Government of Western Australia
Department for Planning and Infrastructure
Basic Raw
Materials Prepared by the
Western Australian Planning Commission
Albert Facey House
469 Wellington Street
Perth, Western Australia 6000
Disclaimer
This document has been published by the Western Australian Planning
Commission. Any representation, statement, opinion or advice expressed
or implied in this publication is made in good faith and on the basis that the
government, its employees and agents are not liable for any damage or
loss whatsoever which may occur as a result of action taken or not taken,
as the case may be, in respect of any representation, statement, opinion
or advice referred to herein. Professional advice should be obtained
before applying the information contained in this document to particular
circumstances.
© State of Western Australia
Published by the
Western Australian Planning Commission
Albert Facey House
469 Wellington Street
Perth WA 6000
Published February 2009
ISBN 0 7309 9886 X
website:www.wapc.wa.gov.au
www.dpi.wa.gov.au
email: corporate@wapc.wa.gov.au
tel: 08 9264 7777
fax: 08 9264 7566
TTY: 08 9264 7535
infoline: 1800 626 477
Western Australian Planning Commission owns all photography in
this document unless otherwise stated. This document is available in
alternative formats on application to WAPC Communication Services.
Applicants’ Manual
A step-by-step guide for establishing extractive industries in Western Australia
Basic Raw Materials
Applicants’ Manual
Table of Contents
1. Introduction
1
4. Department of Mines and Petroleum
13
1.1 Purpose of manual
1
4.1 About DMP
13
1.2 Objectives of manual
1
4.2 Relationship between DMP and local government
13
1.3 Disclaimer
1
4.3 DMP mining tenements
14
4.4 Mining on reserved land
14
4.5 DMP mining lease approval process summary
15
4.6 Clearing applications administered by DMP
15
4.7 DMP Environmental Division
15
4.8 Objections by third parties
15
2. Overview of current approvals process
2
2.1 Defining basic raw materials and extraction
2
2.2 Land holdings and approvals processes
3
2.3 Summary of Applicants’ responsibilities
3
3. Local government approval
6
3.1 Preliminary consultation with local government
6
5. Department of Environment and Conservation approval
16
3.2 Local government land use planning approval
6
5.1 About the EPA
16
3.3 Exceptions to local government approval
8
5.2 DEC clearing permit applications
17
3.4 Local government checklists
9
5.3 Clearing permit application process
18
3.5 Local government extractive industry licence
11
5.4 DEC industry licences
20
3.6 Local government appeals
12
5.5 DEC appeals
20
6. Appeals
21
6.1 State Administrative Tribunal
21
6.2 Warden’s Court
22
6.3 Office of the Appeals Convenor
22
7. Useful contacts
24
References and further reading
25
ii
1
Basic Raw Materials
Applicants’ Manual
Introduction
This applicants’ manual has been prepared to guide and inform industry and government in the planning process for the extraction of basic raw materials.
1.1 Purpose of manual
The current planning system for extractive industries is complex, with approvals required
from numerous organisations working under different legislation. As a result, it is difficult
for proponents to gain a full understanding of the process and what is required for each
application.
This manual endeavours to provide a succinct document that integrates the various
requirements and processes of relevant agencies, with step-by-step guidance through
each of the approval processes. It is expected that the manual will reduce delays in
the processing of applications by informing applicants of the required documentation
to accompany an application, including the range of approvals needed under different
legislation. This manual will also assist related agencies to see how they fit within the
current process.
1.2 Objectives of manual
• To provide an overview of the current planning approvals, extractive industry
licences and clearing applications required in establishing an extractive industry in
Western Australia.
• To raise applicant awareness of the current approvals, clearing and licensing
processes, and provide information on completing applications and define
applicant responsibilities.
• To demonstrate the relationships between local government, the Department for
Planning and Infrastructure (DPI), the Department of Mines and Petroleum (DMP
- formerly Department of Industry and Resources, DoIR), and the Department of
Environment and Conservation (DEC) in the current approvals processes.
1.3 Disclaimer
Please note, this manual is intended for guidance and general information only, and does
not constitute legal advice. No warranty is given in relation to the accuracy, currency or
completeness of this manual. If you have any concerns about any of the matters set out
in this manual, you should seek independent professional advice.
Contents
1
2
Basic Raw Materials
Applicants’ Manual
Overview of current approvals process
This overview outlines commonly used definitions, types of land holdings and
approvals required with respect to basic raw materials, and will direct which
section of the manual will be relevant in each case.
2.1 Defining basic raw materials and extraction
Extractive industry relates specifically to the removal of basic raw materials. Where the
following occur on Crown land, including reserves and pastoral leases, they are covered
by the Mining Act 1978 (Mining Act):
• limestone; • gravel;
• sand;
• shale; and
• rock;
• clay.
However, where these materials1 occur on private (freehold) land they are not covered
by the Mining Act, and hence extraction requires approval under the Planning and
Development Act 2005 (P & D Act).
The P & D Act requires approval from the Western Australian Planning Commission
(WAPC) for development in section 162. The P & D Act defines development as:
“Development means the development or use of any land, including:
(a) any demolition, erection, construction, alteration of or addition to any building or
structure on the land;
(b) the carrying out on the land of any excavation or other works; (…)”
Often, the establishment of extractive industry operations requires development incidental
to the extraction of basic raw materials, such as offices, hardstand areas and ablution
facilities. From the above definition, both the extraction and building components of an
extractive industry application are subject to planning approval.
1
Except for: oil shale, mineral sand, silica sand, garnet sand, kaolin, bentonite, attapulgite or montmorillonite,
which are covered by the Mining Act 1978 on all land holdings.
Contents
The P & D Act also gives the WAPC the ability to delegate its powers to local
governments under a notice of delegation. This notice effectively gives local governments
the power to determine planning applications.
Planning approvals require a more specific means to differentiate between mining
operations. The Model Scheme Text (MST), which acts to standardise all local
government schemes, includes a definition of ‘industry – extractive’ which states:
“Industry – Extractive: means an industry which involves the extraction, quarrying
or removal of sand, gravel, clay, hard rock, stone or similar material from the land
and includes the treatment and storage of those materials, or the manufacture
of products from those materials on, or adjacent to, the land from which the
materials are extracted, but does not include industry – mining.”
This definition clarifies what is considered as basic raw materials, forming the basis for
the widely-used definition in the WAPC’s State Planning Policy 2.4 Basic Raw Materials.
The following are considered basic raw materials:
• sand (including silica sand2);
• clay3;
• hard rock;
• limestone (including metallurgical limestone);
• gravel; and
• other construction and road building materials.
2
Note: the Mining Act 1978 covers silica, mineral and garnet sands on all land holdings.
3
Note: the Mining Act 1978 covers kaolin, bentonite, attapulgite and montmorillonite clays on all land holdings.
2
Basic Raw Materials
Applicants’ Manual
2.2 Land holdings and approvals processes
2.3
Summary of applicants’ responsibilities
The current legislative arrangement has differing requirements for different types of land
holdings in respect to extractive industry operations. The three most common types of
land holdings have different approval processes, summarised in the table below:
Below is a list of seven key responsibilities for applicants proposing an extractive industry
on either freehold or Crown land.
• Be familiar with relevant legislation and guidelines
Type
Definition
Approval authority
Freehold land
Privately owned land.
Local government and/
or WAPC - see part 3;
DEC - see part 5.
Crown land
Vacant (unallocated) Crown-owned
land; reserves for public utilities; timber,
pastoral and grazing leases; leases for
Aboriginal communities.
DMP - see part 4.
National parks; water and nature
reserves; conservation parks; state
forests; commons, utility etc.
DMP - see part 4.4.
Reserved land
• Ensure site selection considers planning and environmental issues
Regardless of the type of land holding, all extractive industry proposals are subject to the
provisions of the Environmental Protection Act 1986 (EP Act) for clearing applications
(see part 5). DMP applications are subject to the Aboriginal Heritage Act 1972. Local
government applications are subject to local laws and the WAPC’s state planning
policies. A general overview of the WA Planning system can be found in the WAPC
document ‘An Introduction to the WA Planning System’ (2007).
