GREAT SOUTHERN LIME (WA) PTY LTD, GRAEME JAMES ROBERTSON AND CAMARRI NOMINEES PTY LTD T/A GREAT SOUTHERN LIME and CITY OF ALBANY [2026] WASAT 79

[2026] WASAT 79 Page 1 JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) PLANNING AND DEVELOPMENT (LOCAL PLANNING SCHEMES) REGULATIONS 2015 (WA) CITATION : GREAT SOUTHERN LIME (WA) PTY LTD, GRAEME JAMES ROBERTSON AND CAMARRI NOMINEES PTY LTD T/A GREAT SOUTHERN LIME and CITY OF ALBANY [2026] WASAT 79 MEMBER : DR S WILLEY, SENIOR MEMBER MS M CONNOR, MEMBER DR G MIDDLE, SESSIONAL MEMBER HEARD : 12, 16, 17, 18 AND 20 MARCH 2026 DELIVERED : 8 JULY 2026 FILE NO/S : DR 26 of 2025 BETWEEN : GREAT SOUTHERN LIME (WA) PTY LTD, GRAEME JAMES ROBERTSON AND CAMARRI NOMINEES PTY LTD T/A GREAT SOUTHERN LIME Applicant AND CITY OF ALBANY Respondent Catchwords: Town planning - Non-conforming uses: relevant principles - Characterisation of -- 1 of 122 -- [2026] WASAT 79 Page 2 the purpose for which land is being used - Non-conforming use right premised on development approval - Construction of development approvals: relevant principles - Whether amendment to approval conditions constitutes new purpose for which land is being used - Consideration of cl 67(1) of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) Development - Quarry - Environmental considerations - Endangered fauna - Habitat protection - Sustainable development - Application of precautionary principle - Proportionate response - Basic raw materials - Community need and demand - Amenity considerations in rural areas - Noise - Traffic safety - Dust and vibration from haulage trucks - Orderly and proper planning - Impacts on Bibblumun Track users Practice and procedure - Expert evidence - Instructions given to experts - Expert witness made submissions against proposal during advertising - Impartiality of expert witness Legislation: Biodiversity Conservation Act 2016 (WA) City of Albany Local Planning Scheme No 1 (repealed) City of Albany Local Planning Scheme No 2, cl 3, cl 4, cl 7(a), cl 7(e), cl 8(d), cl 9(f), cl 16, cl 17, cl 18(2), cl 22, cl 22(1), s 22(1)(a), cl 22(1)(b), cl 23, cl 23(1), cl 23(1)(a), cl 23(1)(b), cl 23(1)(c), cl 23(1)(d), cl 23(2), cl 38, Pt 1, Pt 2, Pt 3, Pt 4, Pt 5, Pt 6 City of Albany Local Planning Strategy 2019 Environment Protection and Biodiversity Conservation Act 1999 (Cth) Environmental Planning and Assessment Act 1979 (NSW), s 5(a)(vii) Environmental Protection (Noise) Regulations 1997 (WA), reg(2)(1) Environmental Protection Act 1986 (WA), s 4A Evidence Act 1906 (WA) Interpretation Act 1984 (WA), s 44(1) Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 1, cl 1, Sch 2, cl 60, cl 61, cl 64, cl 64(1)(b)(ii), cl 66, cl 67, cl 67(1), cl 67(1)(a), cl 67(1)(a)(ii), cl 67(1)(b), cl 67(1)(b)(i), cl 67(2), cl 67(2)(b), cl 67(2)(m), cl 67(2)(m)(i), cl 67(2)(x), cl 67(3), cl 68(2), cl 70, cl 73, cl 75, cl 76, cl 76(1), cl 76(2), cl 77, cl 77(1), cl 77(1)(b), cl 77(1)(c), cl 77(2), cl 86(4), Pt 7, Pt 8, Pt 9 Planning and Development Act 2005 (WA), s 3(1)(b), s 3(1)(c), s 4(1), s 27(b), s172, s 241(1)(a), s 257B, s 257B(2), Pt 3, Pt 5, Pt 10, Pt 14, Sch 7, Item 8 Planning Regulations Amendment Regulations 2020 (WA), reg 74 State Administrative Tribunal Act 2004 (WA), s 9(a), s 9(b), s 27, s 27(2), -- 2 of 122 -- [2026] WASAT 79 Page 3 s 29(3), s 30, s 32(1), s 32(2), s 32(2)(b), s 32(4) State Planning Strategy 2050 (WA) Town Planning and Development Act 1928 (WA) (repealed) Result: Application for review allowed Decision of the Respondent set aside, Tribunal's decision substituted Category: B Representation: Counsel: Applicant : Mr K de Kerloy SC and Ms B Tariq Respondent : Ms AM Wood Solicitors: Applicant : Bruno Giovanni Camarri Respondent : Moray & Agnew Lawyers Case(s) referred to in decision(s): Aboriginal Hostels Ltd v Shire of Swan (unreported, TPAT, WA, No 26 of 1979) ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 64 LGRA 177 Adelaide Hills Council Assessment Manager v Parkins [2023] SASCA 66 Agricorp Australia Pty Ltd v Shire of West Arthur [2025] WASAT 40; (2025) 118 SR (WA) 20 Al-Boraich and City of Swan [2020] WASAT 163 Allsure Pty Ltd and Western Australian Planning Commission [2006] WASAT 145 AMT Planning Consultants Pty Ltd t/as Coastplan Consulting v Central Coast Council [2018] NSWCA 289 Anteden Pty Ltd v Glen Eira City Council [2000] VSC 366; (2000) 111 LGERA 42 Australian Unity Property Ltd v City of Busselton [2018] WASCA 38; (2018) 237 LGERA 333 Berry v Wollongong [2008] NSWLEC 210 Bio Organics Pty Ltd and Shire of Serpentine-Jarrahdale [2016] WASAT 96 -- 3 of 122 -- [2026] WASAT 79 Page 4 Botany Bay City Council v Parangool Pty Ltd [2009] NSWLEC 198 Botany Bay Council v Workmate Abrasives Pty Ltd (2004) 138 LGERA 120 BP Australia Pty Ltd v City of Perth (1994) 10 SR (WA) 110 Bridgetown/Greenbushes Friends of the Forest Inc v Department of Conservation and Land Management (1997) 18 WAR 102 Brisbane City Council v Bemcove Pty Ltd [1998] QCA 278; (1999) 104 LGERA 1 Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities (2013) 215 FCR 301; (2013) 196 LGERA 372 Carbone Bros Pty Ltd and Shire of Harvey [2021] WASAT 150 Catalano and Shire of Harvey [2017] WASAT 55 Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114; (2007) 151 LGERA 400 City of Gosnells v Reid [2024] WASCA 155 City of South Perth v ALH Group Property Holdings Pty Ltd [2016] WASC 141; (2016) 213 LGERA 96 Commissioners of the Presbyterian Church of Western Australia and Shire of Peppermint Grove [2007] WASAT 306 Council of the City of Newcastle v Royal Newcastle Hospital (1957) 96 CLR 493 Drummoyne Municipal Council v Maritime Services Board (1991) 72 LGRA 186 Dunbar and City of Stirling [2006] WASAT 331; (2006) 47 SR (WA) 50 Duro Felguera Australia Pty Ltd v Samsung C and T Corp [2018] WASCA 28; (2018) 52 WAR 323 Foodbarn Pty Ltd v Solicitor General (1975) 32 LGRA 157 Franconi v Shire of Perth (1965) 11 LGRA 380 Fryer and City of Subiaco [2006] WASAT 199 GMF Contractors Pty Ltd v Shire of Serpentine-Jarrahdale [2006] WASAT 353; (2006) 48 SR (WA) 1; (2006) 151 LGERA 74 Godolphin Australia Pty Ltd v Chief Commissioner of State Revenue [2024] HCA 20; (2020) 261 LGERA 76 Greenelm Pty Ltd and City of Swan [2010] WASAT 142; (2010) 74 SR (WA) 84 Gull Petroleum (WA) Pty Ltd v Nashville Investments [1999] WASCA 12; (1999) 102 LGERA 431 Harper Investments WA Pty Ltd and Presiding Member of the Metro-Inner Joint Development Assessment Panel [2023] WASAT 130 House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; (2000) 106 LGERA 440 Hutchings and Shire of Augusta-Margaret River [2023] WASAT 96 Interslice Pty Ltd v CCA Investments - Bass Hill Pty Ltd [2025] NSWCA 175 Jojeni Investments Pty Ltd v Mosman Municipal Council [2015] NSWCA 147; (2015) 208 LGERA 54 -- 4 of 122 -- [2026] WASAT 79 Page 5 Kam Khazaly Pty Ltd and Western Australian Planning Commission [2025] WASAT 134 Kent County Council v Kingsway Investments (Kent) Ltd [1971] AC 72 Kipa Freeholds Pty Ltd v Development Assessment Commission (1999) 101 LGERA 414 Lancaster and City of Swan [2012] WASAT 241 Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100; (2005) 39 SR (WA) 119 Lawyers for Forests Inc v Minister for the Environment Heritage and the Arts [2009] FCAFC 114; (2009) 168 LGERA 220 Leatch v National Parks and Wildlife Service (1993) 81 LGERA 270 Meriton Apartments Pty Ltd v Fairfield City Council [2004] NSWLEC 423; (2004) 137 LGERA 35 Minister Administering Crown Lands Act v New South Wales Aboriginal Land Council (1993) 80 LGERA 173 Minister for Aboriginal Affairs v Peko-Wallsend [1986] HCA 40; (1986) 162 CLR 24 Mison v Randwick Municipal Council (1991) 23 NSWLR 734; (1991) 73 LGRA 349 MM & SW Enterprises Pty Ltd v Strathfield Council [2010] NSWLEC 8; (2010) 172 LGERA 125 Mt Lawley Pty Ltd and Western Australian Planning Commission [2007] WASAT 59 Newbury District Council v Secretary of State for the Environment [1981] AC 578 Norman v Gosford Shire Council (1975) 132 CLR 83 North Sydney Municipal Council v Boyts Radio & Electrical (1989) 67 LGRA 344 OTR 208 Pty Ltd and City of Vincent [2025] WASAT 117 Paramatta City Council v Brickworks Ltd (1972) 128 CLR 1 Parramatta City Council v Kritikos (1971) 21 LGRA 404 Paspaley Pearling Co Pty Ltd and Delegate of the CEO of the Department of Primary Industries and Regional Development [No 2] [2024] WASAT 108; (2024) 116 SR (WA) 1 Pinder Architects Pty Ltd v City of Stirling (1996) 92 LGERA 165 Popular Pastimes Pty Ltd v Melbourne City Council [2007] VSCA 188; (2007) 19 VR 1 Prestige Car Sales Pty Ltd v Town of Walkerville (1979) 42 LGRA 80 Reid v City of Gosnells [2023] WASC 48 Robertson and City of Albany [2019] WASAT 3 Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305 -- 5 of 122 -- [2026] WASAT 79 Page 6 Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment [2021] FCA 560; (2021) 248 LGERA 330 Sharon Property Pty Ltd and Presiding Member of the Metro Inner-North Joint Development Assessment Panel [2021] WASAT 63 Shire of Murray v Ivo Nominees [2020] WASCA 45; (2020) 243 LGERA 89 Shire of Perth v O'Keefe (1964) 110 CLR 529 Smargiassi Nominees Pty Ltd v Shire of Collie [2018] WASCA 118 South of Perth Yacht Club (Inc) v Jacob MLA [2016] WASC 160 Squarcini and Milino Pty Ltd v State Planning Commission (unreported SCt of WA (Scott J); Library No 960200; 17 April 1996 Telstra Corp Ltd v Hornsby Shire Council [2006] NSWLEC 133; (2006) 146 LGERA 10 Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664 Tuna Boat Owners Association of SA Inc v Development Assessment Commission [2000] SASC 238; (2000) 77 SASR 369 WA Timber Supplies Ltd and City of Swan [2020] WASAT 153 Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2009] NSWLEC 219; (2009) 173 LGERA 155 Wattleup Road Development Co Pty Ltd and Western Australian Planning Commission [2011] WASAT 160 Wattleup Road Development Co Pty Ltd and Western Australian Planning Commission [2014] WASAT 159 Wattleup Road Development Co Pty Ltd v State Administrative Tribunal [No 2] [2016] WASC 279 Weigall Constructions Pty Ltd v Melbourne & Metropolitan Board of Works [1972] VR 781; (1972) 30 LGRA 333 West Savoy Theatres v City of Perth (1993) 9 SR (WA) 58 Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30 Winn v Director General of National Parks [2001] NSWCA 17; (2001) 130 LGERA 508 Woollahra MC v Banool Developments (1973) 129 CLR 138 Zampatti v Western Australian Planning Commission [2010] WASCA 149; (2010) 176 LGERA 150 -- 6 of 122 -- [2026] WASAT 79 Page 7 Contents: Summary outcome ............................................................................................................... 11 Issues ................................................................................................................................... 11 Jurisdiction .......................................................................................................................... 12 The Subject Land and its locality ........................................................................................ 13 Site history ........................................................................................................................... 14 The Proposed Amendments ................................................................................................. 16 Applicable planning framework .......................................................................................... 16 State planning framework................................................................................................ 16 PD Act ......................................................................................................................... 16 State Planning Strategy 2050....................................................................................... 17 State Planning Policies ................................................................................................ 18 Regional strategy ......................................................................................................... 18 Local planning framework............................................................................................... 19 LPS 1 ........................................................................................................................... 19 LPS 2 ........................................................................................................................... 19 Deemed provisions ...................................................................................................... 22 Local Planning Strategy .............................................................................................. 24 Materials before the Tribunal .............................................................................................. 25 Submissions and materials .............................................................................................. 25 Witness statements .......................................................................................................... 25 Joint witness statements .................................................................................................. 28 Site view .......................................................................................................................... 28 Oral evidence ................................................................................................................... 29 Issue 1: The purpose for which the Subject Land was being lawfully used as at the commencement of LPS 2..................................................................................................... 29 Clause 22 of LPS 2 .......................................................................................................... 29 Clause 22(1)(a): 'the purpose for which [the Subject Land] was being used' ................. 32 Respondent's submissions on the question of 'purpose'................................................... 32 Applicant's submissions on the question of 'purpose' ...................................................... 34 Development approvals: some general principles ........................................................... 34 Non-conforming use rights; some general principles ...................................................... 39 The policy basis for protecting non-conforming use rights ......................................... 39 Characterising the 'purpose' of a non-conforming use .................................................... 40 Ascertaining 'purpose' in the context of a development approval ................................... 45 The manner in which a non-conforming use is carried out need not remain static ......... 52 Issue 1: disposition .......................................................................................................... 54 -- 7 of 122 -- [2026] WASAT 79 Page 8 Issue 2: the applicable statutory regime for the Proposed Amendments ............................. 57 Respondent's submissions ............................................................................................... 57 Applicant's submissions................................................................................................... 58 Issue 2: disposition .......................................................................................................... 58 Principles of construction ............................................................................................ 59 LPS 2 permits the Approved Development to continue .............................................. 59 LPS 2 contemplates changes to a non-conforming use ............................................... 60 Changes to a non-conforming use require development approval .............................. 60 Consideration of applications for development approval ............................................ 61 The Respondent's instructions to its experts ........................................................................ 66 Issue 3: the likely impact of the Proposed Amendments on the Bittern.............................. 67 About the Bittern ............................................................................................................. 67 Road noise and the Bittern .............................................................................................. 69 (1) The potential disturbance to habitat arising from road noise .......................... 69 (2) The potential for road noise to mask the Bitterns' 'booming' call ................... 73 Mr Utber ...................................................................................................................... 74 Ms Formby .................................................................................................................. 75 The paramount duty of experts .................................................................................... 76 The 'booming' call of the Bittern ..................................................................................... 80 The Graff Report ............................................................................................................. 82 The Bittern: our findings ................................................................................................. 83 Sustainable development and land use planning ............................................................. 84 The precautionary principle ............................................................................................. 86 The precautionary principle: the position of the parties .................................................. 88 Issue 3: disposition .......................................................................................................... 88 Issue 4: need and demand for lime in the Great Southern Region ...................................... 91 Relevant state policies ..................................................................................................... 92 The evidence of Mr Smith ............................................................................................... 92 Issue 4A: whether the increased availability of lime constitutes sustainable development ......................................................................................................................................... 94 Issue 4A: disposition ................................................................................................... 95 Issue 4B: community need and demand .......................................................................... 96 Relevant principles ...................................................................................................... 96 Issue 4B: disposition.................................................................................................... 99 Issue 5: the impact of the Proposed Amendments on the amenity of the locality ............. 100 Traffic safety...................................................................................................................... 103 Noise impacts ............................................................................................................ 106 -- 8 of 122 -- [2026] WASAT 79 Page 9 Dust and other amenity impacts .................................................................................... 111 Issue 5: disposition ........................................................................................................ 112 Issue 6: the impact of the Proposed Amendments on the users of the Bibbulum Track ... 112 Our decision ....................................................................................................................... 114 Orders ................................................................................................................................ 119 -- 9 of 122 -- [2026] WASAT 79 Page 10 REASONS FOR DECISION OF THE TRIBUNAL: 1 On 10 January 2019, the Tribunal allowed an application for review authorising Lot 9005 Rock Cliff Circle, Eden Road, Nullaki (Subject Land) to be used for 'extractive industry', subject to 45 conditions (Development Approval). 2 The Development Approval (known as P2160670) authorised the extraction of limestone (Approved Development). The Subject Land continues to be used for the purposes of the Approved Development. 3 The City of Albany Local Planning Scheme No 2 (LPS 2) commenced on 27 February 2024. Under LPS 2, the Subject Land is 'Environmental Conservation' in which the land use 'extractive industry' is a prohibited 'X' use. As a result, upon the commencement of LPS 2 the use of the Subject Land for the Approved Development became a 'non-conforming use'. 4 On 22 September 2024, Great Southern Lime (WA) Pty Ltd, Graeme James Robertson and Camarri Nominees t/as Great Southern Lime (GS Lime or Applicant) applied to amend two conditions (conditions 4 and 17) of the Development Approval (Proposed Amendments), the effect of which would be to, in broad terms, remove restrictions on the volume of lime that is authorised to be extracted, by allowing quarrying activities to be carried out year round, as well as permitting increases in the number of weekly truck movements. 5 The City of Albany (City or Respondent) did not determine the Proposed Amendments within the statutory timeframes set out in cl 75 of the 'deemed provisions'.1 On 5 March 2025, the Applicant lodged an application for review pursuant to cl 76(2) of the deemed provisions, on the basis that the Proposed Amendments were deemed to have been refused (Review). 6 On 30 May 2025, the City resolved to refuse the Proposed Amendments for a number of reasons. The City considers that the Proposed Amendments cannot be approved under cl 67(1) of the deemed provisions, because the effect of the Proposed Amendments would 1 The 'deemed provisions' being the provisions contained in sch 2 to the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regulations). -- 10 of 122 -- [2026] WASAT 79 Page 11 facilitate a land use that is not 'less detrimental' than the existing non- conforming use. 7 The City also raises amenity concerns (including traffic, dust and noise) in relation to nearby properties, as well as users of the Bibbulmun Track. Finally, there are also concerns about the potential impacts of the Proposed Amendments on the Australasian Bittern (Botaurus poiciloptilus) (Bittern), an endangered heron which inhabits the nearby Eungedup Wetlands. Summary outcome 8 For the reasons that follow, the correct and preferable decision is to allow the Review. 9 In summary, we are satisfied, and we find, that the Proposed Amendments: (a) do not engage cl 67(1)(a) of the deemed provisions, as there is no proposed change in the purpose for which the Subject Land was being used immediately prior to the commencement of LPS 2; (b) will not result in unreasonable impacts on the amenity of the locality, including in terms of traffic, dust and noise; and (c) will not, and subject to a variation to the operating hours during the primary breeding season that the Tribunal has imposed, adversely impact the Bitterns, nor its critical habitat. Issues 10 The ultimate issue is what is the correct and preferable decision in relation to the Proposed Amendments. In addressing that question, these reasons will address the following issues: (1) The purpose the Subject Land was being put to as at the commencement of LPS 2. (2) The applicable statutory regime that applies to the Proposed Amendments. (3) The likely impact of the Proposed Amendments on the Bitterns. (4) Need and demand for lime in the Great Southern Region. -- 11 of 122 -- [2026] WASAT 79 Page 12 (5) The impact of the Proposed Amendments on the amenity of the locality. And: (6) The impact of the Proposed Amendments on users of the Bibbulmun track. 11 Issues 1 and 2 are directed to characterising the purpose that the Subject Land is authorised to be put to and whether the Proposed Amendments would result in a change in that purpose. The applicable statutory framework is also explained. 12 Issues 3, 4, 5 and 6, together, constitute our evaluation of the merits of the Proposed Amendments, having regard to the relevant considerations set out in s 67(2) of the deemed provisions. Jurisdiction 13 The Review is a de novo hearing. Neither party bears an onus, and our task is to produce the correct and preferable decision at the time of the decision upon the review.2 14 The objectives of the Tribunal relevantly include to review decisions 'fairly and according to the substantial merits of the case'3 and 'to act as speedily and with as little formality and technicality as is practicable and minimise the costs to parties'.4 15 The Tribunal is, in general terms, bound by the rules of natural justice.5 While the Evidence Act 1906 (WA) does not apply,6 the Tribunal must 'act according to equity, good conscience and the substantial merits of the case',7 and may inform itself on any matter as it sees fit.8 16 The Tribunal may either affirm, vary and set aside the decision under Review.9 2 State Administrative Tribunal Act 2004 (WA), (SAT Act), s 27. 3 SAT Act, s 9(a). 4 SAT Act, s 9(b). 5 SAT Act, s 32(1). 6 SAT Act, s 32(2). 7 SAT Act, s 32(2)(b). 8 SAT Act, s 32(4). 9 SAT Act, s 29(3). -- 12 of 122 -- [2026] WASAT 79 Page 13 The Subject Land and its locality 17 The Subject Land is about 437 hectares (ha) in area, and is located on the Nullaki Peninsula, approximately 40 kilometres (kms) west of the Albany city centre. The Subject Land has an irregular shape, which we can best describe as trapezoidal, with its eastern boundary running in a north-south direction. 18 The Nullaki Peninsula comprises an area of about 6,500 ha, bounded by the Southern Ocean to the south, Wilson Inlet to the north and an opening between the ocean and the inlet to the west. The town of Denmark is situated north-west of Wilson Inlet. 19 About 2,500 ha of the Nullaki Peninsula is privately owned, on which dwellings and associated infrastructure have been constructed. The Subject Land adjoins land reserved for 'Environmental Conservation' to the south and to the east. Land north and west of the Subject Land is also zoned Environmental Conservation. 20 The Bibbulmun Track adjoins a small section of the Subject Land close to its north-east corner, before turning south-east towards the Nullaki campsite. The Nullaki campsite is one of 49 campsites located along the route of the track and is situated about 300 metres (m) from the eastern boundary of the Subject Land. The campsite includes a three-sided hut that provides views of the coastline. There is a rain tank and cleared area for tents.10 21 The Approved Development authorises an 8-hectare portion of the Subject Land, towards the south-east corner, to be used for limestone extraction, pursuant to the Development Approval.11 The limestone quarry is sited in a natural depression and thus there are no issues with visual amenity. 22 The quarry area is approximately: (a) 400 m from the closest point of the Bibbulmun Track, and about 1.5 to 1.6 kms from the Nullaki campsite; and (b) 2.3 kms from the nearest residential dwelling (referred to as R2), being double the generic separation distance in relation to extractive industry involving 'quarrying (including blasting), crushing and screening' (of 1 km) set out in the relevant guidance 10 Exhibit 4.7, page 122. 11 Development Approval, condition 2. -- 13 of 122 -- [2026] WASAT 79 Page 14 provided by the Environmental Protection Authority on separation distances between industrial and sensitive uses.12 23 The extracted lime is stockpiled in a discrete area close to the exit point onto Lee Road. Trucks transporting the extracted material offsite are loaded at the stockpile area. This area is approximately: (a) 600 m from the Nullaki campsite; and (b) 1.5 kms from the nearest dwelling. 24 An annotated location plan is included as Appendix A at the conclusion of these reasons. The location plan identifies key features of the Subject Land, the quarry and those aspects of the surrounding locality which will be discussed in detail in these reasons, including the Eungedup Wetlands, Bibbulum Track, Nullaki campsite, the laden truck route for haulage vehicles and the closest dwelling, known as R2. Site history 25 The Tribunal published its reasons for granting the Development Approval in Robertson and City of Albany (Robertson).13 26 Conditions 14 to 16 of the Development Approval required the Applicant to upgrade several local roads (Lee Road, Browns Road, Lake Saide Road and Lower Denmark Road) to ensure the transport route for trucks was satisfactory. These road upgrades were completed in December 2022 and cost approximately $4.5 million. 27 In December 2023, the Applicant was required to address concerns that had been identified by the (then) Department of Energy, Mines, Industry Regulation and Safety (DMIRS)14 with respect to the heavily laden trucks driving down the steep decline from the quarry area as they exited the Subject Land. Those concerns resulted in inter alia conditions 4 and 17 of the Development Approval being amended to provide as follows:15 12 Guidance for the Assessment of Environmental Factors (in accordance with the Environmental Protection Act 1986) Separation Distances between Industrial and Sensitive Land Uses (No. 3, June 2005). 13 Robertson and City of Albany [2019] WASAT 3 (Robertson). 14 Now known as the Department of Local Government, Industry Regulation and Safety. 15 By the Respondent, at its Council meeting of 19 December 2023. -- 14 of 122 -- [2026] WASAT 79 Page 15 (a) instead of haul trucks being loaded at the limestone quarry, they would instead be loaded at the stockpile area (being a flat area at the foot of the steep decline) close to the exit; (b) the extracted material would be trucked from the quarry area to the stockpile area by a specialised fit-for-purpose 6-wheel vehicle (referred to as a Moxy truck, of which there are two); and (c) haul trucks would be loaded at the stockpile area and the laden trucks would then exit the Subject Land onto Lee Road. 28 Consequently, condition 4, which regulated the hours of operation for various aspects of the quarrying and associated activities, was amended to read: Except as otherwise approved by the City of Albany, the hours of operation of the various elements of the extractive industry activities shall be restricted as follows: (a) Excavation, processing/screening and associated activities within Area A between the hours of 7.00am - 5.00pm Monday to Friday, and 8.00am - 5.00pm Saturday, with no operation of the extractive industry permitted on Sundays or Public Holidays; (b) Transportation of lime onsite from the extraction site (Area A) to the stockpile area (Area B) within the period of 2 January to 31 August (inclusive) between the hours of 7.00am - 5.00pm Monday to Friday, and 8.00am - 5.00pm Saturday, with no operation of this activity permitted on Sundays or Public Holidays; (c) Transportation of lime offsite within the period of 2 January to 30 April (inclusive) between the hours of 7.00am - 5.00pm Monday to Friday, and 8.00am - 5.00pm Saturday, with no operation of this activity permitted on Sundays or Public Holidays. 29 Consequently, condition 17 was amended to read: Transportation offsite of extracted lime shall not exceed 50,000 tonnes in any 12-month period. Laden vehicle movements removing lime from the Lot shall not exceed eighty-four (84) vehicles over a seven (7) day period, with a maximum of twenty (20) vehicles on any one (1) day. 30 Where necessary, we will refer to these refinements to the operations of the Approved Development as the 2023 Amendments. -- 15 of 122 -- [2026] WASAT 79 Page 16 The Proposed Amendments 31 The Review relates to GS Lime's application to amend both conditions 4 and 17 of the Approved Development.16 32 The Proposed Amendments seek to, in effect, vary the terms of the Development Approval by amending: (1) condition 4 to read: Except as otherwise approved by the City of Albany, the hours of operation of the extractive industry shall be restricted to the hours of 7.00 am - 5.00 pm Monday to Friday and 8.00 am - 5.00 pm Saturday with no operations of the extractive industry permitted on Sundays or Public Holidays; and (2) condition 17 to read: Laden vehicle movements removing lime from the [Subject Land] shall not exceed one hundred and twelve (112) vehicles over a seven-day period, with a maximum of twenty (20) vehicles on any one (1) day.17 Applicable planning framework State planning framework PD Act 33 The legislative keystone of the State planning framework is the Planning and Development Act 2005 (WA) (PD Act), which provides for inter alia the making of State planning policies18 and local planning schemes,19 and the basis for the regulation of the subdivision and development of land across the State.20 The Review is made pursuant to pt 14 of the PD Act.21 16 While the Applicant originally applied to delete condition 17, at the final hearing it sought leave, which was granted, to instead amend condition 17. 17 Exhibit 5. 18 PD Act, pt 3. 