14.3 Retrospective Application for Existing cyclone Mesh Boundary Fence and Proposed Extension of fence - Lot 504 Toodyay Road, Gidgegannup
(P226800) (GIDGEGANNUP WARD) (SPS) KEY ISSUES AND RECOMMENDATION
• Council, at its meeting of 9 February 2005, resolved to defer consideration of the application and request that CALM provide a report on the impact of confinement of native fauna on the subject property and surrounding properties.
• CALM, in its letter dated 25 February 2005, has advised that it is possible that the subject fence may result in some localised impacts on fauna movement and dispersal however the overall impact is not quantifiable. As the fence does not abut CALM managed land, the agency’s stated position is to neither support nor oppose the fence.
• The applicant is seeking retrospective approval for an existing 2 metre high cyclone mesh fence along the full extent of the western boundary of the property and along portions of the eastern and southern boundaries.
• The applicant is seeking further approval for a proposed extension of this fence along the remainder of his eastern and southern property boundary.
• The subject lot is zoned “Landscape” under the City’s Town Planning Scheme No.9 and is located within the Landscape zone of Council’s adopted Gidgegannup/Brigadoon Place Plan and “Gidgegannup Rural Strategy” Policy.
• The fence is not exempt from requiring development approval for the purposes of the Scheme by virtue of its height and design.
• The applicant has advised that the purpose of the fence is to secure his land from trespassers that have caused damage to property ($21,000) and from the intrusion of kangaroos, wild deer, goats and foxes that destroy the established gardens and have harmed birdlife.
• Whilst inconsistent with the traditional post and rail and post and wire fencing of rural areas, the fence has the same purpose in part as the fencing at Karakamia Sanctuary - which is to secure the property from predatory intruders.
• The application was advertised for public comment, with six submissions objecting to the proposal on the grounds of inconsistency with the rural character of the locality and on the basis it presents a barrier to the free movement of native fauna.
• The subject fence is not highly visible from Toodyay Road and accordingly is not considered to adversely affect public (landscape) vistas.
• No evidence has been provided to verify the claim that the fence will adversely affect the free movement of native fauna, whereas the applicant has documented the need for this particular type of fencing and the benefit it has to the enhancement of his property.
• Given that CALM is not prepared, or able, to undertake the type of report requested by Council to assist in its consideration of the application, the matter has been returned to Council for a decision.
It is recommended that the Council grant retrospective approval to the existing fence and approve the proposed extensions along the balance of the lot boundary.
AUTHORITY/DISCRETION
Council has discretion under Clause 2.3.9 of the Scheme to determine applications for Development Approval. Clause 2.3.16 of the Scheme provides Council with the authority to approve existing development.
BACKGROUND
APPLICANT: M R Coleman
OWNER: Warragoon (1975) Pty. Ltd.
ZONING: TPS - Landscape Zone
MRS - Rural
STRATEGY/POLICY: Gidgegannup Rural Strategy DEVELOPMENT SCHEME: ODP 106
EXISTING LAND USE: Residential / Rural
LOT SIZE: 143.69 ha
AREA: N/A
USE CLASS: N/A
DETAILS OF THE PROPOSAL
The application is for retrospective approval of a constructed cyclone mesh and barbed wire fence along the entire western lot boundary, a portion of the eastern lot boundary and a portion of the southern lot boundary of Lot 504 Toodyay Road. The existing fence, the subject of this retrospective approval is 3.342km in length. The application further proposes the extension of the fence 1.729km in length along the remainder of the southern and eastern lot boundaries. The cyclone mesh component is 1.8 metres in height with three strands of barbed wire above this. The total length of both the existing and proposed fence is 5.071km (calculated).
The existing fence replaced a post and rail fence of approximately 1.2 metres in height, and was constructed in order to secure the property from intruders and wild animals (kangaroos, goats, deer) that have caused damage to the property.
DESCRIPTION OF SITE
The subject land is located on the southern side of Toodyay Road, approximately 2 kilometres east of Gidgegannup townsite (refer to location plan attached).
Cookes Brook traverses the property running south to north. It has been dammed at the northern end of the property creating a lake of approximately 10 hectares. A 2.7 hectare dam has been constructed to the north of the 10 ha dam, with a residence on the western side. A third dam was also constructed and is the subject of an application for retrospective approval in this agenda.
