BARONE and SHIRE OF SERPENTINEJARRAHDALE
[2017] WASAT 115
•2 AUGUST 2017
BARONE and SHIRE OF SERPENTINEJARRAHDALE [2017] WASAT 115
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2017] WASAT 115 | |
| 05/09/2017 | |||
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:380/2016 | 16 FEBRUARY 2017 FINAL SUBMISSIONS 5 MAY 2017 | |
| Coram: | MR J JORDAN (SENIOR SESSIONAL MEMBER) MR P CURRY (SENIOR SESSIONAL MEMBER) | 2/08/17 | |
| 24 | Judgment Part: | 1 of 1 | |
| Result: | Application for review allowed Conditional approval granted | ||
| B | |||
| PDF Version |
| Parties: | JOHN BARONE JENNY BARONE SHIRE OF SERPENTINEJARRAHDALE |
Catchwords: | Development Refusal Rural groundwater protection zoning Proposed organic avocado orchard Local planning scheme use class 'Orcharding' Use of cow manure Jandakot Groundwater Protection Area PeelHarvey Estuary Catchment Bassendean Sand Hydrological and nutrient modelling Nutrient and irrigation management plans |
Legislation: | Metropolitan Region Scheme Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, cl 67 Planning and Development Act 2005 (WA), s 252(1) Shire of SerpentineJarrahdale Town Planning Scheme No 2, cl 5.20, cl 5.20.2, cl 5.20.3 State Administrative Tribunal Act 2004 (WA), s 27, s 29(1) |
Case References: | Nil |
Summary | Proposed was the development of an organic avocado orchard, using drip irrigation and cow manure for soil improvement and plant fertilizer. The 2.06 hectare site was located in both the Serpentine catchment of the Peel-Harvey Estuary and the Jandakot Mound Public Drinking Water Source Area. State planning policies prepared for each of these two areas are concerned with avoiding pollution by nutrients transferred by groundwater from land uses. Guides have been published for the preparation of Nutrient and Irrigation Management Plans for proposed land uses and for nutrient mass balance and risk assessment analysis of proposed land uses.,The applicants produced the documents required to support the proposed development following exchanges with the local government and its consultants and with the then Department of Water and the Department of Agriculture and Food. ,The Tribunal determined after weighing the evidence before it and having regard to the submissions of the experts that, subject to appropriate conditions, there would essentially be, at worst, a quite minimal risk of nutrient pollution of the groundwater from the proposed use. The approval required the implementation of the Nutrient and Irrigation Management Plan, which included a system of bores for ongoing monitoring of groundwater quality on the site. ,The Tribunal decided to allow the application for review and to grant conditional planning approval for the proposed organic avocado orchard. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : BARONE and SHIRE OF SERPENTINEJARRAHDALE [2017] WASAT 115 MEMBER : MR J JORDAN (SENIOR SESSIONAL MEMBER)
- MR P CURRY (SENIOR SESSIONAL MEMBER)
- FINAL SUBMISSIONS 5 MAY 2017
- JENNY BARONE
Applicants
AND
SHIRE OF SERPENTINEJARRAHDALE
Respondent
Catchwords:
Development - Refusal - Rural groundwater protection zoning - Proposed organic avocado orchard - Local planning scheme use class 'Orcharding' - Use of cow manure - Jandakot Groundwater Protection Area - PeelHarvey Estuary Catchment - Bassendean Sand - Hydrological and nutrient modelling - Nutrient and irrigation management plans
Legislation:
Metropolitan Region Scheme
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, cl 67
Planning and Development Act 2005 (WA), s 252(1)
Shire of SerpentineJarrahdale Town Planning Scheme No 2, cl 5.20, cl 5.20.2, cl 5.20.3
State Administrative Tribunal Act 2004 (WA), s 27, s 29(1)
Result:
Application for review allowed
Conditional approval granted
Summary of Tribunal's decision:
Proposed was the development of an organic avocado orchard, using drip irrigation and cow manure for soil improvement and plant fertilizer. The 2.06 hectare site was located in both the Serpentine catchment of the Peel-Harvey Estuary and the Jandakot Mound Public Drinking Water Source Area. State planning policies prepared for each of these two areas are concerned with avoiding pollution by nutrients transferred by groundwater from land uses. Guides have been published for the preparation of Nutrient and Irrigation Management Plans for proposed land uses and for nutrient mass balance and risk assessment analysis of proposed land uses.
The applicants produced the documents required to support the proposed development following exchanges with the local government and its consultants and with the then Department of Water and the Department of Agriculture and Food.
The Tribunal determined after weighing the evidence before it and having regard to the submissions of the experts that, subject to appropriate conditions, there would essentially be, at worst, a quite minimal risk of nutrient pollution of the groundwater from the proposed use. The approval required the implementation of the Nutrient and Irrigation Management Plan, which included a system of bores for ongoing monitoring of groundwater quality on the site.
The Tribunal decided to allow the application for review and to grant conditional planning approval for the proposed organic avocado orchard.
