Kathy Anne Pope v Tumut Shire Council

Judgment (7 paragraphs)

[1]

Mr A Bradbury (Respondent) Bradbury Allen Love Lawyers File Number(s): 20708 of 2013

[2]

Background 1This appeal is against a section 124 Order No 18 issued in respect of premises located at 16 Selwyn Street, Batlow. The Order was issued on 12 August 2013 with a compliance period of 21 days and required: "The prohibition of keeping a horse or horses on the premises." 2The premises are described as Lot 9 in DP 7550 Selwyn Street, Batlow. It has an area of approximately 1060 sq m, of which buildings comprising mainly of a deconsecrated church and outbuilding take up about 250 sq m. Allowing for the parts of the premises on which there are buildings, paths, vegetation and hardstand, the area within the premises for the horse use ("the yard") is approximately 735 sq m. 3The site is situated on a road corner within the commercial area adjacent to a supermarket (IGA) and approximately 13 m from a bakery. The nearest residential dwelling house is approximately 20 m across the road from the premises. 4The yard has a compacted medium heavy clay base and slopes from the south-western corner of the land near the road junction towards the supermarket on the eastern side of the premises. The surface of the yard has been covered with a layer of sand, which varies from 80 mm to 100 mm deep. The sand has been placed on the land periodically since July this year after a storm event, which precipitated the Order. Some of the storm water connections from the buildings are nonfunctional. 5According to the Statement of Facts and Contentions:

The evidence 9Detailed reports were presented by:

