Avalon Sheds And Stables and City Of Belmont - [2009] WASAT 67

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: AVALON SHEDS AND STABLES and CITY OF BELMONT [2009] WASAT 67

MEMBER: MR J JORDAN (MEMBER)

HEARD: 15 JANUARY 2009

DELIVERED : 15 APRIL 2009

FILE NO/S: DR 313 of 2008

BETWEEN: AVALON SHEDS AND STABLES
Applicant
AND
CITY OF BELMONT
Respondent

Catchwords:

Town planning Development Approval for stable Conditions imposed One of four stalls only to be used as a stable Three of four stalls to be used only for storage 'Residential and Stables' zone Abuts commercial premises in Mixed Use zone Town planning scheme setbacks subject to setbacks in City of Belmont Health (Stables Premises) Local Laws 1999 Setback from commercial premises to be no less than 15 metres Relaxation allowed in exceptional circumstances Variation must result in no likely adverse health effect General discretion in town planning scheme to vary standards and requirements to allow noncomplying development Noncomplying development not to have adverse effect on future development of locality Intention of Residential and Stables zone Words and phrases: exceptional circumstances

Legislation:

City of Belmont District Zoning Scheme No 14, cl 1.8, cl 2.1.1, cl 5.1.1, cl 5.8.1, cl 5.11.1, cl 10.2, cl 10.2.3, cl 10.5.1, cl 10.7, cl 10.7.2, cl 10.8, cl 10.8.1, cl 10.8.4, cl 10.8.5, cl 10.8.5(a)(ii), cl 10.8.6, cl 10.16, cl 10.16.1, cl 10.16.2, cl 10.16.3, cl 10.2.13, Table 1
City of Belmont Health (Stables Premises) Local Law 1999, cl 13(1), cl 13(3)
Planning and Development Act 2005 (WA)
State Administrative Tribunal Act 2004 (WA), s 31

Result:

The application for review is dismissed
Condition 3 and condition 4 imposed on the application for retrospective planning approval for the development of stables at No 14 Aurum Street, Belmont, imposed by the Council in its decision of 15 July 2008 and 18 November 2008, are affirmed

Category: B

Representation:

Counsel:

Applicant: Mr Kotsoglo (Acting as Agent)
Respondent: Mr C Slarke

Solicitors:

Applicant: Planning Solutions (Aust) Pty Ltd (Town Planners)
Respondent: McLeods

Case(s) referred to in decision(s):

D and Department for Community Development [2007] WASAT 154
Vary Enterprises Pty Ltd and City of Belmont [2008] WASAT 130

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Avalon Sheds and Stables applied to the Tribunal for review of two of the conditions imposed by the City of Belmont on the retrospective development approval of a four-stall stable built across the rear boundary behind the house at No 14 Aurum Street, Ascot, a site in the Residential and Stables zone. The conditions required, respectively, that only stall 1, closest to the north-west boundary, be used as a stable, and that stalls 2, 3 and 4 be used for storage purposes only.
The site abuts Lot 503 Great Eastern Highway, zoned 'Mixed Use', on which is a commercial building 2 metres from the common boundary. The town planning scheme setback provisions for the Residential and Stables zone are expressly subject to the setback requirements to be found under the City of Belmont Health (Stables Premises) Local Law 1999, which requires stables be set back 15 metres from commercial premises. The City of Belmont imposed the conditions because stalls 2, 3 and 4 would be within the 15 metre setback.
The setback requirement may be relaxed if exceptional circumstances justify a variation and no likely adverse health effects arise.
The first issue was whether there were exceptional circumstances. The applicant said there were exceptional circumstances because of a combination of factors, including the constrained area available for the stables, the expectation of a lesser level of amenity on the abutting Mixed Use zoned lot, the existence of a 7.3 metre high and 23 metre‑long blank wall on Lot 503, similarly sited stables on the lot adjoining to the rear, and the uniqueness of the Residential and Stables zone in which it is intended that stables be established. The applicant said that required management practices would ensure no adverse health effects would result. There is also available under the district zoning scheme a general discretion to vary a standard or requirement if there would be no adverse effect on the inhabitants of the locality or on the likely future development of the locality.
The second issue was whether this discretion should be exercised notwithstanding non‑compliance with the setback requirement. The applicant said that there would be minimal, if any, impact on the locality, and the building on the neighbouring lot was substantial, comparatively new and likely to remain.
In respect of the first issue, the Tribunal formed the view that the circumstances identified by the applicant applied to most Residential and Stables zoned lots with a common boundary with the Mixed Use zone and in respect of the management requirements to all lots in the Residential and Stables zone. The Tribunal concluded that there were not individual exceptional circumstances or a combination of circumstances that were together exceptional that justified a variation from the setback required for No 4 Aurum Street, Ascot.
In respect of the second issue, the Tribunal noted that there were planning controls in place which included setbacks, and the neighbouring lot had an existing commercial development. When a new development is proposed, such as the stables in this instance, the Tribunal was of the view that the required setbacks were most properly provided on the site of the proposed development. If the form of the existing development on the neighbouring lot is relied upon to relax setbacks on the site, then, in the event of redevelopment of the neighbouring site, the adverse effect of the stables will become a consideration; that is, the development of the stables at reduced setback would have a direct impact on the 'likely future development' of the neighbouring Mixed Use site. The Tribunal found that exercising the general discretion available under the City of Belmont District Zoning Scheme No 14 could not therefore be supported, because it would have an effect on the likely future development of the neighbouring Mixed Use zoned land.
The Tribunal decided to dismiss the application, with the result that condition 3 and condition 4 remained, as imposed by the City of Belmont.

