ASTON and WESTERN AUSTRALIAN PLANNING COMMISSION
[2018] WASAT 11
•15 FEBRUARY 2018
ASTON and WESTERN AUSTRALIAN PLANNING COMMISSION [2018] WASAT 11
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2018] WASAT 11 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:74/2017 | 5 AND 6 OCTOBER 2017 | |
| Coram: | MR J JORDAN (SENIOR SESSIONAL MEMBER) | 15/02/18 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | ANDREW ASTON WESTERN AUSTRALIAN PLANNING COMMISSION |
Catchwords: | Subdivision Refusal Rural zoning Rural lot with natural vegetation Objectives of State planning policies for the subdivision of rural land Objectives of local planning scheme Special control area that discourages subdivision Local planning strategy supports subdivision but only if environmental impact managed Bushfire control Adjoining nature reserves Precedent |
Legislation: | Environment Protection and Biodiversity Conservation Act 1999 (Cth) Planning and Development Act 2005 (WA), s 251(1), s 241(1)(a) Shire of Esperance Local Planning Scheme No 24, cl 3, Sch 2 cl 5(d), Table 3 cl 16(2) Shire of Esperance Town Planning Scheme No 23 Transfer of Land Act 1893 (WA), s 129BA |
Case References: | Barrett Lennard and Western Australian Planning Commission [2006] WASAT 319 Koltasz Smith & Partners v Western Australian Planning Commission [2000] WATPAT 1 |
Orders | The Tribunal makes the following orders: ,On the application determined by Senior Sessional Member J Jordan, it is ordered that: ,1. The application for review is dismissed. ,2. The refusal of the respondent to grant subdivisional approval for Lot 814 Merivale Road, Esperance on 17 February 2017 is affirmed. |
Summary | Proposed was the subdivision of 151.96 hectares into lots of 59 hectares, 42.7 hectares and 50.89 hectares in a rural zone, east of Esperance. The site comprised natural vegetation, which included the flood plain of water courses, with some area cleared for access, a house and outbuildings. The site abutted nature reserves to the south and west that included wetlands and agricultural land in a rural zone to the east and north. State policies do not support rural subdivision except in exceptional circumstances or when contemplated under a local planning scheme or strategy. There were no exceptional circumstances in this instance. ,Under the local planning scheme the site was within a special control area based upon the neighbouring extended wetland system. Subdivision was not supported under the local planning scheme unless provided for in a local structure plan. There was no structure plan for this locality. The local planning strategy referred to minimum rural lot sizes for the precinct in which the site was located, but this was constrained by the requirement that there be satisfactory management of any environmental impact.,The Tribunal formed the view that when the relevant planning framework was considered as a whole, there was a no basis for supporting the proposed creation of what were effectively additional rural lots to be used for residential purposes. In coming to this conclusion, the Tribunal noted that there was no local structure plan to support rural subdivision and an absence of any comprehensive land capability assessment to determine lot layout and land use controls that would be necessary in this environmentally sensitive location. The Tribunal had concerns about the potential adverse environmental impact of the clearing and activity associated with additional development on the water courses through the land, the associated floodplain, the vegetation and on the adjacent reserves. Of particular concern in this locality was the management of the extreme bushfire risk. The Tribunal concluded that not allowing additional building envelopes was a more appropriate course than the introduction of additional landowners who it was said might assist with fire control. ,The Tribunal noted the lot size pattern in the locality and having concluded that the proposed subdivision was in itself undesirable because of the impact it would have, was of the opinion that if an approval were to be granted it would establish an undesirable precedent for the unplanned break up other rural holdings. ,The Tribunal decided to dismiss the application and affirm the refusal to grant subdivision approval. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : ASTON and WESTERN AUSTRALIAN PLANNING COMMISSION [2018] WASAT 11 MEMBER : MR J JORDAN (SENIOR SESSIONAL MEMBER) HEARD : 5 AND 6 OCTOBER 2017 DELIVERED : 15 FEBRUARY 2018 FILE NO/S : DR 74 of 2017 BETWEEN : ANDREW ASTON
- Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Subdivision - Refusal - Rural zoning - Rural lot with natural vegetation - Objectives of State planning policies for the subdivision of rural land - Objectives of local planning scheme - Special control area that discourages subdivision - Local planning strategy supports subdivision but only if environmental impact managed - Bushfire control - Adjoining nature reserves - Precedent
Legislation:
Environment Protection and Biodiversity Conservation Act 1999 (Cth)
Planning and Development Act 2005 (WA), s 251(1), s 241(1)(a)
Shire of Esperance Local Planning Scheme No 24, cl 3, Sch 2 cl 5(d), Table 3 cl 16(2)
Shire of Esperance Town Planning Scheme No 23
Transfer of Land Act 1893 (WA), s 129BA
Result:
Application dismissed
Summary of Tribunal's decision:
Proposed was the subdivision of 151.96 hectares into lots of 59 hectares, 42.7 hectares and 50.89 hectares in a rural zone, east of Esperance. The site comprised natural vegetation, which included the flood plain of water courses, with some area cleared for access, a house and outbuildings. The site abutted nature reserves to the south and west that included wetlands and agricultural land in a rural zone to the east and north. State policies do not support rural subdivision except in exceptional circumstances or when contemplated under a local planning scheme or strategy. There were no exceptional circumstances in this instance.
