UNDER SEPARATE COVER

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1 CITY OF BAYSWATER UNDER SEPARATE COVER FOR THE PLANNING AND DEVELOPMENT SERVICES & ADMINISTRATION AND COMMUNITY SERVICES COMMITTEE MEETING Commencing at 7:00pm 17 August 2015 Item Proposed Concrete Batching Plant - Amended Plans to Approved Application - Sections 31 SAT Reconsideration

2 PLANNING AND DEVELOPMENT SERVICES & ADMINISTRATION AND COMMUNITY SERVICES COMMITTEE AGENDA 17 AUGUST Proposed Concrete Batching Plant - Amended Plans to Approved Application - Section 31 SAT Reconsideration Location: Lot 2, Nos Collier Road, Bayswater Applicant: WA Limestone Owner: Ransberg Pty Ltd Officer: Director Planning and Development Services Refer: Item : OCM Item : OCM Item : OCM Item : OCM Item : OCM Confidential Attachment - in accordance with Section 5.23(2)(d) of the Local Government Act legal advice obtained, or which may be obtained, by the local government and which relates to a matter to be discussed at the meeting. EXECUTIVE SUMMARY Application: In accordance with 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 Ordinary Council Meeting, to refuse amended plans for approved proposed concrete batching plant at Lot 2, Nos Collier Road, Bayswater. Key Issues: Council is to consider the appropriateness of the proposal. Reconsider the amended application in accordance with the additional advice contained within this report. Consider the environmental impacts, particularly dust, with respect to the environmental consultant's advice. 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 were an application has not been genuinely determined on its merits. BACKGROUND Town Planning Scheme No. 24 Zoning: Use Class: General Industry Lot Area: 12,324m 2 Existing Land Use: Surrounding Land Use: Noxious Industry - 'D' Vacant Industrial (East, West, South); Residential (North) Size/Nature of Proposed Development: Concrete Batching Plant - Addition of: Two (2) below ground aggregate delivery bins; Mostly enclosed overhead aggregate storage bins; Aggregate reclaimer for recycling concrete; and Additional cement silo (total of 4). Removal of 13 open ground storage bins. Page 3

3 PLANNING AND DEVELOPMENT SERVICES & ADMINISTRATION AND COMMUNITY SERVICES COMMITTEE AGENDA 17 AUGUST 2015 The initial concrete batching plant application was refused by Council at its Ordinary Meeting held on 28 June 2011, for various reasons including appropriateness of use, loss of amenity and significant objections. Following Council refusal of the abovementioned development application, the applicant lodged an appeal/review with the State Administrative Tribunal (SAT) on 19 July Following a compulsory conference ordered by the SAT, Council considered additional information and amended plans dated 7 October The amended plans proposed improvements to the management of dust, noise and actions to mitigate the visual impact of the site; however concerns still remained in relation to the risks associated with the development by way of noise and dust. Council reaffirmed its decision to refuse the concrete batching plant and retaining wall application (as amended) at its Ordinary Meeting held on 22 November In light of the above, the matter was heard by the SAT by way of a full hearing for three (3) days commencing on 29 November At the completion of the hearing, the SAT indicated that the application could be approved subject to the following information being provided to the SAT's satisfaction: "1. Sufficient technical information on 'wet batch' concrete production to justify its superior performance characteristics to 'dry batch' production. 2. Site specific information on 'base line' air quality (including air modelling) and associated impacts of the proposal." Following the SAT hearing on 29 November 2011, dust monitoring and modelling was undertaken at the site for a period of 12 months. Modelling and monitoring reports were provided to the SAT in addition to a technical report justifying the performance of 'wet batch' concrete production. The SAT ordered the matter to a final hearing on 8 October 2013, to consider the additional information. During the hearing the City's solicitor reiterated the City's concerns regarding dust impacts and argued that the application should be refused. Following the hearing, the SAT made orders which granted conditional approval for the concrete batching plant and retaining wall applications subject to the SAT finalising the conditions of approval on 28 January The final approval was issued on 15 July 2014 and the SAT applied 25 conditions, including stringent conditions relating to the management, controlling and reporting of dust and noise impacts from the development (Attachment 1). Following this approval, the City received an amended development application for the proposed concrete batching plant whereby Council at its Ordinary Meeting held on 26 May 2015 refused the application (Attachment 2). In light of the above refusal of the subject amended development application the City received notification from the SAT on 26 June 2015 that an application for review/appeal had been lodged against the Council determination. The applicant requested that the SAT approve the amended plans in relation to the initial planning approval granted by the SAT on 15 July On 31 July 2015 the review/appeal was heard at a directions hearing whereby the SAT ordered the City to reconsider the application. The primary consideration in relation to this application is in regards to dust, noise and the visual impacts on the streetscape and the affected adjacent properties. Page 4

