SELF and SHIRE OF SERPENTINEJARRAHDALE
[2005] WASAT 140
•17 JUNE 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)
CITATION: SELF and SHIRE OF SERPENTINEJARRAHDALE [2005] WASAT 140
MEMBER: MR P McNAB (MEMBER)
HEARD: 4 APRIL 2005
DELIVERED : 17 JUNE 2005
FILE NO/S: RD 321 of 2004
BETWEEN: DAVID SELF
Applicant
AND
SHIRE OF SERPENTINEJARRAHDALE
Respondent
Catchwords:
Wholesale plant nursery - Small scale operation - Culdesac in rural living area - Whether desirable use - Interrelationship between Town Planning Scheme and rural strategy policy - Inconsistent use of terminology between instruments - Amenity of rural area - Whether "intensive commercial agriculture" - Proposal to be assessed first without regard to conditions - Overstatement of objectors of concerns - Relevance of zoning to amenity
Legislation:
Shire of SerpentineJarrahdale Town Planning Scheme No 2
State Administrative Tribunal Act 2004 (WA), s 167
Town Planning and Development Act 1928 (WA)
Town Planning Regulations 1967 (WA)
Result:
Application for review allowed.
Category: B
Representation:
Counsel:
Applicant: Mr G Paull
Respondent: Mr P Wittkuhn
Solicitors:
Applicant: Butcher Paull & Calder
Respondent: McLeods
Case(s) referred to in decision(s):
City of Mitcham v MOL Pty Ltd (2003) 85 SASR 279
Drummoyne Municipal Council v Maritime Services Board (1991) 72 LGRA 186
Hawkesbury Shire Council v Castles [1988] NSWLEC 53
Hawkesbury Shire Council v Mitchell [1988] NSWLEC 8
Marley-Duncan v Corporation of the Town of Gawler [2003] SAERDC 28
Re Association of Consulting Surveyors (Queensland) Limited (1999) 87 IR 14
Re City of Nunawading and Collector of Customs (1994) 36 ALD 628
Remove All Rubbish Co v City of Salisbury (1989) 51 SASR 26
Stradbroke Island Management Organisation Inc v Redland Shire Council (2002) 121 LGERA 390
Tempora Pty Ltd v Kalamunda Shire (1994) 10 SR (WA) 296
Wym Pty Ltd v Sutherland Shire Council (1990) 69 LGRA 322
Case(s) also cited:
Nil
MR P McNAB (MEMBER):
REASONS FOR DECISION
Introduction
Mr Self ("the applicant") is the registered proprietor of Lot No 117 Stockmans Close, Oakford in the Shire of Serpentine‑Jarrahdale ("the subject land"). The applicant is proposing to commence operating a small commercial nursery on the subject land.
The nursery would occupy approximately 10 per cent of the subject land. In total the subject land comprises approximately 2 hectares. The proposal utilises existing buildings on the land with the addition of a small greenhouse.
The proposal contemplates the removal of trees grown in pots at the nursery to a Trade Mart in nearby Forrestdale with the addition of a small number of individual sales from wholesale visitors to the subject land.
The applicant applied to Shire of Serpentine‑Jarrahdale ("the respondent") in June and August 2004 for planning approval by way of a development application in relation to the proposed use of the land. The respondent refused planning approval on 25 November 2004. The applicant then sought a review of the decision of the respondent by way of an appeal to the Town Planning Appeal Tribunal ("the former tribunal") on 22 December 2004 under the Town Planning and Development Act 1928 (WA), as then in force.
On 1 January 2005, the former Tribunal ceased to exist and this Tribunal took over the appeal as a review under the State Administrative Tribunal Act 2004 (WA): see s 167.
Overview and background
Stockmans Close is a fully sealed cul‑de‑sac and services some 17 properties including the subject land. These properties are all approximately 2 hectares in size and the subject land is located at the end of Stockmans Close, in the northwest corner. Most of the properties in Stockmans Close are similar to the applicant's property. That is, they each have a dwelling house situated on them and the occupants pursue a "rural living lifestyle". Many of the applicant's neighbours on Stockmans Close have objected to the applicant's development proposal.