Under the local planning scheme the site was within a special control area based upon the neighbouring extended wetland system. Subdivision was not supported under the local planning scheme unless provided for in a local structure plan. There was no structure plan for this locality. The local planning strategy referred to minimum rural lot sizes for the precinct in which the site was located, but this was constrained by the requirement that there be satisfactory management of any environmental impact.
The Tribunal formed the view that when the relevant planning framework was considered as a whole, there was a no basis for supporting the proposed creation of what were effectively additional rural lots to be used for residential purposes. In coming to this conclusion, the Tribunal noted that there was no local structure plan to support rural subdivision and an absence of any comprehensive land capability assessment to determine lot layout and land use controls that would be necessary in this environmentally sensitive location. The Tribunal had concerns about the potential adverse environmental impact of the clearing and activity associated with additional development on the water courses through the land, the associated floodplain, the vegetation and on the adjacent reserves. Of particular concern in this locality was the management of the extreme bushfire risk. The Tribunal concluded that not allowing additional building envelopes was a more appropriate course than the introduction of additional landowners who it was said might assist with fire control.
The Tribunal noted the lot size pattern in the locality and having concluded that the proposed subdivision was in itself undesirable because of the impact it would have, was of the opinion that if an approval were to be granted it would establish an undesirable precedent for the unplanned break up other rural holdings.
The Tribunal decided to dismiss the application and affirm the refusal to grant subdivision approval.
Category: B
Representation:
Counsel:
Applicant : Mr G Thomas
Respondent : Mr J Algeri
Solicitors:
Applicant : Esperance Surveys
Respondent : Altus Planning & Appeals
Case(s) referred to in decision(s):
Barrett Lennard and Western Australian Planning Commission [2006] WASAT 319
Koltasz Smith & Partners v Western Australian Planning Commission [2000] WATPAT 1
Introduction
1 These proceedings involve an application brought by Mr Andrew Aston (applicant), pursuant to s 251(1) of the Planning and Development Act 2005 (WA) (PD Act), for review of the decision of the Western Australian Planning Commission (respondent or Commission) made on 17 February 2017 to refuse an application for subdivision approval of Lot 814 Merivale Road, Esperance (site) of 151.96 hectares into proposed Lot 9 of 59 hectares, Lot 10 of 42.7 hectares and Lot 11 of 50.89 hectares. The applicant's representative said in opening that the applicant wanted 'lifestyle' lots and would accept conditions to control land use.
Site and locality
2 A significant proportion of the site is floodplain, with associated vegetation, for watercourses that flow across the site from the north and northeast to join a water course flowing to the west parallel to the southern boundary. Four separate elongated areas stand just above the floodplain, with three close to or adjacent to Merivale Road where building envelopes would be located for each of the proposed lots. The fourth elevated area is adjacent to the southern boundary and is part of the vegetated dune that extends into the reserve to the south. The elevated areas have coastal shrub land. Most of the vegetation on the site is recovering from a severe bushfire in November 2015.
3 Each of the proposed lots would have frontage to Merivale Road. The existing house, sheds and a sea container with a cleared area would be located on proposed Lot 10. There are some tracks through the site and a cleared area with a structure near the northeast corner.
