Olsen and Town of Kwinana
[2007] WASAT 206
•21 AUGUST 2007
OLSEN and TOWN OF KWINANA [2007] WASAT 206
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 206 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:173/2007 | 10 JULY 2007 | |
| Coram: | MR L GRAHAM (SENIOR SESSIONAL MEMBER) | 21/08/07 | |
| 24 | Judgment Part: | 1 of 1 | |
| Result: | The application was upheld in part only | ||
| B | |||
| PDF Version |
| Parties: | MS ANNETTE OLSEN TOWN OF KWINANA |
Catchwords: | Town Planning Application for planning approval Clearing of indigenous vegetation Use for equestrian purposes Building envelope Precedent Orderly and proper planning Jandakot groundwater protection Alternative location for paddocks Risk to biodiversity and groundwater Construction of stables and paddocks |
Legislation: | Metropolitan Region Scheme Planning and Development Act 2005 (WA), s 252(1) State Administrative Tribunal Act 2004 (WA), s 29(3)(c), s 82(1) Town of Kwinana Town Planning Scheme No 2, cl 1.6, cl 2.3, cl 2.3.2, cl 2.4, cl 2.4.1, cl 3.5, cl 4.1, cl 4.4, cl 4.6, cl 6.12.4, cl 6.12.4(j), cl 8.6, cl 8.6.6, cl 8.6.7, Second Schedule, Appendix IV |
Case References: | Aspen Pty Ltd v State Planning Commission (1988), unreported, Town Planning and Appeals Tribunal, WA, Appeal No 13 of 1988) |
Orders | 1. In accordance with s 29(3)(c) of the State Administrative Tribunal Act 2004 (WA) the clearing of vegetation is allowed to the extent outlined in [85] of the Tribunal's reasons for decision in this matter delivered on 21 August 2007 .,2. The approval in order (1) is subject to appropriate conditions.,3. Pursuant to s 82(1) of the State Administrative Tribunal Act 2004, order (1) and order (2) do not come into effect until such time as the conditions referred to in order (2) are finalised, at which time the Tribunal will provide a consolidated order setting out all of the conditions of approval.,4. The respondent is to file with the Tribunal and serve on the applicant a revised set of conditions within 14 days of this order, and the applicant is to file with the Tribunal and serve on the respondent a statement agreeing to or identifying any of the draft conditions which are objected to, stating briefly the reasons for each objection within seven days thereafter.,5. The parties are to have regard to [85] to [89] of the Tribunal's reasons for decision in this matter delivered on 21 August 2007 in relation to order (4). |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : OLSEN and TOWN OF KWINANA [2007] WASAT 206 MEMBER : MR L GRAHAM (SENIOR SESSIONAL MEMBER) HEARD : 10 JULY 2007 DELIVERED : 21 AUGUST 2007 FILE NO/S : DR 173 of 2007 BETWEEN : MS ANNETTE OLSEN
- Applicant
AND
TOWN OF KWINANA
Respondent
Catchwords:
Town Planning - Application for planning approval - Clearing of indigenous vegetation - Use for equestrian purposes - Building envelope - Precedent - Orderly and proper planning - Jandakot groundwater protection - Alternative location for paddocks - Risk to biodiversity and groundwater - Construction of stables and paddocks
Legislation:
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 252(1)
State Administrative Tribunal Act 2004 (WA), s 29(3)(c), s 82(1)
(Page 2)
Town of Kwinana Town Planning Scheme No 2, cl 1.6, cl 2.3, cl 2.3.2, cl 2.4, cl 2.4.1, cl 3.5, cl 4.1, cl 4.4, cl 4.6, cl 6.12.4, cl 6.12.4(j), cl 8.6, cl 8.6.6, cl 8.6.7, Second Schedule, Appendix IV
Result:
The application was upheld in part only
Category: B
Representation:
Counsel:
Applicant : Self-represented
Respondent : Mr P J Neilson (Acting as Agent)
Solicitors:
Applicant : Self-represented
Respondent : Town of Kwinana
Case(s) referred to in decision(s):
Aspen Pty Ltd v State Planning Commission (1988), unreported, Town Planning and Appeals Tribunal, WA, Appeal No 13 of 1988)
(Page 3)
Summary of Tribunal's decision
1 The application for review was lodged against a decision by the Town of Kwinana to refuse an application for the clearing of vegetation on the subject land to allow the construction of stables and associated paddocks for two horses.
2 The Tribunal examined the respective arguments of the parties, the background to the proposal, the relevant statutory and policy provisions at both State and local level, the views of the Department of Environment and Conservation and the Department of Water and matters of compensation, precedent and orderly and proper planning.
