At the hearing before the Tribunal, it was agreed amongst the experts that the proposed development was a superior proposal to the existing approval in lessening both the noise and dust impacts on the amenity of the locality.

Council had referred the matter to the Environmental Protection Authority (EPA) and the Tribunal awaited that determination before providing its decision. The EPA had determined not to assess the proposal, and although the proposal raised a number of environmental issues, the EPA considered that the likely environmental effects of the proposal were not so significant as to warrant formal assessment. The EPA was of the view that the potential impacts of the proposal could be adequately managed by the proponent's mitigation and management measures as well as other regulatory processes. The decision of the EPA was appealed to the Minister for Environment who dismissed that appeal.

On the evidence before it, the Tribunal was satisfied that the application should be approved as the conditions and regulatory framework could manage any amenity impacts even if the unexpected occurred, and the average daily output of the plant exceeded 135m³/day or the number of times the plant would produce 500m³/days per year increases.

The Tribunal found that the correct and preferable decision was that the proposed development, subject to conditions, was consistent with orderly and proper planning and approval subject to conditions was granted.

Greenelm Pty Ltd and City of Swan [2010] WASAT 142

Lavenda Pty Ltd & Anor and Town of Vincent [2006] WASAT 374

Ransberg and City of Bayswater [2014] WASAT 12

Re City of Perth; ex parte Lord & Ors [2002] WASCA 254

Self Help Addiction Resource Centre Inc v Glen Eira City Council [2005] VCAT 2647; (2005) 145 LGERA 124

Woolworths and City of Joondalup [2009] WASAT 41

1 On 29 January 2015, Ransberg Pty Ltd (applicant) made a development application to the City of Bayswater (respondent or City) for planning approval for a modified design of a previously approved concrete batching plant (proposed development) situated at Lot 2 (Nos 277-279) Collier Road, Bayswater (subject site).

2 On 28 January 2014 the Tribunal, in Ransberg and City of Bayswater [2014] WASAT 12 (Ransberg and City of Bayswater), approved a development application for a concrete batching plant for the subject site subject to a number of conditions which included the management of dust and noise (existing approval). The existing approval has not been implemented.

3 The substantive difference between the existing approval and the proposed development is that the modified design provides for the majority of activities at the subject site which produce dust emissions to now occur within a roofed building which would be enclosed on two sides thereby substantially lessening the potential for dust emissions.

4 In a covering letter enclosing the development application to the respondent, WA Premix, on behalf of the applicant, in justification for redesigning the approved concrete batching plant, stated:

WA Premix is confident that the current approved design complies with all relevant environmental regulations and guidelines, and operating conditions imposed by the SAT. However, the operating conditions imposed are linked to background emission levels and the emissions by others, of which WA Premix has no control. With compliance requirements including the potential shut down of the plant this represents a significant risk to the operation.

Therefore to ensure a greater level of compliance, reducing the risk of plant shut down, and provide greater protections against any potential future regulatory changes and/or tightening of operating requirements, in August 2014 the WA Premix board issued a directive to investigate whether the plant's design could be further improved in the areas of operational efficiency and environmental performance. To achieve this, the board has agreed to substantially increase the budget for the project from $1.5 million to $6 million ...

The amended design presented for the City's consideration incorporates the findings of this research and represents the most efficient and highest environmental management plant possible within the constraints of the site and town planning framework whilst maintaining an efficient and profitable plant design. The proposed amendment does not involve any changes to the throughput or capacity of the plant.

5 The respondent's Planning and Development Services & Administration and Community Services Committee recommended approval of the development application subject to conditions. On 26 May 2015, the Council of the respondent resolved to refuse the application as it was of the opinion that the proposed development should be refused due to objections from surrounding residents regarding major health concerns from noise and dust. The resolution of Council of the respondent stated:

1. Notes the amended plans dated 29 January 2015.
2. Reiterates its previous decision of 28 June 2011 and resolves to refuse the amended plans dated 29 January 2015 for the proposed concrete batching plant at Lot 2, Nos. 277-279 Collier Road, Bayswater, on the following grounds:

(a) The proposed concrete batching plant is not an appropriate use on the subject site, particularly given it is a noxious industry and its proximity to an established residential area.

(b) The proposed use will unduly impact on the amenity of the locality.

(c) The proposed use is not consistent with proper and orderly planning of the locality.

(d) The separation distance between the proposed development and residential dwellings is insufficient and will result in a significant reduction in amenity due to the externalities of the development, including poor visual appearance and undue dust and noise impacts.

(e) The proposed development does not comply with the height requirements of the City's Town Planning Scheme No. 24.

(f) The proposed variation to the scheme height provisions will unduly affect the amenity of the locality.

(g) The proposed variation to the scheme height provisions is not consistent with the proper and orderly planning of the locality.

(h) Consideration of the considerable objections received in relation to the proposed concrete batching plant.

6 On 22 June 2015, the applicant sought a review in the Tribunal of the respondent's refusal under s 252(1)(c)(i) of the Planning and Development Act 2005 (WA) (PD Act).

7 On 22 September 2015, the Council of the respondent reconsidered its decision pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). Despite professional advice that the use of the subject site for a concrete batching plant had already been approved by the Tribunal in Ransberg and City of Bayswater with the existing approval setting a benchmark, and that the proposed development will have a lesser impact than the existing approval, the Council resolved to maintain its refusal of the application.

8 On or about 20 October 2015, the respondent referred the proposed development to the Environmental Protection Authority (EPA) pursuant to s 8 of the Environmental Protection Act 1986 (WA) (EP Act). The Tribunal understands that other third parties had also referred the proposed development to the EPA on or about 6 October 2015.

9 On 22 December 2015, at the conclusion of the hearing of evidence in the matter, the Tribunal adjourned to consider the effect of s 41(2) of the EP Act regarding the delivery of the Tribunal's decision. On 18 January 2015, the Tribunal provided oral reasons of the Tribunal's determination that, in following the process set out in s 41 of the EP Act, the Tribunal should and would await the outcome of the EP Act referral process before delivering its decision in this matter.

10 On 21 March 2016, the EPA issued a notice pursuant to s 39A(3) of the EP Act of its decision not to assess the proposal. That decision of the EPA included 'Public Advice' pursuant to s 39A(7) of the EP Act. Section 39A(7) provides that, if the EPA decides not to assess a proposal, it may nevertheless give advice and make recommendations on the environmental aspects of the proposal to the proponent or any other relevant person or authority. In the present case that advice included the following:

In considering the potential direct and indirect impacts of the proposal on Human Health, Air Quality and Atmospheric Gases, and Amenity the EPA has had particular regard to:

• the use of a 'wet-mix' batching plant;
• the mitigation strategies proposed by the proponent to avoid and minimise impacts, for example:

- noise cladding and/or locating 'noisy' areas below ground;

- restricting deliveries to between 7am and 7pm; and

- real-time dust monitoring linked to a real-time alert system.

• the air quality impact assessment and additional modelling indicating the proposal would comply with the current relevant ambient air quality criteria; and
• In summary, although the proposal raises a number of environmental issues, the EPA considers that the likely environmental effects of the proposal are not so significant as to warrant formal assessment. The EPA is of the view that the potential impacts of the proposal can be adequately managed by the proponent's mitigation and management measures.

It is also noted that other statutory processes can be used to regulate and implement the mitigation and management measures in the referral documentation, including the requirement to construct and operate the concrete batching plant through a Part V Division 3 Works Approval and Registration and planning approvals.

11 On 1 April 2016, the respondent advised the Tribunal that it would be exercising a right to appeal to the Minister for Environment to consider directing the EPA to reconsider its decision or conduct a formal assessment. The Tribunal understands that the respondent was one of four who appealed the decision of the EPA not to assess the proposed development. One of those appellants represented 400 signatories.

12 On or about 2 March 2016, the applicant, noting that the process under the EP Act may take some time, made the decision to lodge an application with the respondent to extend the time for substantial commencement of the existing approval. That application was refused by the respondent on 9 May 2016. The applicant sought a review of that decision in this Tribunal. On 13 July 2016, the Tribunal (differently constituted), extended the period within which the concrete batching plant for the existing approval must be substantially commenced to 15 July 2017.

13 In a report dated August 2016, the Appeals Convenor reported to the Minister for Environment regarding the appeals and recommended that the appeals be dismissed. In the summary of the report, the Appeals Convenor stated:

Having regard for the issues raised on appeal, the advice from the EPA that potential impacts arising from the proposal can be regulated through other statutory decision-making processes and noting that the development approval issued by SAT contains detailed conditions relating to dust, it is considered that the EPA's decision to not formally assess the proposal, based on the conclusion that the impacts to human health, air quality and amenity will not be so significant to require a formal assessment, is appropriate given the information available.

14 On 19 August 2016, the Minister for Environment dismissed the appeals against the EPA's decision not to assess the proposed development. The decision of the Minister included the following:

In relation to the capacity of the plant, the proposal considered by the EPA is for an average daily production of 135 m³ per day, with the possibility of producing up to 500 m³ per day, up to 2 days per year. While the Minister noted appellants' submissions that the plant has the capacity to produce much higher than the amount indicated by the proponent, the proposal referred to the EPA does not contemplate any production over 500 m³ per day, and the EPA is required to assess the proposal as referred. Should the proponent alter its plans, and wish to increase production beyond what it has put forward, it will need to ensure that such changes comply with relevant statutory obligations, including any applicable requirements under planning legislation and the EP Act.

...

In relation to concerns raised in respect to dust, the proponent's information indicates that admissions of particulate matter of 10 micrometres in diameter (PM10) may exceed the National Environmental Protection Measure (NEPM) for ambient air quality on two occasions per year, based on its stated maximum production of 500 m³ per day. Although this prediction is above the updated NEPM standard of zero exceedances per annum, the EPA advised that the predicted exceedances were unlikely to occur, and in any event, were less than 2% above the standard of 50 µg/m³. As such, the EPA expects the proposal will meet relevant criteria when the plant is in operation. In its public advice given at the time of determining not to assess the proposal, the EPA also noted that the plant would be subject to regulation by the Department of Environmental Regulation (DER) through consideration of the works approval.

In addition, the Minister noted that the proposal will be subject to the Environmental Protection (Concrete Batching and Cement Product Manufacturing) Regulations 1998 (Concrete Batching Regulations), which sets out a number of measures for controlling dust emissions with this type of industry. In relation to cement dust in particular, the Regulations require cement to be stored in bags or silos, the latter of which is required to be fitted with an air cleaning system through which all air from the silos must pass before being discharged to the environment. The Regulations also provide that no visible dust escapes from the premises or onto any place with the public has access. These controls are in addition to occupational health and safety requirements applicable to the site, including requirements for the proponent to ensure it complies with the relevant Safety Data Sheets in handling cement and other materials associated with the manufacture of concrete and cement.

...

Taking into account the information available to him, including the level of local interest, the Minister considered the EPA was justified in determining not to assess the proposal. The Minister noted in particular that the proposal will need to meet detailed conditions relating to dust in the SAT approval, as well as meet statutory requirements under the Concrete Batching and Noise Regulations. It follows that the Minister dismissed the appeals. DER will consider any application for a works approval for the site, and in assessing the proposal, the Minister anticipated that DER will take into account relevant environmental issues, including the issues raised in this appeal.

15 At the request of the parties, the Tribunal allowed a further short hearing on 24 October 2016 so that additional evidence could be provided and submissions made regarding any matters that had arisen since the Tribunal completed hearing the matter and reserved its decision on 18 January 2016.