4 Abutting the site to the south is the Mullet Lake Nature Reserve and abutting to the west is part of the Lake Warden Ramsar Wetlands system. Both are reserved for Environmental Conservation under Shire of Esperance Local Planning Scheme No 24 (LPS 24 or Scheme).
5 The site has been identified as potential habitat for 'Proteaceae Dominated Kwongkan Shrubland' which is listed as a threatened and priority ecological community (TEC) under the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCAct).
6 Relevant to the consideration of this matter is that the Certificate of Title for the site has listed on it 'C627/1954 Caveat by Minister for Flora & Fauna Lodged 7.5.1954'. A copy of the caveat document filed with the Tribunal states that it is agreed and declared that the site '… shall be proclaimed and used as a sanctuary for the conservation and protection of fauna pursuant to the provisions of the Fauna Protection Act 1950 (WA) … ' and further provides that the owner shall refrain from operating and discharging firearms or throwing or discharging any other missile or take or remove any fauna from the site without authority in writing from the Fauna Protection Advisory Committee (1954 Caveat).
7 To the east is a lot described as a hobby farm with its western part of similar landscape to the site. North over the road are rural holdings that are a mixture of land cleared for agriculture and substantial areas within the drainage system of the locality with its associated floodplains and vegetation.
Planning framework
8 The respondent, at the hearing and through its witnesses referred to the various documents as part of the planning framework including:
• LPS 24
• State Planning Policy 2.0 Environment and Natural Resources (SPP 2.0)
• State Planning Policy 2.5 Rural Planning (SPP 2.5)
• State Planning Policy 3.7 Planning in Bushfire Prone Areas (SPP 3.7)
• Planning for Bushfire Guidelines (February 2017)
• Development Control Policy 3.4 Subdivision of rural land (DC 3.4)
• State Planning Policy 2.9 Water Resources (SPP 2.9)
• Shire of Esperance Local Planning Strategy 2016 (endorsed by the Commission 9 August 2017) (LP Strategy)
9 The application and the refusal to subdivide referred to various clauses of the then Shire of EsperanceTown Planning Scheme No 23 (TPS 23). LPS 24 was gazetted on 2 August 2017 and pursuant to cl 3 of LPS 24, TPS 23 was revoked. The witnesses, in their statements referred to the content of LPS 24 as a draft and had the opportunity to consider LPS 24 and its provisions as gazetted during the hearing. LPS 24 is the local planning scheme against which the proposed subdivision is assessed
10 The site is zoned 'Rural' under LPS 24. LPS 24 cl 16(2) Table 3 lists the objectives for the Rural zone, which, relevantly for the proposed subdivision, include:
• To provide for the maintenance or enhancement of specific local rural character.
• To protect broad acre agricultural activities such as cropping and grazing and intensive uses such as horticulture as primary uses, with other rural pursuits and rural industries as secondary uses in circumstances where they demonstrate compatibility with the primary use.
• To maintain and enhance the environmental qualities of the landscape, vegetation, soils and water bodies, to protect sensitive areas especially the natural valley and watercourse systems from damage.
11 Under Sch 2 of LPS 24, the site is in 'SCA 5 Wetlands of Significance and Lake Warden Recovery Catchment Special Control Area 5' (SCA 5). The relevant provisions are referred to in the discussion below.
12 Under the LP Strategy the site is in 'Precinct 42 - Merivale Road Stockyard Creek Rural' and is in the Merivale Road subprecinct. The strategy for the Merivale Road subprecinct is also addressed in the discussion below.
13 Action 5 in s 6.6 'Rural' of the LP Strategy states:
In determining recommendations for subdivision, reference is to be made to the standards outlined under the Precinct Statement or alternatively all subdivision is to comply with the provisions of Development Control Policy 3.4 and being consistent with SPP2.5 and SPP3.7.
14 Under the EPBC Act, a vegetation survey to confirm its existence or absence is required prior to clearing either for development or agricultural land use. Where the Proteaceae Dominated Kwongkan Shrubland ecological community is confirmed to occur, a formal referral to the Commonwealth Department of Environment and Energy may be required to determine whether the proposal would have a significant impact.