The land rises from the dams creating a well defined valley, the ridges of which sit at the western and eastern boundaries of the property. The property is significantly vegetated.
SITE HISTORY/PREVIOUS APPROVALS December 1997: 216m2 shed approved.
March 1998: Application to subdivide the subject land into three lots of 44ha, 45ha and 54 ha conditionally approved by the WAPC. Approval expired 30 March 2001.
August 1998: Development Application for “pay fishing/aquaculture” refused.
February 1999: Outline Development Plan (ODP 106) approved by Council subject to modifications and conditions.
March 2000: Development Application for 2.7ha dam deferred by Council pending additional information relating to water flows and environmental impact.
April 2000: Development application for 2.7ha dam deferred by Council reiterating Council’s resolution of March 2000.
February 2001: Minister for Planning upheld appeal, approving the 2.7 ha dam.
March 2001: Council imposed development conditions on the 2.7 ha dam in accordance with the Minister’s decision.
October 2004: Council resolved to initiate legal action for commencement of work without first obtaining planning approval for an on-line dam.
February 2005: Council granted retrospective planning approval for the existing third dam.
Council, at the same meeting, deferred consideration of the retrospection and extension of the perimeter fence pending further information be obtained from CALM with respect to impact on fauna movement.
APPLICANT’S SUBMISSION
The applicant has provided the following justification of the scale and type of fence:
• The existing and proposed cyclone mesh fence is intended to secure the property against illegal human intrusion, incidents of which include fishing in the lake/dam, tampering with the siphon valve for the dam, two burglaries to the value of $21,000 of stolen/damaged property, and trespass by trail bike riders.
• The fence also prevents intrusion by kangaroos and feral goats, deer and stray dogs, which have already caused substantial damage to plantings of both native and introduced species and to local wildlife on the property.
• The property is maintained in an environmentally responsible manner with a programme to enhance the natural features including planting of 40,000 plants and shrubs (primarily native) and the creation of a habitat for 87 recorded species of birdlife.
• An established precedent for this type of fencing in the “Landscape” zone exists with the Karakamia Wildlife Sanctuary. the purpose of which is the same - to protect the compound and keep out intrusive animals/predators.
• It is the intention in the future for the property to be established as a major tourist resort as contemplated by ODP 106 and as such secure fencing is a requirement.
Subsequent to the Council resolution of 9 February 2005 the applicant has provided the following further points in support of the proposal:
• The fence is intended to keep out feral deer which the Agriculture Department are attempting to eradicate. Under the provisions of the Agriculture and Related Resources Protection Act 1976, the owner is liable for the control of declared animals (that is the deer) over his property. Non-compliance in this respect renders the owner liable to penalties from the Agriculture Department.
• Echidna’s being small animals, with a likely limited range of movement, would more than adequately be accommodated with a free range of movement within the 143 hectares of the property.
• In terms of visual impact of the fence from abutting properties: -
- Council owns the property adjoining the major portion of the eastern boundary. The proposed fence cannot be seen due to the presence of thick vegetation.
- Trail bike riders have trespassed across the boundary of the Council land onto the subject property given this is currently unfenced. Is the City liable in the event of a public liability claim?
- The property which adjoins the balance of the most easterly portion of Lot 504 also shares cyclone mesh fencing of long standing with the neighbour on its eastern boundary (a precedent).
- Dense vegetation exists on the property adjoining our entire western boundary – there are no improvements on that property.
- The residential dwelling on the property to the south is some 500 metres from the boundary and is secured by intervening vegetation.
Note: Applicant has requested that his letter of 24 February 2005 containing additional information be provided to elected members prior to the Council meeting, hence it is attached as Appendix to this report.
PUBLIC CONSULTATION
In accordance with the Scheme provisions both the existing and proposed fences were advertised for public comment by means of a sign on site and written notification to surrounding landowners.