Introduction

These proceedings involve an application brought by Avalon Sheds and Stables (applicant) for a review of condition 3 and condition 4 imposed by the City of Belmont (respondent, Council or City) on its retrospective development approval of stables consisting of four stalls erected adjacent to the rear, south‑west boundary of No 14 (Lot 95) Aurum Street, Ascot (site).
The conditions in dispute imposed by the Council were:
3.That stall 1 closest to the north-west boundary is to be utilised as a stable.
4.That stalls 2, 3 and 4 are to be used for storage purposes only.
The City had identified the stalls within the stable, for the purposes of its conditions, by numbering them 1 to 4, with stall 1 being adjacent to the north‑west boundary and stall 4 adjacent to the south‑east boundary.
An inspection by a City officer in June 2007 revealed the existence of the stables. Investigation revealed that the stables were constructed without a development approval or a building licence being obtained. An application for retrospective development approval was refused by the Council in November 2007. A further application was lodged in February 2008 but this was not determined. A third application lodged in April 2008 was granted conditional approval in July 2008. The development application was again considered by Council on 8 November 2008 after referral by the Tribunal for reconsideration under s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). The Council at that time affirmed the July 2008 decision.

The site and locality

The site is rectangular with an area of 911 square metres, a frontage of 20.12 metres to Aurum Street at the north‑east end and a depth of 45.26 metres. At the front of the site is a single‑storey house with a garage attached at the rear and a driveway adjacent to the south‑east boundary. Abutting the rear boundary of the site is the four‑stall stables building with colorbond roof, colorbond and fibreglass walls, and sand floors. The side wall is set back 1.06 metres from the south‑east side boundary. Next door to the north‑west is No 10 ‑ 12 Aurum Street, a 1,821 square metre lot with house and stables. To the rear of the site is No 19 Keymer Street with a house at the front, and across the rear boundary, brick and iron stables that mirror the stables proposed for the site.
Adjoining the site to the south‑east is Lot 503 which has frontage to Aurum Street, Great Eastern Highway, which is about 70 metres to the south‑east, and Keymer Street. Lot 503 is 5,880 square metres and has on it a boat sales and display business, which includes showrooms fronting Great Eastern Highway and, behind, workshop and servicing buildings with access from Aurum Street. The side wall of one commercial building is set back 2 metres from the common boundary with the site. This wall is a blank, brick parapet wall 7.5 metres high which extends for 23 metres adjacent to the yard and stables behind the house. Adjacent to the house is an open area of Lot 503, used for storage and access to the commercial building.