Category: B
Representation:
Counsel:
Applicants : Dr P Keating as agent
Respondent : Dr J Davies as agent
Solicitors:
Applicants : Bioscience Pty Ltd
Respondent : Shire of Serpentine-Jarrahdale
Case(s) referred to in decision(s):
Nil
Introduction
1 These proceedings involve an application brought by J & J Barone (applicants), pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), for review of the deemed refusal of the Shire of SerpentineJarrahdale (Shire, Council or respondent) to grant development approval for an organic avocado orchard at Lot 51 King Road, Oakford (site).
2 The Tribunal issued its decision allowing the application for review and granting conditional approval on 2 August 2017. Following are the reasons for that decision.
Site and locality
3 The site is rectangular in shape with an area of approximately 2.06 hectares, frontage of about 150 metres to King Road at the eastern side and a depth of about 138 metres. The site gently slopes from about 25.5 to 23.5 Australian Height Datum from the northwest corner to the southeast corner.
4 The site has long been cleared of native vegetation and has been used for agricultural activity. It currently accommodates a centrally located house and sheds.
5 Surrounding lots can generally be described as either similar in size or larger, of similar soil and topography. Some lots have remnant vegetation, and there is a mix of rural land uses including nurseries, horse training facilities.
Proposed development
6 On 10 June 2016, the applicants applied to the Shire for planning approval for the development of an organic avocado orchard on the site. The application included a document titled 'Nutrient Management Plan' approved by Dr Peter Keating, an expert in soil science and plant nutrition.
7 The Shire sent a copy of the application to various bodies, including the Water Corporation and the then Department of Water and Department of Agriculture and Food.
8 Between the date when the development application was lodged with the Shire and the filing of the application for review with the Tribunal on 30 November 2017, the applicants, through Dr Keating, provided to the Shire, the Department of Agriculture and Food and the Department of Water, in response to questions and comments, additional and supplementary submissions. The further information provided by the applicants included scientific literature on avocado orchard nutrient and irrigation requirements, information on the composition of cow manure and its application to new and established orchards and a nutrient mass balance and risk assessment analysis.
9 The proposed development put before the Tribunal included supporting information to be found within the copies of the various documents and submissions the applicants provided to the Departments and the Shire.
10 The proposed development was described as a 'low intensity organic avocado orchard' comprising:
• around 400 avocado trees;
• soil amendment by the application of cow manure;
• a 30 year lifetime for the orchard;
• water to be supplied by drip irrigation;
• application of mineral salts, including nitrogen and phosphorus, in organic form as compost and composted cow manure;
• a fire break;
• a 5 metre wide vegetated screen around the perimeter of the lot;
• two storage water tanks; and
• the landowners establishing and operating the organic orchard part-time with no other staff proposed.
11 How the orchard is to be established and maintained and the methods to be used to irrigate and fertilize the trees at various stages and the various responses to the applicants' submissions is addressed in the discussion below.
Planning framework
12 The site is zoned 'Rural Groundwater Protection' under the Metropolitan Region Scheme (MRS). The site is zoned 'Rural Groundwater Protection' under the Shire of Serpentine-Jarrahdale Town Planning Scheme No 2 (TPS 2 or Scheme).
13 The proposed use falls within the use class 'orcharding', which, under cl 5.20.2 of TPS 2 (as published by the Western Australian Planning Commission, 22 August 2017), is an 'AA' use in the zone. This means orcharding is not permitted unless consent is granted by the Council (or the Tribunal on review) exercising its discretion.
14 In addition, TPS 2 cl 5.20 'Rural Groundwater Protection Zone' also includes the following:
5.20.1 The use and development of land within the Rural Groundwater Protection Zone shall be in accordance with the provisions of the Scheme and Statement of Planning Policy No. 2.3 (Jandakot Groundwater Protection Policy).
...
5.20.3 In exercising its discretion in respect of the uses specified under clause 5.20.2, and having regard to the provisions of Statement of Planning Policy No. 2.3, the Council shall only permit such uses where it is satisfied that the use does not involve excessive nutrient application or clearing of land, or risk of damage to any on site vegetation or risk of contamination to the Jandakot Groundwater Protection area.
15 The site is located within a Priority 2 (P2) area of the Jandakot Mound Public Drinking Water Source Area (Jandakot PDWSA). Under State Planning Policy 2.1 Peel-Harvey Coastal Plain Catchment (SPP 2.1) the site is located within the Serpentine River Catchment. The requirements and associated documents relevant to the assessment of development applications within these locations are referred to in the discussion below.
16 The then Department of Water, in a letter to the Shire dated 20 July 2016 in response to the original (June 2016) version of the development application, advised that the proposal was considered as conventional in-ground horticulture and listed seven policies and guidelines relevant to the consideration of such a development application. These included SPP 2.1 and State Planning Policy 2.3: Jandakot Groundwater Protection Policy (SPP 2.3).
17 With regard to SPP2.1, cl. 6.6 provides:
...
6.6.2 In consideration applications for the use of land or a rezoning for intensive agriculture, a local authority shall take account of the environmental advice of the EPA and land suitability advice from the Department of Agriculture.
