LAMBERT and CITY OF ARMADALE - [2017] WASAT 144

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: LAMBERT and CITY OF ARMADALE [2017] WASAT 144

MEMBER: MR J JORDAN (SENIOR SESSIONAL MEMBER)

HEARD: 21 AND 22 AUGUST 2017

DELIVERED : 20 NOVEMBER 2017

FILE NO/S: DR 60 of 2017

BETWEEN: SUZANNE LAMBERT
CHRISTINE LAMBERT
Applicants
AND
CITY OF ARMADALE
Respondent

Catchwords:

Town planning - Development refusal - Proposed rural pursuit (keeping of horses) - Rural living zoning - Lot adjacent to Canning River and tributary - Nutrient export - Water quality protection - Environmental impact - Stocking rate guidelines - Whether nonconforming use rights - Orderly and proper planning - Monitoring and enforcement of conditions

Legislation:

City of Armadale Town Planning Scheme No 4, cl 3.2.3, cl 3.8, cl 3.8(a), cl 3.9 cl 3.9.1, cl 4.25(8), Pt 4B, Sch 1
Metropolitan Region Scheme
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, cl 67
Planning and Development Act 2005 (WA), s172, s 252(1)
Swan and Canning Rivers Management Regulations 2007 (WA)

Result:

Application for review dismissed

Summary of Tribunal's decision:

This was an application for planning approval for the keeping of two light horses and two ponies on a 1.3 hectare lot adjacent to the Canning River and a subsidiary stream in Kelmscott. The use would also require partial piping of the stream and filling to create an exercise arena.
The Tribunal found that, while there might be a nonconforming use right in existence for stables on the site and the keeping of a horse for recreation, there was not in place any right for a current owner to decide on what number of horses they would like to keep. The Tribunal considered the keeping of horses, as proposed in this matter, required assessment against the relevant planning and environmental instruments.
The proposal was weighed against base stocking rates developed for particular soil types and in proximity to sensitive areas, such as the watercourses. There was no dispute that the application constituted a significant increase in the applicable stocking rate. The applicants proposed a condition be imposed requiring the implementation of specific ongoing management practices that it was said would prevent land degradation and nutrient export to the watercourses.
The Tribunal was concerned, however, about the difficulty of critical ongoing monitoring and enforcement of the conditions that would be required. This was of particular concern because of the proximity of the site to the sensitive sites of the Canning River and its ephemeral stream. The Tribunal concluded that it would not be consistent orderly and proper planning to grant planning approval for the proposed keeping of the two light horses and two ponies on the site.
The Tribunal decided to dismiss the application.

Category: B

Representation:

Counsel:

Applicants: Mr E Turner
Respondent: Mr J Algeri

Solicitors:

Applicants: Turner Master Planners Australia (Town Planners)
Respondent: Altus Planning & Appeals

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

La Rosa v City of Wanneroo [2006] WASC 304
S & L Lenz Pty Ltd v The Shire of Serpentine-Jarrahdale [2017] WASC 191

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

These proceedings involve an application for review filed by Suzanne and Christine Lambert (applicants) pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) of the refusal by the City of Armadale (respondent or City) to grant planning approval for an application for a Rural Pursuit (keeping of horses) at Lot 5 Brookton Highway, Kelmscott (site).
On 21 August 2017, the Tribunal conducted a view of the site accompanied by the applicants, the representatives of the parties and the expert witnesses. To assist the Tribunal, the applicants called as expert witnesses, Mr Ed Turner a town planner and Dr Peter Keating, a biochemist, who provides analytical and technical consulting services to agriculture, horticulture and the environmental and property development industries.
The respondent called as expert witnesses, Mr Joe Algeri, a town planner and Mr Andrew Mack, an environmental engineer who has experience in environmental approvals, compliance, environmental monitoring and management.