4 PLANNING AND DEVELOPMENT SERVICES & ADMINISTRATION AND COMMUNITY SERVICES COMMITTEE AGENDA 17 AUGUST 2015 CONSULTATION The City sought comment for the subject proposed amendments from the adjacent affected property owners for a period of 35 days. At the completion of the advertising period, 12 submissions were received, 11 of which objected to the proposal. The main concerns from advertising related to: Dust; Noise; Wastewater; and Traffic. Page 5

5 PLANNING AND DEVELOPMENT SERVICES & ADMINISTRATION AND COMMUNITY SERVICES COMMITTEE AGENDA 17 AUGUST 2015 ANALYSIS Key Issues: The key issues relating to this matter are as follows: Council is to consider the appropriateness of the proposal. Reconsider the amended application in accordance with the additional advice contained within this report. Consider the environmental impacts, particularly dust, with respect to the environmental consultant's advice. 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 were an application has not been genuinely determined on its merits Further Information Council at its Ordinary Meeting held on 26 May 2015 considered the amended plans that involved design modifications to the originally approved SAT application. The proposed variations as part of the proposed amendment are as follows: The front setback to the bin store is 4.5m in lieu of 13.5m; The maximum building height of the silos are 12.5m in lieu of 12m, however the SAT conditioned the height of the silos to be a maximum of 12.5m; and 10% landscaping is required, however the amended plans illustrate nil. The applicant has subsequently provided plans that overlays the original SAT approval with the proposed amendments which can be reviewed as part of Attachment 3. The key amendments are as follows: Re-design of the sand and aggregate delivery storage system to a mostly enclosed system. Sand and aggregate will be deposited into two (2) underground drive-over bins. The bins will be covered by a metal grate, which the delivery trucks drives over and tips aggregate through into the bin in the tunnel section below. 13 of the approved open ground bins are to be removed. The approved open ground bins measure 8m by 8m with a maximum height of 6m and are estimated to store up to 200m 3 of sand/aggregate. Three (3) smaller open ground bins measuring 8m by 4m with a maximum height of 6m will be retained for emergency storage of sand and aggregate. The long term storage of materials in these emergency bins is not proposed. The open ground bins will be replaced with six (6) x 200m 3 and eight (8) x 20.6m 3 overhead aggregate storage bins. The larger bins will be used for standard mixes whilst the smaller bins will be used for smaller special purpose mixes. The bins will be fed by a conveyor from the belowground drive-over delivery bins and fully enclosed within a 12.0m high building. Addition of an aggregate reclaimer and water recycling unit. This will allow returned concrete to be reused in the concrete batching process. The aggregate reclaimer will be located to the south of the overhead storage bins adjacent to the cement truck wash down bays. The unit is not contained within a building. Additional cement storage silo resulting in a total of 4 x 80m 3 silos. Plant operations are to be mostly enclosed. The applicant's original justification and issues relating to noise and dust were discussed in the report to Council on 26 May 2015 with the Council resolving to refuse the amended application. Page 6

