Land and Environment Court of New South Wales CITATION : Baevski v Wingecarribee Shire Council [2009] NSWLEC 1014 APPLICANT Dellarose Baevski PARTIES : RESPONDENT Wingecarribee Shire Council FILE NUMBER(S) : 10724 of 2008 CORAM: Brown C KEY ISSUES: DEVELOPMENT APPLICATION :- construction of an enclosure over an existing dressage arena - canopy over an existing tack shed and the construction of a new storage and machinery shed - categorisation of proposed use - visual impact LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Wingecarribee Local Environmental Plan 1989 DATES OF HEARING: 12,13/12/08 DATE OF JUDGMENT: 22 January 2009 APPLICANT Mr D Brigden, solicitor SOLICITORS Holding Redlich Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr J Ayling SC SOLICITORS B. Blinsky & Co JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Brown C 22 January 2009 10724 of 2008 Dellarose Baevski v Wingecarribee Shire Council JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal of Development Application LUA08/0389 by Wingecarribee Shire Council (the council) for the construction of an enclosure over an existing dressage arena, a canopy over an existing tack shed and the construction of a new storage and machinery shed at Lot 6, Myra Vale Road, Wildes Meadow (the site). 2 A threshold issue raised by the council is the categorisation of the proposed use and consequently whether the proposed enclosure is a permissible use in the zone. If the resolution of the categorisation issue allows the proposed enclosure to be further considered, the merit issues raised by the council relate to the visual impact of the proposed enclosure. The council raised no issue to the canopy over the existing tack shed and the construction of a new storage and machinery shed. The site 3 The site is Lot 6 in DP 737470. It is u-shaped with a dual frontage to Myra Vale Road along its western boundary. It has an area around 30 ha. Morton National Park adjoins the site to the north and east. The site has a moderate slope in a south-east direction and has been predominantly cleared of native vegetation and consists primarily of grassland although there are scattered stands of vegetation over the site. 4 The site contains two rural sheds that are used as stables and a tack shed with a single storey residential style building used as an office. These buildings are located at the northern end of the site. An open flat area levelled through cut and fill and measuring around 70 m x 27 m is used as a dressage arena and is located just to the south of the tack shed and directly adjoining the northern boundary. Access to the existing buildings is provided off Myra Vale Road adjoining the northern boundary. 5 The surrounding area consists largely of rural and rural/residential properties with predominantly grassed or grazing areas interspersed with stands of native vegetation. The existing lot pattern is varied with lots of varying sizes located on undulating topography. The proposal 6 The proposed enclosure over the existing dressage arena measures 35.72 m x 77.8 m and ranges in height from 7.38 m to 8.9 m to accommodate a 1.2 deg fall for drainage of stormwater. The structure is open on the eastern and western sides (the long sides) with the northern end containing an elevated judges box with access via a bridge from the elevated western side of the arena. The southern end of the enclosure has full height sliding doors. The enclosure contains 60 lights on a 7.2 m x 5.5 m grid. 7 During the hearing the applicant indicated that they would accept conditions providing for a reduction in the size of the enclosure to 30.92 m x 72.5 m and the removal of the judges box and access bridge. Plans were provided to show these changes. 8 The use of the enclosure (and the general operation on the site) is best set out in a letter from the applicant's solicitors to the council's solicitors on 17 November 2008, where it relevantly states: The primary agricultural use of the property is that of the raising of elite Oldenburg and Hanoverian horses with the intention of preparing them for sale. She intends to keep top quality horses which will enjoy exemplary veterinary care, natural health care methods and an advanced and organic scientific diet. The pastures will be scientifically managed, with only organic fertilisers used. She sees her farm as a "wellness" centre for her horses, a place where she can holistically care for her horses. And her horses will be top quality. She is aiming at raising quality horses which will be prepared as elite sports performance (dressage) horses primarily for the European and North American markets. The preparation of her horses, which will extend over as many as 3 or more years (for each horse), will be comprehensive and will involve not only the holistic care already referred to but also consistent application of the most advanced methods of training in classical techniques of equitation