Mr K Fletcher; council's environment and waste officer.
Mr M Wilkerson; council's ranger. 10Ms Pope appeared as an Applicant in Person and relied on the information contained in her position paper (Ex A). 11According to Mr Fletcher a number of complaints were made about the horse being kept on the subject property and they were investigated and a number of photos taken showing the condition of the holding yard. He considers the keeping of the horse at the premises is inappropriate because: (i)Odour and flies: Based on DPI estimates an average horse produces about 22 kg of manure and 10 - 20 litres/day of urine, depending on how much work the horse does. Consequently the build - up of manure and urine, together with decomposing hay and horse - food scraps will create odour problems and attract flies. The volume of manure makes composting on the site impractical. (ii)Runoff and pooling: There is a significant risk that runoff contaminated with horse manure, urine and decomposing hay will flow down to the common wall with IGA and likely enter that building in the absence any effective stormwater system on the site. (iii)Location: The location of the premises being in a commercial area, on a prominent corner and in near proximity to the adjoining IGA supermarket, a bakery and other dwelling houses, is an unsuitable location to keep the house due to unsatisfactory amenity outcomes. (iv)Compliance with the Local Government Regulations and DPI Guidelines: Keeping the horse on the subject land does not comply with the controls on Item 21(1) that restricts the keeping of horses within 9m of a premises used for the "preparation or storage of food." 12Mr Wilkerson said that on the evening of 18 July 2013, Batlow experienced a significant short - term rainfall event, which caused some flooding and run off. This resulted in a complaint from the IGA management, following which he undertook a site inspection on the 19 July and made the following observations: a. a substantial quantity of horse manure, urine and decomposing hay had built up throughout the yard. b. manure had accumulated over approximately one third of the area of the yard and to a depth of approximately 250mm (approximately 61 cubic metres of manure in the yard); c. horse manure had been trodden into the mud; d. a corrugated iron tank near the eastern boundary fence at the premises which contained horse manure and contaminated water because the tank had not been properly protected from the rain; e. a strong odour was present of horse manure, urine, wet hay and straw; f. the water within the supermarket premises was brownish coloured and had an odour of horse urine and manure; and g. there was no stormwater or other drain on the premises. h. the slope of the ground at the premises angles down towards the IGA building; i. the IGA supermarket building is built right up against the boundary of the premises; j. there is a bakery located adjoining the IGA on Batlow Road, about13 metres from the premises; and k. the nearest dwelling house is approximately 20 metres across the road from the premises. 13He said that to prevent further run off from the subject property the SES plastic bunded and sandbagged the IGA property along the common wall. From his inspections of the subject premises, he does not consider it a good idea to keep the horse on the premises because it is inappropriate for this use. 14Against this, Ms Pope referred in her position paper to a number of controls she considered relevant. Firstly she refers to the DPI "Guidelines for Keeping Horses within Urban Areas of NSW". Accordingly, she says the following guidelines are relevant:
1 1 Size Day yards or holding yards should be at least 3 m wide and be an area of at least 20 square metres For working horses, yard size should be increased to 35 square metres Where a roof or canopy is provided, it should be high enough to avoid injuring a rider or fractious horse A height of 3 7 m is adequate
1 3 Yard Surface The fitting of yards and the type of yard surface should allow drainage (by absorption or evaporation) without ponding Grading may be necessary. Gravel is a suitable material for the yard subsurface, preferably covered with sand or loam
1. Stables 2 1 Size Stables should be at least 3 7m wide and 37m deep A size of37mx49mis preferable Height should be 2 75 m 15Ms Pope submits that her horse yard complies with the guidelines for the keeping of "Missy" on the following basis:
she has spent a considerable amount in placing sand on the yard area gives it a daily spray until it settles
she has installed a "Fly zapper" to control flies
she undertakes daily urine neutralising using the product "Smelleze".
she is upgrading the yard drainage. 16It is her position that the IGA wall is a porous "red brick fire wall", which is not properly waterproofed and requires upgrading by its owner to prevent water ingress, which has been a long standing issue the supermarket. Considering these matters, Ms Pope expressed some concerns that she was not given a reasonable opportunity to fully address the issues raised by council. 17Council's primary concern is that the effective area of 735 sq m is too small for keeping the horse in the existing context of the site topography, adjacent land use and site drainage. 18The submissions for council are that the site does not satisfy the guidelines for minimum standards for keeping horses in urban areas (Factsheet 16). The factsheet guideline for yard size is that "day yards" should be at least 20 sq m or 35 sq m for working horses. Also, the yard surface should allow drainage (by absorption or evaporation) without ponding. Sometimes grading may be necessary, together with gravel and sand/loam surface. 