In addition, if the basic raw materials are required for road building then Main Roads
WA and/or a local government have special provisions for access. The manual does not
cover this aspect and MRWA should be contacted directly for further information.
One of the most important components of establishing extractive industries is
the selection of a suitable site. It is vital to consider the environmental merits
of a site as part of the selection process to greatly reduce the chance of later
conflicts, which could lead to delays or refusal. DEC has ten principles which are
used in considering clearing permit applications. The principles are listed in part
5 and should be considered during the initial site selection stage of a project.
Additionally, a list of potential conditions for use on a clearing permit can be found
in section 51I of the EP Act; however, this should not be considered an exhaustive
list. To be aware of the issues that DEC considers and regulates in granting
permits, proponents should consider these potential conditions when drafting their
application. A list of site selection considerations for planning issues is provided in
part 3. These include the impact of the proposal on adjacent landowners and its
compatibility with surrounding land uses.
• Consult with local government or DMP beforehand
Contents
The first step when considering an extractive industry application is to obtain
copies of the relevant legislation and guidelines. These documents will detail
application requirements and issues to be addressed that applicants may not have
considered. Ensure that your submission conforms to the requirements to avoid
delays.
Try to schedule time to meet with a local government planner or DMP officer
before submitting an application. This meeting will clarify the application, what
approvals you may need, what other agencies should be consulted, what is
required in the application, and what the approvals process entails. It is useful
if you have developed a draft submission first, so that the relevant officer can
3
Basic Raw Materials
Applicants’ Manual
provide specific feedback and refer to relevant guidelines. Be aware that there
may be additional costs associated with meeting local government officers without
first submitting an application.
• Allocate plenty of time for approvals
• Consider a pre-application from DEC
Proponents should consider approaching DEC for a pre-application before any
business commitments are entered into. A pre-application discussion with a DEC
Native Vegetation Officer will help clarify whether a clearing permit is required,
how complex the application is and how this will impact on assessment time,
what sustainable land management and environmental considerations should be
considered in the submission, and it may help to identify which areas are best left
uncleared. Applicants are also advised to discuss whether an industry licence or
works approval is required, depending on whether the operation is on prescribed
premises under the Environmental Protection Regulations 1987.
• Consider submitting applications simultaneously
In most instances, establishing an extractive industry will require a number of
different approvals. For example, a standard extractive industry on freehold land
will require a local government land use planning approval and extractive industry
licence, and a DEC clearing permit. To save time, and assist the relevant agencies
assessing your proposal, consider submitting these applications simultaneously.
Make reference to other approvals you are seeking from different agencies in a
cover letter attached to your submission. This will avoid communication overlap or
misunderstanding among different agencies.
Contents
It is better to over-allocate timeframes for obtaining approvals rather than
underestimating timeframes. While preliminary discussions with government
officers may flag important issues early, more thorough assessments may
be required in particular instances which can delay the assessment process.
For example, if your clearing permit requires a secondary assessment, a flora
survey by a qualified botanist at the appropriate time may be required. This may
delay application processing as the assessment is subject to the availability of
appropriately qualified botanists during a particular season. Also keep in mind
the significant workload of government staff, and the magnitude of an extractive
industry proposal within a planning context.
• Be aware of your appeal rights and those of third parties
It is important for proponents to know whether there is a right of appeal during, or
after, a determination on an application is made. For local and state government
planning approvals, and DEC clearing permits, appeals are heard after an
application is determined. In the case of applications for mining tenements at
DMP, third parties are able to lodge an objection to the grant of the application.
In summary DEC and DMP allow third-party appeals, whereas planning appeals
do not. Awareness of appeal rights may impact on how you develop and present
your proposal.
4
Basic Raw Materials
Applicants’ Manual
PROPOSAL FOR AN EXTRACTIVE INDUSTRY
Freehold Land
Western Australian Planning
Commission (WAPC) approval
Part 3
Local government
Part 3
Preliminary consultation (part
3.1)
• local government
checklists (part 3.4)
Submit application for:
• planning approval (part
3.2)
extractive industry licence
•
(part 3.5)
Local government approval
exceptions (part 3.3)
• referral to WAPC advising of
application
WAPC assesses proposal
Forward council's
recommendations to WAPC for
consideration
WAPC considers local
government submission
Assessment
• do exemptions or region
scheme approval apply
(part 3.3)?
• advertising (part 3.2)
• referral to other
government agencies for
comment (part 3.2)
• referral to DEC under EP
Act required? (part 5.1)
Crown land
Department of Environment
and Conservation (DEC)
Part 5
Department of Mines and
Petroleum (DMP)
Part 4
Applicant proposes to clear
land
Mark out the ground for a
mining lease
Clearing preliminary
consultation (part 5)
• exemptions (s 5.3)
• industry licence (s 5.4)
Application for mining
tenement (part 4.4)
• prospecting licence
• exploration licence
• mining lease
Clearing permit required;
exemption applicable?
Advertising and assessment
(part 4.6)
• Mining Act 1978
Clearing permit
• area permit (s 5.2)
• purpose permit (s 5.2)
• DEC clearing permit
checklist
Objections received?
• Warden's Court (part 6.2)
For reserved land, refer to
Minister for the Environment
(part 4.4)
Primary assessment (s 5.3)
Approval
Determination by council
Refusal
More information
required
Application recommended
• Commonwealth Native
Title Act 1993
•
Secondary assessment (s 5.3)
Approval by DoIR
WAPC determines application
Application approved
by WAPC
Application refused
by WAPC
Appeal conditions or refusal
• State Administrative Tribunal
(part 6.1)
Appeal upheld
Appeal dismissed
Commence extractive industry
operation subject to WAPC
approval conditions.
Contents
Application approved
by local government
Application refused
by local government
Appeal conditions or refusal
• State Administrative
Tribunal (part 6.1)
Commence extractive industry
operation subject to local
government planning approval
conditions and extractive
industry licence
Approval by DEC
Refusal by DEC
Possible appeal by third party
or appeal conditions or refusal
• Office of the Appeals
Convenor (part 6.3)
Appeal upheld
Appeal dismissed
Commence clearing subject to
clearing permit conditions.
Mining
lease
Refusal by DMP
Exploration and prospecting licences
•
•
•
Technical report
Program of works
Mining proposal
DMP environmental division
assessment (part 4.8)
• environmental approval
obtained
Commence extractive industry
operation subject to DMP
approval conditions.
5
3
Basic Raw Materials
Applicants’ Manual
Local government approval
Western Australian Planning
Commission (WAPC) approval
Part 3
Local government
Part 3
Preliminary consultation (part
3.1)
• local government
checklists (part 3.4)
Submit application for:
• planning approval (part
3.2)
extractive industry licence
•
(part 3.5)
Local government approval
exceptions (part 3.3)
• referral to WAPC advising of
application
WAPC assesses proposal
Forward council's
recommendations to WAPC for
consideration
WAPC considers local
government submission
Assessment
• do exemptions or region
scheme approval apply
(part 3.3)?
• advertising (part 3.2)
• referral to other
government agencies for
comment (part 3.2)
• referral to DEC under EP
Act required? (part 5.1)
Determination by council
WAPC determines application
Application approved
by WAPC
Application refused
by WAPC
Appeal conditions or refusal
• State Administrative Tribunal
(part 6.1)
Appeal upheld
Appeal dismissed
Commence extractive industry
operation subject to WAPC
approval conditions.
Contents
Application approved
by local government
Application refused
by local government
Appeal conditions or refusal
• State Administrative
Tribunal (part 6.1)
Commence extractive industry
operation subject to local
government planning approval
conditions and extractive
industry licence
This section provides information on the local government land use planning
approvals process, region scheme requirements, and extractive industry
licence requirements for proposed extractive industries on freehold land. It
also includes information on WAPC policies and Bush Forever requirements.
3.1
Preliminary consultation with local government
Each local government has different requirements for establishing an extractive industry.