Planning framework

The site is zoned 'Residential and Stables' under City of Belmont District Zoning Scheme No 14 (DZS 14 or Scheme).
Clause 10.8.1 of DZS 14 states that the intention for the Residential and Stables zone is:
to provide for compatible usage of land in close proximity to the Ascot racecourse by residential accommodation and stables and ancillary functions of the horse racing industry.
Lot 503 abutting to the south‑west is zoned 'Mixed Use' under DZS 14. Clause 10.5.1 of DZS 14 states that the intention for the Mixed Use zone is:
to allow for the development of a mix of varied but compatible land uses such as housing, offices, showrooms, amusement centres, eating establishments and appropriate industrial activities which do not generate nuisances detrimental to the amenity of the district or to the health, welfare and safety of its residents.
The use 'Stables' is a 'P' use (a permitted use) within the Residential and Stables zone under Table 1 – Zoning Table of DZS 14. Clause 5.1.1 of DZS 14 stipulates that all development on zoned land requires development approval from the Council. Clause 5.11.1 of DZS 14 confers the power to grant approval for a use for development already commenced or carried out.
Clause 5.8.1 of DZS 14 lists matters to which due regard is to be had when determining an application. Relevant matters include:
(a)the aims and provisions of this Scheme and any other relevant town planning scheme(s) operating within the district including the Metropolitan Region Scheme;
(b)the provisions of the Local Planning Strategy;
(c)the requirements of orderly and proper planning … ;
…
(i)any environmental consideration;
…
(k)the preservation of the amenity of the locality;
(l)the relationship of the proposal to development on adjoining land or on other land in the locality;
…
(t)the potential loss of any community service or benefit resulting from the Planning Approval;
(u)any relevant submissions or objections received on the application;
…
Central to the consideration of the conditions under review are the setback requirements for development in the Residential and Stables zone under DZS 14. Confusingly, the parties had a version of DZS 14 which included these at cl 10.8.4 and a version in which they were at cl 10.8.5. This confusion appears to have arisen after Amendment No 57 to DZS 14 was published in the Government Gazette of 21 November 2008. Amendment 57 included, at cl 2 'Adding an additional clause to Part 10.7 'Residential and Stables' zone, to read as follows:
10.7.2… The Tribunal notes that Pt 10.7 of DZS 14 is concerned with the Industrial zone. It is Pt 10.8 which is concerned with the Residential and Stables zone. To make sense, the new clause to be inserted should be cl 10.8.2. Amendment 57 also modified cl 10.2.3 and 'cl 10.7.5' which[,] again to make sense[,] should read [']cl 10.8.5['].
The amendment required 'Renumbering Part 10.7 'Residential and Stables' Zone' to reflect the changes. It appears that certain reprints of DZS 14 have renumbered Pt 10.8. To avoid confusion at the hearing and to ensure reference was made to the controls relevant to the Residential and Stables zone, the parties relied on versions of DZS 14 copied from the Western Australian Planning Commission website which includes the setback provisions for the Residential and Stables zone at cl 10.8.5.
Clause 10.8.5 of DZS 14 states:
Subject to the provisions of the Council's Stable By‑laws made under the provisions of the Health Act 1911,
(a)no part of any stable shall be sited less than:
(i)24m from the frontage of the lot;
(ii)6m from any other street boundary of the lot. The Council may allow zero setbacks on the other boundaries;
…
The City has adopted the City of Belmont Health (Stables Premises) Local Law 1999 (Stables Local Law). This is the local law referred to in cl 10.8.5 of DZS 14. Clause 13(1) of the Stables Local Law states:
13(1)No part of any stall shall be less than 6 metres from any dwelling house on the same property or 15 metres from any office or commercial premises or 10 metres from a dwelling house on an adjacent property, except when in accordance with subclause (3).
…
(3)Council may relax the requirements of subclauses (1) and (2) if[,] in the opinion of council, exceptional circumstances justify a variation and no likely adverse health effects will arise as a result of the variation.
…
Clause 10.8.5 of DZS 14 requires setbacks from lot boundaries, whereas cl 3.1 of the Stables Local Law requires setback from commercial premises. The City has applied the setback requirement from the commercial building on Lot 503 rather than to the lot boundary. The respondent pointed out that an argument could possibly be made that, in context, the commercial premises may mean the whole of the adjoining lot rather than a building on the lot. As stated by the respondent, in this case it is not a significant issue, as the building is close to the boundary. The Tribunal has formed the view that it is not necessary to address the question in determining this matter.
The applicant pointed out that cl 1.8 of DZS 14 provides that, if there is any inconsistency between the Scheme and a local law, the provisions of the Scheme prevail. The Tribunal would comment that there is no inconsistency between the provisions of DZS 14 and the Stable Local Law because DZS 14 expressly makes the setback provisions of cl 10.8.5 subject to the provisions of the Stables Local Law.
Clause 10.16 of DZS 14 is concerned with variations to site and development standards and requirements. Clause 10.16.1 of DZS 14 provides that a development which does not comply with a standard or requirement prescribed under DZS 14 may be approved. Clause 10.16.2 requires that, when considering a variation, regard be had to any express views of affected parties. Clause 10.16.3 states:
The power conferred by this clause may only be exercised if the Council is satisfied that:
(a)approval of the proposed development would be appropriate having regard to the criteria set out in cl 10.2; and
(b)the non‑compliance will not have any adverse effect upon the occupiers or users of the development or the inhabitants of the locality or upon the likely future development of the locality.

Issues

The issues that arise for consideration in this matter are:
1)whether there are exceptional circumstances to justify a variation in the prescribed setback and whether there will be any likely adverse health effect as a result of that variation; and
2)whether, notwithstanding the non‑compliance with the setbacks prescribed by the Stables Local Law, discretion available under DZS 14 should be exercised to approve the development and allow for horses to be stabled in all four stalls on the site.