16 The following facts were agreed between the parties regarding the subject site:

1. it is 12,324m² in area;
2. it is currently vacant;

1. it is located on the outer perimeter of a 'General Industry' zone under the City of Bayswater Town Planning Scheme No 24 (TPS 24 or Scheme);

1. it is bordered to the north by Joan Rycroft Reserve which includes a playground;
2. beyond Joan Rycroft Reserve is a residential area comprising around 30 dwellings which are located within a 300 metre radius of the rear of the subject site; and
3. lots adjoining the subject site to the east and west, and to the south across Collier Road, are also zoned General Industry.

17 Relevant to the issues in dispute in this matter, the proposed development includes the following features:

1. trucks delivering sand and aggregate would predominantly unload inside a proposed roofed building which would be enclosed on two sides (roofed building);
2. trucks would unload into below-ground hoppers covered by a metal grate in the roofed building;

1. sand and aggregate would be conveyed from the outlet of the hopper onto a conveyer belt and deposited into storage bins located within the roofed building;

1. when required, the sand and aggregate would be further conveyed from the storage bins via the conveyer belt runs to the mixing unit which is an item of fixed plant;
2. the mixing unit would make the end product, a concrete slurry, by a wet-mix process involving the mixing of cement dust (which is stored on site in silos), aggregate, sand, water and other minor additives;
3. the concrete slurry would be pumped into agitator trucks which would then depart the subject site;
4. the conveyer belt runs, mixing unit and the area within which the concrete slurry is to be pumped into agitator trucks are all contained within the roofed building;
5. in the event of the delivery of sand and aggregate beyond the capacity of the storage bins enclosed in the roofed building, additional storage capacity would be unloaded into back-up aggregate storage bins which are located outside, walled with concrete on three sides and partly roofed; and
6. when material from the outdoor back-up aggregate storage bins is required for use it would be moved by a front­end loader.

18 The subject site is located in a 'General Industry' zone under TPS 24. The proposed development use class is classified under TPS 24 as a 'Noxious Industry' which is designated as a 'D' use which means it is a discretionary use within the General Industry zone. Appendix 1 ­ Interpretations of TPS 24 states:

Industry ­ Noxious means an industry which is subject to licensing as 'prescribed Premises' under the Environmental Protection Act 1986 (as amended).

19 Regulation 4 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regulations) stipulates that Sch 2 of the Regulations are 'deemed provisions' in all local planning schemes whether or not they are incorporated into the local planning scheme text (Deemed Provisions).

20 Clause 67 of the Deemed Provisions provides that, in considering an application, the local government (and the Tribunal standing in the shoes of local government) is to have due regard to a number of specific matters listed in cl 67 to the extent that those matters are considered relevant. Whilst the matters listed in cl 3.6 of TPS 24 are consistent with the Deemed Provisions, the Tribunal notes that the Deemed Provisions prevail as to the matters to have due regard and the following provisions of cl 67 are considered relevant:

(a) the aims and provisions of this Scheme and any other local planning scheme operating within the Scheme area;

...

(m) the compatibility of the development with its setting including the relationship of the development to development on adjoining land or on other land in the locality including but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the development;

(n) the amenity of the locality including the following ­

...

(r) the suitability of the land for the development taking into account the possible risk to human health or safety;

...

(w) the history of the site where the development is to be located;

...

(y) any submissions received on the application[.]

21 Clause 1.6(b) of TPS 24 provides that the general objectives of the Scheme are:

To secure the amenity, health and convenience of the Scheme Area and the inhabitants thereof

22 Both TPS 24 Appendix 1 and the Deemed Provisions in Sch 2 of the LPS Regulations define 'amenity' as:

... means all those factors which combine to form the character of an area and include the present and likely future amenity[.]

23 Regulations 3 and 4 of the Environmental Protection (Concrete Batching and Cement Product Manufacturing) Regulations 1998 (WA) (concrete batching regulations) provide:

(1) An operator must not carry on concrete batching or cement product manufacturing unless it is carried on in such a manner that no visible dust escapes from the premises (or if there are no defined boundaries to the premises, no such dust escapes onto any place to which the public has access).

(2) An operator must immediately clean up any material spilt during concrete batching or cement product manufacturing.

(1) An operator must ensure that all parts of the premises to which vehicles have access ­

(ii) treated with water or surfactants as often as is necessary;

(b) are swept, hosed or otherwise cleared of any loose aggregate, sand, cement, concrete or other material as often as is necessary,

to prevent loose material adhering to vehicles and to minimize dust.

24 The issue for determination in this matter is whether the proposed development is consistent with orderly and proper planning, having regard to:

1. the compatibility of the proposed development within its setting;
2. the preservation of the amenity of the locality;

1. any relevant submission received on the proposed development;

1. securing the amenity, health and convenience of the Scheme area and its inhabitants; and
2. the history of the subject site.

25 It was common ground between the parties that the previous determination of the Tribunal in Ransberg and City of Bayswater, whilst relevant, did not determine the present matter before the Tribunal. It was also common ground that the proposed development was not an amendment to the existing approval and should be determined afresh on its merits as a new proposal. Whilst the Tribunal agrees with this statement of principle, it is noted that the parties and much of their evidence, on an almost unavoidable basis, approached the task of assessing the proposed development as a comparison with the existing approval.

26 The applicant submits that the proposed development is consistent with orderly and proper planning, is capable of being approved and should be approved subject to conditions which manage potential amenity issues.

27 The applicant submits that the existing approval should be given considerable weight given that it was considered by the Tribunal in the context of the same planning framework and the applicant can implement that existing approval should it wish to do so in circumstances where the proposed development is adopting best practice internationally and is overwhelmingly superior from a planning and environmental perspective.

28 The applicant further submits that the proposed development will have less off­site amenity impacts than the existing approval, particularly in relation to dust emissions. Moreover, the applicant submits that the proposed development produces a better amenity outcome for the community and significantly reduces the potential that the proposed development would be shut down if and when emission targets are exceeded.

29 The respondent concedes that the proposed development is superior to the existing approval in the sense that it uses improved technology, is a more efficient plant and is largely enclosed, therefore the potential for producing dust emissions is reduced. However, the respondent submits that there are proper and reasonable grounds for the Tribunal to reach a different conclusion than the Tribunal did previously when it granted the existing approval.

30 The respondent submits that the applicant has not demonstrated that the potentially adverse amenity impacts from dust, noise and traffic can be adequately managed. The respondent submits further that it cannot be assumed that the existing approval will be built and that this case was not concerned with the 'lesser of two evils'.

31 The respondent challenges by way of cross­examination and submission, not expert evidence, the assumptions of the noise and dust modelling provided by the applicant and criticises the modelling for not properly taking account of the 'worst case scenario'.

32 The respondent submits that, whilst the proposed development is a relatively small contributor to dust emissions in the locality, it is an incremental contributor to a situation that is already problematic.

33 At the hearing, the respondent relied on the National Environment Protection (Ambient Air Quality) Measure (NEPM) relating to ambient air quality being revised to a lower figure (that is, a higher standard for ambient air quality) and submitted that the proposed development should not be approved as it will cause the expected proposed new NEPM standard to be exceeded. Whilst the Tribunal awaited the outcome of the appeal by the respondent and others to the Minister for Environment, effective from 3 February 2016 the NEPM standard was formally varied (new NEPM). The new NEPM was the subject of further evidence and submissions on 24 October 2016 and is discussed later in these reasons.

34 The applicant provided expert evidence from Mr Robert Sklarski in relation to town planning and Mr Gary Graham, an environmental consultant with a specialty in air quality matters, in relation to dust emissions. The applicant also provided factual evidence concerning the proposed development and the rationale for the amended design from both Mr Roger Stephens, Planning and Environment Manager, and Mr Walter Lukic, General Manager for WA Limestone Pty Ltd (WA Limestone).

35 The applicant also provided, attached to the first witness statement of Mr Lukic, a further expert report concerning noise, namely an acoustic assessment report dated October 2014 provided by Herring Storer Acoustics. The report notes that the proposed development is different from other forms of concrete plants in that it is a 'wet' plant and that means it is generally quieter than a 'dry' plant. Herring Storer Acoustics notes that the batching plant component is to be fully enclosed with 60 millimetre insulation panels. The report concludes that the proposed development would be compliant with the relevant noise regulations.

36 Mr Lukic provided a supplementary witness statement for the Tribunal's additional hearing day on 24 October 2016 in order to update the Tribunal on events since it had reserved its decision on 18 January 2016. Mr Graham also provided an affidavit regarding the new NEPM.

37 The respondent provided expert evidence from Ms Patricia Morgan in relation to town planning and Dr Peter Forster, an air pollution and industrial chemist process scientist with extensive experience in matters of air quality and process emissions, in relation to dust emissions.

38 The applicant also provided evidence from the Mayor of Bayswater, Mr Barry McKenna, and Councillor Ms Sally Palmer, as well as nearby residents, Mr James Petrovic and Mr Barry Kramer, and Mr Edward Broad who operates Able Westchem, a manufacturing business in the General Industry zone, which adjoins the proposed development.

39 Even though the respondent raised issues regarding noise and traffic, the respondent did not provide any expert evidence on these matters.

40 The respondent provided a supplementary witness statement for the Tribunal's additional hearing day on 24 October 2016 from Dr Forster regarding the new NEPM. The respondent also provided additional information regarding Able Westchem that arose since the Tribunal had reserved its decision on 18 January 2016 from Mr Steven De Piazzi, the acting senior planning officer employed by the respondent.

41 Mr Walter Lukic is the General Manager for WA Limestone which specialises in the supply and delivery of construction materials. Mr Lukic is a qualified civil engineer and has worked in the concrete and aggregate industry in Perth for 30 years.

42 WA Limestone has designed, constructed and currently operates two concrete batching plants at Mandurah and Bibra Lake. WA Limestone is currently commissioning a third concrete plant in Neerabup located in the City of Wanneroo. The directors of WA Limestone are also the directors of the applicant. The applicant owns the subject site.

43 The estimated cost of the existing approved development is $1.5 million and the estimated cost of the proposed development is $6 million. Mr Lukic gave evidence that the applicant's directors are conservative and 'really risk averse'. Thus, even though the modelling and science concludes that the existing approval will involve minimal disruption to the business due to the risk of operations having to cease if dust limits are exceeded, the directors prefer the proposed development which involves a significant improvement to the risk factors.

44 Mr Lukic was asked in examination in chief as to the applicant's position regarding the implementation of the existing approval if the Tribunal did not approve the proposed development:

It's not our preferred option to do that but if the amended application is refused, we will be proceeding to implement the plant design that has been approved. In fact, we have made a start on that by procuring the front of that plant which is common to both designs. So our positon is that we will be proceeding with the construction of a plant that we have approval for which case that may be.

(T:70; 15.12.15)

45 Mr Lukic, when cross­examined further as to the likelihood of the existing approval being implemented if the Tribunal did not approve the proposed development in circumstances where the directors are so risk averse, stated:

I can assure you we will go ahead with this plant because we have built other plants before and the reality is and practicality is we have had very little problems operating our two plants in Mandurah and Bibra Lake and another one that we're building in the City of Wanneroo. We've had little trouble with all those installations over the last 11 years, so we're pretty confident we can do the job.

(T:75; 15.12.15)

46 Mr Lukic gave evidence regarding the theoretical as well as expected daily and annual capacity amounts for the proposed development as contained in the project description in the application for works approval that has been lodged with the Department of Environmental Regulation (DER).