6.6.3 The responsible authority will take account of soil types, slope and groundwater flows and surface water drainage and proximity to the Estuary in considering the suitability of land for intensive agriculture use. Generally only land on the foothills of the Darling Scarp or deep yellow Spearwood soils on the Western edge of the catchment have suitable qualities to sustain intensive agriculture apart from such uses which rely on hydroponics and thereby do not result in contamination of groundwater or surface drainage, or include red mud, or other suitable soil amendment, at rates recommended by the Department of Agriculture[.]
18 The former Department of Agriculture, through two name changes is now part of the Department of Primary Industries and Regional Development (DPIRD). The Department of Water is now within the Department of Water and Environmental Regulation (DWER). The relevant departments will be referred to by these current acronyms in the discussion below.
19 ThePlanning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regulations) at Sch 2, cl 67 require that when considering a development application regard be had to relevant items that are listed in the clause. Relevant to this matter from cl 67 are:
(a) the aims and provisions of this Scheme and any other local planning scheme operating within the Scheme area;
(b) the requirements of orderly and proper planning including any proposed local planning scheme or amendment to this Scheme that has been advertised under the Planning and Development (Local Planning Schemes) Regulations 2015 or any other proposed planning instrument that the local government is seriously considering adopting or approving;
(c) any approved State planning policy;
(d) any environmental protection policy approved under the Environmental Protection Act 1986 section 31(d);
(e) any policy of the Commission;
(f) any policy of the State;
(g) any local planning policy for the Scheme area;
...
(m) the compatibility of the development with its setting including the relationship of the development to development on adjoining land or on other land in the locality including, but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the development;
(n) the amenity of the locality including the following
(i) environmental impacts of the development;
(ii) the character of the locality;
(iii) social impacts of the development;
(o) the likely effect of the development on the natural environment or water resources and any means that are proposed to protect or to mitigate impacts on the natural environment or the water resource;
...
(r) the suitability of the land for the development taking into account the possible risk to human health or safety;
(x) the impact of the development on the community as a whole notwithstanding the impact of the development on particular individuals;
(y) any submissions received on the application[.]
The Tribunal's powers on review
20 It is appropriate for the Tribunal to mention at this point that the respondent asserted in opening submissions, and stated in a letter from the Shire to the Tribunal dated 15 March 2017, that:
In accordance with clause 5.19.3 [sic] of the Shire's Town Planning Scheme No.2 it is considered that the Tribunal is not able to exercise discretion to permit the proposed land use as there is still doubt and the Shire is not satisfied 'that the use does not involve excessive nutrient export' or 'risk of contamination to the Jandakot Groundwater Protection Area.'
21 The Tribunal would respond by saying that the Shire's understanding of the role of the Tribunal on review is misconceived. The State Administrative Tribunal Act 2004 (WA) (SAT Act), at s 27 'Nature of review proceedings' states:
(1) The review of a reviewable decision is to be by way of a hearing de novo, and it is not confined to matters that were before the decision-maker but may involve the consideration of new material whether or not it existed at the time the decision was made.
(2) The purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review.
(3) The reasons for decision provided by the decision-maker, or any grounds for review set out in the application, do not limit the Tribunal in conducting a proceeding for the review of a decision
22 In Guide to Proceedings in the Western Australian State Administrative Tribunal (Lawbook Co Thomson Reuters, 2012) (Guide to Proceedings) by Dr Parry and B De Villiers at paragraph 303, it states 'The review of a reviewable decision by SAT is by way of a fresh consideration of the matters in issue (a "hearing de novo")'.
23 At paragraph 304 of this Guide to Proceedings, it states that '[w]hen dealing with review proceedings, SAT has the functions and discretions corresponding to those exercisable by the decision-maker in making the reviewable decision' (SAT Act s 29(1)).
24 This is sometimes colloquially referred to as the Tribunal, on reviewing a reviewable decision, 'stands in the shoes' of the original decision-maker. This means that in this proceeding, the Tribunal has powers and discretions corresponding to those of the Shire, and so cl 5.20.3 of TPS 2, must be viewed as providing that:
[The Tribunal] shall only permit such uses where it is satisfied that the use does not involve excessive nutrient application or clearing of land, or risk of damage to any on site vegetation or risk of contamination to the Jandakot Groundwater Protection area.
25 The Tribunal, in examining the evidence and submissions in this matter, has sought to determine whether it is 'satisfied' as required by cl 5.20.3 of TPS 2, as well as considering all the other matters to which it is required to have regard.
The Issues
26 In identifying what it considered the issues, the respondent referred to LPS regulations Sch 2, cl 67(m), (n), (o), (r), (x) and (y). When questioned on why there was no expert called or evidence advanced in respect to what might be termed the ‘planning considerations' of cl 67(m), the respondent said it did not wish to advance arguments in respect to the considerations of cl 67(m). Having regard to the facts of the matter, the Tribunal had no reason to question this approach.
27 It was agreed by the parties, and the Tribunal concurs, that the issues that fall to be determined in this matter are in respect to environmental concerns, namely:
1) Whether the proposed development will cause nutrient pollution of groundwater in the proclaimed public drinking water supply area; and
2) Whether the proposed development will result in nutrients being exported into the Peel-Harvey Estuary system.