19 PD Act, pt 5. 20 PD Act, pt 10. 21 PD Act, pt 14. -- 16 of 122 -- [2026] WASAT 79 Page 17 34 The express purposes of the PD Act include inter alia 'to provide for an efficient and effective land use planning system in the State' and to 'promote the sustainable use and development of land in the State'.22 35 By reason of s 241(1)(a) of the PD Act, in determining the Review we are required to have due regard to 'relevant planning considerations' including any State planning policy which may affect the subject matter of the application. The phrase 'relevant planning considerations' was described by Kenneth Martin J in Zampatti v Western Australian Planning Commission,23 as being 'manifestly', 'of broad import'. State Planning Strategy 2050 36 The State Planning Strategy 2050 (State Strategy) provides the strategic context for future strategies, plans, policies and decisions related to the sustainable use and development of land throughout the State. 37 The State Strategy proposes that diversity, liveability, connectedness and collaboration must be central to the vision of sustained growth and prosperity and identifies six interrelated and interdependent State planning principles which are:24 • Community: Enable diverse, affordable, accessible and safe communities; • Economy: Facilitate trade, investment, innovation, employment and community betterment; • Environment: Conserve the State's natural assets through sustainable development; • Infrastructure: Ensure infrastructure supports development; • Regional Development: Build the competitive and collaborative advantages of the regions; and • Governance: Build community confidence in development processes and practices. 22 PD Act, s 3(1)(b), (c). 23 Zampatti v Western Australian Planning Commission [2010] WASCA 149; (2010) 176 LGERA 150 [121] (Kenneth Martin CJ). 24 State Strategy (published June 2024), pages 22 and 23. -- 17 of 122 -- [2026] WASAT 79 Page 18 State Planning Policies 38 State Planning Policy No 1 - State Planning Framework (2017) (SPP 1) is an overarching policy umbrella which unites existing State and regional policies, strategies and guidelines within a central State planning framework (SPF). The SPF provides the legislative and policy context for decision-making on land use subdivision and development in Western Australia. 39 SPP 1 informs decision-makers in the planning process on those aspects of the SPF which are to be taken into consideration, and given effect to, and to ensure integrated decision-making across all spheres of planning. The general principles for land use planning and development established in the State Strategy form the underlying principles for all State and regional plans, policies and strategies under the SPF. 40 SPP 1 includes all current planning policies, strategies, operational policies, position statements and guidelines of the Western Australian Planning Commission (WAPC). We regard the following State planning policies as relevant in the consideration and determination of the Review: (1) State Planning Policy No 2 - Environmental and Natural Resources Policy (2003) (SPP 2); (2) State Planning Policy 2.4 - Planning for Basic Raw Materials (2021) (SPP 2.4), together with the associated State Planning Policy 2.4 - Planning for Basic Raw Materials Guidelines (2021). The parties agree that the Subject Land is an 'extraction site' for the purposes of SPP 2.4; and (3) State Planning Policy 2.5 - Rural Planning (2016) (SPP 2.5), together with the associated State Planning Policy 2.5 - Rural Planning Guidelines (2016). Regional strategy 41 The Lower Great Southern Strategy 2016 (LGS Strategy) was prepared by the WAPC to guide land use planning and provides strategic direction for the Lower Great Southern sub-region. One of the key issues identified in the LGS Strategy is 'securing sustainable access to mineral resources and basic raw materials'. 42 The LGS Strategy identifies that access to limestone is particularly important as lime is applied to neutralise environmental impacts by minimising farm soil acidity. Given this, the LGS Strategy considers an -- 18 of 122 -- [2026] WASAT 79 Page 19 appropriate action is to '[f]und a strategic assessment of the prospect for limestone in the Lower Great Southern, under the auspices of the State lime strategy'. Local planning framework LPS 1 43 At the time that Robertson was approved (on 10 January 2019), the City's applicable local planning scheme was the City of Albany Local Planning Scheme No 1 (LPS 1). The Subject Land was, at that time, zoned 'Conservation',25 and the Approved Development was classified as an 'extractive industry' for the purposes of LPS 1. In Robertson, the Tribunal found that an 'extractive industry' was capable of approval in the Conservation zone. 44 By condition 3 of the Development Approval, the Approved Development was required to be substantially commenced within 24 months of the date of the approval. It is common ground - and clearly the case - that the Approved Development was substantially commenced and was a lawful land use under LPS 1. LPS 2 45 At its commencement (on 27 February 2024), LPS 2 repealed LPS 1.26 As stated earlier, the Subject Land is now zoned 'Environmental Conservation'. LPS 2 includes a zoning table,27 which makes land uses such as 'industry - extractive', (being uses directed to 'the extraction of raw materials'), prohibited uses in the Environmental Conservation zone. 46 At its commencement, LPS 2 revoked LPS 1.28 LPS 2 includes italicised notes, which do not form part of the scheme text.29 47 LPS 2 is a local planning scheme made pursuant to pt 5 of the PD Act. Its terms have 'full force and effect' as if enacted by the PD Act.30 25 The Subject Land was zoned 'Nullaki Penisula Conservation' in LPS 1. 26 LPS 2, cl 3. 27 LPS 2, cl 17. 28 LPS 2, cl 3. 29 LPS 2, cl 4. 30 PD Act, s 87(4). -- 19 of 122 -- [2026] WASAT 79 Page 20 48 The text of LPS 2, namely, pts 1 to 6, adopts the 'model provisions' set out in sch 1 to the LPS Regulations. Of course, pursuant to s 257B(2) of the PD Act, LPS 2 also includes the deemed provisions.31 49 The purposes and aims of LPS 2, include to 'control and guide development',32 and to 'promote the conservation and management of the natural environment and the sustainable management of all-natural resources including water, land, minerals and basic raw materials'.33 50 Part 3 of LPS 2 is directed to the zoning and use of land. By cl 16, LPS 2 establishes a number of zones including, relevantly, the Environmental Conservation zone which has the following objectives: • To identify land set aside for environmental conservation purposes. • To provide for the preservation, maintenance, restoration or sustainable use of the natural environment. • To provide for residential uses adjoining significant environmentally sensitive areas such as coastal or conservation areas where there is a demonstrated commitment to protecting, enhancing and rehabilitating the flora, fauna and landscape qualities of the particular site. 51 Pursuant to the zoning table in cl 17, the Approved Development (being an 'extractive industry')34 is a prohibited use in the Environmental Conservation zone. 52 Clause 22 of LPS 2 deals with non-conforming uses, and provides as follows: (1) Unless specifically provided, [LPS 2] does not prevent - (a) The continued use of any land, or any structure or building on land, for the purpose for which it was being lawfully used immediately before the commencement of this Scheme; or 31 LPS 2, cl 7(a). 32 LPS 2, cl 8(d). 33 LPS 2, cl 9(f). 34 LPS 2, cl 38(1) defines 'industry - extractive' to mean 'premises, other than premises used for mining operations, that are used for the extraction of basic raw materials including by means of ripping, blasting or dredging and may include facilities for any of the following purposes - (a) the processing of raw materials including crushing, screening, washing, blending or grading; (b) activities associated with the extraction of basic raw materials including wastewater treatment, storage, rehabilitation, loading, transportation, maintenance and administration'. -- 20 of 122 -- [2026] WASAT 79 Page 21 (b) The carrying out of development on land if: (i) Before the commencement of this Scheme, the development was lawfully approved; and (ii) The approval has not expired or been cancelled. (2) Subclause (1) does not apply if: (a) The non-conforming use of the land is discontinued; and (b) A period of 6 months, or a longer period approved by the local government, has elapsed since the discontinuance of the non-conforming use. (3) Subclause (1) does not apply in respect of a non-conforming use of land if, under Part 11 of the Act, the local government: (a) Purchases the land; or (b) Pays compensation to the owner of the land in relation to the non-conforming use. 53 Clause 23 is directed to changes to a non-conforming use and provides that: (1) A person must not, without development approval - (a) Alter or extend a non-conforming use of land; or (b) Erect, alter or extend a building used for, or in conjunction with, a non-conforming use; or (c) Repair, rebuild, alter or extend a building used for a non-conforming use that is destroyed to the extent of 75% or more of its value; or (d) Change the use of land from a non-conforming use to another use that is not permitted by the Scheme. (2) An application for development approval for the purposes of this clause must be advertised in accordance with clause 64 of the deemed provisions. (3) A local government may only grant development approval for a change of use of land referred to in subclause (1)(d) if, in the opinion of the local government, the proposed use: (a) Is less detrimental to the amenity of the locality than the existing non-conforming use; and -- 21 of 122 -- [2026] WASAT 79 Page 22 (b) Is closer to the intended purpose of the zone in which the land is situated. Deemed provisions 54 Clause 1 of the deemed provisions provides that a 'non-conforming use' has the meaning set out in s 172 of the PD Act. We will come to that definition later in these reasons.35 55 Part 7 of the deemed provisions deals with development control. By cl 60, a person must not commence or carry out 'works'36 on, or use, land in the [LPS 2] area unless development approval has been obtained under [Pt 9 of the deemed provisions] or development approval is not required for the development by reason of cl 61. There is no relevant exemption for the Proposed Amendments in cl 61. 56 Part 8 deals with the making and administration of applications for development approval. Relevantly, development applications relating to 'the extension of a non-conforming use' must be advertised.37 57 Part 9 sets out the procedure for dealing with applications for development approval. By reason of cl 66, if the local government is of the opinion that an application for development approval may affect any other statutory, public or planning authority, the local government is to provide a copy of the development application to the authority for objections and recommendations. In the context of the Proposed Amendments, the City consulted with the Department of Water and Environmental Regulation (DWER). An expert acoustic witness from DWER (Mr Shurlock) gave evidence at the final hearing. 58 The consideration of applications for development approval is addressed by cl 67 of the deemed provisions. The application and meaning of cl 67(1) was the focus of much of the hearing and, accordingly, will be addressed in some detail. For ease of reference, cl 67(1) provides as follows: (1) Development approval cannot be granted on an application for approval of - 35 Refer [139] below. 36 'Deemed provisions, cl 1 defines 'works', in relation to land, to means: (a) any demolition, erection, construction, alteration of or addition to any building or structure on the land; and (b) the carrying out on the land of any excavation or other works[.]' 37 Deemed provisions, cl 64(1)(b)(ii). -- 22 of 122 -- [2026] WASAT 79 Page 23 (a) development that is a class X use in relation to the zone in which the development is located, unless - (i) the development relates to land that is being used for a non-conforming use; and (ii) the local government considers that the proposed use of the land would be less detrimental than the non-conforming use; or (b) development that otherwise does not comply with a requirement of this Scheme, unless - (i) this Scheme gives the local government discretion to waive or vary the requirement or to grant development approval despite non-compliance with the requirement; or (ii) the development is permitted under a provision of this Scheme in relation to non-conforming uses. 59 Clause 67(2) then sets out the prescribed matters that the local government, in the exercise of discretion, is to have due regard to, to the extent that, in the opinion of the local government, such matters are relevant to the subject of the application. We will come to those cl 67(2) factors that we regard as relevant to the Proposed Amendments when we come to address Issues 3, 4, 5 and 6. 60 By reason of cl 68(2) of the deemed provisions, the local government may determine an application for development approval by either granting approval without conditions, granting approval with conditions or refusing to grant development approval. 61 Pursuant to cl 70, the local government is required to give the applicant written notice of the determination in accordance with the form provided for at cl 86(4) of the deemed provisions. The determination takes effect on the day on which the notice is given to the applicant. In this case, following the Tribunal's decision in Robertson, the City did not provide written notice in accordance with the requirements of cl 86(4). 62 Accordingly, there is no relevant 'development approval' in the conventional sense of that term, that records the Development Approval -- 23 of 122 -- [2026] WASAT 79 Page 24 for the Approved Development. As time has moved on, the City's decision to not issue such a notice has proved to be less than ideal. 63 A local government may determine the scope of a development approval.38 It may grant development approval: (a) for the development for which the approval is sought; or (b) for the development for which the approval is sought, except for a part or aspect of that development specified in the approval; or (c) for a part or aspect of the development for which approval is sought that is specified in the approval. 64 Clause 76(1) provides that an 'affected person'39 may apply to the Tribunal based on a 'reviewable determination' made by the local government. The City's decision to refuse the Proposed Amendments is a 'reviewable determination' pursuant to cl 76. 65 Clause 77(1) provides that an owner of land for which development approval has been granted, may apply to the local government to, relevantly, amend or delete any condition to which the approval is subject. Local Planning Strategy 66 The WAPC endorsed the City of Albany Local Planning Strategy (LPS Strategy) on 28 November 2019. Its purpose is to guide 'settlements growth and land use planning over the next 10 - 15 years and provides a rationale for zoning, land use and development control in [LPS 2]'. LPS 2 is to be read in conjunction with the LPS Strategy.40 67 The LPS Strategy includes a section headed 'Rural - Land and Soil' which, in its discussion of 'Basic Raw Materials', emphasises the importance of access to limestone and includes implementation actions in relation to basic raw materials. It states: The sustainable extraction of basic raw materials is important to protect environmental and biodiversity values whilst meeting long term resource needs. Access to limestone is particularly important, as the use of agricultural limestone and lime sand is the primary method currently used to neutralise acidic agricultural soils. There is a finite supply of minerals and basic raw materials, and their extraction should be supported by 38 Deemed provisions, cl 73. 39 Deemed provisions, cl 76(1), an 'affected person' includes 'the applicant for development approval'. 40 LPS 2, cl 7(e). -- 24 of 122 -- [2026] WASAT 79 Page 25 regional strategy to ensure efficient use, environmental protection and sequential land uses. Proposals for basic raw material extraction must consider the value and protection of native vegetation. … Actions … BASIC RAW MATERIALS 8. Protect existing and potential sites for basic raw material and agricultural mineral extraction, taking into consideration land use conflicts, environmental values, visual impact and buffer areas where necessary. 9. Enable mineral exploration and extraction in accordance with acceptable environmental and amenity standards. Materials before the Tribunal Submissions and materials 68 The Tribunal has before it a large volume of materials. Each party filed extensive bundles of materials,41 totalling more than 2,400 pages. The relevant exhibits that outline the parties' respective cases included inter alia: Main hearing book (including: the Original Application, Statements of Issues, Facts and Contentions) Exhibit 1 Respondent's Bundles, Applicant's Bundles Exhibit 2 Submissions, Case authorities Exhibit 3 Witness statements 69 Both parties filed extensive expert and lay evidence. The expert evidence was directed to traffic, noise, environmental considerations and planning issues. 41 Exhibit 2. -- 25 of 122 -- [2026] WASAT 79 Page 26 70 The Respondent called the following expert witnesses: (1) Mr Martin Shurlock, Environmental Officer (Noise), DWER Witness statement: Responsive statement: Exhibit 1.5 Exhibit 4.5 (2) Ms Amellia (Milly) Formby, WA Bittern Coordinator, Birdlife Australia Witness statement: Responsive statement: Supplementary statement: Exhibit 4.4 Exhibit 4.5 Exhibit 4.23 (3) Mr Deon Utber, Officer at Department of Biodiversity, Conservation and Attraction, Parks and Wildlife (DBCA) Witness statement: Responsive statement: Supplementary statement: Exhibit 4.7 Exhibit 4.8 Exhibit 4.9 (4) Mr Tom Wenbourne, Senior Planning and Compliance Officer, City of Albany Witness statement: Responsive statement: Exhibit 4.10 Exhibit 4.11 (5) Mr Alan Millar, Development Engineer, City of Albany Witness statement: Exhibit 4.12 (6) Mr Joe Algeri, Town planning consultant Witness statement: Responsive statement: Exhibit 4.13 Exhibit 4.14 71 The Respondent also filed the following statements from local residents: -- 26 of 122 -- [2026] WASAT 79 Page 27 (7) Ms Angela Dickinson, a resident living 5 km from the Subject Land Witness statement: Exhibit 4.1 (8) Mr Shaun Ossinger, a resident and manager of the Eungedup Wetlands Witness statement: Exhibit 4.2 (9) Mr Barry Jackson, a resident living 10 km from the Subject Land who walks the Nullaki section of the Bibblumun Track Witness statement: Exhibit 4.3 (10) Ms Denise Blackwell, a resident living 2 km from the Subject Land and 50 metres from the corner of Browns Road and Lee Road. Witness statement: Exhibit 4.6 72 The Applicant called the following witnesses: (1) Mr Scott Smith, shareholder/director of the Applicant Witness statement: Exhibit 4.16 (2) Mr Martin Bowman, Environmental consultant Witness statement: Responsive statement: Exhibit 1.6 Exhibit 4.21 (3) Ms Melanie Price, Environmental consultant Witness statement: Responsive statement: Exhibit 1.7 Exhibit 4.19 (4) Mr Sam Laybutt, Traffic engineer Witness statement: Responsive statement: Exhibit 1.8 Exhibit 4.22 -- 27 of 122 -- [2026] WASAT 79 Page 28 (5) Mr Tim Reynolds, Acoustic engineer Witness statement: Responsive statement: Exhibit 1.9 Exhibit 4.20 (6) Ms Rachel Chapman, Town planning consultant Witness statement: Responsive statement: Exhibit 4.17 Exhibit 4.18 Joint witness statements 73 Each of the respective experts attended conferrals and filed joint witness statements. These included: (1) Joint statement of the environment consultants (Mr Utber, Ms Formby, Mr Bowman and Ms Price) Exhibit 1.1 (2) Joint statement of the acoustic experts (Mr Shurlock and Mr Reynolds) Exhibit 1.2 (3) Joint statement of the planning experts (Mr Algeri and Ms Chapman) Exhibit 1.3 (4) Joint statement of the traffic experts (Mr Millar and Mr Laybutt) Exhibit 1.4 Site view 74 On 12 March 2026, at the commencement of the final hearing, the Tribunal undertook a site view with the parties. 75 The parties traversed the relevant access roads, visited the Eungedup Wetlands, walked a section of the Bibbulmun Track, visited the Nullaki campsite and observed the quarrying of limestone at the pit, the carting of quarried lime down the slope by the Moxy and the loading of haulage trucks. -- 28 of 122 -- [2026] WASAT 79 Page 29 Oral evidence 76 The evidence led at the final hearing was largely directed to environmental considerations (including noise, as it affects the Bitterns) as well as town planning issues. 77 The Tribunal did not hear from the traffic consultants, and the acoustic experts gave only brief evidence. We also heard from Mr Scott for the Applicant and Mr Ossinger, a local resident, for the Respondent. Issue 1: The purpose for which the Subject Land was being lawfully used as at the commencement of LPS 2 Clause 22 of LPS 2 78 Neither the terms of LPS 2, nor the deemed provisions, expressly adopt the meaning of 'development' set out in s 4(1) of the PD Act. However, perforce of s 44(1) of the Interpretation Act 1984 (WA), words and expressions used in subsidiary legislation, has the same respective meanings as in the written law it was made under. 79 It is common ground that 'development', as that term is defined and applied in the context of the PD Act, has two limbs or aspects. The first being the use of, or activities on, land. The second being the activities or works that result in some physical alteration to land which has some degree of permanence. As the chapeau to s 4(1) of the PD Act makes clear, depending on the context in which it is used, 'development' can refer to either or both of its limbs. 80 We have set out cl 22 of LPS 2 at [52] above. 81 In applying cl 22(1) of LPS 2, it is necessary to have regard to the relevant meaning of 'use' and 'development' in the context of the PD Act. 82 The effect of cl 22(1)(a) is that, unless specifically provided for, LPS 2 does not prevent the continued use of any land, or any structure or building on land, for the purpose for which it was being used immediately before the commencement of LPS 2. 83 By its terms, cl 22(1)(a) applies to permit the continued operation of all lawful land uses. Where a land use has become prohibited by LPS 2, that use may continue as a non-conforming use. However, cl 22(1)(a) is directed only to the continuation of lawful land uses, including the continued use of (existing) structures associated with that land use. It does not authorise the carrying out of physical works, or -- 29 of 122 -- [2026] WASAT 79 Page 30 what the Court of Appeal has described as being 'development in its ordinary sense'.42 84 The carrying out of such physical works is addressed in cl 22(1)(b), which authorises 'the carrying out development' in accordance with a lawful approval that has not expired or cancelled. 85 By reason of the Court of Appeal's reasoning in Ivo Nominees,43 and that of Quinlan CJ in Smargiassi,44 it is settled law that cl 22(1)(a) is directed to the continued use of land, including buildings or structures associated with the land use, whereas cl 22(1)(b) is directed to the carrying out of a development, that is physical works, that remain lawful to carry out by reason of an extant lawful approval that has not expired or been cancelled. We note that Jackson DP reached the same conclusion in OTR 208 Pty Ltd and City of Vincent.45 86 It is common ground that this Review involves the continued use of the Subject Land which is authorised by cl 22(1)(a) of LPS 2. Likewise, the parties agree that because the use being made of the Subject Land, being an extractive industry, is prohibited in the Environmental Conservation zone, the use of the Subject Land has become a non-conforming use. The purpose for which land is used 87 As a matter of planning law, land is used for a purpose.46 The purpose is the end to which the land is seen to serve. It describes the character which is imparted to the land on which the use is pursued.47 In determining whether land is used for a particular purpose, it is necessary to have regard to how that purpose is to be achieved.48 88 However, the nature, or manner, in which the use is carried out is to be distinguished from the purpose of the use. That is, the purpose to which land is put may involve a range of uses of a different nature. For example, in the context of supermarket, land associated with the supermarket that is made available for car parking, landscaping and 42 Shire of Murray v Ivo Nominees [2020] WASCA 45; (2020) 243 LGERA 89 (Ivo Nominees) [40]. 43 Ivo Nominees [38] - [44]. 44 Smargiassi Nominees Pty Ltd v Shire of Collie [2018] WASCA 118 (Smargiassi) [146] - [147]. 45 OTR 208 Pty Ltd and City of Vincent [2025] WASAT 117 (OTR 208) [72]. 46 Minister Administering Crown Lands Act v New South Wales Aboriginal Land Council (1993) 80 LGERA 173, 188 (Sheller JA, Prietley JA and Clarke JA agreeing). 47 Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114; (2007) 151 LGERA 400 [27] (Preston CJ). 48 Council of the City of Newcastle v Royal Newcastle Hospital (1957) 96 CLR 493, 499 - 500 (Williams J, Webb J agreeing). -- 30 of 122 -- [2026] WASAT 79 Page 31 access arrangements to and from the adjacent road network, are land uses of a different nature but which together, serve the purpose of being used for a supermarket.49 89 Another manifestation of this principle is the 'dominant purpose' analysis in Foodbarn Pty Ltd v Solicitor General.50 In Foodbarn, Glass JA explained that:51 It may be deduced that where a part of the premises is used for a purpose which is subordinate to the purpose which inspires the use of another part, it is legitimate to disregard the former and to treat the dominant purpose as that for which the whole is being used. Doubtless the same principle would apply where the dominant and servient purposes both relate to the whole and not to separate parts[.] 90 Glass JA's reasoning in Foodbarn was approved by the Full Court in Gull Petroleum (WA) Pty Ltd v Nashville Investments,52 in the context of an argument as to the proper classification of a land use comprising separate elements of a 'service station' and a 'shop'. Steytler J, Kennedy J and Ipp J agreeing, explained that:53 The classification of the proposed uses should not be carried out either in a mechanical or in an arbitrary way. If, in a particular case, the manner in which two uses are to be combined on a particular site makes it inappropriate to categorise the resulting use as a dual use with each use falling within a definition in the Scheme, perhaps because the proposed manner of combining the two uses so changes the character of one or both of them that it or they can no longer sensibly be taken to fall within the definition or definitions in the Scheme, then there should be no such categorisation. Where, on the other hand, the character of each use remains unaffected by the fact that one site is shared between them there is no reason why the categorisation of each use should be any different than if each had been effected from its own site. If either use is unacceptable within the particular location, it would not be approved. That consequence would not be altered by the fact that another, permitted, use would be effected from the same site. 91 Accordingly, it follows that the classification of a land use is to discern the purpose that land is being, or is proposed to be, put. 49 Chamwell [34] - [35]. 50 Foodbarn Pty Ltd v Solicitor General (1975) 32 LGRA 157 (Foodbarn). 51 Foodbarn 161. 52 Gull Petroleum (WA) Pty Ltd v Nashville Investments [1999] WASCA 12; (1999) 102 LGERA 431 (Gull Petroleum). 53 Gull Petroleum [52]. -- 31 of 122 -- [2026] WASAT 79 Page 32 Within that, as is made clear by Gull Petroleum, it is possible that land may be put to more than one purpose.54 92 Having canvassed those principles, we turn now to address the provisions within LPS 2 that are directed to non-conforming uses. Clause 22(1)(a): 'the purpose for which [the Subject Land] was being used' 93 By its terms, cl 22(1)(a) operates to preserve the continuation of 'the purpose for which the Subject Land was being lawfully used immediately before the commencement of LPS 2'. It is the use of the Subject Land for that purpose, and only that purpose, that is preserved or saved under LPS 2. 94 The purpose that the Subject Land was being used at the commencement of LPS 2 is one of the principal issues in this Review. 95 That is because once that purpose is determined, our task then is to evaluate whether the Proposed Amendments constitute a continuation of that same purpose, or whether they would bring about a change in the use being made of the Subject Land. That is, would the Proposed Amendments have the effect that the Subject Land would be used for a purpose other than the purpose that is 'saved' by cl 22(1)(a). 96 If we find that the Proposed Amendments would result in the Subject Land being used for a purpose other than that which is protected by cl 22(1)(a) of LPS 2, then cl 67(1)(a)(ii) of the deemed provisions is enlivened. 97 If engaged, cl 67(1)(a)(ii) operates to limit the discretion of the Tribunal to grant development approval to the Proposed Amendments only if we consider that 'the proposed use of the land would be less detrimental', than the existing non-conforming use being made of the Subject Land. 98 The question as to whether the Proposed Amendments are such that they would effect a change in the purpose for which the Subject Land is being used, will be discussed further in Issue 2. Respondent's submissions on the question of 'purpose' 99 With respect, the Respondent's submissions on the purpose to which the Subject Land was being put to immediately before the 54 OTR 208 [52]. -- 32 of 122 -- [2026] WASAT 79 Page 33 commencement of LPS 2, are not easily discernible. Its submissions are directed, almost exclusively, to its argument that the Proposed Amendments would result in the Subject Land being used for a purpose that differs from the use that was being carried out pursuant to the Development Approval. 100 As a result, the Respondent's submissions do not directly engage with the question as to the characterisation of the 'purpose' that is saved, or protected, by cl 22(1)(a). 101 The Respondent emphasises that the Approved Development, namely by conditions 4 and 17, as modified by the 2023 Amendments, provided for only the limited extraction of limestone. That is so because condition 4 restricted the operations of the quarry, including seasonal restrictions on when lime was permitted to collected from the Subject Land. Condition 17 restricted the volume of lime that may be transported from the Subject Land each year. 102 On the Respondent's case, the Proposed Amendments would change the nature of that use (or purpose) from, in effect, a limited, to an unlimited, extractive industry land use. That being the case, the Respondent submits that GS Lime seeks to derive a benefit from the non-conforming use beyond that which was permitted under the Approved Development.55 103 In closing, the Respondent submitted that 'the purpose of the development was [that] approved by [the Tribunal on] 10 January 2019 and that is described by the 38 conditions [of a total of 45 approval conditions] which were not envisaged by the [Tribunal] to be subject to potential variation'.56 104 That is, the Respondent submits that the Development Approval comprises 45 approval conditions, 38 of which are not, by their terms, capable of variation and are thus, in effect, embedded into the 'unalterable fabric' of the Approved Development. 105 Therefore, the Respondent submits, the 'purpose' for which 'the Subject Land was lawfully being used immediately before the commencement of LPS 2', must be characterised in a manner which reflects both the approved use and the conditions that determine how the 55 ts 37, 16 March 2026. 56 Respondent's Closing Submissions, 20 March 2026, para 17(xi). -- 33 of 122 -- [2026] WASAT 79 Page 34 use was lawfully carried out, including the limits provided by both condition 4 and condition 17. 106 Condition 17 is of particular significance. Condition 17 limits the volume of lime that may be extracted from the Subject Land to a maximum of 50,000 tonnes (t) in any 12-month period. The Respondent submits that condition 17 lies at the 'unalterable core, or purpose, of the [Approved Development].57 107 For these reasons, the Respondent ultimately agreed that, in substance, its submissions are to the effect that the Subject Land was being used for the purpose of 'limited extractive industry'.58 Applicant's submissions on the question of 'purpose' 108 The Applicant submits that the purpose that the Subject Land was being used for, as at the commencement of LPS 2, was 'lime extraction'.59 109 The Applicant further submits that the conditions of approval, which regulate how that use may be carried out, have no role in defining a non-conforming use right. The Applicant submits that the Respondent's submissions to the contrary are 'wrong at law'.60 110 As is apparent from the dispute between the parties, in determining the 'purpose for which the [Subject Land] was being lawfully used immediately before the commencement of LPS 2', this Review raises the question of whether that 'purpose' is informed, even defined by, approval conditions that form part of the Development Approval. 