47 He explained that even though the plant design for the proposed development is capable of a production rate of 125m³/hour with bursts of 150m³/hour, taking into account matters such as restriction of operating hours, plant maintenance requirements and the ability to resupply with concrete constituent materials, the theoretical maximum production capacity is 500m³/day or 156,000m³/year.

48 Further, he stated that those amounts are an over estimation as the dominant constraint is market demand which governs not only the quantity of concrete but also the rate at which it is produced throughout any given day. Therefore, based on experience of other plants, the expected daily capacity of the proposed development is 135m³/day or 42,000m³/year. Mr Lukic also provided evidence that, based on experience at the other plants, occasionally the applicant would produce 500m³/day. In his recollection, they had exceeded 500m³/day only twice in the last three years.

49 Mr Lukic also provided evidence as to the likelihood of the daily production rates regularly reaching 500m³/day or even exceeding that amount. For instance, Mr Lukic was asked if a customer placed a large order whether the proposed development could produce 800m³/day and he stated that it could be done but this has not happened yet. His experience was that a 'great day' was 500m³ as this was all a customer could handle and still get home at a reasonable time. Mr Lukic agreed with the proposition in cross­examination that the applicant would like to do 300 good days a year and said further 'that's how we did the dust modelling, I think' (T:84; 15.12.15).

50 Mr Lukic was questioned in cross­examination as to why, if the expected capacity was about 40,000m³/year, the applicant will not agree to a condition limiting it to that amount:

Well, because we want to grow our business and we've got conditions that are, as long as we comply with those conditions, why shouldn't we be allowed to do more metres to suit the market?---We want to have that capacity if it's called upon.

(T:85; 15.12.15)

51 The supplementary witness statement of Mr Lukic dated 15 September 2016 reiterated his previous evidence that the applicant intends to implement the existing approval should the proposed development be refused by the Tribunal.

52 Mr Sklarski was of the opinion in relation to the proposed development that it is consistent with orderly and proper planning for the following reasons:

1. it is an appropriate use on the subject site and is consistent with the General Industry zone;
2. the potential for adverse off­site impacts (principally noise and dust) have been thoroughly investigated by qualified and experienced technical consultants;

1. the design and manner of operation and the implementation of a range of mitigation measures, which can be controlled through the existing regulatory framework, will not have an adverse impact on the amenity of surrounding land uses or the locality;

1. there is sufficient separation distance between the proposed development and residential dwellings; and
2. enclosure of the concrete batching plant will reduce dust and noise emissions from the subject site in comparison with the existing approval.

53 Ms Morgan acknowledges that the existing approval, subject to obtaining a works approval from the DER, could be implemented. Ms Morgan was of the opinion that the proposed development appears at face value to be an improvement on the existing approval in that it significantly reduces the risk of negative amenity impacts. However, Ms Morgan is of the view that the location of the proposed development is undesirable as it is:

1. immediately adjacent to a recreation reserve and industrial premises that are sensitive to dust;
2. close to a residential area and well within the generic buffer for such uses; and

1. in an industrial area where air quality is already problematic.

54 Ms Morgan also stated that there is an increased scope for production, the impacts of which have not been modelled. If approval of the proposed development is contemplated by the Tribunal, Ms Morgan recommends a condition limiting production would be reasonable as the higher production rates have not been modelled. Ms Morgan is of the view that if the applicant desires to increase production in the future, a new planning application accompanied by evidence which demonstrates an ability to operate at the higher level without negatively impacting on amenity would be consistent with orderly and proper planning.

55 Mr Sklarski and Ms Morgan gave their oral evidence concurrently and were cross­examined on their opinions. Both agree that the three most likely external impacts of the proposed development were noise, dust and traffic. Both also agree that, from a planning perspective, a business such as that operated by Mr Broad, which operates in the General Industry zone where noxious industries are permitted, cannot reasonably expect the same level of amenity as other zones such as light industry or residential. Ms Morgan agreed with the proposition that the proposed conditions to control the operation of the plant were rigorous and Ms Morgan stated further that she considered the proposed conditions to be detailed and comprehensive.

56 Mr Graham and Dr Forster prepared a comprehensive joint statement of expert witnesses which includes the following:

1. The opinion of Dr Forster minuted by the respondent in its Ordinary Council Minutes of 22 September 2015 where he has concluded that 'there now appears no impediment from a dust risk perspective to refuse the application for the proposed batching plant' is predicated on the effective implementation of the proposed dust control measures at all times.
2. Dr Forster stated that he is of the opinion that the modelling performed on behalf of the applicant is of an acceptable standard and the outcomes can be relied upon to inform potential risk to human health.

1. In relation to the compliance concern raised by Dr Forster based on an observation he made on a visit to the applicant's Mandurah facility, Mr Graham noted that the Mandurah plant is not directly comparable to the proposed development, Mandurah uses a 10 year old dry­mix process whereas the proposed development will use a modern wet-mix technology.

1. Both agreed that the operation of the proposed development needs to be performed with suitable and adequate dust control measures, including but not limited to frequent sweeping and wetting of hard standing areas and the operation of water sprays on the temporary overflow material storage bins.
2. Both agreed that the technology for the proposed development is superior to the existing approval in respect of environmental performance and that acceptable dust emission outcomes can be achieved subject to correct operation of the equipment and maintenance of equipment being carried out at appropriate intervals.
3. Both agreed that independent auditing of dust controls, monitoring systems and monitoring results should be carried out on a periodic basis.
4. Mr Graham is of the view that, in regard to environmental performance, the throughput of the proposed development is not the defining metric. Throughputs of 135m³/day and 500m³/day are notional values relating to average and peak conditions; however, the demonstration of compliance with the air quality criteria is the relevant compliance standard, not the throughput which is unrelated to human health. Dr Forster considers that there is an element of uncertainty in predictions of dust impacts in the event that the applicant has a need to operate for a period of time above the average and peak rates.

57 Dr Forster and Mr Graham gave their oral evidence concurrently and were cross­examined on their opinions. Mr Graham provided further explanation to assist the Tribunal in understanding the assumptions in the modelling, in particular Tables 23 to 26. Dr Forster and Mr Graham also provided further written evidence to assist the Tribunal's consideration of the new NEPM.

58 Aspects of the new NEPM that are relevant to this matter can be summarised briefly as follows:

1. introduction of a new annual average standard for particles as PM10 of 25 micrograms per cubic metre;
2. the amendment of the 24 hour average standard for particles as PM10, in that while the 50 micrograms per cubic metre maximum is maintained, the days of permitted exceedance per year is deleted; and

1. a new definition of 'exceptional event' is added, and clause 18 is amended to include new subclauses (3A) to (3D).

59 At the time of the hearing of this matter in December 2015, the ambient air NEPM criterion allowed up to five days of exceedances in a year. The new NEPM introduced following the hearing has deleted reference to five days of permitted exceedances. The levels said to reach an exceedance derive from the background level (that is, the contribution from the surrounding area that is independent of the proposed development) added to the incremental contribution from the proposed development. Both the expected average day of 135m³ and a 'good day' of 500m³ are modelled across a year. The model predicts that operation of the existing approval at 500m³/day would exceed five times in a year and at 135m³/day would exceed twice. On the other hand, the model predicts that operation of the proposed development at 500m³/day would exceed two times in a year and at 135m³/day would never exceed.

60 Mr Graham explained that the removal of the allowance for five days of exceedances per year in the new NEPM was replaced with a regime which now provides that, for the purpose of reporting compliance, monitoring data that has been determined as being directly associated with an 'exceptional event' is excluded. The new NEPM defines 'exceptional event' as meaning:

[A] fire or dust occurrence that adversely affects air quality at a particular location, and causes an exceedance of 1 day average standards in excess of normal historical fluctuations and background levels, and is directly related to: bushfire; jurisdiction authorised hazard reduction burning; or continental scale windblown dust.

61 Mr Graham stated that, based on his experience, and consistent with the views of the experts in the decision of the Tribunal in 2014 in Ransberg and City of Bayswater, the highest daily levels of particulates in the Perth region (the days on which 50 micrograms per cubic metre maximum is exceeded) are associated with those days on which 'exceptional events' occur, such as smoke from local or regional bushfires, or large-scale hazard reduction burning.

62 The modelling assumptions seek to be conservative by modelling the 'worst case scenario'. Of note, there is a further conservative or 'worst case' aspect to the modelling assumptions in that, whilst 500m³/day is modelled across a whole year, the expectation is that 500m³/day will only actually occur once or twice. Therefore, the predicted two exceedances would only potentially occur if the maximum background levels occur on the same day as the plant produces 500m³, which in the Tribunal's view is unlikely.

63 In his supplementary witness statement dated 16 September 2016, Mr Graham concluded that the modelling conducted had been based on an operational throughput without consideration of the proposed conditions of approval which would limit operations in circumstances that dust levels were elevated. When the development proposal is considered together with the proposed conditions, it is Mr Graham's opinion that the potential environmental impacts from the proposed development can be appropriately managed and there is no reason based on air quality constraints in the new NEPM that the proposed development should not be approved.

64 Dr Forster, in his supplementary witness statement dated 3 October 2016, confirmed the validity of Mr Graham's predictions. Dr Forster also stated that the highest concentrations of particulates are largely attributed to smoke emissions from bushfires and prescribed burns. Dr Forster again emphasised the significance of the burden imposed on the proposed development to ensure dust emission controls are maintained at all times to the levels of efficiency described by the applicant to accord with the predictions in the modelling.

65 The respondent submitted that an inference could be drawn that the applicant did not have any intention to proceed with the existing approval if the Tribunal did not approve the proposed development. This submission was based on the fact that the applicant had only sought works approval for the proposed development and not the existing approval that Mr Lukic said the applicant would proceed with if they were unsuccessful in these proceedings along with the risk to the operation of the business with the inferior existing approval.

66 The Tribunal considers that an equally competing inference could be drawn that the applicant was confident of getting approval for the proposed development as it was considered by all of the experts to be superior concerning the management of amenity issues such as noise and dust and the applicant did not wish to waste resources in seeking a works approval for the inferior existing approval if they did not need to. If the applicant was unsuccessful in obtaining approval for the proposed development, the applicant can simply put in an application for works approval for the existing approval.

67 Therefore, as there are equally available competing inferences that can be drawn and based on the Tribunal's findings in relation to the evidence of Mr Lukic below, the Tribunal considers that the inference that the respondent seeks is not reasonably open on the evidence.

68 The Tribunal finds that Mr Lukic was an impressive witness who provided evidence that was both reliable and credible. His evidence was clear, cogent, and candid. Therefore, the Tribunal accepts the evidence of Mr Lukic in its entirety. In particular, the Tribunal notes Mr Lukic provided evidence that the applicant intends to implement the existing approval if the proposed development is not approved. Indeed, the applicant already has on order the plant that is common to both proposals. These findings of fact distinguish the hypothetical scenario considered in Re City of Perth; ex parte Lord & Ors [2002] WASCA 254 at [41] - [42].

69 The Tribunal finds that the potential capacity of the proposed development is the same as the existing approval. In this regard, the Tribunal notes the evidence of Mr Lukic that the actual capacity is expected to average 135m³ per day and that occasionally, perhaps two or three times a year, capacity may be around 500m³ on a particular day.

70 The Tribunal also notes the evidence of Mr Lukic to the effect that the proposed development is a business, and when demand calls upon it do so, the applicant may at some time in the future, more often have days that exceed 500m³. However, this is only a possibility at this point in time, with no certainty as to any timeframe.

