KEY ISSUES - swan.wa.gov.au€¦ · • Properties in this section of Swan Street are located entirely within the floodway of the Swan River. Accordingly, there are few, if any, residences

Ordinary Meeting of Council 08 April 2015

3.5 PROPOSED STABLES/SHED, WATER TANK AND KEEPING OF HORSES (2) - LOT 108 SWAN ST, HENLEY BROOK (DA800-14)

Ward: (Swan Valley/Gidgegannup Ward) (Statutory Planning)

Disclosure of Interest: Nil

Authorised Officer: (Executive Manager Planning and Development)

KEY ISSUES

• The application proposes to keep 2 horses on the property, with stables / shed and water tank to provide for this use.

• The subject lot is zoned 'Swan Valley Rural' under the City’s Local Planning Scheme No.17 (LPS17) and the keeping of horses with associated infrastructure is classified as a 'Rural Pursuit', which is a 'D' use within this zone.

• The property abuts the waters of the Swan River. Therefore, under the Metropolitan Region Scheme (MRS), determination by the Western Australian Planning Commission (WAPC) is required. The WAPC issued a conditional approval of the application pursuant to the MRS on 3 March 2015.

• The application was referred to the following agencies for comment: Department of Water (DoW), Swan River Trust (SRT), WAPC's Bush Forever Office and the Swan Valley Planning Committee (SVPC). All have supported the proposal subject to conditions to mitigate against the environmental impacts of keeping horses on the property. The SVPC however, has additionally resolved to support the application only if the side setback of the proposed shed/stables is increased to 20m (10m is currently proposed). City staff are not clear on the Committee’s reason for increasing the proposed setback of the stables.

• Properties in this section of Swan Street are located entirely within the floodway of the Swan River. Accordingly, there are few, if any, residences on surrounding properties; most lots are vacant or under vine.

• The adjoining neighbour has indicated that he has no objection to the setback variation. Additionally, the proposed shed is at the end of an isolated cul-de-sac where there are few, if any, residences. It is considered that the setback variation will have minimal impact on the rural amenity of the area. The proposal complies with standard front and rear setbacks.

• The proposal is considered to be consistent with the planning objectives for the zone, and the Building and Development Standards for Rural Zones (Pol-TP-126), as well as the Swan Valley Planning Act 1995 Objectives for Area B. It is considered to be compatible with the surrounding land uses and the rural amenity of the area.

It is recommended that the Council approves the application as proposed, pursuant to Local Planning Scheme No.17, i.e. with a 10m side setback, and does not uphold the recommendation of the Swan Valley Planning Committee for an increased setback.

Page 1


AUTHORITY/DISCRETION

Under Local Planning Scheme 17, the City has the power to determine development applications on the subject lot.

However, under the Metropolitan Region Scheme Clause 30A(2)(a), which relates to lots abutting waters in the Swan River Trust Development Control Area, the WAPC also has determination authority for development applications on this property. Thus, a dual approvals process applies, with one approval being issued under the Local Planning Scheme, and another under the Metropolitan Region Scheme.

The City may issue a determination under Local Planning Scheme 17, even where it disagrees with a recommendation of the Swan Valley Planning Committee.

BACKGROUND

Applicant: Marcus and Jacqueline Michele Liley Owner: Marcus and Jacqueline Michele Liley Zoning: LPS17 - Swan Valley Rural MRS - Rural Strategy/Policy: Building and Development Standards - Rural Zones Development Scheme: NA Existing Land Use: Vacant land - includes Bush Forever covering foreshore

riparian vegetation Lot Size: 16, 794m2 (1.67 ha) Lot Area: Henley Brook Use Class: Rural Pursuit - "D"

DETAILS OF THE PROPOSAL

The applicants propose the following development:

• Stables / Shed of 10.5m x 9m (94.5m2). This comprises a central section which is fully enclosed (4.53m high at the peak of the roof) and a lean-to on either side of the building, one fully open and the other partially enclosed.