Whether there are exceptional circumstances to justify a variation in the prescribed setback and whether there will be any likely adverse health effect as a result of that variation

The Tribunal considered it important to make clear what was meant by the expression 'exceptional circumstances'. This was so that the parties could give evidence and make submissions against a common understanding of the phrase. The Tribunal cited the following from D and Department for Community Development [2007] WASAT 154 in which Chaney J said:
19.The Act does not define 'exceptional circumstances'. The Australian Concise Oxford Dictionary (2nd Edition), Oxford University Press, Melbourne, 1992 defines exceptional as 'forming an exception; unusual; not typical'. In Baker v The Queen (2004) 223 CLR 513 at 573 [173], Callinan J referred with approval to the approach of Lord Bingham of Cornhill CJ in R v Kelly (Edward) [2000] QB 198 at 208 to the expression 'exceptional circumstances' in s 2 of the Crime (Sentences) Act 1997 (UK) where he said:
'We must construe 'exceptional' as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.'
20.In Ho v Professional Services Review CommitteeNo 295 [2007] FCA 388 at [26], Rares J after referring to the observation of Griffiths v R (1989) 167 CLR 372 at 379 by Brennan and Dawson JJ that 'although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances', said:
'Exceptional circumstances within the meaning of s 106KA(2) [of the Health Insurance Act 1973 (Cth)] can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional …
It is not correct to construe 'exceptional circumstances' as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural 'circumstances' as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of 'exceptional circumstances' in s 106KA(2) includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.'
The Tribunal said that, for circumstances to be considered exceptional, they should be circumstances that are, individually or together, uncommon, unusual, special, or out of the ordinary course.

Applicant's position

Mr Ben Doyle, a planner called by the applicant to give evidence, said that, in his opinion, the circumstances of the proposed use 'do not in and of themselves meet the test of exceptional circumstances, but that the consideration of the combined effect is such as to create exceptional circumstances'. Mr Doyle identified what he considered together resulted in there being exceptional circumstances. The Tribunal lists the points made as follows:
1)The lot area is below the minimum of 1,000 square metres stipulated for the Residential and Stables zone in DZS 14. Clause 10.8.6 of TPS 14 is directed to the establishment of residences and stables in this unique zone, and so setback concessions should be available to ensure that this happens on the site consistent with the purpose of the zone.
2)The limited width of the lot at 20.12 metres requires reasonable application of development standards. To set the development back 15 metres as required would reduce the capacity of the lot to provide the stables development enjoyed by other lots.
3)The site is located on the periphery of the zone adjacent to Lot 503, a corner lot on which commercial buildings are allowed. Buildings on Lot 503 fronting Great Eastern Highway have behind them, further commercial buildings toward the rear boundary, with access off Aurum Street close to the side boundary of the site. This reduces capacity for the development of stables on the site without setback concessions.
4)The side wall of the commercial building on Lot 503 is set back 2 metres from the common boundary with the site. This blank, brick parapet wall is 23 metres long and 7.5 metres high. This wall would mitigate any impact from the stables. This building was constructed within the last three years and so is unlikely to be redeveloped for some time.
5)The existing stable development at No 19 Keymer Street, which backs onto the site, has some impact on the amenity of the locality and Lot 503, which, in the view of the applicant, is limited. The uses on Lot 503 would expect stables use of the site and some impact from them. The addition of the proposed stables would not, however, significantly increase any impact currently existing.
6)The City approved stables in nearby Keymer Street with setbacks similar to those proposed. The most recent approval was issued well after the Stables Local Law was adopted.
7)Abutting Lot 503 is in a Mixed Use zone with an expectation of lesser amenity because of its location on Great Eastern Highway and the surrounding uses.
8)The Stables Local Law provides for the effective management of stables by storage of feed, collection, storage and disposal of manure, and construction of paved areas which prevents health and amenity impacts from noise, dust, odour emissions and stable fly.
9)The relocation of the stables on the site to a 15 metre setback, if possible, would not achieve any greater reduction in impacts from emissions than well‑managed stables at the proposed reduced setbacks.
10)The Stables Local Law requires registration and annual licence renewal. If the stables are not being managed effectively and properly, the respondent has the power to deregister and prosecute the owner or operator. This is an opportunity for ongoing monitoring of the use to ensure there would be no impact on health as a result of the reduced setbacks.

