| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : ETHELSTON and SHIRE OF AUGUSTAMARGARET RIVER [2013] WASAT 197 MEMBER : MR P McNAB (SENIOR MEMBER) HEARD : 9 AND 10 APRIL 2013 DELIVERED : 11 SEPTEMBER 2013 PUBLISHED : 3 DECEMBER 2013 FILE NO/S : DR 175 of 2012 BETWEEN : DERYCK ETHELSTON First Applicant
KAREN ETHELSTON
Second Applicant
AND
SHIRE OF AUGUSTA-MARGARET RIVER
Respondent
Catchwords: Town planning - Development application - Domestic riding of horses - Dressage and jumping purposes - Clearance of 1 hectare area - Retrospective approval - Leeuwin-Naturaliste Ridge Conservation Zone - Whether proposed development is capable of approval under local planning scheme - Whether development is 'recreationprivate' - Whether development is a 'rural pursuit' - Tribunal finding development was not 'recreationprivate' but was a 'rural pursuit' involving the 'training of horses' - 'Rural pursuits' prohibited in Leeuwin-Naturaliste Ridge Conservation Zone - Planning framework values required low impact development - Planning framework required protection of views, viewscape and relevant vegetation - Development would be in any case refused on the merits Words and phrases: 'dressage'; 'premises'; 'recreationprivate'; 'rural pursuit'; 'training of horses' Legislation: Shire of AugustaMargaret River Local Planning Scheme No 1, cl 4.2.1.1, cl 4.3.2, Sch 1
Town Planning Regulations 1967 (WA), Appendix B Result: Review dismissed
Summary of Tribunal's decision: The applicants owned land in the LeeuwinNaturaliste Ridge Conservation Zone in the Shire of AugustaMargaret River. The planning framework (both local and State) for this particular zone emphasised low impact development in the context of, amongst other things, protecting remnant native vegetation. The planning framework generally contemplated that only the most carefully and stringently assessed proposals should go forward, and then only in the light of the consideration of all practical and lesser alternatives.
A site of approximately 1 hectare had been cleared and was used by the applicants on this land for domestic horse riding and training activities, mainly for the purposes of dressage. The use and development of the site had never been authorised under a town planning scheme. The applicants sought to regularise this situation.
Under the Shire of AugustaMargaret River's town planning scheme only two categories of land use appeared to be relevant or applicable, namely 'recreationprivate' and 'rural pursuit'. The Tribunal considered that the definition of 'rural pursuit' best covered the applicants' land use, as among other things, it included reference to the 'training of horses'. Dressage activities were considered by the Tribunal to be such a training activity.
Unfortunately for the applicants, such an activity was prohibited in the LeeuwinNaturaliste Ridge Conservation Zone. The Tribunal had no power or authority to disapply, lift or vary that prohibition.
The Tribunal went on to indicate that had the matter been capable of being considered on its merits then the Tribunal would still have refused the application. The Tribunal considered that the proposed development was, at its core, inimical to the values sought to be expressed in the planning framework.
Category: B
Representation: Counsel:
First Applicant : Ms CH Thompson
Second Applicant : Ms CH Thompson
Respondent : Mr MJ Hardy
Solicitors:
First Applicant : Nielsen and Co
Second Applicant : Nielsen and Co
Respondent : Hardy Bowen
Case(s) referred to in decision(s):
Bush Beach Holdings Pty Ltd and City of Mandurah [2013] WASAT 139
City of Armadale v Chapman [2012] WASC 423
Clay v City of Nedlands [2012] WASC 402
Davenport & Environs Planning Scheme 1984 [2007] TASRPDComm 1
Eclipse Resources Pty Ltd v Chief Executive Officer, Department of Environment and Conservation [2013] WASCA 152; (2013) 194 LGERA 199
Robertson and Shire of Murray [2009] WASAT 171; (2009) 67 SR (WA) 66
Tsourounakis v Melton Shire Council [2009] VCAT 2602
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction 1 This review concerns a retrospective application for planning approval arising out of an (initially) deemed refusal by the Shire of AugustaMargaret River (Shire). The deemed refusal ran from May 2012. 2 The planning approval sought is in relation to the clearance and levelling of an approximate site area of 1 hectare in the LeeuwinNaturaliste ridge conservation area (the subject land - described in more detail below) for the purposes of the occasional domestic riding of horses, mainly for dressage and jumping purposes. 3 There is a parallel review (DR 40 of 2012) of a related notice or direction issued by the Shire to revegetate the subject land and I shall return to this matter below, as the fate of that review falls to be determined by the outcome of the principal matter. 4 For the reasons that follow, the Tribunal has decided not to grant planning approval for the use and development of the land. 5 The Tribunal gave its reasons for decision orally. What follows is taken from the transcript of those reasons and has been formally revised and edited for publication.
