Wakeman and Shire Of Toodyay
[2015] WASAT 22
•3 MARCH 2015
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: WAKEMAN and SHIRE OF TOODYAY [2015] WASAT 22
MEMBER: MS J BELL (SESSIONAL MEMBER)
HEARD: 9 DECEMBER 2014
DELIVERED : 3 MARCH 2015
FILE NO/S: DR 110 of 2014
BETWEEN: DAVID WAKEMAN
Applicant
AND
SHIRE OF TOODYAY
Respondent
Catchwords:
Town planning Development Refusal Additional horse Horses on Rural Residential zoned land Planning objectives of Rural Residential zone Stocking rates and horse management Impact on amenity of rural residential land Interpretation of 'cleared land'
Legislation:
Planning and Development Act 2005 (WA), s 252(1)
Shire of Toodyay Local Planning Scheme No 4, cl 4.2(h), cl 4.3.2, cl 5.11.9, cl 8.2(g), Sch 1, Sch 11
Result:
Application for review dismissed
Decision of the Shire of Toodyay to refuse the application affirmed
Summary of Tribunal's decision:
This was an application for review of the respondent's decision to refuse development approval for the keeping of two horses on a rural residential property in the Shire of Toodyay. The application was refused on the grounds that it did not comply with the provisions of the local planning scheme with regard to recommended stocking rates and the requirements to protect the amenity of the Rural Residential zone.
The applicant maintained that the subject land was suitable for the accommodation of two horses as it had been largely cleared of native vegetation and would be the subject of responsible and effective management.
The Tribunal considered that the proposal to use the majority of the subject land for the keeping of two horses was not in accordance with the objectives of the planning framework for limiting livestock, protecting and conserving native vegetation and preserving the overall amenity of the Rural Residential zone. The Tribunal therefore found that there were no circumstances to justify approval of this discretionary use.
The Tribunal dismissed the application for review.
Category: B
Representation:
Counsel:
Applicant: In person
Respondent: Mr J Algeri (Acting as Agent)
Solicitors:
Applicant: N/A
Respondent: Altus Planning & Appeals
Case(s) referred to in decision(s):
McDowall and Shire of Chittering [2007] WASAT 129
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
These proceedings involve an application brought by Mr David Wakeman (applicant), pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), for review of the decision of the Shire of Toodyay (respondent) on 25 March 2014 to refuse a retrospective application for development approval for the keeping of two horses at Lot 43 Laterite Way, Coondle (subject land or site).
Site and locality
The subject land is approximately 2.2565 hectares in area, has a gradual slope from south to north and a soil landscape comprised of shallow gravels and ironstone outcrops. It is located at the intersection of Laterite Way and Darwinia Crescent in Sanctuary Park, an area of small rural residential landholdings, approximately 10 kilometres from the Toodyay townsite.
The view of the site by the Tribunal and photographs filed by the respondent show a single storey residential dwelling and outbuildings located centrally on the property. The subject land shares a common boundary with two adjoining rural landholdings to the south and west, of a similar size with dwellings and associated outbuildings.
Two fenced paddocks have been established on the northern part of the subject land between the dwelling and the street frontages. The existing driveway provides access from the northern boundary on Laterite Way to the east of the dwelling following the paddock boundaries. The paddocks and the driveway access are largely devoid of vegetation and the remaining portion of the subject land, located predominantly to the south of the dwelling, has some tree cover and bushland vegetation.
The proposal and refusal
The applicant applied for retrospective development approval for a 'rural pursuit' to keep horses on the property. The equine horse management plan accompanying the application for review, dated 24 June 2014, indicates that two horses and one foal are to be accommodated on the subject land and two new paddocks are to be provided on the southern portion of the land to the rear of the dwelling. A 3 metre by 3 metre stable is proposed within the existing shed and an additional set of stables measuring 10 metres by 10 metres is proposed between the two new paddocks for the stabling of horses overnight. Horse fencing is to be erected around the paddocks, and horse siting fencing on the boundaries of the lot to provide for further security and control. The paddocks are to be harrowed and seeded with clover and rye grass species, and the horses are to be rotated through the paddocks as required.