111 To address that question it is necessary for us to set out a number of principles which govern the construction of development approvals and conditions, as well as to appreciate the question of purpose in the context of non-conforming use rights. Development approvals: some general principles 112 We make the following observations on the nature, and construction, of development approvals, including approval conditions. 113 First, a development approval cannot be separated from the approval conditions. The conditions are an inextricable aspect of 57 ts 42, 16 March 2026. 58 ts 43, 16 March 2026. 59 ts 11, 16 March 2026. 60 Applicant's Closing Submissions, 20 March 2026, para 33. -- 34 of 122 -- [2026] WASAT 79 Page 35 the basis on which the decision to grant development approval was made. The approval and the conditions come into effect uno flato and together become, one thing.61 The conditions regulate the manner in which an approved development is to be carried out. The conditions are not to be regarded as a separate or ancillary aspect of a development approval. 114 Second, a development approval is intended to endure and must be interpreted in a manner that acknowledges that function.62 A development approval is not to be regarded as the outcome of a contractual negotiation or a bargaining process; it is the product of the planning authority's unilateral decision.63 115 Third, in the context of a historical approval, the task is to determine the objective meaning of the permission that has been granted.64 That task is not a quest to ascertain what the planning authority would have said it intended.65 The enduring nature of a development approval encourages a fair but liberal reading of the rights it confers, recognising that a landowner may spend considerable money in acting upon an approval.66 116 Fourth, the content and scope of a development approval granted under a local planning scheme is now addressed by cl 73 of the deemed provisions. In City of Gosnells v Reid,67 Buss P and Vandongen JA stated that: … it is the development for which development approval is sought that will mark out the boundaries of any development approval that is granted under the relevant statutory scheme, subject to anything specified in an approval granted under cl 73(b) or 73(c) of the deemed provisions[.] 117 Fifth, it is a fundamental principle of planning law that the role of conditions is to regulate the manner in which the development is carried out. In doing so, conditions may be directed to the regulation of incidental aspects of a development, for example, matters such as 61 Kam Khazaly Pty Ltd and Western Australian Planning Commission [2025] WASAT 134 [147]; Lawyers for Forests Inc v Minister for the Environment Heritage and the Arts [2009] FCAFC 114; (2009) 168 LGERA 220 [54] (the Court). 62 Winn v Director General of National Parks [2001] NSWCA 17; (2001) 130 LGERA 508 (Winn v Director General of National Parks) [4] (Spigelman CJ). 63 Winn v Director General of National Parks [4] (Spigelman CJ). 64 ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 64 LGRA 177, 188 (Kirby P, Samuels JA and Hunt AJA). 65 Reid v City of Gosnells [2023] WASC 48 [220] - [221]. 66 House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; (2000) 106 LGERA 440 [41] (Mason P, Stein JA and Giles JA agreeing). 67 City of Gosnells v Reid [2024] WASCA 155 (Buss P & Vandongen JA) [44]; [615] - [616] (Lundburg J). -- 35 of 122 -- [2026] WASAT 79 Page 36 providing and maintaining landscaping, hours of operation, numbers of patrons and delivery times. 118 However, as the Tribunal explained in Land Alliance Pty Ltd and City of Belmont,68 where approval conditions operate to strike at the heart of the approved use and serve to restrict that use being carried out in its ordinary sense, it is a tacit acknowledgement that the use is inappropriate in that context. In exercising discretion as to whether to grant development approval, the focus must be on the suitability of the development in its context, without immediately deferring to conditions that are designed to mitigate its impacts.69 Likewise, approval conditions cannot operate to transform a proposal, such that the grant of consent brings about a development that is fundamentally different to that which was applied for.70 119 Sixth, it is not improper, nor impermissible, for a condition to impose restrictions or place limitations on the approved development. Whether an approval condition impermissibly strikes at the heart of the approved use will, in all instances, be a question of fact and degree. It will be a rare instance that a development approval, other than perhaps in a suburban residential context, is granted without conditions directed to the manner in which the approved use is to be carried out. The imposition of development standards and requirements under a local planning scheme are expressly authorised by the PD Act.71 120 Furthermore, as the Court of Appeal made clear in City of Gosnells v Reid,72 by reason of cl 73 of the deemed provisions, a condition can also lawfully specify an aspect or part of a development that has been applied for, but which is not approved. 121 Seventh, the notion that certain approval conditions are 'core' or 'unalterable' may arise in the context of judicial review, but it is not traditionally recognised as relevant in the context of development 68 Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100; (2005) 39 SR (WA) 119 [42]; see also Kipa Freeholds Pty Ltd v Development Assessment Commission (1999) 101 LGERA 414 [39] (Debelle J); Lancaster and City of Swan [2012] WASAT 241 [78]; Bio Organics Pty Ltd and Shire of Serpentine- Jarrahdale [2016] WASAT 96 [88]; Catalano and Shire of Harvey [2017] WASAT 55 [122]. 69 Drummoyne Municipal Council v Maritime Services Board (1991) 72 LGRA 186,192 (Stein J). 70 See for example Allsure Pty Ltd and Western Australian Planning Commission [2006] WASAT 145 [12] - [24]; Mison v Randwick Municipal Council (1991) 23 NSWLR 734; (1991) 73 LGRA 349, 352 (Priestley JA, Clarke and Meagher JJA agreeing). 71 PD Act, sch 7, item 8. 72 City of Gosnells v Reid [42] (Buss P and Vandongen JA). -- 36 of 122 -- [2026] WASAT 79 Page 37 control, including by administrative tribunals undertaking de novo reviews. 122 Rather, in the context of development control, the focus is on validity of conditions, largely, but not solely, by reference to the criteria endorsed by McHugh J in WAPC v Temwood Holdings Pty Ltd,73 and before that, by the House of Lords in Newbury District Council v Secretary of State for the Environment.74 123 Eighth, it is accepted that planning approval conditions must not only be valid in the sense explained in Temwood, but they inter alia must also be comprehensible, certain and final and operate as a consent to the development that was applied for.75 124 It is trite that an approval condition must be comprehensible, in the sense that it can reasonably be understood to enable it to be carried out. Courts have been reluctant to strike down conditions on the basis that an approval condition can be given no meaning. Only where a condition is unable to be given any sensible meaning, will it be held to be invalid.76 125 Likewise, only where the effect of the condition is such that it would significantly alter the development or leave open the possibility that the development carried out will be significantly different from that applied for, will the line of invalidity be crossed. That is so because, in such instances, the reality is that the development approval does not operate as a consent to the development that was applied for.77 126 However, such arguments generally arise only in the context of judicial review, often pressed by a third party,78 on the basis that a condition is invalid.79 127 Ninth, only if a court reaches the view that an approval condition is invalid does it then turn to assess the role of the condition within the overall structure of the approval. That exercise requires the court to consider whether the development approval can stand in the absence of the invalid condition. If the invalid condition cannot, as a matter 73 Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30 [57] (McHugh J). 74 Newbury District Council v Secretary of State for the Environment [1981] AC 578 599, 607 - 608, 618 and 628. 75 Mison, 352. 76 Weigall Constructions Pty Ltd v Melbourne & Metropolitan Board of Works [1972] VR 781; (1972) 30 LGRA 333, 351-352 (Pape J). 77 South of Perth Yacht Club (Inc) v Jacob MLA [2016] WASC 160 [52] (Chaney J). 78 Cf South of Perth Yacht Club (Inc) v Jacob MLA [52] (Chaney J). 79 Weigall Constructions Pty Ltd v Melbourne & Metropolitan Board of Works, 351 - 352 (Pape J). -- 37 of 122 -- [2026] WASAT 79 Page 38 of substance and practicality, be 'severed', then the development approval itself may collapse.80 128 In this regard, the decision of the New South Wales Court of Appeal in Parramatta City Council v Kritikos,81 is illustrative. An approval had been granted for a 'snack bar' subject to a condition that 'no pinball machines, juke boxes or the like are to be installed'. The appellant acquired the snack bar and, without approval, installed billiard tables, pinball machines and juke boxes. The Council sought injunctive relief to restrain the operation of the snack bar. Asprey JA (Holmes JA agreeing) explained that: The true test is that if there is imposed on a permission an invalid condition which relates to matters fundamental to the development then in such a case the whole permission is or may be void. 129 The reasoning in Kritikos was approved by the Full Court of the Federal Court in Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities82 in the context of an application for judicial review of a decision to approve the taking of a 'controlled action' for the purposes of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). In this jurisdiction, the Full Court's reasoning in Buzzacott was approved by Buss P and Murphy JA in Duro Felguera Australia Pty Ltd v Samsung C and T Corp.83 130 Accordingly, only in circumstances where an approval condition has been held to be invalid, does a court embark on an evaluation as to whether the invalid condition is such that the development approval cannot be carried out in its absence. It is at that point when the court may be required to determine whether that condition sits at the 'core' or the 'root' of the approval, such that the consent cannot stand without it. 131 However, that is not this case. 80 See for example, the analysis of Lord Morris in Kent County Council v Kingsway Investments (Kent) Ltd [1971] AC 72, 102 - 103. 81 Parramatta City Council v Kritikos (1971) 21 LGRA 404 (Kritikos), 408. 82 Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities (2013) 215 FCR 301; (2013) 196 LGERA 372 (Buzzacott) [255] (Gilmour, Foster and Barker JJ). 83 Duro Felguera Australia Pty Ltd v Samsung C and T Corp [2018] WASCA 28; (2018) 52 WAR 323 [139]. -- 38 of 122 -- [2026] WASAT 79 Page 39 Non-conforming use rights; some general principles The policy basis for protecting non-conforming use rights 132 A common feature of zoning schemes are savings provisions which permit the continued use of land for the purpose for which it is being used immediately prior to the commencement of the scheme. These savings provisions also permit the continued carrying out of development pursuant to development approvals which remain in effect. 133 Clause 22 of LPS 2, which we discuss in detail below, reflects the model provisions within sch 1 to the LPS Regulations. The effect of cl 22(1)(a) is to permit the continuation of all lawful land uses. Included within these existing land uses are some uses that have become prohibited under LPS 2. Such uses may continue as non-conforming uses. 134 Non-conforming use rights are based on the principle of fairness and accrued property rights. While planning laws are largely directed to communal goals and the protection of the public interest, there would be significant economic, social and environmental consequences, if changes to the planning framework had retrospective effect to render the continuation of existing uses unlawful. As Kirby P noted in North Sydney Municipal Council v Boyts Radio & Electrical:84 … in our form of society, with private ownership of land, the character of a neighbourhood cannot suddenly be changed by the stroke of the planner's zoning pencil. 135 Nevertheless, non-conforming use rights create a tension between the continuing use which is 'saved', and the communal planning intentions, as evinced in the new planning scheme. A balance must be struck between, on the one hand, the rights of the landowner to continue a land use that they have invested in, and, on the other hand, the communal purpose, and thus public interest, that underpins the revised planning framework. That balance is achieved by the provisions that save the continuation of the purpose for which land was being put to, but as a non-conforming use. 84 North Sydney Municipal Council v Boyts Radio & Electrical (1989) 67 LGRA 344, 350-351; see also Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2009] NSWLEC 219; (2009) 173 LGERA 155 [146] (Biscoe J). -- 39 of 122 -- [2026] WASAT 79 Page 40 136 In Smargiassi,85 Quinlan CJ referred to McHugh JA's analysis in Royal Agricultural Society of New South Wales v Sydney City Council,86 where the rationale and object of such savings provisions within planning instruments was explained. 137 As we have already surmised, savings provisions are premised on the injustice that would arise if landowners were deprived from being permitted to continue to use land for the purpose for which it was being used for. To balance the rights of owners to have the full benefit of the existing uses, as against the rights of the planning authority to enforce the objectives of its town planning instrument, courts: … [have refused] to categorise [a non-conforming] use' so narrowly that natural changes in the method of using the land or carrying on a business or industry will render an existing use right valueless. At the same time, the courts have been concerned not to categorise the purpose of an existing use so widely that the land or premises could be used for a prohibited purpose which was not part of its use at the commencement of the legislation. Accordingly, a test has been devised which requires the purpose of the use of land to be described only at that level of generality which is necessary and sufficient to cover the individual activities, transactions or processes carried on at the relevant date. Thus, the test is not so narrow that it requires characterisation of purpose in terms of the detailed activities, transactions or processes which have taken place. But it is not so general that the characterisation can embrace activities, transactions or processes which differ in kind from the use which the activities etc as a class have made of the land. 138 Handley JA's analysis in Royal Agricultural Society was identified by the Court of Appeal in Ivo Nominees87 as being the 'evident object' of such savings provisions within local planning schemes. Characterising the 'purpose' of a non-conforming use 139 A non-conforming use, for the purposes of LPS 2, means:88 … a use of land, though lawful immediately before the coming into operation of a planning scheme or amendment to a planning scheme, is not in conformity with a provision which deals with a matter specified in [either cl 6 (zoning) or cl 7 (controls for land management) in sch 7]. 85 Smargiassi [125]. 86 Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305, 309-310 (Hope & Samuels JJA agreeing). 87 Ivo Nominees [44] (the Court). 88 Deemed provisions, cl 1, by reference to PD Act, s 172. -- 40 of 122 -- [2026] WASAT 79 Page 41 140 The approved approach to the characterisation of non-conforming uses is to identify the purpose for which the land was being used prior to the commencement of the planning scheme. Such an approach reflects the terms of cl 22(1)(a) of LPS 2 which states: … this Scheme does not prevent … the continued use of any land, or any structure or building on land, for the purpose for which it was being lawfully used immediately before the commencement of this Scheme. 141 In characterising the 'purpose' of a non-conforming use, such purpose has historically been set 'only at that level of generality which is necessary and sufficient to cover the individual activities, transactions or processes carried on at the relevant date'.89 142 Such an inquiry depends on a factual determination as to the actual use and purpose for which the land was being put at the time at which the relevant scheme provision came into effect. The purpose of a non-conforming use is not to be determined by reference to use classes in the relevant planning scheme.90 143 The High Court's decision in Shire of Perth v O'Keefe,91 is instructive. A new by-law provided that, at the date of its publication, land was 'being lawfully used for a purpose … not permitted' by the by-law, it 'may continue to be used for that purpose or in that manner'. The relevant land was being used for 'pottery making' at the commencement of the by-law. At first instance, Jackson SPJ declared that the purpose for which the relevant land was lawfully being used was 'light industry'. The High Court allowed the Shire's appeal declaring that the by-law permitted the land to be used 'for the purpose of pottery making'. In doing so, Kitto J cautioned against a:92 … meticulous examination of the details of processes or activities, or through a precise cataloguing of individual items of goods dealt in, but by asking what, according to ordinary terminology, is the appropriate designation of the purpose being served by the use of the premises at the material date. 144 Once the question of the 'appropriate designation' has been answered, Kitto J further explained:93 89 Smargiassi [170]. 90 Smargiassi [171]; see also Popular Pastimes Pty Ltd v Melbourne City Council [2007] VSCA 188; (2007) 19 VR 1 [27] (Osborn AJA, Warren CJ and Neave JA agreeing). 91 Shire of Perth v O'Keefe (1964) 110 CLR 529. 92 O'Keefe, 535, Owen J agreeing. 93 O'Keefe, 535. -- 41 of 122 -- [2026] WASAT 79 Page 42 … it remains only to inquire, when a use that is being made of the premises at a later date is challenged as not being authorized by [the by- law], whether that use is really and substantially a use for the designated purpose. That will often be a question of fact and degree … and for that reason border-line cases will inevitably arise in which opinions will differ. But to seek more precise guidance from the b-laws is vain. 145 In O'Keefe, Menzies J delivered concurring reasons. His Honour explained that while 'pottery making' falls within the description of 'light industry', it does not follow 'that use for one purpose which falls into the category of light industry is to be regarded as use for any purpose which falls into that category'.94 146 In Royal Agricultural Society, the New South Wales Court of Appeal found that the Sydney Showground was used for the purpose of hosting the Royal Easter Show, and not the wider purpose of being a 'public entertainment area', authorising the hosting of open-air concerts. On the facts, at the commencement of the City of Sydney Planning Scheme Ordinance in 1971, the showground was available for such use, but, even so, it could not be said that it was relevantly being used for holding open-air concerts.95 147 The decisions of the High Court in O'Keefe, and the subsequent decision in Woollahra MC v Banool Developments,96 emphasise that care must be taken to adopt a purpose that is broader than the use being made of the land as at time it was saved. For example, in the context of a butcher, the general term 'shop' was found not to be a sufficient description of the 'purpose'. In O'Keefe, Kitto J explained that a 'butcher shop' would instead be a proper designation.97 148 In Banool Developments,98 a case concerning an existing use for the purpose of 'neighbourhood shops', in allowing the council's appeal, Mason J observed that if the purpose of a 'shop' is not specified with a degree of particularity, a non-conforming use right may render lawful a future shop used for a purpose specifically prohibited, even though the shop was never used for such a purpose immediately before the commencement of the zoning instrument. 149 However, in Royal Agricultural Society, Handley JA noted that while O'Keefe and Banool Developments dealt with specific activities, 94 O'Keefe, 536. 95 Royal Agricultural Society, 312 - 313. 96 Woollahra MC v Banool Developments (1973) 129 CLR 138. 97 O'Keefe, 535. 98 Banool Developments, 145 (Barwick CJ, McTiernan and Gibbs JJ agreeing). -- 42 of 122 -- [2026] WASAT 79 Page 43 there was no reason why the applicable principles could not apply in a case where the activities, processes or transactions varied widely. His Honour explained: If the activities, processes or transactions are capable of being treated as all or the majority of the species of a genus, then that genus may properly be regarded as describing the purpose of the use of the land. If they are not, then it may be that the only conclusion is that the land has been used for more than one purpose. If that conclusion is drawn, then each purpose is to be characterised in accordance with the principles set out earlier in this judgment. 150 In Paramatta City Council v Brickworks Ltd,99 land was used as a brickworks and quarry at the time that a residential district was proclaimed in 1932. In 1939, further land was acquired but was not used for brickmaking activities until 1960 (further land). At various points in time, brickmaking had been permissible on the further land. Between 1965 and 1968, the brickmaking activities were extended into the further land. The planning authority injuncted the use of the further land for brickmaking activities. The High Court dismissed an appeal on the issue of whether the use of the further land formed part of the existing use. In doing so, Gibbs J (with whom Barwick CJ, Menzies, Owen and Walsh JJ agreed), explained, relevantly, that: [Existing use] clauses are designed to preserve and protect existing rights and ought to be liberally construed and not restricted by dubious implications drawn from words used in other clauses directed to a different subject matter.100 151 In the subsequent decision of Boyts Radio, the land in question had been used as a warehouse. A development consent for that use had been granted but had been lost or destroyed. At first instance, Cripps J found that the purpose that the land was being used for was a 'warehouse'. On appeal, the planning authority argued that the purpose was too broad and required greater specificity, such that the warehouse was confined to the 'warehousing of those goods for the wholesale sale of goods'. This argument was rejected. 152 Kirby P (with whom Samuels JA and Priestley JA agreed) reviewed the authorities, including O'Keefe, Banool Developments, Brickworks Ltd and Royal Agricultural Society and identified the following 99 Paramatta City Council v Brickworks Ltd (1972) 128 CLR 1 (Brickworks Ltd). 100 Brickworks Ltd, 25. -- 43 of 122 -- [2026] WASAT 79 Page 44 statements of principle in relation to the characterisation of a non-conforming use:101 1. Defining the 'existing use' depends upon a detailed examination of the facts of each case. Inevitably there will be borderline cases where the characterisation of the use which is protected will be controversial and upon which minds may differ. 2. Nevertheless, the general approach to be taken is one of construing the 'use' broadly. It is to be construed liberally such that confining the user to precise activity is not required. What is required is the determination of the appropriate genus which best describes the activities in question. 3. In determining that genus, attention should be focused on the purpose for which the determination is being made. This is a town planning purpose. It therefore considers the use from the perspective of the impact of the use on the neighbourhood. This is because the regulation of the use within the neighbourhood is the general purpose for which planning law is provided. 153 In Prestige Car Sales Pty Ltd v Town of Walkerville,102 land was used for the purpose of car sales, being a non-conforming use. The land comprised an office building with the cars sitting in the open. The operator sought to build a display room for the cars. The application was refused on the basis that the addition of the display room would constitute an impermissible change in use. In allowing the appeal, Wells J explained:103 The principles for determining what is an existing use and whether there has been a change of existing use should be flexible. They are not convertible into hard and fast rules. Rather should they be treated as directing a comprehensive survey of the circumstances that obtained before the planning regulations in question came into force, and of the circumstances that would obtain if the proposed extensions or reconstructions were to be made or carried out. The object of the survey should be to decide whether, having regard to the purpose of the former use of the subject building, and to the purpose of the use that would be made of it after execution of the proposals, there would, as a matter of fact and degree, be a change in the essential nature of the existing use if consent were granted. It should be borne in mind that labels are not principles. No one factor is necessarily decisive. There should be no resort to convenient, but undiscriminating and over-simplified, formulae. 101 Boyts Radio, 353. 102 Prestige Car Sales Pty Ltd v Town of Walkerville (1979) 42 LGRA 80. 103 Prestige Car Sales, 88. -- 44 of 122 -- [2026] WASAT 79 Page 45 154 The High Court's more recent decision in Godolphin Australia Pty Ltd v Chief Commissioner of State Revenue,104 involved a dispute relating to whether a property used for equine purposes was exempt from land tax on the basis that the properties in question were used for 'primary production'. In dismissing the appeal, Jagot J observed that 'the genus/species distinction in planning law' was established for the purpose of determining the limits of the 'continuation of a [non-conforming use], being a previously permissible use that is now prohibited'. 155 Jagot J observed that the genus/species distinction is one that facilitates analysis of the question of whether a use, once permissible and now prohibited, remains an 'existing use' protected by typical provisions in planning law that enable such uses to continue, but not to transform over time into something new:105 The distinction is founded on the notion that, provided the physical activities being conducted on the land remain within the overall genus of the use for purpose, that use for purpose is continuing and thus lawful even if the species of the use for purpose might have changed over time. Ascertaining 'purpose' in the context of a development approval 156 It is trite that only a lawful land use can endure as a protected or saved non-conforming use. 157 In reviewing O'Keefe, Banool Developments, Royal Agricultural Society and Brickworks Ltd and Prestige Car Sales, we are mindful that in each instance, the existing use in question commenced before planning controls were enacted or where a consent or approval was not required. Boyts Radio also falls within this class of authorities, in that while a development consent had been granted, it had been destroyed or lost in the effluxion of time. 158 In each of these cases, there was no relevant inquiry into the basis on which the existing use was being carried out. If the land use lawfully existed at the commencement of the planning control, it was protected as an existing use. 159 Accordingly, the task in each of the authorities we have referred to above was to ascertain the 'purpose' that the land was lawfully being used. That purpose was ascertained by reference to the findings that 104 Godolphin Australia Pty Ltd v Chief Commissioner of State Revenue [2024] HCA 20; (2020) 261 LGERA 76 (Godolphin Australia). 105 Godolphin Australia [89]. -- 45 of 122 -- [2026] WASAT 79 Page 46 could be drawn based on the activities, in fact, being carried out at the point at which planning controls commenced. That 'purpose' then informed the question of whether the use remained as an existing use, or whether there had, in effect, been a change in use. 160 However, time has moved on somewhat. 161 It would now be a rare instance that a non-conforming use is premised on a use that existed before planning controls commenced. For decades now, including under the PD Act, development control is more closely regulated, and the land use planning system has become increasingly complex. Accordingly, the task of establishing the lawful basis for a non-conforming use has become more nuanced. That is especially so where a land use may lawfully be commenced on a number of different bases. For example, the use may: (a) have been a 'permitted' use under the planning scheme and involved no relevant 'works'; (b) have been exempt from requiring development approval by the terms of the planning scheme, including the deemed provisions;106 or (c) as is the case in this Review, have been commenced by way of the grant of a development approval. 162 Nevertheless, as cl 22 of LPS 2 makes plain, the task remains the same. That is, it is necessary to determine the purpose for which the land was being used immediately before the commencement of, relevantly, LPS 2.107 163 However, where a land use commenced based on a development approval, the question of what purpose the land was lawfully being put to, must be evaluated through the prism of the terms of the development approval. That is so because it is the development approval that provides the lawful authority to undertake the land use.108 164 In Jojeni Investments Pty Ltd v Mosman Municipal Council,109 a two-storey house had, for 80 years, been used to accommodate two separate premises. An approval to modify the house for that purpose had 106 Deemed provisions, cl 61. 107 House of Peace, [36]. 108 LPS 2, cl 22(1)(a). 109 Jojeni Investments Pty Ltd v Mosman Municipal Council [2015] NSWCA 147; (2015) 208 LGERA 54. -- 46 of 122 -- [2026] WASAT 79 Page 47 been granted in 1933 but had been lost. The land had been used for residential purposes for many years, even predating the Local Government Act 1919 (NSW). 165 As planning controls in the locality evolved, residential flats became an unlawful land use. Even so, it was common ground that the use of the house, accommodating two flats, was an existing use. The landowner sought to demolish the house and to construct a building containing three residential flats. The question was the proper characterisation of that existing use. At first instance, the existing use was held to be 'two flats in a house'. 166 In Jojeni, the Court of Appeal (Leeming JA, Macfarlan JA and Gleeson JA agreeing) found that [non-conforming use] rights fall into two categories: a lawful use that became prohibited; and a use authorised by a development approval that become prohibited.110 Leeming JA observed that the basis on which a non-conforming use is lawful is the key to its characterisation. 167 For uses that operated absent a development consent, which applied in Jojeni because the consent could no longer be located, the principles set out in inter alia O'Keefe continue to apply. That is, in undertaking that assessment, the question of purpose is not answered by a meticulous examination of the details of the activities undertaken on the land. Rather, it is necessary to have regard to the purpose served by the activities, and the use is to be characterised liberally, having regard to the principle that provisions directed to protecting use rights.111 168 In applying these principles, Leeming JA was not persuaded that the existing use ought to be characterised by reference to a particular number of flats within a building. Instead, the existing use was properly characterised as 'flats'.112 His Honour reasoned that the question of characterisation in such instances 'is not answered through a meticulous examination of the details of the activities undertaken on the land', and that, instead, it was 'necessary to have regard to the purpose served by those activities'.113 169 However, in the context of a use authorised by a development approval, Leeming JA observed that it is the consent itself that is the touchstone for the purposes of characterisation, by reference to 110 Jojeni [58] - [59]. 