CASTLE and SHIRE OF SERPENTINE-JARRAHDALE
[2019] WASAT 122
•28 NOVEMBER 2019
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: CASTLE and SHIRE OF SERPENTINE-JARRAHDALE [2019] WASAT 122
MEMBER: MS R MOORE, MEMBER
HEARD: 3 SEPTEMBER 2019
DELIVERED : 28 NOVEMBER 2019
FILE NO/S: DR 20 of 2019
BETWEEN: NOEL CASTLE
Applicant
AND
SHIRE OF SERPENTINE-JARRAHDALE
Respondent
Catchwords:
Town planning - Refusal of development application - Land use classification - Whether land use classified as Transport Depot or Commercial Vehicle Parking - Whether proposal satisfies purpose and intent of Rural Zone - Whether proposal satisfies objectives of State Planning Policy 2.5: Rural Planning - Whether proposal satisfies objectives and intent of Shire of Serpentine‑Jarrahdale Rural Strategy 2013 Review - Whether proposal will have a detrimental impact on the amenity of the locality
Legislation:
Metropolitan Region Scheme
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, cl 14, cl 67, Pt 9
Planning and Development Act 2005 (WA), s 252(1)
Shire of Serpentine-Jarrahdale Town Planning Scheme No 2, cl 3.2.4, cl 5.10.1, cl 7.1, cl 7.7, cl 7.7.2(b), cl 7.10, cl 7.10.2, cl 7.12, cl 7.12.7, cl 9.2, Pt 5, Table 5
State Administrative Tribunal Act 2004 (WA), s 31
Result:
Application allowed
Development approved with conditions
Category: B
Representation:
Counsel:
| Applicant | : | Mr R Underwood (acting as agent) |
| Respondent | : | Ms B Sandri (acting as agent) |
Solicitors:
| Applicant | : | Planning Solutions |
| Respondent | : | Urbanista |
Case(s) referred to in decision(s):
Attwell and City of Albany [2009] WASAT 38
Castle and City of Rockingham [2018] WASAT 98
John Cranston and Shire of Serpentine‑Jarrahdale [2019] WASAT 19
Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74; (2006) 150 LGERA 116
Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
These proceedings involve an application brought by Mr Noel Castle (applicant) pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) for a review of the decision made on 24 December 2018 by the Shire of Serpentine-Jarrahdale (Shire or respondent) to refuse development approval for a Transport Depot at Lot 140 Jarrah Road, Hopeland (land or site).
Original development proposal
On 23 October 2018 the respondent received an application from the applicant for development approval to construct a 20 metre wide, 50 metre long and 7.13 metre high steel shed on the site to house agricultural and earthmoving vehicles and machinery (original proposal). The proposed development included a hardstand area, driveway and new crossover to Punrak Road.
The applicant described the original proposal in more detail in his letter to the respondent dated 22 October 2018 as follows (Exhibit 2, page 8):
The transport depot will be used for the garaging of agricultural and earthmoving vehicles and machinery including articulated trucks, grain and fertiliser trucks, tractors, loaders, articulated dump trucks and excavators. Other machinery which will be garaged from time to time include screeners, rollers and crushers.
The vehicles and machinery will be used on infrequent occasions, and will be kept on the subject site between periods of work. Vehicles and machinery will be garaged on the subject site pending servicing and overhauls. As such, vehicle movements to and from the subject site will be infrequent with 0‑2 trips on most days.
Minor servicing of vehicles and machinery may occur on the subject site. Major overhauls and servicing will be undertaken at the proponent's workshops in East Rockingham and Baldivis.
No office or administrative activities will be undertaken at the subject site.
Overnight accommodation of persons is not proposed as part of this application.
Respondent's decision
The development application was advertised and four submissions were received. Two of these submissions were objections to the proposed land use within the Rural Zone and two submissions provided no objections subject to amenity concerns being addressed in relation to noise, wastewater disposal and stormwater disposal (Exhibit 2, page 126).
On 24 December 2018 the proposal was refused by the respondent under delegation for the following reasons:
1.The proposed development is inconsistent with the objective of the 'Rural' zone in accordance with Clause 5.10.1 of the Shire of Serpentine Jarrahdale Town Planning Scheme No. 2. The proposed use is not considered to be a rural pursuit or an associated activity (storage in nature) that supports the carrying out of rural pursuits in the 'Rural' zone and as such is inconsistent with the purpose and intent of the 'Rural' zone.
2.The proposal is contrary to Clause 67(m) of the deemed provisions which indicates that due regard should be given to the compatibility of a development with its setting, including but not limited to the likely effect of the height, bulk, scale, orientation and appearance of the development. The proposed outbuilding way of scale is incompatible with the rural zone.
3.The proposal is contrary to Clause 67(n) of the deemed provision which indicates due regard should be given to the amenity of the locality including the character of the locality and the environmental impacts of the development. The proposed development is not considered an appropriate land use in this locality by way of scale, and is likely to adversely impact on the amenity and character of the locality and is incompatible with its setting.
4.The proposal is inconsistent with the objectives of the Rural Strategy Review 2013, and would adversely impact upon the rural character of the area. (sic)
On 22 January 2019, the applicant applied to the Tribunal for a review of this decision. At the request of the parties, the Tribunal issued orders inviting the respondent to reconsider its decision under s 31 of the State Administrative Tribunal Act 2004 (SAT Act). The applicant submitted further information and an amended development proposal to be considered by the respondent.
Amended development proposal
The amended proposal reduced the area of the proposed shed from 1000m2 to 900m2 by reducing the length of the shed from 50 metres to 45 metres while maintaining a width of 20 metres. The overall height of the shed was reduced from 7.13 metres to 6.02 metres, although the wall height was increased from 5 metres to 5.5 metres. The amended plans proposed vegetation screening to the Punrak Road boundary and to the north‑eastern and north‑western sides of the proposed shed. A post and wire fence around the perimeter of the development area was also proposed.