3 The Tribunal believed that in order to minimise risk to both the biodiversity and the Jandakot groundwater that only a small amount of vegetation should be removed, and that a Land Management Plan be put in place to manage the development and assist in the rehabilitation of the remaining vegetation.
Introduction
4 The application for review, dated 7 May 2007, was lodged by Ms Annette Olsen (applicant) against a decision of the Town of Kwinana (respondent) on 24 April 2007 to refuse an application for the clearing of vegetation on Lot 401 Frayne Place, Wandi (subject land) to create paddocks for horses.
5 The application for review was lodged under the provisions of s 252(1) of the Planning and Development Act 2005 (WA) (PD Act).
6 The grounds on which a review is being sought essentially relate to a request for permission to use the land for which it is designated (equestrian purposes) or, if that is not possible, that compensation be paid for either the purchase of the land or payment for firebreaks and maintenance.
7 It is also argued that the condition of the vegetation ranges from relatively poor in the vicinity of the existing house, with the understorey depleted, to relatively good at the rear of the property where the understorey is in better condition.
(Page 4)
8 In the view of the Tribunal, this latter argument is promoting the view that there would be less environmental harm in clearing vegetation close to the residence than further south towards the rear of the property.
Subject land
9 The subject land can be described as lot 401 (No 20) Frayne Place, Wandi on Diagram/Plan 48887 in the Town of Kwinana.
10 The land is 2.0 hectares in area with a 70 metre frontage (north) widening to a 92.29 metre rear boundary (south). The western boundary measures 265.43 metres and the eastern boundary measures 278.57 metres.
11 There is a 50 metre by 50 metre "building envelope" located 32 metres back from the front boundary and 10 metres from each of the side boundaries. There is an existing dwelling and associated structures (water tanks, etc) located within the "building envelope".
12 In the witness statement dated 10 July 2007 of Mr Christopher Duncan Beaton, a former environmental officer with the Town of Kwinana, he explains:
"This particular property is dominated by Kunzea ericifolia (Spearwood) with a few Banksiailicifolia. I believe Dasypoganbromelifolius (pineapple bush) is the dominant groundcover."
13 From photographic evidence made available to the Tribunal, it appears that overall the vegetation is relatively dense, but more sporadic in the vicinity of the residence. There are some small open areas and evidence of some vegetation affected by fire.
Legislative framework
14 The subject land is zoned "Rural – Water Protection" in the Metropolitan Region Scheme (MRS) and "Special Rural Zone No 2" in the Town of Kwinana Town Planning Scheme No 2 (the scheme or TPS 2).
15 Of relevance to this matter are the following planning documents:
(a) Statement of Planning Policy No 2.3 - Jandakot Groundwater Protection Policy – Western Australian Planning Commission (WAPC) (SPP 2.3).
(b) Health (Keeping of Horses and Equine Premises) Local Laws (1997) – Town of Kwinana (HLL).
(Page 5)
- (c) Water Quality Protection Note (Land use compatibility in Public Drinking Water Source Areas) (2004) Department of Environment (DOE Note).
(d) Town of Kwinana Policy 3.3.20 (Development within Special Rural Zones (Policy 3.3.20).
Respondent's position
16 The position of the respondent is outlined in its "Statement of Issues, Facts and Contentions" dated 6 June 2007. It contends:
(a) Removal of native vegetation is not generally in accordance with the intent of TPS 2.
(b) The proposed clearing of vegetation outside a "building envelope" for the placement of paddocks does not accord with Policy 3.3.20.
(c) The proposed clearing of vegetation is generally not in accordance with the provisions of SPP 2.3.
(d) Neither the Department of Environment and Conservation (DEC) or Department of Water (DOW) support the proposal.
(e) It is expected that the "poor" areas of vegetation will recover if adequate weed control was undertaken and no grazing allowed.
(f) The respondent has liaised with the applicant to find a suitable alternative location for paddocks on the property which would not require the removal of any native vegetation and would allow the keeping of two horses.
(g) The granting of the application would create a precedent for other clearing applications.
(h) The proposed clearing of native vegetation is not in the interest of orderly and proper planning or the preservation of the amenity of the locality.
(i) To vary the standards and requirements of the Scheme and Policy to the extent required would unreasonably depart from the spirit and purpose of cl 6.12.4 of TPS 2,
- cl 5 of the Second Schedule of the Scheme and cl 2.3 of Policy 3.3.20.
Applicant's position
17 The position of the applicant is outlined in a response to the respondent's "Statement of Issues, Facts and Contentions". It contends:
(a) The intent of TPS 2 is that Wandi is an equestrian estate and you cannot have horses without paddocks.
