IVANKOVICH and SHIRE OF HARVEY - [2014] WASAT 155

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: IVANKOVICH and SHIRE OF HARVEY [2014] WASAT 155

MEMBER: MS L WARD (MEMBER)

HEARD: 21 MAY 2014

DELIVERED : 14 NOVEMBER 2014

FILE NO/S: DR 483 of 2013

BETWEEN: PETER IVANKOVICH
Applicant
AND
SHIRE OF HARVEY
Respondent

Catchwords:

Town planning Development application Conditions of development approval Potential land use conflict between horticulture and single residential rural dwelling Separation distance of 60 metres - Groundbased spraying of chemicals - No aerial spraying Potential for spray drift and dust Zoned General Farming Land use viticulture/horticulture Carrots and onions No applicable buffer zone policy Applicability or otherwise of generic separation distances Consideration of specific circumstances required Minimal degree of potential impact General Farming zone policy statement to encourage area to be used for farming activity and primary agricultural purpose of zone Planning objective to maintain preeminence of agriculture Turns on own facts

Legislation:

Environmental Protection Act 1986 (WA), s 37B, s 38
Planning and Development Act 2005 (WA), s 252(1)
Shire of Harvey District Planning Scheme No 1, cl 1.6.1, cl 2.3, cl 2.3.2, cl 2.4, cl 4.2, cl 4.2.2, Pt XII
State Administrative Tribunal Act 2004 (WA), s 17, s 29(3)(b)

Result:

Application for review is allowed
Development approval conditions 2(h), 2(i) and 2(j) deleted

Summary of Tribunal's decision:

Mr Peter Ivankovich applied to the Tribunal for a review of some of the conditions attaching to the planning approval for the expansion of his existing horticulture operation. Mr Ivankovich plans to grow carrots and onions on 19 hectares of land owned by him within the Shire of Harvey.
The application for review raises the issue of whether or not the conditions relating to a 'buffer' of 'screening vegetation' and a 'screen fence' between the proposed horticultural expansion and the single residential dwelling on the neighbouring farming property should be imposed under the relevant planning framework.
The applicant's neighbour raised concerns about potential spray drift and dust from the applicant's farm. Only the issue of spray drift was pursued at the final hearing. The neighbour's single residential dwelling is separated from the proposed crops by a distance of 60 metres.
Based on the evidence before it, the Tribunal was not persuaded that there were significant concerns about potential land use conflicts between the neighbour's single residential dwelling and the proposed horticulture use with regard to chemical spray drift from Mr Ivankovich's standard agricultural practices. The fact that onion and carrot crops grow low to the ground was also a factor which weighed heavily in favour of the buffer zone conditions being removed. The applicant will apply chemicals to the crops just above ground level, and therefore the potential for spray drift is minimal. The currency of the applicant's spray management techniques and equipment was another relevant factor. Machinery selection and set up is recognised as one of the best management strategies to reduce the potential for spray drift. Another factor compelling the Tribunal to remove the buffer conditions was the fact that both the applicant's farm and the neighbour's single residential dwelling are within the land zoned General Farming in the Shire of Harvey. In addition, none of the government departments consulted by the Shire required the imposition of any additional buffer or screening.
The Tribunal was satisfied that the proposed development would have a minimal impact on the amenity of the locality, having regard to the planning objectives for land zoned General Farming in the Shire of Harvey. The Tribunal concluded that the proposed development was consistent with the objectives of the planning framework and was not contrary to orderly and proper planning and the preservation of the amenity of the locality.
Accordingly, the application was successful and the decision of the Shire of Harvey was amended to delete the 'buffer zone' conditions.

Category: B

Representation:

Counsel:

Applicant: Mr G Barbour (Acting as Agent)
Respondent: Mr S Hall (Acting as Agent)

Solicitors:

Applicant: N/A
Respondent: N/A

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

Miller and Shire of Waroona [2009] WASAT 238

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

Mr Peter Ivankovich (applicant) applied to the Shire of Harvey (respondent or Shire) on 28 May 2013 for planning consent for a number of items, including the expansion of his existing horticultural operation, to include 19 hectares on the southern portion of Lot 111 Runnymeade Road, Binningup. The Shire granted planning consent to the applicant's proposed horticultural expansion at its Council meeting on 3 December 2013, subject to a number of conditions.
The application for review raises the issue of whether or not the conditions relating to a 'buffer' of 'screening vegetation' and a 'screen fence' between the proposed horticultural expansion and the single residential dwelling on the neighbouring farming property at Lot 101 Runnymeade Road, Binningup should be imposed under the relevant planning framework.