A total of six submissions were received, objecting to the existing and proposed fence. The grounds of objection are summarised as follows:
• not consistent with the rural amenity of the locality in terms of appearance and function;
• question over provision for emergency access (fire fighting);
• barrier to wildlife - impedes natural movement of fauna in neighbourhood of Lot 504 - affects breeding, dispersal of young and escape from wildfire;
• is prejudicial to the recommendations of the North East Hills Settlement Pattern Plan for the land to be included as a landscape corridor (to provide for natural movement of wildlife); and
• approval would represent an undesirable precedent for the area in terms of this style of fencing in rural areas generally and “Landscape” zones specifically.
These issues are addressed within this report.
PREVIOUS COUNCIL DECISION
The application was originally presented to the Council at its meeting of 9 February 2005. Council, in debating the matter of the potential impact of the fence on local fauna resolved to:
“Defer consideration of this matter and request the Department of Conservation and Land Management (CALM) to deliver a report on the impact of confinement of native fauna on the subject property and surrounding properties.”
CONSULTATION WITH OTHER AGENCIES AND/OR CONSULTANTS
In accordance with the above Council resolution, the City has sought the comments of the Department of Conservation and Land Management (CALM) specifically in regard to the potential impact of this type of fence on movement and welfare of native fauna in the locality.
CALM’s correspondence dated 23 February 2005 (attached), in response to this request, states:
“ In the case of the proposed cyclone mesh fence being constructed on Lot 504 Toodyay Road it is possible that such a fence may result in some localised impacts on fauna movement and dispersal, however the overall impact is not quantifiable.
As Lot 504 does not adjoin CALM managed lands and it appears that the main purpose for the construction of this fence is for security and management purposes it is not CALM’s position to either support or object to the construction of this fence.”
REPORT
Under the Town Planning and Development Act 1928 (as amended) the construction of fencing of any kind constitutes development.
Town Planning Scheme No. 9
Lot 504 Toodyay Road is zoned “Landscape” under the City’s Scheme. The purpose and intent of this zone is to ensure that development is compatible with and will enhance the landscape and environmental qualities of the locality.
Appendix 8 of the Scheme lists categories of development that are exempt from obtaining planning approval. With regard to fences within the “Landscape” zone, these are exempt from requiring development approval where they are of 1.2 metres in height (within visual truncation areas) or otherwise no higher then 1.8 metres in all other cases and are constructed of post and wire or post and rail. In this instance the existing and proposed fences do not satisfy the criteria and development approval is required.
The Scheme states that Council shall have regard to the purpose and intent of the zone and shall apply six criteria when assessing development applications as follows:
(a) development must be compatible with the land capability and suitability including the visual and environmental qualities which Council considers to be worthy of conservation;
(b) remnant vegetation should be retained and linked, where possible by corridors of vegetation of a sustainable width;
(c) water quality and watercourses within existing and proposed water catchment areas shall be protected;
(d) land use and management practices should be compatible with the protection of landscape quality;
(e) there should be strategic re-vegetation of cleared or degraded areas in order to blend development into the landscape; and
(f) there should be an assessment of the fire risk and fire management programme in accordance with the guidelines issued by the Bush Fires Board to address the risk.
Clause 8.2.6.3 of the Scheme states that subdivision and development in the Landscape zone shall take place only after comprehensive planning. Prior to assessing any development application within the “Landscape” zone the Council “shall require the preparation and adoption of an Outline Development Plan” and “all development or subdivision of the land shall be in accordance with the adopted Outline Development Plan for the locality”.
An Outline Development Plan (ODP 106) was prepared for the land by a previous landowner, but never acted upon. The subject fence does not form part of ODP 106 and therefore is not assessed as such. Clause 3.1.2.1 of the Scheme states that Council has the discretion to permit a variation from any requirement or standard contained in the Scheme, should this be considered appropriate.
Criteria (a), (d) and (e) above will be discussed with reference to the proposal further in the report.
North Eastern Hills Settlement Pattern Plan
The subject lot is included within the Swan Landscape Corridor, part of an identified network of landscape corridors under the Plan. The corridor extends from Walyunga National Park in the north linking with the Leschenaultia Corridor in the south.
The land use objectives for the Landscape Corridors as detailed under the Plan include as follows:
• establish ecologically sustainable linkages between existing areas of significant bushland such as national parks and state forests; and
• create a suitable and relevant context for the further protection of local flora and fauna.