Some local governments require an extractive industry licence only, some require both
a development application and extractive industry licence, and others do not determine
extractive industry applications but instead refer them to the WAPC for determination
(refer to part 3.3 ‘Exemptions to local government approval’).
The reasons why inconsistencies between local governments occur include variations
in each local government’s basic raw materials local law and local planning scheme
requirements; different requirements for freehold, reserve and Crown land; and the
ability for the WAPC to require a local government to forward applications for extractive
industries, such as in the case of a clause 32 resolution of the Metropolitan Region
Scheme or a clause 27 resolution of the Greater Bunbury Region Scheme.
While it is not mandatory, it is valuable to meet with the relevant local government
planner, explain your intentions and ask for information on the relevant guidelines
applicable to the municipality before submitting an application. The checklist titled ‘Site
selection considerations’, at the end of part 3.4, lists a number of local government
planning issues that are considered during assessment.
3.2
Local government land use planning approval
• Local planning schemes
A local planning scheme is the primary statutory tool for land use and
development control at the local government level. Each local government local
planning scheme is given statutory effect in part 5 of the P & D Act, and the
schemes are based on the MST included in the Town Planning Regulations 1967.
6
Basic Raw Materials
Applicants’ Manual
The P & D Act requires local governments to have due regard to state planning
policies developed by the WAPC when preparing and administering their local
planning schemes. State planning policies may include example provisions
recommending adoption into a local planning scheme to ensure they are legally
enforceable. The state planning policies directly relevant to extractive industries
are:
• Local government approvals process
After selection of a potential site for extractive industry, it is necessary to check the
zoning of the site in the local government scheme, and a region scheme, if there is
one, to ensure that the use can be considered. This information can be obtained
from the scheme zoning table. For example, once you have established the zoning
of the property, such as the rural zone, on the scheme maps, you need to find the
land use, ‘extractive industry’, on the scheme’s zoning table.
As per the definitions provided in the MST, the symbols used in a local planning
scheme zoning table have the following meanings for all local governments:
• State Planning Policy 2.4 Basic Raw Materials (WAPC 2000b); and
• State Planning Policy 4.1 draft State Industrial Buffer Policy (WAPC 2004a).
These state planning policies have been developed to help protect basic raw
material resources, and to minimise conflict between extractive industries and
surrounding land uses. Copies can be obtained from the WAPC website.
Symbol
Meaning
P
Means that the use is permitted in the scheme providing the
use complies with the relevant development standards and the
requirements of the scheme.
D
Means that the use is not permitted unless the local government has
exercised its discretion by granting planning approval.
A
Means that the use is not permitted unless the local government has
exercised its discretion by granting planning approval after giving notice
in accordance with ‘advertising of applications’ requirements of the
scheme.
X
Means a use that is not permitted by the scheme.
• Bush Forever
State Planning Policy 2.8 draft Bushland Policy for the Perth Metropolitan Region
(WAPC 2004b) has been established to implement Bush Forever (WAPC 2000a)
which aims to protect regionally significant bushland and associated ecosystems
on the Swan Coastal Plain of the Perth metropolitan region. This policy may affect
the use of land for extractive industry if the land has been identified as a Bush
Forever area.
The principles of Bush Forever and State Planning Policy 2.8 are given due
regard if a direct or indirect action could affect the environmental values of a
Bush Forever area. The DPI implements Bush Forever, in consultation with other
government departments and local governments. State Planning Policy 2.8 allows
for negotiations between DPI and the proponent (if the implementation category
allows) to determine the Bush Forever boundary. It is important to note that sites
cannot be re-negotiated once a negotiated planning solution has been approved.
Clearing issues are dealt with by DEC, who may refer to DPI for comment.
It is advised that proponents check whether their proposed site is listed in Bush
Forever, and contact DPI to find out if the site can, or has been, negotiated. It
is important to note that DEC considers Bush Forever when assessing clearing
permit applications. If a site is listed as Bush Forever, State Planning Policy 2.8
gives weight to the argument of vegetation retention.
Contents
If the existing zone does not allow for extractive industries to be considered, it may
be worthwhile to apply for the rezoning of the land. It is best to consult with local
government planning officers directly to determine what zone would be suitable,
and to gauge whether a rezoning would be considered favourably as this may
take some time and requires additional fees.
Once it has been established that an extractive industry is permitted or could be
considered on the subject site, proponents should prepare their application in
accordance with the requirements of State Planning Policy 2.4 and State Planning
Policy 4.1. Applicants should also familiarise themselves with the information
contained in the relevant extractive industries local law or local planning policy,
if applicable, to ensure that all necessary information is submitted with the
application.
7
Basic Raw Materials
Applicants’ Manual
The checklists provided at the end of part 3.4 cover the information that is
routinely required. A complete application that addresses all relevant aspects will
assist local government to process the application efficiently.
Once an application has been submitted,
planners undertake a preliminary assessment,
including referrals to other agencies such as
DMP, DEC and Department of Water (DoW),
if it has not already been referred by the
applicant. Time can be saved if the applicant
obtains written advice from these agencies
prior to lodging the application. If the application is considered complete, the
proposal is usually advertised for public comment.
A complete application that
addresses all relevant aspects
will assist local government
to process the application
efficiently
There may be two advertising periods; one for the development application and
one for the extractive industry licence. This highlights the need to submit the
licence and development applications at the same time so that advertising and
assessment can be coordinated. Some local governments require the applicant
to undertake advertising due in part to a lack of staff resources, or due to the
greater funding capacity of the applicant. This should be discussed with the local
government to ascertain advertising requirements. Individual advertising of the
proposal can provide a means to better explain and justify a submission.
If the local zoning table lists extractive industries as a P or D use, generally
applications can be determined under delegated authority by local planners;
however, local planners must report to council if any objections are received. If
the local zoning table lists extractive industries as an A use, a report to council is
usually required - particularly if objections are received.
If the local government grants an approval, there will be a number of conditions
that dictate how the land use must be established, operated and maintained.
There are significant fines for breach of compliance with conditions of planning
approval. Conditions may require liaison with other government agencies, such as
DEC for clearing permits (part 5.4), or the Environmental Protection Authority (EPA)
regarding noise and dust (part 5.1).
If a refusal results, the applicant has the right to appeal the local government’s
decision in accordance with part 14 of the P & D Act (parts 3.6 and 6.1).
Contents
3.3 Exceptions to local government approval
In some instances, the local government is not the determining authority for extractive
industry applications. “Call-in” powers are provided in the three region schemes, which
gives the WAPC the power to revoke delegation of authority from local government, with
the WAPC reinstating its authority to determine applications (refer to the summary table
below).
Revocation of these powers can occur when the proposal lies in part, or entirely within,
reserved land, but can also occur for specific land uses or areas as the WAPC sees fit.
Revocations are published in the Government Gazette from time to time.
Where delegated authority to the local government has been revoked under the MRS
and PRS, extractive industry applications are submitted to the local government, but
require referral to the WAPC for determination. For the GBRS, development applications
that would be incompatible with basic raw materials extraction are assessed by the
WAPC. The WAPC does not assess extractive industry applications in the GBRS area.
For all WAPC call-ins, local government can provide recommendations for the WAPC
to consider, however ultimately it does not decide the planning outcome. The DPI is the
administrative authority for the WAPC in such instances.
Region scheme
Revocation clause
Determining authority
Metropolitan
(MRS)
Clause 32
The WAPC is responsible for determining
applications for extractive industries in the
rural zone or reserved land.
Peel
(PRS)
Clause 21
The WAPC determines applications
for potentially incompatible or sensitive
developments within the basic raw materials
policy area and a 500 metre buffer, except
for extractive industry applications.
Greater Bunbury
(GBRS)
Clause 27
The WAPC is not responsible for
determining extractive industry development
applications. However, the WAPC is
responsible for determining applications
for development adjacent to or in close
proximity to the strategic minerals and basic
raw materials resource policy area.