On 17 June 2019, prior to the consideration of the amended proposal by Council, the applicant provided further information in a deputation note to the Shire President and councillors as follows (Exhibit 2, pages 113 ‑ 116):
The intent of the transport depot is [to] garage vehicles and machinery used on the proponent's farms and farm contract use. The equipment is used for work on rural properties including:
•Transporting wool, hay, produce an equipment to farms.
•Building farm roads and clearing fencelines.
•Building and maintain farm dams.
•Removing rocks and stumps on farms to improve productive land.
•Producing agricultural lime to reduce acidity of farmland.
…
Castle Equipment has over 140 pieces of equipment to service the mining industry, none of which will be garaged at the proposed transport depot. There are two reasons for this.
1.Firstly, the proposed shed would be nowhere need large enough to house the sheer volume of mining equipment owned by Castle Equipment. A shed and premises some 10-20 times larger than what is being proposed would be needed.
2.Secondly, Hopelands Road and Punrak Road are not approved by Main Roads for transporting the size and scale of equipment owned by Castle Equipment.
After receipt of this additional information the respondent's planning officers changed their recommendation from refusal to approval with conditions. This is because they were satisfied that there was 'a clear distinction between this proposal and broader non‑rural mining activities that a company related to the landowner [is] involved in'. They stated that they had formed the opinion that the Transport Depot would be used to support rural pursuits having considered the size of the shed, the category of the relevant road network and the activities that the vehicles will be associated with (Exhibit 2, page 134).
The respondent was to consider the amended proposal at its Council meeting on 17 June 2019 but deferred its decision to allow for the consideration of this additional information.
Respondent's reconsideration
The amended proposal was considered by Council at its meeting on 24 June 2019 where it resolved to reaffirm its decision dated 24 December 2018 refusing the development. It is the amended proposal that the parties agree is the subject of these review proceedings.
Site
The site is 64.62 hectares in area and is bounded by Jarrah Road to the north, Punrak Road to the east and No 538 (Lot 403) Punrak Road to the west. The site currently contains a commercial beef cattle stud farm, a single dwelling, an ancillary rural worker's dwelling, two storage sheds and two dams.
The proposed shed is to be located in close proximity and perpendicular to one of the existing smaller sheds on site. The new shed will be set back approximately 50 metres from Punrak Road and approximately 3 metres from the closest corner of the smaller existing shed. The proposed hardstand area encompasses both sheds. The new driveway and crossover will provide access to both sheds and is connected to the existing crossover closer to the small shed. The entire area is to be fenced off from the remainder of the property.
The Tribunal had a view of the site, including the existing shed, the marked location for the proposed shed, and the broader locality, in the company of the parties, on the afternoon before the hearing.
Planning framework
The site is zoned Rural under the Shire of Serpentine‑Jarrahdale Town Planning Scheme No 2 (TPS 2 or Scheme) and Rural under the Metropolitan Region Scheme (MRS).
Clause 5.10.1 of TPS 2 states that the purpose and intent of the Rural Zone is to allocate land to accommodate the full range of rural pursuits and associated activities conducted in the Scheme area.
Clause 7.1 of TPS 2 refers to the general appearance of buildings and the preservation of amenity.
Clause 7.7 of TPS 2 requires land and buildings to be developed with off street parking in accordance with Table 5 if the land use is specifically mentioned or as determined by the Council if it is not. Table 5 of TPS 2 does not specifically mention either Transport Depot or Commercial Vehicle Parking.
Clause 7.10 of TPS 2 addresses landscaping as follows:
7.10.1Unless otherwise approved by the Council landscaping shall be provided for all developments and shall be:
a)in accordance with the Site Requirements Table where appropriate;
b)in accordance with a landscaping plan approved by the Council; and
c)completed within thirty days of the occupation and use of the site.
7.10.2Landscaping in car parking areas shall comply with the following requirements:
a)planting shall be selected and maintained so as to minimise foliage between 0.5 metres and 1.5 metres above ground level;
b)the minimum width of landscaped areas shall be 1.5 metres and 2.0 metres when the landscaped area adjoins a street boundary;
c)all landscaping strips shall provide at least one pedestrian crossing point for every continuous ten metres of length.
Clause 7.12 of TPS 2 provides for tree preservation and planting. Clause 7.12.7 deals specifically with tree planting (rather than tree removal or damage) as follows:
Where the Council considers that a lot is deficient in tree cover, it may require as a condition on planning consent, and in the case of a single dwelling in respect of which no planning consent is required, as a condition of the issue of a building licence, that trees up to a maximum of 50 native trees per hectare be planted and maintained on the land the subject of the development or building licence application.
The site is located within the Poultry Farm Special Control Area (PFSCA) as marked on the Scheme Maps as 'PF'. The provisions applying to the PFSCA apply in addition to the general provisions of the Scheme and the provisions specific to the Rural Zone.
The objectives of the PFSCA are set out in cl 9.2 of TPS 2 as follows:
The general objectives of the Poultry Farm Special Control Area are:
1.To implement the Commission's Statement of Planning Policy No. 5 Poultry Farms Policy.
2.To implement Council's 2000 Rural Strategy Review, Poultry Policy Overlay, being Council's response to Statement of Planning Policy No. 5.
3.To provide Council with a policy framework acceptable to the broader community that will allow the poultry industry to relocate to within the Shire in an environmentally suitable manner.
The specific objectives of the Poultry Farm Special Control Area are:
1.To ensure that new poultry farms are established in locations suitable to their operational requirements.
2.To minimise the impact of poultry farms on residential, rural‑residential and other potentially incompatible uses.
3.To protect the interests of existing poultry farms in the face of encroaching development.
Under this clause an application for a new poultry farm or the expansion of an existing poultry farm will be determined by Council as a 'P' use provided the application satisfies certain listed requirements.
Clause 67 of Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (deemed provisions) sets out the matters to which the decision-maker must have due regard to when determining a development application under the Scheme.