Decision under review

On 20 December 2013 the applicant made an application to have conditions 2(h), 2(i) and 2(j) of the development approval reviewed. These conditions read as follows:
h)The Landowner submitting a comprehensive Buffer Planting Plan for approval to the Manager of Planning Services within 30 days of this Planning Consent being issued, detailing screening vegetation within Lot 111 Runnymede Road, comprising endemic species and its management in perpetuity. The buffer width is a minimum of 33m for the length of 200m measured 100m north and south of the residence on adjoining Lot 101 Runnymede Road and is to comprise of a 3m wide fire break, a vegetated 20m strip, a 2m high screen fence and a 10m wide setback to the proposed horticultural activity;
i)The Buffer Planting being completed, prior to the commencement of any horticultural activities within this 19ha area of this Planning Consent being issued;
j)The Landowner lodging a Bond or Bank Guarantee for a sum of $1,300 with the Shire of Harvey, in trust, prior to the commencement of any horticultural activities within this 19ha area, for satisfactory completion and maintenance of the required Buffer Planting Works contained in the conditions of this Planning Consent for Lot 111 Runnymede Road, Binningup. The Bond or Bank Guarantee being returned to the Landowner after a period of no less than three years from the date of planting, subject to satisfactory survival rates of at least 80% being established[.]
The applicant seeks the revocation of conditions 2(h), 2(i) and 2(j) from the development approval.
The applicant has standing to apply for review and the Tribunal has jurisdiction under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) to determine the application for review of the Shire's decision. The proceeding is within the Tribunal's review jurisdiction: see s 17 of the State Administrative Tribunal Act 2004 (WA) (SAT Act).

Issues for determination

At the final hearing the parties agreed that the issues for determination by the Tribunal are, in summary:
•Firstly, is an additional buffer zone as set out in condition 2(h) appropriate?
•If so, what should be the nature and extent of the buffer?
Both parties agreed that conditions 2(i) and 2(j) are, in effect, administrative requirements which relate to the implementation of the buffer required by condition 2(h). Accordingly, if condition 2(h) is upheld then conditions 2(i) and 2(j) will continue to apply.

Proceedings in the Tribunal

The application for review was lodged in the Tribunal on 20 December 2013. The matter was referred to onsite mediation on 31 January 2014. Two further mediations took place on 11 and 12 March 2014. As the matter was not resolved at mediation, on 4 April 2014 the matter was programmed for final hearing.
The final hearing was held in the Tribunal on 21 May 2014. The applicant's agent, Mr Gary Barbour, Manager of Planning at TME Town Planning Management Engineering, and Mr Simon Hall, Senior Planning Officer at the Shire, both attended the hearing in person. Mr Barbour and Mr Hall both gave a mixture of evidence and submissions at the final hearing. No other witnesses were called to give evidence at the final hearing.

Documents before the Tribunal

The following documents were filed in the Tribunal prior to the final hearing on 21 May 2014:
•On behalf of the applicant, Mr Barbour filed a witness statement in the Tribunal on 9 May 2014 which attached his curriculum vitae and his planning report.
•The Shire's bundle of documents received in the Tribunal on 24 April 2014, including:
•Notice of Planning Permission including conditions 2(h), 2(i) and 2(j);
•applicant's submission to the Tribunal dated 14 February 2014;
•application for planning consent received by the respondent on 28 May 2013;
•letter from G & I Reading of No 183 Runnymeade Road, Binningup dated 10 July 2013 regarding dust and chemical spray drift concerns;
•extracts from the Environmental Protection Authority (EPA)'s Guidance for the Assessment of Environmental Factors Separation Distances between Industrial and Sensitive Land Uses No. 3 June 2005 (Guidance), pages 3, 4, 11 and 12;
•respondent's submission to the Tribunal dated 24 April 2014; and
•letter from the Shire to the Tribunal dated 5 March 2014.
The Tribunal notes that neither the planning officer's report to the Shire councillors nor the relevant extract of the Council minutes are before the Tribunal.
In the absence of any objection, the Tribunal accepted into evidence all of the documents provided by the parties.

Subject land

The land the subject of the application for review forms the southern 19 hectares of land on Lot 111 on Certificate of Title Volume 1996 Folio 502 on Lot 111 on Diagram 85871 (subject land). The property address of the subject land is No 186 Runnymeade Road, Binningup in the Shire of Harvey. The subject land is east of Forrest Highway and about 30 kilometres south‑west of Harvey. The subject land is identified with green cross hatching on the aerial photograph submitted with the application for approval. There is no residence or shed on the relevant southern portion of Lot 111.

The proposal

The applicant has completed various earthworks in order to prepare the subject land for growing carrots and onions. The middle portion of Lot 111 is currently used by the applicant for growing carrots and onions. However, the applicant is yet to commence cropping the subject land with carrots and onions.

