VIGOLO and SHIRE OF PLANTAGENET
[2005] WASAT 240
•6 SEPTEMBER 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)
CITATION: VIGOLO and SHIRE OF PLANTAGENET [2005] WASAT 240
MEMBER: MR J JORDAN (MEMBER)
HEARD: 10 AUGUST 2005
DELIVERED : 6 SEPTEMBER 2005
FILE NO/S: DR 456 of 2005
BETWEEN: LEOPOLDO VIGOLO
Applicant
AND
SHIRE OF PLANTAGENET
Respondent
Catchwords:
Development - Private Recreation (paintball) use in Rural zone - Review of conditions of approval - Setback from boundary - Impact on neighbouring use - Access from Albany Highway - Use of local road for access - Condition to mark setback from boundary - Control of location for firing of paintball guns - Use of screening
Legislation:
State Administrative Tribunal Act 2004 (WA), s 29(3)
Town Planning and Development Act (WA)
Result:
Application approved with additional conditions to identify setback of playing fields from boundary, to control the location of the firing of paintball guns and to screen the shed, staging area and car park
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Ms Delma Baesjou (as agent)
Solicitors:
Applicant: Self-represented
Respondent: Self-represented
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of decision
Mr Vigolo applied for planning consent for a Private Recreation (paintball) use on his Rural zoned property at Narrikup. The property has part frontage to Albany Highway and to Woodville Road.
The Shire of Plantagenet advertised the proposed use and after considering the submissions it received approved the development, subject to conditions.
Mr Vigolo applied for review of Condition (a), which required the development to be set back 300 metres from the northern boundary and 100 metres from other boundaries, and Condition (g), which required that access to the use be from Albany Highway.
An examination of the site shows that if the use were shifted a further 200 metres south of where it is proposed it be carried out, it would be affected by areas of inundation and surface rocks. If the use were set back 100 metres from the northern boundary and there were a condition not allowing any firing of the paintball guns in that setback, the activity would be 500 metres from the nearest house and about 300 metres from the cattle yards at the end of Woodville Road.
The guidelines of the Firearms Branch of the WA Police require a 100 metre setback from neighbours for safety reasons. Given this requirement and the site and local land use characteristics, the Tribunal has concluded that a 100 metre setback is acceptable.
The shed, staging area and car park used by participants are 29 metres from the common boundary with Lot 1. The applicant's suggestion of erecting a screen fence providing a barrier between the two sites therefore presents itself as an appropriate condition.
Main Roads Western Australia expressed the preference that access to the site be from Woodville Road to enhance traffic safety on the Highway. Woodville Road is a formed, gravel, minor public road. It is not heavily trafficked and it is considered the use of this road for access to the site is appropriate.
Application
This is an application for review of two of the conditions imposed by the respondent on the grant of planning consent for the use Private Recreation (paintball) at Plantagenet Location 5471, Albany Highway, Narrikup, Shire of Plantagenet.
Subject land
Plantagenet Location 5471 (subject land) has an area of 228.0909 hectares. It is an agricultural lot said by the applicant to be used by the family as part of its sheep, cattle and cropping activities.
The eastern boundary of the subject land is irregular but at the northern end this boundary has frontage of approximately 450 metres to Albany Highway. South from this point the eastern boundary steps westward away from the highway before continuing a further 1200 metres to the southern boundary. The lots between the highway and this part of the subject land were said to be owned by the applicant's family. Significant among these is Location 3228 of 40.4 hectares on which is a house used by the applicant. The crossover from Albany Highway to this house was discussed by the parties as a potential access point to the proposed use.
From the north‑eastern corner of the subject land running along nearly two‑thirds of the northern boundary; a distance of approximately 1 kilometre, is Woodville Road, a formed gravel road. North of Woodville Road is Location 3206 on which there is a house at the Albany Highway end but with access off Woodville Road. Directly at the end of Woodville Road is a gate into Lot 1. The boundary of the subject land turns south at this point for 215 metres and then west for about 600 metres to the western boundary. Between the end of Woodville Road and the western boundary the subject land has a common boundary with Lot 1 to the north. About 290 metres from where the boundary turns west there is a shed and a parking area.
An aerial photograph provided by the applicant has drawn on it water courses and drains that that cross the subject land. Central to the western boundary is a significant area of inundation fed by a watercourse from Location 5464 to the west. At the western end of the northern boundary a watercourse enters the subject land running south‑east across the area identified as the location for the approved use. This watercourse exits the subject land at the southern boundary. A third watercourse is shown entering the subject land across Woodville Road feeding an extensive area subject to inundation at the western end of Location 3228. The relevance of the watercourses from the applicant's point of view is that, firstly, access to the playing fields for normal vehicles from Albany Highway, and specifically across Location 3228, would require construction of crossings of the watercourses and inundated areas, and secondly, the western area subject to inundation is to the immediate south of the area of the proposed use.