Site and locality

The site is one of a series of lots of about the same area situated between Brookton Highway and the reserve for the Canning River.
The site has an area of 1.2971 hectares with frontage of about 80 metres to Brookton Highway at southeast boundary and a frontage of about 50 metres to the reserve for the Canning River at the northwest boundary. The depth of the site is about 197 metres.
A house is situated at a setback of just over half the depth of the block from the Brookton Highway frontage. A brick and iron barn with stables is adjacent to the front northeast corner of the house. The front setback comprises a fenced area and a horse shelter used mostly for storage. To the rear and side of the house is a further horse shelter and five fenced pastured paddocks.
A stream enters the site at the southeast corner of the frontage and flows diagonally across the front paddock in an undefined path before again being confined to a channel adjacent to the front southwest corner of the house. The stream then flows to the Canning River in a channel adjacent to the southwest boundary, mostly within the neighbouring lot to the west.
To the southeast across Brookton Highway is a recent residential subdivision where houses are being constructed. South of Brookton Highway the stream flows in what is effectively a landscaped drain before passing through culverts under Brookton Highway to near the site.
The lots to the east and west of the site along the river frontage appear to be used for rural living purposes, some with rural type activity such as horticulture, grazing and remnant small orchards.

Planning and environmental framework

Under the City of Armadale Town Planning Scheme No 4 (TPS 4), the site is zoned 'Rural Living 2'. In addition, part of the rear of the site, along the northwest boundary and partly on the southwest boundary, is identified in TPS 4 as Special Control Area (SCA) Flood Prone Areas and Flood Fringes. A strip of the site up to 17 metres deep along the front boundary adjacent to Brookton Highway is preserved as 'Primary Regional Roads' under the Metropolitan Region Scheme (MRS).
To note is that the application was referred to the Western Australian Planning Commission for determination under the MRS because of the road reservation. No decision has yet been made.
TPS 4 has been subjected to a series of amendments since it was originally gazetted on 4 November 2005. Subsequent to the hearing, TPS 4 provisions and schedules referred to by the parties have been renumbered sequentially. The wording of the relevant provisions and schedules has not been changed. The Tribunal will refer to the current numbering.
Clause 3.2.3 of TPS 4 outlines the following objectives for the Rural Living zone:
(a)To provide for a variety of rural living environments based on defined lot sizes, land form and natural environmental characteristics.
(b)To provide for a range of associated compatible development, consistent with the environmental opportunities and constraints applicable to individual sites.
(c)To ensure development is sited, designed and managed in harmony with the natural environment and so as to protect the rural landscape and amenity.
Under the Zoning Table of TPS 4, the use 'Rural Pursuit' has the symbol 'D', which signifies a discretionary use in the Rural Living zone and so requires the exercise of discretion if an approval is to be granted.
At Sch 1 of TPS 4, the definition of a rural pursuit includes the following:
'rural pursuit' means any premises used for
(a)the rearing or agistment of animals;
(b)the stabling, agistment or training of horses;
...
(d)a riding school[.]
Under Pt 4B of TPS 4, which is concerned with Rural Living requirements, it states:
4B.6STOCKING RATES AND CONTROL OF GRAZING
4B.6.1Unless otherwise approved by the Local government in accordance with the provisions of clause 4.5, stocking rates shall not exceed those recommended by Agriculture WA.
Note:The 'Stocking Rate Guidelines for Rural Small Holdings' should be used to determine appropriate stocking rates for the applicable pasture type unless specifically recommended otherwise by Agriculture WA.
4B.6.2Notwithstanding the provisions of clause 4B.6.1, land is not to be grazed or stocked in such a way as to:
(a)cause topsoil to be exposed,
(b)cause trees to be ring-barked or otherwise damaged,
(c)degrade the margins of water courses, or
(d)otherwise detrimentally affect natural resource values,
Note:Where, in the opinion of the Local government, land is being grazed in such a way as to detrimentally affect land or water resources, the Local government may, in accordance with Section 214 and Section 218 of the Planning and Development Act 2005, order a reduction in number of stock or removal of stock and/or the protection of trees or vegetation.
There were submissions by the parties as to whether or not the current use made of the site was a lawful nonconfirming use. Clause 3.8 of TPS 4 states with respect to nonconforming uses:
Except as otherwise provided in the Scheme, no provision of the Scheme is to be taken to prevent
(a)the continued use of any land for the purpose for which it was being lawfully used immediately prior to the Gazettal date;
(b)the carrying out of any development on that land for which, immediately prior to the Gazettal date, an approval or approvals, lawfully required to authorize the development to be carried out, were duly obtained and are current[.]
Clause 3.9 of TPS 4 states the following with respect to extensions and changes to a nonconforming use:
A person must not
(a)alter or extend a non-conforming use;
(b)erect, alter or extend a building used in conjunction with or in furtherance of a non-conforming use; or
(c)change the use of land from a nonconforming use to another non-conforming use[.]
The PD Act, at s 172 states:
non-conforming use means a use of land which, though lawful immediately before the coming into operation of a planning scheme or amendment to a planning scheme, is not in conformity with a provision of that scheme which deals with a matter specified in Schedule 7 clause 6 or 7[.]
The Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (Planning Regulations 2015), Sch 2, cl 67 lists matters to be considered when determining a development application, which include:
(a)the aims and provisions of this Scheme[;]
..
(c)any approved State planning policy;
...
(g)any local planning policy for the Scheme area;
...
(n)the amenity of the locality including the following
(i)environmental impacts of the development;
(ii)the character of the locality;
(iii)social impacts of the development;
(o)the likely effect of the development on the natural environment or water resources and any means that are proposed to protect or to mitigate impacts on the natural environment or the water resource;
...
(q)the suitability of the land for the development taking into account the possible risk of flooding, tidal inundation, subsidence, landslip, bush fire, soil erosion, land degradation or any other risk;
...
(w)the history of the site where the development is to be located[.]
State Planning Policy 2.9 Water Resources (SPP 2.9) at cl 5.3(v) states:
Ensure adequate and appropriate buffering of wetlands, waterways and estuaries to maintain or enhance the environmental attributes, functions and values of the water resource and minimise the impact of nearby land uses, both existing and future[.]
Schedule 2 of SPP 2.9 identifies in respect to 'Guidance for the Determination of Appropriate Buffering of Waterways and Estuaries', that '[e]xisting mechanisms for identifying foreshore management and protection areas are generally based on a "foreshore reserve" width of 30 m for waterways (WAPC Development Control Policy 2.3) ...'.
Relevant also to the determination of this matter and the submissions of the parties were the following planning and environmental documents. The appropriate sections will be referred to in the discussion below.
•City Of Armadale Local Planning Policy 2.7 Environmental Management and Improvement Policy for Development of Constrained Land (LPP 2.7);
•City of Armadale Brochure 'Farm Animals', updated October 2017;
•State Planning Policy 2.5 Rural Planning (SPP 2.5);
•Water Quality Protection Guideline No 13 Environmental Guidelines for Horse Facilities and Activities Water and Rivers Commission, Department of Environmental protection and Department of Health 2002 (WQPG 13);
•Swan and Canning Rivers Management Regulations 2007 (WA); and
•Stocking rate guidelines for rural small holdings, Swan Coastal Plain and Darling Scarp and surrounds, Western Australia, Department of Agriculture 2000 (Stocking Rate Guidelines).
Relevant to this matter is the established practice of using animal equivalents for the calculation of stocking rates. The Stocking Rate Guidelines say stocking rates are based primarily on potential pasture damage which depends on feeding patterns and foot structure. The common measure is a dry sheep (50 kilogram wether) equivalent (DSE). For horses a 450 kilogram light horse is the equivalent of 10 DSE and a 250 kilogram pony is 5 DSE. To note is the Department of Agriculture and Food is now the Department of Primary Industries and Regional Development (DPIRD).