Mr Doyle said that the context of the site and proposed use, summarised above, resulted in exceptional circumstances that warranted the proposed use of the stables being approved. Mr Paul Kotsoglo, for the applicant, said DZS 14 provides for variation of the standards, and the circumstances are sufficiently exceptional to warrant that variation being granted. If variations were not contemplated, then the Scheme would not have allowed such consideration.
In support of the applicant's position that adequate safeguards to ensure the health and amenity of the locality supported an approval, Mr Kotsoglo cited Vary Enterprises Pty Ltd and City of Belmont [2008] WASAT 130, which was for a dog daycare centre in a Mixed Use zone. The Tribunal summarised its findings at [7] as follows:
… The Tribunal was persuaded that, subject to implementation of intended measures to control noise and odour emissions, the proposed use would be conducted without unreasonable impact on the amenity of the locality, and was therefore capable of being identified as a use consistent with the objectives of the prevailing zoning.

Respondent's position

Counsel for the respondent said there was nothing exceptional about the Residential and Stables zoning encouraging the construction of stables on the site. This is applicable to all lots in the zone. The setbacks applicable for stables on the site would have been set with this purpose in mind.
It was the respondent's submission that the lot size or configuration did not impose any exceptional circumstances. The location of the stables was influenced, in part, by the existence of a relatively large house on the site, and it is expected that there would be a house on the site. Mr Kevin Davidson, Manager Health and Ranger Services at the City, called by the respondent to give evidence, said that stables for four horses could be accommodated on the site in any event. The stalls could be placed in an alternative configuration. Counsel for the respondent submitted that, if the lot size or the configuration were such that stables could not be developed or the possibilities for the development of stables were limited because of the setback requirements, then that may be exceptional, but here, the applicant can have stalls for four horses if he does it in a different way.
The respondent also submitted that location of a lot of the size of the site on the boundary of the Mixed Use zone within which there was a commercial building also is not exceptional. There are other lots of similar size similarly placed along about nine street blocks.
The respondent rejected the submission that, in the Mixed Use zone, there was to be expected a lower order of amenity than in other zones because of the range of uses that might be allowed. It was said that it must be assumed that the setbacks of stables from commercial or office premises provided in the local laws, whether such uses are within the Mixed Use or another zone, have been established having regard to amenity one might expect to obtain in such office or commercial premises.
In respect of the high, blank wall of the existing commercial building on Lot 503 having potential to ameliorate any amenity or health impact of this use, the respondent argued that there are two things which count against that being considered an exceptional circumstance, namely:
1)there is no evidence that goes to whether the existence of that wall is, in fact, unusual, uncommon or out of the ordinary along this Mixed Use zone boundary; and
2)the fact that the brick wall can ameliorate the impact of the uses is relevant and could be exceptional if there were some sort of guarantee, or at least a strong likelihood, that the status quo would remain. That was not the case here.
The respondent included in its bundle of documents a copy of a letter dated 25 November 2008 in which Cameron Brae Pty Ltd, the owner of Lot 503, said it did not support the location of the stables on the boundary because it considered this would impact on the redevelopment potential of Lot 503.
The respondent also argued that, to rely on the brick wall on the neighbouring property to contain the emissions from the use conducted on the site, would be contrary to orthodox planning principles. Generally, the emissions would be contained on the emitter's land and the 15‑metre setback was deemed to achieve this. This proposal instead relies on a structure on the neighbouring land which could be removed or modified.
In commenting on the precedents of No 19 and No 20 Keymer Street, the respondent said it would be inappropriate to consider these as exceptional circumstances. Mr Davidson said that the stables built across the rear boundary of No 19 Keymer Street, the property adjoining the rear of the site, were approved in 1984 when there were no local laws prescribing setbacks from commercial premises. This is an historical fact, and may be an anomaly, but in the submission of the respondent, should not be used as a precedent to justify an approval for the stables on the site.
Mr Davidson said the other site, No 20 Keymer Street, has had three approvals for stables but they have not yet been built. The initial approval was granted in 1997 when no relevant setback from commercial premises was required. The subsequent 2000 approval did not take into account the Stables Local Law, adopted in 1999, and the 2007 approval, which will expire in the middle of 2009, appears to have been on the basis of the earlier approvals, without regard to the Stables Local Law. He pointed out that the design of the development for No 20 Keymer Street was different, in that it was roofed and had a large wall that served to enclose two of the stables almost completely. The respondent said that this should not operate as a precedent for what is now being sought. Counsel for the respondent said it would be an odd result if two developments seen as undesirable precedents would be used as justification for a similar form of development on the site.
In response to the suggestion that a masonry wall on or just inside the boundary of the site would ameliorate the impact of the proposal, the respondent said that the wall would have to be to the order of 3.4 metres high. This might potentially result in reducing or ameliorating off‑site impacts but it is not supported. A wall of this height becoming common is not considered an appropriate outcome along the boundary between the two zones.
In commenting on the off‑site amenity impacts of noise, dust, odour and stable fly generated by stables, the respondent said these should result in a buffer being imposed, and the buffers applied in the Stables Local Law are very lenient. It was the evidence of Mr Davidson that they are the most lenient in the state, and this was because the respondent wants to encourage residential and stable development on the same and abutting lots within the zone. Given that the setback requirements are limited, it is, in the submission of the respondent, difficult to justify a further reduction of those very lenient setbacks.
The reference by the applicant to the adoption of a management plan to mitigate off‑site impacts was considered by the respondent not to be an exceptional circumstance. The setbacks are included in the Stables Local Law, which also requires the careful management of stables; that is, the setback is prescribed on the assumption that, in any event, there will be at the same time proper management of the stables. It would be expected that all of the premises within the Residential and Stables zone would be properly managed.
The respondent said that, under the current planning controls and Stables Local Law, it has been decided that stables be set back from certain uses. It was therefore not appropriate to allow the development of stables against a boundary common with a lot in a different zone on which those uses may be developed.
Counsel for the respondent said that, when the list of items identified by the applicant is considered together, there is the same result as when the items are considered individually; that is, the facts and circumstances are not necessarily unique or uncommon in this locality. There would be potentially any number of lots adjacent to or close to the Mixed Use zone boundary which would suffer from similar difficulties. In the submission of the respondent, there are no exceptional circumstances to justify any variation of the required setback from the neighbouring commercial premises.