Neighbouring property

Mr and Mrs Reading live on Lot 101 Runnymeade Road, Binningup (neighbours). The neighbours are described by the Shire as broadacre farmers. Lot 101 Runnymeade Road, Binningup is opposite the applicant's property to the east. The neighbours are separated from the applicant's property by a gazetted road which is 20 metres wide.
There is a single residential dwelling on Lot 101 which is situated opposite the applicant's land. The neighbours' single residential dwelling is 30 metres from Runnymeade Road, Binninugup behind a row of mature peppermint trees. The applicant's proposed crops and the neighbours' single residential dwelling are separated by a distance of 60 metres.

Planning framework

The subject land and the neighbours' property are both zoned General Farming under the Shire of Harvey District Planning Scheme No 1 (DPS 1 or Scheme), which was gazetted in November 1996.
Importantly, the respondent and the Tribunal on review must consider the following matters under the Scheme. Clause 1.6.1 of the Scheme states:
The objectives of the Scheme are:
(a)to encourage and control the continued orderly development of land within the Shire in a manner that enhances the quality of life of the Shire community;
…
(e)to retain the pre-eminence of agriculture, and restrict development that detracts from the potential of significant agricultural land[.]
Clause 2.4 of the Scheme, Determination of Applications, states:
2.4.1 In determining an application for planning consent the Council may consult with any authority which, in the circumstances, it thinks appropriate.
2.4.2 The Council having regard to any matter which it is required by the Scheme to consider, to the purpose for which the land is zoned or approved for use under the Scheme, to the purpose for which land in the locality is used, and to the orderly and proper planning of the locality and the preservation of the amenities of the locality, including land designated as a place of heritage significance, may refuse to approve any application for planning consent or may grant its approval unconditionally or subject to such conditions as it thinks fit. (Tribunal emphasis)
…
Clause 4.1.1 of the Scheme creates Zones, including the following:
…
Non Urban Zones:
Intensive Farming (Tables 25 and 26)
General Farming (Tables 27, 28 and 29[.]
The zoning and development standards incorporated into Part XII Zoning Tables of the Scheme indicate the uses permitted in the various zones. The Zoning Tables also set out the development standards that apply to various uses specified in the table for each zone with a policy statement for each zone.
The Tribunal notes that the zones in the Scheme differentiate between Intensive Farming and General Farming.
The relevant policy statement for the General Farming zone is to be found in Tables 27 to 29, and it relevantly states that:
… [The Shire] intends to encourage these areas to continue to be used for viable large scale farming activity. Council will encourage and promote good farming, animal husbandry and soil conservation. Some limited tourist and recreational activity may be permitted where no adverse effect to the primary agricultural purpose of the zone will result.
The applicant's proposed land use is 'Horticulture'. 'Viticulture/Horticulture' is defined in the Scheme as follows:
Viticulture/Horticulture: Means the intensive cultivation and production of grapes, flowers or vegetables for commercial purposes on any area exceeding 1,000m².
The development standards in Table 28 of the Scheme also incorporate under 'Other Requirements' the following:
*Any intensive agriculture within the Peel-Harvey Catchment Area will need advice from the Department of Environment Protection and the Department of Agriculture and this advice shall be taken into account prior to a decision being made by Council.
The Shire submitted that although the proposed land use may not be 'intensive agriculture', a term which is not defined in the Scheme, it did, in any case, obtain advice in relation to the applicant's proposal from the Department of Environment Protection and the Department of Agriculture. No written evidence of the request for advice by the Shire or any response from the relevant Departments is before the Tribunal. However, the Shire accepted at the hearing that neither Department required the imposition of any additional buffer or screening in relation to the applicant's proposal.
Under the Zoning Table of the Scheme (cl 4.2), 'Viticulture/Horticulture' is an 'AA' use in the General Farming zone. This means that the respondent may, at its discretion, permit the use (cl 4.2.2 of the Scheme).
Clause 2.3.2 of the Scheme provides that, in relation to an application for planning consent which involves an 'AA' use, the Council may give notice of the application in accordance with the provisions of cl 2.3 'Advertising of applications'.
The Tribunal notes that the Shire incorrectly submitted that the proposed use is 'SA'. However, the only relevant difference between an 'AA' use and an 'SA' use is that, under the Scheme, a proposal involving an 'SA' use shall not be granted unless it is advertised in accordance with the provisions of cl 2.3, whereas a proposal involving an 'AA' use 'may' be advertised; that is, it is a discretionary matter for the Shire.