(b) Under Policy 3.3.20 the predominant uses in Wandi are "rural homesites" and "equestrian special rural development".
(c) The provisions of SPP 2.3 support the application so long as risk is minimised and development is subject to appropriate conditions.
(d) The advice from DOE (now the Department of Environment and Conservation) opposing the development is not consistent with their policies.
(e) The respondent's environmental officer acknowledges that the vegetation areas closest to the home are in poor condition. These are the only areas applied for to re-clear.
(f) The area suggested by the respondent for paddocks would come under intense horse management and the applicant would have to agist the horses elsewhere at the owner's expense.
(g) The small area suggested by the respondent for paddocks would be cruel to the animals and horses kept in confined areas often develop behavioural problems due to frustration and lack of stimulation.
(h) It is not the intention to set a precedent but rather to develop some land for the children to enjoy the horses.
(i) The majority of the residents in the area have paddocks for horses with an Equestrian Centre and riding trail close by. The subject land falls within an equestrian estate.
(Page 7)
- (j) TPS 2 advises that the predominant use in Wandi is to be equestrian special rural development. Banksia woodland is to be preserved.
Planning issues
18 The principal planning issues are:
(a) Would the proposed development be contrary to the interests of orderly and proper planning and the preservation of the amenity of the locality?
(b) Would the alternative on-site location for the paddocks as suggested by the respondent be reasonable in the circumstances of this case?
(c) Would an approval be likely to create a precedent for other applications for the clearing of land?
Assessment of proposal
Background
19 An application for the creation of a paddock for horses was date-stamped by the respondent on 6 December 2006. The proposal was described as requiring the construction of a fence and gates, the clearing of Spearwood trees only (no banksias), the grassing of the new paddock and the planting of eucalypt trees.
20 An examination of the attached plan showed the paddock area extending some 45 metres south of the "building envelope" with two 3 metre gates providing access to the rear of the property.
21 On 12 October 2006 a further application was lodged for the keeping of horses and equine premises. The proposal was described as including a stable with two stalls, a stable shelter for two horses and that the maximum number of horses would be two.
22 An examination of the enclosed plan showed an area for the keeping of the horses extending 38 metres south of the building envelope and comprising a separate area and stables (3 metres by 3 metres) for each of the two horses). A further area to accommodate a so-called "greening paddock" was shown extending a further 39.15 metres south.
23 What appears to be contemplated is that the stabling area would have a southern boundary fence with two 3 metre gates to allow access to the
(Page 8)
- "greening paddock" and a further two 3 metre gates to allow access to the vegetated area further to the south.
24 The extent of the proposed development (stabling area and greening paddock) is some 5400 square metres but, when coupled with the building envelope and areas to the side and forward of the building envelope to the street, the total area is some 1.11 hectares. The remaining vegetated area south of the "greening paddock" is some 0.89 hectares.
25 On 14 February 2007 the matter was considered by Council but a decision on the recommendation to refuse the development was deferred.
26 The series of events that then followed were detailed in the witness statement dated 10 July 2007 of Mr Paul John Neilson, a qualified town planner for the respondent. He broadly explained:
(a) The resolution of Council to defer the matter on 14 February 2007 was to allow further discussion with the applicant on alternatives to the establishment of paddocks and the keeping of horses on the property.
(b) On 22 February 2007 an on-site meeting took place between Messrs Neilson, Scambler (Planning Officer) and Beaton (Environmental Officer) from the Town and the applicant and her son.
(c) No decision was made at the meeting but a memorandum dated 23 February 2007 from Mr Beaton to Mr Neilson recommended against removal of the natural vegetation for paddocks. The applicant was advised that Council staff were not in favour of the clearing of vegetation for paddocks and the keeping of horses.
(d) A further assessment of the matter took place with the applicant which did not require clearing of vegetation. This resulted in identifying an alternative area of approximately 1100 square metres within the "building envelope" and adjoining cleared areas which could accommodate two horses and stables under appropriate management of the site.
(e) The applicant was in liaison with Council officers throughout the process but was not supportive of the alternative area.
(Page 9)
- (f) An officer's report was subsequently prepared recommending that the proposed clearing of vegetation on the subject land be refused.
27 On 24 April 2007 the matter was again considered by Council and the following resolution taken:
"That Council refuse the proposed vegetation clearing on Lot 401 Frayne Place, Wandi in the proposed location shown in the application received for the following reasons:
1. The proposal is generally not in accordance with the objectives of Town Planning Scheme No 2 and is not supported under Council's Policy 3.3.20 'Development within Special Rural Zones'.