The proposal

The filed documents show that in April 2014, the applicants lodged with the City an application for planning approval for a 'Horse Training Arena' on the site. In September 2014, the City refused that application and reason 7 of the reasons for refusal stated:
Approval has not been applied for or granted for the use of keeping horses on the property.
That led to the current application being filed with the respondent in August 2015. The application was supported by an Equine Land Management Plan, version 1, (ELMP1), prepared by Bioscience Pty Ltd which proposed the keeping of two light horses and two ponies. Use would be made of the existing stables building and the existing paddocks at the rear of the site. The application proposed the front setback on the site be filled and levelled which would require the piping underground of the existing stream which traverses the site.
Following a request for more information from the City, ELMP1 was amended. The next version, ELMP2, provided by the applicants in February 2016 was for the keeping of one light horse and two ponies. The fourth version, ELMP4 prepared by Dr Keating, now before the Tribunal is for approval for the keeping of the two light horses and two ponies and the filling and retaining of the front of the site to a clean sand finish for an exercise arena, with the piping underground of the stream across the site. ELMP4 before the Tribunal states at clause 4.2 that:
Equine land management control is being applied with consideration to existing horses within the lot. This includes; two light horses (approximately 450 kilograms) and two ponies (approximately 250 kilograms).
Under the heading 'Assumptions' at clause 5.12(ii) the ELMP4 states:
The horses would be kept in the stables and taken out to graze in the various fenced paddocks.
ELMP4 states at clause 5.1 that the horses are stabled between 2:30 pm and 8:30 am, where they are fed. The horses would graze on pasture for the remaining six hours: 'In addition, they are taken away from the property up to 5 times a week to an equestrian facility at Darling Downs, for around 2-3 hours. On weekends they are away from the property for the entire day to attend either pony club or shows'. At the time of the view there were two horses on the site.