• The shed is to be used for 2 stables, a washdown area for the horses, and storage incidental to the management of the property, including storage for a horse float.

• The shed will be of raw corrugated zincalume sheeting.

• A water tank of grey corrugated polyethylene, 2.4m high and 3.78m diameter.

• Keeping of 2 horses for personal use.

Page 2


DESCRIPTION OF SITE

The property abuts the Swan River and is located entirely within the mapped floodway of the river. The lot is currently vacant, mostly cleared other than a few scattered trees, and a strip of dense riparian vegetation along the river foreshore, which has been designated as Bush Forever.

The land slopes towards the river, with relatively flat land/gentle slopes close to Swan Street, and steeper land near the river's edge.

The property is located at the end of Swan Street (an unsealed road in this section), adjoining the cul-de-sac. Other lots nearby to the south and west are similarly sized or larger, and similarly vacant, with scattered trees and remnant vegetation along the foreshore. Most of the lots to the north, on the same side of the street, are used for viticulture. Some of these properties have buildings, generally sheds only.

SITE HISTORY/PREVIOUS APPROVALS

No planning approvals on record for this property.

OTHER RELEVANT PREVIOUS DECISIONS OF COUNCIL

Proposed Agriculture Intensive (Hobby Farm and 3 incidental sea containers) - Lot 117 Swan St, Henley Brook. (DA 429-14, approved under delegated authority 21.10.14.) Also proposed structures within the floodway of the Swan River.

APPLICANT'S SUBMISSION

"We would prefer to keep the proposed setback of 10m and are prepared to wait the extra time for referral to council. In support of this I would like to mention that:

• As per the Property Management Plan, the horses will normally be kept in paddocks, but may be kept in the Day Yard and/or stables if paddocks cannot withstand further hoof activity, paddock cover is too low, climatic conditions are too wet/hot or under Veterinarian instruction.

• It therefore seems a little pointless to increase of the setback of the shed/stable when horses will normally be in the paddocks.

• The shed/stable has been located at the highest point of the property to minimise impact to/from floodplain. Any increase in north/south boundary setback will necessitate increasing the setback from the front (east) boundary pushing the shed/stable siting into lower ground.

• We have already established a good relationship with our northern neighbours and I’m sure they would be happy to give us notice of any proposed spraying, such that we could move the horses to the southernmost paddock if desirable.

• The northern neighbours have consented to a 10m setback (as they recommended a 6-8m setback)."

Page 3


PUBLIC CONSULTATION

The application was referred to the adjoining neighbour to the north, in regard to the proposed side boundary setback variation for the shed (a 4m setback was originally proposed, instead of the 20m setback standard for the Swan Valley Rural zone).

The adjoining neighbour responded to say that he had no objection to the proposal, however recommended the applicants consider increasing the setback to 6-8m as a precaution for their horses. He stated that he regularly sprayed herbicides / insecticides for his grapes and with the shed being close to the boundary, there could be spray contamination of the horses' feed and water.

The applicants responded by modifying their proposal, to increase the side setback to 10m.

CONSULTATION WITH OTHER AGENCIES AND/OR CONSULTANTS

The proposal was referred to the following agencies:

• Department of Water

• Swan River Trust

• Swan Valley Planning Committee

• Western Australian Planning Commission

The reasons for the referrals, and the responses received, are discussed in the body of the report.

DETAILS

Use

The proposed use is classed as a 'Rural Pursuit', i.e.:

"Rural Pursuit" means 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.

Page 4


This is classed as a 'D' (discretionary) use within the Swan Valley Rural zone. The proposal is consistent with the planning objectives for the zone, and also the requirements of the Building and Development Standards for Rural Zones (Pol-TP-126), in that the use is a rural use which is compatible with the surrounding rural landscape and surrounding land uses. With appropriate management, it will not jeopardise the soils or cause a nuisance by generating dust / noise / smell or pollutants. The proposed keeping of 2 horses is only slightly above the base stocking rate of the property.