Gidgegannup/Brigadoon Place Plan and “Gidgegannup Rural Strategy” Policy C-POL-087 At its meeting on 24 November 2004 Council adopted the Place Plan and the Policy as a strategic planning document to guide assessment of development and subdivision within the Gidgegannup locality. Whilst these documents are yet to be endorsed by the Western Australian Planning Commission, the objectives of the Landscape Precinct are noted as:
(a) To conserve biodiversity and ecological systems and recognise them as a significant metropolitan asset that must be prevented from gradual erosion of ecological values and landscape character.
(b) To provide regional ecological linkages.
(c) To conserve landscape character and visual amenity through retention of natural topography, remnant vegetation, location and design of buildings and types of land uses.
(d) To minimise risks to life and property.
(e) To provide for low impact land uses and development (such as agriculture, tourism and recreational activities) that are compatible with environmental and landscape values.
These criteria will be discussed with reference to the proposal further in the report.
Comment
Currently the City does not have a policy on rural fencing that would assist in the assessment of this application. Accordingly, the basis of assessment will be the Scheme provisions relating to the development of land within the “Landscape” zone, the objectives of the Landscape Precinct as detailed in the “Gidgegannup Rural Strategy” Policy and the stated reasons for the particular type of fence as provided by the applicant.
Appearance
Landscape character, visual amenity/visual qualities are important aspects of the “Landscape” zone identified by both the Scheme and Place Plan/Gidgegannup Rural Strategy Policy. The Scheme provisions require development to be “compatible” with existing visual qualities and the Policy requires “conservation” of landscape character and visual amenity.
The existing and proposed fence is of steel cyclone mesh construction with three strands of barbed wire strung along the top between the support posts. It is acknowledged that the fence is out of character with the traditional rural style fencing of the post and wire/post and rail variety, being more commonly found in industrial and commercial areas where its primary function is to provide security through the exclusion of unauthorised persons. Its visual appearance within a bushland setting is the basis of objections from surrounding property owners, including one adjoining
neighbour in Brompton Heights. These objections are noted, however it is accepted that, for the most part, the fence is not highly visible from the most public viewpoints - in this instance being Toodyay Road. Accordingly, the existing and proposed fence is not considered to compromise the appearance of the landscape from the road and to that end could be considered to be compatible with existing visual qualities.
Accordingly the visual appearance of the fence within the existing landscape is considered to be of secondary importance to the other environmental qualities raised in submissions - specifically whether the fence provides a barrier to the free movement of terrestrial wildlife.
Impact on Wildlife
It is this factor which will form the principal consideration to be weighed against the applicant’s rationale for the scale and design of the fence. The Scheme provisions state development must be
“compatible” with the environmental qualities Council considers worthy of conservation and the Policy stipulates the conservation of biodiversity and ecological systems and the provision of regional ecological linkages.
All of the public submissions received in regard to the application raised the issue of the existing and proposed fence presenting a barrier to the movement of wildlife within the locality. A submission from the Wooroloo Brook Land Conservation District Committee (WBLCDC) advised that the existing fence could restrict the movement of keynote fauna such as the Short-nosed Echidna, Western Grey Kangaroo, Brush Tail Wallaby and the Southern Barred Bandicoot. Such restriction, according to the submission, could adversely affect breeding, the dispersal of young adults and the ability of these species to move from areas of high population to areas of low population (i.e. to repopulate areas after fire, disease or predation). In the event of bushfire the fence would restrict the escape of fauna.
The City has requested an opinion from CALM on the comments raised by the WBLCDC. Whilst their response concurs with the general comments provided in the submission, it is noted that determining the impact on wildlife from the existing and proposed fence and verifying the claims made in the public submissions would require a detailed scientific study. On this basis, without the provision of factual evidence to verify that the existing and proposed fence would negatively impact on local fauna, it is hard to substantiate that the proposal is not compatible with the environmental qualities of the area and poses a threat to the conservation of biodiversity and ecological systems.
A further consideration worth noting is that a precedent for this type of fence exists at Karakamia Sanctuary. The purpose of the fence there is obviously to keep wildlife in and predators out.
