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«3.7 RETROSPECTIVE APPLICATION FOR TROTTING AND ACCESS TRACK - LOT 106 (NO.44) CASUARINA PLACE, HENLEY BROOK (Swan Valley/Gidgegannup Ward) ...»

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Ordinary Meeting of Council

19 May 2010

3.7 RETROSPECTIVE APPLICATION FOR TROTTING AND ACCESS

TRACK - LOT 106 (NO.44) CASUARINA PLACE, HENLEY BROOK

(Swan Valley/Gidgegannup Ward) (Development Services) (DA442-08)

KEY ISSUES

The applicant is seeking retrospective development approval for an existing

trotting/exercise track that crosses a waterway in two locations. Headwalls and

drainage pipes have been installed and upon approval, the crossings will be fully completed.

The property is divided in two by an existing City of Swan drainage reserve - St • Leonard's Creek, thereby rendering the rear portion to be ‘land-locked’.

Refer to item 3.6 of 15 October 2008 Council meeting where the determination of • this existing track was deferred and the keeping of horses and a stable was approved.

Neighbouring landowners were notified via a letter and plan in September 2008.

• Four submissions were received; one was a non-objection and three were objections. The main issues raised were concerns regarding dust that may potentially be stirred up from the trotting track.

State Land Services has no objections to easements being granted over the • reserve in order to access the land-locked portion of the subject land.

City engineers have assessed the engineering certified drawings for the crossings • and have visited the site, and raise no objections subject to conditions.

Given that Council granted approval for the keeping of 8 horses on 15 October • 2008, City Staff believe that it would be unreasonable and difficult to defend refusal of an area to exercise them in at any SAT hearings.

Dust was raised as a concern by objecting submitters. A condition of approval is • that the landowner suppresses dust at all times. In this way the City can ensure compliance if a problem arises with current or future landowners.

It is recommended that the retrospective application for trotting and access track at Lot 106 (No. 44) Casuarina Place, Henley Brook, be approved subject to standard conditions and special conditions relating to control of dust and preparation of easements or similar mechanism over the waterway at the applicant's cost.

AUTHORITY/DISCRETION

The Council may approve (with or without conditions) or refuse the application. If the applicant is aggrieved with the decision of Council a right of appeal may exist in accordance with Part 14 of the Planning and Development Act 2005.

Page 1 Ordinary Meeting of Council 19 May 2010 The subject land is located in the Swan Valley Planning Act area and is subject to the provisions of the Metropolitan Region Scheme. Where the advice of the Committee is not accepted by the City, it is required to refer the application, together with any submissions provided by all bodies consulted and the reasons why the advice of the Committee is not accepted, to the Western Australian Planning Commission for determination pursuant to the Metropolitan Region Scheme.

BACKGROUND

–  –  –

DETAILS OF THE PROPOSAL

The applicant is seeking retrospective development approval for an existing trotting/exercise track that crosses a waterway in two locations. Headwalls and drainage pipes have been established and upon approval, the crossings will be fully constructed.

DESCRIPTION OF SITE

The subject property is located on the north-west side of Casuarina Place, at the end of the cul-de-sac of this street. The property is located approximately 600 metres west of West Swan Road and the property is divided in two by an existing City of Swan drainage reserve - St Leonard's Creek. Therefore the rear portion of the lot is ‘landlocked’.

The property currently comprises a single dwelling, tennis court, swimming pool and water tank. The topography of the property is generally level throughout with a dip in levels between the two sections of the property (within the drainage reserve).

The creek crossings have been partially constructed.

SITE HISTORY/PREVIOUS APPROVALS

Development application history is as follows:

–  –  –

• DA 3318/1986 – Residence approved.

DA 292/08 – Keeping of 8 horses and 704m2 stable. (Has not yet been • constructed).

OTHER RELEVANT PREVIOUS DECISIONS OF COUNCIL

Refer to item 3.6 of 15 October 2008 Council meeting where the determination of this existing track was deferred, and the keeping of horses and a stable/workshop was approved.

APPLICANT'S SUBMISSION

The applicant has provided the following information (summarised) in support of the

application:

Whilst the stable has not yet been constructed, I have a comprehensive planning • approval, and the training facility (track) is still required with two crossovers being necessary.

I have submitted engineering drawings to demonstrate that the accessways will • not impede drainage. City Engineers have no objections.

Refer minutes of Council meeting where the matter was previously considered. I • was of the understanding that the City’s solicitors were preparing a caveat.





The Swan Valley Planning Committee and the Department of Water (and several • other authorities) have supported the development.

PUBLIC CONSULTATION

Neighbouring landowners within 200m of the subject lot were notified via a letter and plan in September 2008. Four submissions were received, refer attached Schedule of Submissions. One submission was a non-objection and three were objections. The main issues raised were concerns regarding dust that may potentially be stirred up from the trotting track.

CONSULTATION WITH OTHER AGENCIES AND/OR CONSULTANTS

• Department of Environment and Conservation - No comment to offer.

• Department of Water - Forwarded advice notes and advised that the applicant may have to obtain a licence for the use of surface and groundwater.

Furthermore it does not give approval for retrospective developments.

• Coordinator Volunteer & Fire Services - Standard firebreak requirements apply to Lot 106 (No. 44) Casuarina Place, Henley Brook. The proposed trotting track may

–  –  –

be incorporated into an alternative firebreak proposal if that is the applicant's intent.