It is noted that this application is unusual, in that:

• The lot is entirely located within the floodway of the Swan River (note: not the 100 year flood fringe, the more frequently flooding floodway); and

• There is no house on the property, nor is there ever likely to be, given its location in the floodway. This is equally true for the immediately surrounding properties.

The proposal was referred to the following agencies for advice.

Department of Water (DoW)

The proposal was referred to the DoW, for consideration of (1) structure and development within the floodway of the Swan River; and (2) keeping of horses on a property where there is potential for nutrient contamination of waterways.

The DoW responded advising that they had no objection to the proposed stables/shed and tank (being non-habitable structures), however noted that these structures will be subject to damage during major river flows. They also advised they had no objection to the keeping of horses, and provided some advice regarding the likely impact of flood events.

Swan River Trust (SRT)

The SRT advised that they had no objection to the proposal, subject to conditions regarding:

• the management of manure and waste;

• restrictions on riding horses on banks or in other areas prone to erosion;

• a requirement to keep horses a minimum of 50m from the bank of the Swan River;

• the stables to be provided with eaves, to prevent rainwater entering openings and contributing to nutrient leaching (it is noted the applicants have agreed to this condition);

• any fill used on the site to be clean, graded to reflect the natural contours and stabilised to prevent erosion (it is noted that no fill is proposed),

and advised that existing native vegetation within the paddocks should be fenced to protect it from livestock.

These conditions have been incorporated into the recommended conditions of approval.

Swan Valley Planning Committee (SVPC)

Page 5


The SVPC, at their meeting on 2 February 2015, resolved to recommend that the application be approved, subject to:

• "the setback of the stables / shed being not less than 20m from the Northern and Southern boundaries of the property, and not less than 30m from the Eastern and Western boundaries;

• the applicant being advised of the potential health and amenity impacts of agricultural practices (notably spray drift, but also dust and noise) on the adjoining Lot 109 [sic]."

This recommendation was discussed with the applicants, and they were given the option of amending their plans to comply with the SVPC recommendations, or having the application put to Council, if they wished to maintain the setbacks as proposed. They have chosen the latter option. It is noted that the stables are at least 30m from the front and rear boundaries therefore, the only issue is the 10m side setback to the northern boundary.

The shed was originally proposed with a 6m side setback. This variation was referred to the adjoining neighbour. He advised that he had no objection for himself, but suggested that the applicants might wish to increase the shed setback to provide more protection to their horses, as he undertook crop spraying regularly. In response, the applicants amended the proposed side setback to 10m, and this is the version that went to the SVPC. It is noted that the horses are free to come and go from the stables if and when spraying occurs.

The SVPC’s resolution did not provide any reason or purpose for recommending the increased side setback. It may be inferred from the resolution that the increased setback is intended as a response to mitigate against spray drift.

Given that there is no, nor can there be, any residence on the property, concerns with potential impact of spray drift, if that is the rationale behind the Committee’s decision, are unfounded. The proposed setback of the stables from the northern boundary is not considered to have any negative amenity impact on surrounding properties. Lot 108 is located at the end of a cul-de-sac on an unsealed road, in a relatively isolated part of the Valley. According to City records, none of the surrounding lots in this section of Swan Street have residences (as they are located in the Swan River floodway). It is hard to see how the proposed 10m side setback is in any way detrimental to the amenity of the locality.

Western Australian Planning Commission (WAPC)

The application was referred to the WAPC's Bush Forever office, in regard to potential impact on the Bush Forever site on the property. The Bush Forever office advised they had no objections to the proposal, however made some recommendations to prevent damage to native vegetation and the Swan River. One recommendation related to keeping horses away from the Bush Forever area (which is satisfied through applying the SRT's requirement that horses be kept 50m from the river bank). The other recommendations shall be applied as advice notes only, as they do not relate directly to the development as proposed.