The refusal and issues
15 The Commission's reasons for refusal are reflected in the list of issues it filed. The issues, as listed by the Commission might be summarised as:
1) whether the proposed subdivision is consistent with the objectives of SPP 2.5, DC 3.4, LPS 24 and the LP Strategy;
2) whether the proposed subdivision will lead to intensification of development which may adversely affect wetlands and environmentally sensitive areas;
3) whether the proposed subdivision would lead to an intensification of development contrary to the objectives of planning for bushfire prone areas of SPP 3.7; and
4) whether the proposed subdivision would set an undesirable precedent for further subdivision of 'Rural' zoned land in the locality.
16 The Tribunal noted that there may be some overlap between issues and that the findings on one issue will influence deliberations on another.
Discussion
17 The Tribunal was assisted in its determination of this matter by expert evidence from Mr Peter Wilks, a Shire Planning Officer and Mr Ashley Stewart, a Shire Fire Control Officer, called by the applicant and Mr Johannes Gildenhuys, a Department of Planning, Lands and Heritage planner, Mr Stephen Butler, a Nature Conservation Coordinator for the Department of Biodiversity Conservation and Attractions (DBCA) and Mr Jackson Parker, a Bushfire and Environmental Protection Officer of the Department of Fire and Emergency Services (DFES), called by the respondent.
Whether the proposed subdivision is consistent with the objectives of the planning framework
SPP 2.5 and DC 3.4
18 It was the applicant's submission that the site would not be used for traditional agricultural purposes and so this negates SPP 2.5 and DC 3.4 requirements. The Tribunal considers that SPP 2.5 and DC 3.4 are relevant to this matter, and as required by s 241(1)(a) of the PD Act must be given due weight. While the site is not used for agricultural purposes and the proposed lots are not intended for this purpose, the site is, however, rural. The Tribunal considers it is clear that SPP 2.5 and DC 3.4 are relevant to the consideration of subdivision proposals for all rural land, not just agricultural land. As stated in SPP 2.5 at cl 2:
The purpose of this policy is to protect and preserve Western Australia's rural land assets due to the importance of their economic, natural resource, food production, environmental and landscape values. Ensuring broad compatibility between land uses is essential to delivering this outcome (emphasis added).
19 SPP 2.5 cl 5 is concerned with policy measures for the protection of rural land and at cl 5.1(c) this includes 'ensuring retention and protection of rural land for biodiversity protection, natural resource management and protection of valued landscapes and view'. The Tribunal considers this is relevant consideration in this matter.
20 The respondent referred to SPP 2.5 cl 6.5 'Subdivision', which states:
…
In contemplating subdivision proposals on rural land, WAPC policy is:
(a) the creation of new or smaller rural lots will be by exception and in accordance with Development Control Policy 3.4: Subdivision of rural land;
(b) the creation of new or smaller rural lots by exception may be provided for in other State Planning Policies and/or a local planning strategy or scheme;
(c) no other planning instruments besides those listed at (a) or (b) can provide for the subdivision of rural land; and
(d) the introduction of new dwelling entitlements or other sensitive land uses should not limit or prevent primary production from occurring.
21 SPP 2.5 at cl 3.3(b) also refers to the use of DC 3.4 in decisionmaking on subdivision proposals for rural zoned land. DC 3.4 at cl 2 says that it is an operational policy to guide subdivision of rural land to achieve key objectives of SPP 2.5. At cl 5, DC 3.4 states that when determining subdivision proposals on rural land, the following measures apply:
(a) the creation of new or smaller lots will be by exception;
(b) proposals will be considered against strategies and schemes;
(c) adequate buffer distances for sensitive and/or incompatible land uses can be achieved; and
(d) proposals will be assessed against any relevant State planning policies and/or operational policies.
22 There was discussion between the parties whether any of the exceptional circumstances listed at cl 6 and expanded upon through to cl 6.5 of DC 3.4 provided a basis for consideration of the site. The list includes:
(a) to realign lot boundaries with no increase in the number of lots, where the resultant lots will not adversely affect rural land uses;
(b) to protect and actively conserve places of cultural and natural heritage;
(c) to allow for the efficient provision of utilities and infrastructure and/or for access to natural resources;
(d) in the Homestead lot policy area (Appendix 2), to allow for the continued occupation of existing homesteads when they are no longer used as part of a farming operation; and
(e) for other unusual or unanticipated purposes which, in the opinion of the WAPC, do not conflict with this and other relevant policies and are necessary to the public interest.