2. Is inconsistent with the objectives of Statement of Planning Policy 2.3 – Jandakot Groundwater Protection Policy.
3. Is not supported in the advice received by the Department of Environment and Conservation and the Department of Water on the proposal."
"… should they wish to locate the horses in the alternative paddock location (subject to advice from the DEC) they will need to submit a new application for planning approval."
29 As part of the officer's report on the alternative paddock location of 1100 square metres it advised:
"Final confirmation is being sought on this matter from the DEC but it is anticipated that a positive response will be received."
Scheme and policy provisions
Town Planning Scheme No 2
30 Under cl 1.6 (Scheme Objectives) the objectives include:
" (c) providing development controls for the purpose of securing and maintaining an orderly and properly planned use and development of land within the Scheme Area;"
(Page 10)
31 Under cl 2.3 (Advertising of Applications) it includes:
"2.3.2 Where an application is made for Planning Approval to commence or carry out development which involves an 'AA' use, or for any other development which requires the Planning Approval of the Council, the Council may give notice of the application in accordance with the provisions of this clause."
32 Clause 2.4 (Determination of applications) provides:
"2.4.1 In determining an application for Planning Approval, the Council may consult with any authority which, in the circumstances, it thinks appropriate."
33 Part IV of the Scheme relates to policies, zones and development areas and states:
"4.1 The Scheme Area is covered by:
• Policy Areas
• Development Areas; and
• Zones
Each Policy Area is the subject of a Policy Statement which establishes broad land use objectives as a guide to future decisions concerning subdivision, development and zoning. The Development Areas are not zones but delineate land areas and include Scheme provisions in the 'Fourth Schedule' to ensure that co-ordinated, equitable and orderly development of the defined land area occurs."
"… the following planning policy shall apply:
(a) The predominant use shall be equestrian special rural development;
…
(c) Development of land for special rural purposes shall occur in such a manner as to secure the preservation of banksia woodlands;
(Page 11)
- …
(f) Land use and development shall be consistent with the objectives of 'Statement of Planning Policy No 2.3 - Jandakot Groundwater Protection'."
35 Under cl 4.4 (Zones), the Scheme Area is classified into a number of zones including a "Special Rural Zone". On 2 June 2006, a "Rural Water Resource Zone" was added to the list of zones.
36 Clause 4.6 (Zoning Table) lists a series of symbols which include:
"'AA' A use in respect of which the Council, exercising discretionary powers available to it may approve under this Scheme; …"
Equestrian uses are given an "AA" symbol under the "Special Rural Zone".
37 Under Div 9 (Special Rural Zone), the land is subject to a series of provisions which include:
"6.12.4 …
Building Envelopes
(g) All buildings shall be constructed within the confines of the building envelope as shown on the Subdivision Guide Map.
…
Tree Preservation
(h) To retain rural character of an area and avoid the creation of wind erodible conditions, the Council may designate any group or clump of trees and substantial vegetation as Tree Preservation Areas or may designate Tree Preservation Areas in accordance with a Plan of Subdivision.
(i) Within the land designated as Tree Preservation Areas, or outside of building envelopes, no indigenous tree, scrub or other substantial vegetation may be removed except as hereunder:
- (i) Trees which are dead, diseased or dangerous;
(ii) For the purpose of a firebreak required by a regulation or by-law except that in order to preserve the amenity of the area Council may at its discretion vary the position of any required firebreak to avoid destruction of vegetation or due to the physical features of the subject land;
(iii) For the purpose of an access driveway for a residential dwelling as approved by Council.
- (j) Removal of indigenous trees, scrub or other substantial vegetation for any purpose other than the above exceptions shall require the written approval of Council.
(k) The Council may require the land owner to undertake a tree planting programme on lots nominated by Council as being deficient in vegetation cover."
38 Within the Second Schedule (Special Rural Zones), there are specific land use and development conditions relevant to Special Rural Zone No 2 - Wandi. Both stables and an equestrian use are listed as "AA" with the rider:
"Within the area which corresponds with the Rural Water Protection Zone of the Metropolitan Region Scheme, uses incidental to the residential use of the land, including recreation facilities for the private use of the occupier may be supported subject to the advice of the Department of Environment, Water and Catchment Protection."
39 The development conditions include the following:
"5. No development, including earthworks, shall occur outside the approved building envelope, illustrated on the Subdivision Guide Plan No 2 for Special Rural Zone No 2 dated July 2003, or an alternative location which has been approved by Council.