The WAPC is also a determination authority for this application (as the lot abuts waters of the Swan River, a dual approvals process applies, under the MRS and LPS17). The WAPC issued an approval for this application on 3 March 2015, following the SVPC meeting. It is noted therefore that the WAPC has not upheld the SVPC's recommendation of an increased setback.

Page 6


Approval of the proposal is recommended, without requiring any increases in setbacks of the shed, subject to:

• Conditions seeking to limit the impacts of the horses on the property / river / native vegetation, through adherence to the Property Management Plan, and incorporating additional recommendations from relevant agencies (an increased buffer zone to the Swan River; additional fencing, manure storage requirements, and so forth); and

• An additional condition for a notification on the Certificate of Title, to advise owners and prospective purchasers that the proposed structures are located within the Swan River floodway and are liable to flood damage. While this condition has not been explicitly recommended by the Department of Water, this condition has been applied for similar recent development nearby in Swan Street.

OPTIONS AND IMPLICATIONS

Option 1: The Council may resolve to approve the proposed Stables / Shed, Water Tank and Keeping of Horses (2) at Lot 108 Swan Street, Henley Brook, with the 10m side setback as proposed, subject to conditions relating to the management of the property and minimising the impact of horses on the river and vegetation; and a notification on title to advise that the proposed structures are located within the Swan River Floodway and may be liable to flood damage.

Implications: This option would allow the proponents to commence the use and development as proposed. It would allow the proponents to make use of this property, which is severely constrained due to its location within the floodway.

This is the recommended option.

Option 2: The Council may resolve to approve the proposed Stables / Shed, Water Tank and Keeping of Horses (2) at Lot 108 Swan Street, Henley Brook, subject to the applicants increasing the side setback to the northern boundary to 20m, and conditions otherwise as described above.

Implications: If aggrieved with Council's decision, the applicant has the right of review to the State Administrative Tribunal within 28 days of Council's decision.

This is not the recommended option.

CONCLUSION

This application for a 'Rural Pursuit' would allow the landowners to make use of a property which is severely constrained for development, as it is located within the floodway of the Swan River. The proposal is considered to be consistent with the objectives of the Swan Valley Rural zone, including maintaining the rural character of the Valley. The application has been supported by the Department of Water, the Swan River Trust, and the Bush Forever office. These agencies are satisfied that the keeping of horses can be managed in such a way as to minimise impact on the environment, and minimise the risk of nutrient transport to the Swan River. Appropriate conditions have been recommended accordingly.

Page 7


The Swan Valley Planning Committee has resolved to support the proposal; however, this is subject to a requirement to relocate the shed 20m from the northern boundary (it otherwise complies with the standard setbacks for the zone). The applicants would prefer to have a 10m side setback. This is the issue under consideration.

The SVPC resolution does not clearly express a rationale for requiring a 20m side setback. The affected adjoining neighbour has indicated no objection to the proposal. As most of the properties in this portion of Swan Street are within the Swan River floodway, the surrounding lots are mostly vacant or used for viticulture, and there are few, if any, residences. It is considered that the proposed setback variation will have minimal impact on the rural character of the locality.

The WAPC has already approved the proposal under the Metropolitan Region Scheme, notwithstanding the recommendation of the SVPC.

It is recommended that the Council approve the application pursuant to Local Planning Scheme No.17, with the 10m side setback as proposed.

ATTACHMENTS

Aerial photo

Locality plan with flood mapping superimposed

Plans and Property Management Plan submitted

STRATEGIC IMPLICATIONS

Nil

STATUTORY IMPLICATIONS

Nil

FINANCIAL IMPLICATIONS

Nil

VOTING REQUIREMENTS

Simple majority

Page 8


RECOMMENDATION

That the Council resolve to:

1) Grant approval to the proposed Stables/Shed, Water Tank and Keeping of 2 Horses pursuant to Local Planning Scheme 17, subject to the following conditions:

1. This approval is for 'Rural Pursuit’ (Stables/Shed, Water Tank and Keeping of 2 Horses) as defined in the City’s Local Planning Scheme No.17 and the subject land may not be used for any other use without the prior approval of the City.