Reasons for refusal

The City's refusal was for the application for the keeping of one light horse and two ponies and the site works required for the front exercise arena and piping of the stream. This refusal, issued on 24 January 2017, cited the following reasons:
1.The application has not satisfactorily demonstrated that the proposed reduction to the standard conservation category wetland buffer, from 50 m to 15 m to the proposed paddocks, and the proposed piping and realignment of the existing water course, would not have a detrimental environmental impact, which is inconsistent with ... clause 67(o) of the Planning and Development (Local Planning Schemes) Regulations 2015.
2.The stocking rate for the lot is 6 dry sheep equivalent (DSE) per hectare for nonirrigated paddocks or 20 DSE per hectare for irrigated paddocks based on the soil type of the land (SW4). The available land for grazing/keeping of horses (once house, outbuilding, flood plain and 50 m setback to the river are removed) is approximately 770m² which permits 15.4 DSE on the property for irrigated pastures, which is equivalent to 1 horse (450 kilogram – 10 DSE) and one pony (5 DSE) in accordance with the 'Stocking Rate Guidelines for Rural Small Holdings, Swan Coastal Plain and Darling Scarp Western Australia', Department of Agriculture, 2000.
3.The proposal to keep one horse and two ponies (total 20 DSE) exceeds the Stocking Rate Guidelines and given the location of the paddocks and stables within close proximity to the Canning River, an environmentally sensitive area, the application cannot be supported in its current form.
The application for review was filed on 21 February 2017 and in support of that application, ELMP4 was prepared to support the keeping of two light horses and two ponies, that is 30 DSE, on the site, plus the works for the underground piping of the stream and earthworks for the exercise arena in the front setback.

The issues

The first issue raised was:
Whether 'nonconforming use' rights exist for the 'keeping of horses' '(Rural Pursuit)' on the site.
The respondent then said that should approval be required, the issue was whether it should be issued having regard to the following items from cl 67 of the Planning Regulations 2015 relevant to this matter, which can be summarised as follows:
a)the aims and provisions of TPS 4;
b)the requirements of orderly and proper planning;
c)any approved state planning policy;
d)any local planning policy for the TPS 4 area;
e)the amenity of the locality including the following
i)environmental impacts of the development;
ii)the character of the locality;
f)the likely effect of the development on the natural environment or water resources and any means proposed to protect or mitigate impacts on the natural environment or the water resources;
g)the suitability of the land for the development taking into account the possible risk of flooding, subsidence, landslip, soil erosion, land degradation or any other risk; and
h)the history of the site where the development is to be located.

Discussion

Issue 1: Whether 'nonconforming use' rights exist

Relevant to the discussion is that the City's first town planning control for the district was Town Planning Scheme No 1 gazetted 5 April 1973, followed by Town Planning Scheme No 2 and No 3 in 1985 and 1992, respectively, and TPS 4 gazetted 4 November 2005. It was not disputed that prior to 1973, there had been no local law requiring an approval for the keeping of horses.
The evidence shows that in 1952, while what was to become the site was described as Kelmscott Suburban Lot P5, it was but one of seven lots on a single Certificate of Title. The site was created as a separate lot and disposed of in May 1972. The applicants argued that for the larger area, the keeping of horses was a lawful nonconforming use because it commenced prior to April 1973, and prior to the interim development order for the control of development under the MRS in 1957. At least for the site, the keeping of horses has essentially continued to the present day.

