1990 conveying the substance of that resolution, do not constitute an approval for the purposes of TPS 2.

20 In making that submission, the applicant's counsel submitted that while the first respondent "really thought it was giving an approval" or "purported to approve the quarry", by the resolution and the letter of 21 May 2005, no actual approval was given. Rather, the applicant suggests that what was done was to grant an Extractive Industry licence. We disagree.

21 The letter of 21 May 1990 contains the expression "this approval". It is an approval which the letter says is "subject to an application for a licence being made under Council's Extractive Industry By-laws". It is inconsistent with the express terms of the letter to treat the letter as if it was an Extractive Industry By-laws licence. The only other approval required by the first respondent was an approval under TPS 2. That is precisely how both the first respondent and Merman treated the letter (in its letter dated 28 May 1990 submitting its application under the Extractive Industry By-Laws, Merman said: "Thank you for your letter approving the development of a quarry on the Koobeja Property"). In its terms, the first respondent's letter of 21 May 1990 gave development approval to the establishment of a quarry at the location upon which it is now established and operating.

22 The applicant complains that there was insufficient information before the Council for it to give an approval for the establishment of the quarry on the northern portion of the lot. If that were so, there may be arguments as to the validity of the approval. The previous decisions of the former Town Planning Appeal Tribunal and this Tribunal dealing with the scope of the enquiry make it clear that the question of validity of the approval is not one with which we are concerned in these proceedings. In any event, however, we are not satisfied that the materials and information before the Works Committee at its meeting on 27 April 1990, and in turn the Council at its meeting on 4 May 1990, was insufficient, from a planning perspective, for Council to gain a complete understanding of the proposed development. The Works Committee had before it plans showing relevant aspects of the proposed quarry. When it considered the modified application on 27 April 1990, it was clear that what was proposed was a quarry on the northern part of the lot, outside the catchment area. The letter of 10 April 1990 from Merman made that clear, and the changed location was the very reason the matter was brought before the Works Committee a second time. That knowledge must have been imputed to the Council when it adopted the Works Committee's recommendation.

23 The first respondent has not failed to enforce the provisions of the Scheme as asserted by the applicant. Accordingly, the Tribunal recommends to the Minister that no action is necessary in relation to the applicant's representation.

I certify that this and the preceding [23] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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