8
Basic Raw Materials
Applicants’ Manual
3.4
Local government checklists
Two checklists have been developed for applicants to consider when preparing an
extractive industry proposal4. The checklists are intended to ensure applicants are
aware of the issues local governments consider when assessing proposals for extractive
industries, and will help to ensure submissions are complete.
Please note that these checklists provide advice only and that each local government
may have specific requirements. You should discuss your proposal with the relevant local
government as early as possible to identify if there are any additional requirements.
The first checklist, ‘Site selection considerations’ includes issues that should be
considered when selecting a site for extractive industries. In addition, applicants should
refer to DEC’s ten principles for consideration in the assessment of clearing permit
applications (part 5), if applicable.
You should discuss your
proposal with the relevant local
government as early as possible
to identify if there are any
additional requirements
The second checklist ‘Application submission
checklist - local government’ includes
standard requirements for local government
development applications, which would also
apply to applications referred to the WAPC for
determination.
The checklists cover issues which most local governments are concerned with. An
application will generally need to address these concerns. If you cannot meet all of these
considerations, management measures should be included in your submission that
adequately address these issues.
For example, due to the possible impact of an extractive industry on the local road
network, the local government may, depending on the scale of the extractive industry,
apply a condition at the time of approval requiring road maintenance or upgrading
contributions. This can be in the form of a cash contribution paid to the local government
based on volume of material and/or vehicle movements, or through a formal agreement
4
Both checklists adapted from the Shire of Capel’s ‘Guidelines for extractive industries’, the Shire of Chittering’s Local Planning Policy No. 10 – Basic Raw Materials and Extractive Industries, and the City of Albany’s Council
Policy ‘Applying for an Extractive Industry: A Guideline for Developers’.
Contents
for re-instatement of works with a possible bond being applied. Enquiries in relation
to possible road contributions should be made with the local government prior to the
lodgement of a formal application.
Subject to individual local government requirements, and individual cases, additional
information may include a traffic impact statement, independent engineering advice,
proposed end use and rehabilitation plans, a drainage/groundwater management plan,
dust or noise impact reports or a visual landscape assessment.
Site selection considerations
Site location considerations
Tick
• The site has safe access to major roads, and existing roads are in good
condition. The access roads proposed are suitable for the volume of traffic
and type of heavy vehicles.
• The site is not in a visually significant location, such as on a ridge, or visible
from major roads.
• The site is not situated within 500 metres to 1000 metres of any sensitive
land uses, such as residential development, schools, and hospitals.
Environmental attributes
• The site is not considered priority agricultural land.
• The proposal will not involve major disturbance of acid sulphate soils.
• The proposal will not involve significant clearing of native vegetation, that is,
the site is bare of vegetation from previous uses or does not contain good
quality bushland of significant quantity.
• The site provides adequate setback to existing wetlands, water courses and
drainage lines.
• The site is not listed as a Bush Forever area.
Planning considerations
• The nature of the proposed activity is consistent with the current zoning, and
any proposed zoning.
• The timeframe for the proposed activity takes into account the long-term
impact on the local community.
9
Basic Raw Materials
Applicants’ Manual
Site selection considerations
Site location considerations
• The proposed activity is compatible with surrounding land uses.
• The proposed activity will not cause disturbance to the amenity of the area.
• The site will not have a negative visual impact on major roads, scenic areas or
adjoining properties.
• The site provides an adequate separation distance to any residential or
special rural area, or existing dwelling in a rural area. Typically separation
distances should be 500 metres to 1000 metres.
Application submission checklist – local government
Tick
Note: refer to the relevant local government’s local law for more specific application
requirements. Applicants will need to provide all of the following information to expedite
consideration of your application. If the information is not provided, approval is likely to be
delayed while further enquiries are made.
Legal considerations
Tick
• written consent from owners of site
• DEC approval – clearing permit (where applicable)
• extractive industry licence
• Operational issues such as hours of operation, noise and dust monitoring and
site access are addressed with the view to minimising any potential noise or
dust issues for surrounding sites.
• local government submission form and fees
• Other relevant state and local planning policies and strategies, including but
not limited to the following have been addressed:
Site details
• WAPC submission form and fees (where applicable)
• certificate of title
• existing and proposed land contours
•
State Planning Policy 2.4 Basic Raw Materials
•
State Planning Policy 4.1 State Industrial Buffer Policy
• description of land – roads, boundaries, fences, existing buildings,
waterways, ridge lines, existing vegetation etc
•
extractive industry local laws
Proposed extractive industry details
•
local planning scheme provisions
• location, total area and depth of proposed excavation
•
region scheme planning provisions
• location and proposed maximum height of stockpiles
• how much material is proposed to be extracted (on an annual and total basis)
• method and route(s) of proposed vehicle access to and from the site
• location of proposed buildings, treatment plants, tanks etc
Details of management of operation
• noise attenuation – hours of operation, types of vehicles to be used,
maximum number of truck movements per day, earth bunding
• screening – location of screening and species to be planted, staging of
operations
• dust management plan
• environmental management - measures to protect existing vegetation, acid
sulphate soil management, dieback control, fire management, water quality
management, drainage details, and treatment of wastes
• rehabilitation plan
Contents
10
Basic Raw Materials
Applicants’ Manual
3.5
Local government extractive industry licence
A new licence application or renewal can either
Be aware that some local
be determined by local government planning
governments do not issue
officers exercising authority delegated by
reminder notices for licence
council, or by council itself; it is best to liaise
renewals, so the operator
with the local government on their specific
must ensure renewals are
requirements. Most extractive industry licences
applied for in time
are issued for one year. Be aware that some
local governments do not issue reminder notices
for licence renewals, so the operator must ensure renewals are applied for in time.
The majority of local governments have local laws specific to the planning for extractive
industries. As part of these local laws, many local governments require an extractive
industry licence together with a land use planning approval before extraction can take
place. The table below lists requirements from a select number of local governments.
Extractive industry licences are processed independent of the land use planning
determination, however the two can be assessed simultaneously. An application for an
extractive industry licence should be applied for at the same time as the development
application.
Local government
Zoning details
Extractive
industries clause
in local planning
scheme
Development
application required
under local planning
scheme?
Development
application required
under region
planning scheme?
Extractive
industry license
required?
Local governments covered by a region planning scheme
Shire of Capel
(within Greater Bunbury Region
Scheme area)
Land use: industry, extractive
City of Gosnells
(within Metropolitan Region
Scheme area)
Land use: industry, extractive
Shire of Harvey
(within Greater Bunbury Region
Scheme area)
Land use: industry, extractive
Town of Kwinana
(within Metropolitan Region
Scheme area)
Land use: extractive industry
City of Cockburn
(within Metropolitan Scheme area)
1
2
3
4
No
Yes
Zoned land: yes
Reserved land: yes
Yes
No
Yes
Zoned land: yes
Reserved land: yes
Yes
Yes
Yes
Zoned land: yes
Reserved land: yes
Yes
Yes
Yes
Zoned land: yes
Reserved land: yes
Yes
Yes
Yes
Zoned land: yes
Reserved land: yes
Yes
Zoning table: AA use in rural zone.
1
Zoning table: A use in general industry and general
rural zones, P use in extractive industry zone.
Zoning table: SA use in rural zone.
2
Zoning table: SA use in general industry, rural A and
rural B zones, AA4 use in light industry zone.
3
Land use: industry, extractive
Zoning table: A use in the industry and rural zones.
AA use means that the use is not permitted unless the council has granted its planning consent (Shire of Capel Town Planning Scheme No. 7).
SA use means that the council may, at its discretion, permit the use (Shire of Harvey Town Planning Scheme No. 1).
SA use means a use which council exercising the discretionary powers available to it may approve under this scheme after notice of application has been given in accordance with clause 2.3 (Town of Kwinana Town Planning Scheme No. 2).