Ms Suzanne Lambert said family members had initially lived on the larger holding that included the site and when it was sold in 1900, lived nearby to the larger holding from which Lot 5 was later to be excised. She had some records of and had heard of the use of horses on the holding, although there are no family records between 1963 and 1972. A series of aerial photographs, from 1953 onward were filed by the parties and a house on the site was built in about 1972 by the then owner, which first appears on the 1974 photograph.
A witness statement was filed by Mr David Koutsoukis who lived on the site as a teenager between 1972 and 1981 and he said his sister had a pet horse during that time. The site was then sold to the applicants' uncle and aunt who owned it until 2013. The uncle said in a statutory declaration that he kept horses, with Ms Suzanne Lambert saying there had been up to 8 racehorses. Ms Suzanne Lambert, in her witness statement, said she and her sister bought the site in 2013 and have kept horses, mostly in the combination now applied for.
Ms Suzanne Lambert and Mr Koutsoukis were examined and the parties exhaustively discussed the series of aerial photographs. The photographic evidence showed that from 1953, a stable building later remodelled to be on the current location and horse shelters on the site, at least one of which remains in the same location. The photographs also showed the site as being an orchard from that time, initially in the area between the stables and then between the house and the river, with the poorer appearing orchard at the front of the site being replaced by horse exercise yards in the 1980s; then subsequently the remaining orchard being replaced by fenced paddocks to the rear of the house.
Each party cited La Rosa v City of Wanneroo [2006] WASC 304 (La Rosa) in support of its position. The applicants referred to the tests at [91] [94] and [98] of La Rosa to argue that the keeping and use of horses over most of the larger holding, including the site, supported a conclusion that the nonconforming use could be considered to be continuing on the site after being excised as a separate lot. There may have been short periods of discontinuance, but it was argued there has never been any intention to completely cease the keeping of horses on the site.
The respondent noted the horse shelters and the stables but pointed out there was no evidence of actual horses on the site prior to 1972. The respondent argued that no record could be found for granting of the approval to keep horses on the land and so a nonconforming use right could not have been established.
Consistent with [16] of LaRosa, cl 3.8(a) of TPS 4 requires that to preserve a non-conforming use right, the use must be continuing and have been lawfully commenced prior to the gazettal of the first scheme. It is not required that there has ever been an application for the use and an approval granted if commenced prior to April 1973. Since April 1973, it can be said that any new development of infrastructure for the keeping of horses or the commencement of the actual keeping of horses beyond what might have historically have occurred, must be the subject of a planning application and would be in the discretion of the City.
There was no dispute that the locality was taken up by farmers about 150 years ago. Comment was made that the locality was developed for agriculture, and initially it was common for farms to use horses for work and transport.
The only evidence that horses for work and recreational activity were kept on the lot from which the site was excised prior to 1972 is anecdotal.
The Tribunal is inclined to accept that horses were part of the use, initially of the larger holding and then of the site between when the Koutsoukis family took occupancy and the gazettal of TPS 1, with any gap not being an intention to abandon the stabling or keeping of a horse on the site. This is supported by the evidence of the continued existence, since the 1950's, of stables and at least one of the horse shelters on the site. There is no evidence, however, of the number of horses kept up until 1972. In that respect, it is arguable that much of the development and the horse activity that commenced in the 1980s, but which was later reduced, was over and above any nonconforming use right and required planning approval. Relevant in this regard would have been cl 4.25(8) of TPS 1 that required planning approval for the keeping of horses for commercial gain in the Rural zone.
The Tribunal considers that the evidence points to there likely being an unknown number of horses that were associated with what became the site prior to 1972, but that from 1972 until the gazettal of TPS1 in April 1973, there was the intent and the actual fact of the ongoing keeping of one horse for recreational use on the site. That was the extent of the non-conforming use established when it became necessary to have planning approval if horses were to be stabled and kept on the site. The Tribunal is of the opinion that the current proposal is to alter or extend an existing nonconforming use but, as set out in cl 3.9.1 of TPS 4, this this cannot occur unless an application for planning approval has been made and an approval granted.
The Tribunal has proceeded on the basis that the planning application is essentially for an extension of the existing non-conforming use.

