Published on Tuesday, 4 December 2018 at 4:31:56 PM
MEDIA RELEASE - 4 DECEMBER 2018
SHIRE RESPONSE TO SAT LANDFILL DECISION
The Shire of York contends that it at all relevant times advocated for the views of its community, and therefore cannot leave unanswered the comment of the State Administrative Tribunal that the Shire failed to comply with its statutory obligation imposed by the previous State Government’s Minister for Planning.
The SAT’s 30 November 2018 reasons for approving the Allawuna landfill proposal refer to a failure of the Shire of York to ‘comply with its statutory obligation’ to modify the draft amendment to its local planning scheme in the terms required by the Minister for Planning. The SAT reasons go on to say that if the Shire had complied with its statutory obligation, it is likely that the draft amendment to the local planning scheme as required by the former Minister, would have been gazetted in ‘those terms’.
The statutory obligation referred to by the SAT relates to the decision of the previous Minister for Planning, issued 5 April 2016, to approve the Shire’s Scheme Amendment No. 50, subject to modifications being undertaken which included the provision of a ‘Special Use No. 8 zone’ over ‘Allawuna Farm’, and making ‘Waste Disposal Facility’ an ‘AA’ (discretionary) use on the property.
The Minister’s decision was made in accordance with Section 87(2) of the Planning and Development Act 2005, and Clause 62(2) of the Regulations, which provisions require:
Within 42 days, or such longer period as allowed by the Commission of being notified that the Minister requires the local government to modify its amendment to its local planning scheme, the local government must —
(a) modify the amendment as required; and
(b) execute the modified amendment; and
(c) submit to the Minister a copy of the executed documents.
However, given the nature of the modifications required and potential implications, officers elected to refer the Minister’s decision to Council for consideration prior to giving effect to the modifications. The matter was presented at the Ordinary Council Meeting of 27 June 2016, where the Council acknowledged its statutory obligation to undertake the modifications required by the Minister, but also raised concerns for technical reasons as to the modification requiring the Special Use Zone No. 8 classification for the Allawuna site. Officers were of the opinion that the inclusion of the SU8 zoning in this case was a significant modification, which warranted re-advertising of the scheme amendment in accordance with clauses 46 and/or 56 of the Regulations, and the officers raised a concern as to the modification on that basis.
The Council resolved to write to the Minister for Planning advising of the Shire’s concern relating to the inclusion in the modification of the Allawuna Farm SU8 rezoning, and advising the Minister of the Shire’s view that the modification to the scheme was significant, and thus warranted re-advertising.
Accordingly, the Shire wrote to the Minister advising of the above position, and a response was received suggesting the Shire confer with the landowners to determine their position on the scheme amendment and to provide their comments to the Minister with the executed documents.
Therefore, whilst the 42-day timeframe to provide the executed documents was not complied with, it was understood at the time that there was an awareness and implied level of consent to the Shire’s position within the correspondence between the Shire on the one hand, and the office of the Minister and the Western Australian Planning Commission on the other hand.
As it happened, a State Election intervened and a new Minister for Planning was appointed by the new Government. The new Minister (i.e. the present Minister for Planning) took a different view on the Scheme Amendment than the Minister in the previous government, and required the Amendment to provide that a Waste Disposal Facility was a prohibited use in the whole of the General Agriculture zone, including the Allawuna site. Effectively that is the outcome that the SAT criticised in its comment about the failure of the Shire to comply with its statutory obligation.
Should the modifications to the Shire’s Scheme have been executed as required by the previous Minister, the SU8 zone and the associated land use of ‘Waste Disposal Facility’ would have been ‘discretionary’ on the Allawuna site. In that case, it is unlikely that such a Scheme Amendment would have been considered a substantial change in the planning framework, and therefore may not have been considered by the JDAP as a reason for its refusal of the extension of time application.
The Council of the Shire on the most recent referral to it of the application to the JDAP for an extension of time, voted to oppose the application. It was that application for an extension of time that was subsequently refused by the Wheatbelt JDAP, but unfortunately was approved on appeal by the State Administrative Tribunal.
Under the rules relating to SAT appeals, the Shire was not permitted to be a party in the SAT review, and therefore did not have the same opportunity to explain to the SAT the reason for delay in the scheme amendment process, as the Shire would have had if it had been a party in the case.
The Shire had hoped on behalf of the community that the SAT would decide not to approve the extension of time, but its decision was otherwise.
For further information please contact:
Shire of York
Paul Martin, CEO on Tel: 9641 2233 or Email: records@york.wa.gov.au
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