AA means a user in respect of which the Council exercising discretionary powers available to it may approve under this Scheme (Town of Kwinana Town Planning Scheme No. 2)
Contents
11
Basic Raw Materials
Applicants’ Manual
Local government
Zoning details
Shire of Serpentine-Jarrahdale
(within Metropolitan Region
Scheme area)
Land use: industry, extractive
City of Wanneroo
(within Metropolitan Region
Scheme area)
Land use: industry, extractive
Shire of Boddington
Land use: industry, extractive
Extractive
industries clause
in local planning
scheme
Development
application required
under local planning
scheme?
Development
application required
under region planning
scheme?
Extractive
industry license
required?
No
Yes
Zoned land: yes
Reserved land: yes
Yes
No
Yes
Zoned land: yes
Reserved land: yes
Yes
No
Yes
n/a
No. Council
currently
considering
adoption of
extractive
industry local law.
Zoning table: AA use in the general industry and
rural zones.
5
Zoning table: D use in general industrial, general rural
and rural resource zones.
Zoning table: SA use in rural zone.
6
Local governments without a region planning scheme
Shire of Broome
Land use: industry, extractive
No
Yes
n/a
No
Yes
Yes
n/a
Yes
No
Yes
n/a
Yes
Zoning table: D use in general rural zone.
Shire of Chittering
Land use: extractive industry
Zoning table: A use in resource zone.
Shire of Northam
Land use: extractive industry
Zoning table: P use in the industry zone, A use in the
agriculture regional and agriculture local zones.
3.6 Local government appeals
Decisions made by local government (or the WAPC) are subject to review by the State Administrative Tribunal (SAT) (part 6.1).
Contents
12
4
Basic Raw Materials
Applicants’ Manual
Department of Mines and Petroleum approvals process
Department of Mines and
Petroleum (DMP)
Part 4
Mark out the ground for a
mining lease
Application for mining
tenement (part 4.4)
• prospecting licence
• exploration licence
• mining lease
Advertising and assessment
(part 4.6)
• Mining Act 1878
Objections received?
• Warden's Court (part 6.2)
For reserved land, refer to
Minister for the Environment
(part 4.4)
Application recommended
• Commonwealth Native
Title Act 1993
Approval by DMP
Mining
lease
Refusal by DMP
Exploration and prospecting licences
•
•
•
Technical report
Program of works
Mining proposal
DMP environmental division
assessment (part 4.8)
• environmental approval
obtained
This section provides information on the processes of obtaining mining title
and subsequent approvals to explore and mine basic raw materials from
Crown land.
4.1
About DMP
Part of DMP’s role is to facilitate the responsible development of mining in Western
Australia. DMP administers the Mining Act which regulates mineral prospecting,
exploration and mining activities. For basic raw material extractive industries on Crown
Land, DMP is the approval authority. Where basic raw materials occur on private land,
they are not classified as a mineral for the purposes of the Mining Act, and hence local
government, not DMP, is the approval authority.
Applicants should be aware that the Mining
Act is a complex document. Applicants should
consider obtaining professional assistance
when dealing with legal arrangements under the
Mining Act to ensure that correct procedures
are followed and activities are lawful.
For basic raw material
extractive industries on Crown
Land, DMP is the approval
authority
4.2
Relationship between DMP and local government
DMP does not usually consult local governments on mining tenement applications;
however, local governments have the opportunity to lodge an objection to the grant of
the tenement within the objection period. Mining tenement holders are required to pay
rates to local governments.
Commence extractive industry
operation subject to DMP
approval conditions.
Contents
13
Basic Raw Materials
Applicants’ Manual
4.3
DMP mining tenements
To explore or mine basic raw materials from Crown land a mining tenement title is
first required. Mining tenement titles that allow solely for the exploration of a site are
prospecting licences and exploration licences. To actually extract or mine basic raw
materials on Crown land requires the issuing of a mining lease. A mining lease application
requires either a mining proposal or a mineralisation report. The mineralisation report is
required to substantiate that significant mineralisation exists and must be accompanied
with a supporting statement about likely mining operations. For basic raw materials, the
preferred administrative process is that applicants submit a mining proposal rather than
a mineralisation report and accompanying supporting statement. In any event, a mining
proposal must be submitted and approved before mining can take place. The following
table details the features of each mining tenement title:
Mining tenement type
Max. area
Term
Prospecting licence
200 ha.
4 years. Renewable for one
period of 4 years.
Exploration licence
70 blocks or 200 blocks
outside known mineralised
areas (nominally 210 or 600
km² respectively).
5 years. Renewable for
one period of 5 years and
further periods of 2 years.
Mining lease
Determined by the area
required for mining.
21 years. Renewable.
For more specific information on mining tenements, contact DMP directly or view
information pamphlets on DMP’s website (www.dmp.wa.gov.au). These can be found
under ‘Mineral services’ for tenement information, ‘Geological Survey WA’ for information
on mineralisation reports, and ‘Environmental Services’ for information on program of
works and mining proposals.
4.4
Mining on reserved land
If a mining tenement falls wholly or partially on Crown reserves, the process is different
to the one outlined in part 4.3. Where a mining tenement encroaches onto reserved land
(refer to classification of reserves under sections 24, 24A and 25 of the Mining Act) the
Mining Act prohibits mining (including prospecting, exploration and mining operations)
from being carried out on the reserved land unless the consent of the Minister for Mines
has been obtained. Before a mining tenement is granted, the Minister will first consult
with the Minister responsible for the reserve, and any authority having a vested interest in
a reserve, and obtain their comments and recommendation/concurrence in respect to
the proposed tenement. Within a class A nature reserve or national park the approval of
both Houses of Parliament is required for the granting of a mining lease.
Before any basic raw material exploration activities involving any mechanical equipment
such as surface clearing, excavation of trenches or pits, or drilling can be undertaken on
a granted mining tenement, the holder must lodge a program of works to DMP’s Director,
Environment Division for assessment. The Director’s written approval to undertake the
activity must be obtained before any exploration can commence.
Contents
14
Basic Raw Materials
Applicants’ Manual
4.5
DMP mining lease approval process summary
Step
Process
1
Mark out the ground of the mining lease (see DoIR ‘Marking out and applying for
mining tenements’ (2006a)).
2
Applications must be made on a Form 21 ‘Application for Mining Tenement’
and lodged at the office of the Mining Registrar within ten days of marking
out, together with a mining proposal or alternatively a mineralisation report and
supportive statement. There are stringent requirements for these documents.
Refer to the DMP website or contact DMP directly for assistance.
3
The mining lease application is advertised in The West Australian newspaper
(Wednesday) and any person has a period of 35 days from the date of the
application to lodge an objection to the grant of the mining lease. In some
instances, copies of the application are sent to affected owners or leaseholders of
the land (eg pastoralists). Where the application encroaches onto reserved land,
the application will be referred to other government agencies for comment under
the reserved land provisions of the Mining Act.
4
The Mining Registrar will check the application for compliance with the provisions
of the Mining Act and then recommends the mining lease to the Minister for
Mines for determination. If there are objections to the application it goes to the
Warden’s Court for hearing (part 4.8). The Warden will provide a recommendation
to the Minister for Mines.
5
Once the mining lease application has been recommended, the application must
then clear the provisions of the Commonwealth Native Title Act 1993 before the
mining lease application can be determined. On the grant of the mining lease, the
Minister for Mines may impose conditions, but with the aim to facilitate mining.
6
Once a mining lease is granted, the lessee must meet the minimum expenditure
conditions on the lease and lodge an annual Form 5 expenditure. In addition,
the lessee must provide DMP with a technical report of the activities undertaken.
Where a lessee fails to lodge the required reports, or has not met expenditure
obligations, then the mining lease is liable to be forfeited.
7
After granting of the mining lease, a program of works or mining proposal is
required to be lodged for assessment and approved by the Director Environment
Division, DMP before any exploration (program of works) or mining (mining
proposal) can occur.
4.6
Clearing applications administered by DMP
Under section 20 of the EP Act, the EPA has delegated the powers of administration of
the clearing provisions to DMP for activities regulated under the Mining Act. For clearing
where the delegation applies, all legislative requirements remain the same as those
detailed for DEC in part 5 of this manual.