Comment

The parties identified the Stables and Residential zone as bound by the Ascot racecourse and Raconteur Drive in the south‑west, the Swan River to the north‑west, Tonkin Highway in the north‑east and the Mixed Use zone fronting Great Eastern Highway in the south‑east. The distance along the common boundary with the Mixed Use zone is about 1.4 kilometres. The zoning plans of DZS 14 show about 17 lots adjacent to this common boundary, with most lots similar in dimensions to the site. Two of those lots, No 19 and No 20 Keymer Street, have been mentioned as having, respectively, stables existing and stables approved but not yet built, similar in configuration to those applied for.
The Tribunal has formed the view that the location and dimensions of the site are not 'uncommon, unusual, special or out of the ordinary course'. The Tribunal has also accepted that the dimensions of the site and the location of the house do not preclude the development of stables consistent with the 15 metre setback standard of the Stables Local Law. The 23‑metre long and 7.5‑metre high side wall of the building on adjacent Lot 503 might be a circumstance different from those of other residential and stable lots, although there was no evidence of what development was on other Mixed Use zoned lots with a common boundary with the Residential and Stables zone.
Within the heart of the Residential and Stables zone, a setback from office or commercial premises does not give rise to any problem, because those uses are not permitted. As in Vary Enterprises Pty Ltd, depending upon the scale and conduct of the use, there might be circumstances where a discretionary use is approved, which, in this case, would be uses allowable in the Residential and Stables zone. The issue of setbacks from commercial premises only arises at the perimeter of the Residential and Stables zone, as has occurred in this case. The Tribunal is inclined to the view that the current use of the neighbouring lot might be subject to redevelopment in the future. It is considered appropriate, therefore, that the proposed new stable development includes on‑site standards to mitigate effects of the use, rather than rely on the current use made of the neighbouring lot.
In respect to the nearby examples of the stable approvals referred to by the applicant at No 19 and No 20 Keymer Street, these have been noted by the Tribunal as an exception to the setback standards now in place. The stables at No 19 Keymer Street were, on the evidence of Mr Davidson, built in 1984 before any setback provisions were in place. As the applicant states, these stables have an impact on local amenity, particularly of the land use at Lot 503, and will have an influence on any future development of that site. The Tribunal does not accept, however, that this impact should be increased, however slightly, by using the presence of these stables as a basis for setting aside the setback requirements when stables are proposed on further lots.
There was considerable discussion at the hearing about noise, dust and odour associated with stable activity, and about the potential for stable fly to breed at poorly managed stables. The applicant submitted that the required stable management would mitigate or eliminate these concerns so that they were not an issue. The setback required to address any health aspects could therefore be relaxed. In this regard, the applicant also made reference to the need for an application for the annual renewal of the stable licence and the ongoing monitoring this would impose on the conduct of the stable activity.
The Tribunal notes that all stable premises require management practices that are of sufficient standard to address concerns of noise, dust, odour and flies in order to have a licence renewed. This, of itself, is the common practice, and so it is a reason for allowing a complying stable use to continue, not to provide a basis for relaxing the standards that might otherwise apply to stables in a particular location, such as the site.
The Tribunal has formed the view that there are not individual exceptional circumstances or a combination of circumstances that are together exceptional that justify a variation from the required setback for stables.