71 The applicant sought to convince the Tribunal that the correct and preferable decision is that the proposed development with conditions will not have an adverse impact on amenity, in particular noise, dust and traffic. In this regard, the applicant provided expert evidence concerning noise and dust emissions. The applicant submits that traffic issues can be managed with a condition requiring a traffic management plan to be approved by the respondent.

72 In contrast, it is noted that, whilst the respondent raised the issues of noise and traffic as reasons to refuse the proposed development, the respondent did not provide any expert evidence addressing those issues. Submissions by the respondent do not constitute evidence. The Tribunal understands the reasoning for the opinions expressed in the acoustic assessment report dated October 2014 provided by Herring Storer Acoustics. Without any expert evidence to challenge the noise report and absent any glaring error of fact or logic that is apparent to a non-expert, the Tribunal is of the view that the applicant's expert opinion and modelling as to noise impacts of the proposed development should be accepted. The Tribunal is further satisfied that a condition requiring a noise management plan can address any issues that may arise.

73 The respondent raised a concern or belief, via the resident objections, that residential streets may be used for what is commonly known as a 'rat run' rather than the preferred Collier Road and Tonkin Highway. The Tribunal is satisfied, if the Tribunal was to approve the proposed development, that this issue can be managed by the respondent in the traffic management plan provided for in the proposed conditions.

74 These proceedings are somewhat unusual in that, in matters that are material to the Tribunal's reasons for decision, where there are experts of corresponding expertise, there is very little to no disagreement amongst those experts.

75 Dr Forster was concerned by his observations at the Mandurah plant operated by the applicant that dust was generated from wheel movement and was not attended to whilst he was present. All the facts and circumstances surrounding that instance other than what Mr Graham observed are not adequately known by the Tribunal. The Tribunal considers that little significance can be attached to this evidence. If the Tribunal was to approve the proposed development, the Tribunal is of the view that the proposed condition in this matter involving a truck washdown area as well as the requirement to comply with the concrete batching regulations should adequately address the issue raised by Dr Forster. The Tribunal is further of the view that any potential compliance concerns that Dr Forster raises are not significant to this determination for two reasons. Firstly, the Tribunal assumes that the applicant will comply with any conditions imposed and secondly, the evidence before the Tribunal does not disclose any compliance concerns in the past.

76 The new NEPM standard does not actually set the standard in this State. The Tribunal notes that, whilst the new NEPM is now effective, there is no substantive evidence before the Tribunal as to how it will be applied, or phased in, in this State. In any event, the new NEPM remains at 50 micrograms per cubic metre and the only relevant issue of any significance is the removal of five permitted exceedances per year. The Tribunal accepts the modelling conclusion that there would be no exceedances at 135m³/day modelled across the whole year and the predicted two exceedances would only potentially occur if the maximum background levels occur on the same day as the plant produces 500m³, which the Tribunal finds is unlikely. The Tribunal also accepts the evidence of Mr Graham, agreed with by Dr Forster, that any exceedances are likely to be associated with 'exceptional events' and therefore to be excluded from the monitoring data.

77 There is some evidence before the Tribunal as to how the new NEPM will be applied in this State; that is, the decision of the EPA, the recommendation of the Appeals Convenor and the decision of the Minister for Environment. The Tribunal considers it is significant that they all still reached the view they did regarding the proposed development following the introduction of the NEPM.

78 The Tribunal notes in relation to separation distances that the EPA, the Appeals Convenor and the Minister for Environment acknowledged that the distance between the proposed development and sensitive receptors is less than the generic distance recommended in EPA Guidance Statement No 3. However, such policy provides that where separation distances are not met, site and industry specific studies should be undertaken to demonstrate that the proposal will not result in unacceptable impacts. The EPA was satisfied that the site-specific modelling and its peer review was sufficient for the EPA to conclude that the proposed development would not result in unacceptable impacts off site with noise and dust levels meeting applicable criteria. The Appeals Convenor and the Minister for Environment agreed with the EPA's approach in relation to separation distances. The Tribunal also concurs with that approach.

79 Therefore, with two exceptions, the Tribunal accepts the applicant's submission that the planning framework relevant to the proposed development is substantially the same as it was when the existing approval was allowed by the Tribunal. As to the two exceptions, firstly, the Tribunal notes that the Deemed Provisions are now in place though they do not differ substantially from what is provided for in TPS 24. Secondly, the Tribunal also notes that the new NEPM is now in place, but for reasons expressed above does not consider that the new NEPM is a significant barrier to approval of the proposed development.

80 The Tribunal has considered the amenity concerns raised by the residents and adjacent business balanced against the expert evidence as well as the comparison with the inferior existing approval in terms of protecting amenity issues and in particular dust emissions. It is the Tribunal's view that the concerns of the residents and adjacent business, whilst relevant, should be given little weight as these concerns do not match the objective facts and expert evidence as found by the Tribunal: Woolworths and City of Joondalup [2009] WASAT 41 at [76] - [77] citing Self Help Addiction Resource Centre Inc v Glen Eira City Council [2005] VCAT 2647; (2005) 145 LGERA 124 at [56].

81 The Tribunal is of the view that the concerns of the residents and nearby businesses are better ameliorated by the proposed development than the existing approval. The Tribunal is further satisfied and finds that the conditions to be imposed together with the regulatory framework will sufficiently address any amenity issues including noise, dust and traffic and any potential issues which may arise if capacity is higher than presently expected.

82 The respondent referred to the precautionary approach consistently taken by the Tribunal in relation to matters of public health and safety: see, for instance, Greenelm Pty Ltd and City of Swan [2010] WASAT 142 at [57] and Ransberg and City of Bayswater at [149]. However, the Tribunal has no evidence in this matter that public health and safety will be compromised or that serious environmental harm which is irreversible will result from the proposed development with appropriate management conditions in place. It would therefore not be appropriate to apply the precautionary principle in those circumstances.

83 The Tribunal is of the view that, whilst it must look at the proposed development as a new application, it is a relevant, but not determinative, consideration that there is an existing approval that the Tribunal has found as a matter of fact that the applicant intends to implement if the proposed development is not approved.

84 Significantly, the proposed development is universally agreed amongst all the experts to be a superior proposal to the existing approval in lessening the noise and dust impacts on the amenity of the locality.

85 Whilst not determinative on its own, it is also relevant to this decision that the EPA determined not to assess the proposal, for reasons detailed earlier in this decision, as the EPA considers that the overall environmental impact does not warrant an assessment and the setting of formal conditions by the Minister for Environment. It is noted that the objections raised with the EPA in its public comment process were consistent with the objections raised before the Tribunal. Furthermore, the EPA's decision was upheld on appeal to the Minister for Environment. It is also relevant to the Tribunal's decision that the EPA and the Minister for Environment all made their decision after the introduction of the new NEPM.

86 The Tribunal is therefore satisfied with the information derived from the modelling, that the conditions to be imposed on the approval, together with the regulatory framework will be adequate to monitor and control any exceedances or issues that may arise concerning traffic, dust and noise.

87 On the basis of the evidence before the Tribunal, in particular the expert evidence of Mr Graham, Dr Forster and the decision of the EPA as well as the Minister for Environment, if the unexpected occurs that the average begins to exceed 135m³/day or the number of 500m³/day per year increases, the Tribunal is satisfied that the conditions and regulatory framework can manage the amenity impacts.

88 The Tribunal is therefore of the view that the correct and preferable decision is that the proposed development, subject to conditions, is consistent with orderly and proper planning, having regard to:

1. the compatibility of the proposed development within its setting;
2. the preservation of the amenity of the locality;

1. any relevant submission received on the proposed development;

1. securing the amenity, health and convenience of the Scheme area and its inhabitants;
2. the history of the site; and

89 The Tribunal is of the view that the proposed development should be subject to conditions, in particular those which seek to control and manage amenity issues relating to traffic, noise and dust emissions. The parties are substantially in agreement as to the relevant conditions to be imposed, with some exceptions, namely, the contribution to public art (proposed condition 26), the wind fence along the boundary with the premises operated by Mr Broad (proposed conditions 27(c) and 28) and production limits (proposed condition 39) which are considered below.

90 Furthermore, the proposed agreed condition 37 refers to 'an attached landscape plan' that was not provided to the Tribunal. The condition has therefore been amended to provide that landscaping and reticulation shall be completed in accordance with a detailed landscape plan approved by the City of Bayswater prior to occupation of the development and thereafter maintained to the satisfaction of the City of Bayswater.

91 The applicant opposes the condition proposed by the respondent in relation to the flat percentage of development cost calculation for public art in accordance with the respondent's policy. The applicant submits that there is a public benefit regarding amenity in the proposed development in comparison with the existing approval and therefore some discretion should be exercised in favour of the applicant relating to the public art contribution. The Tribunal does not accept that argument and the applicant has not satisfied the Tribunal that the public art condition in the terms suggested by the respondent should not be imposed in this case: Lavenda Pty Ltd & Anor and Town of Vincent [2006] WASAT 374 at [27].

92 The respondent proposes conditions 27(c) and 28 that require the provision of a wind fence along the side boundary adjoining 273­275 Collier Road, Bayswater for the purpose of reducing the transmission of airborne dust particles to the adjoining lot operated by Mr Broad's Able Westchem. It is proposed that the wind fence shall be constructed prior to commencement of operations and thereafter maintained to the satisfaction of the respondent.

93 Originally the applicant did not object to these conditions. However, the applicant advised the Tribunal in submissions made on 24 October 2016 that it now objects to the wind fence on the basis that the applicant submits Able Westchem is not a 'sensitive' premises and that it exists without relevant approvals. The applicant submits that the Able Westchem premises are 'prescribed premises' as defined under the EP Act and therefore the premises should have a works approval and a prescribed premises licence issued by the DER.

94 The respondent provided additional evidence from Mr Steven De Piazzi, the acting senior planning officer employed by the respondent, concerning a recent inspection of the Able Westchem premises by officers from the respondent's environmental health services and the DER. Mr De Piazzi informed the Tribunal that the DER had advised the respondent that the Able Westchem premises is not currently licensed as a 'prescribed premises' under the EP Act. Mr De Piazzi was also advised that there is no statutory requirement for a business to have a licence, although a licence may provide protection against any pollution or environmental harm offences. Mr De Piazzi advised the Tribunal that it was his view, as Able Westchem is not currently subject to licensing under the EP Act, that it is not considered to fall within the use class 'Noxious Industry' under TPS 24.

95 The respondent submitted that the appropriate classification of the Able Westchem premises is the use class 'General Industry', and that this is a permitted use and can be carried on without planning approval under TPS 24.

96 Able Westchem is a manufacturer of detergents, personal products, powders, cleaning products, water treatment and other chemical products. Mr Broad stated that the products that Able Westchem produce are sensitive to potential contamination by dust. When Able Westchem purchased the premises in 2014, Mr Broad was of the understanding that the proposed development had been refused by the respondent. Mr Broad appears to have been unaware at that time that the refusal of the existing approval by the respondent was under review by the Tribunal and granted the existing approval on 15 July 2014.

97 Both Mr Sklarski and Ms Morgan agreed that, from a planning perspective, a business such as that operated by Mr Broad, which operates in the General Industry zone where noxious industries are permitted, cannot reasonably expect the same level of amenity as other zones such as light industry or residential.

98 The Tribunal finds that the Able Westchem premises cannot be described as a 'sensitive' premises where special consideration should be given beyond the usual planning considerations. The Tribunal is of the view that, based on the expert evidence and the modelling as well as the proposed conditions and regulatory framework in place, any risk to the Able Westchem premises can be appropriately managed without the imposition of a condition requiring a wind fence. Therefore the Tribunal declines to impose condition 27(c) and 28 as proposed by the respondent.