State Planning Policy 2.5: Rural Planning (SPP 2.5) is an approved State planning policy for the purposes of cl 67(c) of the deemed provisions. SPP 2.5 applies to rural land and rural land uses in Western Australia, including land identified for rural living in an endorsed scheme or strategy. Relevantly, it is to be applied to local government decision‑making for development proposals on rural zoned land and for rural land uses on land zoned for other purposes: cl 3.3 of SPP 2.5.
The Shire of Serpentine-Jarrahdale Rural Strategy 2013 Review (Rural Strategy) provides an update to the Shire's 1994 Rural Strategy and was adopted by the Western Australian Planning Commission on 22 August 2017. The purpose of the Rural Strategy is 'to preserve and enhance the Shire's rural character and its role as an important economic contributor to the Shire and broader region' (Exhibit 2, page 197).
A rural strategy is not expressly included in the matters identified for consideration in cl 67 of the deemed provisions but the Tribunal, in John Cranston and Shire of Serpentine‑Jarrahdale [2019] WASAT 19 (Cranston), recently found at [38] that the Rural Strategy is relevant to the consideration of a development application on rural land in the Shire.
Issues for determination
In its statement of issues, facts and contentions, the respondent identified the following six issues as arising for determination by the Tribunal:
1)Whether the development is appropriate within the Rural Zone in accordance with cl 5.10.1 of TPS 2.
2)Whether the proposed shed is likely to 'injure the amenity of the locality' in accordance with cl 7.1 of TPS 2 which relates to the general appearance of buildings and the preservation of amenity.
3)Whether the development requires car parking in accordance with cl 7.7.2 (b) and associated landscaping in accordance with cl 7.10.2 of TPS 2.
4)Whether the proposal is consistent with objectives (a), (b) and (e) of SPP 2.5.
5)Whether the proposal is consistent with the objectives and intent of the Rural Strategy.
6)Whether the development satisfies Sch 2, Pt 9, cl 67 'Matters to be considered by local government' of the deemed provisions, especially cl 67(a), (b), (g), (m), (n), (y) and (zb).
In response, the applicant suggested that the issues could be rephrased as follows:
1.Whether the development is appropriate having regard to the purpose and intent of the Rural Zone under TPS 2, the objectives of SPP 2.5 and the Rural Strategy.
2.Whether the development will have a detrimental impact on the amenity of the locality.
3.Whether the development requires car parking and associated landscaping.
4.Whether a bushfire management plan or bushfire attack level assessment is required.
During the hearing the respondent accepted that neither a bushfire management plan nor a bushfire attack level assessment was required for the proposed development. They also conceded that, based on the town planning expert evidence, the development did not require the provision of further car parking on site. However, the respondent maintained its concern regarding the type of landscaping proposed for the vegetated screening, particularly in relation to the proposed non‑native plant species.
A further issue that arises for determination relates to the correct land use classification of the proposal. The applicant applied for development approval of a Transport Depot in his application dated 22 October 2018 and the respondent assessed the proposal as such. However, Mr Scott Vincent, a town planner giving expert planning evidence for the applicant, was of the opinion that the proposed development should be classified as a Commercial Vehicle Parking land use rather than a Transport Depot. It was Mr Vincent's opinion that the proposed development 'may partially fall under Transport Depot, but it would entirely fit under Commercial Vehicle Parking being the more specific of the two' (ts 49, 3 September 2019).
The Tribunal is of the view that the following six issues arise for determination:
1)Whether the proposed development is properly classified as either a Transport Depot or Commercial Vehicle Parking land use under TPS 2.
2)Whether the proposed development should be approved having regard to the purpose and intent of the Rural Zone under TPS 2, in particular cl 5.10.1.
3)Whether the proposed development should be approved having regard to the objectives of SPP 2.5, in particular objectives (a), (b) and (e).
4)Whether the proposed development should be approved having regard to the objectives and intent of the Rural Strategy.
5)Whether the proposed development will have a detrimental impact on the amenity of the locality (cl 7.1 of TPS 2 and cl 67(n) of the deemed provisions).
6)Whether the proposed development should be approved having regard to the matters set out in cl 67 of the deemed provisions, in particular (a), (b), (g), (m), (n), (y) and (zb).
Whether the proposed development is properly classified as either a Transport Depot or Commercial Vehicle Parking land use under TPS 2
Transport Depot is defined in Appendix 1 of TPS 2 as meaning land or buildings designed or used for one or more of the following purposes:
(a)The parking or garaging of more than one commercial vehicle used or intended for use for the carriage of goods (including livestock) or persons.
(b)The transfer of goods (including livestock) or passengers from one vehicle to another vehicle.
(c)The maintenance, repair or refuelling of vehicles referred to in (a) or (b) above.
Commercial Vehicle Parking is defined in Appendix 1 of TPS 2 as meaning:
(a)The parking of one or more commercial vehicles on any land within the Scheme Area. A vehicle shall be parked for the purpose of this definition if it is present on the subject land for more than two hours and is not in that time being used to load or unload anything, or in connection with building or development work carried on with all necessary Council approvals.
(b)If a trailer or the like having no independent means of propulsion is attached to a prime mover or other motorised vehicle, the two in combination shall be regarded as one commercial vehicle for the purposes of this Scheme.
(c)However, where a trailer or the like is not presently attached to a prime mover or other motorised vehicle, it shall, subject to paragraph (3) be regarded as a separate commercial vehicle for the purpose of this Scheme.
(d)Where there is one prime mover and one trailer on a lot, and even though not attached they are ordinarily used in combination, the two shall be regarded as one commercial vehicle for the purpose of this Scheme.
According to the definition in Appendix 1 of TPS 2 a Commercial Vehicle means:
a vehicle whether licensed or not which is used or designed for use for business, trade or commercial purposes or in conjunction with a business, trade or profession, and without limiting the generality of the foregoing includes any van, truck, trailer, tractor and any attachment to any of them or any article designed to be an attachment to any of them, and any bus or any other passenger vehicle, or any earth moving machine whether self‑propelled or not, but the term shall not include a vehicle designed for use as a passenger car or a trailer or other thing most commonly used as an attachment to a passenger car, or a van, utility or a light truck which is rated by the manufacturer as being suitable to carry loads of not more than three (3) tonnes.