…
8. Land within the building envelope is to be managed in such a manner as to avoid the land being laid bare in vegetation resulting in loose, wind erodible conditions.
- Land outside the building envelope is to be managed in such a manner that there will be no further clearing of the land, save for vegetation that has to be removed for housing, firebreaks, outbuildings and access-way construction; the Council's approval shall be deemed as Council's written consent to remove vegetation.
- …
14. Activities carried out on this land shall not contravene the Western Australian Water Authority by-laws applicable to underground water pollution control."
40 Under cl 8.6 (Planning Policies) there are a number of provisions relevant to this matter. These include:
"8.6.6 A Policy shall not bind the Council in respect of any application for Planning Approval but the Council shall have due regard to the provisions of the Policy and the objectives which the Policy is designed to achieve before making its decision.
8.6.7 Any Policy prepared under this Clause shall be consistent with the Scheme and where any inconsistency arises the Scheme shall prevail."
41 Under Appendix IV (Interpretations) the most applicable use categories are "Equestrian Use" and "Rural Pursuit". These are defined as:
"Equestrian Use: means buildings, facilities and land designed and used for equestrian activities whether or not for commercial gain and includes but is not limited to riding infrastructure, horse training, agistment, show jumping and dressage.
…
Rural Pursuit: means the use of land for any of the purposes set out hereunder and shall include such buildings normally associated therewith:
…
(b) the stabling, agistment or training of horses."
(Page 14)
Policy 3.3.20 - Development within Special Rural Zones
42 For those properties with building envelopes, the requirements for paddocks are set down in cl 2.3 of the Policy:
"• All paddocks for horses to comply with Council's Health (Equine Premises) Local Law.
• No further clearing of remnant or regrowth vegetation to occur to facilitate paddock location.
• Paddocks outside the building envelope shall only be located on existing cleared areas.
• Paddocks should be fenced to the satisfaction of Council.
• Stables and yard to be constructed within the building envelope.
• Fencing of the firebreak, where used as an exercise area, may be supported subject to the satisfaction of Council's Bush Fire Co-ordinator and Manager Environmental Health Services where no nuisance for neighbours is likely to occur.
• Where paddocks are planned to be located in previously cleared areas outside the building envelope, the landowner should rehabilitate an equivalent degraded area (of at least equal size) with local native species to the satisfaction of Council's Manager Planning Building Services and Environmental Officer."
Town of Kwinana Health (Keeping of Horses and Equine Premises) Local Laws 1997)
43 Under the HLL, there are a range of matters that must be addressed by horse owners, including the number of horses that can be kept on various sized properties. These matters include:
"2(iv) Landholdings equal to [4000 square metres] but not exceeding 5 hectares - the number of horses to be at the discretion of Council, taking into consideration the land holding capability, conservation, groundwater level, proximity to water courses and sources of drinking water intended for human consumption and may be up to but
- shall not be more than [five] horses at free range in an enclosed area with or without stables, or stable shelters."
44 Only two horses are contemplated to be kept on the subject land.
Statement of Planning Policy No 2.3 (Jandakot Groundwater Protection Policy)
45 The policy objectives under cl 5 include:
"• to prevent land uses likely to result in contamination of groundwater through nutrient or contaminated export;
…
• to maintain or increase natural vegetation cover over the Policy Area; …"
46 Under the "Rural - Water Protection" Zone in the MRS, the local government may propose the appropriate local zones and which uses should, or should not, be permitted within those zones. Both "Equestrian Activity" and "Stables" in Table 1 are annotated with an "AA" symbol which allows the local government, at its discretion, to allow the use subject to the advice of the appropriate State authority.
47 In this case, the respondent referred the proposal to both the DEC and DOW.
Water Quality Protection Note (Department of Environment - July 2004)
48 This document (Note) provides advice on the acceptability of land uses and activities within specific catchments that are the water source for schemes supplying cities and towns. The Underground Water Pollution Control Areas are part of the Public Drinking Water Source and include the Jandakot Underground Water Pollution Control Area.
49 The Note includes Priority Classification Areas with the subject land falling within Priority 2 (P2). This is defined as:
"Priority 2 (P2) classification areas are managed to ensure that there is no increased risk of water source contamination/pollution. For P2 areas the guiding principle is risk minimisation. These areas include established low-risk land development ([for example], low intensity rural activity). Some development is allowed within P2 areas for land uses that
(Page 16)
- are defined as either 'Compatible with conditions' or 'Acceptable'."
50 Within the appropriate Table, an "Equestrian Centre" is categorised as "incompatible" in a P2 area whereas a "Stable" is categorised as "compatible with conditions" in a P2 area.