Presumably the fence would also affect the free movement of local fauna in the wild, however this is obviously balanced by the fact that its function as a sanctuary would make a net improvement to the environmental/ecological situation.
Such a claim is also made, perhaps to a lesser degree, by the applicant. Whilst it is understood that no specific breeding or fostering of local fauna occurs on any organised basis, the applicant contends that his property has been purposefully and substantially re-vegetated with native species (40,000 species). Further, 87 species of bird have been recorded within the property. This is consistent with the Scheme provisions relating to the Landscape zone and the land use objectives of the Landscape Corridors detailed under the North East Hills Settlement Pattern Plan and
“Gidgegannup Rural Strategy” Policy.
Protection of Private Property
The main justification provided by the applicant for the existing and proposed fence is the need to secure his property against human and animal intrusion. The fence therefore is deliberately intended to keep out trespassers and “pests” such as kangaroos, feral deer, goats, stray dogs and foxes that have caused damage to property and the extensive garden areas that have been established. The question therefore arises - to what extent may a property owner go to reasonably protect his property? - given that minimisation of risks to life and property is a listed objective of Council’s newly adopted “Gidgegannup Rural Strategy” Policy. The applicant has indicated that trespassers take advantage of the fact that the property is frequently unoccupied on weekends to fish in the private dam/lake and that such trespassers have on one occasion tampered with the siphon valve for the dam. On two other occasions intruders incurred theft and damage to the property to the value of $21,000. Incidences of damage to wildlife and planted flora by way of deer, goats, kangaroos and stray dogs are related by the applicant. Intrusion by foxes is further stated as the reason why the applicant is not prepared to alter the fence to allow a degree of clearance from the ground.
A final point made by the applicant is that a secure fence for this sizable property is further necessitated by the intention to develop in the future a significant tourist resort as envisioned by ODP 106.
Fire Management
Current access for fire/emergency vehicles is satisfactory. In addition to the main entrance point off Toodyay Road, the existing fence along the southern boundary has cyclone mesh gates for access. The proposed extension of the fence along the eastern boundary will also be provide with access gates.
On balance, this application comes down to a decision between two fundamentally opposed and apparently mutually exclusive objectives. There is on one hand a landowner’s right to secure his private property and the enhancements made therein (some of which are consistent with the environmental objectives of the City’s Town Planning Scheme and adopted policies) versus the free movement of native fauna (which can be considered as an environmental element relevant to the “Landscape” zone). With the former consideration, the applicant has established a need for the fence and has cited actual examples of intrusion (both human trespass and animal “pest”). He has also demonstrated how the fence is associated with the preservation of environmental elements of the property - specifically to limit the destruction of vegetation and birdlife from intruding animals. By comparison, the latter consideration does not provide any evidence to verify the claim that the existing and proposed fence would have a negative impact on the free movement of wildlife with associated negative impacts on breeding, dispersal of young, etc.
Taking these factors into account, and noting that the appearance of the fence poses little visual impact to public vistas (i.e. as viewed from Toodyay Road), City staff has accepted that the rationale for this type of fence is reasonable. City staff has also acknowledged that, by contrast, solid grounds for refusing the application have not been provided. Accordingly, it is recommended that Council grant retrospective approval to the existing fence with permission to extend this along the balance of the property boundary as proposed by the subject application.
OPTIONS AND IMPLICATIONS
Option 1: Council may resolve to refuse the application for retrospective approval of the existing boundary fence and refuse the proposed extension of this fence along the remainder of the property boundary. This is not the recommended option.
Implications: The applicant would have a right of appeal to the State Administrative Tribunal.
The City would need to pursue legal action against the owner to remove the fence.
Option 2: Council may resolve to grant retrospective approval to the existing fence and approve the proposed extension. This is the recommended option.
Implications: An approval may set an undesirable precedent for the erection of this type of fencing upon land that is zoned “Landscape” under the City’s Town Planning Scheme. All applications are, however, considered on their merits.
CONCLUSION
The application is for retrospective approval of a constructed cyclone mesh and barbed wire fence along all of the western lot boundary, a portion of the eastern lot boundary and a portion of the southern lot boundary of Lot 504 Toodyay Road. The application further proposes the extension of the fence along the remainder of the southern and eastern lot boundaries. The cyclone mesh component is 1.8 metres in height with three strands of barbed wire above this.