The subject land and its context 6 The subject land was described by the applicants as follows: The applicants' land is Sussex Location 418 being Lot 418 on deposited plan 112121, the whole of the land in certificate of title volume 2022 folio 651 … situated at Juniper Road Gracetown, and comprises a square shaped block of 40.469 hectares, located 2.8 km north of Gracetown and 9.6 km from Cowaramup. 7 The applicants summarise the four components of their development application to the Shire (and the subject matter of the review) as follows: (a) approval for clearing and levelling of approximately 1 hectare [on the subject land] undertaken in the period between 2006 and mid2010; (b) approval for revegetation, so as to ensure there is no portion of the cleared hectare visible from adjacent land; (c) approval for seeding of part of the cleared hectare for a resting paddock for horses whilst waiting to be ridden; and (d) approval to use [the subject land] for horse riding, comprising dressage and jumping, on part of the cleared hectare. 8 I note that some fencing and portable structures are also contemplated and that the dressage area will be to a standard competition size. 9 The respondent has provided the following summary of the historical context of the development: Between 2005 and some time in 2010 the Applicants, by their own admission, cleared an area of 1.06 hectares measuring some 265 metres in length and [at least] 40 metres in width … The area cleared is not calculated to include the track leading to it. The relevant area of land has been cleared as to its western portion and cleared and levelled in its eastern portion, the whole of the area running generally in an eastwest direction and located some distance from the principal residence (of two residences) on [the subject land]. The cleared and levelled area has been prepared for the purposes of dressage and jumping activity with horses, and is intended to be kept clear with a retained sandy surface. There is at present a vertical cut along the southern edge of the eastern portion of the cleared area and a corresponding fill along the northern edge, with the fill supported by a relatively steep batter. The western portion of the cleared area is intended to be grassed with native grasses … 10 All of these matters are largely common ground between the parties.
The issues in the principal review 11 The following four main issues arise for determination in the review: 1) What is the proper characterisation of the proposed land use or development? 2) Does the planning framework permit approval for that use or development? 3) If so, is the correct and preferable decision to approve the use or development? 4) And, if approval is to be given, what conditions (if any) should be attached to the approval? 12 I note that, so far as issue (1) is concerned, the characterisation is to be determined having regard to both the applicants' land use intentions and the changes that have already occurred on or with respect to the subject land.
The course of the review 13 This matter was heard in Perth in mid April 2013 with the final written submission received in mid May 2013. Extensive expert material was filed. 14 The parties were both represented by experienced counsel. I express my gratitude to them, particularly for their detailed written submissions in the matter, and their cooperation in narrowing the review to areas of material disagreement. 15 I record that the Tribunal, in the presence of the parties and the various experts, attended a lengthy site inspection and view of the subject land, its access routes and the immediately surrounding neighbouring land (insofar as access could be secured).
Planning framework 16 The review is governed by the Shire of AugustaMargaret River Local Planning Scheme No 1 (LPS 1 or Scheme) which commenced in September 2010. 17 The applicants now concede, properly, that the relevant land use activity is use and development that required approval under the former town planning scheme, that is, Shire of AugustaMargaret RiverTown Planning Scheme No 11 (TPS 11). This scheme was repealed by LPS 1. 18 Thus, as planning approval was never obtained under LPS 1 (or its predecessor, TPS 11), both retrospective planning approval and, to the extent necessary, prospective approval are required. 19 Critically, the land is zoned LeeuwinNaturaliste Ridge Conservation Zone under LPS 1. Under that Scheme two defined land use categories (see Sch 1 of LPS 1) appear to be the most relevant in the characterisation of the applicants' proposed land use. They are: 1) 'recreationprivate'; and 2) 'rural pursuit'.