The actual proposal uses an existing house and stables/shed but requires the creation of a nursery growing area in the far corner of the property with a small greenhouse located thereon.
The applicant's proposal requires the transfer of his existing business, known as the "Tarcus Conifer Nursery". The nature of the business is proposed to be a wholesale, and not a retail, nursery with 90 per cent of the sales done off site and a maximum of on site sales of about five per week by appointment. The business would use up about 10 per cent of the total land area of the subject land. The greenhouse would contain about 4000 cuttings and the balance of the nursery growing area would have approximately 800 plants growing to 2 metres high.
The respondent's rejection of the development application
The respondent says that under the relevant Town Planning Scheme (see below) it has a discretion to permit a rural use within the special rural zone, which is the zoning of the subject land. The respondent says that the development application would not comply with a number of policies or standards. These will be referred to with more particularity below. The major reasons for the respondent rejecting the application may be summarised as follows:
1.the respondent did not consider that the proposed use was a small scale scheme, as the applicant intended a commercial/wholesale focus, and the operation was proposed for a locality where no other similar and intensive commercial uses were operating.
2.because the subject land was located at the end of a cul-de-sac, the road use impact from the additional commercial traffic would be aggravated for nearby land owners and in respect of the locality generally.
3.the receipt by the respondent of a significant number of objections indicated a problem with the proposal. Some 11 objections were received from nearby land owners. Although a number of them were in the pro forma format several of them were individually drafted letters. The respondent attached a significant degree of weight to these objections as they demonstrated an adverse impact on the amenity of affected residents in the area.
4.there were environmental concerns with the proposal. First, there was an issue of possible pesticide spray drift in the non‑greenhouse area of the nursery. Secondly, there was a related concern about the use of chemicals and their subsequent leaching into the soil.
The planning framework applicable to the decision under review
The following summary of the relevant planning framework, policies and instruments, drawn mainly from the respondent's case, is for the most part common ground between the parties.
1.All of the land on Stockmans Close is zoned "Special Rural". More specifically, the land is within Special Rural zone 17 under the Shire of Serpentine‑Jarrahdale Town Planning Scheme No 2 ("TPS 2"). Under the TPS 2 Zoning Table, a nursery – which is how the applicant's proposed business was characterised by the respondent, and not disputed by the applicant – would fall within the use class "Rural Use". This is defined in Appendix 1 of TPS 2 as follows:
"Rural Use – means the use of land for any of the purposes set out hereunder and shall include such buildings normally associated therewith:
(i)the growing of vegetables, fruit, cereals, or food crops except for domestic purposes;
(ii)the rearing or agistment of goats, sheep, cattle, or beasts of burden;
(iii)the stabling, agistment or training of horses, or other ungulates;
(iv)the growing of trees, plants, shrubs, or flowers, for replanting in domestic, commercial or industrial gardens;
(v)the sale of produce grown solely on the lot." (Emphasis added.)
2.Under the zoning table of TPS 2 (see cl 3.2), "Rural Use" is an "AA" use in the Special Rural zone. This means that the respondent may, in its discretion, permit the use: see cl 3.2.2.
3.Therefore, a nursery is not a use permissible as of right. Under cl 6.4.2 of TPS 2, the respondent must consider, among other things:
"(f)Any submissions received in response to giving public notice of the applications;
(g)The orderly and proper planning of the locality; and
(h)Preservation of the amenity of the locality."
4.The respondent also has a Rural Strategy policy, which has been endorsed by both the respondent and the Western Australian Planning Commission. This is a planning document used by the respondent as a guide when considering land use and development proposals.
5.Under the Rural Strategy, the land is designated as "Rural Living B". The first "Policy Objective" (RL 1) of the strategy is:
"To provide opportunities for a rural‑living lifestyle, with a greater sense of space and privacy."
6.Under the heading "Land Uses" in the Rural Strategy, there is a division between land uses considered "desirable", "conditional", and "undesirable". Among the "undesirable" uses are "commercial agriculture" and "commercial intensive agriculture" (terms which are not relevantly defined). In the respondent's view these would appear to be the closest use types to the proposed nursery use. This is disputed by the applicant.