Issue 2: Whether planning approval should be granted

The merit of this application turns on issues 2(e), (f) and (g) listed above. An examination of the evidence and submissions in support of and against the proposed use having regard the considerations listed as issues and the to the relevant provisions of TPS 4 and the applicable planning and environmental policies can establish whether the proposed development would be consistent with orderly and proper planning.
The provisions of the planning and environmental instruments relevant to the use of the site have as an objective the prevention of degradation of the site and nutrient export to adjacent waterways. Stocking rates are significant in assessing the potential for pasture damage, land degradation and nutrient runoff. There was extensive exchange in the examination of the environmental witnesses on an appropriate stocking rate for the site. At the risk of being too succinct, the Tribunal understood that the soil type on the site was to be identified; this was then related to a unit code which in turn referred to a base stocking rate per hectare for, in this matter, irrigated pasture.
Refusal reason 2 referred to a soil type 'SW4' which the evidence shows the respondent obtained from correspondence with the DPIRD which, it might be assumed, identified the soil type from its literature. Dr Keating questioned this soil classification (which Dr Keating submitted should be cited as '213PjSW4') because of his onsite examination which included the digging of holes to examine soil profiles. Dr Keating said SW4 was correct only for the riparian terrace of the Canning River, which was outside the site. Dr Keating identified the site as having loamy flats and terraces. This he considered better complied with the description of unit code SR7 in Table 1 of the Stocking Rate Guidelines with associated base stocking rate of 25 DSE/hectare for irrigated pasture.
Mr Mack noted the soil in the holes during the view of the site, but would not dismiss DPIRD's classification which was said to relate to pale sand flats. From his examination of the geological survey literature, he noted soil type 'Scg' (gravelly clayey sand) for the site. In his assessment the soil type best related unit code SR4 in Table 1 of the Stocking Rate Guidelines with the associated stocking rate for irrigated pasture of 20 DSE/hectare.
The Tribunal would comment that, on the evidence, it is persuaded by Dr Keating's site specific approach and identification of the soil type. From identifying a soil type and related unit code, the area available on the site within which the horses would be kept then becomes relevant.
It is appropriate to note that the environmental experts referred to two sources for stocking rate calculations. One is the Stocking Rate Guidelines using DSE. The other is found in the WQPG 13 which is primarily concerned with nutrient runoff to various types of water bodies. The base rate in WQPS 13 is minimum hectares per horse, for, in this instance irrigated, pasture. Both sources use the DPIRD unit code related to soil type and if unit code SR 7 is accepted for the site, the two methods come to near the same requirement of about 1.2 hectares as a base area for the proposed use.
Dr Keating said that some 4,672m² was available for the keeping of horses because he did not include the area in the front of the house which he considered to be a training arena not a grazing paddock. This available area would have a capacity to accommodate some 11 DSE using the baseline figures. Dr Keating was of the view that with the management practices set out in ELMP4, 4672m² was sufficient to accommodate 30 DSE.
Dr Keating acknowledged that the use proposed did not comply with the base stocking rate of either method of calculation. It was his submission, however, that while the Stocking Rate Guidelines were an important starting point, base stocking rates were related to the consumption of and impact on pasture by animals. Dr Keating said the management plan at Part 5 of ELMP4 provides that the horses are only on the pasture a maximum of 36 hours per week. The horses were placed in the paddocks, not to sustain them, but mostly for their wellbeing. This, Dr Keating said, together with the horses being stabled and fed imported feed more than half the time, contributes to adjusting the stocking rate for the soil classification to have 30 DSE on the site.
It is appropriate to note at this point that ELMP4 management plan includes such measures as monitoring pasture length to ensure it is greater than 5centremetres and an associated rotation of paddocks, maintaining 85% ground cover on paddocks, daily gathering, storage and removal of urine soaked bedding and manure, no leaching to ground water at all of any nutrients from manure in paddocks and encouragement of dung beetles. The management plan referred to some horses being absent from the property for up to three hours a day five days a week and on Saturdays when competing and it was said there would be soil testing for nutrient mass balance.
In respect to WQPG 13, Dr Keating referred to the note in Table 1 of the Stocking Rate Guidelines, and repeated in Appendix 2, that stocking rate increases in excess of the guidelines require a management plan which includes measures to minimise nutrient export. He related this to the horses being in the paddocks no more than six hours a day and on managed hard surfaces with bedding in the stables for the remaining time. It was his evidence that the soils were colluvial and not alluvial. This soil type, it was said, increased nutrient retention, which was assisted by the type of pastures sown on the paddocks. Dr Keating said his investigation showed that there was sufficient depth to groundwater on the site and that the shallow slope of the paddocks would prevent runoff into the stream and Canning River. The applicants would continue their practice of collecting manure and disposing of it offsite. In his submission, the list of items to prevent or minimise nutrient export, where relevant, had all been addressed in ELMP4.
Dr Keating also said it was appropriate to have regard to the history of the site that included the applicants keeping two light horses and two ponies for the last several years. He said that an examination of the pasture showed that the practices employed by the applicants had not resulted in degradation of the site or adjacent waterways. In his submission, with ELMP4 in place to ensure practices were continued, the site could accommodate 30 DSE.
Mr Mack based his calculations on an available area of 7,700m², of which area included the front setback of the site, and calculated base stocking rates of 15 DSE. Mr Mack said he believed ELMP4 did not provide for management that would result in essentially a doubling of the stocking rate possible on the site. Significant concerns related to any ongoing monitoring to ensure that the testing, such as of soils, and the critical management practises, such as the treatment and disposal of manure and soiled bedding, were completed as required. He also produced aerial photographs that appeared to show bare soil in some paddocks, although this was not evident in the view.