99 The respondent proposes a condition that seeks to limit the production of the proposed development to 40,000m³ per annum (296 days at 135m³).

100 Mr Sklarski agreed with Ms Morgan that the reports and studies should be commensurate with the expected production levels and related to the conditions which seek to control impacts by way of noise, dust and traffic. Ms Morgan submitted that a condition limiting production would be reasonable as the higher production rates have not been modelled. However, this is not entirely correct as the dust modelling was done at 135m³/day and 500m³/day across a whole year with no exceedances predicted at 135m³/day and only two exceedances predicted at 500m³/day. Notably, this was two exceedances predicted across a whole year of operating at 500m³/day in circumstances where experience shows that 500m³/day is a rare occurrence. It is the noise modelling that was done at only 135m³ per day.

101 The applicant initially objected to a condition limiting production and submitted that: capacity would be regulated by a DER works approval; the conditions to be imposed would regulate capacity by regulating emissions; and, accordingly, the applicant submitted such a condition does not serve a proper planning purpose. However, at hearing, the applicant indicated agreement to a condition that limits production, but sought the amount to be 156,000m³ per annum (312 days at 500m³). The applicant submitted that this was to allow for future increases in capacity and production. However, the Tribunal considers there is no evidential basis for a condition limiting capacity to 156,000m³ per annum.

102 The respondent's proposal of 40,000m³ per annum, in the Tribunal's view, unfairly makes no allowance for the current expected capacity of 135m³ for an average day as well as the two to three times per year of a day which reaches around 500m³. Further, this figure does not allow any room for growth of the business.

103 The Tribunal notes that a condition limiting capacity was not imposed in relation to the existing approval and that the proposed development will protect the amenity of the locality more so than the existing approval. The figure proposed by the applicant of 156,000m³ per annum appears somewhat artificial when the expected production is likely to be considerably less than that amount.

104 The Tribunal has determined that the proposed development is superior to the existing approval and should be approved. Furthermore, the Tribunal is satisfied the amenity of the surrounding locality can be protected by the operation of: the extensive conditions to be imposed; the regulatory framework (which includes the requirement for a DER works approval); the noise regulations; and the concrete batching regulations.

105 Therefore the Tribunal considers that a condition limiting capacity is not appropriate.

106 The remaining conditions as agreed will be imposed.

107 Accordingly, the Tribunal makes the following orders:

1. The application for review is allowed.
2. The decision of the respondent made on 22 September 2015 to refuse development approval is set aside.
3. The application for approval for a concrete batching plant situated at Lot 2 (Nos 277-279) Collier Road, Bayswater as shown on the plans and drawings at attachment 'WL6' to the witness statement of Mr Walter Lukic dated 30 October 2015, is granted subject to the conditions listed in Annexure A attached.

I certify that this and the preceding [107] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

1. The development/use subject of this approval must be substantially commenced within a period of two (2) years of the date of this approval notice. If the development is not substantially commenced within this period, this approval shall lapse and be of no further effect. Where an approval has lapsed, no development/use shall be carried out without the further approval of the City of Bayswater having first been sought and obtained.
2. The development shall be carried out only in accordance with the terms of the application as approved herein, and any approved plan, including any plan approved as a component of the Environmental Management Plan required by condition (7).
3. On completion of construction, all excess articles, equipment, rubbish and materials being removed from the site and the site is to be left in an orderly and tidy condition.
4. All stormwater and drainage runoff produced onsite is to be disposed of onsite via the use of soakwells, approved by the Director of Technical Services, City of Bayswater. The soakwells must deal with the entire land area and be designed to contain a 24 hour storm duration and 100 year ARI.
5. Unless otherwise approved by the City of Bayswater, the area at the rear of the lot, depicted as 'Grassed Area' on the plan titled New Design - Design Comparison Concrete Batching Plant 277­279 Collier Road, Bayswater (Drawing Number 2) (Grassed Area) is not to be used for the storage of materials or vehicles.
6. Activities associated with the use of Lot 2 (Nos 277­279) Collier Road, Bayswater (Land) shall not cause the concentration of particulate matter as PM10 at the location referred to in condition 7(i), first dot point, to exceed:

(a) 12.4µg/m³ as a 24 hour average on any day when the ambient concentration (inclusive of the contribution from emissions from the Land) exceeds 50µg/m³ of particulate matter as PM10 as a 24 hour average; or

1. Documentation for a proposed Environmental Management System (EMS) compliant with AS/NZS ISO 14001:1996 shall be submitted to the City of Bayswater for approval prior to the issue of a building permit. The EMS shall incorporate an Environmental Management Plan (EMP). The EMP shall address the following issues to the satisfaction of the City of Bayswater:

• the use of a TEOM (PM10) monitor to be located at the previous monitoring location close to the boundary, as the primary monitoring method;
• the use of a Beta Gauge (PM10) monitor at a second location sited in accordance with AS/NZS 3580.1.1 (as far as practical), to allow the incremental PM10 concentrations to be determined;
• the TEOM monitor to be operated in accordance with AS/NZS 3580.9.8;
• the Beta Gauge monitor is to be operated in accordance AS/NZS 3580.9.11;
• Ransberg Pty Ltd is to formalise the approach and procedures for:

(b) deriving modelled incremental PM10 concentrations at the nearest sensitive premises; and

(c) associated thresholds which could trigger site management alerts and responses;

• the TEOM and Beta Gauge monitors are to be maintained by an organisation accredited by the National Association of Testing Authorities (NATA) in respect to the operation of those monitors;
• the use of an anemometer with a 10 metre pole, unless a lower pole is approved by the City of Bayswater;
• PM10 concentrations from the TEOM and Beta Gauge monitors, and wind speed and wind direction from the anemometer, shall be averaged over a time period of not more than 15 minutes and electronically recorded;
• all dust incidents in which a criterion set in condition 6 is exceeded shall be reported to the City of Bayswater within 24 hours after the incident. The report shall explain what action was taken to address the exceedance;
• summaries of the results of monitoring including each 24 hour average PM10 concentration are to be provided quarterly to the City of Bayswater by no more than 30 days after each quarter. The quarterly summary must identify and highlight the date and time on which the monitoring showed the PM10 concentration exceeded:

• an annual report prepared by the body carrying out the dust monitoring, which reviews whether the dust received at the nearest sensitive premises has been compliant with the NEPM PM10 standard, the extent to which the development contributed to any exceedances of 24 hour average PM10 concentrations greater than 50µg/m³, and whether the development has complied with the requirements of condition 6.

The annual report referred to above shall be submitted by no more than 30 days after each calendar year to which the data relates.

Dust monitoring shall be continued indefinitely, or until the City of Bayswater is satisfied that the operating experience of cumulative air quality has shown that the risk of exceeding the NEPM standard for annual particulates has abated. The requirement for continued dust monitoring may be reviewed by the City of Bayswater at the request of the applicant following the provision of an EMS audit required by condition (9).

(ii) Noise management, including the use of appropriate acoustic barriers and low noise front end loaders;

(xi) Contingency measures to be adopted in the event of potential or actual unacceptable emissions from the site; and

(xii) Checklists and personnel responsibilities for actions assigned by the EMP.

1. The EMS and EMP approved by the City of Bayswater shall be implemented, and the development must at all times comply with the approved EMS and EMP.
2. The EMS must be audited by an independent appropriate body at least every three (3) years from the anniversary of this approval, and the results of the audit must be provided to the City of Bayswater.
3. The plant is to be equipped with audible and/or visual alarms together with supporting microprocessor hardware and software capable of determining and logging incremental concentrations and background concentrations, utilising the monitoring data collected from the monitoring equipment required by condition 7(i), such equipment to automatically alert site management in real-time should the PM10 limits in condition (6) be, or be likely to be exceeded. The logged data shall be made available to the City of Bayswater as soon as practicable upon request.
4. Any portion of the site to be used for movement or parking of vehicles and/or onsite storage of empty bins, must be sealed and drained to the satisfaction of the City of Bayswater.
5. Uncovered parking bays shall be a minimum of 5.5 metres x 2.5 metres.
6. Truck parking bays are to conform to the relevant Australian Standards.
7. A bin area is to be provided of not less than 10m² and with a permanent water supply and drainage facility for washdown. The bin area is to be screened by a gate and brick walls or other suitable material to a height of not less than 1.8 metres.
8. Bins are to be washed only in the washdown facility within the bin area, drained to a silt trap and disposal of via the Water Corporation sewer system or if this is not available, a leach drain soakwell system which is separate to the stormwater disposal system, or approved system, to the satisfaction of the City of Bayswater.
9. One (1) driveway shall be permitted onto Collier Road. The driveway shall be constructed to the City of Bayswater standards for commercial driveways.
10. Redundant driveways shall be removed and the verge and its vegetation made good at the applicants cost, prior to the commencement of concrete batching operations.
11. No earthworks shall encroach onto the Collier Road road reserve.
12. No stormwater drainage shall be discharged off site.
13. The applicant shall make good any damage to the existing verge vegetation within the Collier Road reservation, prior to the commencement of concrete batching operations.
14. No storage of materials outside the approved buildings is permitted.
15. A copy of an approval issued by the Department of Environment and Conservation - Licensing Section for the operation of the facility shall be submitted to the City of Bayswater prior to operations commencing.
16. A truck washdown area is to be provided in accordance with the requirements of the Environmental Protection (Concrete Batching and Cement Product Manufacturing) Regulations 1998 (WA) and in a location approved by the City of Bayswater. Trucks may only be washed down in the approved washdown area.
17. Operating hours are to be restricted to 6 am to 6 pm Monday to Saturday (public holidays excluded); however, no front end loader may operate, nor may any raw materials be delivered to the site prior to 7 am.
18. The cement storage silos are to be reduced to a maximum of 12.5 metres in height. Amended plans showing the reduced height of the silos must be submitted with the application for a building permit.
19. The owner, or the applicant on behalf of the owner, shall comply with the City of Bayswater policy relating to Percent for Public Art, and provide an art project for a minimum value of one per cent ($60,000) of the estimated total cost of the development ($6,000,000). Prior to the lodgement of a building permit application, the owner/applicant shall submit details to the City of Bayswater, including plans of the artwork, its cost and construction, and other matters relating to the artwork's ongoing maintenance and acknowledgements in accordance with the City of Bayswater's Percent for Public Art Policy. Upon the City of Bayswater receiving this information, the art project shall be presented to Council for its consideration and determination. The approved public art shall be installed prior to the submission of an 'Occupancy Permit' for the subject development, and thereafter maintained at the cost of the owner/applicant.
20. Revised plan(s) addressing the following matters shall be submitted to the City of Bayswater for approval prior to the lodgement of a building permit application:

(a) The relocation of the bin store to behind the front setback line.

(b) The provision of a minimum of 12 truck parking bays.