Although the WAPC seeks to minimise the creation of new or smaller rural lots, there are some circumstances where subdivision may be appropriate in order to promote better land management and achieve environmental, cultural and/or social benefits[.]
23 Mr Gildenhuys was of the opinion that the proposed subdivision did not satisfy any of exceptional circumstances of DC 3.4 cl 6. Mr Wilks said the subdivision would satisfy cl 6(e) with the unusual circumstance being that the site was rural land not suited to agricultural purposes.
24 The Tribunal considers Mr Wilks has had too narrow a focus in this matter. The Tribunal referred to SPP 2.5 which includes the two following meanings in its glossary:
Rural land Land zoned or identified for agricultural or rural use in a region or local planning scheme or strategy.
Rural land use Land uses that are rural in nature and that support and are associated with primary production, basic raw material extraction, biodiversity conservation, natural resource management, public purposes (eg. prisons, cemeteries, public utilities and waste management facilities) and protection of landscapes and views. Does not include rural living (see clause 5.3 of this policy).
25 The Tribunal considers that to be rural it is not necessary for the land to be used for agriculture. Consistent with the definitions in SPP 2.5, examination of the aerial photographs provided by the respondent and the evidence of both parties, Rural zoned land under LPS 24 in the locality of the site has a range of uses. These include agriculture, but also include landscapes of uncleared land, remnant vegetation, water courses with fringing vegetation, floodplain, vegetated dunes and dwellings. It appears that where neighbouring lots have had some arable land it was at some earlier time prepared for agricultural use. However, the current landscape of the site is common to that found on extensive areas on other lots in the locality.
26 The Tribunal has concluded that the proposed subdivision does not satisfy any of the exceptional circumstances of cl 6 of DC 3.4 and therefore that clause does not provide a basis for supporting subdivision.
27 The 'scheme' referred to in both SPP 2.5 and DC 3.4 in this instance is LPS 24. As set out above, the objectives for the Rural zone under LPS 24 include '… maintenance or enhancement of specific local rural character … environmental qualities of the landscape, vegetation, soils and water bodies, to protect sensitive areas especially the natural valley and watercourse systems from damage'. As referred to in comments above, the site is predominantly floodplain with higher areas of potentially sensitive vegetation.
28 These objectives must be kept in mind when assessing the proposed subdivision and further guidance is to be found in Sch 2 of LPS 24, which places the site in SCA 5. To note is that the site is at the eastern boundary of, but nevertheless within the Priority 1 area of SCA 5. The objectives of SCA 5, at cl 5(b) are:
(i) ensure that the use and development of affected land is compatible with and does not detrimentally affect the SCA 5 wetlands;
(ii) encourage retention and planting of native vegetation and properly managed perennial pasture;
(iii) encourage fencing and rehabilitation of creek lines; and
(iv) discourage subdivision and intensification of development within the Priority 1 area of the Lake Warden catchment due to the risks posed by the shallow water table, flooding, nutrient pollution, domestic animal impact and risks to public health.
29 Relevant considerations when considering subdivision in SCA 5 of LPS 24 include at Sch 2 cl 5(d):
…
(iv) the potential for adverse environmental impacts and the management of such potential impacts; and
(v) There is a general presumption against subdivision within the Priority 1 area of the Lake Warden catchment except where a structure plan applies …
30 There is no structure plan that includes the site. Mr Gildenhuys argued that the subdivision should be refused because there is no basis for setting aside LPS 24 provisions that in the Priority 1 area specify a general presumption against subdivision and discourage intensification of development.
31 The applicant argues, correctly, that there is no specific prohibition on subdivision in LPS 24. The applicant went on to argue that there is a basis for setting aside the general presumption against subdivision of rural land, notwithstanding the absence of a structure plan. The applicant made reference to the LP Strategy, which is a relevant strategy pursuant to SPP 2.5 cl 6.5(b) and DC 3.4 cl 5.
32 Under the LP Strategy the site is in 'Precinct 42 - Merivale Road Stockyard Creek Rural' and is in the Merivale Road sub-precinct. The strategy for the Merivale Road subprecinct includes:
• Ensure that development takes into account the Lake Warden Catchment Recovery Area and other wetlands and waterways where it has been determined that a portion of the precinct has the potential to have an impact.