Mr Mack, and Mr Algeri, pointed out that an area can be considered environmentally sensitive if it is one of a number of the types listed in clause 2.2 of the WQPG 13. These include:
...
c)All waterways including those managed under the Waterways Conservation Act, Swan River Trust Act and the Water and Rivers Commission Act;
d)Wetlands of regional, national and international importance, including but not limited to: Conservation Category Wetlands...
e)Areas within buffer distances to sensitive environments[.]
Mr Mack further referred to WQPG 13 Table 2 Setbacks for Environmentally Sensitive Areas. The environmental experts noted the default buffer for a conservation category wetland (CCW) was 200 metres under WQPG 13 but agreed that this could be reduced with appropriate management practices.
It was Dr Keating's opinion that the CCW designation for the Canning River can be interpreted as an error. This was because all native vegetation except for a few river gums had been removed and the banks and terraces disturbed by grazing animals and water extraction. Nevertheless, the Tribunal notes that the Canning River is a CCW and the impact of the proposal particularly on the River itself is a factor to be weighed.
Mr Mack referred in Table 2 to buffers of 50 metres from watercourses with banks steeper than 1 in 4, such as the Canning River in this location, and 30 metres from ephemeral watercourses such as the stream.
Dr Keating argued that the 50 metre buffer, which would remove two of the rear horse paddocks, was unnecessary because of the soil and pasture type, the shallow grade of the paddocks and the way the horses and manure were managed. It was his submission that the proposed 40 metre setback from the Canning River would be adequate and no buffer at all was required from the stream, which ran outside the site boundary, again because of the way in which the paddocks were graded, grassed and managed.
The Tribunal has formed the view that the proposed setback from the Canning River would be adequate in the circumstances of the site. The steep banks of the river are separated from the site by the reserve in which the Canning River flows and then by the relatively flat rear area of the site, where the horses would be excluded. The Tribunal is not convinced, however, that there need not be any setback from the ephemeral stream. At clause 3.2.1, WQPG 13 says proposals for the keeping of horses in environmentally sensitive areas that do not comply with base stocking rates should be referred to what is now the Department of Water and Environmental Regulation for assessment. This has not occurred.
The Tribunal notes that the stream effectively operates as a drain, but it does flow directly into the Canning River and, while located on the neighbouring lot, the stream does abut the boundary fence which is also the fence to the grazing paddocks. Also obvious to the Tribunal was the disturbed ground, muddy on the day of the view, around the rear horse shelter adjacent to the boundary, which may have potential for nutrient and soil export. In considering the area available for the calculation of stocking rate, the Tribunal is of the view that the buffer area of 30 metres for the stream should have been excluded. This has the effect of reducing the stocking capacity for the site and so increasing the discrepancy with the proposed 30 DSE.
The Tribunal considers it important to bear in mind that any planning approval runs with the land and so if the use were approved all future owners could keep horses (to the equivalent of 30 DSE) on the site. In this regard, the conditions that might be imposed if the development were allowed that were discussed between the parties were also of concern to the Tribunal. The conditions included compliance with ELMP4, no horses within the buffer of the Development Control Area along the watercourses (with the applicants only wanting reference to the Canning River and not to the stream) and, notwithstanding ELMP4, compliance with the provisions of cl 4B.6.1 of TPS 4, set out above. The parties generally agreed that such conditions were required if the development were to proceed.
The Tribunal is always concerned when considering whether an approval is to be granted, it must be determined whether conditions are necessary and if so, then that the conditions are enforceable. To be enforceable a condition should be capable of being monitored and there should be clear evidence of any breach.
A close reading of ELMP4 reveals management practices critical to supporting a stocking rate double that of the base rate. The Tribunal has formed the view that any monitoring of the suggested management practices would be too difficult or too onerous, particularly because of the reliance on the behaviour of the people conducting the use. There are no physical changes to structure, infrastructure or topography that are to be put in place that can be readily observed. The management measures set out in ELMP4 are interpreted by the Tribunal as mostly setting out the daytoday practices of the current owners and there was no dispute that the property is well managed. However, planning conditions are not considered in the light of a current owner, but as an objective assessment of how an ongoing use is to be controlled and monitored if controls are necessary for the use to be allowed.
Why the Tribunal considers this significant is that it would be critical for the proposed use that there be in the future ongoing compliance with ELMP4, which also refers to some of the horses being absent from the property for a number of days each week. This is not a borderline case because the stocking the site at 30 DSE is near to double the base rate and this would be the ongoing permitted use. The Tribunal has no confidence that it can be assured that there will in the future be compliance with ELMP4 because of the difficulty of monitoring and enforcement. Noncompliance with conditions of planning approval might eventually become obvious if in the future ELMP4 is not fully adhered to, but the concern is that the only clear evidence of this would be at the point where the site was becoming degraded and soil and nutrient export from the site to the adjacent environmentally sensitive waterways was obvious.
The Tribunal has therefore concluded that, even with an ELMP as proposed, it cannot support a planning approval for the ongoing stocking of the site at 30 DSE.
In addition to the keeping of the horses, the proposed use also included the piping underground of the stream and filling of the front area of the site to form an exercise arena. No hydraulic modelling has been carried out to support any particular design for the piping of the stream. The applicants referred to the sediment half filling the culvert under Brookton Highway and the owners' knowledge of the flow of the stream across the site. In addition, the applicants referred to attempts, yet unsuccessful, to obtain information about water flow in the Urban Water Management Plan prepared for the residential subdivision south of the Highway. It was said it was then a matter of providing design detail as a requirement of an approval condition.