19Whilst the existing situation generally satisfies this criterion, section 3 of the guidelines refers to the keeping of horses in "paddocks" and states that the paddock should be 1ha with a minimum size of 0.4 ha. 20Insofar as there was some argument about the difference between a yard and a paddock, the council sought clarification by reference to Dr D Ryan (Senior Veterinary Officer with the DPI), whose opinion on the following questions is contained in Ex 2: "1) The differences between the terms "day yards" and "paddock". A day yard is a yard where the horse is primarily kept .It usually consists of a shelter with access to a small yard. The horse is taken from this yard for exercise or for access to a paddock. In a day yard, the horse receives the majority of its feed intake as supplements - hay, grain, mash etc. It obtains little of its feed intake as pasture except as a green pick. The majority of race horses in training are kept in day yards. 2) The rationale behind the minimum paddock area of ideal size of 1 ha (10,000 square metres) with a minimum size of 0.4 ha ( 4,000 square metres ). Exercise area, urine / odour control / adequate space for manure storage or on site composting etc..? A paddock is an area of land with sufficient pasture to provide the feed intake for a horse and provide access for self exercise. The minimum size of 1 ha with reasonable pasture coverage will support the feeding of a horse. However, if there is poor pasture growth (hot weather, no rain), the horse will require supplementary feed. The smaller the paddock size, the greater the need for supplementary feed. The Primefact discusses implication of paddock size and ground cover. Horses are selective feeders which means they choose only certain pasture types and leave the rest. In dry conditions or if too many horses for the capacity of the pasture or if a horse is left permanently in a paddock, these pasture types are eaten out, so the remaining plants - usually weeds - will flourish. This is why most horse paddocks have major weed problems. Owners tend to leave the horses in the paddocks full time rather than periodically removing them to another area or to a day yard for feeding so the pasture species can recover. Weed control is not usually carried out but if horses are kept in small paddocks this activity is essential (another area of complaint from neighbours can be weed seeds being blown over their property)." 21Ms Pope acknowledged that the subject area would be classified as a yard and considers it is appropriate for keeping Missy because she is a former racehorse familiar with these conditions. Furthermore, she says that Missy is regularly transferred from this yard to other nearby paddocks to enable feeding and exercising. However no specific details of this arrangement were provided to the Court. 22The next factor council submits is inappropriate is the topography of the land. This relates to the slope of the land towards the wall of IGA, which is located on the common boundary. Associated with this slope is the underlying soil conditions, comprising a clay base covered by a layer of sand/loam, which is approximately 90mm deep, which allows all site runoff to be contained along the wall. 23Council's position is that this combination does not facilitate adequate absorption or evaporation opportunities and consequently the sand layer allows for the through flow of urine, together with contamination from the manure, towards the lower end of the property adjacent to the IGA wall. This situation is exacerbated because some of the stormwater pipes from the old church are not connected and contribute to the runoff. As this runoff is not considered adequately treated, the risk of unhealthy impacts is unacceptable. 24Against this, Ms Pope says she intends to have all stormwater pipes from her property properly connected. Furthermore, her management plan involves the regular use of "Smelleze" stall odour removal deodorizer. This apparently reduces smell and absorbs moisture caused by the urine. 25Council also submits that the manure cannot be effectively managed on this small lot. According to the "prime facts" in Ex 2, an average horse produces about 22 kg of manure every day. This manure and used bedding can contaminate waterways and emit odours that attract flies. 26This position is generally confirmed by Dr Ryan who says: "Horses in small paddocks or yards can pace around the edge of the area, causing erosion. This can be the sign of a bored or anxious horse and is related to access to feed or exercise (the more stimulation the horse receives - horses usually prefer to graze or eat (access to a hay net) most of the day -, the less likely they will develop this vice). However some horses just pace and there is no real control. When this occurs, depending on soil type, there will be compaction of the soil and increased likelihood of water and nutrient run-off. Management of a horse in a small area is very important. Bunding a horse yard or paddock may be required to minimise nutrient and water run-off affecting other properties or local waterways or drains. Manure attracts flies, wet manure creates odours and too much manure can increase the phosphorus/nitrogen load in the soil - promoting weed growth, increase the risk of potential nutrient run-off. In a small area, such as that proposed, the manure should be picked up regularly and either composted on site (manure bunk) or taken off site (sold or taken to another area for composting). The area would be too small for reincorporation as the nutrient load in the soil will be too high within a short period of time. The horseslandwater site outlines a number of options for the management of manure." 27In response to this, Ms Pope says that she has installed a new bin to compost the manure, which is sufficient for a five month period. Her management plan is to pick up the manure every day and compost it. 28The secondary issue concerns the inter-allotment drainage flows. Ms Pope says that the problem of stormwater ingress to the IGA store has been occurring for many years. The problem is exacerbated because the common wall is a porous firewall that allows seepage flows. Furthermore, IGA has its refrigeration condensation discharge pipes along the wall and the down pipes from the IGA roof are not properly connected. She denies that contaminated wastewater from her property entered IGA.