4.7
DMP Environmental Division
If a mining lease is granted, the environmental commitments within a mining proposal
will be imposed as tenement conditions, including an environmental bond and annual
environmental reporting. The DMP carries out compliance inspections.
Other approvals may be required under other legislation including the Environmental
Protection (Clearing of Native Vegetation) Regulations 2004, Local Government Act
1995, and the Aboriginal Heritage Act 1972. Refer to Mining Environmental Management
Guidelines (DoIR 2006b).
4.8
Objections by third parties
Objections lodged by third parties against applications for the grant of mining tenements
are heard in the Warden’s Court (part 6.2).
Note: a more detailed outline of the mining lease approval process can be obtained online in flowchart form on
DMP’s website (www.dmp.wa.gov.au under ‘Mineral Services - Mineral Title Approval Process’).
Contents
15
5
Basic Raw Materials
Applicants’ Manual
Department of Environment and Conservation approval
This section provides information on the process of obtaining clearing permits
for proposed extractive industries on freehold land. Please note, DMP is the
relevant agency for activities regulated under the Mining Act (generally on
mining tenements).
Department of Environment
and Conservation (DEC)
Part 5
Applicant proposes to clear
land
5.1
About the EPA
Clearing preliminary
consultation (part 5)
• exemptions (s 5.3)
• industry licence (s 5.4)
The EPA is an independent authority established under the EP Act that provides advice
to the Minister for the Environment on proposals that are likely to have a significant effect
on the environment. When a proposal is deemed to require EPA consideration, the EPA
normally adopts one of five levels of assessment:
Clearing permit required;
exemption applicable?
Clearing permit
• area permit (s 5.2)
• purpose permit (s 5.2)
• DEC clearing permit
checklist
• assessment on referral Information;
• proposal unlikely to be environmentally acceptable;
• environmental protection statement;
• public environmental review; or
Primary assessment (s 5.3)
Approval
Refusal
• environmental review and management program.
More information
required
Secondary assessment (s 5.3)
Approval by DEC
Refusal by DEC
Possible appeal by third party
or appeal conditions or refusal
• Office of the Appeals
Convenor (part 6.3)
Appeal upheld
Under EPA assessment it is the proponent’s responsibility to demonstrate that:
• planning and design of the proposal incorporates best practicable measures to
avoid, and, where this is not possible, to minimise the impact on the environment;
and
• the unavoidable impacts of the proposal are environmentally acceptable, taking
into account cumulative impacts that have already occurred in the region, and
principles of sustainability.
Appeal dismissed
Commence clearing subject to
clearing permit conditions.
Contents
16
Basic Raw Materials
Applicants’ Manual
5.2
DEC clearing permit applications
Clearing of native vegetation is an offence unless a clearing permit has been granted or
an exemption applies. Clearing includes the killing, destruction, removal, severing, or
ringbarking of trunks or stems, or any other substantial damage to some or all native
vegetation in an area. It also includes the draining or flooding of land, burning and grazing
of stock.
Some sites proposed for extractive industries may have been cleared for previous land
use activities, or otherwise contain no native vegetation. In such instances, a clearing
permit may not be required; however, it is best to contact DEC for advice.
Native vegetation is defined as indigenous aquatic or terrestrial vegetation, and includes
dead vegetation. It does not include intentionally sown native vegetation unless:
There are two classes of exemptions:
• it was wholly or partly funded by someone who was not the owner for biodiversity
conservation or land conservation; or
• it is under a binding agreement such as a covenant; or
• it was planted as a requirement of the EP Act or another written law (such as
rehabilitation on a mining lease or as a condition of planning approval).
Clearing of native vegetation
is an offence unless a clearing
permit has been granted or an
exemption applies
DEC clearing pre-applications
Exemptions
• Clearing assessed and approved under other laws.
• Clearing for prescribed purposes, such as access tracks, fence lines, buildings,
firewood and firebreaks.
For more information on exemptions, refer to DEC’s ‘A Guide to the Exemptions and
Regulations for Clearing Native Vegetation’ (2005b). It is advised that proponents contact
DEC directly for detailed advice if they believe they are exempt from obtaining a clearing
permit.
DEC encourages all applicants to discuss
applications before lodgement. A pre-application discussion with a DEC Native
Vegetation Officer will help clarify whether
a clearing permit is required, how complex
the application is and how this will impact on assessment time, what sustainable land
management and environmental considerations should be considered in the application,
and it may help to identify which areas are best left uncleared.
Although DEC aims to process applications within 90 days of receipt, exact processing
times are dependent on the quality of the application and, more importantly, the selection
of an appropriate site. The most common reasons for clearing permit delays include
insufficient supporting information and incomplete applications; illegal clearing; failing
to obtain an operating licence; and highly compromised proposals with significant
environmental impacts. It is worth considering the environmental merits of a site as part
of the selection process to greatly reduce any chance of application delays.
Contents
17
Basic Raw Materials
Applicants’ Manual
5.3
Clearing permit application process
Types of permits
There are two types of clearing permit: area permits and purpose permits which are
detailed in the table below.
Permit type
Details
Area permit
Authorises clearing of a defined area for a specified length of time.
An application for either an area or purpose clearing permit is to be submitted to DEC.
On receiving an application, DEC officers undertake a preliminary check to ensure that
the application is legal and complete. If it is not, the CEO must decline it, and this will
delay processing as the applicant must resubmit the corrected application. See the ‘DEC clearing permit checklist’ on page 20.
Granted to the owner of the land, or someone acting on the owner’s
behalf (with written authority to do so).
Primary assessment
Alternatively, an area permit may be granted to someone who is
likely to become the owner of the land. In such instances, the CEO
may give an undertaking to grant an area permit once the applicant
becomes the owner. An undertaking is legally binding, and is subject
to appeals.
Area permit application is to be submitted using form C1, and if
granted, is valid for a default of two years.
Purpose permit
Authorises the clearing of different areas from time to time over an
extended period for a purpose specified in the application.
Proponent does not need to have legal title or rights over the land,
but requires the legal authority to access the land and clear it for the
purpose of the permit.
Purpose permit application is to be submitted using form C2, and if
granted, is valid for a default of five years.
Note: permit length can be extended by DEC if requested and considered appropriate.
Adapted from DEC’s ‘A Guide to Clearing Permits under the Environmental Protection Act 1986’ (2005a).
As part of the assessment, DEC must advertise clearing permit applications and invite
public submissions. DEC must also write to any persons or organisations which are
considered to have a direct interest in the application and invite submissions. The CEO
must take into account any submissions received in making a decision on a clearing
permit application.
Applications will be assessed against a set of ten clearing principles contained in
schedule 5 of the EP Act, and this is likely to include a site inspection.
The clearing principles outlined in schedule 5 of the EP Act state that native vegetation
should not be cleared if:
a) it comprises a high level of biological diversity;
b) it comprises the whole or part of, or is necessary for the maintenance of, a
significant habitat for fauna indigenous to Western Australia;
c) it includes, or is necessary for the continued existence of, rare flora;
d) it comprises the whole or part of, or is necessary for the maintenance of a
threatened ecological community;
e) it is significant as a remanent of native vegetation in an area that has been
extensively cleared;
f) it is growing in, or in association with, an environment associated with a
watercourse or wetland;
g) the clearing of the vegetation is likely to cause appreciable land degradation;
Contents
18
Basic Raw Materials
Applicants’ Manual
h) the clearing of the vegetation is likely to have an impact on the environmental
values of any adjacent or nearby conservation area;
i) if the clearing of the vegetation is likely to cause deterioration in the quality of
surface or underground water; or
j) if clearing the vegetation is likely to cause, or exacerbate, the incidence of
flooding.
Other considerations in a stage 1 assessment will include submissions from public
authorities and comments from the general public on the proposal, and local and state
government planning instruments, such as the local planning scheme, local planning
strategies, and state planning policies.
The CEO of DEC must have regard to planning instruments in making a decision on a
clearing application and, where relevant, determine the weight given to environmental
issues and planning matters. DEC requests local government advice, and in the case
of extractive industries, particularly on whether an extractive industry licence has been
issued. Therefore, lodging extractive industry licences with local government concurrently
with a clearing permit application with DEC will expedite approval time if no significant
environmental issues are identified.