Is it recreationprivate? 20 'Recreationprivate' is defined in Sch 1 of LPS 1 to mean: [P]remises used for indoor or outdoor leisure, recreation or sport which are not usually open to the public without charge[.] 21 This is identical to the definition found in the Model Scheme Text (Appendix B of the Town Planning Regulations 1967 (WA)), a matter to which I will briefly return in a moment. 22 The meaning of 'premises' has been discussed recently by the Tribunal in Bush Beach Holdings Pty Ltd and City of Mandurah [2013] WASAT 139 (Bush Beach) a planning case that looked at 'premises' in relation to the impact of the Environmental Protection (Noise) Regulations 1997 (WA). Bush Beach noted, at [62], the following entry for premises found in the Encyclopaedic Australian Legal Dictionary: At common law, buildings, houses, land, shops and real property of one sort of another … 23 In Bush Beach, at [63], there is reference to Newnes JA's observations in Eclipse Resources Pty Ltd v Chief Executive Officer, Department of Environment and Conservation [2013] WASCA 152; (2013) 194 LGERA 199. His Honour noted, by reference to the common law and to the relevant statutory definition, at [105]: … It is evident that when used within the definition of 'premises', the word 'premises' bears its ordinary meaning, that is, it includes 'a tract of land; a house or building within grounds, etc, belonging to it'. 24 The Model Scheme Text,as does LPS 1, defines premises as meaning 'land or buildings'. 25 Thus, in my view, the proposed development could occupy 'premises' within the meaning of the definition of 'recreationprivate'. 26 I turn to consider the balance of the definition. 27 In my view, the key to understanding the scope of the term 'recreationprivate' is in the words of limitation found in the definition itself, namely premises 'which are not usually open to the public without charge'. 28 Elsewhere in Australia there may be found comparable land use classifications or definitions. Take, for example, the following definition (cl 1.4) referred to in Davenport & Environs Planning Scheme 1984 [2007] TASRPDComm 1: 'Private recreation' means the use of land for recreational grounds or facilities such as squash and tennis courts, bowls clubs, golf clubs, swimming pools, playgrounds and similar which are not normally open to the public without charge. (Emphasis added) 29 This definition more clearly, it seems to me, illustrates the conceptual scope of the definition found in both LPS1 and the Model Scheme Text. Clearly, what is contemplated by the applicants here is not the use of premises for such 'recreationprivate' purposes. 30 Accordingly, the proposed development cannot, in my view, be characterised as 'recreationprivate'.
Is it a rural pursuit? 31 The other possible land use classification is 'rural pursuit' which is defined in Sch 1 of LPS 1 to mean premises used for, amongst other things: (b) the stabling, agistment or training of horses[.] 32 In my view, the proposed development is a land use which can be properly described as the 'training of horses'. 33 The applicants have themselves referred to their dressage and related activities. Indeed, as Mr Hardy (counsel for the respondent) pointed out, the applicants' planning application specifically refers to 'training'. On the applicants' own case, dressage is included as a significant and integral element of the proposed land use. 34 The Macquarie Dictionary defines dressage as taken from the French, literally meaning 'training'. It defines the word in English as denoting: [T]he art and training of a horse in obedience, deportment and responses. 35 Thus, in Victoria, a planning tribunal (VCAT) could speak of certain applicants developing 'various facilities associated with horse training including roundyards, dressage training area[s], stables, fenced yards and horse shelters': see Tsourounakis v Melton Shire Council [2009] VCAT 2602, at [1]. Of course, the activities proposed by the applicants here are not on that scale of use. Nevertheless, these matters are instructive in terms of coming to a conclusion on the question of the scope of the term the 'training of horses'. 36 The Supreme Court, in City of Armadale v Chapman [2012] WASC 423 (Chapman), has recently reminded us that regulated land use activities under town planning schemes are to be determined objectively and are not controlled by the actual or subjective intentions of the owners: see Chapman at [28] [29]. 37 Further, there is no case, in my view, for reading down the phrase 'horse training' by reference to the other activities specified in the subclause, namely stabling or agistment. Rather, the subclause suggests a genus of substantial, organised activities to do with horses, activities commonly found in rural areas. 38 The clearing of 1 hectare of land and the associated activities and structures planned for that land clearly fall within the central notion of the 'training of horses'. 39 And, by the application of orthodox principles of town planning law such activities cannot be regarded as incidental to any other lawful use of the land: see Clay v City of Nedlands [2012] WASC 402 (affirming Clay and City of Nedlands [2012] WASAT 193) and Robertson and Shire of Murray [2009] WASAT 171; (2009) 67 SR (WA) 66.
