McDOWALL and SHIRE OF CHITTERING
[2007] WASAT 129
•28 MAY 2007
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: McDOWALL and SHIRE OF CHITTERING [2007] WASAT 129
MEMBER: MR B HUNT (SENIOR SESSIONAL MEMBER)
HEARD: 17 APRIL 2007
DELIVERED : 28 MAY 2007
FILE NO/S: DR 285 of 2006
BETWEEN: KIRSTIN McDOWALL
Applicant
AND
SHIRE OF CHITTERING
Respondent
Catchwords:
Town Planning – Development application – Additional horse – Horses in "Rural Residential" zoned land – Stocking rates
Legislation:
Planning and Development Act 2005 (WA), s 252(1)
Shire of Chittering Town Planning Scheme No 6, cl 5.8.11, cl 10.1.1, cl 10.2, Part 2
Result:
Application for review is dismissed
Category: B
Representation:
Counsel:
Applicant: Selfrepresented
Respondent: Mr A Awang (Acting as Agent)
Solicitors:
Applicant: Self-represented
Respondent: Shire of Chittering
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
This matter involved an application for review of the refusal in part by the Shire of Chittering for a development involving the keeping of four horses at Lot 104 Hart Drive, Chittering.
The Council approved the keeping of three horses, stables, arena and horse yards on the site subject to conditions.
The issue was whether an additional horse could be kept on the property.
The Tribunal found that the respondent had a sound basis in the relevant planning instruments for the determination that three horses was the appropriate limit for this lot, given its size, topography and zoning.
The Tribunal was not satisfied that the applicant's argument in relation to application of management policies alone, without the underlying support of policy standards was adequate in a zone where the keeping of horses was a discretionary use.
The application for review of the respondent's decision was dismissed.
Introduction
These proceedings involve an application brought by Ms Kirstin McDowell (applicant) pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) for review of the decision of the Shire of Chittering (respondent or Council) made on 18 October 2006 to refuse development approval for the keeping of four horses at Lot 104 (RN220) Hart Drive, Chittering.
The respondent approved the keeping of three horses, stables, arena and horse yards on the site, subject to conditions.
The site
Lot 104 Hart Drive, Chittering (the site) is a 2.0269 hectare rectangular lot, sloping down from south to north with grades described as having significant slopes of approximately 20% to 35% over the majority of the property.
The site has a nominated building envelope of approximately 7850 square metres, and a "Tree Preservation Area" 20 metres wide paralleling Hart Drive within the property.
The development areas are considered to be level and these areas are partially cleared of vegetation.
The lot is vegetated mainly by "parrot bush" and the soils of the site are described as predominantly ironstone gravels and loam duplex.
The site is approximately 300 metres from the Aquilla water course reserve and within its catchment.
Planning framework
The site is zoned "Rural Residential" under the Shire of Chittering Town Planning Scheme No 6 (TPS 6).
The uses proposed in the development application fall within the use class "Rural Pursuit" which is classified as a D use in the "Rural Residential" zone in the zoning table of TPS 6 which means that the "use is not permitted unless the local government has exercised its discretion by granting planning approval".
Under TPS 6, development and use of land zoned "Rural Residential" is required, among other things, to comply with the provisions of cl 5.8.11 Livestock Management which states as follows:
"With the intention of preventing overstocking or other practices, detrimental to the amenity of the zone and to prevent land degradation and nutrient export, the keeping of livestock shall not be permitted with out approval in writing from the Council.
In considering any applications for the keeping of livestock, the Council will have regard to advice from Agriculture Western Australia and to the Water and Rivers Commission (or its successor agency) in relation to protection of water courses, wetlands and ground and surface water quality."
By cl 10.1.1 of TPS 6, the respondent "may consult with any other statutory, public or planning authority it considers appropriate" when considering an application for planning approval.
Clause 10.2 of TPS 6 lists a number of matters to which the respondent is to have due regard when considering an application for planning approval.
In particular, the respondent is required to consider:
" …
(m)the likely effect of the proposal on the natural environment and any means that are proposed to protect or to mitigate impacts on the natural environment;
…
(o)the preservation of the amenity of the locality;
…
(x)whether the proposal is likely to cause soil erosion or land degradation;
…
(bb)any other planning consideration the Local Government consider relevant."
The respondent, under Part 2 of its TPS 6, has adopted Local Planning Policy 24: Stocking Rates (LPP 24) which applies to all zoned land within the respondent's scheme area.
The respondent is required to have due regard to the provisions of LPP 24 and its objectives before making its decision in respect of an application for planning approval.
LPP 24 interprets the requirements of TPS 6 and has been adopted " ... to help farmers, the respondent, developers and land owners achieve the sustainable keeping of stock and other animals, in a manner that preserves the rural character of the locality".
In particular, the objectives of the policy are "to accommodate animals commensurate with the carrying capacity of the land" and "to lessen the likelihood of soil erosion and land degradation".
Clause 5.4 of LPP 24 applies to the "Rural Residential" zone.
Relevant provisions of cl 5.4 of LPP 24 are:
" ...
(d)Where large animals are permitted by the approved Development Plan and can be accommodated on previously cleared land, planning consent is deemed to have been granted for one large animal for each hectare of site area;
...
(g)Where a management plan is prepared in accordance with Schedule 1, and it can be demonstrated that the method of management proposed (eg. irrigated pasture, supplemental feed) is unlikely to result in degradation of land and vegetation, Council may grant approval for the stocking rates to be increased up to twice that specified in … (d) above [that is] one large animal for each [5000 square metres] of site area."