Response to advertising of the applicant's proposal

The Shire advertised the applicant's development application. Only one response to the advertising of the applicant's proposal is before the Tribunal.
The response was a letter dated 10 July 2013 from G & I Reading, the applicant's neighbours at No 183 Runnymeade Road, Binningup. The neighbours expressed their concerns about the proposal to the Shire as follows:
In relation to By-law 15.12 Air Quality Control Guidelines (attached), we are disappointed and disturbed to see no plan in the above application on how Ivankovich Farms intend[s] to manage dust and chemical spray drift. This indicates there is no level of concern or consideration shown to the neighbouring community.
Intensive horticulture on light soils is very similar to sand mining. The protection buffer/corridor for sand extraction should be the same for horticulture as horticulture creates more dust.
•The topsoil is lighter and cultivated more often[.]
•There are often three crops a year and at times the paddock will be bare and can be left [fallow] for long periods of time[.]
•Sand mines are holes in the ground and wind will not have the effect as much as an open paddock with light topsoil. [For example] a fire in a hole opposed to a fire on a hill.
We live opposite the area in question and due east, separated only by Runnymede Road (a single lane only). With strong easterlies during the warmer months, if the paddock was being cultivated or [fallow,] it would be like being sand blasted in our own home.
We believe there needs to be a 20 metre vegetation strip established around the horticulture area in question, prior to commencement of use.
We would question the duty of care shown by the Shire of Harvey for citizens living in the locality, as dust pollution and chemical sprays are widely known to be a health hazard. The Shire is the local authority and therefore in a position to enforce better health and living conditions for their residents. Dust and chemical sprays are difficult to constrain to an area, and once again you require a substantial hedge as a buffer.
With chemical spray drift and the use of heavy fertilisers there is also the risk of contamination of drinking water, and the general occupation of a dwelling only [metres] away, which a buffer may not necessarily control. We believe any approval should only be allowed with stringent measures implemented.

Shire's position

The Shire contends that condition 2(h) is a fair, reasonable and valid planning condition. The Shire contends that condition 2(h) was prepared against the background of the guiding principles contained in the EPA's Guidance for the Assessment of Environmental Factors Separation Distances between Industrial and Sensitive Land Uses No. 3 June 2005 (EPA Guidance Statement 2005).
The Shire states that its rationale for imposing the conditions under review is that it is a fair, reasonable and valid planning condition.
The Tribunal notes that the EPA Guidance Statement 2005 was prepared for the purpose of 'Environmental Impact Assessments' (EIA) under the Environmental Protection Act1986 (WA) (EP Act). The Shire quite properly accepts that the applicant's proposal was not the subject of an EIA. The Shire submitted that the EPA Guidance Statement 2005 has not been rigorously applied by it and accepts that it is not bound by it. Rather, the Shire submitted that it had applied the principles in the EPA Guidance Statement 2005 as a guideline to a situation where a land use conflict may arise.
Accordingly, the Shire submitted that its reference to the EPA Guidance Statement 2005 was appropriate because 'horticulture' is an 'industrial land use' within the EPA Guidance Statement 2005. 'Industrial land use' is defined within the EPA Guidance Statement 2005 as:
Industrial land use, industry  a general term used in this Guidance Statement to encompass a range of industrial, commercial and rural land uses and infrastructure associated with emissions that may affect the amenity of sensitive land uses.

Clause 2.1 'Types of industrial land uses' of the EPA Guidance Statement 2005 states:
For the purposes of this Guidance Statement, 'industrial land use' is used in a general way to encompass a range of industrial, commercial and rural activities, and infrastructure, associated with off‑site emissions that may affect adversely the amenity of sensitive land uses.
The term includes:
…
•rural industry and some forms of agriculture;
•rural intensive land use;
…
The table in Appendix 1 includes a variety of land uses that may require consideration of buffers to manage off‑site impacts on the environment. However, the list is not definitive. … (Tribunal emphasis)
The Shire also submitted that the neighbours' dwelling is a 'sensitive land use' as defined within the EPA Guidance Statement 2005. 'Sensitive land use' as defined within the EPA Guidance Statement 2005 includes a 'residential development'. In turn, 'residential development' means 'any permanent structure whose primary use is as a dwelling place'.
Appendix 1 'Separation Distances between Industrial and Sensitive Land Uses' of the EPA Guidance Statement 2005 includes 'market gardens' which are 'broad‑scale operations', and states that the buffer distance should be 300 to 500 metres, depending on size.
The Shire submits that recognising the smaller scale of the proposed use, namely 19 hectares, and the objectives of the 'General Farming Zone', a generic buffer of 300 to 500 metres was not appropriate. However, the Shire considered that a buffer of 33 metres comprising a vegetated 20 metre strip and a 2 metre high screen fence was an appropriate environmental outcome and one which would result in minimal impact on the viability of the application.
The Shire has imposed a separation distance of an additional 23 metres, which includes a vegetated 20 metre strip and a 2 metre high screen fence. The conditions imposed by the Shire are significantly less than the 300 to 400 metre buffer distance suggested by the EPA Guidance Statement 2005. The Shire submits that the conditions are proportional to the size and type of crop and the risk of chemical spray drift.