The respondent refused the application on 25 March 2014 on the grounds that it does not comply with the Shire of Toodyay Local Planning Scheme No 4 (LPS 4 or Scheme).
Planning framework
The subject land is zoned Rural Residential under LPS 4.
Clause 4.2(h) of LPS 4 sets out the following objectives for the Rural Residential zone:
(i)provide for a range of lifestyle opportunities as permitted under the zoning table and other provisions of the scheme.
(ii)maintain and enhance the rural character and amenity of the locality;
(iii)enhance the district's social and economic structure without detrimentally affecting the landscape, environment and existing agricultural activity;
(iv)ensure the protection and conservation of native vegetation;
(v)ensure that lot sizes and shapes are rationally related to the topography and state of land development; and
(vi)have regard for the visual aspect of the site in considering development applications.
The use proposed in the development application falls within the use class 'Rural Pursuit' defined in Sch 1 of LPS 4 as any premises used for:
(a)the rearing or agistment of animals;
(b)the stabling, agistment or training of horses;
(c)the growing of trees, plants, shrubs or flowers for replanting in domestic, commercial or industrial gardens; or
(d)the sale of produce grown solely on the lot,
but does not include agriculture extensive or agriculture intensive;
Table 1: Zoning Table of LPS 4 classifies the use as a 'D' use in the Rural Residential zone. Clause 4.3.2 of LPS 4 explains that a 'D' use is 'not permitted unless the local government has exercised its discretion by granting planning approval'.
Clause 5.11.9 of LPS 4 states the following in regard to livestock management in Rural Residential or Rural zones:
With the intention of preventing overstocking or other practices detrimental to the amenity of the zone and to prevent land degradation and nutrient export, any application for the keeping of livestock will have regard to advice from the relevant State Government departments including in relation to recommended stocking rates and protection of environmental attributes (such as native vegetation, watercourses, wetlands, ground and surface water quality and landform).
Schedule 11 of LPS 4 sets out additional requirements for rural residential development and the following provisions apply to the subject land:
| Description of Land | Development Requirements |
| 'Sanctuary Park' subdivisional area (being Lots 21-28, 39, 47 and 48 Scaevola Road; 37, 38, 9002, 405 and 58-62 White Gum Ridge; 36, 44-46 and 49-57 Darwinia Crescent; and 29-35 and 40-43 Laterite Way). | (a) Notwithstanding Clause 4.3, rural pursuits are not permitted. (b) Livestock may be held on lots west of White Gum Ridge in areas already cleared of natural vegetation at the time of subdivision and wherein slopes are 10% or less. The holding of livestock is permitted for domestic purposes only. That is, stock may be held for the use and enjoyment of landowners, or for the purposes of keeping of growth of grassland (and therefore fire hazard) in check. Commercial stockholding based activities constitute a rural pursuit and there not permitted. |
Clause 8.2(g) of LPS 4 specifies that the following development does not require the planning approval of local government:
The carrying out of a Rural Pursuit in the Rural Residential and Rural Living zones that:
(i)is not used for trade or commercial purposes; and
(ii)complies with the recommended stocking rates and environmental protection requirements of the relevant State Government departments.
The recommended stocking rates for horses are set out in section 2 of Stocking Rate Guidelines for Rural Small Holdings Swan Coastal Plain and Darling Scarp (Agriculture Western Australia, February 2000) (Guidelines). Table 1 of the Guidelines outlines the stocking rates for stocking rate land units based on the Dry Sheep Equivalent, and Table 2 of the Guidelines sets out the animal equivalents.
Issues
The issue for consideration, agreed to by the respondent and the applicant, is whether the subject land is capable of supporting the proposal to accommodate two horses, having regard to the development requirements of the Rural Residential zone contained within LPS 4 and the Guidelines.