The respondent submits that the proposed development best fits within the definition of Transport Depot under TPS 2 because there is to be more than one commercial vehicle stored on site and these vehicles can be used to carry goods. This includes the prime movers and trailers and dump trucks which can be used to carry goods and other vehicles that don't have the ability to be moved themselves. The respondent says that this can be considered the carriage of goods as referred to in part (a) of the Transport Depot definition. The respondent also contends that employees having to pick up and drop off vehicles to the site would require vehicles to transport them to and from the site. The respondent submits that this is the transfer of passengers from one vehicle to another vehicle as referred to in part (b) of the Transport Depot definition. In relation to part (c) of the definition, the respondent contends that minor servicing and repairs as referred to by the applicant will be undertaken on the site and that these activities are not included in the definition of Commercial Vehicle Parking.
The applicant acknowledges that the development application form submitted to the respondent described the proposed development as a Transport Depot, but the applicant is now of the view that Commercial Vehicle Parking more comprehensively addresses the nature of the particular use. The applicant submits that the Transport Depot definition (under TPS 2), 'while it may look appropriate on first glance, does require straining the definition in some way to make it fit the use which is proposed. No such straining is required with Commercial Vehicle Parking' (ts 19, 3 September 2019).
The applicant submits that while some of the vehicles to be garaged on site may be used for the carriage of goods or the transfer of goods from one vehicle to another on another location, these activities will not be occurring on the subject site. The applicant contends that there are a number of vehicles proposed to be garaged at this site which do not neatly fall within the Transport Depot definition; particularly, the stump grinder, three crushers and a screen, which are earthmoving machinery and do not carry goods nor are they used to transfer goods from one vehicle to another. The applicant submits that the proposal is closer in nature to Commercial Vehicle Parking and that while the Transport Depot definition is a more narrow definition it doesn't neatly fit the proposal.
The Tribunal heard expert evidence from two town planners. The respondent called Mr Peter Mrdja, and as stated earlier, the applicant called Mr Vincent.
Mr Mrdja was of the opinion that the proposal should be assessed as a Transport Depot. He said that the proposal involves the parking of more than one commercial vehicle and that the majority of the vehicles 'will include some sort of transfer of goods, and potentially passengers, from one vehicle to another' and 'that there will be servicing or maintenance occurring on site' (ts 50, 3 September 2019).
Whereas, Mr Vincent was of the opinion that the proposal is a Commercial Vehicle Parking land use because:
•the vehicles to be stored on the site are commercial vehicles as they are used for business/trade/commercial purposes and include trucks, trailers, earthmoving equipment;
•the vehicles are to be parked in the shed for periods exceeding two hours; the vehicles are not being loaded or unloaded on the site;
•the vehicles are not being used in connection with approved on-site building or development work;
•while the trucks are to be used for the carriage of goods, the earthmoving equipment is not used for the carriage of goods or persons; and
•there is no suggestion that the transfer of goods or passengers from one vehicle to another will occur on the site.
(Exhibit 7, paras 10 ‑ 11)
In relation to the characterisation of the land use proposed by the development, the Tribunal agrees with the opinion of Mr Vincent and finds that the proposal is properly characterised as Commercial Vehicle Parking under TPS 2.
It is not in dispute that the vehicles and earthmoving equipment to be garaged on the site are considered to be commercial vehicles. What is in dispute is whether the proposal falls under the definition of Transport Depot rather than the definition of Commercial Vehicle Parking under the Scheme, both of which are identified uses in the Zoning Table under TPS 2.
Clause 3.2.4 of TPS 2 states that where a particular use is mentioned in the Zoning Table it is deemed to be excluded from any other use class which by its more general terms might otherwise include such particular use.
In this case, the Tribunal is persuaded by the applicant that the proposal does not easily fit the Scheme definition of Transport Depot, particularly as there is a separately identified Commercial Vehicle Parking land use in the Zoning Table.
The proposal satisfies the definition in Appendix 1 of TPS 2 for Commercial Vehicle Parking as the proposal is for the parking of more than one commercial vehicle (for more than two hours and not being used for loading or unloading or in connection with approved building or development work) on the site; but does it satisfy the more specific definition of Transport Depot as contended by the respondent? The Tribunal is not satisfied that it does in this particular case.
Firstly, there is to be no refuelling of vehicles on site, nor any significant maintenance or repair of vehicles. It was the applicant's evidence that his company, Castle Equipment, has a substantial repair facility in East Rockingham with a wash‑down facility and that only essential repairs such as fixing a flat tyre are likely to be undertaken on the subject site (ts 31, 3 September 2019). Secondly, while the proposal is for the garaging of more than one commercial vehicle some of which are used or intended to be used for the carriage of goods, this activity is equally covered by the definition for Commercial Vehicle Parking.
In regards to part (b) of the Transport Depot definition, in this case there is to be no transfer of goods or passengers from one vehicle to another vehicle on the site and there is no storage of goods associated with the proposal. There will be the transfer of goods from one vehicle to another at locations other than the site and in some circumstances, particularly when there is no alternative land use (such as Commercial Vehicle Parking) in the zoning table of a Scheme, a use similar to the one proposed could be properly classified as a Transport Depot. However, in the particular circumstances of this case, the Tribunal is of the view that the proposed development does not neatly fit the definition of Transport Depot but does fit the definition of Commercial Vehicle Parking, and given that both are identified as separate land uses in the Zoning Table under TPS 2, then the proposal is properly classified as a Commercial Vehicle Parking land use.
Commercial Vehicle Parking is a 'P' use in the Rural Zone under TPS 2 which means that the use is permitted provided that it complies with the relevant standards and requirements in the Scheme and all conditions (if any) imposed by the Council in granting planning consent. A Transport Depot is an 'SA' use in the Rural Zone which means that the Council (and the Tribunal on review) may, at its discretion, permit the use after notice of the application has been given in accordance with cl 64 of the deemed provisions. Clause 64 of the deemed provisions refers to the procedures for advertising applications for development approval.