The purpose of the fence is to secure the property against incidents of trespass that have caused significant damage to the property and to prevent intrusion by kangaroos, wild deer, goats, dogs and foxes that damage vegetation and birdlife. The proposal was advertised for public comment with six objections received. It is cited that the fence is inconsistent with the rural character of the locality and provides a barrier to the free movement of native fauna. Whilst out of character with the more traditional style of rural fence (post and rail/wire), it is not considered that the fence presents any major impact to the visual appearance of the landscape as viewed from Toodyay Road and accordingly is acceptable in this respect.
With regard to the claim that the fence will inhibit free movement of native fauna through the area, it is noted that no scientific evidence has been provided to substantiate this claim. By contrast the applicant has demonstrated with examples why the fence is required for security purposes to prevent trespass and the intrusion of animal ‘pests’ that cause destruction to vegetation and birdlife.
On balance it is recommended that the Council uphold the applicant’s right to secure his private property in this instance and grant retrospective approval to the existing boundary fence and permit the extension of this along the balance of the lot boundaries.
ATTACHMENTS
• Location Plan
APPENDICES
• Correspondence from CALM
• Mr M Coleman’s letter of 24 February 2005.
STRATEGIC IMPLICATIONS
City of Swan Gidgegannup/Brigadoon Place Plan and “Gidgegannup Rural Strategy” Policy C POL-087.
STATUTORY ENVIRONMENT Nil
FINANCIAL IMPLICATIONS
There may be costs incurred if the Council refuses the application and the matter goes to appeal to the State Administrative Tribunal.
RECOMMENDATION That the Council resolve to:
(1) Grant retrospective approval to the existing cyclone mesh boundary fence at Lot 504 Toodyay Road, Gidgegannup and the proposed extension of this fence along the remainder of the southern and eastern lot boundaries subject to:
1. appropriate gates to be constructed strategically along the perimeter of the western, eastern and southern boundaries to facilitate access in the event of fire emergencies.
(2) Advise all parties that have made a submission of Council’s decision.
MOTION that Council resolve to:
(1) Refuse to grant retrospective approval to the existing cyclone mesh boundary fence at Lot 504 Toodyay Road, Gidgegannup.
(2) Instruct Council’s solicitors to take appropriate legal action to have the existing fencing removed.
(3) Refuse to grant approval to the proposed extension of the existing fence along the remainder of the southern and eastern lot boundaries.
(4) Employ an external independent planning consultant to assist the City’s solicitors in the event that the applicant appeals the decision of Council.
(5) Record that the reasons for changing the staff recommendation are:
1. Notwithstanding the staff report, the Council is not satisfied, based on the facts presented therein, that the application is consistent with criteria (a) of Clause 8.2.6.2 of the Scheme, this being one of the criteria Council shall apply in exercising discretion on such applications, which states "development must be compatible with the land capability and suitability including the visual and environmental qualities which Council considers to be worthy of retention" where, in so far as native fauna can be considered to constitute an environmental quality worthy of retention, there is sufficient evidence before Council to raise a justifiable concern that the fence, by excluding such fauna, will have a negative impact in terms of the sustainability of native fauna, a quality considered worthy of retention by Council.
2. Having taken into consideration the foregoing, and all other relevant criteria, Council is of a view that its discretion should not be exercised in these circumstances.
(Cr Jones - Cr Haynes) THE MOTION WAS PUT TO THE VOTE AND LOST (1/11)
Cr Jones requested that it be recorded he was in favour of the motion.
MOTION that the staff recommendation be adopted.
(Cr Fardig - Cr Alban) RESOLVED (10/2) TO:
(1) Grant retrospective approval to the existing cyclone mesh boundary fence at Lot 504 Toodyay Road, Gidgegannup and the proposed extension of this fence along the remainder of the southern and eastern lot boundaries subject to:
1. appropriate gates to be constructed strategically along the perimeter of the western, eastern and southern boundaries to facilitate access in the event of fire emergencies.
(2) Advise all parties that have made a submission of Council’s decision.