Experts called by the parties
In relation to this issue, the Tribunal had the benefit of expert evidence from the following witnesses:
•Mr Priest, an environmental consultant who gave evidence for the applicant;
•Mr Algeri, a consultant town planner who represented and gave evidence for the respondent; and
•Mr Pate, an agricultural consultant who gave evidence for the respondent.
Respondent's position
The respondent submitted that rural pursuits are not permitted as a general rule within the Sanctuary Park rural residential area, but Sch 11 of LPS 4 makes an exception in certain circumstances, designed to prevent overstocking and protect the amenity of the Rural Residential zone. These require that areas for such use have a slope of less than 10%, have been cleared of natural vegetation at the time of subdivision and that due regard is given to recommended stocking rates and protection of environmental attributes.
The respondent accepted that the slope of the land is slightly less than 10% but contended, on the basis of aerial mapping data, that only 9,815m² of the site comprising the two existing paddocks and driveway access had been cleared of native vegetation. Mr Algeri, in giving evidence, contended that the applicant had disregarded the fact that vegetation on the site, irrespective of its significance, is a feature of this locality and an important value of rural residential land as expressed in the Scheme. The existence of trees and bushland vegetation over a substantial part of the subject land, in his view, indicated that the land could not be described as cleared land. On this basis, the respondent submitted that the recommended stocking rate for the cleared area according to Table 1 and Table 2 of the Guidelines was for the keeping of only one horse.
The respondent further argued that the proposal to keep two horses on the property and create two additional paddocks on the southern portion of the subject land would be contrary to the objectives of the Rural Residential zone. In this regard, it was maintained that clearing, pasture management and accommodation of horses in this area would lead to further land degradation and would therefore not contribute to the protection and conservation of native vegetation and the amenity of the rural residential area.
The respondent made reference to a case, McDowall and Shire of Chittering [2007] WASAT 129 (McDowall), regarding the keeping of horses in a Rural Residential zone which had raised the same issues. In that instance, the respondent referred to the dismissal of the review by the Tribunal, which found that the applicant had based their argument for an additional horse on management practices alone and had disregarded policy standards pertaining to the zone in the local planning scheme.
The respondent acknowledged that it was possible that other horses were accommodated in other rural residential areas in the Shire of Toodyay without the prerequisite approvals under the local planning scheme.It was argued that although of general concern in the area, this was not relevant to consideration of the matter under review.
Applicant's position
The applicant clarified during the hearing that the proposal was not for commercial or trading purposes and that only one set of stables would be provided on the subject land in the new paddock areas.
The applicant argued that the majority of the land had been previously cleared of native vegetation as part of a parkland grazing system. The remaining vegetation consisted of some large trees, scattered bush, and an understorey consisting mainly of standard agricultural weeds and some recently sown clover. On this interpretation of 'cleared land', it was contended that the proposal for two horses almost met the recommended stocking rate, and had not taken into account supplementary feeding and the lack of reliance of the animals on the productivity of the soil for feed requirements. The applicant further contended that the Guidelines were prepared for land on the Swan Coastal Plain and the western slopes of the Darling Range, where there is a particular concern for nutrient export from livestock, and could not be applied with the same vigour to land on the eastern slopes of the Darling Range.
A biodiversity assessment of the subject land undertaken by Mr Priest and included in his witness statement confirmed that the remaining vegetation consisted of some Marri/Whitegum woodland species, Balga bush trees and very little understorey species. Mr Priest assessed the bushland quality on the subject land as degraded to good, with very small remnants of significant vegetation species and little potential for rehabilitation under the current management regime. Both the applicant, and Mr Priest in presenting his evidence, argued that the land was suitable to accommodate two horses with appropriate horse management practices. The proposed management regime included:
•the protection of existing vegetation in the paddocks by the application of 'Vicks' to trees, to discourage damage by horses;
•the establishment of tree guards, if necessary; and
•the placing of a barrier of rocks around the base of the trees.
The applicant argued that the presence of other horses in the area was a matter relevant to the review, given the potential cumulative impact of horses on nutrient export and load, and the need for impartial and consistent application of the provisions of LPS 4 to all rural residential properties.