Whether the proposed development should be approved having regard to the purpose and intent of the Rural Zone under TPS 2, in particular cl 5.10.1
Clause 5.10.1 of TPS 2 sets out the purpose and intent of the Rural Zone as follows:
The purpose and intent of the Rural Zone is to allocate land to accommodate the full range of rural pursuits and associated activities conducted in the Scheme Area.
There are no other requirements in Pt 5 of TPS 2 relevant to the development of Rural zoned land other than for kennels, additional dwellings and subdivision.
The respondent submits that the proposal should be classified as a Transport Depot which is an 'SA' use under TPS 2 and therefore requires the exercise of discretion. In exercising that discretion the decision‑maker is to have regard to the purpose and intent of the Rural Zone. The respondent submits that 'the fundamental question is whether the proposed Transport Depot and the type of commercial vehicles proposed to be stored on site, are used for rural pursuits and associated activities, which are conducted within the Shire's municipal area' (ts 100, 3 September 2019).
The applicant originally submitted that the proposal should be considered a rural pursuit because the agricultural and earthmoving equipment to be garaged in the shed on the property is to be used in 'rural activities'. These rural activities include the use of the vehicles on the subject site as well as on other agricultural properties in differently localities. The respondent submitted that these proposed activities were not considered to be rural pursuits and referred to two previous Tribunal decisions: Attwell and City of Albany [2009] WASAT 38 (Atwell); and Castle and City of Rockingham [2018] WASAT 98 (Castle).
The Tribunal agrees with the respondent and finds that using the vehicles to be garaged on the subject site in the manner described by the applicant does not constitute a rural pursuit for the purposes of cl 5.10.1 of TPS 2. That said, the Tribunal also finds that it is not necessary for a development to be a rural pursuit for it to satisfy the intent and purpose of the Rural Zone. This is because cl 5.10.1 of TPS 2 refers to 'the full range of rural pursuits and associated activities'. In this case, the Tribunal is satisfied that the proposed development can be considered to be an associated activity whether it is classified as either a Transport Depot or Commercial Vehicle Parking. In any event, the Tribunal has already determined that the proposed use is properly classified as Commercial Vehicle Parking, which is a permitted use in the Rural Zone under the Scheme. It then follows that the use is appropriate having regard to the purpose and intent of the Rural Zone.
Whether the proposed development should be approved having regard to the objectives of SPP 2.5, in particular (a), (b) and (e)
The intent of SPP 2.5 is to protect and preserve Western Australia's rural land assets. Clause 4 of SPP 2.5 sets out the policy objectives as follows:
(a)support existing, expanded and future primary production through the protection of rural land, particularly priority agricultural land and land required for animal premises and/or the production of food;
(b)provide investment security for existing, expanded and future primary production and promote economic growth and regional development on rural land for rural land uses;
…
(e)avoid and minimise land use conflicts[.]
It was Mr Mrdja's opinion that the proposed development is inconsistent with objectives (a) and (b) of SPP 2.5 because it does not support existing, expanded or future primary production of agricultural land in the locality. Mr Mrjda was concerned that the primary nature of the development was the storage of heavy haulage vehicles and machinery for use outside of the locality and that vehicle movements associated with the proposal are not compatible with the existing uses of the locality (Exhibit 6, paras 75 – 76).
Mr Vincent was of the opinion that the proposed development is consistent with the objectives of SPP 2.5 in that the proposal is not of a scale that will inhibit or undermine the primary production capacity of the site (a working cattle farm) nor will there be any land use conflicts arising particularly as the garaging of vehicles in a shed commonly occurs in rural areas (Exhibit 7, para 11.12).
The Tribunal accepts the opinion of Mr Vincent and finds that the proposed development is not inconsistent with the objectives of SPP 2.5. This is because the area set aside for the shed, hardstand, driveway access and landscaping constitutes approximately 1% of the total site area of the subject site, and the proposed maximum number of daily vehicle movements are not such that they will have a detrimental impact on the operations of the existing cattle farm on the subject site or on the operations of the activities in the locality (including nearby poultry farms).
Whether the proposed development should be approved having regard to the objectives and intent of the Rural Strategy
The Rural Strategy is intended to form one part of the Shire's future local planning strategy which is to provide the strategic direction for the local planning Scheme. The Rural Strategy provides 18 'Universal Objectives' which are intended to guide the exercise of discretion as well as Policy Area Objectives. They are divided into the following three themes:
•protection of natural assets;
•protection of rural atmosphere; and
•facilitate productive rural areas.
The Rural Strategy identifies a number of different policy areas. The subject land is located within the Rural Policy Area. Clause 4.5 of the Rural Strategy sets out the objectives of the Rural Policy Area as follows:
•To retain and maintain traditional agricultural uses in this Policy Area.
•To promote alternative agricultural uses, particularly those that have less land degradation and higher commercial viability.
•To prevent the further fragmentation of land through subdivision and thus retain the remaining large lots for future rural use.
•To retain and enhance the rural lifestyle and character of the area.
•To protect Local Natural Areas and encourage revegetation.
Mr Mrdja was of the opinion that the proposed development is inconsistent with the objectives and intent of the Rural Strategy because the proposed development does not retain and maintain the traditional, rural, residential or agricultural uses of the area. Rather it proposes a use that will promote land use conflicts between these uses in the form of a Transport Depot with heavy vehicle haulage (Exhibit 6, para 77).
Mr Vincent disagreed with this and was of the opinion that the small footprint of the proposal in relation to the area of the site means that the proposal will not inhibit the capacity of the site to support traditional agricultural uses such as cattle farming and that the machinery and equipment garaged in the proposed shed will directly support traditional agricultural activities. Mr Vincent was also of the view that the proposed shed is of a scale compatible with the rural character of the locality and appropriately screened with landscape planting. He also refers to the location of the site within a Poultry Farm Special Control Area a land use which he says typically require very large sheds to house chickens.