28 The Tribunal will address these issues in the discussion below.
Discussion
29 At the hearing for this matter on 16 February 2016, the applicants called Dr Keating as an expert witness. The respondent called Mr Andre Stasikowski, an engineer and environmental scientist specialising in surface and groundwater quality, and resources and numerical modelling. As will be referred to below, the respondent also subsequently filed written expert opinion from Mr Adam Pratt, a consultant soil scientist and hydrologist, to which Dr Keating was afforded the opportunity to provide written responses.
Agency referral responses
30 The Shire prepared a table setting out the first responses to the development application it received from the various bodies consulted. DWER's advice to the Shire confirmed that such a proposal within the Serpentine Catchment would be required to achieve an export rate of total phosphorus less than 0.29 kilogram per hectare per year, in accordance with Hydrological and Nutrient Modelling of the Peel-Harvey Catchment Water Science Technical Series Report No. WST 33 (DOW, 2011) (WST 33). Any proposed groundwater abstraction would be subject to licensing by the DWER.
31 DWER confirmed the site as being within the Jandakot Underground Water Pollution Control Area, and as a declared P2 area for low intensity development. While orchards in such zoning were deemed a compatible land use, subject to conditions, given the ' ... potential for significant nutrient export to the Peel-Harvey Estuary System ...'. DWER did not support this proposal in its current form. The advice also considered that the Bassendean Sand geology of the site made it unsuited to conventional in-ground horticulture, while also noting that:
… innovative horticulture practices may be considered appropriate to this site. The onus of proof will rest with the proponent.
32 In this regard, Dr Davies for the Shire emphasised that assessing parts of the technical content of the application and the structure and headings of its component documents posed difficulties for the Shire. Some areas of evident confusion were also commented on in initial responses by both DWER and DPIRD. Some of those assessment difficulties evidently continued after the applicant supplied further information, with subsequent addendums and correspondence both before and after an amended version (20 September 2016) of a document initially titled 'Nutrient Management Plan' but also referred to as a 'Nutrient and Irrigation Management Plan' (NIMP).
33 Appearing for the applicants, in his opening Dr Keating acknowledged this confusion, explaining this was due in part to a redrafting of NIMP so that operating methods and volumes of substances being applied were consistent with those stated in the nutrient balance and risk assessment which had been added to the documentation. Further confusion had arisen over nutrient calculations involving figures for nutrient content, mass and volume of materials. Dr Keating also emphasised the importance of this subsequent risk assessment in assessing the proposal, believing the emphasis needed to be on understanding the nutrient discharge risk from the organic system, which was as an outcome more important than considering the actual amounts of nutrients contained in compost or manure being used.
34 A letter to the Shire from DWER (dated 1 September 2016) provided advice on further information received from the applicants, reiterating that the Department had concerns with the ability of such an orchard to perform within nutrient targets due to the soil type and a perceived '… need for the operation to produce sufficient crop to remain commercially viable, which has the potential to drive onsite fertilisation practices.' DWER otherwise deferred to the expertise within DPIRD to assess the proposed horticultural practices against those concerns.
35 DPIRD comments on the June 2016 version of proposal documents emphasised the high to extreme risk of phosphorus export from such a site on Bassendean 1 soil-landscape unit and said that the nutrient management plan did not sufficiently describe the nutrient balance of the site for the proposed orchard production system and crop. The Department also doubted the effectiveness of foliar fertiliser applications, given the waxy leaf surface of avocado trees.
36 The Departmental submissions on the applicants' additional information cited a significant risk of over-application of organic fertilisers and the risk of nutrients in the soil being mobilised by large rainfall events. They considered the proponent would be required to demonstrate that the risk to the environment is low in the long-term. Support for approval could only be given if there were an approved NIMP, and a groundwater monitoring and reporting system which included threshold values for water quality and which would be used to trigger any necessary enforcement of compliance.
37 Dr Keating acknowledged in his witness statement (Exhibit 7 at paragraph 23) that the original Nutrient Management Plan his company had lodged was 'somewhat perfunctory' having taken the view that the proposed development of a small organic avocado orchard would be viewed as 'environmentally benign'. He had prepared the revision with a Nutrient Mass Balance and a Risk Assessment in response to concerns raised in the advice from the agencies.
38 Mr Stasikowski, under questioning from the Tribunal acknowledged that in the absence of opposing evidence and data from the respondent concerning the proposal or its site characteristics, in general he accepted the data provided by Dr Keating, but stated that he held different interpretations of its implications for nutrient management. Mr Stasikowski was also critical of the layout of data and the presentation of the applicants' documents, which had caused him confusion at a number of points.
Proposed method of organic horticulture
39 In his evidence as a witness, Dr Keating outlined key elements and stages in the establishment and maintenance of the proposed organic avocado orchard. He stated that he knew of no other such orchards on the coastal plain or within the Peel-Harvey Catchment.
40 In one of the supplementary documents provided to the Shire, DWER and DPIRD on behalf of the applicants, including attached to an email dated 9 September 2016, Dr Keating set out the proposed method for orchard establishment. This would involve the organic management of trees from their planting through early fruiting and gradual increases in fruit production to a steady state over a period of 10 years.