111 Jojeni [75] - [76]. 112 Jojeni [77]. 113 Jojeni [75]. -- 47 of 122 -- [2026] WASAT 79 Page 48 the ordinary principles of construction of the consent.114 Such principles properly take account of any limitations or prohibitions within the terms of the consent. 170 An example of this approach is Botany Bay City Council v Parangool Pty Ltd,115 where the developer claimed an existing use right for the purpose of a 'general warehouse'. The use of the land was authorised by a development consent granted in 2002 permitting the 'use of existing warehouse building for the warehousing/storage and distribution of alcoholic goods'. Lloyd J held that the authority to carry out the land use was subject to the 'express and limiting terms' of the development consent.116 The existing use was not, as contended for by the landowner, a 'general warehouse' but, consistent with the terms of the consent, was for the 'warehousing/storage of [only] alcoholic goods'.117 171 Likewise, in MM & SW Enterprises Pty Ltd v Strathfield Council,118 the applicant conducted a brothel on premises it had leased from 2003. The planning controls in question made a brothel a prohibited use in 1997. The council issued the operator a notice requiring the use to cease. The use of the building was the subject of a consent issued in 1980, permitting the use of the land for 'commercial offices'. The planning control under which the planning control was granted defined 'commercial premises' to mean an 'office or … other business or commercial purposes'. 172 In her reasons, Pepper J found that where a use is premised on a development consent, the terms of the consent 'become the lawful purpose from which an existing use can arise'.119 In undertaking such analysis, there is no basis to resort to any genus-type test that arises in cases such as O'Keefe.120 173 Pepper J further observed that in order to determine what lawful purpose is authorised by a development consent, it is necessary to 'look to the ambit of the language in the development consent to determine whether the use is lawful under planning law, and therefore protected'.121 Such an approach requires 'a commonsense assessment of the character of, extent, and features of the various uses and the ends they apparently 114 Jojeni [71]. 115 Botany Bay City Council v Parangool Pty Ltd [2009] NSWLEC 198. 116 Parangool [16]. 117 Parangool [17]. 118 MM & SW Enterprises Pty Ltd v Strathfield Council [2010] NSWLEC 8; (2010) 172 LGERA 125. 119 MM & SW Enterprises [80]. 120 MM & SW Enterprises [86]. 121 MM & SW Enterprises [83]. -- 48 of 122 -- [2026] WASAT 79 Page 49 serve'.122 Her Honour's analysis also includes a review of the plans that formed part of the consent.123 174 Pepper J found that the existing use rights for a 'commercial office', construed according to its ordinary and common meaning, did not include the use of rooms for the provision of sexual services.124 Such uses being contrary to a clerical and/or administrative function permitted in the approval to use the premises as a commercial office.125 175 Pepper J's decision in MM & SW Enterprises, followed the earlier Court of Appeal decision in Botany Bay Council v Workmate Abrasives Pty Ltd, where Stein AJA (Spigelman CJ and Cripps AJA agreeing) explained the question is whether the existing use was that use that is authorised by the development consent.126 If the existing use was not the use authorised by the development consent, 'as night follows day', such use cannot be regarded as a lawful purpose.127 176 In Meriton Apartments v Fairfield CC,128 a development approval for a caravan park had been granted in 1954. The development approval included an express condition that the caravan park is not to be occupied by permanent residents. Despite this, some people occupied the caravan park on a permanent basis. In 1974, the use of the land for a caravan park became a prohibited use. However, the planning instrument allowed the continuation of existing uses. Pain J found that a 'lawful' use did not extend to uses being made of the land that were, by the terms of the consent, unlawful. That is, the existing use rights protected only uses that were authorised under the development consent.129 The result being that the existing use rights did not extend to allow permanent residents, as this use was not authorised. 177 In doing so, Pain J discussed O'Keefe and Royal Agricultural Society and noted that such cases were of little assistance in circumstances where the court's task in discerning the lawful purpose to which land was being put was, in effect, premised on construing a development consent.130 122 MM & SW Enterprises [85] by reference to Berry v Wollongong [2008] NSWLEC 210 [34] Jagot J. 123 MM & SW Enterprises [106]. 124 MM & SW Enterprises [107]. 125 MM & SW Enterprises [115]. 126 Botany Bay Council v Workmate Abrasives Pty Ltd (2004) 138 LGERA 120 [12] - [14]. 127 Workmate Abrasives [13]. 128 Meriton Apartments Pty Ltd v Fairfield City Council [2004] NSWLEC 423; (2004) 137 LGERA 35. 129 Meriton Apartments [41]. 130 Meriton Apartments [29]. -- 49 of 122 -- [2026] WASAT 79 Page 50 178 Likewise, in AMT Planning Consultants v Central Coast Council,131 the New South Wales Court of Appeal dealt with a claim for existing use rights for a caravan park premised on two development consents. The consents operated to restrict the occupancy at the caravan park for periods of less than 6 weeks. 179 The planning framework was subsequently amended to prohibit the land being used for the purpose of a caravan park. The caravan park sought to develop 48 new caravan sites for 'long-term accommodation' premised on existing use rights. Sackville AJA (Macfarlan JA agreeing) found that the right to use the caravan park for long-term occupation was to be resolved by the terms of the development consents that had been issued, including the conditions to which the consents were subject. However, his Honour explained that in undertaking that task: … the Court should avoid characterising the use for which development consent was granted by reference to an overly meticulous analysis of the terms of the consent, including the conditions. The primary consideration is the language of the statute but the language should be applied having regard to the rationale underlying existing use provisions.132 180 More recently, in Interslice Pty Ltd v CCA Investments - Bass Hill Pty Ltd,133 Leeming JA, sitting in the Court of Appeal, observed that, in characterising the purpose of an existing use, 'there are no categorical rules to direct judges about the selection of appropriate levels of generality'.134 The question was whether a gym that was established as part of the Bass Hill RSL Club was a standalone 'existing use'. The gym was established pursuant to a consent relating to the 'refurbishment' of the Club, to include a health facility.135 McHugh JA (Ward P, Leeming JA agreeing) found that the gym was 'inextricably bound up' with the use of the remainder of the land as a club facility. The use was not an independent use but was an inseparable component of the club. The gym did not survive independently to the use of the land as a club.136 131 AMT Planning Consultants Pty Ltd t/as Coastplan Consulting v Central Coast Council [2018] NSWCA 289 (Basten JA, Macfarlan JA, Sackville AJA). 132 AMT Planning Consultants [104]. 133 Interslice Pty Ltd v CCA Investments - Bass Hill Pty Ltd [2025] NSWCA 175. 134 Interslice [13]. 135 Interslice [23] (McHugh JA). 136 Interslice [48] (McHugh JA). -- 50 of 122 -- [2026] WASAT 79 Page 51 181 In Interslice, McHugh JA, by reference to Leeming JA's analysis in Jojeni, distinguished between two situations where an existing use is called upon to be characterised.137 182 The first is where the lawful use is not derived from a consent or permission. In such instances, the principles of characterisation evident in O'Keefe and other authorities will continue to apply. Those principles included that the question is the appropriate characterisation of the purpose of the use, a question that is not answered through a meticulous examination of the details of the activities undertaken on the land. Instead, it is necessary to have regard to the purpose served by those activities, and the existing use is to be characterised liberally.138 183 The second is where a development approval expressly authorises a use. In such instances, the lawfulness of the existing use is to be evaluated in the context of the terms of the development consent, and that such questions involve 'matters of construction'.139 McHugh JA approved Leeming JA's approach in Jojeni that the terms of the approval need to be considered, including whether the consent 'contained limiting words constraining the uses which were permitted, without which the use would have been prohibited'. Furthermore, it was important to note that the 'limiting words constraining the uses which were permitted' may also be the 'very words which authorised the particular use (and by implication no other use)'.140 184 Similar reasoning is also evident in the Victorian Supreme Court. In Anteden Pty Ltd v Glen Eira CC,141 a permit was granted for the use of premises as a 'cabaret'. The relevant planning control (the Melbourne Metropolitan Scheme Ordinance (Ordinance)) defined a 'cabaret' to mean 'a building or part of a building for or in respect of which a licensee holds a cabaret licence'. In 1996, a permit was issued for a 'bar' and in 1998 the premises were used for a 'sexually explicit entertainment venue'. In 1999, a new planning scheme commenced. 185 Balmford J was satisfied that, in town planning terms, the premises had been used as a 'cabaret' prior to the commencement of the scheme. 137 Interslice [104]. 138 Interslice [106]. 139 Interslice [104]. 140 Interslice [105]. 141 Anteden Pty Ltd v Glen Eira City Council [2000] VSC 366; (2000) 111 LGERA 42. -- 51 of 122 -- [2026] WASAT 79 Page 52 His Honour accepted the appellant's submission that the existing use was that of a 'cabaret', by reference to the definition in the Ordinance.142 186 Such an approach is also evident in this jurisdiction. The findings and analysis of Quinlan CJ in Smargiassi, a case where the landowner claimed the benefit of non-conforming use rights, were directed to whether the activities on the relevant land were 'engineering, fabrication or earth moving services', being the uses authorised by a development approval granted in 2006.143 187 Quinlan CJ's analysis reflects the earlier reasoning of the Court of Appeal in Smargiassi Nominees Pty Ltd v Shire of Collie,144 where it was stated that: No amount of generality of characterisation or liberality of reading can result in the use to which the land was being put during the offence period falling within the terms of the approval granted in 2006. The use to which the appellant's land was put during the offence period was entirely different from the use for which approval was granted in 2006. During the offence period, the land was predominantly used for the storage of various metal items. That storage was not ancillary to any metal fabrication, engineering or earthmoving business being conducted on the land. It was clearly not within the scope of the 2006 approval and, as a consequence, could not have been a use lawfully carried on immediately prior to the promulgation of the Scheme. The judge was correct to so conclude. 188 It follows that, in the context of non-conforming uses, where the land use in question is premised on a development approval, the terms of the approval are the touchstone to ascertain the purpose to which the land was lawfully being put as at the point of the commencement of the new planning scheme. The manner in which a non-conforming use is carried out need not remain static 189 Noting the protective nature of non-conforming use rights, it is also the case that increases in the scale of a non-conforming use, or natural or ordinary changes in the manner that a non-conforming use is carried out, does not, without more, constitute a change in the use of land, such that the rights protected by the non-conforming use lapse. So long as the 142 Anteden [35]. 143 Smargiassi [318]. 144 Smargiassi Nominees Pty Ltd v Shire of Collie [2018] WASCA 118 [52]. -- 52 of 122 -- [2026] WASAT 79 Page 53 purpose for which the land is being used remains, the non-conforming use right endures. 190 On this issue, the High Court's decision in Norman v Gosford Shire Council145 is instructive. There, the existing use commenced in 1952 and involved 'the removal of topsoil and filling for the purposes of sale'. The enterprise was of a modest scale from 1952 to 1972 and involved the removal of soil by hand, whereby it was shovelled into trucks. There were only between three and five transactions each year. The use of the land for this purpose was thus an 'existing use' when, in 1968, a new planning ordinance commenced (1968 ordinance). From 1972, the scale of the existing use increased considerably and was described by the primary judge as 'a full-scale quarry with bulldozers and trucks taking away very large quantities of filling from a full-scale extractive industry'.146 191 However, the High Court found that the 'existing use' that had been preserved at the commencement of the 1968 ordinance had not changed. Mason J explained that the nature of the land use had not changed by reason of the expanded production or because efficient machines were employed in production in place of manual labour.147 192 The High Court's reasoning in Norman reflects the earlier decision of Wolff CJ in Franconi v Shire of Perth,148 where certain land zoned for residential purposes was used for garaging trucks used in connection with a non-conforming use, being a stonemasonry business. Wolff CJ explained that a change in the degree of a non-conformity of an existing use does not infringe the protection offered by the existing use provisions in the by-law. That is, the simple fact that business is busier, with consequently more trucks present, does not have the result that there has been a change in use. 193 For completeness, we note, however, that there may be instances where a planning instrument prescribes that increases in intensity may constitute a change in use.149 145 Norman v Gosford Shire Council (1975) 132 CLR 83. 146 Norman, 86 (Mason J, Barwick CJ and Jacobs J agreeing). 147 Norman, 86. 148 Franconi v Shire of Perth (1965) 11 LGRA 380, 382. 149 See, for example, Adelaide Hills Council Assessment Manager v Parkins [2023] SASCA 66 [42] (Bleby JA, Livesey P and Doyle JA agreeing). -- 53 of 122 -- [2026] WASAT 79 Page 54 Issue 1: disposition 194 For the following reasons, we are satisfied, and we find, that the Subject Land was being used for the purpose of 'extractive industry: lime', immediately prior to the commencement of LPS 2. It is the continued use of the Subject Land for that purpose which is protected by cl 22(1)(a) of LPS 2. 195 First, the existing use of the Subject Land for the extraction of lime derives from the express terms of the Development Approval. Accordingly, in ascertaining the purpose to which the Subject Land may lawfully be put, the focus must be on the terms of the Development Approval. 196 As we turn to consider the terms of the Development Approval, we are mindful of Leeming JA's analysis in Interslice that 'there are no categorical rules to direct judges about the selection of appropriate levels of generality' in terms of the characterisation of the purpose of a non-conforming use.150 197 The Development Approval authorised the Subject Land to be used for 'extractive industry subject to conditions'.151 The conditions of the Development Approval, namely conditions 14 and 44, reference that the approved activity is the extraction and removal of lime. Our characterisation of purpose set out above aligns with the use of the Subject Land that was, in fact, made lawful by the Development Approval. 198 Second, based on the Approved Development and the relevant facts, the purpose of 'extractive industry: lime' is set at a level of generality necessary that is sufficient to encompass the individual activities, transactions or processes carried on at the time immediately prior to the commencement of LPS 2. 199 The purpose of 'extractive industry: lime' is not so wide to permit a land use, including an extractive industry use, that did not, in fact, exist as at the date that LPS 2 commenced. Nor is it a purpose that is so narrow and restrictive that it renders the non-conforming use right valueless, by reason that there is no scope to respond to changes in the way that the land use is carried out over time. 150 Interslice [13]. 151 Robertson, Order 2. -- 54 of 122 -- [2026] WASAT 79 Page 55 200 Therefore, in our view, the characterisation of the purpose as 'extractive industry: lime' strikes the appropriate balance between, on the one hand, the rights of GS Lime to continue to operate what was a lawful use and, on the other hand, the City to implement its planning objectives set out in its planning framework, including LPS 2. 201 Third, we do not accept the Respondent's argument that the approval conditions, or at least some of them, are to be regarded as 'unalterable'. That submission elides the principle set out in Land Alliance and the lawful role performed by approval conditions, which is to regulate the manner in which the land use is carried out. There is nothing in the Development Approval, nor the Tribunal's reasons in Robertson, that would suggest that condition 17 was imposed as an unalterable core of the approval. Condition 17 simply authorised the volume of lime extraction that the Applicant applied for. 202 Fourth, the Respondent's argument that some approval conditions are 'unalterable', also denies the Tribunal of the jurisdiction that is expressly provided by cl 23 of LPS 2 read with cls 67(1)(b) and 77 of the deemed provisions, to amend the terms by which the Approved Development is to be carried out. 203 There is nothing in LPS 2, including the deemed provisions, to support an argument that the conditions by which a non-conforming use is to be carried out are not capable of amendment. Rather, in dealing with a non-conforming use, the true test is whether the amendment would result in the land being put to a purpose that is different to that which encompasses the saved use. 204 Fifth, we do not accept the Respondent's argument that condition 17, which operates to limit the extraction of lime to 50,000 t annually, is such that it renders the Approved Development as being properly characterised as, in effect, a limited extractive industry. 205 The conditions imposed by the Tribunal in Robertson dictated, in close terms, the manner in which the Approved Development is to be carried out. Such an approach is not only acceptable, but is to be encouraged, to ensure that what might properly be regarded as a use that generates off-site impacts in terms of noise, dust, visual impacts and traffic, is carefully managed, so as to protect the public interest. 206 In doing so, condition 17 simply limits the volume of lime that may be extracted annually to 50,000 t. As we have already explained, the Applicant had requested permission to extract that volume of lime on an -- 55 of 122 -- [2026] WASAT 79 Page 56 annual basis. However, in our view, condition 17 does not now operate to inform the question of purpose. Rather, it is a condition that regulates the basis on which the authorised purpose can be carried out. 207 By analogy, in not one of the many cases to which we have referred, has the purpose been discerned by reference to the manner in which the use was carried out. For example, in Norman, the non-conforming use was not defined by reference to the volume of soil that was being sold before the planning control took effect, nor was the purpose of 'pottery' in O'Keefe defined by reference to the volume of pottery sold or produced. 208 Likewise in Boyts, the warehouse use was not defined by the volume of materials stored. That is exactly the type of approach that is cautioned by the authorities, as it seeks to ascribe a purpose that would overly limit or narrow the manner in which, relevantly, the Approved Development may be carried out over time. Nor could such an approach be said to be a 'liberal' or 'broad' construction of such rights, in the sense explained in Boyts. 209 Even in the context of an existing use authorised by a development approval, such as is in Parangool and MM & SW Enterprises, the existing use was characterised by reference to the activities authorised by the consent, not by conditions governing the manner in which the use was to be carried out. Furthermore, in that regard, we note that in Brisbane City Council v Bemcove Pty Ltd,152 by reference to Norman, the Queensland Court of Appeal held that the nature of an extractive industry was not altered by reason of an expansion in production owing to an increase in demand. We agree. 210 Sixth, and following on from above, authorities such as Meriton Apartments do not assist the Respondent's case. In Meriton Apartments, there was a claim for an existing use right that a caravan park included some permanent residential living, in circumstances where such a use within the caravan park was prohibited by the terms of the development approval. Because permanent residential living within the caravan park was not lawful, it was not a use that was protected or saved. 211 Here, there is no suggestion that the Subject Land was not being used lawfully as at the time that LPS 2 commenced. That argument would have much more force if the Tribunal had granted, in express 152 Brisbane City Council v Bemcove Pty Ltd [1998] QCA 278; (1999) 104 LGERA 1, 14 (McPherson JA, Pincus JA and Helman J agreeing). -- 56 of 122 -- [2026] WASAT 79 Page 57 terms, approval only for a 'limited' or 'seasonal' extractive industry. In Robertson, by Order 2 of its Orders made on 10 January 2019, the Applicant was granted approval to undertake an 'extractive industry'. There is nothing in the approval granted in Robertson to indicate it was to be understood as an approval for a 'limited' land use. 212 Having determined the purpose that the Subject Land was being used for immediately prior to the commencement of LPS 2 is 'extractive industry: lime', we turn next, in Issue 2, to map out the applicable statutory context in which the Proposed Amendments fall to be considered. Issue 2: the applicable statutory regime for the Proposed Amendments 213 The parties are in dispute as to the applicable provisions of both LPS 2 and the deemed provisions, as they relate to the assessment and determination of the Proposed Amendments. 214 The contest in Issue 2 centres on whether the Proposed Amendments fall to be considered pursuant to cl 67(1)(a) of the deemed provisions, such that the Tribunal may only grant approval if satisfied that the 'proposed use of the land would be less detrimental than the [Approved Development that existed immediately prior to the commencement of LPS 2]'. 215 This contest derives from the different positions the parties have taken on whether the effect of the Proposed Amendments would be to change the purpose for which the Subject Land is being used. That is a question of fact that the Tribunal must, and will, determine. Respondent's submissions 216 The Respondent's submissions on the applicable statutory framework reflect its argument that the purpose for which the Subject Land was being used was for a limited extractive industry, by reason of approval condition 4 and, in particular, condition 17, both of which are not capable of amendment.153 217 For this reason, the Respondent submits that the Proposed Amendments would facilitate a new land use, being, in effect, an unlimited extractive industry. Therefore, cl 67(1)(a) is engaged, 153 Respondent's Closing Submissions, para 15(v). -- 57 of 122 -- [2026] WASAT 79 Page 58 particularly with respect to the proposal to amend condition 17, being the condition which limits the annual extraction of lime to 50,000 t.154 218 Because the Proposed Amendments would operate to, in effect, convert a limited, into an unlimited, extractive industry, and thus, new land use, the Respondent submits approval cannot be granted. That is so because, on the evidence, the proposed use that is not 'less detrimental' than the Approved Development being carried out on the Subject Land. Applicant's submissions 219 The Applicant rejects the contention that cl 67(1)(a) is enlivened. Rather, the Applicant submits that the Proposed Amendments would not result in a new use being made of the Subject Land but are instead a continuation of the existing purpose. 220 However, the Applicant submits that cl 67(1)(b) of the deemed provisions 'may' apply. Clause 67(1)(b) provides that approval may be granted for a prohibited use, 'if the development is permitted under a provision of [LPS 2] in relation to non-conforming uses'.155 However, the Applicant's primary submission is that the Proposed Amendments may be approved pursuant to either cl 77(1)(b) of the deemed provisions or cl 23(1)(a) of LPS 2.156 Issue 2: disposition 221 For the following reasons, the applicable statutory framework in which the Proposed Amendments fall to be considered, does not include cl 67(1)(a) of the deemed provisions. 222 Whether the Proposed Amendments would be such to bring about a change in use (or purpose) of the Subject Land is a question of degree. Based on the totality of the evidence before us, the Proposed Amendments, when considered in the light of the express terms of the Development Approval, constitute only a proposal to amend or alter the basis on which the Approved Development is carried out. 223 As we have found, the use of the Subject Land is for the purpose of 'extractive industry: lime'. There is nothing in the Proposed Amendments that would operate to change the underlying purpose the Subject Land is being put to. The proposal to extract more lime and to allow more truck movements, by way of the Proposed Amendments, 154 Respondent's Closing Submissions, para 15(ix). 155 Applicant's Closing Submissions, para 57. 156 Applicant's Closing Submissions, para 43. -- 58 of 122 -- [2026] WASAT 79 Page 59 would not have the effect of changing the characterisation of purpose as being 'extractive industry: lime'. Rather, they are properly characterised as a proposal to continue to use the Subject Land for 'extractive industry: lime'. As we will shortly explain, such changes to a non-conforming use are permissible under cl 23(1)(a) of LPS 2. 224 Accordingly, we are satisfied, and we find, that the Proposed Amendments would not operate to, in effect, change the use (or purpose) being made of the Subject Land for the purposes of cl 22(1)(a) of LPS 2. 225 Having made that factual finding, we turn now to detail our reasoning on the resolution of Issue 2. Principles of construction 226 The resolution of Issue 2 is largely a question of statutory construction. In reading and applying the terms of LPS 2 and the deemed provisions, we are mindful that the process of construction directs attention to the legislative text, considered in context, including its objectively discerned legislative purpose.157 That purpose is ultimately a town planning purpose.158 227 In terms of context, it is relevant that LPS 2 is a planning scheme. Planning schemes should be construed broadly, rather than pedantically, and with a sensible practical approach.159 228 In the context of the Review, the relevant LPS 2 and deemed provisions are recited above which we need not repeat.160 The application of that statutory scheme to the Proposed Amendments is set out below. LPS 2 permits the Approved Development to continue 229 Clause 22(1)(a) provides that LPS 2 does not prevent the continued use of the Subject Land for, as we have found, the purpose of 'extractive industry: lime'. 230 The overall effect of LPS 2 is that '[u]nless specifically provided' the Subject Land can continue to be used for the purpose of 'extractive industry: lime', or because, on the facts the use is discontinued such that 157 Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664 [22] - [23] (French CJ, Hayne, Kiefel, Gageler & Keane JJ)); Smargiassi [119]. 158 Agricorp Australia Pty Ltd v Shire of West Arthur [2025] WASAT 40; (2025) 118 SR (WA) 20 [116]. 159 Australian Unity Property Ltd v City of Busselton [2018] WASCA 38; (2018) 237 LGERA 333 [81] - [84] (Buss P, Murphy and Mitchell JJA. 160 Refer [45] to [65] above. -- 59 of 122 -- [2026] WASAT 79 Page 60 cl 22(2) is engaged. LPS 2 includes no provisions specifically directed to the use being made of the Subject Land. LPS 2 contemplates changes to a non-conforming use 231 Clause 23 operates to require alterations, extensions or changes to a nonconforming use to be authorised by the granting of a development approval. 232 Clause 23 is directed to proposals to extend or alter a non-conforming use as well as associated works. Clause 23(1)(a) is directed to proposals to alter or extend a non-conforming use. Clause 23(1)(b) applies to works associated with a non-conforming use, including a proposal to erect, alter or extend a building used in association with a non-conforming use. As we earlier set out, the Court of Appeal has described physical works as being 'development in its ordinary sense'.161 233 Clause 23(1)(c) provides that approval is required to repair or rebuild buildings used for a non-conforming use where 75% of the value of such works has been destroyed. Likewise, pursuant to cl 23(1)(d), development approval is required to change the use of the land from a non-conforming use to another use that is not permitted by LPS 2. 234 As earlier noted, in all instances, a proposed change or amendment to a non-conforming use must be advertised.162 Changes to a non-conforming use require development approval 235 Part 7 of the deemed provisions deals with the requirement for development approval. By cl 60, a person must not commence or carry out development on, or use land, within the area of LPS 2 unless development approval has been granted or because development approval for the development is not required by reason of cl 61. 236 There is nothing in cl 61 that exempts changes to a non-conforming use from requiring development approval. 237 Accordingly, in the context of the Review, by reason of cl 23(1)(a) of LPS 2, there is capacity for the Approved Development to be altered or extended, but only where development approval is obtained. There is 161 Ivo Nominees, [40]. 162 LPS 2, cl 23(2); deemed provisions, cl 64. -- 60 of 122 -- [2026] WASAT 79 Page 61 no relevant exemption from the need to obtain development approval provided for in pt 7 of the deemed provisions. 238 Part 8 of the deemed provisions deals with the making of applications for development approval. By reason of cl 23(2), the Proposed Amendments were advertised. The advertising of the Proposed Amendments prompted the submission lodged by Birdlife Australia, which we will discuss further below. Consideration of applications for development approval 239 As we have earlier set out, pt 9 of the deemed provisions sets out the procedure for dealing with applications for development approval. Clause 67(1) of the deemed provisions 240 Clause 67 is directed to the local government's consideration of applications for development approval. In our view, cl 67(1) is somewhat dense and complex, but its construction and application are tolerably clear. Clause 67(1)(a) 241 The chapeau of cl 67(1)(a) operates as a prohibition on approval being granted for uses that are identified as 'X' class uses in the relevant zone. However, that prohibition does not apply where land is being used for a non-conforming use and the local government considers that the proposed use of the land would be less detrimental than the existing non-conforming use. 242 Clause 67(1) was included in the deemed provisions by reg 74 of the Planning Regulations Amendment Regulations 2020 (WA) (Amendment Regulations) to clarify that (then) cl 67(1) (now cl 67(2)) was only directed to the consideration and determination of uses that are capable of approval and not prohibited 'X' class uses in the relevant zone. 243 That is because, prior to Amendment Regulations, then cl 67(1) was, by its express terms, directed to the consideration of 'an application for development approval', including, seemingly at least, applications for approval of an 'X' use. 244 In our view, cl 67(1) operates as a gateway provision before one comes to consider the range of factors that are set out in cl 67(2), which together inform the exercise of discretion as to whether to grant development approval. -- 61 of 122 -- [2026] WASAT 79 Page 62 Clause 67(1)(b) 245 Clause 67(1)(b) applies to development that 'otherwise does not comply with a requirement of the scheme'. The use of the word 'otherwise' is such that it is directed to applications for development approval, other than those applications that fall within the terms of cl 67(1)(a). 