The Tribunal finds that the proposed development is not inconsistent with the objectives of the Rural Strategy particularly given its location within the PFSCA. As was evidenced from the site view and aerial photographs, there are a number of large sheds in the immediate locality and the proposed shed will not be visually out of place in this context. The Tribunal does not accept Mr Mrdja's view that the proposal use will promote land use conflicts and, as previously discussed, finds that the scale of the proposal is such that it will not have an adverse impact on the traditional agricultural uses in the Rural Policy Area.
Whether the proposed development will have a detrimental impact on the amenity of the locality (cl 7.1 of TPS 2 and cl 67(n) of the deemed provisions)
The consideration of amenity and the impact of a proposed development on the amenity of a locality is a relatively common occurrence in the exercise of planning discretion. In these proceedings, the consideration of amenity arises under both cl 7.1 of TPS 2 and cl 67(n) of the deemed provisions.
Clause 7.1 of TPS 2 refers to the general appearance of buildings and the preservation of amenity as follows:
No person shall without the approval of the Council erect or commence to erect a building which by virtue of its colour or type of materials, architectural style, height, bulk or ornamental or general appearance has, in the opinion of Council, an exterior design which is out of harmony with exterior designs of existing buildings or is likely to injure the amenity of the locality.
Clause 67(n) of the deemed provisions provides that the decision‑maker is to have due regard to:
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[.]
The Tribunal recently summarised the general principles for the evaluation of amenity in Cranston at [75] – [78] and confirmed that Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296 (Tempora) and Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74; (2006) 150 LGERA 116 (Sunbay) remain the leading authorities in Western Australia on the question of amenity.
In Tempora the Town Planning Appeals Tribunal observed at [304]:
The determination of the amenity of the locality is a question of fact and consists of three parts: the existing amenity, the manner in which the proposed use will affect the existing amenity and the degree of impact on the locality.
In Sunbay, at [21], Barker J (the Tribunal President at the time) held that the general approach to the assessment of amenity impact set out in Tempora was sensible and should be followed, and at [22] found that:
... the approach in Tempora v Shire of Kalamunda to the consideration of the impact of a proposed development on existing amenity does not preclude an assessment, required by an applicable planning instrument, of the impact of the development on likely future amenity[.]
Amenity is defined in cl 1 of the deemed provisions to mean:
all those factors which combine to form the character of an area and include the present and likely future amenity.
The parties' planning experts initially identified slightly different areas as the appropriate locality for the assessment of the degree of impact of the proposal. Mr Mrdja identified an area of approximately 1 kilometre radius around the site, whereas Mr Vincent identified a larger area bounded by Karnup Road to the north, Henderson Road to the south, Hopeland Road to the east and Yangedi Road to the west. The respondent usefully prepared a locality context map which illustrates these areas (Exhibit 13). During the hearing the parties agreed that the locality could be considered to be the larger area described by Mr Vincent. The Tribunal accepts this to be the locality relevant to the consideration of amenity.
In his written witness statement, Mr Mrdja described the existing locality and general district as being characterised by 'large lots with expanding areas of open space, paddocks and large [areas of] remnant vegetation'. Mr Mrdja also stated that the 'buildings in the locality are relatively limited in scale and well spread out on large lots in a manner that does not detract from the open and rural feel of the locality' … and that the 'site is surrounded by a variety of land uses including a paint ball centre and a sand extractive industry to the east, a poultry farm to the north, and an alpaca farm to the north-west of the site' (Exhibit 6, paras 13 ‑ 14).
Mr Vincent gave a detailed description of the locality in his written witness statement and characterised the locality as 'a productive rural area, used for a range of agricultural and associated pursuits'. He also stated that productive rural areas necessarily contain a variety of structures such as sheds, houses, stables and greenhouses within the landscape (Exhibit 7, para 6).
The parties did not contest the experts' description of the locality and the Tribunal accepts their combined evidence as a fair characterisation of the locality for the purposes of assessing whether the proposal will affect the existing and likely future amenity, and if so, the degree of impact on the locality.
Mr Mrdja was of the opinion that the bulk and height of the proposed shed would be detrimental to the amenity of the locality, particularly as it will be located adjacent to another structure which has a floor area of approximately 200m2. He compared the proposal to sheds on the poultry farm to the north-east of the site as follows (Exhibit 6, para 64):
…. these sheds are setback approximately 100m from Jarrah Road, which is twice the setback distance of the proposed shed. In addition, the Jarrah Road boundary of this site as well as the vehicle entrance points, are lined with native trees and vegetation to screen the poultry sheds. Further, the site also contains a vegetated bund located on the eastern side of the poultry sheds, which reduces the impact of the sheds as viewed from Punrak Road.
Mr Mrdja also referred to the proposed use of the development and stated that 'the exact same shed in this location could be considered acceptable if its use was for a much less intensive purpose'. It was his opinion that storage of heavy haulage vehicles and machinery further adds to the impacts on the amenity of the area (Exhibit 6, para 65).
Finally, Mr Mrdja had concerns in relation to the proposed landscaping. He was of the view that the proposed non-native tree species planted in straight lines would not be compatible or consistent with the amenity of the locality which included clusters of native vegetation.
Mr Vincent was of the opinion that the proposed shed is of a size and scale that is not uncommon in rural areas and the locality more specifically. He referred to a number of large sheds at nearby poultry farms (No 374 Hopeland Road, Lot 701 Henderson Road, and No 349 Hopeland Road) and to a property with existing greenhouses and what appears to be greenhouses under construction (No 582 Henderson Road) (Exhibit 7, para 12.4).
Mr Vincent also referred to the location and setback of the proposed shed as being appropriate in the context of no consistent prevailing setback distance in the locality. He said that while the proposed shed may be visually prominent in the landscape, he did not consider the bulk and scale to be inconsistent or incompatible with its surrounds. It was Mr Vincent's view that 'the presence of large structures within a productive agricultural area is not unreasonable, as such structures are a necessary component of productive rural activities' (Exhibit 7, para 12.4).