51 Where a use is categorised as "incompatible", the Note explains that the use should not be permitted in the Scheme (that is an "X" symbol) whereas "compatible with conditions" should be discretionary.
The views of the Department of Water and the Department of Environment and Conservation
52 In a letter dated 12 December 2006, the DOW replied to a letter from the respondent in this way:
"Thank you for the referral of the above proposal dated 20th November 2006. The Department of Water (DOW) in conjunction with the Department of Environment and Conservation (DEC) have concerns with the proposal in its current form due to the following:
Vegetation
The proposal would require the clearing of vegetation for the installation of stables/shelter, paddocks, fencing and gates may be at variance to the following principles:
Principle e)
The site contains native vegetation of Bassendean Complex - Central and South, which is under-represented. This complex has a pre-European representation of 27% and is defined as depleted (Department of Natural Resources and Environment 2002).
The State Government is committed to the National Objectives and Targets for Biodiversity Conservation, which includes an objective to retain at least 30% of the pre-clearing extent (Department of Natural Resources and Environment 2002, EPA 2000). Beyond this 30% representation, species extinction is believed to occur at an exponential rate and any further clearing may have irreversible consequences for the conservation of
(Page 17)
- biodiversity. The proposal therefore may be at variance to his Principle.
Principle f)
The site is located adjacent to a Resource Enhancement Wetland (REW) within the Wandi Nature Reserve. REW may have been partially modified but still support substantial ecological attributes and functions (Water and Rivers Commission, 2001). The proposal area is located approximately 70 metres south-west of the REW and is unlikely to provide a significant buffer for nutrients from proposed land use. The proposal therefore may be at variance to this Principle.
Principle h)
Directly adjacent to this site is Bush Forever (BF) Site No 347 (Wandi Nature Reserve) within the Jandakot Regional Park. The BF site was nominated due to its representation of ecological communities, Rarity, Scientific or evolutionary importance, and protection of wetland and streamline vegetation. The clearing of vegetation may have an impact on the environmental values of the bushland, wetland, fauna and groundwater resources. The proposal therefore may be at variance to this Principle.
Principle i)
The land subject to this proposal is located within the Jandakot Underground Water Pollution Control Area (UWPCA), which has been declared for Priority 2 (P2) source protection. P2 source protection areas are defined to ensure that there is no increased risk of pollution to the water source. Protection of public water supply sources is a high priority in these areas. P2 areas are managed in accordance with the principle of risk minimisation.
The clearing of vegetation may cause deterioration in the quality of groundwater and the proposal therefore may be at variance to this Principle.
Statement of Planning Policy No 2.3
(Page 18)
- In section 12 of the Western Australian Planning Commission's Statement of Planning Policy No 2.3 - Jandakot Groundwater Protection Policy, it states that the 'retention and rehabilitation of existing vegetation is to be encouraged'. Therefore, the support of this proposal is not consistent with this policy for the protection of the Jandakot UWPCA."
53 In the view of the Tribunal, the repetitive use of the words, "[t]he proposal therefore may be at variance to this Principle", lacks specificity and leaves open the question of whether the proposed clearing of vegetation and the keeping of two horses would in fact pose a pollution risk or threaten the conservation of biodiversity.
The matter of compensation
54 In the applicant's response to the respondent's Statement of Issues, Facts and Contentions, the matter of compensation was raised in the light of the respondent's refusal.
55 The Scheme deals with the subject under cl 3.5 of TPS 2, but it is only in relation to reserved land required for public purposes and not for zoned land.
56 The matter of compensation is not pursued further in this review.
The matter of precedent
57 In the respondent's position, outlined in [16(g)] above, the matter of precedent is raised as a reason not to support the proposal.
58 The matter is dealt with in Aspen Pty Ltd v State Planning Commission (1988), unreported, Town Planning and Appeals Tribunal, WA, Appeal No 13 of 1988) where it states:
"The precedent argument is not usually treated by this Tribunal as a 'stand alone' argument. It is a consideration, but if there is no other reason why a development should not occur, the fact that it may tend to result in other applications being made for similar kinds of development should not be a reason why the appeal should be dismissed."
59 The rationale applied in Aspen Pty Ltd v State Planning Commission will be followed in this case with the respective arguments judged on their merits.
(Page 19)
60 The Tribunal would concede, however, that an approval could give rise to other similar applications and a judgment will need to be made on the likely effects of this, if any, as well as the other aspects of this review.
The matter of orderly and proper planning
61 In the respondent's position, outlined in [16(h)], it is argued that the clearing of vegetation is not in the interests of orderly and proper planning or the preservation of the amenity of the locality.