41 Young trees would be planted into 1m² planting beds into which 150 litres for finished commercial compost would be blended into the top 40 centimetres of the soil. Trees would be irrigated by licensed groundwater during the growing season, using a drip irrigation system to provide sufficient water in order to wet the topsoil profile while preventing drainage below the relatively shallow root zone characteristic of avocado trees. For fertiliser, commercially sealed and bagged composted cow manure would be spread in weekly applications and folded into the topsoil under every tree during the growing season each year. The amount of composted manure applied was expected to be adequate to provide complete nutrition and volumes would be calibrated against leaf tissue analysis. The nutrient status of fruiting trees would be further monitored by the applicants using leaf tissue analysis to identify any developing nutrient deficiency, which could then be addressed by provision of nutrients in the form of supplementary foliar spray to individual trees. No synthetic or chemical fertilisers would be used.
42 Under questioning from the Tribunal, the witnesses addressed DWER's (June 2010) Water Quality Protection Note No. 33 Nutrient and Irrigation Management Plans (WQPN 33). Dr Keating considered that he had followed the structure for a NIMP as set out in that document and its accompanying departmental guidance note. Mr Stasikowski said he considered WQPN 33 to be more of a general document. Both witnesses agreed that WQPN 33 section 22 headed ‘Groundwater protection' was relevant to this proposal. This states:
Trace contaminants and nutrients leached below the root zone may harm groundwater quality. To limit harmful levels of pollutants harming groundwater, options include:
Amending sandy soils with organic rich matter (humus including plant compost) and iron-rich material (loam) to increase the moisture-holding capacity and minimise loss of nutrients, metals and pesticides. Any soil amendment program should be evaluated including the type of amendment (e.g. compost, loam, or bauxite residue), application rate, incorporation method and depth. Design details of the amendment program, expected performance and effective life should be defined[.]
43 Mr Stasikowski pointed out that such soil amendments for sandy soils were commonplace. Dr Keating agreed this was so virtually regardless of the land use and emphasised that compost has very low total phosphorus content and the branded 'mulch' compost he had analysed contained only 0.0045% of dry weight in phosphorus.
44 Mr Stasikowski added that soil amendments sometimes had the capacity to protect groundwater further by reducing the permeability of the soil, to which Dr Keating replied that compost amendment creates an absorptive area for nutrients without necessarily changing water permeability or transmissivity of the soils, but changes could go either way.
45 Under further questions from Mr Curry, the witnesses also discussed the possibility of the site being underlain by iron-rich coffee rock. They substantially agreed that any such presence would enhance the nutrient retention properties of the deeper soil profile, but there was no evidence that any coffee rock was present on the site in question.
46 Questioned by Dr Davies, Dr Keating conceded that WPQN 33 also included a standard requirement for data on the phosphorus retention capacity of the vegetation root zone soil. He explained that where a soil was amended with compost, attempts at measuring either the Phosphorus Retention Index or Phosphorus Buffer Index had no real meaning, so he did not consider the tests relevant. He conceded that for this reason the NIMP had not attempted quantifying the expected effectiveness of the compost soil amendment in retaining phosphorus.
Nutrient mass balance
47 Dr Keating outlined mechanisms by which most phosphorus content being applied organically became bound in an increased underground humus, or within the biomass of soil bacteria and other micro flora developing around the root mass, or entered the tree and became stored biomass, or otherwise was exported from the site as fruit. With regard to nitrogen in fertilisers, some was lost by bacterial conversion into gas and the atmosphere. He argued that the 'sinks' of nutrients he described were supported by the best available international research.
48 Dr Keating made particular reference to organic orcharding methods and the nutrient requirements of avocado trees, which were known to be relatively low. Avocado industry research in recent years had been led from California. Research references, including findings from drip irrigation and other trials, were appended to the application and were not challenged by the respondent or by Mr Stasikowski, who stated his recognition of Dr Keating's knowledge of soil science beyond his own areas of hydrological expertise.
49 In further explanation Dr Keating said:-
… the existing nutrient models tend to ignore the impacts of the soil micro flora and soil biomass and therefore, they're looking at the ratio of roots to trunk to shoots of trees, which is mostly in the forestry literature, rather than in orchard literature. It is not common, in orchard production, to have trees that are expected to have a very long life. It is more routine to pull out pome fruits and apples and things every 10 or 15 years because they're losing their productivity. I relied on University of California information because my experience with the avocado industry here is it really only blossomed about 15 years ago and it has grown very extensively in the last seven or eight years … It's not really long enough to validate those numbers. (T40-41; 16.02.17)
50 Ongoing disagreements over the nature and amounts of cow manure proposed to be used, and the nutrient loads they implied were addressed by the witnesses. Mr Stasikowski said that he had expected to see more transparency in the calculations of mass balance. He challenged calculations of nutrient content proposed to be applied, and the risk of exceedance of phosphorus discharge under an apparently serious noncompliance with guidelines for maximum allowable nutrient applications described in the NIMP. As Dr Davies put it to Dr Keating, the issue for the Shire was not so much the amount of nutrients being applied, but the amount that may leach from the site into the environment.