In this case, the Tribunal is satisfied that the existing character of the locality, which includes a number of poultry farms and other agricultural pursuits (such as a nursery), and the future character of the locality, which is likely to include new large poultry sheds given its designation as a PFSCA under TPS 2, will not be adversely impacted by the introduction of the proposed physical structures (including the hardstand, driveway and crossover) or the proposed use (whether it is classified as Commercial Vehicle Parking or Transport Depot).
The Tribunal accepts the evidence of Mr Vincent that large sheds and other structures are not uncommon in the locality. This was confirmed by the Tribunal on the site view and can be seen on the aerial photographs in evidence. The Tribunal is satisfied that while the proposed shed will be visible from Punrak Road because of the open landscape, this in itself does not cause an adverse impact on amenity. The Tribunal agrees with Mr Vincent that the location and size of the shed is not so out of character with the locality that it should not be approved. This is because: there are no consistent setbacks in the locality; there is no limit on shed size; there is no limit to the number of sheds per property; and while some sheds in the locality are screened by bunds and vegetation, there are a number of large sheds and structures that are not. The parties agreed that the material and colour of the shed were appropriate in this locality. In fact, it was Mr Mrdja's opinion that the proposed shed could be acceptable in this location if it was for a different purpose. Therefore, specifically in relation to cl 7.1 of TPS 2, the Tribunal finds that the exterior design of the proposed shed is not likely to injure the amenity of the locality.
In relation to cl 67(n) of the deemed provisions the Tribunal is satisfied that the proposed development (including the shed, hardstand, driveway and crossover) will not have adverse environmental or social impacts on the amenity of the locality. The Tribunal accepts the respondent's submission that the nearest sensitive noise receptor is 420 metres from the proposal. The Tribunal also accepts the respondent's submission that there are other developments in the locality which require access by commercial vehicles of a comparable or greater scale and frequency than the proposed development. The Tribunal is of the view that the proposed built structures and the proposed use will have a limited impact on the existing amenity and likely future amenity of the locality whether the proposal is characterised as Commercial Vehicle Parking or Transport Depot under TPS 2.
For thoroughness, notwithstanding that the Tribunal has found earlier in these reasons that the proposed development is a permitted use, the Tribunal has considered the degree of impact on amenity of both the built structures and the use of the development (parking of commercial vehicles and earthmoving equipment).
The respondent referred the Tribunal to Cranston at [96] in support of its submission that the proposal is not in keeping with the amenity of the locality. The proposal, the subject of review in Cranston, was a structure with a floor area of 1,584m2 to be built on a rural zoned site in the Shire. The Tribunal refused the development but interestingly at [100] found the following:
I find that the Proposed Development would not adversely impact the amenity the general locality. Large outbuildings in the landscape are a necessary incident of productive agricultural and rural land uses. While the Proposed Development is a very large structure, its size is reasonable as it is sited in an open paddock, is set back from the Highway and screened by intermittent vegetation. The use of the proposed materials was not raised as an issue by the Shire. The Proposed Development will appear as a very large shed in a rural setting. While I accept it would be the largest structure in the locality, the degree of impact is not so great such that the Proposed Development warrants refusal for this reason.
The respondent also had concerns about the impact of the proposed non-native vegetation to be planted as a form of screening of the proposed shed. The Tribunal agrees with the respondent that on the view it appeared that most screening vegetation on other sites in the locality consists of native species but can find no specific planning requirement for this. In this case, the most the Tribunal can say is that it would be preferable for the applicant to provide a revised landscaping plan that includes native vegetation planted in a way that appears more likely to occur in nature. Otherwise the landscaping intended for screening purposes in its current form may appear incongruent and therefore will not be performing its intended role as a screen to a large shed on a rural property.
Whether the proposed development should be approved having regard to the matters set out in cl 67 of the deemed provisions, in particular (a), (b), (g), (m), (n), (y) and (zb)
Clause 67 of the deemed provisions sets out a number of matters for consideration by decision‑makers when exercising planning discretion. The following matters have been identified by the respondent as relevant in this consideration by the Tribunal:
(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 …;
…
(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;
…
(y)any submissions received on the application;
…
(zb)any other planning considerations the local government considers appropriate.
The Tribunal has discussed most of these matters when addressing the issues for determination above and has found that the proposed development is not inconsistent with the objectives of SPP 2.5 or the respondent's Rural Strategy.
In regards to amenity and compatibility with its setting, the Tribunal has determined that the built form (including the shed, hardstand, driveway and crossover) of the proposed development will not have an adverse impact on the amenity of the locality whether classified as Commercial Vehicle Parking or Transport Depot under TPS 2.
The Tribunal therefore finds that the correct and preferable decision in this matter is to approve the proposed development with conditions.
Conditions
The respondent proposed 12 draft without prejudice conditions that it said should be applied if the Tribunal decided to approve the proposed development. The applicant accepted seven and objected to five of these conditions.
The disputed conditions are:
1.No vehicles, other than those listed below, shall be garaged within the 'Transport Depot' without further planning approval from the Shire of Serpentine-Jarrahdale.
•Articulated trucks and grain and fertiliser trucks used to transport rural products.
•Loaders used for loading fertiliser and lime on rural properties and to clear away fallen trees.
•Articulated dump truck used for removal of rocks, clearing storm damaged trees and on contracts for gravel production.
•Excavators customarily used for dam cleaning and fence line clearing.
All vehicles must be associated with a rural pursuit or associated activity within the Scheme area.
4.The hours of operation of the development shall be between 7.00am to 7.00pm Monday to Saturday.
8.Prior to the issue of a building permit, an Operational Management Plan shall be submitted to and approved by the Shire of Serpentine-Jarrahdale and thereafter implemented at all times. The Plan shall include but not be limited to the following information:
a)A process to log all complaints received and associated actions, inclusive of 12 month reporting to the Shire of Serpentine-Jarrahdale;
b)Material disposal;
c)List of commercial vehicles inclusive of dimensions;
d)Public safety and site security; and
e)Dieback management.