The Tribunal acknowledges that the piping of the stream is a matter of engineering design. It is accepted that it unlikely any pipe once designed would result in works so different from currently envisaged as to require a change in the essence of the application, but it is unknown whether the cost associated with the works would be within the applicants' means. The Tribunal is reluctant to approve a use without some knowledge of how it is to be achieved. In this matter, however, the lack of hydraulic modelling for how the stream might be piped is not considered of itself, to be fatal to that part of the development.
The Tribunal is conscious, however, of the history of this matter, which includes the proposal in 2014 of developing the arena in association with the four horses then on the site. The Tribunal has concluded that the keeping of four horses was not a non-conforming use right in 2014 or can be supported now. The Tribunal considers that the application before it has parts integral to each other and so considers that the application should fall or stand as a whole rather than be separated into constituent parts for consideration and determination.

Conclusion

As set out above, the Tribunal accepted that there was a nonconforming use right in place for stables on the site and that it was arguable that an intention to keep at least a horse for recreational use on the site had been effectively continued from prior to an approval being required for such a use. The Tribunal did not accept that this constituted a right to keep any number of horses that a current owner might choose. Planning approval for the proposed use was therefore required.
Orderly and proper planning is a relevant consideration in this matter. From S & L Lenz Pty Ltd v The Shire of Serpentine-Jarrahdale[2017] WASC 191 at [137] the Tribunal would comment that in this matter, orderly and proper planning is concerned, in the exercise of discretion, not just with having regard to the relevant statutory requirements, policies and guidelines, but also to relevant facts and circumstances. What constitutes orderly planning is an objective exercise of judgment about what is suitable and appropriate in each case.
As set out above, there was no dispute that the application for planning approval for the keeping of two light horses and two ponies on the site constituted a significant increase in the applicable base stocking rate. The applicants submitted that specific ongoing management practices would implemented to prevent land degradation and nutrient export to the watercourses. The Tribunal is concerned, however, about the difficulty of critical ongoing monitoring and enforcement of necessary conditions. This is of particular concern because of the proximity of the site to the sensitive sites of the Canning River and its ephemeral stream. The Tribunal has concluded that it would not be consistent with orderly and proper planning to grant planning approval for the proposed keeping of the two light horses and two ponies on the site.
The Tribunal has decided to dismiss the application.

Orders

1.The application for review is dismissed.
2.The refusal of the City of Armadale of 24 January 2017 is endorsed.

I certify that this and the preceding [77] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J JORDAN, SENIOR SESSIONAL MEMBER