A site inspection may also be required in a stage 1 assessment. This involves DEC
officers visiting the property and discussing the application with proponents. A
rehabilitation plan may also be discussed. If land is not rehabilitated after extractive
industry has occurred it can result in land care and groundwater quality issues that
impact on the environment and limit the capacity for other uses on the site. Rehabilitation
may be a condition of granting a clearing permit.
Clearing permit decision
Decisions are made by the CEO of DEC or a person delegated under section 20 of the
EP Act. In making a decision on a clearing permit application, the CEO of DEC must have
regard to the clearing principles, planning instruments and any other relevant matter.
Permits do not commence until after the expiry of the appeal period, or if an appeal is
lodged, until after the determination of the appeal.
The permit may impose conditions that are necessary or convenient to mitigate the
environmental harm caused by clearing or offset the loss of the native vegetation. The
types of conditions that can be imposed are outlined in section 51I of the EP Act;
however, this should not be considered an exhaustive list. Proponents should consider
these potential conditions when drafting their application to be aware of the issues
that DEC considers and regulates in granting permits. DEC conducts audits during or
on completion of approved clearing projects to monitor compliance with conditions of
approval. Proponents should contact a Native Vegetation Officer of DEC if they have any
difficulties in complying with conditions.
Unlawful clearing
Unauthorised clearing incurs a maximum penalty of $250,000 for individuals and
$500,000 for a body corporate. The CEO can also require the restoration of vegetation
by giving a vegetation conservation notice. The costs of the restoration are borne by the
person to whom the vegetation conservation notice is given.
Secondary assessment
A stage 2 assessment is only required for a specific type of application, usually if very
detailed information is required before a decision can be made. For example, a site
may have rare vegetation which will require more information and may include a spring
flora survey. Stage 2 assessments are likely to require additional time for processing
applications, particularly if a seasonal survey is required. There may be a shortage
of qualified botanists during the peak spring survey period. These factors should be
provided for in the projects’ timeline.
Contents
19
Basic Raw Materials
Applicants’ Manual
5.4
DEC industry licences
DEC clearing permit checklist
Adapted from DEC’s document ‘A Guide to Clearing Permits under the Environmental
Protection Act 1986’ (2005a).
Legal considerations
• Area permit application prepared by landowner, or with written authority of
landowner, or by a person with an interest in land; for example, a person who
has entered into a contract to purchase land.
• Application for an undertaking can only be submitted by a person who is
likely to become the owner of the land to the satisfaction of the CEO of DEC.
• The application is to be accompanied by the prescribed fee
• The prescribed form must be correctly completed.
Environmental considerations
• Aerial view of proposed clearing area, including location of clearing. Also
include natural features on the site, such as waterways, wetlands and
geographical features.
• State proposed method of clearing and proposed dispersal of vegetation.
Include a management plan that lists and explains how the following
considerations will be managed:
• dominant vegetation complexes (common tree species, shrubs, groundcover
and weeds)
• condition of the vegetation (any previous disturbances such as clearing,
grazing, logging, ring barking, burning, weeds and feral animals)
• types of soils (sands, clays)
• existing landforms and landscape features (contours, floodplains, ridgelines,
sideslopes)
• drainage patterns (rivers and creeks, drainage depressions)
• special features (wetlands, springs, soaks, levee banks)
• land management problems (erosion, waterlogging, acid sulphate soils,
salinity, weed invasion); include extent of erosion
• land use history (prior clearing/logging, cultivation, fires, stock).
Tick
DEC industry licences deal with noise and dust issues, and the screening and processing
of extracted material. Licences are issued for two years, and as per clearing permit
applications, they are advertised and subject to third party appeal rights. If a DEC
industry licence is required, then the local government will not usually include conditions
relating to these issues on its approvals as these will be dealt with in DEC’s operation
licence. Current licences can be viewed on DEC’s website.
DEC industry licences are issued for large-scale extraction of material (generally over
50,000 tonnes or more per year). Usually extractive industries for basic raw materials do
not require industry licences. It is advised that proponents speak with DEC to ascertain
whether an industry licence is required if extraction of material is proposed to occur on a
large scale.
5.5
DEC appeals
Appeals of decisions made by DEC (or DMP for clearing on Crown land under delegation)
are managed by the Office of the Appeals Convenor, which provides advice to the
Minister for the Environment (part 6.3).
Contents
20
6
Basic Raw Materials
Applicants’ Manual
Appeals
This section outlines the basic appeals processes for the State Administrative
Tribunal, the Office of the Appeals Convenor and the Warden’s Court.
6.1
State Administrative Tribunal
The State Administrative Tribunal (SAT) reviews planning decisions made by both state
and local governments, as per part 14 of the P & D Act, if a proponent does not agree
with part or all of a decision, such as any conditions imposed. The SAT does not deal
with appeals made under the EP Act (part 6.3 Office of the Appeals Convenor).
If the application involves a development of less than $250,000, it is considered a class
1 application, all other applications are class 2. There are different fees applicable to
the different classes. The table below outlines the basic process for both class 1 and 2
applications.
Step
Process
1
Lodge application online within 28 days of determination. If you miss this
deadline, you must request an extension.
2
Accompanying an application for appeal is the original application and a copy of
the determination.
3
Give a copy of the application for appeal to the original decision-maker within 7
days of lodgement.
4
SAT will inform the decision-maker and applicant of a time, date and location of
the first directions hearing.
5
The first directions hearing involves identification of the issues and focuses on
mediation, and with class 2 applications, compulsory conference.
6
If mediation and/or compulsory conference fails, the matter is then listed for a
final hearing.
7
At the final hearing, the matter is heard again. SAT may either give an oral
decision, or a written decision within 90 days. The decision is usually posted to
both parties.
8
Unless SAT states otherwise, SAT’s decision has effect from the time as the
original decision-maker’s decision had effect.
Adapted from the SAT’s ‘Information about class 1 planning applications’ (SAT n/d), and
‘Information about class 2 planning applications’ (SAT n/d).
Contents
21
Basic Raw Materials
Applicants’ Manual
6.2
Warden’s Court
6.3
Office of the Appeals Convenor
The Warden’s Court deals with objections made against applications for mining
tenements, lodged under the Mining Act. The Mining Act does not provide an appeal
mechanism if a mining tenement application has already been determined.
The Appeals Convenor advises the Minister for the Environment on all clearing permit
appeals. The Appeals Convenor is guided by a number of principles which are contained
in the Office of the Appeals Convenor’s ‘Guidelines for Clearing Permit Appeals’ (2005).
The following information is based on this document.
As part of the assessment process for all mining tenements, a proposal is advertised
for 35 days. It is only during this period (which can be extended by the Warden’s Court
if requested) when objections can be received. Objections trigger a Warden’s Court
hearing.
Hearings are listed by the Warden’s Clerk and held in open court. Evidence is given
under oath, and all decisions arising from the Court are made available to the public. The
Warden will hear the objection and provide the Minister for Mines or granting authority
with a recommendation on whether or not the mining tenement should be granted.
For prospecting licences, the Mining Act provides for an appeal to be made by the
applicant directly to the Minister for Mines where a Mining Registrar or Warden refuses
to grant an application, or grants the application with conditions that the applicant
considers unreasonable. There are no similar appeal provisions in respect to exploration
licences or mining leases once they have been determined; however, this does not
prevent applicants from seeking remedies through a higher court.
It is important to note that obtaining a mining tenement is only one aspect of the
approvals process for Crown land. Third party appeal rights may be applicable via the
Office of the Appeals Convenor if the application’s program of works is subject to an EPA
referral, as is the determination of a clearing permit. In such instances, refer to part 6.3.
Step
Process
1
Submission of appeal
• Ascertain grounds for appeal.
2
Confirmation of appeal, request for report
• In third party appeals, a letter will be sent to the permit holder advising of the
appeal.