Proposed development
The applicant applied for the keeping of four horses on the site with stables, arena and horse yards. The application was supported by a management plan prepared by Ms Cyndi Mulders, the Divisional Manager of AWI Environmental, an experienced and qualified equestrian environmental consultant. The respondent approved three horses on the site with stables, arena and horse yards.
Ms Mulders, in her evidence, stated that there would be no further facilities required to cater for the additional horse, beyond those already approved by the respondent.
The issue
It is common ground that the issue is whether the keeping of an additional horse be allowed on the site.
The respondent's argument
The respondent's argument opposing the approval of an additional horse centred on the provisions of TPS 6 and LPP 24 (cl 5.4(d) and cl 5.4(g) cited earlier), which sets out the relationship between available site area and appropriate stocking rates.
In his evidence, Mr Azhar Awang, the Manager Planning/Shire Planner for the Shire of Chittering, and an experienced and qualified town planner, explained how the site area for determining stocking rates for horses is calculated by deducting from the total lot area of 2.0269 hectares the building envelope area of 7850 square metres leaving 1.2419 hectares.
LPP 24 provides for Council to grant approval for stocking rates to be increased up to twice the "standard" rate where an appropriate management plan is submitted.
By this calculation he advised that up to three horses could be approved.
Mr Awang considered that LPP 24 is supported by the Agriculture Western Australia's Stocking Rate Guidelines for Rural Small Holdings Swan Coastal Plain and Darling Scarp Western Australia, February 2000 (Stocking Guidelines). He explained that this was a document that Council used to underpin LPP 24, but that the requirements of TPS 6 and LPP 24 were the determining factors.
The Stocking Guidelines classified the areas depending on detailed consideration of factors such as soil type and topography, and there was some debate as to whether the site was classified as SR8 or SR9.
SR8, by the evidence of Ms Mulders, is the appropriate classification as the soils are "shallow gravels and ironstone outcrop" while acknowledging the gradients are to be under 15%, which on the site, is generally not the case.
SR9 provides for moderate to steep slopes in excess of 15%, as is the case generally on the site, however, describes the soils as shallow or rocky.
Table A1 "Stocking rates for horses" in the Stocking Guidelines lists two horses per 1 hectare irrigated in the SR8 category and less in SR9.
It is considered that the application of this table is consistent with LPP 24.
The applicant's argument
The applicant concentrated her argument on the fact that the horses, whether three or four would only utilise the existing approved facilities, that is the yards, the stables and the arena.
Ms Mulders explained in her evidence that she considered the property could in fact sustain seven horses, being four in the stables and three in the yards at any time. She considered the management of the facility was the criteria for consideration, not the prescriptive stocking rate policies.
The horses to be kept by the applicant are competition horses and Ms Mulders advised in her witness statement "that it was acceptable for them to be stabled for up to 18 hours per day except for the time that they are being trained and in the yards".
Ms Mulders introduced into evidence a Water and Rivers Commission publication Water Quality Protection Guideline No 13: Environmental Guidelines for Horse Facilities and Activities December 2002 (Environmental Guidelines).
Ms Mulders relied on Table 3 of the Environmental Guidelines to contend that 10 horses per hectare is acceptable in a "Public Drinking water source Area Priority 2", and as this locality is not so constrained, then the four horses could be approved.
Responding to Table 4 in the Environmental Guidelines where the stocking rate for irrigated pasture in the SR8 unit is listed as requiring 0.4 hectares per horse, Ms Mulders asserted that this was the position without stabling and management.
Ms Mulders considered the applicant a competent and effective manager, well capable of implementing the management plan that she had prepared.
Discussion
The respondent's argument relies on the provisions of TPS 6 and LPP 24 underpinned by the Stocking Guidelines.
The zoning of the land as "Rural Residential" and the discretionary use of "Rural Pursuit" requires the Council to consider matters of amenity, land degradation and nutrient export.
LPP 24 provides in cl 5.4 for Council to grant approval for one large animal for each hectare of site area and then under special conditions increase that to one large animal for each 5000 square metres of site area.
The management plan prepared by Ms Mulders is comprehensive and was not challenged by the respondent. In fact, it was accepted by the respondent as the basis for the discretion allowed in LPP 24.
Utilising these planning documents, the approval of three horses is justified, based on an appropriate management plan. The site area is considered in this case to be approximately 1.2 hectares.
The Tribunal is satisfied that the respondent has a sound basis in the relevant planning instruments for the determination that three horses is the appropriate limit for this lot, given its size, topography and zoning.
The keeping of horses in the "Rural Residential" Zone should only be approved where there is no risk to the amenity of the area or the environment.
The applicant's argument rests on the ongoing and effective management of the horses within the yards, stables and arena, and did not endeavour to respond in detail to the planning provisions other than to consider they were not appropriate to this application.
The Tribunal is not satisfied that the applicant's argument in relation to the application of management practices alone, without the underlying support of policy standards is adequate in a zone where the keeping of horses is a discretionary use.
Conclusion
Based on the preceding discussion it is the conclusion of the Tribunal that the application for review be dismissed. The respondent's position is affirmed.
Orders
For the foregoing reasons, the Orders of the Tribunal are as follows:
1.The application for review of the Shire of Chittering's decision to refuse approval for four horses at Lot 104 Hart Drive, Chittering is dismissed.
I certify that this and the preceding [55] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR B HUNT, SENIOR SESSIONAL MEMBER
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