62 For the purposes of this review, the matter of orderly and proper planning needs to be assessed against the relevant provisions of the statutory and policy provisions in particular, and a judgment made as to whether the proposal is likely to have any detrimental effects on the existing amenity.
Conclusions
63 The application for review was lodged against a decision of the Town of Kwinana to refuse an application for the clearing of vegetation on Lot 401, Frayne Place, Wandi, to allow the construction of stables and associated paddocks for two horses.
64 In undertaking this review, the Tribunal has examined the respective arguments of the parties; the background to the proposal; the relevant statutory and policy provisions; the views of the Department of the Environment and Conservation and the Department of Water; and matters of compensation, precedent, and orderly and proper planning.
65 The position taken by the respondent is that the proposal to remove vegetation outside the building envelope is not generally in accordance with the statutory and policy provisions, is not supported by the relevant agencies and that a smaller alternative location could be found for the paddocks; essentially within the building envelope. It is also argued that the proposed clearing, if allowed, would create a precedent for others to follow, and would not be in the interests of orderly and proper planning and the preservation of amenity.
66 On the other hand, the applicant argues that the intent of the local Scheme is to create an equestrian estate within Wandi, that the majority of residents have paddocks for horses, and that the alternative location for the paddocks suggested by the respondent would be too small and that there would be a need to agist the horses elsewhere.
(Page 20)
67 An important consideration in this review is that the subject land falls within the Rural - Water Protection zone of the MRS because of its position above the extensive Jandakot Underground Water reserves.
68 However, it is also part of a Special Rural Zone under TPS 2 which means that subdivision and development (with appropriate conditions) in the zone has been contemplated and allowed by either the Western Australian Planning Commission (WAPC) or the Town of Kwinana.
69 The subject land is also part of Policy Area 1 (Wandi) where the predominant use is contemplated as equestrian special rural development but with an emphasis on the preservation of the banksia woodland. There is no mention of the need to preserve the Spearwood ("Kunzea ericifolia") vegetation which appears to dominate over the subject land.
70 However, the matter of vegetation is taken further under Div 9 of the Scheme where there is an emphasis on tree preservation outside a building envelope, except for firebreaks or the removal of dead, diseased or dangerous trees. There is, however, a flexibility provision under cl 6.12.4(j) where the removal of indigenous trees, scrub or other substantial vegetation could occur with the written approval of Council.
71 Under Policy 3.2.20, the matter of the clearing of vegetation is again addressed with no further clearing allowed to facilitate paddock location. However, once again there is a flexibility provision under cl 8.6 of the Scheme whereby a policy does not bind the Council.
72 The Tribunal would therefore agree with the contention of the respondent that the general thrust of its statutory and policy provisions is to preserve the indigenous vegetation cover, but with flexibility provisions to decide otherwise if justified.
73 Of relevance to this matter is SPP 2.3, which has been prepared by the WAPC with the principal purpose to ensure that land use changes that are likely to cause detrimental effects to the Jandakot groundwater are brought under planning control and prevented or managed.
74 Importantly though, an "Equestrian Activity" and "Stables" are annotated with an "AA" symbol, which allows the Council the flexibility to permit these uses.
75 The DOE Note is also relevant to this matter where the subject land falls into a so-called Priority 2 classification, wherein an equestrian centre is
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- classified as "incompatible". Stables are classified as "compatible with conditions".
76 Based on evidence before the Tribunal, there is an equestrian centre nearby to the subject land, so it appears that the proponents were able to demonstrate an overriding community benefit and that the land use was not a risk to water contamination.
77 On that point, the Tribunal is unable to visualise how stables for two horses with associated paddocks would pose a risk or would conflict with the provisions of SPP 2.3 or the DOE Note.
78 On the important question of the views of the DEC and the DOW, the consequences of vegetation removal are addressed in terms of the conservation of the biodiversity, and that removal could cause a deterioration in the quality of the groundwater. Although their letter to the respondent tended to use the word "may" rather than "will" in terms of the effects of vegetation removal, it does raise the question of the quantum of vegetation that is proposed to be cleared on the subject land.
79 This point is addressed somewhat in the HLL where the keeping of horses on landholdings less than 1500 square metres is prohibited. However, a varying number of horses are allowed depending on the size of the property with up to eight horses in a landholding not exceeding 4000 square metres.
80 In the matter under review, the proposed "stabling area" and "greening paddock" amount to 5400 square metres, and, when combined with the building envelope and areas to the side and forward of the building envelope, equates to 1.11 hectares. These areas far exceed the HLL specifications.