51 It was a matter of general agreement that a draft Model Local Planning Policy Horticultural development in Local Governments of the Peel-Harvey Coastal Plain Catchment(February 2016) recommended that Bassendean Sand soils were not suitable for horticulture due to nutrient export risk, and otherwise recommended a maximum of 6.5 kilograms per hectare per year of phosphorus which could be applied to horticulture. On 27 October 2016, Dr Keating wrote to DPIRD stating that in preparing the NIMP he had relied on the Shire of Murray's draft policy document to ensure the proposed rates of nutrient application were compliant with the best available guidance, as the respondent had no such local planning policy amendment under TPS 2 (Respondent's Bundle of Documents at page 227).
52 Mr Stasikowski's interpretation of the proposed phosphorus application was of a very considerable exceedance of the maximum recommended rate for fertiliser applied to horticulture within the catchment. In his experience, such an amount, which included soluble nutrients applied on the surface and close to a shallow water table, had potential for impact from leaching.
53 In explaining this discrepancy, Dr Keating pointed out the factors which combined into ongoing misunderstandings of the amount of phosphorus proposed to be applied in the orchard. First, the nutrient content of the composted organic cow manure to be used was known from the manufacturer and submitted as a table of content specifications (Respondent's Bundle of Documents at page 124) and which quantified the content of phosphorus. This was elemental phosphorus, not phosphate, which has a different and much higher mass. The proposed daily application was 200 grams dry weight, meaning 500 millilitres per application because its bulk density included water. The manure would be applied only during a growing season of about 20 weeks, not throughout the year. The nutrient mass balance figures he had supplied showed a 6.3 kilogram maximum for the orchard, thereafter slowly decreasing as the annual phosphorus application for the whole orchard of 1.6 hectares. This was, at 3.9 kilograms per hectare per year as the maximum, well within the recommended limit of 6.5 kilograms per hectare per year.
54 Dr Keating said monitoring by leaf tissue analysis would reveal any developing nutrient deficiency in an individual tree, which is best addressed by foliar sprays applied in dry weather, which were proven effective and a preferred method for avocado trees in California. Published Californian investigations submitted with the NIMP (Respondent's Bundle of Documents pages 143-144) showed that synchronising the timing of fertiliser applications with plant nutritional demand is critical for improved production of avocado fruit. The response from small controlled supplements of nitrogen by spraying had been demonstrated as more effective than feeding additional phosphorus. Fruit production rates were mainly controlled by pollination and leaf health and were not driven higher by further application of phosphate fertilisers. Dr Keating said the results of foliar spraying practice rebutted the opinion expressed by DPIRD that this would not work efficiently due to the type of leaf surface. Avocado foliar sprays were increasingly being adopted for use in Western Australia.
55 Dr Keating acknowledged the concerns and caution regarding the proposal and its siting expressed in the advice from the agencies. He went on explain part of his response to those expressed concerns was the mass balance calculation and the Nutrient Export Risk Assessment and Management, neither of which normally formed parts of a NIMP. The organic approach with such rates of phosphorus and other nutrient application, in the proposed form of composted cow manure within organically amended soil, would be in accordance with WPQN 33 and would not, in his view, pose any risk of leaching to groundwater. In his witness statement Dr Keating stated that his company has undertaken a four-year research project into crop nutrition using manure and composts on sandy soils at a property nearby on Cumming Road. He said they had found such manure would have a nutrient 'half-life' at the surface of only six days, so the manure to be applied under each tree would lose its nutrients, absorbed into the soil under the trees, very fast. This was the result of mineralisation by bacterial breakdown partly by soil bacteria. He further argued that the mass balance used was the most likely, sciencebased quantification of the fate of nutrients being applied consistently over a 10-year orchard development period and into a steady state of fruit production.
56 In questioning Dr Keating, Dr Davies pointed out that in the mass balance submitted there was an absence of reference to any risk category or 'sink' for phosphorus being leached from the soil, as an identifiable risk from an orchard, both during normal operations or from unusually heavy rainfall events. Dr Davies suggested that rainfall could leach nutrients, either by surface drainage or as infiltration to groundwater.
Nutrient export risk assessment and site characteristics
57 Dr Keating said that risk management was not about denying that risk existed; it is about quantifying that risk and looking at its probability of occurring.
58 The applicants' Nutrient Export Risk Assessment conveyed to DPIRD stated that:-
…
The context is the establishment then ongoing operation of an organic avocado orchard which uses compost to amend soil and provide initial plant nutrition, then the annual application of manure based fertilisers and organic foliar nitrogen.
The risk is the release of nitrogen and phosphorus from the plantation into the superficial groundwater, and thereafter carriage of those nutrients via groundwater flows into the Peel Harvey estuary.
Analysis of the risk of nutrient export requires consideration of the source (the proposed development and composts and manures applied to it), the sink (the Peel-Harvey system) and the pathway. The pathway (groundwater flow) is complex.
59 Dr Davies asked Dr Keating to explain how it could be that in the mass balance calculation, apparently all the phosphorus applied would go into the leaves, roots, trunk or soil mass and none will leave and contaminate the environment.