• Swan Valley Planning Committee - At the 22/09/2008 meeting the committee resolved "To support the proposed equestrian training facility for 8 horses at Lot 106 (No. 44) Casuarina Place, Henley Brook as it is consistent with the planning objectives of Area A of the Swan Valley Planning Act 1995 subject to the applicant complying at all times with the approved management plan for the property.” The applicant has submitted correspondence from the State Land Services stating • that it has no objections to easements being granted over the reserve in order to access the land-locked portion of the subject land. Such easements would be at the landowner's cost. Discussion with the Manager of this Department revealed that this is permitted under the Land Administration Act 1997, providing all the costs associated with the easement and legal documentation are borne by the applicant/landowner.

REPORT Local Planning Scheme No.17 LPS17 permits Council to grant development approval on land zoned ‘Local Parks & Recreation’ at its discretion. Development in this scenario refers to the creek crossings.

LPS17 also allows Council to impose reasonable conditions, and approval would require the applicant to organise and pay for the cost of Council surrendering two access easements or similar over the reserve.

Although zoned ‘Parks and Recreation’, the creek is used for drainage and rarely used for recreation purposes by the general public such as bush walking. An adjoining fence acts as a barrier for this purpose anyway, but nevertheless the applicant has installed gates on the fenced trotting track to ensure the reserve remains open to the general public.

The proposal does not conflict with the objectives for the Rural Residential zone in LPS17 which provides for rural land uses in association with low density residential living.

Land Administration Act As advised by the State Land Services the Land Administration Act provides for the City to permit granting of an easement in this scenario.

City Engineering Comments St Leonards Creek functions as the main drain for the Aveley area. City engineers have assessed the engineering certified drawings for the crossings and have visited the site, and raise no objections subject to conditions.

Dust

–  –  –

Dust was raised as a concern by objecting submitters. The track consists of deep white ‘beach type’ sand that is not expected to kick up too much dust and can be suppressed by water or other means. A condition of approval is that the landowners control dust at all times. In this way the City can cite this condition if a problem arises.

Keeping of Horses Approval

Approval has been granted for keeping of 8 horses at Council meeting on October 15,

2008. Therefore it is considered that it would be difficult for the City to successfully defend refusal of this application at SAT given the application is for an area in which to exercise the said horses.

OPTIONS AND IMPLICATIONS

Option 1 (this is the preferred option) Approve the application subject to conditions including paying for all costs involved in the granting of the easement, suppressing dust at all times and completing the access crossing to the satisfaction of the City Engineer.

Implications The submitting objectors may feel dissatisfied that their objections did not result in the application being refused.

Option 2 Refuse the application for the trotting track area and the two crossing points over the creek. Grant delegated authority to the Principal Planner to approve a modified proposal depicting only one crossing (no trotting track).

Note: In this scenario one crossing would be required to be removed, but the City may not be able to require the applicant to remove the trotting track fencing as it is internal fencing that may not be construed as development. Nevertheless the landowner would not be able to use it for trotting purposes if refused.

Implications The submitting objectors may feel satisfied that their objections resulted in refusal of the trotting track.

The application would have to be presented to the WAPC for determination as this decision conflicts with the SVPC recommendation.

It is considered reasonable to conclude that the WAPC would approve the application as submitted.

However if the WAPC refused the application, it is likely the applicant would request review at the State Administrative Tribunal. It is the City’s opinion that it and/or the WAPC would have limited success in defending Council’s refusal given the reasons identified for supporting the proposal in the report above.

–  –  –

Option 3 Refuse the application in its entirety.

Implications As per the comments in Option 2 above.

CONCLUSION The development complies with LPS17 requirements, is satisfactory from an engineering viewpoint and any perceived dust issues can be adequately managed. No objections were raised by referral agencies and the application was supported by the SVPC.

Given approval was granted for the keeping of 8 horses at Council meeting October 15, 2008, it is considered appropriate to approve this area in which to exercise the horses.

Furthermore it is considered that Council has an obligation to allow the landowner to have all year round access to the rear portion of his property, given it is separated from the remainder of the property by a creek.

ATTACHMENTS

–  –  –

• Development Plan Schedule of Submissions •

STRATEGIC IMPLICATIONS

Nil

STATUTORY ENVIRONMENT

Local Planning Scheme No. 17 Swan Valley Planning Act 1995 Land Administration Act 1997

–  –  –

FINANCIAL IMPLICATIONS

Nil

RECOMMENDATION

That the Council resolve to:

1) Grant retrospective approval to the application for a trotting and access track at Lot 106 (No.44) Casuarina Place, Henley Brook subject to the following

conditions:

a) Within 60 days of the date of this approval, the landowner/s shall enter

into a deed of agreement with the City whereby the owner/s:

–  –  –

Such an agreement shall be prepared by the City’s solicitors to the satisfaction of the City and enable the City to lodge an absolute caveat over the land and a Section 70A Notification on the title.

–  –  –

4. All earthworks and/or associated drainage details shall be in accordance with plans and specifications approved by the Chief Executive Officer.

5. If the development causes any obstruction, alteration or interference with a natural water flow of surface water, the landowner, applicant or developer must rectify the damage caused and reinstate to the City's satisfaction.

6. The carrying on of the development must not cause a dust nuisance to neighbours. Where appropriate such measures as installation of sprinklers, use of water tanks, mulching or other land management systems shall be installed or implemented to prevent or control dust nuisance, and such

–  –  –

measures shall be installed or implemented within the time and in the manner directed by the City’s Principal Environmental Health Officer if it is considered that a dust nuisance exists.

7. The existing gates on the trotting track fence where it adjoins the St Leonards Creek reserve are to remain unlocked at all times.

–  –  –



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