1. The bin store and truck parking bays shall be provided in accordance with the approved plan, and thereafter maintained to the satisfaction of the City of Bayswater.
2. Redundant vehicle crossover(s) to be removed and the kerbing, verge and footpath (where relevant) reinstated with grass or landscaping to the satisfaction of the City of Bayswater.
3. All dust emission controls including bag filters on the building ventilation systems, water sprays and sprinklers shall be well maintained to ensure optimal performance at all times.
4. The cement silo filters shall be well maintained to ensure optimal performance at all times.
5. All conveyors and transfer stations are to be covered and belt cleaners maintained to ensure no escape of materials and dust from conveyors.
6. Any stored aggregate or sand outside the building is to be either wetted at all times or covered to prevent wind driven dust erosion.
7. Any material spills outside the buildings are to be immediately wetted prior to removal of the materials.
8. Continuous monitoring of ambient dust levels and wind conditions in accordance with the approved Environmental Management Plan is required for reactive dust management.
9. Landscaping and reticulation shall be completed in accordance with a detailed landscape plan approved by the City of Bayswater prior to occupation of the development and thereafter maintained to the satisfaction of the City of Bayswater.
10. That part of the Grassed Area which is not subject to the approved landscape plan shall be vegetated (grassed) and reticulated, and the vegetation shall be maintained in a healthy and neat condition throughout the life of the development.
11. The concrete produced at the facility shall not include fly ash as an ingredient without further approval.

ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION : RANSBERG PTY LTD and CITY OF BAYSWATER [2016] WASAT 43 (S)

HEARD : 27 MARCH 2017 (FINAL SUBMISSIONS 26 APRIL 2017)

Town planning ­ Costs application ­ Tribunal previously approved concrete batching plant ­ New application for superior design with improved dust, noise and traffic outcomes ­ Council refused application for second time - Whether decision­maker genuinely attempted to make a decision on its merits ­ Whether decision-maker behaved unreasonably

Legal Profession (State Administrative Tribunal) Determination 2016

Planning and Development Act 2005 (WA), s 252(1)(c)(i)

State Administrative Tribunal Act 2004 (WA), s 9, s 31, s 87, s 89

Applicant's application for costs allowed and fixed in the amount of $112,772.73

In Ransberg and City of Bayswater [2014] WASAT 12 (Ransberg No 1), the Tribunal granted approval for a concrete batching plant situated at Nos 277 ­ 279 (Lot 2) Collier Road, Bayswater (subject site), subject to a number of conditions which included the management of dust and noise. In Ransberg and City of Bayswater [2016] WASAT 43 (Ransberg No 2), the Tribunal granted approval, subject again to a number of conditions, for a modified design of the previously approved concrete batching plant which was greatly improved in relation to dust and noise. Following the decision of the Tribunal in Ransberg No 2, the applicant made an application to the Tribunal for an indemnity costs order against the respondent in the amount of $248,798.42.

The Tribunal noted that an invitation from the Tribunal under s 31 of the State Administrative Tribunal Act 2004 (WA) for a decision­maker to reconsider its decision is simply that, an invitation. The decision­maker may decide to refuse that invitation from the Tribunal. However, once that invitation is accepted, the decision­maker must discharge its duty to genuinely attempt to decide a matter on its merits. It was apparent to the Tribunal that the respondent took the view it would always oppose a concrete batching plant at the subject site regardless of any professional advice or previous decision of the Tribunal. The Tribunal found, whilst the respondent may oppose a concrete batching plant at the subject site, the respondent was still obliged to consider the proposal on its merits, to apply the relevant provisions of the planning framework and to be cognisant of its legal obligations as a decision­maker which includes the importance of consistency in decision­making in the interests of orderly and proper planning.

In addition, the Tribunal found that, in circumstances where the council of the respondent was well informed and advised by extensive professional planning, legal and environmental advice that the modified design was superior and better addressed amenity concerns than the existing approval, advice which notably accorded with the Tribunal's ultimate findings, the respondent acted unreasonably in refusing to approve the superior design at the time of the respondent's reconsideration on 22 September 2015 in Ransberg No 2.

The Tribunal determined that in the circumstances the applicant should be awarded costs, however not on an indemnity basis, and made orders for costs inclusive of disbursements and GST of $112,772.73.

Citygate Properties Pty Ltd and City of Bunbury (2005) 38 SR (WA) 246; [2005] WASAT 53

Hanson Construction Materials Pty Ltd and Town of Vincent [2008] WASAT 71

Humphrys and City of Stirling [2011] WASAT 105

J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282 (S)

Marshall v Metropolitan Redevelopment Authority [2015] WASC 226

Myburgh Concepts Pty Ltd and City of Stirling [2010] WASAT 20

Perth Central Holdings Pty Ltd and Doric Constructions Pty Ltd [2008] WASAT 302

Rainbow Pty Ltd and Hawkins [2007] WASAT 216 (S)

Ransberg and City of Bayswater [2014] WASAT 12

Ransberg and City of Bayswater [2016] WASAT 43

Rossi and City of Bayswater [2010] WASAT 33

Springmist Pty Ltd and Shire of Augusta­Margaret River (2005) 41 SR (WA) 207; [2005] WASAT 143(S)

Tran and Town of Vincent (2009) 65 SR (WA) 260; [2009] WASAT 123 (S)

Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32

1 On 28 January 2014, in Ransberg and City of Bayswater [2014] WASAT 12 (Ransberg No 1), the Tribunal granted development approval for a concrete batching plant situated at Nos 277 ­ 279 (Lot 2) Collier Road, Bayswater (subject site), subject to a number of conditions which included the management of dust and noise.

2 On 14 December 2016, in Ransberg and City of Bayswater [2016] WASAT 43 (Ransberg No 2), the Tribunal granted development approval for a modified, but improved, design of the previously approved concrete batching plant, subject again to a number of conditions which included the management of dust and noise.

3 On 22 December 2016, following the decision of the Tribunal in Ransberg No 2, the applicant made an application to the Tribunal for an indemnity costs order against the respondent.

4 The Tribunal heard that application for costs on 27 March 2017 and at the conclusion of the hearing, the Tribunal made programming orders allowing additional time for the applicant to provide submissions and supporting information on the quantum of costs sought and for the respondent to reply. That process was completed on 26 April 2017.

5 The total amount of costs sought by the applicant on an indemnity basis is $248,798.42, broken down into the following categories:

1. legal professional costs of $203,098.00 (inclusive of GST);
2. legal disbursements of $7,236; and

1. expert consultants costs (in the Tribunal proceedings only, not in the preparation of the application for approval) of $38,464.42.

6 The extensive background to this costs application is detailed in both Ransberg No 1 and Ransberg No 2 and is incorporated into these reasons. The Tribunal will only detail the seminal aspects of those background facts in these reasons.

7 In both Ransberg No 1 and Ransberg No 2 the respondent refused to approve a concrete batching plant at the subject site. The substantive difference between the approvals in Ransberg No 1 and Ransberg No 2 was for a superior design which provides for the majority of activities at the subject site which produce dust emissions to now occur within a roofed building which will be enclosed on two sides, thereby substantially lessening the potential for dust and noise emissions.

8 The respondent's Planning and Development Services & Administration and Community Services Committee recommended approval of the superior design for the concrete batching plant subject to conditions.

9 On 26 May 2015, despite that professional advice, the Council of the respondent resolved to refuse the application in notably similar terms to its previous refusal in Ransberg No 1 on 28 June 2011. The resolution of Council of the respondent stated:

1. Notes the amended plans dated 29 January 2015.
2. Reiterates its previous decision of 28 June 2011 and resolves to refuse the amended plans dated 29 January 2015 for the proposed concrete batching plant at Lot 2, Nos. 277­279 Collier Road, Bayswater, on the following grounds:

(a) The proposed concrete batching plant is not an appropriate use on the subject site, particularly given it is a noxious industry and its proximity to an established residential area.

(b) The proposed use will unduly impact on the amenity of the locality.

(c) The proposed use is not consistent with proper and orderly planning of the locality.

(d) The separation distance between the proposed development and residential dwellings is insufficient and will result in a significant reduction in amenity due to the externalities of the development, including poor visual appearance and undue dust and noise impacts.

(e) The proposed development does not comply with the height requirements of the City's Town Planning Scheme No. 24.

(f) The proposed variation to the scheme height provisions will unduly affect the amenity of the locality.

(g) The proposed variation to the scheme height provisions is not consistent with the proper and orderly planning of the locality.

(h) Consideration of the considerable objections received in relation to the proposed concrete batching plant.

10 On 22 June 2015, the applicant sought a review in the Tribunal of the respondent's original refusal under s 252(1)(c)(i) of the Planning and Development Act 2005 (WA) (PD Act).

11 At a directions hearing on 31 July 2015 the Tribunal invited the respondent to reconsider its refusal pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), and the Tribunal cautioned the respondent that it would need to genuinely consider the application on its merits and, if it failed to do so, it may be liable for costs in accordance with s 87(4)(b) of the SAT Act.

12 On 17 August 2015, the respondent's Planning and Development Services & Administration and Community Services Committee Meeting (Committee Meeting) agenda contained professional advice with the following conclusion and recommendation from the officer who prepared the agenda:

CONCLUSION

The existing approval issued by the SAT and associated conditions still stands, and should this amended application be refused the applicant can revert back to the original SAT approval. It is considered highly likely, that should the applicant not be able to proceed with this amended application, the applicant will construct and commence operations in accordance with the SAT approval and associated conditions.

The SAT at its directions hearing indicated that Council would need to genuinely consider the subject application on its merits or the City may be liable for costs in accordance with Section 87(4)(b) of the State Administrative Tribunal Act 2004 (WA).

The City's officers have considered the additional comments provided by the environmental consultant and is of the technical view that the proposed amendments which include additional building structures will not have an undue impact on the visual amenity of the plant. The proposed alterations are considered to improve the applicant's ability to manage dust and noise emissions from the site. On balance, it is considered that the improvements to managing and potentially reducing dust and noise from the site outweighs the marginal increase to the building bulk from the additional buildings on the site.

Given the proposed amendments are not considered to be beyond the scope of the originally approved application by the SAT it is recommended that Council reconsider its decision and approve the application, subject to appropriate conditions.

(pages 10 and 11 of Committee minutes of 17 August 2015)

13 On 20 August 2015 the Minister for Planning refused to grant approval to a scheme amendment (Amendment 55) which the respondent had resolved to introduce in June 2011 which, if successful, would have prohibited a concrete batching plant use on the subject site. The Minister's reason for refusal was:

[It] is considered to be contrary to orderly and proper planning and not consistent with the strategic direction of 'Directions 2031 and Beyond' and the 'Economic and Employment Lands Strategy' which seek to protect industrial areas and land uses from the encroachment of high end, competing uses and to ensure a balanced distribution.

14 At its Ordinary Council Meeting on 25 August 2015 the respondent reconsidered the proposed development. The Tribunal notes that it is not entirely clear from the evidence provided what the actual recommendation from the Committee Meeting was, however, the addendum to the Ordinary Council meeting minutes of that meeting on 25 August 2015 states:

Committee Recommendation to Council

That this item be deferred to the next Ordinary Council Meeting to further consider the concerns raised regarding the proposal.

Reason for Change

Council changed the Committee's recommendation as it was of the opinion that the proposed amended Concrete Batching Plant be deferred until the environmental issues have been addressed.

COUNCIL RESOLUTION

That Council defers consideration of the proposed amended Concrete Batching Plant until the concerns raised, including the environmental matters raised by the City's environmental consultant and insufficient buffer, have been addressed in relation to the amended proposal.

(page 137 of Ordinary Council minutes of 25 August 2015)

15 On 4 September 2015, the Tribunal again invited the respondent to reconsider its refusal of 26 May 2015 pursuant to s 31 of the SAT Act and again warned the respondent regarding a potential costs order and otherwise programmed the proceedings to a final hearing in the event the respondent did not approve the proposed development.