Applicant's position

In brief, the applicant contends that condition 2(h) is not supported by any relevant policy framework applicable to the particular property and the particular proposal. In addition, the applicant contends that the implementation of the condition is out of proportion with the potential risks which it is attempting to ameliorate. The current separation distance of 60 metres between the applicant's proposed crop of carrots and onions and the neighbours' rural dwelling is sufficient, according to the applicant.
The applicant submits that greater reliance should be placed by the Tribunal on more recent research and guidelines in relation to buffer zones, including:
•research undertaken in 2009 by the University of Queensland, Natural and Artificial Spray Barriers for Spray Drift ‑ exposure mitigation in Australia by A Hewitt, G Dorr, (University of Queensland Research), which indicates that a vegetated buffer between urban and rural land of 20 metres in width is recommended, based on a worst case scenario, and that shorter distances may be acceptable for ground‑based spraying of pesticides of low toxicity; and
•The Guidelines for the Separation of Agricultural and Residential Land Uses ‑ Establishment of Buffer Areas 9 August 2012), published by the Department of Health (DOH Separation Guidelines 2012), which excludes single residential dwellings in land zoned Rural, Agricultural or the equivalent in local and regional planning schemes, and therefore no buffer is required.
The applicant also submits that in accordance with the University of Queensland Research, which involved ground‑based spraying of table grapes, the best management strategy to reduce the potential for spray drift is machinery selection and set up.
The applicant submits that the Shire placed too much reliance on the EPA Guidance Statement 2005.
The applicant submitted that the EPA Guidance Statement 2005 is designed to assist with EIA process under the EP Act. It is only 'significant proposals' under the EP Act which may be referred to the EPA (s 38 of the EP Act). The term 'significant proposals' is defined in s 37B of the EP Act as meaning 'a proposal likely, if implemented, to have a significant effect on the environment'.
Both parties agree that the applicant's proposal is not one which is likely to have a significant effect on the environment. The applicant submits that as the EPA Guidance Statement 2005 was created with the EIA process in mind, the buffers nominated in Appendix 1 of the document relate to projects of a significantly larger scale than his proposal.
The applicant also submits, in effect, that little weight ought to be attached to the EPA Guidance Statement 2005 due to it not keeping abreast of developments in technology, especially in relation to the application of chemicals in horticultural production. The EPA Guidance Statement 2005 is over nine years old and there is no indication that it has been 'updated regularly as new information comes to hand', as indicated in the document's Foreword.
Further, the applicant submitted that as the neighbours' dwelling is also within the General Farming zone, it could not be considered a 'sensitive land use' in the same way as a dwelling in a Residential or Special Rural zone could be considered. In summary, the applicant submitted that the zoning of the particular single residential dwelling in question is important. The applicant submitted that the importance of the zoning is relevantly emphasised by the DOH Separation Guidelines 2012. The DOH Separation Guidelines 2012 exclude the imposition of buffer areas to dwellings associated with bona fide agricultural holdings. The DOH Separation Guidelines 2012 relevantly state:
Definitions
…
Residential development - Urban subdivision, low-density residential subdivision and rural allotments created primarily for residential purposes and other places [used] as human accommodation, excluding dwellings associated with bona fide agricultural holdings.
…
Introduction
This document has been developed to consolidate the current Department of Health (DOH) position for the establishment of buffer areas in new residential subdivisions where possible conflicts with existing agricultural land use exist. The need for a formal policy arises as an increasing number of residential developments encroach on land previously occupied for agricultural use and concerns are raised or health impacts reported. Buffer areas can reduce conflict, health impacts and resulting complaints from conflicting agricultural, residential and other urban land uses.
…
Scope
This document provides recommendations on the minimum separation distance required between agricultural land use and residential land use based on current scientific knowledge and industry practice. These separation distances may be applied to other proposed sensitive land uses.
Single residential dwellings located in land zoned Rural, Agricultural or equivalent in local and regional planning schemes are excluded from this document.
…
Establishment and maintenance of buffer areas
New residential developments should protect the rights of the existing agricultural producers to continue to perform farming activities on their land.
…
6.Persons intending to live in or adjacent to an agricultural land use area need to be fully informed of the agricultural practices and their potential impact on health or amenity before they settle into the area.
…
(Tribunal emphasis)
The Tribunal will now consider the evidence and submissions made by the parties and determine the issue in dispute.

Is an additional buffer zone as set out in condition 2(h) appropriate?

For the reasons which follow below, the Tribunal finds that the applicant's proposed development is acceptable in terms of the relevant planning framework and that, therefore, conditions 2(h), 2(i) and 2(j) of the development approval are deleted. In summary, there are three main reasons for the Tribunal's finding:
1)the low spray emission height required for onions and carrots;
2)the applicant's current spray management techniques and equipment used; and
3)the zoning of both the lots as General Farming.
Before elaborating on the reasons for this finding, the Tribunal will deal with the issues of dust and the weight to be given to the various documents relied on by the parties.