Evidence of the applicant
The applicant told the Tribunal that he was attracted to the purchase of the subject land because of its location, the availability of a reliable water supply and the fact that it had already been cleared.
His said that his intention was primarily residential but he also needed somewhere so that he could transfer his existing business, the Tarcus Conifer Nursery. He said that that business had originally operated from premises in Wattle Grove but had been forced to move as development had overtaken the area.
The applicant told the Tribunal that the nature of the business was that of a small wholesale, and not a retail, nursery with 90 per cent of its sales to be done offsite. The actual number of onsite sales would be about five per week and then by appointment only. All transport of stock and other business requirements both inbound and outbound from the subject property would be undertaken by the applicant.
The new business would be owned and operated by the applicant and his brother. They estimated that on average they would spend about an hour a day attending to the trees. The nature of the business was described by the applicant as "growing advanced ornamental trees in containers for gardens and landscaping".
It was estimated by the applicant that the operation would take up approximately 5000 metres squared but most of that would comprise existing buildings and the actual growing area would occupy only 1600 metres squared, or less than 10 per cent of the total land area. It was also proposed that there would be a fully contained greenhouse which would house the pot plants in which the trees were to be initially grown. The nursery was planned to be completely above ground. The applicant said that the nursery area would be screened from the cul‑de‑sac by an existing belt of trees at the rear of the land and also by the planting of advanced deciduous trees at the front of the nursery area.
The applicant said that the nursery would require fertiliser, although it was proposed that it be nitrogenous rather than phosphate based. It was also proposed that the nursery include a compensating basin/dam to collect drainage water from the nursery area to allow for nutrient stripping before excess water left the land. Existing drains, established by a previous owner, were in the applicant's view, already sufficient for that task. The applicant described the existing state of the land as extensively cleared and degraded farm grazing land that was predominately lawn covered.
On the question of spraying the trees with pesticide, the applicant maintained that he was only interested in a minimal spray routine and then only using a fungicide to prevent dieback. Spraying would be done by way of a low‑pressure hand wand.
In cross‑examination, the applicant described his proposal as a part time operation. He said that he had had 20 years in the nursery game and described himself as a specialist conifer grower. He estimated that the trees he would be growing would grow 300 millimetres a year and that he anticipated selling them when they had reached approximately 2 metres in height. They would be removed and loaded for storage by hand. He anticipated selling about 10 trees per month. The applicant said that he intended to grow about 1000 trees and for this target he would need some 4000 cuttings. The applicant estimated that the trees would be placed some 2 metres apart to enable them to grow properly.
The applicant explained that he has an arrangement with the Canning Trade Mart whereby he would visit approximately once per month with a number of trees for sale.
The applicant was asked in cross‑examination about the number of wholesale customer visits that might be made per week. He said that he thought that there might be one week where only three customers visited but that the next week there might be eight. He said that if there was a condition that only five customers visited per week, then he would do his "best to adhere to the requirements that were laid down" but that he would seek clarification of whether it was an averaged figure or not.
The applicant was also asked about the arrangements for the delivery of his stock sold. He said that he would personally deliver it, and when he was asked how many trees would be removed at any given time he replied that it could be up to 20, depending upon, for example, whether it was "hedging material" or not.
The applicant denied that he would be doing any more deliveries than to the Canning Trade Mart or his customers. In particular, he denied that he would establish commercial relations with other nurseries. He was only aware of one other equivalent nursery at Wanneroo and he said that he did not think that he could travel to Wanneroo on a regular basis to engage in such trade.
The applicant was also asked in cross‑examination to give his general observations of neighbouring properties. He said that he thought that on one of the properties nearby there was the storage of equipment related to an electrician's business; that another neighbour had a "hot rod motor vehicle"; and that he had observed another resident dumping what appeared to be animal manure from stables, and garden refuse into a drain.