6 PLANNING AND DEVELOPMENT SERVICES & ADMINISTRATION AND COMMUNITY SERVICES COMMITTEE AGENDA 17 AUGUST 2015 State Administrative Tribunal Comments At the directions hearing, on 31 July 2015, the SAT issued orders including the following orders that requires Council's reconsideration: "1. By 5 August 2015 the applicant must file with the Tribunal and give to the respondent a statement clarifying the development for which development approval is sought and if not already lodged as part of the development application full plans of the proposed development identifying variations or modifications to the development the subject of development approval granted by the Tribunal on 15 July Pursuant to section 31(1) of the State Administrative Tribunal Act 2004 (WA) the respondent is invited to reconsider its decision at its meeting on 25 August 2015 having regard to the documents provided in accordance with order 1 and any legal advice it receives. 3. By 31 August 2015 the respondent must file with the Tribunal and give to the applicant a statement of its decision upon reconsideration." 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). 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. The City's solicitors' advice in relation to the outcome of the directions hearing is enclosed as Confidential Attachment 4. Facts relating to Council's Position Resident Concerns As part of the original development application considered by Council, and its reconsideration under section 31 of the SAT Act 2004, a significant amount of resident objections were received as outlined above. Council is required to have due regard to these objections as part of its decision making, particularly when health concerns were raised as follows: Health issues can arise from cement dust and silica including heart and lung diseases and eye and skin irritation. Dry and wet concrete can be airborne and travel onto Collier Road, and/or leach in the underground water system. Anzac Terrace Primary School is approximately 1.2kms away and the surrounding residential area is 190m away which includes large lots capable of being subdivided resulting in increased numbers of residents, including families with young children which will be affected. The Environmental Protection Authority buffer zones would require a larger buffer to the residential land uses and Joan Rycroft reserve used as a sporting reserve, as there is a very high risk of inhaling dust particles. The operation times from 7am to 7pm does not appear to be accurate as pours usually start early around 6am so the plant would open between 4.30am am, causing noise issues far earlier than 7am. The highly hazardous corrosive material is compared to as the next asbestos. Buffer to Sensitive Land Uses The Western Australian Planning Commission (WAPC) State Planning Policy 4.1 relating to state industrial buffers advises that buffers to sensitive land uses shall be consistent with the Environmental Protection Authority's (EPA) "Guidance for the Assessment of Environmental Factors No 3" relating to separation distances between industrial and sensitive land uses. Page 7