9.Prior to the issue of a Building Permit, a landscape plan shall be submitted to and approved by the Shire of Serpentine‑Jarrahdale. The landscape plan shall include:
a)Plant species (predominantly West Australian natives);
b)Numbers, location, container size;
c)Retention of mature existing trees;
d)Method of irrigation of the landscaped areas;
e)Landscaping and treatment of adjoining verge areas; and
f)Screening of the shed to Punrak and Jarrah Roads.
10.Prior to the issue of a Building Permit, a detailed Stormwater Plan shall be submitted to and approved by the Shire of Serpentine-Jarrahdale. The approved Stormwater Plan shall be implemented and maintained thereafter.
The applicant objects to draft condition No 1 because 'it attempts to impart restrictions which have no basis in TPS 2' (Exhibit 10, page 1). The Tribunal agrees that the condition is attempting to limit the vehicles to be garaged in the proposed shed based on the use of the vehicle. The Tribunal does not think this is an appropriate condition, particularly in light of the Tribunal's finding that the vehicles do not have to be used for a rural activity or rural pursuit. Draft condition No 1 will not be applied to the approval.
Draft condition No 4 limits the hours that vehicles can be moved to and from the site. The applicant says that the condition should not be imposed because there are no dwellings within 200 metres of the proposed development which might be affected by noise from manoeuvring vehicles. Tribunal has heard no evidence that leads it to think there is a need to restrict the hours of operation of the development. The Tribunal finds that this is an unnecessary condition particularly as draft condition No 3, which has been accepted by the applicant, already limits the number of commercial vehicle movements to a maximum of four movements per day. Draft condition No 4 will not be applied to the approval.
Draft condition No 8 requires an Operational Management Plan. The respondent submitted this is a standard condition applied by the Shire for all transport depots. The Tribunal has determined that the proposal is properly characterised as Commercial Vehicle Parking and does not see a need for this condition. Draft condition No 8 will not be applied to the approval.
Draft condition No 9 is objected to by the applicant on the basis that it requires a landscape plan to be submitted for approval by the Shire that includes predominantly Western Australian native plant species and refers to the landscaping and treatment of adjoining verge areas. The Tribunal is of the view that it is appropriate for the respondent to require a landscaping plan particularly as the applicant has said that the provision of vegetation to the locations specified will limit the visual impact of the proposal on the locality. Clause 7.10 of TPS 2 requires landscaping for all developments in accordance with a landscape plan approved by the Council, unless otherwise approved. In this case, where the development is on rural zoned land and the landscaping is proposed as a visual screen of a large shed the Tribunal is of the view that it is appropriate for the landscaping to be made up of Western Australian native plants as requested by the respondent. The Tribunal agrees with the applicant that the landscaping does not necessarily need to extend to the verge which is not in the ownership of the applicant. The Tribunal will therefore apply draft condition No 9 in a modified form that deletes the reference to landscaping of verge areas.
Draft condition No 10 requires a detailed Stormwater Plan to be submitted to and approved by the Shire. The applicant objects to this condition on the basis that the site is large and it is not required. The Tribunal is of the view that it is entirely appropriate to require a stormwater and drainage plan for a development of this nature which has large areas of hardstand and driveway. Draft condition No 10 will be applied to the approval.
Although the parties did not raise any concerns in relation to draft condition No 6, the Tribunal has concerns about its wording. Draft condition No 6 states that '[m]inor repairs in accordance with the definition of 'Transport Depot' within the Shire of Serpentine-Jarrahdale Town Planning Scheme No 2 will be permitted'. The Tribunal is concerned that the reference to the definition of Transport Depot is not appropriate considering the Tribunal has determined that the proposal is Commercial Vehicle Parking under TPS 2. The Tribunal is also concerned that the definition of Transport Deport in TPS 2 does not provide any clarity in regard to 'minor repairs' as the definition refers only to 'the maintenance, repair or refuelling' of commercial vehicles. The Tribunal is of the view that it is appropriate to allow for minor repairs to the commercial vehicles garaged on site and therefore feels that draft condition No 6 should be applied to the development approval but should delete reference to the definition of Transport Depot.
Orders
For these reasons the Tribunal makes the following orders:
1.The application is allowed.
2.The decision of the Shire of Serpentine-Jarrahdale made on 24 December 2018 to refuse development approval for the proposed development at Lot 140 Jarrah Road, Hopeland is set aside and a decision is substituted that development approval is granted subject to the following conditions:
i)The development must be carried out in accordance with the plans dated 18 and 27 February 2019.
ii)The commercial vehicles and machinery shall be parked and stored within the shed at all times.
iii)The total number of commercial vehicle movements shall not exceed two (2) inward and two (2) outward movements per day.
iv)Mechanical servicing, repairs, painting, wash down or degreasing of the commercial vehicles, in part or whole, is not permitted on the subject land at any time.
v)Minor repairs will be permitted.
vi)Storage of fuel is not permitted on the subject land at any time.
vii)Prior to the issue of a Building Permit, a landscape plan shall be submitted to and approved by the Shire of Serpentine-Jarrahdale. The landscape plan shall include:
a)Plant species (predominantly West Australian natives);
b)Numbers, location, container size;
c)Retention of mature existing trees;
d)Method of irrigation of the landscaped areas; and
e)Screening of the shed to Punrak and Jarrah Roads.
viii)Prior to the issue of a Building Permit, a detailed Stormwater Plan shall be submitted to and approved by the Shire of Serpentine‑Jarrahdale. The approved Stormwater Plan shall be implemented and maintained thereafter.
ix)Prior to the commencement of development on site, a crossover shall be designed and constructed and thereafter maintained, in accordance with the specifications to the satisfaction of the Shire of Serpentine‑Jarrahdale.
x)All hardstand areas shall be surfaced with a non-dust generating trafficable material to the satisfaction of the Shire of Serpentine‑Jarrahdale and maintained thereafter.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS R MOORE, MEMBER
28 NOVEMBER 2019
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