Comment and conclusion
The principal issue for consideration by the Tribunal is whether the proposal for the keeping of two horses and a foal on the subject land is an appropriate use of the subject land, within the context of the planning framework for development in the Rural Residential zone.
The Tribunal notes that the overall objective for the Rural Residential zone is to provide for a range of lifestyle opportunities, but at the same time to preserve the rural character and amenity of the locality, and to protect and conserve native vegetation. In this regard, the view of the site and surrounding area by the Tribunal confirmed that other rural residential lots in the locality have a combination of cleared areas for various rural uses and areas retained for native vegetation.
The Tribunal also notes that the objective of the principal planning instrument, LPS 4 gazetted in 2008, is to restrict rural pursuits in the Rural Residential zone to prevent overstocking and to protect native vegetation. The Tribunal found some confusion in the Sch 11 provisions of LPS 4 for the Sanctuary Park rural residential area regarding the permissibility and definition of rural pursuit, but acknowledges that there is a clear intent to permit such uses in this locality under restricted circumstances.
The Tribunal acknowledges that the Guidelines for recommended stocking rates are not a statutory requirement, but are to be given due regard in dealing with an application to keep horses on rural residential properties. The Tribunal was not provided with convincing evidence that they should not be applied in this locality. In this regard, it also noted the evidence of Mr Pate that the current Guidelines for recommended stocking rates had been prepared on the basis of rainfall figures and pastoral production some 25 years ago and that lower rainfall trends since that time required the application of a more conservative and risk management approach.
The argument of the applicant was presented substantially on two grounds:
1)An interpretation of what constitutes 'cleared land'; and
2)The ability of the horse management plan to protect existing vegetation on the subject land and to protect rural amenity.
Both the view of the site by the Tribunal and the biodiversity assessment presented by Mr Priest indicated that there was significant tree cover and some bushland areas in need of protection on that portion of the subject land proposed for additional paddock space. The Tribunal found that the applicant's view that the land should be regarded as cleared was based primarily on the fragmentation, poor quality and limited rehabilitation potential of the vegetation on the site. The Tribunal agreed with the contention of the respondent that this view did not address the wider objectives for the Rural Residential zone, particularly the protection and conservation of native vegetation and the visual aspect of the site. In this regard, the Tribunal considered that the respondent's assumption that approximately 1 hectare of the subject land had been cleared was reasonable as a basis for assessing the stocking rate.
Although the applicant argued that the management regime to protect native vegetation on the site would be effective, the evidence provided by Mr Priest and confirmed during crossexamination, indicated to the Tribunal that this was not the case. In particular, the improvement of pasture species in the new paddock areas, the removal of existing boulders, and the grazing of the horses was likely to damage and inhibit the regrowth of native species.
The case cited by the respondent, McDowall, involved an application to keep four horses instead of the approved three on a rural residential property. The intent of the planning framework in that case was similar in most respects to the planning framework in the Shire of Toodyay, but relied on a specific adopted local planning policy which set out potential stocking rates and criteria for consideration of proposals for the keeping of animals. The Tribunal, in that case, was of the view that the 'keeping of horses in the "Rural Residential" zone should only be approved where there is no risk to the amenity of the area or the environment'. In that instance, it dismissed the review, after finding that the respondent had a sound basis in the relevant planning instruments, and the applicant had relied on an argument about management practices rather than policy standards applicable to the subject land.
The Tribunal, in considering this review, is unable to take into account the status of horse keeping on other properties in rural residential areas in the absence of evidence about such uses and the consistency of decisionmaking.
In conclusion, the Tribunal considered that the accommodation of two horses on the site would reasonably require use of the majority of the subject land and did not meet the limited circumstances for such use contemplated by the planning framework. The Tribunal therefore formed the view that there was not sufficient justification to support this discretionary use and that the proposal was likely to create a potential risk to the overall amenity of this rural residential area.
Orders
The Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision of the respondent is affirmed.
I certify that this and the preceding [35] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS J BELL, SESSIONAL MEMBER