246 The effect of cl 67(1)(b) is that development approval for development that does not comply with a requirement of the scheme cannot be granted unless [LPS 2] provides the local government with discretion to 'waive or vary the requirement or to grant development approval despite the non-compliance with the requirement' or the 'development is permitted under a provision of [LPS 2] in relation to non-conforming uses'. The overall operation of cl 67(1) 247 In our view, cl 67(1), when read with the chapeau of cl 67(2), operates to make it plain that development approval cannot be granted to an application for an 'X' class use in relation to the zone in which the development is located, or for development that does not comply with a requirement of LPS 2, unless pursuant to: cl 67(1)(a): the application is for an 'X' use is on land that is being used for a non-conforming use; and the local government reaches the view that the proposed use is less detrimental than that non-conforming use; cl 67(1)(b)(i): LPS 2 provides discretion to vary or waive the requirement to comply or to grant development approval notwithstanding the non-compliance; or cl 67(1)(b)(ii): the non-complying development is permitted by a provision of LPS 2 in relation to non-conforming uses. 248 By reason of cl 67(3) of the deemed provisions, cl 67(1) has effect despite the zoning table in LPS 2. -- 62 of 122 -- [2026] WASAT 79 Page 63 The scope of, and rationale for, cl 67(1)(a) 249 We do not consider that cl 67(1)(a) applies to any proposed change or amendment to a non-conforming use. If that were correct, cl 67(1)(b)(ii) would be rendered almost completely inutile. In addition, such an interpretation also leaves cl 23(1) of LPS 2 largely redundant. In our view, it makes little sense for cl 23(1) to set out four different instances where changes to a non-conforming use right may be made if, in all instances, cl 67(1)(a) provides the statutory pathway that is to be followed. 250 Rather, cl 67(1)(a) only applies where an application for development approval seeks to, in effect, abandon a non-conforming use right in favour of a new prohibited 'X' land use. In such instances, cl 67(1)(a) provides discretion for the local government to approve an 'X' use in such circumstances, but only if it reaches the view that the proposed use is less detrimental than that non-conforming use. 251 Accordingly, cl 67(1)(a) is enlivened where, and only where, pursuant to cl 23(1)(d) of LPS 2, there is a proposal to 'change the use of land from a non-conforming use to another use that is not permitted by the Scheme'. The discretion afforded to a local government in cl 67(1)(a) evinces the balancing of the rights of the landowner to continue to undertake what has become a non-conforming use, as against the local government's planning objectives. 252 The implicit rationale for the discretion in cl 67(1)(a) is to bring about a net community benefit. That is, the discretion provides for the cessation of a non-conforming use, if the local government is satisfied that there is an overall community benefit by reason that the new use is 'less detrimental' than that which preceded it. Clause 67(1)(a) provides for, in effect, a trade-off arrangement. 253 It follows that cl 67(1)(a) is directed to a proposal to change the purpose for which the land the subject of a non-conforming use, is being used. However, cl 67(1)(a) is not engaged where there is no proposed change in the purpose for which the land is being used for. 254 Accordingly, cl 67(1)(a) does not apply where the application is to 'alter or extend [an existing] non-conforming use'163 nor to a proposal 163 LPS 2, cl 23(1)(a). -- 63 of 122 -- [2026] WASAT 79 Page 64 'to erect, alter or extend a building used for, or in conjunction with, a non-conforming use'.164 The Proposed Amendments engage cl 67(1)(b) 255 Therefore, in the context of the Review, we are satisfied that the Proposed Amendments seek development approval to 'alter or extend' GS Lime's non-conforming use (being extractive industry: lime) pursuant to cl 23(1)(a) of LPS 2. As we have explained, the Proposed Amendments would not have the effect of changing the purpose for which the Subject Land is being used. Accordingly, cl 67(1)(a) has no application in the Review. 256 Rather, cl 67(1)(b)(ii) provides a statutory pathway to cl 67(2). As is the case here, development that seeks, relevantly, to alter or extend what is an 'X' use in the relevant zone, is development which does not comply with a requirement of LPS 2. That is because it is development that is contrary to the zoning table in LPS 2, read with cl 18(2), which provides that an 'X' use is 'not permitted by [LPS 2]'. 257 However, because that Approved Development was permitted under LPS 1, and remains lawful under LPS 2 as a non-conforming use by reason of cl 22(1)(a), there is discretion to approve the Proposed Amendments. Clause 77 of the deemed provisions 258 Clause 77, which permits approval conditions to be amended or deleted, is also relevant. There is nothing in the terms of LPS 2, nor the deemed provisions, which suggests that there is no capacity for approval conditions relating to a non-conforming use to be amended or altered. In fact, by cl 23(1)(a), alterations to a non-conforming use are expressly contemplated, subject to obtaining development approval. 259 While the Respondent focused on the fact that, by cl 77(2), an application to amend a condition is to be treated as if it were a 'new' application, that observation is no moment.165 260 The power to amend or cancel a development approval is found in cl 77(1). Clause 77(2) is merely a machinery provision. It provides the basis on which applications to amend a development approval are to be made. Clause 77(2) does not operate to, in effect, require any 164 LPS 2, cl 23(1)(b). 165 Respondent's Closing Submissions, para 15(iii). -- 64 of 122 -- [2026] WASAT 79 Page 65 development application relating to a non-conforming use to be regarded as a proposed change in use or purpose. 261 In fact, by cl 77(1)(c), a proposal to amend any development approval, including an approval for a non-conforming use, cannot be such to result in 'substantial [changes]' to the development approval. Clause 67(2) 262 Because there is discretion to approve the Proposed Amendments, cl 67(2) of the deemed provisions is thereby engaged. Accordingly, the Proposed Amendments fall to be evaluated by the orthodox application and consideration of those cl 67(2) factors that we consider to be relevant. That is, the Proposed Amendments are to be assessed on the merits. 263 Clause 67(2) requires the Tribunal, on review, to have 'due regard' to the matters identified in the subparagraphs that follow, to the extent that those matters are relevant to the development the subject of the application. In giving 'due regard' to a matter, we are required to give such considerations 'proper, genuine and realistic' consideration.166 As explained, we are also mindful that s 241(1) of the PD Act also directs that we must have 'due regard' to 'relevant planning considerations', in the exercise of discretion. 264 However, the weight we assign to the relevant planning considerations, including those in cl 67(2), is a matter for us. As was made clear by the Court of Appeal in Zampatti, there is no requirement that a factor, including a relevant State planning policy, be given any specific or even minimum weight.167 The accepted approach is a flexible weighing process, as was classically explained by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend.168 265 Accordingly, we must determine the Proposed Amendments by either granting approval (with or without conditions) or by refusing to grant approval.169 266 We now come to Issues 3, 4, 5 and 6 which, together, deal with the cl 67(2) factors which we regard as relevant to the Proposed 166 City of South Perth v ALH Group Property Holdings Pty Ltd [2016] WASC 141; (2016) 213 LGERA 96 [46] (Martino J). 167 Zampatti [137] (Kenneth Martin J). 168 Minister for Aboriginal Affairs v Peko-Wallsend [1986] HCA 40; (1986) 162 CLR 24 [41]; Zampatti [137] (Kenneth Martin J). 169 Deemed provisions, cl 68(2). -- 65 of 122 -- [2026] WASAT 79 Page 66 Amendments. By reference to the terms of cl 67(2), in our view, the following matters arise for consideration in the context of the Proposed Amendments: (a) the aims and provisions of LPS 2; (b) the requirements of orderly and proper planning; (c) a number of State planning policies (SPP 1; SPP 2; SPP 2.2; SPP 2.4 and SPP 2.5); … (f) the State Strategy; (fa) the Local Planning Strategy; … (m) the question of compatibility with the desired future character and the relationship with development on adjoining land; (n) the amenity of the locality, including environmental impacts; (o) the likely effect on the natural environment; … (t) traffic considerations, including the amount of traffic likely to be generated and issues of traffic safety; … (w) the history of the site; (x) the impact of the development on the community as a whole notwithstanding the impact of the development on particular individuals; (y) submissions that were received by the City; and (za) comments or submissions made by authorities consulted under cl 66 267 However, before we proceed further, it is appropriate to outline some difficulties with the manner in which the Respondent instructed its experts. The Respondent's instructions to its experts 268 As we have explained, the Respondent's case is that the Tribunal can only approve the Proposed Amendments if, pursuant to cl 67(1)(a) of the deemed provisions, we consider that the resultant land use would be 'less detrimental than the [existing Approved Development]'. -- 66 of 122 -- [2026] WASAT 79 Page 67 269 For this reason, the Respondent instructed its experts, including Ms Formby,170 Mr Utber,171 Mr Millar172 and Mr Algeri173 to direct their evidence to the question of whether the Proposed Amendments would be less detrimental than the existing Approved Development. 270 However, as we have explained, cl 67(1)(a) has no application in the Review. 271 As a result, much of the Respondent's expert evidence, and the opinions expressed therein, do not directly engage with the questions which are before us. However, notwithstanding their instructions, the Tribunal was still assisted by the evidence given by the Respondent's experts. 272 Contrary to the Respondent's instructions, the lens through which we are to assess the cl 67(2) factors is not an evaluation of whether the Proposed Amendments would be 'less detrimental' than the Approved Development. Rather, we must determine whether approval of the Proposed Amendments is the correct and preferable decision at the time of the decision upon the Review,174 taking account of all 'relevant planning considerations'175 as well as the applicable cl 67(2) factors. It is those factors which we now come to. Issue 3: the likely impact of the Proposed Amendments on the Bittern 273 The potential impact of the Proposed Amendments on the Bitterns was a central issue in the Review. 274 We turn, now, to discuss the Bittern and the relevant evidence directed to the likely impacts arising from the Proposed Amendments. About the Bittern 275 The Bittern is a heavy set partially nocturnal heron, with a length of between 66 - 76 centimetres (cm) and a wingspan of 1050 - 1180 cm. The species has a prominent black-brown stripe running down the side of the neck, the eyebrow is pale, and the chin and upper throat are white. Its bill is straight, pointed and straw yellow to buff in colour with a dark grey ridge. 170 Exhibit 4.4, page 13. 171 Exhibit 4.7, page 121. 172 Exhibit 4.12, page 243. 173 Exhibit 4.13, page 266. 174 SAT Act, s 27(2). 175 PD Act, s 241(1). -- 67 of 122 -- [2026] WASAT 79 Page 68 276 The Bittern feeds and breeds in fresh to moderately brackish wetlands, (with pH levels ranging between 5.5 to 8.5) in dense reeds and rushes, in southern New South Wales, Victoria, South Australia and the south-west of Western Australia. Shallow water, less than 30 centimetres deep with a low to medium density of water plants mixed with, or near, short fine sedges, are favoured for foraging while higher density emergent vegetation is preferred for nesting.176 277 The Bittern is solitary and secretive, making them difficult to observe. They forage on small animals, including birds, mammals, fish, frogs, snails and insects. They breed between October and February and the male mating call is described as a low frequency 'boom', which is audible for, at least, up to a kilometre. The evidence suggests that males commence calling once the wetland water levels peak, which in southern Western Australia is from September to December, with the most intense calling period in October and November.177 The booming calls are made from one site in the evening; not necessarily at a location associated with a nest.178 Within the materials before us, there is evidence that males may become hoarse during the call season. Equally, some calls may simply be 'poor'. The science here is not definitive.179 278 The Bittern occurs solitarily, in pairs or in loose dispersed arrangements. They breed in solitary pairs, or polygamously with up to three nesting females per booming male.180 279 The Bittern is listed as 'Endangered' under both EPBC Act and the Biodiversity Conservation Act 2016 (WA) (BC Act). In 2022, the Commonwealth Government released the National Recovery Plan for the Australasian Bittern (National Recovery Plan). In 2018, DBCA released the Western Australian Recovery Plan for the Bittern (WA Recovery Plan). 280 The Bittern population in Western Australia's south-west has been declining since at least the 1980s, primarily due to habitat loss. Current estimates indicate the total Bittern population across Australia of <2500 mature birds. The population within Western Australia is about 176 Exhibit 4.20, page 984. 177 Exhibit 4.20, page 998. 178 https: //hanzab.birdlife.org.au/species/australasian-bittern; referred to as Marchant, S and Higgins, P (eds) Handbook of Australian, New Zealand and Antarctic Birds, Melbourne, Vic OUP and referenced in the Graff Report, the National Recovery Plan and the WA Recovery Plan. 179 Exhibit 10, Graff J (2014) Vocalisations and vocal individuality in the endangered Australasian Bittern (Botaurus poicilptilus) in south-western Australia, with applications for conservation, Honours Research Thesis, UWA, Faculty of Science, May 2014, page 35 (Graff Report). 180 Exhibit 4.4, page 35. -- 68 of 122 -- [2026] WASAT 79 Page 69 150-200, located in the south-west regions of Denmark, Albany, Manypeaks, Two People's Bay, Cheynes and Esperance. 281 Since 2020, the male booming call has been detected in consecutive years in the Eungedup Wetlands, the nearby Lake Saide and a former potato farm that, in 2023, was purchased by the Wilson Inlet Catchment Group (WICG) for conservation purposes. At least two Bitterns were detected in the most recent breeding season. A bird hide at the site of the former potato farm has been approved to allow more study of the Bitterns, and the WICG has plans for further research and educational facilities. Road noise and the Bittern 282 The Tribunal has before it a large volume of evidence on the environmental considerations that arise in the context of the Proposed Amendments. 283 Despite this, the issues, as they relate to the Bittern, are quite narrow. That concern arises from road noise associated with the haulage trucks travelling to, and from, the Subject Land, in two distinct senses: (1) the potential disturbance to the Bitterns' habitat arising from the level of road noise at the intersection of Browns Road and Lee Road; and (2) the road noise will mask the male low frequency booming call during the breeding season and, therefore, affect the Bitterns' breeding ecology. (1) The potential disturbance to habitat arising from road noise 284 As to the first of these concerns, as we set out above, it is not in contest that the loss of, and a reduction in the quality of, the Bitterns' habitat, is the primary cause of the decline in population. The principal reasons for habitat loss includes reduced wetland availability arising from changes to water regimes; loss of wetlands due to urban and other land uses; fire; overgrazing, predation and climate change. In the context of the Review, the concern is that the Bittern will abandon their habitat if the road noise is, in effect, too loud. 285 It is axiomatic that, as a general principle, where a development application has the potential to result in a loss of habitat for endangered fauna, it is an issue that directs close attention. Leaving to one side the precautionary principle, which we will shortly come to, it is contrary to -- 69 of 122 -- [2026] WASAT 79 Page 70 the principle of orderly and proper planning, for the purposes of cl 67(2)(b), to approve a development where there is insufficient clarity as to its possible impact on the natural environment. 286 As was explained by the Tribunal in Hutchings and Shire of Augusta-Margaret River,181 which involved a proposal to fell 97 Peppermint trees, being known habitat for the endangered Western Ringtail Possum, land use planning decisions that leave: … unanswered questions as to whether there may be serious environmental consequences arising from their implementation, are simply not consistent with the principles of orderly and proper planning. 287 However, on the issue of the potential disturbance to the Bitterns' habitat due to road noise, for the following seven reasons, the Tribunal is satisfied that there is no unacceptable risk posed to the Bittern. 288 First, the Tribunal, together with the parties, observed the Eungedup Wetland, which is the Bittern habitat closest to the intersection of Browns and Lee Road. The habitat, including nesting sites, sits at the fringes of the wetlands in dense reeds. This habitat is physically removed from the roadway by some distance, at least some 350 m.182 While noise from passing trucks may, at times, be perceptible to the human ear at these locations, it is not intrusive to the human ear. 289 Second, as we have set out, the Bittern is a solitary and secretive heron. For this reason, the Bitterns are likely to inhabit sites close to the edge of the wetland itself, and the adjacent reed beds, and not the fringes.183 This will place the Bitterns and their habitat, at a greater distance from the roadway than the 350 m referred to above. 290 Third, the evidence suggests that road noise will not be at a level that disturbs the Bitterns to the point where it will abandon its habitat. 291 Ms Formby's responsive witness statement184 included an academic paper (Hirvonen Study) directed to, relevantly, the impacts of highway road noise on a wetland bird community (the Eurasian Bittern, Botaurus stellaris).185 While Ms Formby cited this paper as broad support for her 181 Hutchings and Shire of Augusta-Margaret River [2023] WASAT 96 [57]. 182 Exhibit 4.4, page 17. 183 Exhibit 9: Cramp et al (1984) Handbook of the Birds of Europe the Middle East and North Africa, The Birds of the Western Palearctic, Vol 1: Ostrich to Ducks, OUP, New York. 184 Exhibit 4.5. 185 Exhibit 4.5, page 107; Hirvonen, Heikki, (2001) Impacts of highway construction and traffic on a wetland bird community; in Proceedings of the 2001 International Conference on Ecology and Transportation, GL Irwin, P Garrett and KP McDermott (eds), pages 369 - 372. -- 70 of 122 -- [2026] WASAT 79 Page 71 opinion that highway noise may disrupt the breeding call of the Bittern, the conclusions of the study suggested that only where the received noise level was at, or exceeded, 56 decibels (dB), was the Eurasian Bittern disrupted, so as to abandon their habitat.186 292 The Applicant's acoustic engineer, Mr Tim Reynolds from Herring Storer Acoustics, modelled the traffic noise from trucks passing the intersection of Browns Road and Lee Road on nearby residences. From that work, he was able to estimate the likely road noise level at the Eungedup Wetlands, some 350 m away, would be in the high 30s dB.187 That estimate does not include any noise attenuation by reason of the intervening large trees and densely vegetated terrain. Mr Reynolds opined that these attenuating factors would reduce the actual received noise level by between 3 to 7 dBs.188 293 Fourth, it is not unreasonable to rely on the Hirvonen Study of the Eurasian Bittern. As Ms Formby explained, the Eurasian Bittern is the Bitterns' closest relative.189 That is also evinced in the literature, whereby the Eurasian Bittern informs the conservation planning being undertaken for the Bittern. 294 For example, the Western Australian Recovery Plan,190 uses the Eurasian Bittern as a reference point to estimate the incubation and fledging periods for the Bittern,191 as well as their longevity.192 The Threatened Species Scientific Committee, established under the EPBC Act, has prepared 'conservation advice' which also references the Eurasian Bittern to estimate the Bitterns' age of maturity.193 The National Recovery Plan also references the Eurasian Bittern194 186 Hirvonen Study 370 - 371. 187 ts 82, 17 March 2026. 188 ts 84, 17 March 2026. 189 ts 132, 17 March 2026. 190 Australasian Bittern (Botaurus poiciloptilus) Western Australian Recovery Plan, Wildlife Management Program No 64, Department of Biodiversity, Conservation and Attractions, August 2018. 191 Exhibit 4.20, page 989. 192 Exhibit 4.20, page 990. 193https://www.environment.gov.au/biodiversity/threatened/species/pubs/1001-conservation-advice- 18012019.pdf, page 3. 194 National Recovery Plan for the Australasian Bittern, Botaurus poiciloptilus, Commonwealth of Australia, 2022. -- 71 of 122 -- [2026] WASAT 79 Page 72 in this regard.195 Other literature describes the Bittern as 'closely related', 196 even 'most closely related',197 to the Eurasian Bittern. 295 Accordingly, in our view, the data that is derived from the Hirvonen Study is the best comparative information that is available on the likely effects of road noise on the Bittern habitat. That study suggests that road noise levels at 56 dB and above may result in habitat being abandoned by the Eurasian Bittern. 296 Ms Formby disputed the relevance of the conclusions in the Hirvonen Study to the Bittern, by suggesting it was a study directed to 'waders'198 and 'passerines',199 and that the Bittern was neither.200 However, Ms Formby ultimately accepted that the Eurasian Bittern was identified as a 'wader' for the purposes of the Hirvonen Study.201 297 Fifth, we are satisfied, and we find, that the noise level from passing trucks at the Eungedup Wetlands is as estimated by Mr Reynolds, to be in the mid to low 30s dB, having regard to distance and terrain factors. A noise level in the low to mid 30s dB is well below the threshold point of 56 dB, at which road noise became a threatening habitat factor for the Eurasian Bittern. The scientific literature to which we have referred relies on the data that is available for the Eurasian Bittern in planning the conservation of the Bittern. 298 While there is no specific study available on the effects of road noise as a disturbance threat to the habitat of the Bittern, we are satisfied that, given the likely noise levels assessed by Mr Reynolds, the traffic movements arising from the Proposed Amendments will not result in the Bittern abandoning their habitat. The noise differential from 56 dB to that estimated by Mr Reynolds is at least 15 dB. A noise level difference of +10 dB is significant, as it is, in effect, a doubling of the noise level which, in Mr Reynolds words, is 'quite an audible difference'.202 195 Exhibit 4.5, page 36. 196 Exhibit 10: page 9. 197 The Heron Conservation Group of the International Union for Conservation of Nature Species Survival Commission explain that the Bitterns' closest relative is the Eurasian Bittern: https://www.heronconservation.org/herons-of-the-world/list-of-herons/australasian-bittern/. 198 Being birds that forage in shallow water: https://www.dbca.wa.gov.au/landscope/spring-2025/beautiful- local-waterbirds. 199 Being songbirds that perch, with a distinct arrangement of toes: https://www.denmark.wa.gov.au/Profiles/denmark/Assets/ClientData/Final_Denmark_Bird_Group_DL_Brox _10-21.pdf. 200 ts 124 - 125, 17 March 2026. 201 ts 126, 17 March 2026. 202 ts 82, 17 March 2026. -- 72 of 122 -- [2026] WASAT 79 Page 73 299 Sixth, the land that surrounds the Eungedup Wetlands includes much land that is zoned 'Rural' in LPS 2. Within the Rural zone, 'permitted' land uses, being uses which do not require development approval, include 'agriculture-extensive' which involves the 'raising of stock or crops including outbuildings and earthworks'. 300 The lawful use of rural land for such purposes can be noisome and, at times, intrusive. The point being that if the Bittern is to inhabitant the Eungedup Wetlands, quite separate from the Proposed Amendments, it must develop a level of tolerance to noises from uses being undertaken, or which are permitted to be undertaken, on surrounding rural land. 301 Seventh, the evidence supports a view that the Bittern is not disturbed by noises associated with the use of rural land, including basic raw material extraction on the Subject Land. That is so because the Bittern has continuously inhabited the Eungedup Wetlands since 2020, including following the commencement of operations associated with the Approved Development, and while haulage trucks have been utilising Browns Road and Lee Road. 302 Accordingly, there is, at least, some prima facie evidence that the noise arising from the Approved Development has not significantly affected the Bitterns' habitat at the Eungedup Wetlands. (2) The potential for road noise to mask the Bitterns' 'booming' call 303 The potential for road noise to mask the Bitterns' mating call was the focus of much of the evidence. The concern is that noise associated with the movement of trucks along the haulage route will mask the low frequency booming call of the male. A male will make the booming call to attract a mate, but only if environmental conditions are suitable for a breeding attempt.203 304 At present, the Approved Development does not operate during the Bitterns' breeding season, which runs between September to December, but which may carry through until February.204 By reason of condition 4 of the Development Approval, the off-site haulage of lime from the Subject Land operates only between January and April. 305 Accordingly, the concern for the Bitterns is a novel issue that arises in the context of the Proposed Amendments. 203 Exhibit 4.20, page 988. 204 ts 126, 17 March 2026. -- 73 of 122 -- [2026] WASAT 79 Page 74 306 In terms of the evidence of the environmental experts, Mr Bowman and Ms Price, who were called by the Applicant, were of the view that there was no unacceptable risk to the Bittern posed by the Proposed Amendments. For the Respondent, Mr Utber and Ms Formby raised concerns. We will briefly canvas that evidence. Mr Utber 307 Mr Utber is employed as Regional Leader Conservation in DBCA's South Coast Region. He has expertise in applied environmental management, including the recovery of threatened species.205 308 Mr Utber notes that the Bittern is listed as 'Endangered' under both the EPBC Act and the BC Act. He explains that the effect of the Proposed Amendments would be to allow, in effect, year-round extraction and haulage of lime that will overlap with the Bitterns' breeding season, from September through to February. 309 Mt Utber explains that the year-round operations could potentially increase vehicle traffic and associated noise and dust within and outside the Subject Land, including the haul route near the Browns Road and Lee Road intersection, which is less than 350 m from the Eungedup Wetlands. In October 2025, there was Bittern activity in these wetlands, which has been recorded in the DBCA database.206 310 Mr Utber is concerned that it is not yet possible to determine whether the Bittern is disturbed by current activities associated with the Approved Development, and the ambient noise levels within their environment. The fact that the Bittern has been recorded as present in the nearby wetlands, even after the Approved Development commenced, is not, of itself, evidence that the Bittern is tolerating ambient noise levels and are not disturbed. That is because there is no data that suggests that the breeding in the Eungedup Wetlands has been successful.207 311 On the issue relating to acoustic masking of the mating call, Mr Utber sets out that where the background or ambient noise is at a level of frequency that interferes with, or masks, a bird's vocal signal (their call or birdsong) which includes breeding calls, that is a concern. For the Bittern, masking of the low frequency 'boom' is potentially an issue. It is 205 Exhibit 4.7, para 3. 206 Exhibit 4.7, para 14, page 123. 207 Exhibit 4.7, para 14, page 123. -- 74 of 122 -- [2026] WASAT 79 Page 75 not yet understood whether these calls can be masked by ambient noise associated with industrial activities.208 312 Mr Utber explains that the Eungedup Wetlands have, in recent breeding seasons, supported up to four booming males. While there may be multiple factors that influence residency and breeding, the impact, if any, of masking on the residency of booming males, and the success of any breeding, is unknown.209 313 Mt Utber has worked with the WA Bittern Recovery Team, which is based in Albany, since 2020. The Recovery Team deals with a small number of wetlands, where it is known that the Bittern has, in recent years, called from. He explains that the number of wetlands is less than 20, but the issue is that the wetland must contain freshwater. Many wetlands no longer contain freshwater.210 Ms Formby 314 Ms Formby's strong opinion was that the risks of the Proposed Amendments, which include extending the duration of the operation of the quarrying of the limestone pit, and its subsequent haulage, pose an unacceptable risk to the Bittern. 315 Ms Formby explains that the Bittern is endangered, and across Australia there are between 750 and 1800 mature individuals and is declining. The Western Australian subpopulation is estimated to be fewer than 100, is geographically isolated, and potentially genetically distinct, from the remainder of the population.211 She identifies that since 2020, the male Bittern booming call has been recorded each year at the Eungedup Wetlands. In 2025, two male booming calls were recorded, which represents some 4% of the estimated population. 212 316 Ms Formby notes that the Eungedup Wetlands form part of a broader mosaic of freshwater habitats upon which the Bittern depends across south-west Western Australia. The suitability of different wetlands varies year on year due to variations in rainfall, water depth and quality as well as the structure of vegetation. She considers that 208 Exhibit 4.7, para 14, pages 123 - 124. 209 Exhibit 4.7, para 14, page 124. 210 ts 152, 17 March 2026. 211 Exhibit 4.4, para 11.1. 212 Exhibit 4.4, para 11.2. -- 75 of 122 -- [2026] WASAT 79 Page 76 maintaining a diversity of intact wetland habitats is essential for the long-term survivability of the Bittern.213 317 The Bittern needs freshwater wetlands with a mix of dense and open patches of tall reeds and a shallow water depth of <30 cm. By reason of declining rainfall due to climate change, as well as ongoing habitat loss due to agriculture, remaining high quality wetland must be protected if the south-west population of the Bittern is to survive.214 Within that, Ms Formby regards the Eungedup Wetlands as a 'critical breeding site'.215 318 Accordingly, the current approval conditions for the Approved Development restrict industrial operations during the Bitterns' breeding season. Furthermore, there is limited scientific understanding of the Bitterns and its tolerance to disturbance. Ms Formby explains that:216 …. it would be inappropriate to assume that increased industrial noise, vehicle movements, or other activities will have no impact. Instead, management should err on the side of caution [by] maintaining the current operational restrictions to avoid irreversible harm. 319 As we have explained, during advertising pursuant to cl 64 of the deemed provisions, Birdlife Australia made a submission opposing the Proposed Amendments. That submission was signed by Ms Formby in her role as the 'WA Australasian Bittern Coordinator'. Following that submission, the Respondent instructed Ms Formby to appear as an expert in the Review. 320 That being the case, it is necessary to explain some issues that may arise when an expert engaged by a third-party objector is then called to give independent evidence on behalf of a respondent planning authority. The paramount duty of experts 321 It is standard practice in the Tribunal that when a party engages an expert witness to give evidence, the expert must be provided with Information Sheet 11: guide to giving expert evidence (Guide), which sets out the obligations of an expert witness. An expert must acknowledge that they have been provided with, and agreed to be bound by, the duties and obligations set out in the Guide. 