7 PLANNING AND DEVELOPMENT SERVICES & ADMINISTRATION AND COMMUNITY SERVICES COMMITTEE AGENDA 17 AUGUST 2015 The EPA guidance policy advises that residentially zoned land and parks used as sporting facilities are considered 'sensitive land uses' and that 'high risk' industrial uses require a degree of separation. The policy requires a buffer between 300m and 500m dependant on the size of the proposed concrete batching plant to sensitive land uses. Given the buffer requirement, the original planning application was referred to the Department of Environment and Conservation whom advised that the applicant did not provide a well-researched, robust and clear justification for the deviation of the buffer requirement to 190m to residential land uses. As such, the DEC recommended that the City refuse the application given the proposed variation to the buffer requirement. Appropriateness of the Use A concrete batching plant is currently considered 'noxious industry' in accordance with the City's Town Planning Scheme No. 24 and is a 'discretionary use' within the zoning table. A discretionary use "means that the use is not permitted unless the local government has exercised its discretion by granting planning approval". Given the use is discretionary the application was required to be advertised to the affected landowners and occupiers of the surrounding area, particularly given the variation to the buffer requirements set out by the EPA guidance policy. The original application attracted 312 objections and the amended applications received 12 objections from landowners and occupiers of the adjacent affected area. Objections received were not only from the residential area with respect to health concerns, however also from adjacent general industry operators which considered that the airborne fine dust particles would interfere and impact some manufacturing operations and products. The significant amount of objections coupled with the deviation to the buffer requirements to sensitive land uses, clarifies the proposed use of concrete batching plant is not considered appropriate within this location. Scheme Amendment No. 55 In response to the SAT's determination of this matter and significant community concerns, Council adopted Amendment No. 55 to Town Planning Scheme No. 24 at its meeting of 15 October Amendment No. 55 proposes the following: 1. Insert the following definition in Appendix 1: Interpretations: "Concrete Batching Plant Means land and buildings used for the storage and mixing of the constituent elements of concrete and includes parking, maintenance, mechanical repair and refuelling of concrete mixing vehicles used to deliver concrete batching at the premises." 2. Inserting "Concrete Batching Plant" as a use class within Table No. 1 - Zoning Table of the scheme and classify the use as an 'X' (not permitted) use within all zones. This amendment would prohibit concrete batching plant uses within the City of Bayswater; however existing concrete batching plants can continue to operate as non-conforming uses. The amendment was submitted to the WAPC and was heard by the Statutory Planning Committee (SPC) of the WAPC on 15 October The SPC resolved to defer the amendment pending additional information relating to the strategic impacts of not permitting concrete batching plants within the Bayswater Industrial Area. The City subsequently provided the requested additional information to the WAPC. Consequently, the amendment was again presented to the SPC on 11 August 2015; the City is unaware of when a final determination of the amendment will be made. Given the amendment is in its final stages and has twice been considered by the SPC, it could reasonably be expected that the status of the amendment is 'seriously entertained', and Council could give due regard to the amendment when determining such applications in the interim. The amendment ceases to be seriously entertained if the SPC refuses the proposed amendment. Page 8

8 PLANNING AND DEVELOPMENT SERVICES & ADMINISTRATION AND COMMUNITY SERVICES COMMITTEE AGENDA 17 AUGUST 2015 Environmental Consultant Advice on Amended Development Application The City sought advice from an environmental consultant on the amended plans with respect to environmental concerns. The consultant advised the following key points: The proposed amended design provides better outcomes to control dust than that previously approved. The information provided by the applicant upon submission of the amended application does not explicitly detail how the airborne dust will impact the surrounding area relating to health and amenity. Health impacts relating to dust can be measured easily however, quantifying amenity impacts is difficult. For example, the Able Westchem facility (Nos Collier Road, Bayswater) appears to be highly dust intolerant, whereas the residents that are located further away will notice less dust deposition and are likely not to notice much different unless they constantly wash their vehicles. It is recommended that a cautious approach be taken and further information is sought by the applicant requesting the following information: o how the enclosed building will actually operate to ensure the minimisation of airborne dust particles escaping from the building; o how the applicant intends to monitor dust impacts on the amenity of the area; o what immediate actions will be taken in the event of unacceptable dust emissions monitoring results; and o recommend the application look at a wind fence or equivalent barrier on the boundary to the Able Westchem site, to determine if that will provide additional protection to ensure no dust impact the adjoining site. In summary the environmental consultant states "I suggest that the amended proposal does present some remaining environmental concerns for the City and its ratepayers and additional information is required to fully establish the magnitude of that concern - better described as the residual risk from the amended proposal." In light of the comments provided a condition has been imposed requiring a wind fence to be constructed along the perimeter of the lot, excluding the front setback area, to minimise the potential dust impact on adjoining properties. Streetscape Description of Streetscape Refer to Item of the Ordinary Council Meeting held on 26 May 2015 for discussion relating to streetscape. Impact on Streetscape Refer to Item of the Ordinary Council Meeting held on 26 May 2015 for discussion relating to the impact on the streetscape. Amenity of Adjacent Properties Refer to Item of the Ordinary Council Meeting held on 26 May 2015 for discussion relating to the impact on the amenity of adjacent properties. Other Non-Planning Matters Refer to Item of the Ordinary Council Meeting held on 26 May 2015 for discussion relating to other non-planning matters. Page 9