Proposed use
The Private Recreation (paintball) use granted conditional approval by the respondent was described as a game in which participants use guns powered by compressed air to fire a soft gelatine capsule filled with a coloured paint that breaks on contact with an object. The guns were described as having a range of about 50 metres but with most effect up to about 30 metres. Typically two teams would compete against each other in a "battle" under the supervision of referees. Participants wear safety masks and helmets. The submission of the applicant at the application stage said there would be up to 20 participants on the days that the use was conducted. Condition (e) of the approval requires that participants to the facility not exceed twenty (20) people per event.
The battles are conducted in a field marked out on the ground by tape or rope. The fields shown on the application sketch varied from 816 square metres to 3080 square metres. It was said the better fields include either man made or natural cover behind which players can hide or take refuge. The application sketch showed five fields with one 10 metres from the northern boundary and two others 60 metres from the northern boundary. In addition there is an area for shooting at static targets. This would be separate from the fields.
Also approved was the shed 29 metres from the northern boundary with Lot 1 with an adjoining compound enclosed by a 2.45 metre high shade cloth screen. This is described as a staging area and is a requirement of the best practice guide provided by the Firearms Branch of the WA Police to provide a place sheltered from the games being conducted in the fields. The equipment is secured in the shed. Participants gather in the enclosure to be issued with equipment and instructions. They would then be taken from there to the fields to participate in a battle.
Adjacent to the shed is a car park. The application sketch showed an access track from the western end of Woodville Road south along the vegetation on the common boundary with Lot 1 and then west into a parking area.
Planning framework
The subject land is zoned Rural under Shire of Plantagenet Town Planning Scheme No 3 (TPS 3).
The respondent interpreted the proposed development as Private Recreation which is a use not mentioned in the zoning table. Under cl 3.2.5 of TPS 3 the respondent resolved that the use was consistent with the objectives and purpose of the Rural zone and, as required, had the proposed use advertised in accordance with cl 6.2.
To be noted is the role of the State Administrative Tribunal in this matter. Section s 29(3) of the State Administrative Tribunal Act 2004 provides:
"The Tribunal may –
(a)affirm the decision that is being reviewed;
(b)vary the decision that is being reviewed; or
(c)set aside the decision that is being reviewed and –
(i)substitute its own decision; or
(ii)send the matter back to the decision- maker for reconsideration in accordance with any directions or recommendations that the Tribunal considers appropriate,
and, in any case, may make any orders the Tribunal considers appropriate."
The respondent's conditions under review
On 12 April 2005, the respondent granted planning consent for the proposed development subject to conditions. The application is for review of conditions:
"(a)The playing field being located at not less than 300m from the northern boundary of the lot not less than 100m from all other lot boundaries;"
and
"(g)Access to the proposed private recreation be from Albany Highway."
Setback distance from northern boundary
Ms Baejou, a town planner at the Shire of Plantagenet appeared for the respondent. She submitted that in exercising its discretion the respondent had regard to the submissions made when the proposed use was advertised. The respondent accepted the submissions from neighbours to the north that the movement and noise from the use as proposed would adversely affect the cattle in the neighbouring paddocks. It was also said that the introduction of this non‑rural use would have an effect on the amenity of the area, including that of Location 3206 north of Woodville Road.
Mr Vigolo provided a facsimile of the best practice guide he received from the Firearms Branch of the WA Police which stipulated a minimum buffer of 25 metres over bush‑land and 100 metres over clear ground to guard against paintballs straying onto adjoining properties. Given the range of the paintball guns there was no dispute between the parties that it would be most unlikely that paintball pellets would enter the neighbouring property from a distance of 100 metres or more.
It was Mr Vigolo's application that the setback from the northern boundary be 100 metres instead of the 300 metres required by Condition (a). He submitted that beyond 300 metres the land is in part covered with rocks of a size sufficient to trip and injure players concentrating on other players rather than where they are placing their feet. Outside of the rocky area and beyond 300 metres, the land was described as affected by drains, creeks, soaks and wetland. Mr Vigolo provided photographs to illustrate these points and these were not disputed. Ms Baesjou did, however, argue that areas of rocky terrain were not unusual in paintball playing fields.
It is noted that this would be the introduction of a non‑rural use, but the nearest house, on Location 3206, is some 500 metres or more from the site of the activity on the other side of Woodville Road and closer to Albany Highway. The cattle‑loading yards identified as the most likely location at which cattle would be closely confined on Lot 1 are at the end of Woodville Road about 200 metres north of the common east‑west boundary between the properties. It was also stated, and it was not disputed, that there are cattle grazing paddocks on Lot 2 and Location 5497 to the west of the subject land. The required set‑back from these lots is 100 metres.
Given the distance of the proposed activity from the nearest residence, it is not considered the impact on the amenity of an area that is characterised by grazing is a reason for shifting this development a further 200 metres from the northern boundary.
The sketch provided by Mr Vigolo showed a 20 metre wide belt of vegetation along the northern boundary with Lot 1. The only photograph of vegetation near the Lot 1 boundary shows mature trees and no screening undergrowth. Mr Vigolo reaffirmed at the hearing that, as set out in letter dated 29 July 2005 to the owners of Lot 1, he would be prepared to either make additional planting or build a screening fence with a shade cloth curtain or of woven tea tree branches to create a barrier along a 200 metre section of the common boundary. The means given of implementing a planting programme and then maintenance of the vegetation in the long term were too vague to be of use in the deliberations on this matter.