16 Council of the respondent again met and reconsidered the matter at its meeting on 22 September 2015. The Tribunal notes from the Ordinary Council minutes of that meeting that the professional advice given to the Council was as follows:

EXECUTIVE SUMMARY

Application:

In accordance with further orders from the State Administrative Tribunal (SAT), pursuant to Section 31(1) of the State Administrative Tribunal Act 2004, the SAT has invited Council to reconsider its decision made at the 26 May 2015 and 25 August 2015 Ordinary Council Meetings, to refuse and defer amended plans for approved proposed concrete batching plant at Lot 2, 277­279 Collier Road, Bayswater.

Key Issues:

• Despite Council's opposition and refusal of a concrete batching plant at the subject site, the SAT has approved this use at the site. This approval is still valid, and the applicant can proceed with the concrete batching plant accordingly.
• The current proposal is an amended design to the approved concrete batching plant, and the SAT is seeking Council's reconsideration of the amended design and not the appropriateness of a concrete batching plant at the site, as this use has already been approved by SAT.
• Council is to reconsider the appropriateness of the amended proposal in terms of the additional information contained within this report.
• SAT's comments regarding the provisions of Section 87(4)(b) of the State Administrative Tribunal Act 2004 (WA) on awarding costs against the City where an application has not been genuinely determined on its merits.

(page 201 of Ordinary Council minutes of 22 September 2015)

State Administrative Tribunal Comments

The SAT at its initial directions hearing on 31 July 2015 indicated that Council would need to genuinely consider the subject application on its merits or the City may be liable for costs in accordance with Section 87(4)(b) of the State Administrative Tribunal Act 2004 (WA).

If costs are awarded against the City, this could include the costs of the applicant's solicitors and associated consultants used to appeal Council's decision. Generally costs could amount up to 75% of the total amount spent by the applicant to appeal a decision.

(page 205 of Ordinary Council minutes of 22 September 2015)

ANALYSIS

Key issues

The key issues raised in relation to this matter are as follows:

• [Same as first dot point in Key Issues above].
• [Same as second dot point in Key Issues above].
• The City's offices are still of the view that a concrete batching plant land use is inappropriate in its current location, however the SAT overruled the City's original refusal and found the land use to be acceptable at the site. The City's offices are endeavouring to address the amended proposal with the intent to reduce the impact of the concrete batching plant on the surrounding area.
• The City is also required to give due regard to the advice received by the City's solicitors and environmental consultant, advising that the amended plans detailing better operated plant with minimal risk given the enclosing of the wet­mix plant and the existing SAT conditions, and additional conditions proposed.
• Council is to reconsider the appropriateness of the proposal in terms of the additional information contained within this report.
• SAT's comments regarding the provisions of Section 87(4)(b) of the State Administrative Tribunal Act 2004 (WA) on awarding costs against the City where an application has not been genuinely determined on its merits.

Key considerations

Generally a planning application shall be assessed and determined in accordance with the objectives and prescribe requirements of the City's Town Planning Scheme No. 24 (TPS 24).

The original application has been approved by the SAT, therefore the concrete batching plant land use was deemed to be acceptable in its current location and previous form. The City's solicitors have advised that the original approved application has set a benchmark; therefore, if an amended application is received which is not materially different, and is deemed to be less of an impact, it is considered the City is not in a position to refuse the amended proposal.

The original SAT approved application includes stringent conditions particularly relating to dust and noise[.]

(pages 205 - 206 of Ordinary Council minutes of 22 September 2015 - Tribunal emphasis)

Furthermore, Strategen [Dr Forster ­ the respondent's expert who gave evidence at the substantive hearing] has advised that "overall, the information provided by the Applicant and discussions held at mediation serve to support the Applicant's position that the amended design for the proposed concrete batching plant and proposed operating conditions will provide acceptable dust and noise outcome for the receiving environment. Modelling of dust and noise impacts has suggested that acceptable performance can be achieved, relative to air quality and assigned noise levels at nearest sensitive receptors.

On that basis, there now appears no impediment from a dust and noise risk perspective to refuse the application for the proposed concrete batching plant["].

(page 211 of Ordinary Council minutes of 22 September 2015 Tribunal's emphasis)

CONCLUSION

...

The proposed alterations are considered to improve the applicant's ability to manage dust and noise emissions from the site, given the plant will be mostly enclosed. The amended plans will essentially eliminate the consistent use of front­end loaders which is considered to substantially lower any potential noise impacts.

The original approved SAT application and the amended plans are for a wet­mix plant which is considered to pose less of a risk relating to dust emissions when compared to a dry-mix concrete batching plant. Not only is a wet-mix batching plant considered better at reducing dust emissions than a conventional plant, the amended proposal includes mostly enclosed areas of the process as part of the amended plans. The environmental consultant [Dr Forster ­ the respondent's expert] has advised this process and associated amendments are considered to dramatically reduce impacts relating to dust generation.

The City's officers have considered the additional comments provided by the City's solicitors and environmental consultant and the applicant, and are of the technical view that the amended approval (that complies with applicable conditions) will not have an undue impact on the visual amenity of the surrounding area.

Given the above, it is recommended that Council reconsidered its decision and approves the amended application, subject to appropriate conditions.

(pages 212 - 213 of Ordinary Council minutes of 22 September 2015)

17 Following that advice the respondent again resolved to refuse the application for the reasons set out in the Ordinary Council minutes of 22 September 2015 which stated:

COUNCIL RESOLUTION

That Council, in consideration of the additional information provided by the applicant and environmental consultant, refuses the revised plans dated 29 January 2015 in relation to the planning approval granted by the State Administrative Tribunal on 15 July 2015 (sic ­ it was 28 January 2014) for the proposed concrete batching plant at Lot 2, 277­279 Collier Road, Bayswater, for the following reasons:

1. The amended proposal does not provide sufficient information demonstrating satisfactory control of dust emissions to not unduly impact the surrounding residential area and Joan Rycroft reserve, in relation to the following matters:

(a) The controls and maintenance of the cement silo filters.

(b) The control and maintenance of the building ventilation systems, water sprays and sprinklers.

(c) The process of ensuring the stored aggregate and sand outside the building is wetted or covered at all times to prevent wind driven dust erosion.

(d) The reporting of dust incidents as soon as possible to the City of Bayswater and associated remediation works.

1. The amended proposal is considered to be generally not consistent with clause 3.6 of the City of Bayswater Town Planning Scheme No. 24 relating to matters to be considered by the City on planning application, more specifically:

(a) Clause 3.6(i) - the compatibility of a use or development with its setting.

(b) Clause 3.6(n) - the preservation of the amenity of the locality.

(c) Clause 3.6(y) - any relevant submissions received on the application.

1. The amended proposal is considered to be not consistent with clause 1.6(b) objective of the City of Bayswater Town Planning Scheme No. 24 to "secure the amenity, health and convenience of the Scheme Area and inhabitants thereof".
2. The amended proposal will unduly impact on the amenity of the locality.
3. The amended proposal will unduly impact on the operations of adjoining businesses.
4. The amended proposal is not consistent with proper and orderly planning of the locality.

(pages 216 - 217 of Ordinary Council minutes of 22 September 2015)

(Respondent's reconsideration in Ransberg No 2)

Legal principles in costs applications in the Tribunal

18 The effect of s 87(1) of the SAT Act, relevant to these proceedings, is that each party bear their own costs unless the Tribunal orders otherwise. This is the usual approach in review proceedings under the PD Act: Citygate Properties Pty Ltd and City of Bunbury (2005) 38 SR (WA) 246; [2005] WASAT 53 (Citygate) at [28].

19 However, pursuant to s 87(2) of the SAT Act, the Tribunal may exercise its discretion and make an order for the payment by a party of all, or any, of the costs of another party. In the recent decision of the Court of Appeal in Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32, Murphy JA (Martin CJ and Corboy J agreeing) found at [51]:

Section 87(2) is to be construed in the context that the legal rationale for an order for costs is not to punish the person against whom the order is made, but to compensate or reimburse the person in whose favour it is made. That rationale is evident in s 87(3) of the SAT Act. Accordingly, even in a statutory context where the presumptive position is that no costs will be ordered, generally speaking, the question is whether, in the particular circumstances of the case, it is fair and reasonable that a party should be reimbursed for the costs it incurred. The onus is on the party seeking an order in its favour. [footnotes omitted]

20 The power to make a costs order includes the power under s 87(3) of the SAT Act to make an order for the payment of an amount to compensate a party for any expenses resulting from the proceeding. The effect of s 87(3) is that the expenses that may be recovered are not limited to the traditional notion of legal costs, but can include other expenses and loss in connection with the conduct of the proceedings before the Tribunal: Springmist Pty Ltd and Shire of Augusta­Margaret River (2005) 41 SR (WA) 207; [2005] WASAT 143(S) at [64].

21 Section 87(4) of the SAT Act identifies certain matters to which the Tribunal is to have regard in exercising its discretion to award costs in the Tribunal's review jurisdiction. That subsection does not limit the matters which might be considered under s 87(2): Citygate at [32].

22 Costs orders are generally only made in review proceedings where a party has acted unreasonably, including where a party has failed to meet the expectation expressed in s 87(4) of the SAT Act: Tran and Town of Vincent (2009) 65 SR (WA) 260; [2009] WASAT 123 (S) (Tran) at [35]; Humphrys and City of Stirling [2011] WASAT 105 (Humphrys) at [27].

23 The expectation in s 87(4) of the SAT Act that is relevant and which the Tribunal must have regard to in determining a costs application is whether the respondent has genuinely attempted to make a decision on its merits.

24 The Tribunal's established practice when exercising its discretion to award costs under s 87(2) of the SAT Act reflects its statutory role and function when exercising its jurisdiction in review proceedings: Aydogan and Town of Cambridge [2007] WASAT 19 at [18].

25 The fact that the Tribunal reached a different conclusion from the respondent does not, of itself, inevitably lead to a conclusion that the respondent failed to genuinely attempt to make a decision on its merits: Myburgh Concepts Pty Ltd and City of Stirling [2010] WASAT 20 at [50].

26 By analogy, the fact that a decision­maker reaches a different conclusion to that recommended by professional advice, does not, of itself, inevitably lead to such a conclusion.

27 In somewhat similar circumstances of an applicant being forced into conducting a second review in the Tribunal, the Tribunal in Tran found as follows:

1. Although I do not doubt for one moment that the respondent's actions were undertaken other than in good faith it is important for the process of orderly public sector decision-making that original decision-makers pay careful attention to consistency in that decision-making process; that they also pay regard to the advice of their professional officers; and that they avoid the need for the rearguing of cases where there are in fact no material changes to the circumstances where an earlier identical planning approval had been given.
2. Here, the respondent Town was put expressly on notice of the possible consequences of its actions by both the Tribunal and the applicant's, and passed up the opportunity to change its position in the reconsideration process. It ought to have reasonably known that the chance of a successful review in the applicants' favour in such circumstances was very high indeed. Every conceivable indication was given that that was so. It was unreasonable to ignore the signals.

28 Similarly, in Rossi and City of Bayswater [2010] WASAT 33 (Rossi) the Tribunal held that the City of Bayswater behaved unreasonably by maintaining its objection to the development despite the fact that the planning framework had not materially changed and in rejecting the professional advice of its planning officer, warranting the exercise of discretion in the favour of a costs application. It was also held that this unreasonableness was compounded by the earlier costs decision in the similar matter of Tran and that this unreasonable conduct meant that the City of Bayswater failed to genuinely attempt to assess the matter on its merits: at [28] to [29].

29 The importance of consistency in decision­making in the interests of orderly and proper planning has been highlighted by the Tribunal in a number of decisions in relation to costs. Decision­makers who continue to fail to have proper regard to an earlier approval in circumstances where the planning framework has not materially altered must do so fully cognisant of the potential costs implications: for instance see Humphrys at [28] to [29] citing Hanson Construction Materials Pty Ltd and Town of Vincent [2008] WASAT 71 at [54].