Dust

At the final hearing the parties focussed on the possibility of spray drift as the major source of a potential land use conflict between the applicant and the neighbours. The applicant states that the land will be cropped all year round and that, accordingly, it is not left fallow for any extended period of time. Water is then applied to the crops once they are planted. The water ensures that the crops grow and also minimises the potential for dust. In these circumstances, the possibility of dust in the form of the applicant's topsoil blowing away towards the neighbours is negligible. The Shire did not dispute the continuous nature of the applicant's proposed cropping programme. The Tribunal accepts the applicant's evidence in relation to the proposed cropping programme and the minimal potential for dust. As a result, these reasons deal only with the issue of spray drift and not dust.

Documents relied on by the parties

The Tribunal accepts that there is no buffer policy which is directly applicable to an interface between a small scale agricultural land use and a single residential dwelling located in land zoned General Farming. The parties referred the Tribunal to various policies. Most of the policies relate to an interface between an industrial land use and a residential development. None of the buffer policies distinguish between groundbased spraying and aerial spraying of chemicals. Notwithstanding the different circumstances under consideration in this application, the parties submitted that some documents may provide relevant background information which may inform the Tribunal as to the need or otherwise for a buffer zone. The documents referred to by one or other of the parties include, in chronological order:
•State Planning Policy No 4.1 State Industrial Buffer Policy (SPP 4.1) dated 1997 which includes a reference to 'rural industry' but does not define that term.
•EPA Guidance Statement 2005 which applies to EIA under the EP Act only.
•Draft for public comment State Planning Policy No. 4.1 State Industrial Buffer Policy (SPP 4.1) (Amended) dated July 2009 which only applies to industry and does not refer to 'rural' or 'rural industry'.
•DOH Separation Guidelines 2012 which excludes single residential dwellings in land zoned Rural, Agricultural or the equivalent in local and regional planning schemes, and therefore no buffer is required.
The Shire submitted that it preferred to rely on the 'technical resources available to it', namely, the EPA Guidance Statement 2005. Although the Shire submitted that it did not seek strict compliance with the EPA Guidance Statement 2005, rather, it used the document as a reference and as a planning tool to ensure that potential conflicts in land use were managed within its boundaries. For example, the Shire has quite appropriately, given the scale and nature of the applicant's proposal, not requested that the applicant provide a site-specific and process-specific technical analysis as is 'generally expected' in the case of a major heavy industrial estate. However, such a sitespecific study is considered to be appropriate where the EPA Guidance Statement 2005 applies and where the separation distance is less than the generic distance in the EPA Guidance Statement 2005 (EPA Guidance Statement 2005, page 8).
The Tribunal agrees with the parties that the EPArecommended buffer of 300 to 500 metres as set out in the EPA Guidance Statement 2005 is to be considered at most as a guide only. The Tribunal accepts, as was properly agreed by the parties, that the EPA Guidance Statement 2005 does not bind the Shire or the Tribunal on review. The question for the Tribunal is how much weight should be applied to the EPA Guidance Statement 2005 in the circumstances of this case.
The Tribunal notes that the EPA Guidance Statement 2005 expressly applies to only those proposals which are the subject of an EIA (EPA Guidance Statement 2005 'Application', 'Foreword', clause 1 'Purpose', 5). EIA are, by definition, required when the proposal is generally of a larger scale. The parties accept that the applicant's proposal to grow 19 hectares of carrots and onions in a General Farming zone is not a proposal envisaged by the EIA process under the EP Act. In addition, the applicant is correct to query the currency of the EPA Guidance Statement 2005. The EPA Guidance Statement 2005 is expressly stated to have a duration of five years; that is, until June 2010 (EPA Guidance Statement 2005, clause 5.2). The weight to be attached to the EPA Guidance Statement 2005 requires an assessment of its reliability and probative value. In the Tribunal's view, while the EPA Guidance Statement 2005 has some relevance to the issue before the Tribunal and it is therefore admissible evidence, it is by no means determinative of the issue. The probative value of the evidence is its value in assisting in determining the matters in issue. In this matter, the Tribunal accepts the applicant's submissions and considers that the EPA Guidance Statement 2005 is only of slight assistance to the Tribunal, particularly given the nature and larger scale of the proposals it is designed to assist, and given the duration of the document. The EPA Guidance Statement 2005 must be considered in the context of the particular review and it must always be applied in the context of a particular review and a particular set of facts: see Miller and Shire of Waroona [2009] WASAT 238 at [37]. In the Tribunal's view, in the circumstances of this application, little weight is attached to the EPA Guidance Statement 2005. The factual circumstances of the current application are too far removed from the circumstances contemplated by the EPA Guidance Statement 2005 and where an EIA is required under the EP Act.