213 Exhibit 4.4, para 11.3. 214 Exhibit 4.4, para 11.3. 215 Exhibit 4.4, para 11.2. 216 Exhibit 4.4, para 11.4. -- 76 of 122 -- [2026] WASAT 79 Page 77 322 The Guide explains that the paramount duty of an expert is to assist the Tribunal by providing impartial opinions on matters that are relevant to their expertise. An expert witness is not an advocate for a party. 323 While the Tribunal's objectives include acting to resolve matters 'fairly and according to the substantial merits of the case'217 and with as 'little formality and technicality as practicable',218 the Tribunal has, in some instances, expressed dissatisfaction with the basis on which the Respondent has called expert evidence. 324 This has arisen most acutely in planning cases such as Dunbar and City of Stirling219 where the Respondent has called as an expert a witness who, in acting for a third party, objected to a proposed development by way of a written submission. For the Respondent to then call that expert, places that witness in an awkward position of having to, in effect, serve two masters: their original client as well as the Respondent. 325 However, the interest of the third-party objector and the Respondent are not precisely aligned or accordant, even if they appear, at first blush, to be. The original third-party objector ordinarily constitutes a private interest whereas the role of the Respondent, in all instances, is to advance the public interest. As the Tribunal explained in Commissioners of the Presbyterian Church of Western Australia and Shire of Peppermint Grove,220 the perceived conflicted circumstance of such an expert undermines the administration of justice and proper public administration. 326 As we have explained, Birdlife Australia (Ms Formby) made a submission to the City. Birdlife Australia describes itself as being 'the voice for Australia's birds for over a century, protecting native birds and their habitats'. In its submission, Birdlife Australia explained that it was 'deeply concerned that the proposal to expand on current mining operations … will have negative and potentially deleterious effects on the [Bitterns] at Eungedup Wetlands and should be rejected'.221 327 In its Closing Submissions, the Applicant was highly critical of Ms Formby, on the basis that she did not present as an impartial witness.222 However, the Applicant did not raise with Ms Formby her 217 SAT Act, s 9(a). 218 SAT Act, s 9(b). 219 Dunbar and City of Stirling [2006] WASAT 331; (2006) 47 SR (WA) 50 [24]. 220 Commissioners of the Presbyterian Church of Western Australia and Shire of Peppermint Grove [2007] WASAT 306 [32] to [35]. 221 Exhibit 2, page 600. 222 Applicant's Closing Submissions, para 150. -- 77 of 122 -- [2026] WASAT 79 Page 78 role at Birdlife Australia nor put to her whether she was able to give impartial expert evidence. Nevertheless, the Tribunal, of its own volition, raised the issue with the Respondent's counsel, Ms Wood. The Tribunal itself described Ms Formby as a 'determined witness',223 and queried with the Respondent the basis on which she was instructed. 328 However, there is plainly a tension here. That is because Ms Formby's knowledge and expertise of the Bittern far exceeded that of the other expert witnesses. Nor could it be said that Ms Formby's evidence was not of assistance to the Tribunal. It undoubtedly was. 329 Furthermore, the circumstances that arise here can be distinguished from those in Dunbar and Presbyterian Church Commissioners, whereby the evidence in question related to ordinary planning and design matters, for which any number of experts could have been instructed. Based on the evidence in the Review, Ms Formby is undoubtedly one of, if not, the leading expert on the Bittern in Western Australia. Nor can it be said that Birdlife Australia is seeking to advance a private interest. The protection of the natural environment very much constitutes a public interest. In these circumstances, the decision to call Ms Formby was, in our view, entirely consistent with the Respondent's obligation to use its best endeavours to assist the Tribunal to make its decision on the Review.224 330 Ms Formby's expertise on the Bittern was the focus of the environmental evidence. It is not a criticism to observe that Mr Bowman, Ms Price and Mr Utber were largely reduced to the role of spectators as the evidence on the Bittern unfolded. With respect to the other environmental experts, it is not unfair to observe that Ms Formby's experience with, and knowledge of, the Bittern was detailed, extensive and far beyond that of the other experts. 331 In an overall sense, Ms Formby gave honest and candid evidence on the majority of matters that were raised with her. In terms of general impressions, Ms Formby was more than comfortable opining about the Bittern, its preferred habitat, breeding cycle, its mating call and the threats posed. 332 However, when confronted with questions or evidence which may be said to incline against a conclusion that the Proposed Amendments 223 ts 168, 18 March 2026. 224 SAT Act, s 30. -- 78 of 122 -- [2026] WASAT 79 Page 79 may not be unacceptable, Ms Formby tended to be unwilling to engage meaningful in such evidence. We will refer to three examples. 333 The first is the conclusions of the Hirvonen Study, which suggested that habitat disturbance was only an issue for the Eurasian Bittern at a noise level of 56 dB or above. When it was highlighted that conclusions from the Hirvonen Study did not actually support her opinion, Ms Formby initially attempted to distinguish the findings as not being appliable to the Bittern.225 That was both untrue and unwise. Untrue, because the Hirvonen Study was plainly directed to the Eurasian Bittern, which is, as stated, closely related to the Bittern.226 Unwise, because if it was not relevant to understanding the threat posed to the Bittern, why was it referenced. 334 The second is Ms Formby's approach to the precautionary principle. Ms Formby was very much of the view that a precautionary approach should be adopted in the Tribunal's assessment of the Proposed Amendments. However, she was unwilling to offer any such opinion directed to what a proportional response to the threat posed to the Bittern might be. She declined to answer such questions on the basis that it was outside her expertise.227 335 In our view, if an expert is qualified enough to opine that the precautionary principle ought to apply to a proposed development, then they are qualified enough to, at least, put their mind to what proportional responses might be available to the threat that they have identified. 336 The third, and related, concern is that Ms Formby's evidence did not refer to the Graff Report,228 a study focused on inter alia the breeding habits of the Bittern in the south-west. The Graff Report was put to Ms Formby in cross-examination. 337 Ms Formby demonstrated a detailed knowledge of the Graff Report, (as it was utilised by Birdlife Australia to determine its recording schedule to monitor the Bitterns' booming call).229 Despite this, Ms Formby did not refer to the Graff Report in any of her statements, even though she accepted that it is highly relevant to her opinions.230 225 ts 125 - 126, 17 March 2026. 226 Exhibit 10, page 9. 227 ts 152, 17 March 2026. 228 Exhibit 10, Graff Report, the full reference for which is 'Graff J (2014) Vocalisations and vocal individuality in the endangered Australasian Bittern (Botaurus poiciloptilus) in south-western Australia, with applications for conservation, Honours Research Thesis, UWA, Faculty of Science, May 2014'. 229 ts 130, 17 March 2026. 230 ts 126 - 127, 17 March 2026. -- 79 of 122 -- [2026] WASAT 79 Page 80 We will discuss the Graff Report further below, as it includes much detail on the Bitterns' booming call in the context of south-western Australia, being one of the central issues in the Review. 338 For present purposes, we simply observe that it would have been helpful for the Graff Report, or at least its key findings, to have been referred to in the expert evidence ahead of the final hearing. That is especially so when a central plank in the evidence of both Ms Formby and Mr Utber is that the Bittern is a cryptic and secretive heron that is in decline, and about which more information is needed. Ms Formby, as the Bittern Coordinator at Birdlife Australia, was best placed to refer the Tribunal, and the parties, to the Graff Report. 339 However, despite these concerns, we find that Ms Formby was a witness that greatly assisted the Tribunal. However, she was not a witness that, in all instances, presented her expert opinions impartially. However, having said that, Ms Formby was plainly not advocating for either party. Rather, she was a witness seeking to protect the Eungedup Wetlands, which is important habitat for the endangered Bittern. We agree with the Respondent's submission that:231 Ms Formby's demeanour and evidence during her oral evidence made it clear that she was not for the Respondent or against the Applicant. She was and is for the Bitterns. 340 For these reasons, while the Tribunal has greatly benefitted from the expertise of Ms Formby, we accept the Applicant's submissions that some aspects of her evidence should be approached with caution.232 The 'booming' call of the Bittern 341 The male Bittern will call when it is ready to mate. That will be once the water levels in the wetland peak which, in the context of the Eungedup Wetlands, is between September and December. The peak calling, and thus breeding, period is October to November. 342 The booming call is a deep low frequency call that is audible for over a kilometre in suitable conditions.233 Mr Reynolds estimates that, to be audible at such a distance, the booming call would be at a noise level of 80 dB(A), at 1 m. Based on a straight-line distance calculation234 and a theoretical noise reduction of 60 dB(A) over 1 km, noise received 231 Respondent's Closing Submissions, para 5.9. 232 Applicant's Closing Submissions, para 156. 233 Exhibit 4.20, page 986. 234 ts 86, 17 March 2026. -- 80 of 122 -- [2026] WASAT 79 Page 81 at 1 km would need to be audible only above a very quiet background of 20 dB(A).235 A noise level of 20 dB is equivalent to a bedroom in a rural area at night or a whisper.236 Based on these calculations, Mr Reynolds does not consider that noise associated with the extraction of limestone, including associated road noise on the haulage route, will mask the booming call of the Bitterns.237 343 Mr Reynolds was provided with an extract from the Handbook of the Birds of Europe, the Middle East and North Africa,238 which included commentary on the Eurasian Bittern. In that text, the booming call was described as a 'deep, slow, resonant booming, not loud but of great carrying power, sometimes audible for three to five kilometres'. Mr Reynolds explained that to be audible over that distance, the noise level of the booming call (at 1 m) would be in the order of 90 dB(A).239 344 Along with the noise level of the mating call, the evidence was focused on the breeding ecology of the Bittern. It was agreed that the Bitterns' mating period is between September to December, but can extend into January, even February. It is during this period when males may be calling to breed. 345 The concern, therefore, is the confluence of the mating habits of the Bittern, as against the operational noise, including road noise, that will arise if limestone quarrying activities, and haulage truck movements, operate on a year-round basis, as applied for in the Proposed Amendments. 346 This issue directs attention to the controls that are available to regulate quarrying activities. At present, by condition 4, as amended by the 2023 Amendments, permits limestone quarrying to occur between January and August, with haulage truck movements from the Subject Land limited to between January and April. The hours of operation are 7.00 am to 5.00 pm, Monday to Friday and 8.00 am to 5.00 pm Saturday, with no operations permitted on Sundays or on Public Holidays. 347 Condition 17, as also amended by the 2023 Amendments, caps the volume that may be extracted to 50,000 t in any 12-month period, with 235 Exhibit 4.20, page 978. 236 Exhibit 4.20, page 976. 237 Exhibit 4.20, page 978. 238 Exhibit 9, page 250. 239 ts 87, 17 March 2026. -- 81 of 122 -- [2026] WASAT 79 Page 82 laden truck movements limited to 84 per week, with no more than 20 per day. 348 Before we proceed further, it is convenient to highlight the following aspects of the Graff Report as it relates to the breeding ecology of the Bittern. The Graff Report 349 The Graff Report is an academic study that included investigations of the Bitterns' 'boom' through the evening, to determine peak calling periods. Traditionally, studies have focused on the period immediately following sunset, while elsewhere it has been suggested that dusk and dawn are both peak calling periods. The Graff Report suggests high levels of calling activities from approximately midnight through until dawn.240 While Bitterns were detected calling throughout the night, the peak calling period was the hour before sunrise (the pre-dawn period).241 350 The Graff Report explained that calling rates were relatively high for the first hour or so after sunset and then decreased to very low levels for a few hours, with an increase before midnight. There is a discernible peak in calling activity which approximately corresponds with sunrise. The calling behaviour of the Eurasian Bittern also evinces a similar dawn peak, which is unsurprising given the close relationship between the species. While other studies have identified peak calling periods at dawn and dusk, no mention was made that the dawn peak calling ritual was higher as against the dusk peak.242 351 In terms of the distance over which the calls may be heard, while the literature routinely refers to calls being audible from up to 1 km away, the maximum recorded distance was by Birdlife Australia in the south- west, being 1.8 kms. However, based on observational evidence from the surveys, these estimated distances may be understated. On several occasions, Bitterns were heard calling from 4 to 5 kms away, increasing, on one occasion, to 9 kms.243 352 No expert witness, including Ms Formby, disagreed with these findings in the Graff Report. The only point that Ms Formby added was that there will be the 'odd' mating call throughout the day.244 Ms Formby 240 Exhibit 10, page 12. 241 Exhibit 10, page 36. 242 Exhibit 10, page 34. 243 Exhibit 10, page 35. 244 ts 129, 17 March 2026. -- 82 of 122 -- [2026] WASAT 79 Page 83 maintained her view, even though daytime calling was not identified in the Graff Report. The Bittern: our findings 353 From this evidence, we make the following findings for the purposes of Issue 3 and the concern that road noise will mask or disrupt the Bittern mating call: (1) The Bittern is a partially nocturnal heron. (2) The Bittern population has long been in decline in Western Australia, primarily due to a loss of habitat from a range of factors. (3) Maintaining a diversity of intact wetland habitats is essential for its long-term survivability. Bitterns in the south-west region depend on a range of freshwater habitats. The suitability of wetland year on year fluctuates due to variations in rainfall, water depth and quality as well the structure of vegetation. The breeding habitat for the Bittern is freshwater wetlands with a mix of dense and open patches of tall reeds and a shallow water depth of <30 cm. (4) By reason of declining rainfall due to climate change, as well as ongoing habitat loss due to agriculture, remaining high quality wetlands must be protected if the south-west population of the Bittern is to survive. (5) Any wetland in which the Bittern is known to breed or habitually occupy, as well as areas that support the hydrology of the wetland, is, pursuant to LPS 2, to be regarded as critical to its survival.245 Of the wetlands in the south-west where the Bittern has historically been known to breed, some no longer contain freshwater. (6) Breeding Bitterns have been detected in the Eungedup Wetlands each breeding season since 2020. Accordingly, the Eungedup Wetlands are to be regarded as a 'critical breeding site' for the Bittern.246 245 Exhibit 4.20, page 990. 246 Exhibit 4.4, page 11.2. -- 83 of 122 -- [2026] WASAT 79 Page 84 (7) The breeding season for the Bittern is between September through to February, with the peak breeding season running from October to December, when water levels within the wetlands are at their highest. (8) The booming call occurs most frequently in the periods immediately before and after sunset and then slows significantly. The frequency of the booming call will increase again around midnight, whereafter calls will continue through to sunrise, with a further peak in calling activity in the period immediately before and after sunrise. There may be an occasional mating call throughout the day. The location of the booming call is not necessarily associated with a nest. (9) The booming call of the male Bittern is audible for at least 1 km, although that is likely to be an underestimate. The booming call is likely to be around 80 dB (or more), at 1 m. (10) There is uncertainty as to whether road noise associated with trucks using the haulage route, will interfere or mask the mating call of the male Bittern, should the two events coincide or overlap. Sustainable development and land use planning 354 In Western Australia, it is now trite to observe that environmental considerations fell within the subject matter, scope and purpose of the (then) Town Planning and Development Act 1928 (WA) and are therefore relevant in the exercise of planning discretion.247 355 In the transition to the PD Act, environmental factors have become central considerations in land use planning decision-making. That legislative intent is evinced by s 3(1)(c) of the PD Act which provides that one of the purposes of the PD Act is to 'promote the sustainable use and development of land in the State'.248 356 SPP 1 - which establishes the overarching SPF - sets out that the 'primary aim of planning is to provide for the sustainable use and development of land'.249 Likewise, SPP 2 embraces the concept of sustainable development which, in the context of land use planning, 247 Squarcini and Milino Pty Ltd v State Planning Commission (unreported SCt of WA (Scott J); Library No 960200; 17 April 1996. 248 PD Act, s 3(1)(c). 249 SPP 1, Pt 5, page 4. -- 84 of 122 -- [2026] WASAT 79 Page 85 involves the integration of ecological, economic and social considerations into decision-making. 357 In Wattleup Road v SAT,250 Chaney J explained that s 3(1)(c) of the PD Act 'clearly invites consideration of environmental factors'. In our view, with respect, s 3(1)(c) does more than 'invite' consideration of environmental factors. Rather, it mandates their consideration. 358 As was explained by Preston CJ in Telstra Corp Ltd v Hornsby Shire Council,251 with respect to Environmental Planning and Assessment Act 1979 (NSW) (NSW EPA Act),252 because the sustainable use of land has been expressly adopted as a legislative purpose, the principles of sustainable development, are required to be applied when making decisions under that, or any legislative instrument made under, the NSW EPA Act. 359 Accordingly, in the context of decisions made under the PD Act, and instruments made pursuant to it, such as LPS 2, decision-makers are required to have regard to the principles of sustainability, where such issues arise in the exercise of planning discretion. 360 The State Strategy provides that sustainability is directed to 'meeting the needs of current and future generations through the integration of environmental protection, social advancement and economic prosperity'.253 At its most basic formulation, sustainable development is 'development that meets the needs of the present generation without compromising the ability of future generations to meet their own needs'.254 361 However, the focus on intergenerational equity in decision-making under the PD Act is not limited to anthropocentric considerations; but also embraces conservation principles and ecocentric values. The notion that land use planning is directed to the conservation of the natural environment, as an end in itself, is evident not only in the very notion of sustainability, but is expressly recognised in s 27(b) of the PD Act, which is directed to preparing State planning policies that provide for the 250 Wattleup Road Development Co Pty Ltd v State Administrative Tribunal [No 2] [2016] WASC 279 (Wattleup Road v SAT) [53]. 251 Telstra Corp Ltd v Hornsby Shire Council [2006] NSWLEC 133; (2006) 146 LGERA 10 [121]. 252 NSW EP Act, s 5(a)(vii). 253 State Strategy, page 116. 254 World Commission on Environment and Development, Our Common Future, 1987, page 44 (also known as the Brundtland Report after the Chairperson of the Commission, Gro Harlem Brundtland). -- 85 of 122 -- [2026] WASAT 79 Page 86 'conservation of the natural [resources] for [environmental or ecological] purposes'. 362 Likewise, cl 4(2) of sch 7 to the PD Act provides that local planning schemes may include provisions dealing with, inter alia, '[t]he conservation of the natural environment of the scheme area including the protection of natural resources, the preservation of trees, vegetation and other flora and fauna, and the maintenance of ecological processes and genetic diversity'. 363 That is, planning instruments may be directed to the conservation of the natural environment for reasons separate, and distinct from, anthropocentric values. The precautionary principle 364 It is within the context of decision-making directed to sustainable development, that the 'precautionary principle' emerged, and which is defined in The Rio Declaration on Environment and Development 1992 United Nations (UN), as follows: Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost- effective measures to prevent environmental degradation.255 365 The precautionary principle is, in effect, a convenient label that is applied where, in appropriate cases, a decision-maker is justified in proceeding cautiously. In Leatch v National Parks and Wildlife Service,256 Stein J described the precautionary principle as a 'statement of commonsense' that operates on the premise that where there is 'uncertainty or ignorance … concerning the nature or scope of environmental harm … decision-makers should be cautious'. 366 In Telstra,257 Preston CJ explained that the precautionary principle is enlivened by the satisfaction of two conditions precedent or thresholds: (1) a threat of serious or irreversible environmental damage; together with (2) scientific uncertainty as to the environmental damage. 255 Rio Declaration on Environment and Development 1992 (UN) (Int), Principle 15. 256 Leatch v National Parks and Wildlife Service (1993) 81 LGERA 270, 282. 257 Telstra [128]. -- 86 of 122 -- [2026] WASAT 79 Page 87 367 Once both preconditions are satisfied, a decision-maker is entitled to take a precautionary approach to avert the anticipated threat of environmental damage. However, for two reasons, care needs to be taken in applying a precautionary approach. Firstly, any response must be proportionate to the relevant threat.258 Secondly, as explained by Chaney J in Wattleup Road v SAT,259 the precautionary principle arises for consideration as a relevant factor, it is not to be elevated as operating as a principle of law. 368 In Bridgetown/Greenbushes Friends of the Forest Inc v Department of Conservation and Land Management,260 which involved an application for an interim injunction to prevent logging of jarrah trees in the Kingston Forest, Wheeler J considered that the 'clear thread' that emerges from judicial consideration of the precautionary principle, is that it 'does dictate caution, but it does not dictate inaction'. 369 The precautionary principle has been applied in many Tribunal decisions,261 including with respect to matters of public health and safety including, for example, road safety,262 protection of public drinking water supplies,263 as well as the management of the pearling industry.264 The precautionary principle is also expressly adopted in some policy instruments made under the PD Act, for example State Planning Policy No - 2.6 Coastal Planning Policy (SPP 2.6).265 370 Nevertheless, despite the breadth of its application, and unlike the Environmental Protection Act 1986 (WA) (EP Act),266 neither the PD Act, nor any legislative instrument made pursuant to it, are yet to define the precautionary principle and its intended application in land use planning and decision-making. 258 Wattleup Road Development Co Pty Ltd and Western Australian Planning Commission [2011] WASAT 160 [66] (Wattleup Road 2011); Al-Boraich and City of Swan [2020] WASAT 163 [130] (Al Boraich). 259 Wattleup Road v SAT [53]; Tuna Boat Owners Association of SA Inc v Development Assessment Commission [2000] SASC 238; (2000) 77 SASR 369 [34] (Doyle CJ, Duggan and Lander JJ agreeing). 260 Bridgetown/Greenbushes Friends of the Forest Inc v Department of Conservation and Land Management (1997) 18 WAR 102, 118 - 119. 261 Wattleup Road Development Co Pty Ltd and Western Australian Planning Commission [2014] WASAT 159 [13] - [14]; Wattleup Road 2011; Robertson [176]; Co Pty Ltd and Western Australian Planning Commission. 262 Greenelm Pty Ltd and City of Swan [2010] WASAT 142; (2010) 74 SR (WA) 84 [57]; WA Timber Supplies Ltd and City of Swan [2020] WASAT 153 [193]; Fryer and City of Subiaco [2006] WASAT 199 [103]. 263 Al-Boraich [103]. 264 Paspaley Pearling Co Pty Ltd and Delegate of the CEO of the Department of Primary Industries and Regional Development [No 2] [2024] WASAT 108; (2024) 116 SR (WA) 1 [196] - [209] (Paspaley). 265 SPP 2.6, cl 5.11. 266 EP Act, s 4A. -- 87 of 122 -- [2026] WASAT 79 Page 88 371 In Paspaley, the Tribunal noted that applying the precautionary principle in the context of statutes that do not expressly refer to, nor define, it, can present difficulties, given the lack of certainty as to its terms.267 The precautionary principle: the position of the parties 372 In the context of the Review, in taking account of the likely impacts of the Proposed Amendments on the natural environment, relevantly the Bittern, the Respondent, by the evidence of Ms Formby268 and Mr Utber,269 raises the precautionary principle as a basis on which the Proposed Amendments should be refused. 373 The Applicant disagrees. It submits the precautionary principle is not enlivened. 374 Nevertheless, at a general level, the Applicant accepts that should a proposed development application pose an unacceptable threat to an endangered species, the precautionary principle could operate as a barrier to approval being granted.270 375 However, in the context of the Review, the Applicant submits that, on the evidence, there is no basis to conclude that the Proposed Amendments raise a threat of serious or irreversible environmental damage. Accordingly, the necessary conditions precedent set out by Preston CJ in Telstra, are not present, and thus the precautionary principle does not arise for consideration. Issue 3: disposition 376 In Bridgetown Greenbushes, Wheeler J's explanation of precautionary decision-making, and the underlying need for decision-makers to proceed with caution, highlighted that where there is research or information that identifies the risk of environmental harm, a more 'pessimistic rather than optimistic view of the risks should be taken'. 377 Wheeler J's analysis in Bridgetown Greenbushes was referred to with approval by Bromberg J in Sharma v Minister for the 267 Paspaley [198]. 268 Respondent's Closing Submissions, paras 5.7 and 5.11. 269 Respondent's Closing Submissions, page 35. 270 Applicant's Closing Submissions, para 35. -- 88 of 122 -- [2026] WASAT 79 Page 89 Environment,271 a case involving the question of whether the Federal Minister for the Environment owed a duty of care to Australian children, when exercising powers under the EPBC Act. 378 Bromberg J explained that the proposition that emerges from the authorities of the precautionary principle, and its application, is that:272 … in assessing future risks of environmental damage in situations of scientific uncertainty a 'cautious' approach to actions which may bring about environmental degradation is to be taken and, in taking such an approach, a heightened recognition … of the risk of environmental damage should be taken by decision-makers. 379 As we have found, the Bittern relies on a mosaic of freshwater habitats across south-west Western Australia. The Bittern is endangered, and its population is in long-term decline. To breed, the Bittern requires a particular confluence of circumstances involving a fresh to moderately brackish wetland, (with pH levels ranging between 5.5 to 8.5), together with dense reeds and rushes together with shallow water, less than 30 cm deep with a low to medium density of water plants mixed with, or near short fine sedges which are favoured for foraging and, preferably, higher density emergent vegetation for nesting. Furthermore, the location and circumstances of the wetland must be such that it is suitable habitat for the Bittern, noting its solitary and secretive characteristics. 380 By reason of these variables, including the salinity of the wetland, its depth and the state of its fringing vegetation, it is axiomatic that the suitability of different wetlands will vary year on year due to variations in rainfall. In our view, maintaining, indeed protecting, a diversity of intact wetland habitats is essential for the long-term survivability of the Bittern. As Mr Utber explains, many wetlands that once contained freshwater, no longer do. 381 Furthermore, we also accept Mr Utber's evidence that it is not yet possible to determine whether the Bittern is disturbed by current activities associated with the Approved Development, and the ambient noise levels within their environment. The fact that the Bittern has been recorded as present in the nearby Eungedup Wetlands, even after the commencement of the Approved Development, is not, of itself conclusive evidence that the Bittern is tolerating, and are undisturbed by, 271 Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment [2021] FCA 560; (2021) 248 LGERA 330. 272 Sharma [255]. -- 89 of 122 -- [2026] WASAT 79 Page 90 ambient noise levels. There is no definitive data that any breeding in these wetlands has been successful.273 382 By reference to our findings, set out above at [352], we are satisfied, and we find, that: (1) The Proposed Amendments will result in the breeding season of the Bittern, being an endangered species that is in decline, which is reliant on a specific matrix of wetland factors to breed, coinciding, and potentially overlapping, with quarrying activities on the Subject Land, including the associated movement of haulage trucks past the Eungedup Wetlands, being critical habitat for the Bittern. It is simply not possible for us to be satisfied, on the balance of probabilities, that the Bitterns' booming call will not be masked or muffled by road noise. Despite the findings of the Hirvonen Study, and the best efforts of Mr Reynolds, who we find was a forthright and honest witness, there is, at the very least, some potential for road noise to mask, even partially, the mating call should the two events coincide. That is because much will depend on the location of the booming Bittern, the time of the calling, climatic and other conditions, the position and speed of the haulage truck (or trucks) and the condition of the particular road. Mr Reynolds' acoustic analysis focused on the anticipated noise levels at the edge of the wetland; being the Bitterns' preferred habitat. However, a male Bittern may call from other locations. There is also evidence, which we accept cannot be regarded as definitive or conclusive, that the booming male may become hoarse through the breeding season, meaning its call may weaken. For these reasons, the Proposed Amendments, do raise a serious threat of damage to what is to be regarded as critical Bitterns' breeding habitat. (2) Based on the evidence before us, it is unknown whether if the two events did coincide (a mating call whilst trucks are driving within the vicinity of the Eungedup Wetlands) would prove to be disruptive, or not, to the breeding habits of the Bittern. For this 273 Exhibit 4.7, para 14, page 123. -- 90 of 122 -- [2026] WASAT 79 Page 91 reason, there is scientific uncertainty as to the damage that may result, should the two events coincide. 