The applicant was also asked by the Tribunal to describe generally the activities at neighbouring properties. In reply, these were summarised by him as including general small farming type operations comprising horses, cows and sheep with the possibility of some horse riding lessons as well. There was also the grazing of cattle. The applicant suggested that if one drove down the cul‑de‑sac, the observer would see similar properties all of the way along both sides of Stockmans Close.
The applicant was asked by the Tribunal for clarification of the number of plants involved. The applicant estimated that he would grow about 800 plants in the nursery growing area, and about 4000 cuttings in the greenhouse on average. The applicant did not intend to erect any business signs. The applicant was also asked about the distance from his property to neighbouring properties' residences. The applicant reiterated that he had planted a belt of trees to provide a screen for the nursery so that his neighbours would not see his commercial operation.
The applicant did not agree that one could describe his neighbourhood as typical rural living; he described it as "upper‑class rural living".
The applicant claimed that there was a bitumen paving operation within a kilometre of his property. He also claimed that there were a number of nurseries (approximately three, including a rose nursery) established in market gardens a kilometre and a half from his residence.
When asked for clarification as regards his stock, the applicant described it as "pines, spruce, firs and junipers" and that these were grown as ornamentals, namely slow growing small and compact trees cultivated for their shape. He also sold to bonsai operations.
In cross examination Mr Self clarified that where he had referred to grazing he was talking about the husbandry of animals mainly for the keeping down of grass. Also in cross‑examination, the applicant admitted that the trucking and nursery operations that he had been referring to were in relation to roads which were not of the same status as Stockmans Close and were further away than he had estimated.
Respondent's evidence
In opposition to the applicant, the respondent called Mr BJ Gleeson who was the manager of Planning and Regulatory Services for the respondent. He had held that position since 2003.
Mr Gleeson first drew attention to the status of the road servicing the applicant and his neighbours' properties. Stockmans Close was a cul‑de‑sac and therefore all traffic must pass through the one road. He described the amenity of Stockmans Close as "basically large residential lots, each with a single house and shed, with space for low key non‑commercial rural uses particularly grazing of horses and cattle". He suggested that these were uses which generated a low level of motor vehicle and related traffic on the cul‑de‑sac.
Mr Gleeson speculated that given the "large size and mature trees" that would be grown, large delivery trucks would be needed to collect produce for delivery to wholesalers. He added that there would also be trucks delivering supplies of fertiliser and the like. Then there would be the visits of customers for the onsite sales. These activities, in Mr Gleeson's view, would self‑evidently lead to an adverse impact on amenity.
He noted that the subject land was subject to a Rural Strategy which was a document endorsed by both the respondent and the Western Australian Planning Commission. He said that in his opinion the proposed operation was closer to those uses classified as "undesirable" in that policy, which included "commercial agricultural" and "commercial intensive agriculture". He drew attention to a primary policy objective of the rural strategy which was to provide opportunities for a rural living lifestyle with a greater sense of space and privacy. There were, he said, "very few businesses within the rural zone".
Mr Gleeson told the Tribunal that the respondent had received 11 objections from nearby land owners. He said that he considered 11 objections to be a significant number and the fact that five of these were non‑pro forma letters "point[ed] to a genuine sentiment of concern". In his statement he said that:
"I consider that the objectors have a valid point in relation to the protection of the amenity of their properties. I understand 'amenity' to mean the sum of expectations of the residents in the locality concerning the environment in which they live. It has become clear from the objection letters that in Stockmans Close, there is a very strong sense of the quiet residential nature of the area which should be preserved. There is clearly a very low tolerance for any type of commercial operation. That is the expectation of the residents; [and encompassed] in the traditional definition of 'amenity'; that expectation, in my opinion, needs to be given significant weight."
Mr Gleeson then turned to the problems of spray drift. Mr Gleeson speculated that the size of the operation and its high intensity, albeit in a relatively small area, would involve high intensity spraying of pesticides. He maintained that in his experience poorly managed spraying could drift off the property into neighbouring properties.
Mr Gleeson then moved on to consider the question of pesticide chemicals leaching into the soil. He said that the water table relative to the subject land could be expected to be approximately one metre below the land contour. He drew attention to a Water and Rivers Commission/Department of Environment, "Water Quality Protection Note" of 2002 concerning nursery and garden centres. That document suggested that nursery operations should be located at least 1.5 metres above the maximum ground water table level. The document went on to say "lesser separation distances may be negotiated where environmental conditions and/or management techniques of the nursery provide for adequate water quality protection".