The Shire also placed some reliance on the draft amended version of SPP 4.1. The draft amended version of SPP 4.1 was released for public comment in July 2009 and is yet to be finalised. SPP 4.1 in its original form applies only to various industrial categories, including rural industry and some forms of agriculture and to rural intensive land use. The term 'rural industry' is not defined in SPP 4.1 or in the Scheme. Although the Scheme does define 'Industrial-Rural' as meaning 'an industry handling, treating, processing or packing primary products grown, reared or produced in the locality, and a workshop servicing plant or equipment used for rural purposes in the locality'. The Scheme does differentiate between zones for intensive farming and general farming. Both the intensive farming zone and the general farming zone include the land use categories of 'rural industry' and 'horticulture/viticulture'. Based on the above, under the Scheme and SPP 4.1, the applicant's proposed use is neither industrial nor rural intensive, rather it is horticulture. The Tribunal attaches weight to the Scheme differentiating between horticulture/viticulture and rural industries land uses and the intensive farming zone, as an indication that little weight is attached to the requirements of SPP 4.1. In addition, the terms 'rural' and 'rural industry' are not contained in the draft amended version of SPP 4.1, relied on by the respondent.
The draft amended version of SPP 4.1 is referred to in the DOH Guidance Statement 2012. In the Tribunal's view, SPP 4.1 in both its original form and draft form is of little assistance or guidance to the Tribunal in relation to the factual circumstances of this application for review.
The Shire did not accept that the exemption for Single residential dwellings located in land zoned Rural (and similar) under the DOH Guidance Statement 2012 ought to be applied in the circumstances of this case. By way of background, the DOH Guidance Statement 2012 is expressly excluded from the buffer zone requirements where the potential land use conflict is between agricultural land use and a single residential dwelling located in land zoned Rural, Agricultural or the equivalent. The DOH Guidance Statement 2012 applies where possible conflicts arise with existing agricultural land use and new residential subdivisions or residential land (DOH Guidance Statement 2012 'Introduction' and 'Scope'). The DOH Guidance Statement 2012 proposes a minimum 300 metre separation distance to control spray drift and other particles, based on the EPA Guidance Statement 2005. Alternatively, the DOH Guidance Statement 2012 allows a 40 metre separation distance where an adequate vegetative buffer is in place (DOH Guidance Statement 2012 'Establishment and maintenance of buffer areas', page 4). The DOH Guidance Statement 2012 acknowledges that buffers are not 'substitutes for good spray management practices'. The DOH Guidance Statement 2012 expressly states in the introduction that it 'has largely adopted the best practice standards described by the Queensland Department of Natural Resources in 'Planning Guidelines: Separating Agricultural and Residential Land Uses August 1997' and supported by CSIRO (2002) (Queensland Guidelines 1997).
The Queensland Guidelines 1997 refers to:
3.9Research and subsequent modelling has indicated negligible chemical drift at a range 300 m downwind from the release point of a chemical spray application (Spillman 1988). This research suggests a 300 m separation distance downwind of agricultural spraying is an acceptable minimum distance for adoption. …
References
…
Spillman J 1988, 'A Rapid Method of Calculating the Downwind Distributions from Aerial Atomisers' (EPPD Bulletin 13 (3): 425431.
The noteworthy aspect of the Spillman J research referred to and relied upon in the Queensland Guidelines 1997 and, in turn, the DOH Guidance Statement 2012, is that the research was undertaken in relation to aerial spraying rather than groundbased spraying. Spillman J's research recommended a 300 metre separation distance downwind of agricultural spraying from an aircraft.
In order to accord procedural fairness to both parties the Tribunal held a directions hearing on 14 November 2014 and directed the parties' attention to the Spillman research. The parties indicated that they did not wish to make any additional submissions regarding the 300 metre buffer relating to aerial rather than groundbased spraying, other than to accept the research. In the Tribunal's view, it appears that the reference to a 300 metre separation distance in the policy documents is consistent with the research involving aerial spraying rather than with groundbased spraying as is proposed in this case. The parties referred the Tribunal to documents which do not distinguish between aerial and landbased spraying. However, 'the size of the buffer zone will reduce proportionately to the spray emission height': see page 9 of Spillman J's paper. The Tribunal finds that the height of application of the chemical is critical to determine the appropriate separation distance to minimise the potential for spray drift.
Based on the information available, in the Tribunal's view, it is not appropriate to consider a minimum buffer of 300 metres as the starting point in the factual circumstances of this case. Rather, as set out in the DOH Guidance Statement 2012, buffer design ought to focus on the following:
The precise design of the buffer will depend on many different factors including the chemicals used, method of application, the site, the proposed landuses and the adjacent or nearby land use and characteristics including road reserves and existing vegetation.
(DOH Guidance Statement 2012 'Establishment and maintenance of buffer areas', page 4)