2. A Notification under Section 70A of the Transfer of Land Act 1893 must be registered over the certificate of title to the land the subject of the proposed development prior to the lodgement of an application for a building permit to notify owners and prospective purchasers of the land that the land is subject to flooding during major Swan River flow events and that development restrictions may apply.

The Section 70A Notification shall be prepared by the City's solicitors (currently McLeods, 220-222 Stirling Highway, Claremont - Phone 9383 3133) to the satisfaction of the City of Swan and all costs of and incidental to the preparation of and registration of the Section 70A Notification including the City's solicitors' costs shall be met by the applicant or the owner of the land.

3. The applicant / landowner is to implement the Property Management Plan date stamped received at the City of Swan on the 22 October 2014, to the satisfaction of the City of Swan.

4. A 50m "buffer zone" is to be provided, extending from the existing river bank. Suitable rural open-style fencing is to be installed to exclude horses from this "buffer zone" as indicated on the approved plan.

5. Horses shall be limited to the paddocks and stable depicted on the approved plans, to the satisfaction of the City of Swan.

6. The development, including construction, access, drainage and ongoing maintenance, shall not result in the clearing and/or disturbance of existing vegetation within Bush Forever Area 302.

7. Stormwater drainage shall be contained onsite and shall not be directed to the Swan River, to the specifications and satisfaction of the City of Swan.

8. All solid waste including manure, contaminated straw, and excess feed generated on the property shall be collected from the property daily and stored on a low permeability surface with a water proof cover to protect from stormwater infiltration, prior to disposal off site.

Manure storage receptacles shall be lidded, fly-proof and placed on an impermeable surface to prevent any nutrient laden leachate entering the groundwater system.

If composted manure is applied on pastures, it shall be in accordance with the application rates and procedures set out in section 3.5.2 Manure and Fertiliser Application in the Department of Water's Water Quality Protection Guidelines: Environmental Management Guidelines for Horse Facilities and Activities (2002).

Page 9


9. Stables shall have either a concrete floor or at least a 300mm thick bed of compacted crushed limestone with a 300mm thick sand layer on top with a Phosphorus Retention Index greater than 10.

10. Existing trees / bushes within the paddocks should be fenced to adequately protect the vegetation from damage by livestock.

11. The applicant shall ensure that any fill and/or top soil brought on to the site is demonstrated to be clean (as defined by the Department of Environmental Regulation Landfill Waste Classification and Waste Definitions 1996), uncontaminated, and free from rubble, weeds and disease.

Any fill proposed as part of the development shall be graded to reflect the natural contours of the land and stabilised to prevent erosion. Side slopes of any fill must be no steeper than 1:4 (vertical: horizontal).

12. The shed shall only be used for domestic and/or rural purposes associated with the property, and not for human habitation.

13. The walls and roof of the shed shall be clad in a material or painted in a colour of natural or earth tonings to complement the surroundings, and/or adjoining developments, in which it is located to the satisfaction of the Manager Statutory Planning.

14. Any additional development, which is not in accordance with the application (the subject of this approval) or any condition of approval, will require further approval of the City.

ADVICE NOTES: Standard advice notes apply.

2) Advise the applicant/owner of the resolution of Council and relevant advice notes pertaining to the approval.

3) Advise the neighbour that made a submission of the Council's decision.

CARRIED

Page 10


Page 10


Page 11

Documents

KEY ISSUES - swan.wa.gov.au€¦ · • Properties in this section of Swan Street are located entirely within the floodway of the Swan River. Accordingly, there are few, if any, residences