Is it a prohibited land use? 40 Unfortunately for the applicants, such a land use activity, that is, horse training, is prohibited in the Leeuwin-Naturaliste Conservation Zone: see the Zoning Table to LPS 1 read with cl 4.3.2. The Tribunal has no power or authority to disapply, lift or vary that prohibition. 41 I am strengthened in reaching these conclusions by reference to the choice of the legislative body (the Shire) to open the possibility of a discretionary development of recreationprivate in this zone (difficult as that might be) but not rural pursuits, and the possibility of either recreationprivate or rural pursuits in the neighbouring Leeuwin-Naturalise Ridge Landscape Amenity Zone. 42 This suggests deliberation about the scale of appropriate activities for the Conservation Zone, that is, the organised training of horses (as opposed to, say, occasional domestic private riding on horseback) which will by its very nature often require the clearing of land and the erection of structures on a not inconsiderable area of conservation value land.
The merits of the case if approval could be given 43 The conclusions reached above are sufficient to dispose of the review in the respondent's favour. 44 However, if I am wrong on the construction issue then I should indicate in at least summary form why, in any event, approval would not be given by the Tribunal for the proposed development. 45 The express zoning objectives (see cl 4.2.1.1 of LPS 1) and the application of the complementary State Planning Policy No 6.1 LeeuwinNaturaliste Ridge (SPP 6.1) all point to, in effect, a presumption against development at this scale and of this nature. 46 Moreover, there are a considerable number of practical hurdles which must be overcome to clear the way for such development. This is the case, as much of the planning framework is focussed on assessing the potential impact on flora (particularly remnant native vegetation) and fauna, and on the viewscape, all to be undertaken in advance of any development. 47 Even putting aside these 'lost opportunities' of assessment in advance and considering the proposal in the abstract, in my view, at every material or critical point of the assessment process the development either clashes with an enunciated value in the planning framework or raises serious doubts about whether the value or standard would or could ever be met or maintained. 48 In particular, the emphasis in the planning framework upon low impact development in the context of, amongst other things, protecting remnant native vegetation means that only the most carefully and stringently assessed proposals should go forward, and then only in the light of the consideration of all practical and lesser alternatives. 49 That has not been done here. Rather the proposal has, in effect, been largely 'conditioned down' to ameliorate the harm (potential or otherwise) already done in the light of an expectation that over time the impact would be lessened by, for example, natural and artificial masking of the changes occurring on the ground. 50 In short, I generally accept the respondent's contentions (based upon their experts' opinions) that the proposed development is at its core inimical to the values sought to be expressed in the planning framework. 51 The development ought not to be approved and if it were to be approved then it would set an undesirable precedent in respect of similar proposals. 52 I accept that the applicants have, on the material available to me, at all times sought to act in good faith. I recognise that they have invested considerable time and money in attempting to rectify the position that they are in, working through the Tribunal's processes. However, there is a considerable countervailing public interest in preserving, as far as is practicable, this specially identified area of conservation value and that is made clear from the instruments making up the planning framework to which attention is drawn above.
Conclusions 53 Despite the applicants' and their counsel's best efforts, the applicants and their experts have not, unfortunately, persuaded the Tribunal that development approval is either permissible or desirable. 54 The application for review in the principal matter will therefore be dismissed. I will hear counsel on the fate of the related review (Matter No DR 40 of 2012) into the Shire's revegetation notice.
Orders |