Whether, notwithstanding the non‑compliance with the setbacks prescribed by the Stables Local Law, discretion available under DZS 14 should be exercised to approve the development and allow for horses to be stabled in all four stalls on the site

Clause 10.16.1 of DZS 14 provides a general discretion to approve a development that does not comply with a prescribed standard or requirement. Clause 10.16.3 of DZS 14 provides that this discretion may only be exercised if the Council (or the Tribunal on review) is satisfied the development would be appropriate, having regard to the general criteria outlined in cl 10.2. of DZS 14, and if the non‑compliance 'will not have any adverse effect on the occupiers or users of the development or the inhabitants of the locality or upon the likely future development of the locality'.
In respect of the Residential and Stables zone, the general criteria to consider are at cl 10.2.3 of DZS 14, which states:
The provisions of the R10 Code with regard to 'open space' and 'minimum setbacks from boundaries' only, shall apply to the 'Residential and Stables' zone. These requirements may be varied by Council in order to allow the satisfactory development of a residence and stables on a lot.
The council in exercising such discretion must be satisfied in regard to the following matters:
(a)That the landowner within the zone will develop the lot for both a residence and stables and that this intention will be supported by an application to commence development.
(b)The standard of the proposed development is of a sufficiently high quality appropriate to the area.
(c)That acceptable standards of residential amenity and health will be maintained or improved.
(d)The appearance of the streetscape will in the opinion of the council be either maintained or enhanced.
There was no real issue between the parties on three of these criteria. In respect of (a), the house and stables have been built. For (b), Mr Davidson said the stables were a common form of construction in the locality, and the house appears to be of a common standard for the locality, having regard to photographs provided by the witnesses. On (d), there will be no change to the streetscape if all stalls in the stable building are occupied by horses. Item (c) overlaps with the criteria required to be considered under cl 10.16.3, which also overlap with considerations under the first issue addressed above. The positions of the parties are as follows.

Applicant's position

The applicant said that, if all four stalls were used for horses and managed according to best practice, there would not be any adverse effect on the amenity or health of the occupiers or inhabitants of the site and locality, particularly of the commercial building on Lot 503. The stables at No 19 Keymer Street were said to be an example of the little impact stables would have on Lot 503, which has an amenity affected by the boat repair and servicing business and proximity to Great Eastern Highway. The large, blank side wall of the commercial building, it was said, would further mitigate any impact of stables at a reduced setback.
Mr Doyle emphasised the recent construction of the substantial commercial building on Lot 503. In his opinion, the building was likely to remain in place for many years and relaxation of the setback standard would have no impact on its continued use. Evidence was produced that the business leasing Lot 503 had no objection to reduced setbacks for the stables.
Stables and houses are already constructed on the neighbouring lots within the Residential and Stables zone. Mr Doyle commented that, if the stables were erected elsewhere on the site, then this might cause setback difficulties for the immediate neighbour should he wish to add habitable rooms on his lot.

Respondent's position

Mr Davidson said that good management practices would mitigate some impact of noise, dust, odour and flies. The impacts would not be eliminated altogether and the City required good management and setbacks, which had been reduced to the minimum considered acceptable.
As stated in the discussion on the first issue, the respondent said there was no evidence of any strong likelihood that the status quo will remain in the long‑term with respect to the use of the building on Lot 503, and that the building will not sometime be redeveloped. As stated above, the owner of Lot 503 said in correspondence to the City that it objected to the proposed stable development, as it might affect the 'likely future development' of his land.
It was the respondent's submission that the standards of DZS 14 should not be varied because of the adverse effect on the occupiers or users of development in the locality and upon likely future development of the locality.

Comment

It is the presence of the commercial building on Lot 503 and the discretion available to redevelop that lot for commercial, office and residential uses that is the basis of the setback requirement that affect the proposed use of the stables. In this regard, cl 10.16.3(b) of TPS 14 requires that consideration must be given to the effect on the future development of the locality when deciding whether to vary a standard or requirement which is prescribed.
The 23‑metre long wall of the commercial building on Lot 503 would ameliorate the impact of any reduced setback to the stables, but the Tribunal does not consider that, in this instance, the presence of the wall should be relied upon as a basis for relaxing the setback requirements. The Tribunal is of the view that the setbacks required by the planning controls are most properly provided on the site of the new stables.
In this instance, if the form of the existing development on the neighbouring lot is relied upon to relax setbacks on the site, then in the event of redevelopment of the neighbouring lot, the adverse effect of the stables would be a consideration; that is, the development of the stables would have a direct impact on the 'likely future development' of the Mixed Use site. The Tribunal is of the view that the presence of the blank wall of the commercial premises is not a circumstance of itself sufficient to warrant the setting aside of the required standard. The Tribunal has reached the conclusion that the general discretion available at cl 10.16 of DZS 14 should not be used to approve a non‑complying development.