In cross‑examination Mr Gleeson was first asked to consider whether the applicant's proposal could be fairly described as "intensive". It was put to him that presumably a proposal on a much larger scale would be envisaged by the use of such a term. Mr Gleeson maintained that the proposed activities could be described as intensive.
Mr Gleeson agreed that the planning officer's report to the respondent had included comments that some of the complaints were unsubstantiated or that they could be dealt with by the imposition of appropriate conditions. Mr Gleeson maintained that there would still be a significant impact due to traffic flow even if it were limited to five customers visiting the applicant per week.
As to the height of the trees involved, Mr Gleeson conceded that he was not aware that the proposal extended to them being lifted by hand. Mr Gleeson said that notwithstanding having heard the evidence of the applicant he still thought that a variety of vehicles, small trucks, trailers and possibly large trucks would be attending the applicant's property. Mr Gleeson thought that visits to the cul‑de‑sac by farriers, veterinarians, horse floats, feed merchants and the like would be "fairly infrequent".
Mr Gleeson doubted whether the imposition of conditions could control an activity such as that proposed. In any event, he thought that the movement of commercial vehicles, even if regulated, would have an undesirable impact on the amenity. He also said that enforcing the conditions could be operationally difficult as it might be impractical to obtain the necessary evidence for enforcement by the respondent.
Mr Gleeson drew attention to the planning officer's recommendation to the respondent that there was potential for an impact of the applicant's proposed operations (from sources such as odours, pesticide, drift, nutrients leaching into the ground water) if the proposal was not managed properly.
He was also asked to explain why he described the operations as "intensive". Mr Gleeson said that he saw intensity in terms of the multiple activities proposed, such as growing in the green house, growing out in the open and the movement of plants in between the two parts of the operations area, combined with visitor numbers and vehicle movements.
When asked about the Rural Strategy's intentions, and whether the respondent's own objects would be advanced by the promotion of activities of this kind, Mr Gleeson replied as follows:
"That's correct but that objective is balanced against having those activities on appropriately located properties, appropriately sized, and in ensuring that there's no impact on neighbours or the environment. So there's a range of other factors that need to be considered up against that policy statement as well."
Mr Gleeson summarised his concerns as relating to a change in the character of the area away from what he described as primarily a rural residential area with low key activities such as the grazing of animals that had very little impact on adjoining neighbours to the introduction of an activity that would not normally be found in that type of area.
Discussion of the case and associated findings
Generally, the correct approach will be to consider the proposed use as properly characterised without initial or direct reference to conditions in order to see whether "the proposed development [is] at least prima facie a suitable and appropriate use of the subject land having regard to the provisions of the [relevant planning instrument]": Remove All Rubbish Co v City of Salisbury (1989) 51 SASR 26 at 34. See also, Drummoyne Municipal Council v Maritime Services Board (1991) 72 LGRA 186.
The Tribunal has approached the characterisation issue here by accepting the applicant's evidence to the effect that the proposed use of the land is not at a scale that requires it to be considered as "intensive commercial agriculture", as that expression might be ordinarily understood (assuming, for the moment, that that standard is relevant).
In Hawkesbury Shire Council v Castles [1988] NSWLEC 53 the Court said:
"The word 'intensive' is not defined in the [relevant legislation and planning instrument]. It is, however, an ordinary English word and it follows that its meaning in this context is a question of fact and not law, which may be resolved with the assistance of dictionaries. The Macquarie Dictionary defines it as characterising something by the quality or condition, 'of existing or occurring in a high or extreme degree' … I note that the dictionary defines 'intensive stocking' as being a 'technique of stocking land on a long term basis above what is normally considered to be the carrying capacity of the land, for example by implementing strategic or rotational grazing'. Stein J in [Hawkesbury Shire Council v Mitchell[1988] NSWLEC 8] said: '[…] In the agricultural sense and context I take "intensive" to mean the use of management techniques to increase the production or carrying capacity of land. That is, rather than free range grazing off the land, a grazier brings in feed lots to intensify the carrying capacity'."