There will be some activity associated with the shed, the staging area, toilets and car park as close as 29 metres from the common boundary with Lot 1. The tea tree barrier fence suggested by Mr Vigolo presents itself as an appropriate means to screen that activity from the neighbouring lot. Such a fence would be 2.1 metres high extending from adjacent to the shed, toilets and car park eastward alongside the access track to where the track turns north. The Tribunal considers a condition to this effect is appropriate.
The Firearms Branch guidelines stipulate a 100 metre setback for safety reasons. It occurs to this Tribunal that an appropriate requirement would be that no firing of paintball guns, either in testing, demonstration, games or at targets, is to occur closer than 100 metres from the boundary. If the setback to the fields is a minimum of 100 metres most activity will occur at greater than a 100 metre set‑back. From the evidence given this Tribunal considers that the impact of the proposed use in such circumstances would not be so great as to prevent the continued use of neighbouring lots for rural activity, particularly not to the extent of requiring the use to move a further 200 metres distant.
Mr Vigolo explained that volunteer referees would initially run the activity on the site. Familiarity with the game but not necessarily the subject land is considered to present a difficulty of ready identification of where the setback from the northern boundary starts. A guess at the setback is not considered adequate. Permanent markers of an appropriate distinguishable colour would remove any doubt in this regard. A condition to this effect can be added.
Access to subject land from Albany Highway
Condition (g) requires that access to the proposed use be from Albany Highway. The respondent provided photographs of the road frontage between the Woodville Road corner and the access to the Vigolo house on Location 3228 to the south. These were explained as illustrating that south from Woodville Road for about 60 metres there was flat, cleared areas suitable for a cross‑over to the land. South from that point for about 300 metres are earth batters 1 to 2 metres high adjacent to the road which provided difficulties for access and site distance. For the next approximately 300 metres to near the house there was a drop down from the road and a watercourse with a culvert under the Highway, again presenting difficulties for a crossover. There was then again flat land for about 60 metres suitable for a cross‑over adjacent to the entry to the house. The sections suitable for a cross‑over were in close proximity to either the Woodville Road intersection or the cross‑over to the house.
Ms Baesjou submitted that, ideally, use should be made of the existing cross‑over from the highway to the house, which currently belongs to the Vigolo family. This crossover, however, is to adjoining Location 3228 and a better planning solution is to have a permanent crossover directly to the lot on which the use itself is to occur.
Also of significance in the consideration of this condition is the comment Main Roads Western Australia made in a letter sent to Mr Vigolo on 4 July 2005, which was:
"As the site of your proposed business is in close proximity to Woodville Road, Main Roads preferred access to this site is to be via Woodville Road. This would eliminate an additional access point onto Albany Highway and enhance traffic safety at this location."
The respondent expressed concern that the additional traffic generated by those using the private recreation facility would be a source of potential damage to Woodville Road. Submissions lodged by a neighbour also raised as a concern safety aspects of strangers speeding on this road.
It was explained that this road was used as access to the stock‑yards at the end of the road on Lot 1 and as access to the house on Location 3206 at the Albany Highway end of that property. The only other identified regular users of Woodville Road were Mr Vigolo and the persons making use of the paintball activity, initially about once per month and eventually perhaps once per fortnight.
Woodville Road was described as being a formed and drained road with a gravel surface between 3 metres and 5 metres wide. The capacity in vehicles per day for a public road of this standard was not presented as evidence. Having regard, however, to the standard of Woodville Road, the volume of traffic that would use it and the concern about an additional entry onto Albany Highway expressed by Main Roads Western Australia, this Tribunal finds it difficult to support condition (g).
Orders
The application is approved and the approval issued by the respondent is amended as follows:
1.Condition (a) is amended by deleting reference to 300 metres so that the condition reads:
"(a)The playing fields being located not less than 100 metres from all lot boundaries."
2.Condition (g) is deleted and replaced by a new condition to read:
"(g)Access to the proposed Private Recreation (paintball) use is to be from Woodville Road as applied for. Construction of the crossover from Woodville Road being to the satisfaction of the Shire of Plantagenet."
3.New conditions (h), (i) and (j) are imposed as follows:
"(h)Fence posts, or an equivalent, painted yellow are to be set permanently in the ground not less than 25 metres apart to identify the 100 metre setback line from Lot 1 and instructions to referees are to include advice that all fields are to be laid out and games conducted south of this line.
(i)No firing of paintball guns, in testing, demonstration, games and at static targets, is to occur within 100 metres of the lot boundaries. Prominent signage in the staging area and instructions to the referees are to set out this restriction.
(j)A screen fence of tea tree inserts not less than 2.1 metres high is to be erected and maintained extending from adjacent to the northern side of the shed, toilets, car park and access track to where the access track turns northward."
I certify that this and the preceding [36] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J JORDAN, MEMBER
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