Conclusion

The intention of the Residential and Stables zone is, as stated at cl 10.8.1 of DZS 14, to provide for compatible usage of land in proximity to Ascot racecourse for residences and stables. Clause 10.8.5 of DZS 14 states that consideration of setbacks is subject to the provisions of the Stables Local Law. Clause 13(1) of the Stables Local Law requires a setback of not less than 15 metres from any commercial premises. There is a commercial building on neighbouring Lot 503 with a 23‑metre long blank wall 7.5 metres high set back 2 metres from the common boundary with the site.
The Council imposed a condition that three stalls of the stable building on the site only be used for storage because they are within 15 metres of the neighbouring commercial building. This setback may be varied under cl 13(3) of the Stables Local Law if exceptional circumstances 'justify a variation and no adverse health effect will arise as a result of the variation'. The first issue was whether there are exceptional circumstances to justify variation of the required setback. Exceptional circumstances are those which are, individually or together, uncommon, unusual, special, or out of the ordinary course.

The Tribunal is of the view that the location and dimensions of the site do not satisfy the requirements to be considered exceptional. The boundary between the Stables and Residential zone and the Mixed Use zone is about 1.4 kilometres long with many lots of similar location and dimensions to the site. The dimensions of the site and the location of the house do not preclude development of stables consistent with the setback standard of the Stables Local Law.
The high, blank side wall of the building on adjacent Lot 503 might be a circumstance different from those of other residential and stable lots. The Tribunal considers, however, that, despite the presence of the wall, the neighbouring lot might be subject to change in the future. It is orderly planning that any factors, such as setbacks, required to mitigate the impact of new stable developments in the locality, such as the present proposal, be accommodated on the development site, rather than the development relying on the current use made of the neighbouring lot to ameliorate impact.
The applicant referred to the examples of stables built at No 19 Keymer Street, and approved but not built at No 20 Keymer Street, which are an exception to the setback standards now in place. The Tribunal has noted these exceptions but has not accepted that they can be used as a basis for setting aside the setback requirements on the site and, more generally, on other similarly located lots.
The Tribunal notes that the proposed stables would include management practices of sufficient standard to address emissions and flies, and that they would be subject to monitoring and the issue of an annual licence. This is not unusual. It is the common practice in the Residential and Stables zone, and so is a reason for allowing a complying stable use to continue subject to the usual standards, rather than to provide a basis for relaxing the standards that might otherwise apply to stables in a particular location, such as the site.
The circumstances identified by the applicant were considered by the Tribunal to apply to most Residential and Stables zoned lots which have a common boundary with the Mixed Use zone. The Tribunal has formed the view that there are not individual exceptional circumstances or a combination of circumstances that are together exceptional that justify a variation from the required setback for stables.
The second issue was whether, notwithstanding the non‑compliance with the setbacks prescribed by the Stables Local Law, discretion available under cl 10.16 of DZS 14 should be exercised to approve the development and allow for horses to be stabled in the three additional stalls. This discretion is subject to there being no adverse effect on the inhabitants of the locality or upon the likely future development of the locality.
In this instance, the neighbouring lot has an existing commercial development which happens to have a high, blank wall 2 metres from the boundary. There are also in place particular planning controls which include setbacks for stables from commercial development. The Tribunal has formed the view that, in circumstances such as this where new stables are proposed, required setbacks are most properly provided on the site of the proposed development. If the form of the existing development on the neighbouring lot is relied upon to relax setbacks on the site, then, in the event of redevelopment of the neighbouring lot, the adverse effect of the stables will become a consideration; that is, the development of the new stables at reduced setback would have a direct impact on the 'likely future development' of the neighbouring Mixed Use site.
The Tribunal has found that the circumstances that exist are not sufficiently exceptional to warrant setting aside the setback requirements of the Stables Local Law, and that exercising the general discretion to allow non‑complying uses available under DZS 14 cannot be supported because it would have an effect on the likely future development of commercial and business uses on the neighbouring Mixed Use zoned land.
The Tribunal has therefore decided to dismiss the application, with the result that condition 3 and condition 4 remain as imposed by the Council.

Orders

1.The application for review is dismissed.
2.Condition 3 and condition 4 imposed on the application for retrospective planning approval for the development of the stables at No 14 Aurum Street, Belmont, imposed by the Council in its decisions of 15 July 2008 and 18 November 2008, are affirmed.

I certify that this and the preceding [76] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J JORDAN, MEMBER