60 Dr Keating said that under each tree with 150 litres of compost blended into the top 40 centametres of soil, in his understanding of the site (including observations from an on-site well, there was at least 3½ metres of soil to the water table, although he acknowledged that the Perth Groundwater Atlas put the water table at the site as being 3 metres. With the drip irrigation system, the wetting of soil by irrigation water would be confined to a shallow depth where roots could absorb the moisture provided. The worst case for nutrient discharge to groundwater by heavy rainfall would be a 100 year event annual exceedance probability (AEP). That figure for daily rainfall is 150 millimetres, most likely in summer when the deeper soil profile is mainly dry. With the infiltration rates shown by Bassendean Sands known to be typically 80 to 150 millimetres per hour, Dr Keating said the depth saturated from such an event, after infiltration on a site which he described as flat and from which there was no observed runoff, would not be expected to be deeper than 1m into the soil.
61 Mr Stasikowski pointed out that once within the soil profile, shallow groundwater can travel to discharge into off-site streams or drains and then reach the Peel-Harvey Estuary much quicker than moving as groundwater. Dr Keating responded that in his risk analysis he had examined groundwater pathways that were possible and concluded that a conservative assessment indicated groundwater from the site discharged at the surface towards the Serpentine River about 6 kilometres from the site.
62 Dr Keating said that the worst case on-site pollution incident he could visualize was a truck laden with composted cow manure crashing and spilling its load. The risk of pollution from such an incident was low because the manure was packaged in sealed bags and incident clean-up of any spillage would not be difficult.
63 Dr Davies asked why no similar risk assessment had been done in relation to the drinking water quality standards for the Jandakot Underground Water Pollution Control Area. Dr Keating replied that the standards for drinking water quality are set by the National Health and Medical Research Council (NHMRC) guidance. He had omitted to address this directly in the light of groundwater quality data he had obtained by laboratory testing at the site, and because groundwater direction at the site was known to be south-easterly. He had also noted the points of drinking water extraction from the mound were distant from the site, being north of Rowley Road where groundwater flow is easterly and perceived there was no real risk to the supply. Dr Davies said that DWER had disagreed. In their advice to the respondent on 20 July 2016, DWER stated that protection of drinking water sources is also a high priority relative to other land use values in P2 zoned areas, but noted orchards were a compatible land use subject to conditions.
64 Dr Keating confirmed the applicants' offer of ongoing groundwater monitoring which would detect any leaching of nutrients into the site's groundwater. This had not been offered in the original NIMP as this was not normally required in relation to the anticipated groundwater licence. But it had been offered in the risk assessment document, as means by which any residual risk of nutrient leaching and potential export from the site could be detected, reported and managed by the applicants.
Post-hearing submissions
65 In the course of the hearing, it was found that the NIMP comprised the original NIMP plus further additions and amendments and supporting references included in Dr Keating's responses to the comments of DWER, DPIRD and the Shire and in his witness statement. To be clear on what the applicants now considered the NIMP, at the conclusion of the hearing, the Tribunal ordered the applicants to prepare, file and serve on the respondent for a response an amended and consolidated NIMP document with its relevant appendices.
66 Also arising from the evidence and submissions, particularly from Dr Keating in response to concerns expressed about future impact on ground water being unknown, the applicants were also ordered to prepare, file and serve on the respondent for a response, an amendment to be added to the NIMP setting out proposed monitoring of the groundwater, to include:
• bore design;
• bore location;
• parameter to be measured;
• monitoring frequency;
• reporting of results; and
• contingency threshold trigger points and responses
67 Dr Keating filed the applicants' consolidated NIMP with its appendices dated 'March 2017' on 1 March 2017.
68 In its submission dated 14 March 2017 in response to the applicants' consolidated and amended NIMP, the Shire listed several continuing areas of dissatisfaction. These included:
• a lack of site specific information having been presented characterising the actual site conditions;
• a lack of understanding of the actual pathways and receptors for nutrients to enter the superficial aquifer, in that the applicants' description of the nutrient pathway was considered to be incorrect and that Guildford Clay underlying the Bassendean Sand at the site would act to perch any groundwater infiltration where it met overlying sand;
• dissatisfaction with aspects of the risk management, including a higher risk of nutrient export during the years when manure is applied to young trees; and
• dissatisfaction with the number and design of the monitoring bores proposed.
69 The Shire's response was based on advice received from Mr Stasikowski and for the first time a report commissioned by the Shire from soil scientist Mr Pratt. It was Mr Pratt who made the assertions about the site being more properly identified as occurring within the Bassendean Soil Land System of the Pinjarra Plain with its underlying Guildford Clay.
70 In a response to the Shire's submissions and particularly the assertions about soil type, Dr Keating prepared for the applicants a response dated 16 March 2017 that included a description and photographs of a subsequent geotechnical investigation into the disputed soil unit type and depth to groundwater at the site. Dr Keating stated that two pits had been dug on 16 March 2017 in the lowest parts of the site. The pit at the south-west corner was described as loose dry white quartz sand dug to a depth of 3 metres, while the pit at the north-west corner did not collapse at that depth and was dug to 4 metres deep with no clay or moisture encountered. It revealed relatively shallow white sand, with more organic content, overlying yellow sand from 500 millimetres deep. Dr Keating submitted that this implied the water table was not less than 4.25 metres below the surface, and that the profile he revealed classifies the soil as Bassendean Sand 212Bs_B1a, a type rated by DPIRD as potentially suitable for in-ground horticulture. He also estimated this soil type was likely to extend through about 30% of Lot 51.