383 Accordingly, consistent with the evidence of Ms Formby and Mr Utber, we find that the precautionary principle arises in the context of the Proposed Amendments. Issue 4: need and demand for lime in the Great Southern Region 384 Lime is a basic raw material. It has application in both rural industries (to combat acidic soils) as well as in urban developments (as road base). In Robertson,274 the Tribunal found that there is only limited locally produced lime suitable for agricultural application in the Great Southern Region. 385 In Robertson, the Tribunal had before it evidence outlining that soil acidity is a major degradation problem across Western Australia, but particularly the south coast region, given the light textured and highly leached sand plain soils across the region.275 Agricultural lime is applied to lift and maintain soil pH to optimum levels for plant growth.276 386 The Applicant puts forward the Proposed Amendments on the premise that the demand for limestone within the region is such that the annual extraction limit (of 50,000 t) and the four-month haulage period (January to April), are now insufficient, having regard to the need for limestone for both agricultural application and for other purposes (such as, for use in road base). 387 The Applicant presses its case on the increase in need and demand for lime through two related prisms: (a) sustainable development by way of the provision of more locally sourced lime; and (b) the associated community benefits of more locally sourced lime being available. 388 The Respondent does not accept that making more lime available from a local source constitutes sustainable development, because once it is exhausted, there will be no lime available for the community.277 The Respondent further observes that the Applicant has not adduced 274 Robertson [184]. 275 Robertson [185]. 276 Exhibit 4.16, page 303. 277 Respondent's Closing Submissions, para 10.2. -- 91 of 122 -- [2026] WASAT 79 Page 92 detailed evidence on the use, and application of, agricultural lime in the Albany region. In any event, the Respondent considers that the number of land users requiring lime within the City, would be 'minimal'.278 Relevant state policies 389 The State Strategy recognises the importance of sustainable development and, within that, affordable access to basic raw materials. These considerations are further emphasised in the LGS Strategy. 390 SPP 2.4 emphasises that lime is a finite resource which is required to be used efficiently to ensure ongoing supply to support economic development across the State. Basic raw materials, such as lime, are essential for the construction of buildings, roads as well as agricultural land uses. SPP 2.4 provides that basic raw material matters arising in the context of rural land are addressed in SPP 2.5. 391 SPP 2.5 notes that rural land accommodates significant environmental assets, areas with natural landscape values as well as areas that contain basic raw materials. Accordingly, there is increased competition in relation to rural land resources. SPP 2.5 defines 'rural land use' to include basic raw material extraction. 392 Relevantly, the objectives of SPP 2.5 include ensuring access to, and extraction of, basic raw materials outside of the Perth and Peel conurbation and to 'protect and sustainably manage environmental landscape and water resource assets'.279 393 Furthermore, in protecting rural land and associated uses, SPP 2.5, the WAPC will accept 'the impacts of well-managed primary production on rural amenity'.280 In this context, SPP 2.5 defines 'rural amenity' to mean 'a standard of residential amenity that is rural in nature, which may include impacts from primary production'.281 As a general principle, SPP 2.5 recommends against local planning schemes prohibiting the extraction of basic raw materials. The evidence of Mr Smith 394 The Tribunal heard from Mr Smith, a director and shareholder of GS Lime as well as being a local farmer. Mr Smith's family farm, which has an area of approximately 8,000 ha, is in Green Range. He explains 278 Respondent's Closing Submissions, para 10.4. 279 Exhibit 4.17, page 571. 280 Exhibit 4.17, page 571. 281 Exhibit 4.17, page 571. -- 92 of 122 -- [2026] WASAT 79 Page 93 that his farm requires approximately 1,000 t of lime per year, depending on rainfall, the condition of the soil as well as budgetary considerations. The quality of the lime is an important consideration as is the transportation costs involved. Such costs including the transport of the lime to the farm, as well as the costs associated with its application on the farm (by tractors, spreaders and loaders). 282 395 Mr Smith currently receives many calls from GS Lime clients seeking lime for agricultural production. At present, by reasons of the limitations on its operations, GS Lime is unable to provide lime to many of these clients. Furthermore, Mr Smith also receives calls from across the western region (Frankland River, Mount Barker and Kendenup) for limestone rubble to be used for subsurface drainage. Because GS Lime is unable to assist, the lime for such uses has been acquired from other quarries such as Lake Preston and Bremer Bay. 283 396 Mr Smith considers that the Subject Land produces high-quality lime and is one of the largest accessible deposits on the south coast. Mr Smith explains that the quality of the lime is important, as the smaller the particle size, the more reactive the lime is. This produces a greater calcium carbonate content, meaning better neutralising value. The better the quality, the more effective it is. The more effective the lime, the less volume is required.284 397 The Subject Land is one of only a few lime sources available across the region. Mr Smith, notes that the other available lime sources are located on the west coast at Redgate and Boranup, both in the Shire of Augusta Margaret River. Accessing these lime sources, as against lime from the Subject Land, involves significantly higher freight and transportation costs.285 There are lime suppliers that are closer at Manypeaks and Bornholm, however, due to the lower quality of the lime, a greater volume is required. 398 By way of comparison, the distance (one-way) from the City's administrative centre in Albany (102 North Road, Yakamia) to: Subject Land: 48 kms Redgate: 350 kms 282 Ex 4.16, page 303. 283 Ex 4.16, page 304. 284 Ex 4.16, page 303. 285 Exhibit 4.16, page 303. -- 93 of 122 -- [2026] WASAT 79 Page 94 Boranup: 344 kms Manypeaks: 283 kms Bornholm: 36 kms Bremer Bay: 124 kms Lake Preston: 356 kms 399 It is in this context that the Applicant points, axiomatically, to the obvious benefits in a perennial lime source being available closer to Albany, which reduces the length of time that haulage trucks are required to drive to, and from, the lime source. 400 The Applicant submits that the Proposed Amendments would: (a) reduce carbon emissions by avoiding the need for the transport of lime from sites farther away from the Great Southern Region; (b) combat the significant environmental problem of land degradation through soil acidification and ensure that farmers have access to a local supply of lime throughout the year; and (c) make available limestone to be used as road base, which will benefit the wider community. 401 We will address Issue 4 in two parts. Issue 4A will focus on whether it can be said that the Proposed Amendments constitutes 'sustainable development' and, Issue 4B will address the separate, but related, question of community need and demand. Issue 4A: whether the increased availability of lime constitutes sustainable development 402 We have earlier set out the principles of sustainable development in the context of the PD Act. The question of sustainability, by reason of reduced truck movements derived from being granted access to a local basic raw material resource, was considered by the Tribunal in Mt Lawley Pty Ltd and WAPC.286 286 Mt Lawley Pty Ltd and Western Australian Planning Commission [2007] WASAT 59. -- 94 of 122 -- [2026] WASAT 79 Page 95 403 In Mt Lawley, the Tribunal allowed a review relating to a proposal for extraction of approximately 100,000m3 of sand, on land reserved for regional road purposes, to facilitate a residential development on adjacent land. The sand would have ultimately been used by Main Roads WA at the time the regional road, the subject of the reservation, was constructed. 404 In Mt Lawley, the Tribunal was satisfied that the extraction of the sand would not compromise the road reservation and that the proposal represented an efficient utilisation of fill materials. That conclusion was premised on the avoidance of 11,222 heavy truck movements that would otherwise be required and which would have produced a number of social, economic and environmental detriments.287 405 For these reasons, in Mt Lawley the Tribunal found that making the sand available constituted 'the sustainable use and development of land'.288 Furthermore, the Tribunal, correctly in our view, recognised that 'sustainability is now a core element of orderly and proper planning' and that:289 Sustainability requires the integration of the social, economic and environmental consequences of land use and development in order to deliver a better quality of life now and for future generations[.] Issue 4A: disposition 406 We accept that the Proposed Amendments, if approved, would make available a greater volume of lime that has been sourced from the Subject Land. It follows that we also accept that land users that require lime in the region will then have the option of seeking lime from the Subject Land. Accordingly, it may well be that there will be reduced transport costs for some users, with consequent benefits for the safety of all local road users. 407 However, unlike Mt Lawley, the Applicant's evidence is pitched at a broad and principled level. It is not detailed; nor is it precise as to the extent of the number of haulage trucks, and from which locations, that would be reduced by reason of the Proposed Amendments. We accept the Respondent's submissions in this regard. 408 The Applicant's evidence on the benefits of the Approved Development reaches no higher than identifying the obvious benefits, 287 Mt Lawley [39]. 288 Mt Lawley [48]. 289 Mt Lawley [48]; see also Carbone Bros Pty Ltd and Shire of Harvey [2021] WASAT 150 [98]. -- 95 of 122 -- [2026] WASAT 79 Page 96 such as reduced transport costs and improved availability, of having greater access to locally sourced lime across the region. In that limited sense, we agree and find that the Proposed Amendments constitute sustainable development, relative to most other lime sources currently available to the City, and its hinterland. 409 However, beyond that broad conclusion, there is no factual basis for the Tribunal here to find, as it did in Mt Lawley, that the Proposed Amendments constitute a sustainable use of land by reference to a precise reduction in heavy truck movements. 410 In saying that, we do accept that the Proposed Amendments will bring benefits, perhaps even considerable benefits, to those users that rely on access to lime in the Great Southern Region. That, of itself, may be a relevant consideration by reason of cl 67(2)(x) of the deemed provisions, if it delivers a community benefit, notwithstanding the impact of the development on particular individuals. 411 It is that issue to which we now turn. Issue 4B: community need and demand Relevant principles 412 On the question of need and demand, following the decision of the former Town Planning Appeal Tribunal (TPAT) in BP Australia Pty Ltd v City of Perth (BP Australia),290 the day has long passed that a proponent is required to demonstrate sufficient demand for a proposed development; nor whether it is 'needed', by the relevant community. 413 Prior to BP Australia, the requirement that sufficient demand be demonstrated, at times, led to a proponent being put to the cost of calling highly specialised evidence, directed to the proposed community benefits that would flow from the proposed land use. The rationale for that approach was explained by DK Malcolm QC (as he then was) in Aboriginal Hostels Ltd v Shire of Swan,291 that sound town planning principles required an assessment as to whether a proposed discretionary use was needed, to ascertain the projected benefits as against the possible community costs, such as impacts on amenity. 414 The difficulty in demonstrating community 'need' is perhaps best illustrated in the TPAT's decision in West Savoy Theatres v 290 BP Australia Pty Ltd v City of Perth (1994) 10 SR (WA) 110 (BP Australia) at 116 - 117. 291 Aboriginal Hostels Ltd v Shire of Swan (unreported, TPAT, WA, No 26 of 1979) [51]. -- 96 of 122 -- [2026] WASAT 79 Page 97 City of Perth,292 where the proponent adduced evidence from a specialist forensic psychologist opining that there was a relevant demand for a 'peepshow'. That evidence was to the effect that such a use provided an outlet for people who are sexually inhibited, socially withdrawn or emotionally isolated. 415 In BP Australia,293 which was heard and determined shortly after West Savoy Theatres, the TPAT found that the principle set out in Aboriginal Hostels, should only have application in the context of proposed uses of a public nature. In a commercial context, the application of such a principle placed a developer in an 'insidious position of having to prove a need for the proposed development'.294 The TPAT referred to West Savoy Theatres as an example of the difficulty in demonstrating community need 'from the amorphous and unarticulated desires of a cross-section of residents'.295 416 In BP Australia, the TPAT then articled the principle, which continues to apply, that:296 For a commercial or business use, no inquiry as to need should be undertaken as a preliminary question. The authority and Tribunal should accept that the applicant has done an analysis of the demand for the use and should not put the applicant to proof. The issue then becomes solely one of amenity and other proper planning considerations. 417 More recently, in Harper Investments WA Pty Ltd and Presiding Member of the Metro Inner-North Joint Development Assessment Panel,297 the Tribunal noted that it was self-evident that a commercial developer, proposing to invest a substantial sum of money, would be able to refer to materials that provide a basis as to why a development is being proposed, including that there is a sufficient demand. 418 As we have explained, in declining to follow the approach in Aboriginal Hostels, the TPAT, in BP Australia, drew a distinction between commercial and public uses, on the relevance of evidence directed to questions of need and demand. 419 In the context of public land uses, where the need for such a use has been established by the evidence, then the need for such a use being made 292 West Savoy Theatres v City of Perth (1993) 9 SR (WA) 58, 61. 293 BP Australia, 116. 294 BP Australia, 117. 295 BP Australia, 117 - 118. 296 BP Australia, 118. 297 Harper Investments WA Pty Ltd and Presiding Member of the Metro-Inner Joint Development Assessment Panel [2023] WASAT 130 [272]. -- 97 of 122 -- [2026] WASAT 79 Page 98 available has, at times, been given more weight in the exercise of discretion, as against local planning concerns, such as reduced amenity and additional traffic. The decision in Pinder Architects Pty Ltd v City of Stirling,298 a hostel for First Nations peoples requiring medical care, for which a chronic demand was demonstrated, is one example. 420 However, beyond proposals for public and community uses, as we have noted, the question of need and demand have, following BP Australia, largely faded away in the exercise of planning discretion. There are, however, some commercial uses which may seek to leverage from such questions. 421 One example is childcare centres, which ostensibly present as a land use directed to meeting a public need. However, in the evaluation of such uses, it is still relevant that childcare centres now operate as commercial land uses, established to make a profit and which are located on zoned land throughout the community, and not confined to land reserved for public purposes.299 422 The clear thread of reasoning through these authorities is that, on the question of need and demand, it is now assumed that an applicant for approval for a discretionary land use of commercial nature, has satisfied themselves that there is sufficient demand for that use. 423 The question for the planning authority in such cases is to then assess the impacts of that use by reference to the applicable planning framework. That framework, by cl 67(2)(x) includes the impact of the proposed development on the community as a whole which may, in certain contexts, direct attention to questions of need and demand. That is, the door has been left open for need and demand to inform the exercise of discretion in the context of any application for development approval. 424 However, in the assessment of the community impact, the nature of the use, and thus the relevant 'need', remains relevant. As the Tribunal explained in Harper Investments,300 the question of community need has been given greater weight in the exercise of discretion where the use is not for commercial profit and where the proposal is for a land use that is chronically needed by the community. The hostel approved for 298 Pinder Architects Pty Ltd v City of Stirling (1996) 92 LGERA 165. 299 See for example Sharon Property Pty Ltd and Presiding Member of the Metro Inner-North Joint Development Assessment Panel [2021] WASAT 63 [151] - [159]. 300 Harper Investments [275]. -- 98 of 122 -- [2026] WASAT 79 Page 99 community health reasons in Pinder Architects remains the locus classicus of such a use. 425 It is against that backdrop that we turn to assess the question of community need and demand in the context of the Proposed Amendments. Issue 4B: disposition 426 The Applicant's submissions emphasised the importance of limestone as a basic raw material and pressed that there was a 'sufficient demand, even a community need, for lime in the Great Southern Region'.301 427 We accept that lime is an important basic raw material that has application in both agricultural production and urban development. So much is made plain by the State Strategy, the LGS Strategy, SPP 2.4 and SPP 2.5. Furthermore, we accept that the Applicant considers that there is sufficient demand for its lime, that justify the Proposed Amendments from a commercial perspective. 428 However, we do not accept that these considerations constitute a community need, in the sense emphasised in the authorities we have referred to above. That is so even accepting that lime has broad application across a number of industries. 429 The Applicant's evidence relating to 'need' and 'demand' for lime is pressed solely through the evidence of Mr Smith, himself a director of GS Lime. While we had no issues in terms of credibility, at its highest, Mr Smith's evidence is that he considers the lime extracted from the Subject Land to be good quality and that, currently, he is aware that other farmers seeking good-quality lime have had to travel some distance to access it. 430 That evidence is a long-way short of the nature of the evidence on community need that was available in Pinder Architects. There is no explanation of why the lime is considered to be good quality, and the evidence as to demand is purely anecdotal. Likewise, the Applicant's submissions on community need are not supported by any quantitative analysis. 431 Accordingly, in the exercise of planning discretion, we are not prepared to give significant weight on the need for lime in the Great 301 Exhibit 1, page 98. -- 99 of 122 -- [2026] WASAT 79 Page 100 Southern Region, in terms of evaluating community impact under cl 67(2)(x). 432 Rather, we accept that the Applicant is a commercial operator and is of the view that there is sufficient demand for a greater volume of lime to be made available in the region. Furthermore, in making a greater volume of lime available, it may mean that those seeking to access lime may not need to travel the distances that would otherwise be required. 433 Because the Applicant's evidence on demand reaches no higher than that, this is not a case where we are prepared to, in effect, allow for what we regard as otherwise unreasonable planning impacts across the locality, on the basis that the Proposed Amendments will deliver an important community need that is currently lacking. That is not this case. 434 We turn, next, to address the impacts of the Proposed Amendments on the locality. Issue 5: the impact of the Proposed Amendments on the amenity of the locality 435 As we have explained, the Respondent's central contention in the Review is that the Proposed Amendments are not 'less detrimental' than the existing land use and are therefore incapable of approval under LPS 2. 436 We have already explained why the 'less determinantal' test does not arise in this Review.302 437 Rather, the issue to be determined is whether the proposed increase in GS Lime's operations will result in unacceptable amenity impacts on residents of the locality and users of the Bibbulmun Track and Nullaki campsite (which we will come to in Issue 6). The amenity impacts identified by the Respondent include increased traffic volumes, noise, vibration and dust. 438 As previously noted,303 the Respondent filed four witness statements from local community members, which were made exhibits.304 In addition, Mr Ossinger gave evidence at the final hearing. 439 Each of these witness statements referred to complaints made to the City relating to operational matters connected with GS Lime. 302 Refer [221] to [256] above. 303 Refer [68] above. 304 Exhibits 4.1, 4.2, 4.3, and 4.4. -- 100 of 122 -- [2026] WASAT 79 Page 101 Most of the complaints related to alleged non-compliance with conditions of the Development Approval, largely directed to the arrival time of offsite trucks, noise and safety issues associated with the condition of roads, site lines, and the speed of trucks. 440 Mr Ossinger gave evidence as an affected member of the local community and manager for four properties adjacent to the Subject Land. Mr Ossinger raised concerns about the impact of noise, dust and visual disturbance of truck movements on the Eungedup Wetlands and the local community. 441 As we have set out, expert evidence was adduced on traffic (from Mr Laybutt and Mr Millar) (traffic experts), on noise (Mr Reynolds and Mr Shurlock) (noise experts) and town planning (Ms Chapman and Mr Algeri) (town planning experts) on the issues likely to arise from the Proposed Amendments on the amenity of the locality. 442 It is noted that the assessments undertaken by the traffic and acoustic experts are premised on the basis that there will be no alteration to the manner in which lime extraction and haulage operations are conducted on the Subject Land, in terms of both the type, and number, of, machinery involved. 443 Mr Smith's evidence confirmed that GS Lime's operations will be 'conducted in the same manner as they are presently conducted'. The only change would be that operations would endure throughout the year. Mr Smith detailed the current operations as follows:305 (a) Lime is extracted from the quarry by a bulldozer ripping and pushing limestone down the excavation face and, once any hard rock is removed, a front-end loader (FEL) then extracting the lime sand. The extraction process involves no drilling and blasting activities. (b) The extracted lime is placed into a FEL and then deposited into a crushing and screening machine (Crusher) at the quarrying area, and, after processing, the material is stockpiled. There is only one Crusher on the Subject Land, sited on the quarry floor to reduce the impact of noise generated from the processing activities. 305 Exhibit 4.17. -- 101 of 122 -- [2026] WASAT 79 Page 102 (c) The extracted and processed material is taken from the quarry to the stockpile area in specialised onsite vehicles, being the articulated Moxy dump trucks. The internal haul road (haul road) is operated as a one-way traffic system, therefore only one Moxy is permitted to travel the haul road at any one time. Mr Smith explains, and we accept, that the Moxy's maximum load is about 40 t, and it takes about 19 minutes for one Moxy to do a round trip on the haul road. (d) The loading of lime into vehicles for offsite haulage occurs at the stockpile area. A second dedicated FEL is required for this area. The haulage trucks vary from road trains capable of carrying between 45 to 65 t of lime to a prime mover with a single trailer or a rigid truck. However, the majority of vehicles are road trains with triaxle tippers. Once loaded, the laden trucks exit the Subject Land onto Lee Road. (e) The Applicant maintains a booking system is maintained, with vehicles booked to arrive at 30-minute intervals. The scheduling provides sufficient time for a vehicle to enter, arrive at the loading area, to be loaded and then depart. If vehicles arrive early, they are required to remain at the entrance of the Subject Land until they are permitted to drive to the stockpile area. There are three parking bays available and the number of waiting vehicles at any given time varies from none to three. (f) The operation of the quarry is regulated not only by the Development Approval, but also its extractive industry licence and the current DWER licence. (g) The estimated maximum road trains for offsite transport that may be booked and loaded in a weekday is 19 (based on booking time slots of 30 minutes over 9.5 hours) and 17 on a Saturday (based on booking time slot of 30 minutes over 8.5 hours). 444 Under the 2023 Amendments, the Moxy is able to transport lime between the quarry site and the stockpile area from 2 January to 31 August (inclusive) and laden truck movements are limited to a maximum of eighty-four (84) vehicles over a seven (7) day period, with a maximum of twenty (20) vehicles on any one (1) day during the period 2 January to 30 April (inclusive). -- 102 of 122 -- [2026] WASAT 79 Page 103 Impacts of increased truck movements 445 The Proposed Amendments, if approved, would result in: (a) an increase in the haulage of lime onsite between the extraction site to the stockpile area by the Moxy, via the haul road, for an additional three months of the year (September to December inclusive); and (b) up to an additional 28 laden truck movements per week on the haulage route, between January and April to a maximum of 112 laden truck movements per week, between May and December. 446 The haulage route taken by laden trucks from the Subject Land to Lower Denmark Road is via Lee Road, Browns Road and Lake Saide Road to Lower Denmark Road (laden truck route). 447 By conditions 14 and 15 of the Development Approval, GS Lime was required to make substantial upgrades to the laden truck route, namely the Lower Denmark Road/Lake Saide Road intersection, Lake Saide Road, Lake Saide Road/Browns Road intersection, Browns Road, Browns Road/Lee Road intersection, Lee Road, the crossover from Lee Road as well as to seal the internal roads. The Applicant has undertaken these road upgrading works. Traffic safety 448 Mr Laybutt prepared a Transport Impact Assessment to assess any change in the impact of the Proposed Amendments to the conditions on the laden truck route. 449 The undisputed evidence of Mr Laybutt, which we accept, is that 'allowing for year-round operation of the site, the daily traffic volumes on the haulage route are unlikely to exceed 150 vpd'.306 The traffic experts agreed that Proposed Amendments do not require further upgrades to the laden truck route to accommodate the estimated additional truck movements. 306 It was agreed in the joint statement of the traffic experts (Exhibit 1.4) that 'the seal and carriageway widths are suitable for 150-500vpd with RAV Categories 2-4 operating at 60-70km/h, however the available sight distance and horizontal geometry between Lake Saide Road SKL 3.53 and the subject site require a lower operating speed at certain sections of the route. -- 103 of 122 -- [2026] WASAT 79 Page 104 450 Mr Laybutt is of the view that the laden truck route has sufficient capacity to accommodate the modest increase in traffic movements resulting from the Proposed Amendments. 451 Mr Laybutt also explained that the Main Roads WA Crash Database evinces no recorded crashes on the laden truck route since the completion of the upgrades around December 2022, indicating that the existing operations are occurring at an adequate level of road safety. 452 Mr Laybutt acknowledges that there will be an increase in 'exposure' but that the level is low when assessed against the Safe System Assessment Framework (SSAF). He concludes that the proposed increase in laden truck movements is within the capacity of the road system and will have no material impact on traffic or road safety. 453 Mr Laybutt considers, and Mr Millar agrees, that the primary impact of year-round, and increased tonnage, will be an increase in the yearly number of Equivalent Standard Axles that will pass over the road pavement, which, over time, may necessitate some additional maintenance and renewal requirements for the sealed pavement. 454 Mr Laybutt observes that there is no indication that the constructed road is unsuitable to accommodate the existing or proposed truck movements, and notes that condition 19 of the Development Approval requires the Applicant to rectify damage to the road pavement caused by heavy haulage operation from the Subject Land to the satisfaction of the City. He also refers to condition 26 of the Development Approval, which requires GS Lime to pay a contribution to road maintenance calculated in accordance with the Heavy Vehicle Cost Recovery Policy Guideline for Sealed Roads, published by the Western Australian Local Government Association. 455 Consistent with his instructions, Mr Millar's evidence is directed at addressing whether the Proposed Amendments would be 'less detrimental' than the current Approved Development. In his view, operating trucks year-round increases the number of truck movements which, in turn, increases both the likelihood, and exposure to the risk, of a crash. That is so because road users would encounter conflict with trucks more frequently, and the effectiveness of signage and heightened driver alertness would diminish over time. However, even so, Mr Millar accepts that the level of exposure would be low when assessed against the SSAF. -- 104 of 122 -- [2026] WASAT 79 Page 105 456 Mr Millar also refers to the additional risk factors which include operations during wet winter conditions, lower sun angles and changes in daylight hours, which may affect visibility and non-compliance with speed limits. He concludes that the Proposed Amendments would result in approval conditions that will not be less detrimental. 457 Mr Algeri does not consider the increase of vehicle movements anticipated by the Proposed Amendments to be 'modest'. He concludes, based on his experience as a town planner, that notwithstanding the crash history or the improved conditions of the laden haulage route as a result of the road upgrades associated with the Approved Development, increased heavy vehicle traffic arising from the Proposed Amendments will increase the likelihood and exposure to road safety risks for the local community and other road users.307 He also considers the increase in the number of trucks will have a marked change in the character of this particular rural area. 458 The Tribunal accepts, and indeed it is plain, that the Proposed Amendments will not be less detrimental than the current approved non-conforming use. That is because it cannot be said that a marked increase in truck movements, and for additional periods of time, would be less detrimental than the Approved Development. However, as we have already iterated and reiterated, this is not the correct test. 459 For the following three reasons, the Tribunal finds that notwithstanding the operation of restricted access vehicles (RAVs) on the laden truck route year-round will change the operating environment of the road, the additional extraction activities resulting in increased truck movements on the laden truck route will not have an unacceptable traffic safety impact on the amenity of the locality. 460 Firstly, the Tribunal is satisfied that the standard and condition of the roads that comprise the laden truck route are more than capable of accommodating the estimated traffic volumes likely to be generated by the Proposed Amendments. 461 Secondly, the Tribunal accepts the evidence of the traffic experts that the level of exposure arising from the increase in truck movements on the laden truck route would be low as assessed against the SSAF, and that any additional risk factors, such as weather and sun angles, are very minor in nature. 307 Exhibit 4.12, paras 85 - 86; 102.2. -- 105 of 122 -- [2026] WASAT 79 Page 106 462 Thirdly, any increase in damage to road pavement that may arise from the increase in truck movements can be addressed pursuant to condition 19 of the Development Approval. 