so that she can achieve top prices in the lucrative European and North American sports performance markets. By way of background, Oldenburg and Hanoverian horses are one of the oldest and most successful of the warm blooded breeds of performance horses in the world. They are the most popular breeds of horses in Olympic and other elite international competitions. They originated in Germany. Their pedigree, their special and purposeful selective breeding, dates back many centuries. Our client intends to continue this tradition and ensure that the progeny of her mares are of the highest quality. While the numbers will not be large, given the small scale of her farm and perhaps no more than 3 or 4 per year, our client will be raising elite horses which will command top prices. In this regard, we are told that most high quality horses sell at auction in Germany for prices ranging between €40,000 and €800,000. Recently an American owned 3 year old Hanoverian colt sold for €400,000. The covered arena area is required so that the horses can be exercised and kept fit and healthy and prepared for riding. The more a horse is prepared the more valuable that horse will be. The preparation of an Oldenburg or Hanoverian involves "breaking in" the horse so that it will walk, trot, canter and, generally, move correctly. As stated above, this is a long process extending over a number of years. It is best advanced where the preparation occurs continuously on a regular basis and in all seasons. Particularly given the high rainfall in the locality and the vagaries of the different seasons, it is necessary to have a covered arena area where this can occur. Further preparation may also take place off-site, notably at competitions. For this purpose, our client has engaged a young lady who aspires to the Australian Olympic team. Success in competitions also demonstrates the quality of the horse and increases its value. We take this opportunity to confirm that the arena will not be used for public purposes. Council officers would appear to be under the misapprehension that it is intended to use the arena for gymkhana or other competitions. This is not the case. The arena will only be used for the private agricultural purposes of our client as described above. The people involved will be our client and those grooms, other farm hands and others involved in looking after and preparing the horses. 9 I have not detailed the canopy over the existing tack shed and the construction of the storage and machinery shed as no issue was taken by the council to these structures. Relevant planning controls 10 The site is within Zone 7(b)(Environmental Protection)(Landscape Conservation) under Wingecarribee Local Environmental Plan 1989 (LEP 1989. There was disagreement between the parties on the categorisation of the enclosure and consequently whether it was permissible with consent or prohibited. If the enclosure is permissible with consent, cl 9(3) provides that consent shall not be granted unless the development is consistent with the objectives of the zone. Clause 16B provides specific considerations for development in Zone 7(b). 11 Wingecarribee Shire Council Development Control Plan 53 - Siting, Design and Landscaping of Rural Developments (DCP 53) applies. Clause 3.2 provides performance standards for the siting, design and landscaping the rural developments, particularly development location (cl 3.2(a)), landform and vegetation modification (cl 3.2(b)), building design, materials and colours (cl 3.2(c)) and landscape and landscaping (cl 3.2(d)). 12 Illawarra Regional Environmental Plan No 1 applies to the site. The categorisation issue LEP 1989 13 "Agriculture" is a use that is permissible without consent (with some exceptions) under LEP 1989 however "buildings relating to agriculture" are permissible only with the consent of council. In this case, the proposed enclosure must be categorised as "buildings relating to agriculture" otherwise it is prohibited. LEP 1989 does not define "agriculture" but adopts the 1980 Model Provisions through cl 6 of LEP 1989. The Model Provisions define "agriculture" by reference to the definition in s 514A of the Local Government Act 1919 (now repealed). The definition is: "Agriculture" and "Cultivation" include horticulture and the use of land for any purpose of husbandry, including the keeping or breeding of livestock, poultry, or bees, and the growing of fruit, vegetables, and the like, and "agricultural" and "cultivate" have a corresponding meaning. The council's submissions 14 Mr Ayling SC accepts that the proposed use is to "keep" or "breed" horses and horses are arguably "livestock" however he submits that the applicant's intentions go well beyond simply keeping and breeding of livestock. The proposed development applies a rigorous training routine for approximately 3 years after which time the horses will be sold to persons who will use them for equestrian