The Tribunal accepts that, in the factual circumstances of this case, the DOH Guidance Statement 2012 is of great assistance insofar as it requires a single residential dwelling in a rural area to be regarded differently to a dwelling in a residential area. The interface in this case is between rural land and a rural dwelling, rather than a rural land and an urban dwelling. The nature of the interface in this case is one contemplated expressly by the DOH Guidance Statement 2012.
The Tribunal will now give its reasons which, when considered cumulatively, find that the buffer conditions attached to the development approval are not warranted in the circumstances of this case.

The height from which the applicant's crops are sprayed is in the order of 500 millimetres above the ground

Based on the research before the Tribunal, an important consideration in relation to the issue of spray drift is the height from which the crops will be sprayed with chemicals. The applicant intends to grow carrots and onions on the subject land. Both crops grow very close to the ground, unlike other forms of horticulture/viticulture; for example, table grapes or fruit trees. Accordingly, any chemicals applied to the target plants namely, carrots and onions are applied from a maximum distance of 500 millimetres above ground level, according to the applicant. The chemicals applied by the applicant include standard sprays such as Roundup, and general pesticides for aphids and insects.
As set out above, the Tribunal accepts that the spray emission height will determine the size of the buffer zone. Simply put, the lower the spraying height, the smaller the buffer zone. In this case, the spraying height is very low to the ground and the possibility of spray drift is reduced proportionally.

The applicant's spraying practices

The applicant's spraying practices are outlined in his submission to the Tribunal made on 14 February 2014. The applicant says that he has farmed in the area for 20 years. He therefore has a strong understanding of horticulture and the prevailing environment in the area. The Tribunal accepts that the applicant is an experienced horticulturalist and is very familiar with the local conditions. The applicant states that he operates a best practice spraying programme and follows the Department of Agriculture recommendations for the spraying of chemicals from the ground (rather than from the air). For example, the applicant sprays only when the conditions are suitable; that is, when the temperature is not too high and when the wind direction and speed are suitable. The applicant minimises spray drift by using what he claims to be the best spray unit on the market namely, a Hardi Twin Stream Air Assisted Sprayer and by spraying no higher than 500 millimetres above the ground. The spray unit itself has a large sock extending the full width of the boom, which directs air in front or behind the sprays to minimise spray drift. The applicant submits that the system he uses reduces spray drift by up to 80% compared with conventional units, and he further submits that there is a 16% reduction in chemical usage. Spraying occurs on the applicant's property six times a year.
The Shire did not contest or contradict in any way the accuracy of the applicant's spraying regime or chemical management practices. Accordingly, the Tribunal accepts the applicant's submissions and evidence in this regard.
The applicant submits, and the Tribunal accepts, that his proposed use and the setback distances required in the Scheme under Table 28 mean that additional measures aimed at mitigating spray drift are not required.
The Tribunal also attaches a great deal of weight to the University of Queensland research which was undertaken in 2009. The Shire did not object to the applicant's reliance on the research relating to potential spray drift distances, spraying practices and spraying equipment in relation to ground‑based spraying.

The zoning of the land

The applicant's proposed land use, while discretionary, is entirely consistent with the Shire zoning under the Scheme.
The Scheme aims to retain the preeminence of agriculture, especially in the General Farming zone. One of the principal mechanisms for protecting agriculture and to minimise the potential for land use conflicts is the provision of setback distances.
Another factor which weighs in favour of the buffer conditions being unnecessary is that not one of the departments who were invited to comment sought to impose any buffer conditions.
The Tribunal is satisfied that the combination of the variety of crops grown by the applicant and his best practice spraying regime is sufficient to prevent a potential unacceptable impact on the amenity and health of the neighbours' single residential dwelling located on land zoned General Farming.

Conclusion

Balancing the relevant planning considerations and the concerns raised by the neighbours, the Tribunal finds that the proposed development is acceptable in relation to the health and amenity impact arising from potential spray drift. The Tribunal therefore allows the application and varies the decision under review by deleting conditions 2(h), 2(i) and 2(j) from the Shire's approval.

Orders

The Tribunal makes the following orders:
1.The application for review is allowed.
2.Pursuant to s 29(3)(b) of the State Administrative Tribunal Act 2004 (WA), upon review of the respondent's decision to grant the applicant conditional approval to change the use of the subject land to 'Horticulture', the respondent's decision in the Notice of Planning Permission dated 10 December 2013 is varied to delete conditions 2(h), 2(i) and 2(j).

I certify that this and the preceding [76] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS L WARD, MEMBER