• A letter is sent to the CEO of DEC requesting a report be prepared for the
Minister.
3
Investigation of the appeal
• Consultation is held between the permit holder, third parties and government
agencies for advice, if applicable.
• The appellant will be given reasonable opportunity to respond to information
detrimental to the appellant’s case.
4
Final report to the Minister for the Environment
• The Minister decides to allow, partially allow or dismiss the appeal.
Adapted from DEC’s ‘A Guide to Clearing Permits under the Environmental Protection Act
1986’ (2005a) and the Office of the Appeals Convenor’s ‘Guidelines for Clearing Permit
Appeals (2005)’.
Who can lodge an appeal
It is important to note that any person can lodge an appeal, including the applicant and
third parties (such as conservation groups or neighbours). Permit holders are given the
opportunity to respond to issues raised by third party groups before a decision is made.
Contents
22
Basic Raw Materials
Applicants’ Manual
How to lodge an appeal
Appeals relating to clearing permits are free of charge. There are time limits applicable for
lodging an appeal against a decision of the CEO:
• For appeals against a grant or undertaking to grant a clearing permit: 21 days
from the date the permit is granted or undertaking is made.
• For all other appeals: 28 days from the date the permit applicant or holder was
notified of the refusal, specification, amendment, revocation or suspension. This
timeframe also applies to third party appeals.
• Any appeals lodged after this time will not be accepted and no extensions are
granted.
Of note, in calculating the closing time for the lodgement of the appeal, the day of grant
or notification is excluded. If the due date falls on a Saturday, Sunday or public holiday,
the closing date is the next working day.
Reasons for appeal
All clearing permits are issued by the CEO of DEC. An appeal can be lodged against the
following decisions of the CEO:
1. Refusal to grant, or give an undertaking to grant, a clearing permit.
2. Conditions imposed on any permit approval or undertaking.
3. Amendments, revocation or suspension of a clearing permit.
4. Grant, or undertaking to grant, a clearing permit.
From date of lodgement, it usually takes six weeks before the final report on appeals are
provided to the Minister for the Environment. The Minister may allow, partially allow or
dismiss an appeal. The Minister’s decision on an appeal is final and cannot be appealed;
therefore, it is important for appellants to consider other outcomes as opposed to refusal.
A resolution may involve a degree of compromise, such as the reversal of a condition,
the allowance of partial clearing, or the provision of offsets in return for clearing. It is
worthwhile to refer to the Office of the Appeals Convenor’s guidelines as a number of
examples are provided relating to grounds of appeal.
Contents
23
7
Basic Raw Materials
Applicants’ Manual
Useful contacts
The following table presents a list of government agencies and organisations
that can provide additional professional assistance relating to extractive
industry applications. The ‘activity related to basic raw materials column’
indicates the agency’s area of expertise.
Agency
Activity related to basic raw materials
Relevant legislation
Internet link
Department of Environment and
Conservation (DEC)
Clearing permits
Industry licences
Consideration of Bush Forever
Environmental Protection Act 1986
www.dec.wa.gov.au
Department of Indigenous Affairs
(DIA)
Native Title
Aboriginal heritage sites
Consultation with Aboriginal communities
Aboriginal Heritage Act 1972
Native Title Act 1993
www.dia.wa.gov.au
Department of Mines and
Petroleum (DMP)
Mining tenements on Crown land
Clearing permits on mining tenements
Mining Act 1978
Aboriginal Heritage Act 1972
Native Title Act 1993
www.dmp.wa.gov.au
Department for Planning and
Infrastructure (DPI)
Administration of planning approvals of
WAPC
State planning policies
Region schemes
Implementation of Bush Forever
Planning and Development Act 2005
www.dpi.wa.gov.au
www.wapc.wa.gov.au
Landgate
Land titles
Covenants/easements
Land Administration Act 1997
www.landgate.wa.gov.au
Office of the Appeals Convenor
DEC appeals
Environmental Protection Act 1986
www.appealsconvenor.wa.gov.au
State Administrative Tribunal (SAT)
Planning appeals
Planning and Development Act 2005
Land Administration Act 1997
www.sat.justice.wa.gov.au
Warden’s Court
Mining tenement objections
Mining Act 1978
www.dmp.wa.gov.au
(Home > Mineral Services > Developing > Warden’s
Court)
Western Australian Local
Government Association (WALGA)
Model local laws
Assistance to local government
Planning and Development Act 2005
Local Government Act 1995
Contents
www.walga.asn.au
24
Basic Raw Materials
Applicants’ Manual
References and further reading
City of Albany (2006) Council Policy: Applying for an Extractive Industry: A Guideline for
Developers, City of Albany, Albany.
Department of Conservation and Land Management (n.d.) Basic raw materials policies
of the Land and Forests Commission and the National Parks and Nature Conservation
Authority, Government of Western Australia, Perth.
Department of Environment and Conservation (1999) Land development sites and
impacts on air quality guidelines, Government of Western Australia, Perth.
Department of Environment and Conservation (2005a) A Guide to Clearing Permits under
the Environmental Protection Act 1986, Government of Western Australia, Perth.
Department of Environment and Conservation (2005b) A Guide to the Exemptions and
Regulations for Clearing Native Vegetation, Government of Western Australia, Perth.
Department of Environment and Conservation (2008) Draft - A guideline for the
development and implementation of a dust management program, Government of
Western Australia, Perth.
Department of Industry and Resources and Environmental Protection Authority (2004)
Memorandum of Understanding: Onshore Mineral Exploration and Mining Development
Proposals, Government of Western Australia, Perth.
Department of Industry and Resources (2006a) Marking out and applying for Mining
Tenements, Government of Western Australia, Perth.
Department of Industry and Resources (2006b) Mining Environmental Management
Guidelines: Mining Proposals in WA, Government of Western Australia, Perth.
Department of Water (n.d.) Extractive Industries within Public Drinking Water Source
Areas, Government of Western Australia, Perth.
Department of Water (1997) Wetlands Conservation Policy for Western Australia,
Government of Western Australia, Perth.
Department of Water (1999) Policy and guidelines for construction and silica sand mining
in Public Drinking Water Source Areas, Government of Western Australia, Perth.
Shire of Capel (n.d.) ‘Guidelines for extractive industries’, Shire of Capel, Capel.
Shire of Chittering (2006) Local Planning Policy No. 10: Basic Raw Materials and
Extractive Industries, Shire of Chittering, Chittering.
State Administrative Tribunal (n.d.) Information about class 1 planning applications,
Government of Western Australia, Perth.
State Administrative Tribunal (n.d.) Information about class 2 planning applications,
Government of Western Australia, Perth.
State Administrative Tribunal (n.d.) Documents that may be required by the State
Administrative Tribunal in planning applications, Government of Western Australia, Perth.
Water and Rivers Commission (2000) Water Quality Protection Note, ‘Extractive
Industries within Public Drinking Water Source Areas’, Department of Water, Perth.
Western Australian Planning Commission (1997) Planning Bulletin 25 Development
Control under Metropolitan Region Scheme, Government of Western Australia, Perth.
Western Australian Planning Commission (2000a) Bush Forever, Government of Western
Australia, Perth.
Western Australian Planning Commission (2000b) State Planning Policy 2.4 Basic Raw
Materials, Government of Western Australia, Perth.
Western Australian Planning Commission (2004a) State Planning Policy 4.1 draft State
Industrial Buffer Policy, Government of Western Australia, Perth.
Western Australian Planning Commission (2004b) State Planning Policy 2.8 draft
Bushland Policy for the Perth Metropolitan Region, Government of Western Australia,
Perth.
Western Australian Planning Commission (2007) An Introduction to the WA Planning
System, Government of Western Australia, Perth.
Western Australian Planning Commission and Department of Minerals and Energy and
Ministry for Planning (1998) Memorandum of Understanding: Land use planning and
mineral resource exploration and mining, Government of Western Australia, Perth.
Office of the Appeals Convenor (2005) Guidelines for Clearing Permit Appeals,
Government of Western Australia, Perth.
Contents
25