• Support subdivision within this sub-precinct from 40 ha to 90 ha where lots have direct frontage to Merivale Road or where an internal road system is proposed that will ensure at least two ways in and out of each lot, there is sufficient water supply, impacts on the environment can be satisfactorily managed and there are no battleaxe lots.
…
33 The applicant said the proposed lots are all greater than 40 hectares, would have frontage to a constructed road and would have a sufficient water supply. It was also the submission of the applicant that two additional owners would result in better management of the land than is possible with just one owner. There would be better management of weeds, preservation and enhancement of vegetation and erosion control.
34 When questioned, Mr Wilks agreed that new owners may not necessarily have the required skills to manage the site as suggested.
35 The respondent pointed out that no land capability assessment had been carried out. Such a study, it was said, would identify what new lot sizes, if any, might be appropriate for the site and what the impact might be and if it might be managed. The respondent emphasised its position that it was not known that the subdivision would result in satisfactory management of environmental impacts and so could not be supported, notwithstanding the area of the proposed lots.
36 This leads to consideration of the next issue, which is the impact of the proposed subdivision on the local environment.
37 Before considering the next issue, however, the Tribunal noted that the applicant suggested that a condition be imposed that enabled restrictive covenants to be used to prohibit uses that might otherwise be considered for approval on lots in the Rural zone as listed in the Zoning Table of LPS 24. These uses include a transport depot, a fuel depot and second houses. The Tribunal would comment it does not support such a condition. It is presumed the condition would require that a restrictive covenant be imposed on the proposed lots under s 129BA of the Transfer of Land Act 1893 (WA) for the benefit of the Shire of Esperance (Shire). The Shire has not commented on whether it would want to be a party to such a condition.
38 The Tribunal notes that a condition of this type is sometimes imposed for a specific purpose, such as requiring all buildings to be within a building envelope, or preventing access to a certain road reserve. Such conditions might be seen to supplement land use restrictions that would already be in the contemplation of the local authority or Commission. However, the restrictive covenant suggested here is to prevent development on the resultant lots of most of the uses permissible in the Rural zone in the Zoning Table of LPS 24, or the local planning scheme in force from time to time, that might otherwise be the subject of the Shire's discretion. A concern of the Tribunal was that such a restrictive covenant condition imposed on a subdivision approval might improperly fetter the Shire's discretion to determine future development applications. A former Town Planning Appeal Tribunal decision deleted such a condition of subdivision approval imposing a restrictive covenant because it had this effect: Koltasz Smith & Partners v Western Australian Planning Commission [2000] WATPAT 1.
39 A concern of the Tribunal is that general land use controls are best found in a single planning document such as LPS 24. It is considered not to be good planning practice to have the Zoning Table of LPS 24 listing various permissible uses for a lot at the same time that the Certificate of Title for the land would refer to a document that prohibits such uses. The Tribunal considers that controlling land use, as suggested by the applicant, should be by way of changing the zoning of the land, or if there is no appropriate zone within a scheme by amending the scheme to include a particular parcel of land in a restricted use or special use schedule, depending upon what the necessary studies reveal on how land use would best be controlled. In Barrett Lennard and Western Australian Planning Commission [2006] WASAT 319 the Tribunal rejected a request that such a condition be imposed on a subdivision.
40 The Tribunal as a general principle does not support the use of restrictive covenants as a land use control to override planning provisions and in this instance does not find the circumstances so exceptional such that a condition of the type suggested can be supported.
Whether the proposed subdivision will lead to intensification of development which may adversely affect wetlands and environmentally sensitive areas
41 Mr Butler provided evidence that there was the potential for a TEC on the site and that this would be on the elevated areas where the building envelopes would have to be sited. He was of the opinion that a detailed flora study should be completed before subdivision was considered to identify whether any rare flora or a TEC was present. It was his concern that additional lots would require additional clearing for buildings, access ways, firebreaks and fence lines. He believed clearing and development would potentially threaten the biodiversity of the site and a TEC, but also likely increase runoff into the watercourses with potential harm from spilled chemicals and fuel, from sewage and sediment from erosion, which in turn would add to the impact the Ramsar Lake system that was already under threat from such runoff.