Whilst the proposed use here is commercial, it is in fact a specialist, rather small scale nursery (relative to the size of the subject land) with a limited market based on growing ornamentals and with most trade proposed to be undertaken off site. The on site operation resembles the nursery summarised in Wym Pty Ltd v Sutherland Shire Council (1990) 69 LGRA 322, as follows:
" … the cultivation of decorative and other garden plants and various sub‑tropical palms which would be grown from tube stock to maturity in pots of various sizes. When a plant had outgrown its pot it would be transferred into another one and so on until sold. None of the plants were to be grown in the natural soil on the land." (Headnote.)
In the Tribunal's view it is not a proposed use which can be characterised to the requisite degree as encompassed by the term "intensive commercial agriculture".
Moreover, the proposed use is more precisely described or classified as "horticulture" even though it might be possible that, in certain contexts, "agriculture" can include "horticulture" without being expressly included in that definition: cf the discussion of the terms "agriculture", "agricultural activity", "farming" and "horticulture" in City of Mitcham v MOL Pty Ltd (2003) 85 SASR 279 at 298 ‑ 299 (FC); and see the extensive dictionary and encyclopaedic references to "horticulture" in Re City of Nunawading and Collector of Customs (1994) 36 ALD 628 at 638 – 642 (AAT).
Additionally, there is the TPS 2 definition of "horticultural pursuit" (appendix 1, at 80) which refers to the growing of shrubs and plants for re-planting in terms similar to those included in the definition of "rural use". On the other hand, in the Rural Strategy for the rural policy area (which is different from rural living area B, which applies to the subject land) conditional land uses include the following:
"Intensive agricultural ‑ commercial and recreational (horticulture and animal feedlot)."
See also the references to "intensive horticulture" being permissible in the special rural zone (at cl 5.9.1, the full text of which is set out below).
The Tribunal has not overlooked the possibility that the apparently extended use of the word "intensive" derives from its use in the Town Planning Regulations 1967 (WA) Model Scheme Text's bifurcated land use definitions of "agriculture – extensive" and "agriculture – intensive", the latter definition including "plant or fruit nurseries" (cl 3). However, these definitions have not been adopted for TPS 2, and the Tribunal was not referred to them.
There is perhaps a failure of TPS 2 and the Rural Strategy to use consistent, integrated, coherent and adequately defined terminology, at least in this area. And, as has been said "poor drafting does not engender confidence when one is seeking out the intent of the legislator": Re Association of Consulting Surveyors (Queensland) Limited (1999) 87 IR 14 at 22. Nevertheless, as has also been pointed out "[p]lanning instruments are often poorly drafted but [tribunals] must make some sense of them" (Stradbroke Island Management Organisation Inc v Redland Shire Council (2002) 121 LGERA 390 at 402.
Here, doing the best the Tribunal can it seems that notwithstanding the link expressly established between the two (see cl 5.12), the Rural Strategy does not relevantly detract from or hinder the applicant's right to have his proposal primarily assessed against TPS 2's criteria, which leaves the applicant in a position where he could be granted approval in the exercise of the decision‑maker's discretion.
Thus, it is necessary to consider any public submissions, orderly planning principles and the existing amenity of the subject land and its surrounds. Although these matters are prescribed in TPS 2 they reflect matters which the Tribunal would ordinarily take into account in any event in exercising its discretion "standing in the shoes" of the respondent.
Rural amenity
The public submissions (from the resident objectors) express concerns in relation to increased traffic, chemical and pesticide use, excessive water drawing, an increased risk of burglary, increased insurance premiums, defeated expectations arising from certain assurances given at the point of purchase (that is, an understanding that no businesses could operate in the area) and the turning of the close into something other than quiet rural living, and more akin to a semi-industrial site. With all respect to those objectors, many of these considerations are speculative and overstate the case against the applicant as they often fail to address the actual proposal that he has put forward, a use that – it needs perhaps to be restated – TPS 2 potentially permits and the Rural Strategy does not relevantly hinder.