30 Pursuant to s 89 of the SAT Act, where the Tribunal makes a costs order it may fix the amount of costs.

31 The procedures of the Tribunal are designed to achieve the objectives prescribed by s 9 of the SAT Act. In the unusual event that an order for costs is made by the Tribunal, the Tribunal's obligation to minimise the costs to parties will be reflected in the costs assessed by the Tribunal as recoverable. That approach reflects an expectation that parties will approach proceedings in a way that minimises costs to their clients. If parties choose to approach proceedings in a way which substantially increases costs for them, it will be a rare case where that increase in costs will be recoverable: J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282 (S) at [38].

32 An award of costs is not intended to be a full indemnity for the actual expenses incurred by a party. Generally speaking, an order for an amount of costs should be approached in a broad fashion and should not have to descend into any inquiry into small items of expenditure: Perth Central Holdings Pty Ltd and Doric Constructions Pty Ltd [2008] WASAT 302 at [67].

33 The Tribunal will give consideration to 'the nature of the matter, its complexity, its importance, urgency, and the amount of time and effort required to properly prepare and present the case': Rainbow Pty Ltd and Hawkins [2007] WASAT 216 (S).

34 The applicant submits that it should be entitled to indemnity costs on the basis that the respondent:

1. did not genuinely seek to deal with the application on its merits at any stage;
2. unreasonably prolonged the hearing of the matter;

1. conducted itself unreasonably and inappropriately in its conduct of the proceedings in a manner which increase the costs to the applicant; and

35 The respondent submits that it did genuinely attempt to make a decision on its merits on the basis that the respondent considered that the modified design was materially different to the approved design and, in particular, the Council of the respondent did not accept that the new and significantly more expensive modified design would only produce an average of 135m³ of concrete per day. The respondent also submits that the Council gave detailed consideration to the merits of the application as it was drawn clearly to the Council's attention that it was required to make a genuine decision on the merits.

1. it did not unreasonably prolong the hearing of the matter;
2. there was nothing unreasonable in the respondent's conduct in the proceedings; and

1. the respondent's position was not devoid of merit or unarguable.

37 It will be apparent from the reasons which follow that the Tribunal considered it was unnecessary to make findings in relation to some of the allegations made by the applicant. However, it will also be apparent, that the Tribunal does not accept that the respondent genuinely attempted to make a decision on its merits.

38 The Tribunal notes that an invitation from the Tribunal under s 31 of the SAT Act for a decision­maker to reconsider its decision is simply that, an invitation. The decision­maker may decide to refuse that invitation from the Tribunal. However, once that invitation is accepted, the decision­maker must discharge its duty to genuinely attempt to decide a matter on its merits.

39 The Tribunal finds that, as the decision under review is the reconsideration made on 22 September 2015, that is the relevant decision that is under consideration in relation to s 87(4)(b) of the SAT Act (s 31(3) of the SAT Act).

40 It was apparent to the Tribunal from the way the Council consistently dealt with the matter and the final reasons given by the respondent on 22 September 2015, that the respondent took the view that it would always oppose a concrete batching plant at the subject site regardless of any professional advice or previous decisions of the Tribunal.

41 Whilst the respondent may oppose a concrete batching plant at the subject site, the respondent is still obliged to consider the proposal on its merits, to apply the relevant provisions of the planning framework and to be cognisant of its legal obligations as a decision­maker which includes consistency in decision­making in the interests of orderly and proper planning (see Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 at [178] to [183]).

42 The respondent's disregard of its obligations and the professional advice it received was also evident to the Tribunal in the evidence of the Mayor, Mr Barry McKenna at the substantive hearing. The Mayor appeared to have little substance underpinning his own reasons for refusing the proposed development beyond stating a number of times in different ways what the Tribunal finds to be implausible statements to the effect that the decision '... was for valid planning reasons' and being unduly fixated on whether the proposal was a new proposal or an amended proposal without having proper regard to the substance of the development proposal.

43 The Mayor's evidence and an examination of the reasons for decision of the respondent in the reconsideration appear to the Tribunal to be clearly incongruous when set against all of the professional advice that was before the respondent and appear to be contrived in an attempt to appear to genuinely decide the proposal on its merits.

44 In Hanson Construction Materials Pty Ltd and Town of Vincent [2008] WASAT 71 (Hanson), the Tribunal stated at [54]:

In circumstances where the planning framework is the same and the circumstances have not changed in any substantial way, it is in the interests of orderly and proper planning that planning decisions in relation to a site are made in a consistent way.

45 In Humphrys at [29] Parry J, in commenting on that quote from Hanson stated:

It does not appear that the Council had regard to the planning principle referred to in Hanson in making its decision to refuse the development application which is the subject of this proceeding. The Council's failure to have regard to its approval of the earlier development application and the principle of consistency in planning assessment referred to in Hanson means that it did not genuinely attempt to make a decision on the merits of the development application and acted unreasonably[.]

46 Following that in Tran, as outlined earlier, Member McNab stated at [36]:

... it is important for the process of orderly public sector decision-making that original decision-makers pay careful attention to consistency in that decision­making process; that they also pay regard to the advice of their professional officers; and that they avoid the need for the rearguing of cases where there are in fact no material changes to the circumstances where an earlier identical planning approval had been given. (original emphasis)

Each of those comments are apposite to this matter.

47 The Tribunal therefore finds on the facts of this case that the Council of the respondent failed to genuinely attempt to make a decision on the merits for the purposes of s 87(4)(b) of the SAT Act because:

1. it failed to have regard to this Tribunal's previous approval in Ransberg No 1 and that the planning framework and factual circumstances had not changed in any material respect;
2. it clearly ignored extensive planning, legal and environmental advice supporting the application and without any advice to the contrary on which to base a refusal; and
3. it made the decision of 22 September 2015 in circumstances where Amendment 55 (which sought to make a concrete batching plant at the site a prohibited use) had been disallowed by the Minister barely a month before on 20 August 2015.

48 The issue of significance between Ransberg No 1 and Ransberg No 2 was not just that the use had already been approved in Ransberg No 1 and there had been no material change to the planning framework (noting the two exceptions found by the Tribunal in Ransberg No 2 at [79]) but that the significant issue concerning dust was substantially improved by the superior design of the plant submitted for approval in Ransberg No 2.

49 As stated above, the respondent was well informed and well advised by extensive planning, legal and environmental advice that the modified design was superior and better addressed amenity concerns than the existing approval, and yet the respondent unreasonably refused to approve the superior design at the time of its reconsideration on 22 September 2015 in Ransberg No 2.

50 The Tribunal notes that the professional advice that the respondent effectively disregarded in its reconsideration in Ransberg No 2 accords with the ultimate findings by the Tribunal in Ransberg No 2.

51 The respondent's position in Ransberg No 2 was therefore in the Tribunal's view as unreasonable, if not more so than that of the original decision­makers in Tran, Rossi and Humphrys and the Tribunal finds, that not only did the respondent fail to genuinely attempt to determine Ransberg No 2 on its merits on the reconsideration of the matter on 22 September 2015, but that that conduct was unreasonable.

52 Therefore, in consideration of all of the facts and circumstances in this matter and the findings just outlined, the Tribunal will exercise its discretion to award costs to the applicant in this matter for the reasons that the respondent did not genuinely attempt to make the reconsideration decision on its merits and the respondent acted unreasonably based on all of the professional advice it received and without any advice to the contrary to support its position, in not approving at the point of reconsideration a superior design which alleviated or at least significantly improved the amenity outcomes relating to dust in particular, but also in relation to traffic and noise issues.

53 Despite running a case that raised issues concerning traffic and noise impacts on the amenity of the locality, the respondent did not proffer any expert evidence in respect of those issues to assist the Tribunal in reaching the correct and preferable decision upon review. The expert that the respondent provided in relation to dust impacts, Dr Peter Forster, largely, if not entirely in all material respects, supported approval of the proposal's superior design as detailed in the decision of the Tribunal in Ransberg No 2.

54 However, whilst this approach by the respondent was not of assistance to the Tribunal in reaching a determination of the issues raised by the respondent, the Tribunal finds that that conduct did not amount to unreasonable conduct in the proceedings.

55 Taking into account the submissions made by the respondent and what the Tribunal considers to be fair and reasonable, the Tribunal will adjust the transcript amount sought and will not allow the courier fees and will allow the disbursements in the total amount of $6,249 detailed as follows:

1. transcript of the final hearing of $2,308.50;
2. SAT application and hearing fees of $2,657; and

56 The Tribunal will also allow the full amount sought for the costs of expert consultants totalling $38,464.42. The costs sought are only those of the applicant's experts in relation to the Tribunal proceedings and not the reports they prepared to support the application for approval lodged with the respondent. The Tribunal considers the total amount sought for the costs of the experts to be entirely fair and reasonable, in particular, as the resolution of these proceedings by the Tribunal was greatly assisted by the expert evidence.

57 In relation to the legal costs of $203,098 (inclusive of $40,625 GST) sought by the applicant, the Tribunal notes the legal principles enunciated above concerning such matters as: the objectives prescribed by s 9 of the SAT Act; and the Tribunal's obligation to minimise costs.

58 The Tribunal accepts the submissions of the respondent that these proceedings were not overly complex. The only aspect of real complexity related to the expert evidence concerning dust modelling and the application of the National Environment Protection (Ambient Air Quality) Measure, however there was no substantive or material dispute amongst the experts concerning these matters and a significant amount of similar evidence was canvassed in Ransberg No 1.

59 The Tribunal finds that, whilst on 22 September 2015 the respondent did not genuinely attempt to decide the proposed development on its merits, that conduct should not attract an indemnity costs order.

60 Moreover, the Tribunal finds that, whilst there was unreasonable conduct on the part of the respondent in its reconsideration of the matter in Ransberg No 2, there was otherwise nothing unreasonable in the way that the respondent conducted the proceedings in the Tribunal which might impact on the Tribunal's decision as to the quantum of costs to award or that the matter should attract an indemnity costs order.

61 The Tribunal finds that these proceedings are not the rare case where an order for indemnity costs or all of the legal costs should be made.

62 However, the Tribunal does find that, in the exercise of its discretion and giving consideration to the nature of the proceedings, and the amount of time and effort required to properly prepare and present the case that the applicant should be awarded a contribution to its reasonable legal costs.

63 The Tribunal is of the view that the appropriate guide for a determination of the quantum of costs to award in these proceedings, in circumstances where the Tribunal considers these proceedings were not overly complex, is the Legal Profession (State Administrative Tribunal) Determination 2016 (Determination) which is the amount that a practitioner may, in the absence of a written agreement as to costs, charge a client in Tribunal proceedings.

64 The rates in that Determination are approximately two thirds of the rates claimed by the applicant which would reduce the legal costs sought of $184,634.50 (exclusive of GST) to approximately $123,089.66. Having considered all of the facts and circumstances outlined above, the Tribunal finds that a fair and reasonable contribution to the applicant's legal costs is 50% of the reduced amount of $184,634.50 or $61,544.83 plus GST, making a total amount for legal fees of $68,059.31.

1. The application for costs is allowed.
2. Within 21 days of the date of these orders, the respondent is to pay to the applicant's costs of the review proceedings fixed in the total amount of $112,772.73 being $68,059.31 in legal fees (inclusive of GST); $6,249.00 in disbursements; and $38, 464.42 in consultants' fees.

I certify that this and the preceding [64] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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