purposes. Mr Ayling submits that the training of the horses is not "agriculture" but a separate, independent purpose or use. The application specifically relates to the construction of the enclosure with its special flooring, lighting, seating and judges box and is specifically designed for use purely as a dressage arena. This is not agriculture, and does not remotely resemble agriculture; nor is it possible, to characterise it as "related to agriculture" through a subservient "incidental", or "ancillary" relationship to the keeping or breeding of livestock. Mr Ayling submits that it is a separate and independent use as there is no other use identified for the proposed enclosure. Consequently, the building should be classified as a commercial use and as such is prohibited within the zone. The applicant's submissions 15 Mr Brigden comes to the opposite conclusion to Mr Ayling. He submits that the primary agricultural purpose of the property is to raise horses with the intention of preparing them for sale. This includes training. The purpose of the enclosure is to provide all-weather training for horses associated with the agricultural use of the site and that no shows, public events or the like will use the enclosure and the dressage arena. 16 On this basis, the use is appropriately categorised as "agriculture" and the proposed enclosure would be categorised as "buildings relating to agriculture" making the enclosure a use that is permissible with consent under LEP 1989. At worst, the enclosure could be regarded as being ancillary to the "keeping or breeding" activities associated with existing stables located on the site. Findings - the categorisation issue 17 There was agreement that the proposed use involves the "keeping" or "breeding" of horses and that horses are "livestock" for the purposes of the definition of "agriculture". The disagreement between the parties is whether training or the extent of training of the horses in this case falls within the definition of "agriculture". 18 In considering the competing submissions, I prefer the conclusions of the applicant for number of reasons. First, it is clear from the definition of "agriculture" that the references to activities in the definition (that is, "keeping" or "breeding") are not intended to be exhaustive. This is made plain by the inclusion of the word "include" at the start of the definition and after the words "Agriculture and Cultivation" and the word "including" after the word "husbandry". On this construction, the absence of the word "training" does not necessarily lead to a finding of non-compliance with the definition. 19 Second, and considering the particular characteristics of this use, I accept that "training" is a component of "keeping or breeding of livestock". The ultimate goal of the operation on the site is the "raising of elite Oldenburg and Hanoverian horses with the intention of preparing them for sale". The achievement of this goal involves more than just training and includes the use of other facilities on the site including the existing tack shed and fenced paddocks as well as veterinary care, natural health care methods, an advanced and organic scientific diet, scientifically managed pastures and generally as a "wellness" centre where horses can be holistically cared for (see par 8). In my view, the definition of agriculture is sufficiently flexible to include the more specialised form of agriculture carried out on the site. 20 Third, I do not accept that the enclosure should be regarded as a separate and independent use. While there may have been some early misunderstanding over the use of the enclosure by persons and horses not associated with the applicant (and which would have a bearing on the categorisation issue) this matter has been clarified (see par 8) by the statement that the arena will not be used for public purposes. I have taken this to mean that the arena is to be used only for training of horses raised on the site by the applicant as part of their overall preparation of the horses until they are sold. 21 As I understand, the construction of the enclosure does not change the operation currently undertaken by the applicant but only provides a greater level of comfort for horses and riders in adverse weather conditions. I note that the council has not raised issue with the earlier construction of the earthworks for the arena or the operation on the site prior to the development application for the enclosure over the arena. 22 It is also unrealistic, for the purpose of categorisation to independently categorise each component of the use. In this case, the use of the site is the raising of horses for equestrian activities. To achieve this, it is necessary to have different facilities. In this case, these facilities are more specialised than many other agricultural activities. The use of specialist facilities as part of the agricultural use of the site is not a reason, per se, to find that the use is not defined as "agriculture" as it is a question of fact and how the particular characteristics of the whole operation relate to the definition of "agriculture". 