81 One argument put at the hearing by the applicant was that the area proposed to be cleared was previously cleared and that an exemption was warranted to remove what amounted to regrowth. No evidence to that effect was put, but it appears from the evidence of Mr Brenton Thomas Scambler, a Planning Officer for the respondent, that the subject land was subdivided off from the adjoining property to the west, where considerable vegetation removal appears to have taken place.
82 The view was also put by Mr Scambler that even if the vegetation in the subject land was regrowth, a licence to clear would still be required from the DEC.
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83 Of relevance are the comments of Mr Beaton to Mr Neilson in a memorandum, dated 23 February 2007, in which he recommends that none of the vegetation be removed or impacted on by grazing. He advises:
(a) horses could be kept at the front of the property and rotated through the existing fenced enclosures in the north-east and directly to the south of the house;
(b) the existing firebreaks could be fenced and horses kept within the confines of the firebreaks and rotated through the existing fenced areas;
(c) utilizing the existing fenced areas and fencing the cleared area adjacent to the rear of the house;
(d) utilizing the agistment opportunities on the adjoining properties to the west if stocking rates permit.
84 With respect to [83(c)] above, it appears that the relatively small amount of clearing at the rear of the house, and apparently outside the ″building envelope″, was done so without approval.
85 However, the Tribunal would accept that this cleared area could be extended to a small degree to be part of an area measuring 25 metres by 70 metres (approximately) south of the existing building envelope. The 25 metre measurement should extend from the southern boundary of the building envelope (extended in an imaginary line to meet the east and west boundaries) south along the east and west boundaries of the property. The 70 metre measurement would be parallel to the front boundary of Lot 401.
86 In the view of the Tribunal, it is not an unreasonable expectation that a purchaser of a property in a so-called "equestrian estate" should be able to accommodate horses on the property. The small area allowed above (1750 square metres) would provide for the construction of stables at a sufficient distance from the house and, when complemented with areas at the front of the property and existing firebreaks, should provide for some agistment and exercise.
87 In making this decision, the Tribunal is also aware of the need to minimise the amount of vegetation removed in order to minimise risk to the biodiversity and the groundwater, and to undertake both rehabilitation of vegetation and replanting. This can be achieved by way of fencing
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- existing vegetation as required, the protection of banksia woodland as appropriate, and the planting of new vegetation as specified by the respondent.
88 In addition to the above, such matters as stocking rates (two horses only), waste management, etc, can be incorporated into a Land Management Plan along the broad lines forwarded to the respondent from the applicant on 15 October 2006.
89 The Tribunal has noted the general agreement between the parties on a list of draft conditions, but now requires, in the light of this decision, for the parties to liaise in the spirit of good faith to reach agreement on a new set of draft conditions.
90 On the important question of orderly and proper planning, the Tribunal believes that a balance needs to be struck between the needs of the applicant to develop the subject land and the statutory and policy provisions at both State and local level. There is a measure of flexibility within those provisions, and the Tribunal believes that this decision achieves that balance and without risk to amenity.
91 The Tribunal also believes that this matter has been determined on the merits of the argument from both sides and should not be construed by others as a precedent or invitation to remove indigenous vegetation from their properties. That is not the intention of the Tribunal in this case.
92 On the matter of the alternative location for paddocks suggested by the respondent, some of the suggested area is within the "building envelope" and some is not. In the circumstances of this case, it appears from aerial photographs that a large proportion of the "building envelope" is taken up by the residence, outbuildings, tanks and building surrounds, and it would not be possible to accommodate both the stables and the paddocks within the envelope and maintain a reasonable level of amenity for the residents.
Orders
For the foregoing reasons, the orders of the Tribunal are as follows:
1. In accordance with s 29(3)(c) of the State Administrative Tribunal Act 2004 (WA) the clearing of vegetation is allowed to the extent outlined in [85] of this decision only.
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- 2. The approval in order (1) is subject to appropriate conditions.
3. Pursuant to s 82(1) of the State Administrative Tribunal Act 2004, order (1) and order (2) do not come into effect until such time as the conditions referred to in order (2) are finalised, at which time the Tribunal will provide a consolidated order setting out all of the conditions of approval.
4. The respondent is to file with the Tribunal and serve on the applicant a revised set of conditions within 14 days of this order, and the applicant is to file with the Tribunal and serve on the respondent a statement agreeing to or identifying any of the draft conditions which are objected to, stating briefly the reasons for each objection within seven days thereafter.
5. The parties are to have regard to [85] to [89] in relation to order (4).
I certify that this and the preceding [92] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR L GRAHAM, SENIOR SESSIONAL MEMBER
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