71 It is appropriate at this point to mention that Mr Pratt had not been present at the hearing and available for examination by the applicants. As said above, Mr Stasikowski had acknowledged that he was not a soil scientist. The Tribunal was of the view that it was important that the parties engage directly on soil type, as this was directly relevant to the Tribunal's understanding of potential nutrient export from the site. The Tribunal considered that the soil experts were provided with an opportunity for a full exchange on soil type.
72 In response to the Tribunal's subsequent invitation for the Shire to respond to the findings of Dr Keating's geotechnical investigation, the Shire attached a review of those findings by Mr Pratt dated 4 May 2017. That review concluded that, with the demonstrated presence of deep sands, clarification of likely flow paths for any nutrient discharge and the nature of the proposed operation (that is, drip irrigation), the risk of excess water and nutrients leaving or being exported from the site was reduced, and the risk of contamination to the Jandakot Groundwater Protection area was considered very low to low.
73 The Shire's response dated 4 May 2017 conveyed its considered view that the geotechnical information goes further to demonstrate a reduced risk of the proposal's nutrient applications contaminating the Jandakot Groundwater Protection area, but that it did not provide a clear representation of the whole of the site. The Shire remained of the view that the additional submission did not adequately satisfy the requirements of clause 5.20.3 of TPS 2.
Conclusion
74 The site is in the Peel-Harvey Catchment and in a P2 Groundwater Drinking Water Source Area. The issues identified recognised the significance of establishing any potential impact of the proposed orchard and its use of organic fertilizer on groundwater in such a locality.
75 The parties called experts in fields relevant to this matter to assist the Tribunal. The Tribunal had the benefit of the exchanges between the experts on whether the proposed use on this site might have an impact on groundwater, how monitoring might be carried out to establish if there is any impact and whether a proposed management plan would be adequate in the circumstances. The Tribunal has weighed the evidence and submissions of the parties and the witnesses, as set out above, and is satisfied that the proposed land use can be satisfactorily managed to avoid potential risk of nutrient contamination of the groundwater.
76 The Tribunal decided to allow the application for review and to grant conditional approval for the proposed development of the organic avocado orchard.
Orders
On the application determined by Senior Sessional Member J Jordan and Senior Sessional Member P Curry, it is ordered that:
1. For reasons that will be published in due course, the application for review is allowed.
2. The deemed refusal of the respondent to grant development approval for an avocado orchard at No 162 (Lot 51) King Road, Oakford, is set aside and a decision is substituted that development approval is granted subject to the following conditions:
(i) The landowner/applicant shall develop and manage an organic orchard according to the revised, consolidated Nutrient Management Plan dated March 2017 (Issue 3 dated 01/03/2017) in all aspects unless otherwise approved by the Shire of Serpentine-Jarrahdale.
(ii) The landowner/applicant shall within 90 days of this approval have prepared by an accredited Bushfire Planning Practitioner and submit to the Shire a Bushfire Management Plan in accordance with SPP 3.7 'Planning in Bushfire Prone Areas' and the associated 'Guidelines for Planning in Bushfire Prone Areas' (February 2017) and shall implement the plan to the satisfaction of the Shire of Serpentine Jarrahdale.
(iii) The landowner/applicant shall within 60 days from the date of this approval submit a revegetation and landscaping plan, which includes not less than 50% local native vegetation in the species list, to provide a visual buffer between the neighbouring properties and the orchard development to the satisfaction of the Shire of Serpentine-Jarrahdale.
(iv) The landowner/applicant shall within 90 days from the date of this approval commence to implement and maintain the revegetation and landscaping plan to the satisfaction of the Shire of Serpentine-Jarrahdale.
(v) The operation of the orchard is to be in accordance with the Department of Water's Water Quality Protection Note no. 34 (2006) - Orchards near Sensitive Water Resources.
(vi) The landowner/applicant shall within 60 days from the date of this approval submit design and location details prepared by a suitably qualified person for a minimum of 3 bores to be installed for the purpose of monitoring and reporting levels of phosphorus and nitrogen in groundwater, at appropriate point(s) where such groundwater is predicted to enter and to leave the site.
(vii) The landowner/applicant shall install the bores the subject of condition (vi) within 90 days from the date of this approval, to the satisfaction of the Shire of Serpentine-Jarrahdale.
- (viii) The landowner/applicant shall within 60 days of the completion of 12 months of baseline groundwater quality monitoring under condition (vi) submit contingency plans referred to at (29) and (30) in the Nutrient Management Plan dated March 2017, and notification mechanisms to be used. These must including details of the trigger points derived from baseline monitoring, and appropriate management responses and their means of verification by a suitably qualified person, to the satisfaction of the Shire of Serpentine-Jarrahdale.
- 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, SENIOR SESSIONAL MEMBER
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