23 Fourth, and accepting that this was not fully argued, even if the enclosure was a separate use and prohibited (which I do not accept), it may still be allowed if it was found to be ancillary to the dominant use (see Foodbarn Ltd v Solicitor General [1975] 32 LGERA 157). 24 The characteristics of the operation support a finding that the use carried out on the site is "agriculture" for the reasons mentioned above. The consequence is that the proposed enclosure is appropriately categorised as a "buildings relating to agriculture" and as such is permissible with consent. Visual impact The assessment framework 25 Clause 9(3) of LEP 1989 provides that consent shall not be granted unless the development is consistent with the objectives of the zone. The relevant zone objectives are: ( i) To identify and protect areas of particular scenic value and to ensure the preservation of the cultural, heritage, aesthetic and environmental significance. (ii) To recognize the value of the rural scenic landscape to the local tourist industry (iii) To permit development and land use activities which are compatible with the heritage, scenic qualities of the key cultural landscape. 26 Clause 16B of LEP 1989 states that consent shall not be granted to carry out development in Zone 7(b) unless consideration has been given to the extent to which the carrying out of the development will affect the visual quality of the land. 27 Clause 9(3) of LEP 1989 imposes a precondition on the Court in exercising the power to grant consent to the proposed development. The requirements of DCP 53 generally support the proposition of protecting visual qualities of the land however do not impose the same level of authority as cl 9(3). The precondition requires consistency with the objectives of the zone. A negative finding must see the appeal dismissed and a positive finding would enliven the power to grant development consent subject to a merit assessment. 28 DCP 53 provides a range of matters for consideration, including objectives and performance standards. The relevant aims of DCP 53 are to ensure that the development is responsive to the scenic and historic landscapes (cl 1.8 a), ensure that development recognises, protects and promotes the scenic qualities of its immediate and wider setting. Rural development must respect the landscaped setting and not attempt to dominate it (cl 1.8 b), ensure that prominent landscape features are protected when viewed from a public place (cl 1.8 d), maintain the dominant scenic character and quality by ensuring that development complements the existing and desired future character of the area (cl 1.8 e) and to ensure that development provides appropriate amenity outcomes for the community (cl 1.8 g). 29 In terms of location, development is to be placed on land where visual impacts on views will be minimised from a public place (cl 3.2 a i). Buildings will be preferably be placed in a traditional relationship to the landform and topography, typically on lower or mid-slopes, on benched areas below horizons and hilltops away from cold valley floors. Buildings sited in these locations are generally acceptable (cl 3.2 a vii). 30 For landform and vegetation modification; rural development shall make use of existing natural topography and vegetation. Cutting, filling and grading is permitted within council's specified limitations (cl 3.2 b i) and development shall be appropriately landscaped if necessary to provide amenity and screening of views from any viewing directions and to reduce the apparent scale of buildings. Landscaping may be required to screen development from privately owned places (cl 3.2 b v). Specific requirements are provided for vegetative barrier planting (cl 3.2 d i). The expert evidence 31 Mr Richard Smyth provided evidence for the council and Dr Richard Lamb provided evidence for the applicant. They prepared a joint report that identified the areas of agreement and the areas of disagreement. 32 The principal area of disagreement is the impact of the roof of the enclosure and to a lesser extent the enclosing structures of the arena at either end. Mr Smyth states that the roof of the arena is unacceptable, irrespective of the attempt to retain some views through the structure and whether it is of an appropriate material, colour or form. The screening devices will sometimes be totally closed, rendering the intention to retain views through the structure as ineffective. He states that the application without the roof would otherwise be acceptable. 