463 The Tribunal notes the alleged non-compliance with conditions relating to truck movements associated with GS Lime's operations by some local community members. In doing so, we also note Mr Algeri's acknowledgement that these submissions relate to the early operational phase of the Approved Development. Mr Algeri also understands that complaints were also received during the construction phase.308 The Tribunal is satisfied the wording of the conditions the subject of the Proposed Amendments are clear, workable and, if breached, are capable of enforcement by the Respondent. Noise impacts 464 Mr Reynolds was engaged by the Applicant to undertake an environmental acoustic assessment of the noise that would be received at the Nullaki campsite and neighbouring residences, likely to arise from the Proposed Amendments. Mr Reynold's assessment (Herring Storer Acoustics Report (HSA Report))309 was directed to ensuring compliance with the requirements of the Environmental Protection (Noise) Regulations 1997 (WA) (Noise Regs). 465 The City referred the HSA Report to the Environmental Noise Branch of DWER, which undertook a technical review.310 466 In the Review, the noise experts filed witness statements and responsive witness statements, which enabled further acoustic modelling to be undertaken by Mr Reynolds to address the issues raised by Mr Shurlock. The Tribunal's conferral process resulted in the noise experts agreeing the following matters in relation to the noise emissions, and the anticipated impact of GS Lime's operations. Noise impacts at the Nullaki campsite 467 In terms of evaluating the acoustic impacts arising from quarrying activities on the Subject Land, the noise experts agreed that closest noise sensitive premises was the Nullaki campsite. The following assessment criteria was used to determine the noise levels received at the Nullaki campsite: 308 Exhibit 4.13, para 51. 309 Exhibit 1.9. 310 Exhibit 2, pages 600 - 606. -- 106 of 122 -- [2026] WASAT 79 Page 107 (a) the appropriate 'representative assessment period'311 would be four (4) hours; (b) the Nullaki campsite should be considered as a 'camping ground' under the Noise Regs and should be assessed as 'noise sensitive premises: highly noise sensitive'; (c) the noise emissions associated with the road trucks312 should be assessed under the LA 1 criteria313 as the noise associated with the road trucks would be less than 10% of the time. However, it was also agreed that if the total number of road trucks was increased to 22 during the day, then these trucks would be assessed under the LA 10 criteria,314 which could result in an exceedance of the Noise Regs; and (d) an LA 1 and LA 10 criteria assessment should be undertaken for the Moxy trucks, and it was assumed that noise received at the Nullaki campsite from the FEL and Moxy could occur at the same time. 468 The additional modelling undertaken by Mr Reynolds demonstrates that the total combined noise level of the road truck and the FEL measured 39 dB(A) at the Nullaki campsite. Hence, it was agreed the noise received at the Nullaki campsite from the road trucks would comply with the assigned LA1 criteria of 55dB(A). Further, Mr Reynolds did not consider the road truck noise to be tonal, but the assessment indicates that even with the inclusion of the penalty for tonality, the noise received at the Nullaki campsite comfortably complies with the assigned LA 1 noise level. 469 In relation to the overall LA 10 noise level, the additional modelling demonstrates that the total combined noise level of the Moxy and the FEL at the Nullaki campsite was 37 dB(A). Therefore, even with the inclusion of a +5 dB(A) for tonality, the noise received at the Nullaki campsite would comply with the assigned LA 10 criteria of 45 dB(A). 311 Noise Regs, reg (2)(1) being a period of time not less than 15 minutes, and not exceeding 4 hours, having regard to the type and nature of the noise emission. 312 The noise assessment as revised limited the number of trucks to a maximum of 19. 313 The LA 1 is an assigned noise level which is not exceeded for more than 1% of the representative assessment period. 314 The LA 10 is an assigned noise level which is not exceeded for more than 10% of the representative assessment period. -- 107 of 122 -- [2026] WASAT 79 Page 108 470 The LA 1 noise level assessment of the total combined noise level of the Moxy and FEL received at the Nullaki campsite is 38 dB(A), which would comply with the assigned LA 1 criterion of 55 dB(A). 471 Ultimately, both noise experts agreed that noise emissions from GS Lime's operations anticipated by the Proposed Amendments would comply with the requirements of the Noise Regs. Noise impacts on residences 472 The HSA Report notes that the closest residences to the GS Lime quarry are further away from the quarrying operations than the Nullaki campsite. Accordingly, the Nullaki campsite is to be regarded as the worst-case location, in terms of received noise. 473 The HSA Report deduces that given the additional distance, noise received at the closest residences would also be compliant with the Noise Regs. However, the Applicant undertook additional modelling to the closest neighbouring residence (R2), being north-east of the quarry, to confirm this position.315 Noise received at R2 was determined to be 28 dB(A), which complies with the requirements of the Noise Regs. Noise from public roads 474 The noise experts agreed that noise from the propulsion and braking of trucks on a public road is exempt from compliance with the requirements of the Noise Regs. Even so, Mr Shurlock maintains that noise from a trailer coupling and the trailers due to 'bounce' and 'shunt' caused by road imperfections, is not. 475 However, the noise experts agreed that such emissions are significantly influenced by the condition of the road (e.g. potholes, breaks in the bitumen surface, tree root intrusion etc) and as such, the roads comprising the laden truck route need to be maintained to an appropriate standard, which both the Applicant and the Respondent are responsible for in this regard. 476 With respect to passing truck noise received at residences from GS Lime's operations, Mr Reynolds considers the residence located at the corner of Browns Road and Lee Road to be the worst-case location. Based on his understanding that the trucks travelling along the laden truck route are limited to a speed of 40km/hr and using the noise level of 315 Exhibit 1.9 para 14. -- 108 of 122 -- [2026] WASAT 79 Page 109 55 dB(A) as a base level,316 the modelling demonstrates that the noise level from a truck would be above 55 dB(A) for approximately 45 seconds. Mr Reynolds considers these impacts to be acceptable as the number of trucks equates to less than 5% of the time and the operations occur during the day. 477 Mr Algeri accepts that the Applicant's noise assessment demonstrates that the noise emissions from the intensification of GS Lime's operations would comply with the Noise Regs. However, Mr Algeri is nevertheless of the view that such noise can still raise an issue in terms of amenity in the context of LPS 2. 478 Mr Algeri's opinion here reflects the principle established by the Tribunal in decisions such as GMF Contractors Pty Ltd v Shire of Serpentine-Jarrahdale,317 where it was explained that while the noise associated with a development must, in all instances, comply with the Noise Regs, such compliance is not always sufficient 'to ensure that the noise emissions from a proposed development [will] not have an unacceptable acoustic impact on the locality', for the purposes of assessing amenity under a planning scheme. 479 Mr Algeri explains that from an amenity perspective, the impact of noise on dwellings along or abutting the laden truck route is relevant, even if such noise does not breach the Noise Regs. In his view, the Proposed Amendments will result a marked increase in the intensity and frequency of truck movements on the laden truck route, exposing residents to noise and traffic impacts throughout the year. Therefore, the 8-month respite from offsite haulage and quarrying operations that is currently enjoyed by residents, will completely dissolve. 480 Ms Chapman based on her planning assessment of the character of the locality. She observes that the technical reports and expert evidence on noise and traffic adduced for the purpose of the Review, do not indicate that the amenity impacts on the locality arising from the Proposed Amendments would be unacceptable. 481 Ms Chapman is of the view that '[the Proposed Amendments would result in] … a very minor increase in the context of … what has already 316 Under State Planning Policy 5.4 - Road and Rail Noise, the day period noise target is an average of LA eq of 55 dB(A). 317 GMF Contractors Pty Ltd v Shire of Serpentine-Jarrahdale [2006] WASAT 353; (2006) 48 SR (WA) 1; (2006) 151 LGERA 74 [61]; see also Sharon Property Pty Ltd and Presiding Member of the Metro Inner- North Joint Development Assessment Panel [2021] WASAT 63 [93] to [98]; Land Alliance [39]. -- 109 of 122 -- [2026] WASAT 79 Page 110 been approved',318 such that there is no need for any form of respite for surrounding residents along the haulage truck route. Further, these impacts are not at a level that would justify a decision (to continue) to prohibit haulage in the months of May to December. 482 We note that the residents along the laden truck route are situated on land zoned Rural under LPS 2 and, as accepted by Mr Algeri, the intent of the Rural zone is to accommodate both rural pursuits and other activities. For example, as we have explained, in the context of the Bittern it is relevant that within the Rural zone in LPS 2, uses directed to primary production, such as 'rural pursuit'319 and 'agriculture - extensive'320 are permitted 'P' uses that, absent physical works, do not require development approval. An inevitable corollary of undertaking such uses can be, at times, noisome activities that impact the amenity of others. 483 In Robertson,321 the Tribunal's reasons considered the loss of amenity likely to be experienced by surrounding residents by reason of the noise emanating from the Subject Land and haulage vehicles and found as follows: … noise from vehicles on public roads is not subject to the Noise Regs. Furthermore, the public roads comprising the transport route to and from the site are in rural areas. Noise generated by trucks is neither unexpected nor unreasonable in rural areas. 484 The Tribunal is of the view, and we consequently find, that the surrounding residences are sufficiently distant from the quarry operations, the closest being R2,322 that the intensification of the operations on the Subject Land will not, taking account of the zoning of such land in LPS 2, materially alter the amenity of the surrounding locality. 485 Further, the Tribunal accepts that the increase in truck movements and the year-round use of the laden haul route, will impact the character of the existing amenity, as currently no trucks associated with the quarry traverse the road network between May to December. However, given the restrictions to be imposed relating to the number of truck movements, 318 ts 196, 18 March 2026. 319 LPS 2, cl 38 defines 'rural pursuit' to include the 'rearing, stabling or training of animals' and the 'sale of produce grown solely on the premises'. 320 LPS 2, cl 38 defines 'agriculture - extensive' to mean; premises used for the raising of stock or crops including outbuildings and earthworks. 321 Robertson [216]. 322 R2 is approximately 2.1kms from the quarry area (Exhibit 4.16, para 36). -- 110 of 122 -- [2026] WASAT 79 Page 111 and the scheduling regime already in place to avoid clustering of truck movements, the Tribunal is satisfied the degree of impact will not be so unreasonable to warrant refusal of the Proposed Amendments. In so finding, we accept the evidence of Mr Reynolds, Mr Laybutt and Ms Chapman in this regard. It follows that we do not accept the evidence of Mr Algeri with respect to the likely impacts of the Proposed Amendments on the amenity of the locality. Dust and other amenity impacts 486 Mr Ossinger gave evidence about observing dust emanating from the Subject Land from trucks on the laden haul route and explained that, at times, he was able to feel the truck movements through ground vibrations from the Eungedup Wetlands. His evidence related to general observations and mostly to the early operation of the Approved Development. 487 Mr Laybutt does not consider that the increase in laden truck movements will result in dust issues. He observes that the laden truck route is sealed and therefore minimal dust is generated by the movement of vehicles along the road network. Furthermore, covered loads minimise the risk of dust from the material being carted. He also explains that the proposed extended operating period, from May to December, coincides with the period of greater rainfall in the Great Southern Region, which assists in suppressing dust generated by the haulage of extractive material. 488 The traffic experts agreed that there is unlikely to be any significant increase in dust, air pollution, bushfire ignition risk or emergency vehicle response times as a result of the Proposed Amendments, which encompass year-round operations and increases in truck movements. 489 Ms Chapman pointed to the mitigation measures that are already in place as part of the conditions of the Development Approval, which require dust suppression in accordance with dust management guidelines, including a requirement for trucks to cover their loads and auditing as part of an annual compliance report. 490 She considers that provided such mitigation measures are implemented and monitored, there should not be any adverse dust impacts associated with the extension of the period of operations and increase in truck movements. Like Mr Laybutt, she refers to the roads being at a sealed standard and that the proposed additional months for -- 111 of 122 -- [2026] WASAT 79 Page 112 the activities are predominately within the period of the year with the greatest rainfall frequency, which should aid in dust suppression. 491 The Tribunal accepts the Applicant's expert evidence of Mr Laybutt and Ms Chapman, that there are sufficient measures in place to ensure that any dust impacts associated with the intensification of the GS Lime's operations will be adequately ameliorated and therefore, will not have an unacceptable impact on nearby residents. 492 The Respondent did not adduce any expert evidence in support of its contention that the effect of increasing traffic volumes will result in unacceptable increase in vibrations. The Tribunal, therefore, only has before it Mr Ossinger's lay evidence. That evidence, we consider and find, is insufficient to justify a finding that the increase in truck movements arising from the Proposed Amendments will result in an increase in vibration issues, and that the degree of impact is such that it warrants refusal. Issue 5: disposition 493 For the reasons we have explained, having regard to the context of the Subject Land and the relevant locality, in our view, the amenity impacts arising from the Proposed Amendments in terms of noise, traffic, dust and vibration are not unacceptable. Issue 6: the impact of the Proposed Amendments on the users of the Bibbulum Track 494 The Respondent submits that the increased truck movements and year-round quarry operations anticipated by the Proposed Amendments, will have an adverse impact on the recreational amenity of walkers along the Bibbulmun Track, including those staying overnight at the Nullaki campsite. 495 Mr Laybutt notes that interactions between the laden truck route and users of the Bibbulmun Track is limited to a single crossing point on Lee Road, adjacent to the Subject Land. He considers that the modest increase in vehicle movements resulting from the Proposed Amendments is unlikely to have a material impact on the safety of this crossing point, given its location at the point of entry to, or exit from, the Subject Land, where RAV's are travelling at very low speeds. Mr Millar agrees that there will be minimal impact on users of the Bibbulmun Track. 496 As we have set out, the noise experts agree that the noise emissions from GS Lime's operations at the closest highly sensitive area, being -- 112 of 122 -- [2026] WASAT 79 Page 113 the Nullaki campsite, will comply with the requirements of the Noise Regs.323 497 Mr Utber observes that the Bibbulmun Track's peak walking season is spring and summer. Accordingly, the Proposed Amendments will result in track walkers, especially those in the spring, being exposed to potential increases in traffic, and associated noise and/or dust impacts within and outside the quarry area, including along the haul road, which is close to the Bibbulmum Track and Nullaki campsite. He considers that the walk trail, campsite design and shelter sites were chosen to maximise visitor walking experience, offer self-guided, low-impact environmental recreation and to encourage rest and reflection in a remote natural setting.324 498 Mr Utber opines that the current restrictions of the operations allow Bibbulmun Track and Nullaki campsite users to experience the area without offsite truck traffic from May through December, and without potential disturbance from nearby onsite excavation, processing/screening, stockpiling and associated activities from September to December. While he acknowledges that the noise modelling demonstrates that levels are within Noise Regs thresholds, he is nevertheless of the opinion that the Proposed Amendments will likely change the amenity and nature-based experience enjoyed on this section of the Bibbulman Track, including the Nullaki campsite. 499 Mr Utber agrees that users of Nullaki campsite would not be impacted in the evening. However, he points out that there may be users still at the settlement hut at the time that quarry operations commence in the morning, which may adversely affect their experience. 500 The Applicant's environmental experts, Mr Bowman and Ms Price, also proffered opinions on the likely impacts on Bibbulmun Track users. 501 Mr Bowman draws attention to the character of the Bibbulmun Track, which comprises a variety of landscape experiences, ranging from urban townships, rural roads and native landscapes. He considers that it would not be an uncommon event for a Bibbulmun Track walker to encounter a truck on the road at a road crossing as a hiker traverses the track in this area. 323 Refer [466] - [470] above. 324 Exhibit 4.7, pages 122 and 123. -- 113 of 122 -- [2026] WASAT 79 Page 114 502 Ms Price is of the view that the effects of the Proposed Amendments are not likely to significantly impact on the enjoyment of Bibbulmun Track users. She considers that the noise from the trucks would not affect the user experience of the Bibbulmun Track, any more than walking along many of the other adjacent roads. She also notes that truck movements are not, and will not be, continuous but will instead occur in intervals. This will provide a level of attenuation to a user's experience of the Bibbulmun track, as 'there will be quite a gap between each truck moving past'.325 503 Mr Algeri was concerned that the Proposed Amendments will expose walkers, and daytime users of the Nullaki campsite, especially those in the spring, to potential traffic, noise and/or dust impacts due to the operation of machinery, plus other onsite and offsite vehicle movements. Track walkers currently rarely, if ever, encounter these impacts. However, the Proposed Amendments will result in a greater intensity and frequency of quarrying operations, which will likely impact track walkers.326 Mr Algeri does accept, however, that the Proposed Amendments will have little to no impact on users that choose to rest overnight at the Nullaki campsite. 504 The Tribunal accepts the evidence of Mr Utber that the peak walking season of the Bibbulmun Track is September to December, and that the Proposed Amendments may change the experience of users of the track and the Nullaki campsite. Such a conclusion is plain as there are currently no offsite truck movements from May through December, and no onsite excavation, processing/screening, stockpiling and associated activities from September to December. 505 However, in the context of the diverse range of experiences encountered by users of the Bibbulmun Track, the Tribunal is satisfied that the degree of impact from the Proposed Amendments is acceptable, in terms of both track walkers, as well as those who stay overnight at the Nullaki campsite. Our decision 506 For the following four reasons, we are satisfied that the Proposed Amendments warrant approval in the exercise of discretion. 507 First, as we have set out, the Proposed Amendments constitute a continuation of the Approved Development. The applicable statutory 325 ts 115, 17 March 2025. 326 Exhibit 4.14, para 59. -- 114 of 122 -- [2026] WASAT 79 Page 115 framework, namely cl 23(1)(a) of LPS 2, expressly provides that non-conforming uses, such as the Approved Development, may be altered or extended by the grant of a development approval. The Proposed Amendments will not alter the purpose for which the Subject Land is being used, namely 'extractive industry: lime'. 508 Second, we find that the Proposed Amendments warrant approval having regard to the impacts on local amenity, including users of the Bibbulmun Track. 509 As the Tribunal in Roberston recognised, and as was explained by Ms Chapman, the Subject Land was, and much of the surrounding locality remains, zoned for rural purposes. An objective of SPP 2.5 includes the need, in regional areas, to 'secure significant basic raw material resources and provide for their extraction'. SPP 2.5 also emphasises the economic importance of basic raw material extraction in construction, urban development and agricultural production contexts. Furthermore, SPP 2.5 seeks to protect rural land uses by regarding as acceptable the impacts of well-managed commercial operations directed to primary production, including extractive industries, on the amenity of rural areas. 510 While we accept that there will be impacts arising from the increased use of the laden truck route by RAVs, we do not regard these impacts as unreasonable, even taking account of the concerns expressed by some local residents. 511 In terms of the surrounding locality, the Proposed Amendments will result in greater use of the local roads by haulage trucks in accessing, and then egressing, the Subject Land via the laden truck route. We acknowledge that the increase in traffic will generate noise, and, at times, there may be some dust. However, we find that these impacts are not unreasonable in this rural context. 512 As is evident in SPP 2.5, the reasonable amenity expectations of those who live in regional and rural locations includes the impacts that may arise from primary production. Furthermore, the expert evidence is that the Proposed Amendments will not result in an unsafe level of traffic movements in this locality. 513 In terms of the impacts on users of the Bibbulmun Track, we do not find these impacts to be significant, nor unreasonable. The Bibblumun Track stretches for more than 1,000 kms. We agree with Mr Bowman and Ms Price that across its length, walkers encounter many rural and -- 115 of 122 -- [2026] WASAT 79 Page 116 urban contexts and associated land uses. Having to walk in proximity, for a relatively short distance, to an extractive industry, falls comfortably within what might reasonably be expected on such a rustic walk. In terms of campers at the Nullaki campsite, the hours of operation for the quarry are such that there will be no noise or associated impacts between sunset and sunrise. 514 Furthermore, consistent with the evidence of Mr Utber, the peak period for Bibbulmun Track walkers is spring. The conditions that we have imposed on the Proposed Amendments, that we regard as necessary to address the (noise) threat posed by haulage trucks on the Bitterns, which we will address shortly, will, as a corollary, serve to further preserve the amenity of campers at the Nullaki campsite through the spring months. 515 In terms of the movement of trucks within the Subject Land, most notably the movement of the Moxy trucks on the haul road, between the lime stockpile area and the quarry face, we do not regard these impacts, in terms of noise, visual amenity and dust, as unreasonable. While the appearance of the Moxy trucks slowly traversing up and down the incline, does appear as incongruent in the context of what is an outstanding area of landscape significance, these impacts are not such to warrant refusal of the Proposed Amendments. For completeness, nor do we consider the operation of FELs within the Subject Land will generate any significant off-site impacts. 516 In our view, leaving to one side the Bitterns, which we will address below, there is no reason, by reference to the range of factors identified in cl 67(2) of the deemed provisions nor are there any other relevant planning considerations, for the purposes of s 241(1) of the PD Act, that would justify refusal of the Proposed Amendments. 517 Third, it is also relevant that basic raw material extraction is a sequential, and not a permanent, land use. By that we mean that once the relevant resource, in this case lime, is exhausted, the quarrying activities on the Subject Land will cease. That is not without significance. 518 The Approved Development was for the extraction of what was estimated to be 1,000,000 t of available lime on an 8 ha limestone pit on the Subject Land.327 There was no evidence in the context of the Review 327 Robertson [10]. -- 116 of 122 -- [2026] WASAT 79 Page 117 that the estimate of lime available in the limestone pit area has increased or otherwise. 519 As was explained by Ms Chapman in the context of evidence directed to the question of sustainability,328 the proposal to amend some of the restrictions which apply to the extraction of the lime from the Subject Land, will result in the lime resource being exhausted far sooner than was originally planned, namely around 2037. 520 That, in turn, will have the consequence that the Proposed Amendments will reduce the duration of the operation of the Subject Land for what is a non-conforming use. Upon the cessation of quarrying, the use of the Subject Land will then be required to comply with the requirements of the then applicable planning framework. We are also mindful that the Development Approval includes conditions (conditions 1, 6 and 7) which, together, provide for the Subject Land to be suitably rehabilitated. 521 In terms of compatibility with the desired future character and with surrounding land uses, pursuant to cl 67(2)(m)(i) of the deemed provisions, the Proposed Amendments, on the evidence before the Tribunal, will bring the use of the Subject Land into conformity with the planning framework, far sooner than would otherwise be the case. 522 Fourth, as we have explained, we agree and find that the precautionary principle arises for consideration in the evaluation of the Proposed Amendments. The noise arising from the haulage trucks through the spring months poses a threat to the breeding ecology of the Bitterns, and there is scientific uncertainty as to that threat. 523 While the precautionary principle remains a discretionary consideration, we are mindful that risks to the Bitterns' breeding ecology from road noise has, to date, been avoided by the conditions on the Development Approval the subject of the Review. Those conditions (4 and 17) together, limit when the proposed use may be carried out, and the limits of the volume of lime that may be extracted annually. 524 The effect of the Proposed Amendments will result in the quarry operating year-round, and subject only to a limit of 112 laden truck movements in a seven-day period, with a maximum of 20 such truck movements on any given day. That is, quarrying and associated truck movements will become perennial, and thus overlap with the 328 ts 205, 18 March 2026. -- 117 of 122 -- [2026] WASAT 79 Page 118 Bitterns' breeding season, including the key period between September and December. 525 The purpose of the PD Act is to inter alia promote decision-making premised on the principles of sustainable development. In circumstances where the Bittern, an endangered endemic species that has suffered population decline for decades, is known to be present in the nearby Eungedup Wetlands, from where the distinctive male booming call has been recorded consistently over recent breeding seasons, we are satisfied, and we find, that it is appropriate to apply the precautionary principle to manage the threat that will arise from the Proposed Amendments, namely increased road noise throughout the year. 526 Furthermore, as the Tribunal explained in Hutchings, land use planning decisions that leave open the possibility that there may be serious environmental consequences arising from their implementation, are simply not consistent with the principles of orderly and proper planning, for the purposes of cl 67(2)(b) of the deemed provisions. 527 In terms of an appropriate response to the threat posed by road noise likely to arise from the Proposed Amendments, in our view, if the quarrying activities are to occur through the Bitterns' peak breeding season, a proportionate response would be to ensure that the quarry (including associated truck movements) is not operating at the peak calling times for booming males throughout the breeding season from September to December, being the evening period including immediately before and after sunset and sunrise. 528 In our view, a proportionate response does not extend to prohibiting the operation of the quarry from September through to February, on the basis that there may be the 'odd' mating call from a Bittern during daylight hours. The critical period for the breeding ecology of the Bittern, which we do consider, and find, needs to be protected from quarrying activities, are daybreak and dusk. 529 So long as quarrying activities, and associated road noise, is not occurring during these periods, then, taking a precautionary approach to the threat posed, we are satisfied, based on the totality of the evidence before us, that the threat to the Bittern is appropriately managed. For this reason, from September to December, the quarry will not be permitted to commence operations until 8.00 am. 530 While we accept the breeding season may extend into January and February, during these warmer summer months, the extent of daylight -- 118 of 122 -- [2026] WASAT 79 Page 119 increases considerably. We are therefore satisfied that during January and February, sunrise and sunset will be well outside the Bitterns' critical dawn and dusk breeding periods. Therefore, we are of the view that the Applicant should be permitted to commence operations from 7.00 am in January and February. 531 For these reasons, we are satisfied, and we find, that the correct and preferable decision is to set aside the decision on the Review and to grant approval to the Proposed Amendments by replacing conditions 4 and 17 of the Development Approval as follows: Condition 4 Except as otherwise approved by the City of Albany, the hours of operation of the extractive industry shall be permitted throughout the year only as follows: (a) 7.00 am - 5.00 pm Monday to Friday, from 1 January to 31 August (excluding Sundays and Public Holidays); (b) 8.00 am - 5.00 pm Monday to Friday, from 1 September to 31 December (excluding Sundays and Public Holidays); and (c) 8.00 am - 5.00 pm Saturdays. Condition 17: Laden vehicle movements removing lime from the Lot shall not exceed one hundred and twelve (112) vehicles over a seven-day period, with a maximum of twenty (20) vehicles on any one (1) day. Orders The Tribunal orders: 1. The application for review is allowed. 2. The decision of the Respondent is set aside and conditions 4 and 17 of the Development Approval are amended as follows: Condition 4 Except as otherwise approved by the City of Albany, the hours of operation of the extractive industry shall be permitted throughout the year only as follows: -- 119 of 122 -- [2026] WASAT 79 Page 120 (a) 7.00 am - 5.00 pm Monday to Friday, from 1 January to 31 August (excluding Sundays and Public Holidays); (b) 8.00 am - 5.00 pm Monday to Friday, from 1 September to 31 December (excluding Sundays and Public Holidays); and (c) 8.00 am - 5.00 pm Saturdays. Condition 17 Laden vehicle movements removing lime from the Lot shall not exceed one hundred and twelve (112) vehicles over a seven-day period, with a maximum of twenty (20) vehicles on any one (1) day. 3. The Respondent shall, within 7 days of the date of these orders, prepare and file a consolidated list of conditions, that reflects these reasons, that apply to the extractive industry being undertaken on Lot 9005 Rock Cliff Circle, Eden Road, Nullaki. -- 120 of 122 -- [2026] WASAT 79 Page 121 Appendix A -- 121 of 122 -- [2026] WASAT 79 Page 122 I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal. DR S WILLEY, SENIOR MEMBER 8 JULY 2026 -- 122 of 122 --