9 PLANNING AND DEVELOPMENT SERVICES & ADMINISTRATION AND COMMUNITY SERVICES COMMITTEE AGENDA 17 AUGUST 2015 OPTIONS The following options are available to Council: OPTION 1. Council approves the amended plans to the approved concrete batching plant with or without conditions. ESTIMATED COST ($) BENEFIT $0 Nil legal costs for appeal/review associated with the approval. A potential reduction in resources and costs required to ensure compliance with conditions of approval given the proposal demonstrates an improved design to mitigate against identified dust and noise concerns. RISK Resources and costs involved to ensure compliance with the conditions of approval. 2. Council refuses the amended plans to the approved concrete batching plant, and substantiates its decision to SAT. Potentially up to $140,000 Significant cost to defend the Council's decision. Greater resources and costs involved to ensure compliance with the conditions of the original SAT approval. The City needs to substantiate its decision or the City may be at risk of having costs awarded against it by the SAT. 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. Page 10

10 PLANNING AND DEVELOPMENT SERVICES & ADMINISTRATION AND COMMUNITY SERVICES COMMITTEE AGENDA 17 AUGUST 2015 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. FINANCIAL IMPLICATIONS The financial implications are as noted above. STRATEGIC LINK In accordance with the City of Bayswater Strategic Community Plan , the following applies: "Our Built Environment Aspiration: We have a well-connected mix of business, residential and community areas, which are high quality and support our thriving community. Outcome: B1 Streetscapes which allow for community interaction in an urban environment. B3 High quality built form." COUNCIL POLICY AND LEGISLATIVE IMPLICATIONS State Administrative Tribunal Act 2004 (WA) City of Bayswater Town Planning Scheme No. 24 VOTING REQUIREMENTS Simple Majority Required. ATTACHMENTS 1. Plans for Development - Approved by the SAT on 15 July Plans for Development - Amended 3. Plans for Development - Approved and Amended Overlay 4. Confidential - Legal Advice Page 11

11 PLANNING AND DEVELOPMENT SERVICES & ADMINISTRATION AND COMMUNITY SERVICES COMMITTEE AGENDA 17 AUGUST 2015 OFFICER'S RECOMMENDATION That Council, in consideration of the additional information provided by the applicant, approves the revised plans dated 29 January 2015 in relation to the planning approval granted by the State Administrative Tribunal on 15 July 2015 for the proposed concrete batching plant at Lot 2, Nos Collier Road, Bayswater, subject to all conditions and requirements detailed on the previous approval granted 15 July 2014 and the following additional planning conditions: 1. Revised plan(s) addressing the following matters to the satisfaction of the City of Bayswater shall be submitted to and approved by the City 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. (c) The removal of the western side driveway/crossover. (d) The provision of landscaping within the front setback and side setback areas in accordance with the plans approved by the State Administrative Tribunal. 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. A wind fence shall be constructed along the side and rear boundaries of the subject lot with a view of reducing airborne dust particles to adjoining lots prior to commencement of operations to the satisfaction of the City of Bayswater. Moved: Seconded: Page 12

12 PLANNING AND DEVELOPMENT SERVICES & ADMINISTRATION AND COMMUNITY SERVICES COMMITTEE AGENDA 17 AUGUST 2015 Attachment 1 Plans for Development - Approved by the SAT on 15 July 2014 Page 13

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19 PLANNING AND DEVELOPMENT SERVICES & ADMINISTRATION AND COMMUNITY SERVICES COMMITTEE AGENDA 17 AUGUST 2015 Attachment 2 Plans for Development - Amended Page 20

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22 PLANNING AND DEVELOPMENT SERVICES & ADMINISTRATION AND COMMUNITY SERVICES COMMITTEE AGENDA 17 AUGUST 2015 Attachment 3 Plans for Development - Approved and Amended Overlay Page 23

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