Conclusion 29The threshold issue in this matter is whether the subject premises are of an inappropriate kind for the keeping of a horse. A secondary issue concerns the impact of stormwater runoff from the subject property. 30I understand from the evidence that the relevant planning controls for the area allow for a horse to be kept in urban areas on smaller household lots, subject to acceptable amenity outcomes. However, council practice is to rely on the DPI guidelines, which suggests a minimum paddock area of 4000 sq m is required. Consequently, the subject premises are significantly non-compliant. 31Insofar as the effective area of the property is about 735 sq m, I understand from Ms Pope's submissions that she accepts Dr Ryan's position that the good management of a horse in a small area is very important. In this regard, she says that she has expended a reasonable amount of resources to upgrade the yard area with the sand, installed the fly zapper and has installed a urine and manure management system. Also, she apparently transfers Missy regularly to nearby paddocks for exercise and supplementary feed intake. 32Unfortunately, these management arrangements were not adequately detailed in Ms Pope's management plan submitted to the Court. Also, there was a lack of detailed expert evidence presented to the Court in this matter. In these circumstances, I rely on the DPI guidelines, which indicate a minimum paddock size of 4000 sq m is desirable, together with other good management practices. In the absence of other expert evidence, I also give considerable weight to Dr Ryan opinions regarding horse behaviour and management on small urban lots. 33Applying this information to the subject situation, I think particular focus has to be given to the location of the site within the Batlow commercial area. It is a prominent site, which has been somewhat transformed by the overall spreading of sand to accommodate Missy. As the land slopes towards the IGA wall a more effective drainage system is desirable to prevent the concentration of stormwater and possibly wastewater being dammed against this wall. 34Council's main evidence concerns the outcome from the July storm, which apparently required sand bagging and bunding by the SES to prevent flooding of the IGA store. However I do not consider the evidence before the Court conclusive that the flooding can be directly attributed to concentrated runoff from the horse yard or that the floodwater entering IGA was contaminated because no sample testing was undertaken. 35In fact the site inspection revealed that the front stormwater down pipe for IGA is not connected and discharges on the ground adjacent to the common wall. Likewise it was not established that the rear down pipe is operational. These factors influence the secondary stormwater runoff issue, which I consider should dealt with separately to the subject s124 Order. 36Another peripheral issue concerns the horse yard being located within 9m to an area used for the preparation or storage of food. However the s 124 Order was not based on this issue. This was acknowledged by Mr Bradbury who referred to the findings of the Chief Judge in Pittwater Council v Bolitho [2007] NSWLEC 355, where he dealt with the appropriate service of orders. He stated: 100 In Part 5 of Schedule 2 to the Local Government (General) Regulation, the only clause of relevance to horses is cl 21. That clause specifies certain standards for the keeping of horses. However, the standards in the clause apply to a person only if the Council has served an order under s 124 of the Act to that effect on the person: see cl 21(4) of the Regulation. As the Council properly conceded, it has not served on Ms Bolitho an order under s 124 specifying that the standards in cl 21 will apply to her and need to be complied with. Accordingly, the standards in cl 21 of the Local Government (General) Regulation do not apply to Ms Bolitho and could not be used as a basis for making an Order No 18 against Ms Bolitho. 101 In any event, even if the Council had served an order specifying that the standards in cl 21 were to apply to Ms Bolitho, the order that properly would be made under Order No 18 would be an order requiring that Ms Bolitho keep the horses in compliance with the standards. The Council's order did not require Ms Bolitho to keep the horses in compliance with the standards in cl 21. Rather, the Council's order required Ms Bolitho not to keep horses on the property at all. 37Accordingly I give little weight to the evidence concerning the 9 m proximity to the IGA food preparation area because the Order was not issued on this basis. Any action in this regard would be a separate matter. 38In summary then, the evidence indicates to me that at the present time the relatively small yard area available on the premises is inappropriate for the keeping of Missy. However, it seems from Dr Ryan's opinion that there are good management measures that can be implemented, which could result in a satisfactory outcome. Considering the public interest support for Missy contained the petition (Ex E), the lack of substantiated complaints and the initiatives commenced by Ms Pope, it seems reasonable to allow a reasonable period for finalisation of the good management controls, which could be incorporated into an effective and accountable management plan. 39As noted the brief management plan tendered to the Court in the hearing is inadequate. In the circumstances of having considered the evidence, the parties were recalled and invited to make further submissions regarding a draft management plan. Whilst a number of submissions resulted, I have considered those relevant to the draft management plan. 40Accordingly, in the circumstances that the owner has stated that the keeping of Missy on the site is not a long term proposition and that she is looking for a larger area, I think it reasonable that an opportunity be allowed for the owner to implement appropriate measures to enable the short-term keeping of the horse, on the basis of an acceptable environmental outcome for the premises, which substantially complies with the aforementioned DPI guidelines. In this regard, I have considered Mr Fletcher's further opinions about the practicality of completing the necessary upgrading works and give them diminished weight. 41Consequently, the Court makes the following Orders:

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