33 In accepting that the proposed landscape scheme is capable of adequately mitigating the impacts of the development it would take around 8 years. In Mr Smyth's opinion, the whole development would be better located elsewhere on the property where there would be no impact on the views from Myra Vale Road and it would be more easily screened from the views of the neighbours. While originally accepting that the development would have a minor impact on views from the property at Lots 223 and Lot 8 Myra Vale Road (the Heydon property) and Lot 9 (the Berlyn property), Mr Smyth withdrew these comments following the site view and concluded that there would be a significant visual impact from the library located on the Heydon property and a greater than minor visual impact from the Berlyn property. 34 Dr Lamb accepts that the building would have a lesser impact if the roof was not included but states that the form of the building and the materials of the roof have been considered closely in an attempt to minimise any impacts. In his opinion, the outcome is more sensitive to the rural landscape that other examples of enclosed arenas in the area. The proposed landscape scheme is sufficient to provide a significant level of screening and softening of the appearance of the roof, although Dr Lamb considers that it is not necessary to screen or hide the building and it is not the intention of the landscaping to do so. The resident evidence 35 A total of seven residents who reside or own property adjoining or near the site provided evidence on the site view. The Court also had the benefit of the written submissions provided to the council when the development application was advertised. A number of adjoining and nearby properties were inspected on the site view and an assessment made of the location and form of the proposed enclosure from the different properties inspected. A summary of the concerns raised by the residents include: o the permissibility of the proposed use, o illegal earthworks to create the dressage arena, o unacceptable impacts on the visual character of the area, o potential traffic impacts of vehicles entering and leaving the site, o unsuitable size and materials for the area, o precedent for similar developments, and o amenity impacts from the use of the enclosure, particularly noise and lighting. Findings What is the existing scenic quality or value of the area? 36 The site and surrounding area is an attractive and picturesque rural setting that is used for agricultural pursuits on the larger lots and rural residential uses on the smaller lots. It is mostly sparsely developed on an undulating topography with scattered stands of remnant vegetation and a backdrop of vegetated ridges that move to the horizon through Morton National Park to Budderoo National Park, Kangaroo Valley, Shoalhaven and Illawarra Ranges. There is a dispersed settlement pattern with dwellings generally set well back from the street in a landscaped and treed setting. 37 The scenic quality of the area is highly regarded by those residents who live in the vicinity of the site and the scenic value is reflected in the 7(b)(Environmental Protection)(Landscape Conservation) zone of the site and surrounding area, the additional consideration required by cl 16B and the specific requirements of DCP 53 that seek to protect the scenic quality. Is there consistency with the zone objectives? 38 With the benefit of the site view and an understanding of the siting of the proposed development (including the amendments proffered by the applicant), I am not satisfied that the proposed enclosure is consistent with the zone objectives of preserving the scenic value of the area (cl 9(3)(i)) recognising the value of the rural scenic landscape to the local tourist industry (cl 9(3)(ii)) and allowing only development compatible with the scenic qualities of the landscape (cl 9(3)(iii)). 39 First, the height and scale of the enclosure adversely impacts on the scenic qualities of the area. As I understand, the design philosophy of the partially enclosed structure is to allow viewing through the structure thereby maintaining the more distant views lines even though these view lines would be reduced to some extent by the enclosure. 40 While some views may be retained through the structure, I am not satisfied that it necessarily overcomes the loss of the longer distance views from Myra Vale Road for a number of reasons, including those suggested by Mr Smyth that the sliding doors, if closed, would effectively block any views. Any views would also be reduced by the need to look through the internal area of the enclosure that would be in shadow unless the lights were on. If the lights were on, this would also reduce the ability to view through the structure and raise other visual impact issues. 