It has rightly been said that:
"Amenity is an elusive but invaluable concept in town planning. The amenity of a neighbourhood [or locality] is a complex of many attributes. It goes much further than mere pleasantness or agreeableness. In town planning terms, it embraces all the features, benefits and advantages inherent in the environment."
Planning and Environment Victoria "The concept of amenity", at [1.15] (citations omitted).
The leading Western Australian authority on assessing amenity issues is Tempora Pty Ltd v Kalamunda Shire (1994) 10 SR (WA) 296 a decision of the former Tribunal's predecessor, which this Tribunal proposes to follow. Here, the rural living arrangements at Stockmans Close are fairly set out in the evidence above, are not in any real dispute and do not need any repetition. The related subjective concerns of some of the residents have already been referred to. Zoning can also significantly affect questions of "amenity" so it is convenient to start with that issue.
Here, the purpose and intent of the special rural zone is said, by TPS 2 itself, to be (at cl 5.9.1):
"to depict places within the rural area wherein closer subdivision will be permitted to provide for such uses as hobby farm, horse training and breeding, rural residential retreats and intensive horticulture, and also to make provision for retention of the rural landscape and amenity in a manner consistent with the orderly and proper planning of the selected areas."
The Rural Strategy policy objectives for rural living includes reference to "rural enterprises conducted in association with rural living". Nurseries are expressly mentioned as an example (see RL 8).
Whilst such uses listed above will mostly require consent (as here), the following observation from the Environment Resources and Development Court of South Australia is nevertheless a useful reminder and a reference point for general discussion about rural amenity:
"The list of developments [the relevant planning instrument] has designated as complying confirms, in my mind, that the amenity to be expected in the zone might not be free of nuisance of one form or another. Rural areas generate a variety of 'externalities' – mainly noise and dust emissions. One cannot expect to reside in such a zone and necessarily expect a quiet and serene rural environment. However, [counsel] quite rightly said that the circumstances of the zone should be taken into account when considering the amenity that might be reasonably expected." See Marley-Duncan v Corporation of the Town of Gawler [2003] SAERDC 28 at [21].
In the Tribunal's view, orderly planning generally (including reference to the "precedent' created, if any) would not be defeated by permitting this particular proposal to proceed. In particular, the broad factors identified in research set out in the Rural Strategy (at 16) relevant to rural living which form part of the amenity of the area (eg, "buildings glimpsed through vegetation"; "the quality of the natural environment"; "insignificance of … built elements in the landscape"; and "retention of vegetation between house and road pavement") would be, for Stockmans Close, marginally affected, if at all, by this relatively modest proposal. Likewise, for those related matters reflected in the objector residents' concerns already referred to.
Further, the Tribunal is satisfied that the scale of the operations proposed could be sufficiently enforced and regulated by the imposition of comprehensive conditions (particularly environmental conditions), a position broadly reached earlier by the respondent's own planning officer. At present there are areas of disagreement between the parties about the scope of any potential conditions that might be imposed. The order that the Tribunal proposes to make will have the effect of requiring the parties to negotiate further in good faith to agree on a set of reasonable conditions for presentation to the Tribunal.
Conclusions and orders
The respondent has not made out its case and the application for review will be allowed. The parties will be directed to negotiate with each other in order to bring back to the Tribunal an appropriate set of conditions, not inconsistent with these reasons, for subsequent approval of the Tribunal. The Tribunal orders that:
1.the application for review is allowed;
2.the decision under review is set aside and in substitution thereof there will be a decision granting development approval on such conditions as are reasonable and appropriate to be approved by the Tribunal;
3.the parties are directed to negotiate with each other in good faith to produce a set of reasonable and appropriate conditions, not inconsistent with the reasons for decision of the Tribunal, to be filed by the respondent within 28 days of the date of this decision; and
4.leave is granted for the parties to apply to the Tribunal concerning any issue arising out of order 3.
I certify that this and the preceding 17 pages comprise the reasons for decision of the Tribunal.
______________________________
P McNab, Member
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