41 These are negative aspects of the design however of greater importance, in my view, is the inconsistency of the design with the typical agricultural building found in the area, even those existing arenas in the area relied upon by Dr Lamb in his statement. The proposed building is excessively high when viewed from Myra Vale Road at 8.9 m and even more so when an additional 2 m is added to relate the roof level of the building to the natural ground level directly adjoining the boundary. The generally open structure is predominantly made up of vertical piers and horizontal beams to support a substantial roof form that is required to span the complete arena. It is more akin to a very large carport type structure rather than an agricultural building, particularly when viewed from Myra Vale Road. The form of the enclosure is in direct contrast to the lower and fully or partly metal skinned and pitched roofed agricultural buildings that are typical of the area (and also on the site). This foreign building form will draw attention to the structure particularly from Myra Vale Road whereas a building more consistent with typical agricultural buildings is more likely to go unnoticed because it would be seen as part of the existing rural landscape of the site and the general area. 42 Second, the location of the enclosure adversely contributes to the impact on the scenic qualities of the area. Dr Lamb and Mr Smyth agreed that the enclosure would be visible from cars travelling in both directions along Myra Vale Road. This road is acknowledged by Dr Lamb and Mr Smyth as a tourist and scenic route to Fitzroy Falls that provides a number of viewing opportunities for road users to observe the scenic qualities of the Southern Highlands and beyond. I am satisfied that the location of the enclosure (when combined with the height) when viewed from Myra Vale Road unacceptably impacts on the scenic qualities of the area 43 There is also some merit in the statement of Mr Smyth that the enclosure is poorly located and that there are more appropriate locations elsewhere on the site given that the structure is 8.9 m high on 2 m of fill at a distance of 1.1 m from the northern boundary, particularly on a relatively undeveloped site of around 30 ha. 44 Third, Dr Lamb and Mr Smyth agreed that the proposed landscaping would take around 8 years to provide an adequate screen for the enclosure. Dr Lamb did not consider that the landscaping was necessary given the design of the enclosure. Mr Smyth placed some emphasis on the landscaping to provide screening and softening of the enclosure however he was of the view that the 8-year period for the landscaping to become effective was unacceptable. 45 On the issue of landscaping, I agree with Mr Smyth. I do not accept that landscaping should be a means of hiding an inappropriate design, particularly considering it would take at least 8 years for the landscaping to reach a level of maturity that would provide some screening of the enclosure. There must also be some doubts on the effectiveness of any landscaping even in the long term, given the very close proximity of the enclosure to the boundary. 46 Third, I accept that the enclosure adversely impacts on the scenic qualities of the area when viewed from the adjoining Heydon and Berlyn properties because of the scale and height of the proposed enclosure. Both of the adjoining properties enjoy expansive rural views from the rear areas of their properties, including parts of the subject site. I did not understand the objections from the Heydon and Berlyn properties to seek to maintain their existing views at the exclusion of all agricultural buildings but only from the form of the existing enclosure. Quite correctly, any blanket prohibition of agricultural buildings to maintain views would be unreasonable given the agricultural uses contemplated by the zoning, even considering the emphasis on protecting the scenic qualities of the area. It is a reasonable expectation that any buildings on the site should have a form and scale that can be reasonably identified as being associated with the agricultural character of the area. I do not accept that the proposed enclosure would be seen in this way. 47 The issue of lighting and noise was also reasonably raised by a number of local residents in terms of the potential impact on their amenity. I accept this is a valid concern, however it is a matter that could be addressed by conditions of consent. 48 Pursuant to cl 9(3) of LEP 1989, I find that the development is inconsistent with objectives (i), (ii) and (iii) of the zone and the development application must be refused. 49 DCP 53 provides more detailed controls however I find that the proposed enclosure is inconsistent with the aims in cll 1.8 a, b, d and e and 3.2 a i. The inconsistency with these aims further supports the refusal of the enclosure. Orders 50 The Orders of the Court are: 1. The appeal is dismissed. 2. Development Application LUA08/0389 for the construction of an enclosure over an existing dressage arena, a canopy over an existing tack shed and the construction of a new storage and machinery shed at Lot 6, Myra Vale Road, Wildes Meadow is refused. 3. The exhibits are returned. _____________ G T Brown Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.