42 The respondent suggested an environmental management plan was required to identify such matters as vegetation type and condition, location of any declared rare flora and TECs, fauna habitats, revegetation, weed and pest management details and how the floodplain would be protected. The respondent pointed out that such an assessment would have to be done in conjunction with a bushfire management plan.
43 The applicant said that under the Shire's policies there was potential for ancillary accommodation and a second house on the site. With the subdivision there would be two additional house sites, but the applicant argued that conditions could be imposed that restricted development to one dwelling only on each lot. The applicant said that house sites, firebreaks and fence lines could all be adjusted to have minimum impact with a study of the site that could be undertaken with an approval.
44 The applicant suggested that with cooperation between the landowners,
45 DBCA and other relevant government authorities, conditions could prevent grazing of animals, which could occur now without an approval, restrict clearing and protect wetlands. Such conditions and a conservation covenant could provide more comprehensive and effective controls to replace the 1954 Caveat, which it was said was now inadequate.
46 Mr Butler, when asked, said a conservation covenant would provide a more detailed level of protection for the ecological values of the site than the 1954 Caveat. He did say the 1954 Caveat was open to the interpretation that to protect fauna, habitat needed to be protected and this meant little or no vegetation clearing should be done or extensive grazing allowed.
47 In this context, the applicant again said subdivision approval would provide additional owners who could assist in maintaining and enhancing the vegetation on the site. As stated above, and the Tribunal agrees, it was not known if additional owners would have the necessary skills or interest to be relied on in this way.
48 The Tribunal would acknowledge that a comprehensive conservation covenant would provide guidance on how the flora and fauna on the site are best dealt with better than does the undefined protection of the 1954 Caveat. The Tribunal does not accept, however, that it would be orderly planning to first approve the subdivision and then as a condition require the preparation of an environmental management plan and agreement of a conservation covenant. This is because the environmental characteristics are such that the covenant would cover most of the site and it is not known if the environmental studies that would be necessary including the site's relationship to neighbouring properties, would reveal the need for fundamental changes to the proposal.
49 The Tribunal has accepted that the additional development that would follow subdivision does have the potential to adversely affect the wetlands and environmentally sensitive areas on the site. The Tribunal is of the view that before subdivision is considered, there must first be identified any particular impact of a proposed subdivision and what actual environmental constraints exist and how they might be managed. The merit of a subdivision proposal in an environmentally sensitive location such as this can then be properly addressed.
50 The Tribunal agrees that the proposed subdivision, if it were to proceed, would consequently require works, such as clearing of access ways, building envelopes and firebreaks that would warrant an assessment to determine any environmental impact including if any of a TEC were to be affected. It is arguable that if this assessment were to occur after an approval, it might be found because of environmental constraints that the lot layout and associated works require a redesign of the subdivision that results in a layout sufficiently different or so constrained to raise questions about whether approval should have been granted. It would be necessary, of course, that any environmental management plan be integrated with a bushfire management plan. The Tribunal has formed the view that it would not be appropriate to consider subdivision until such an assessment has been carried out.
Whether the proposed subdivision would lead to an intensification of development contrary to the objectives for planning for bushfire prone areas in SPP 3.7
51 The applicant had consultants, RUIC Fire, produce a 'Bushfire Management Plan' (BMP) dated 19 December 2016, to accompany the application to subdivide. At the risk of being too succinct, the BMP showed for each of the proposed lots a 50 metre by 40 metre building envelope surrounded by an area extending out to 100 metres which was characterised mostly as Class B woodland, generally with a Bushfire Attack Level (BAL) rating of 29 or lower. The BMP in clause 4.1 appears to recommend as a response that the subdivision ensure that all future habitable buildings are in an area subject to BAL29 or lower with a 20 metre wide asset protection zone with reduced fuel loads around the building envelope. At clause 4.2 the development response says that 'no BAL on site exceeds BAL-29' with construction standards to be applied to relevant buildings in accordance with AS 3959.
52 When consulted by the respondent, DFES said it did not support the proposed subdivision. It cited policy objective 5.1 of SPP 3.7 which states:
Avoid any increase in the threat of bushfire to people, property and infrastructure. The preservation of life and the management of bushfire impact are paramount.
53 DFES said the proposed subdivision would intensify development where an extreme bushfire hazard exists and the proposal would in turn introduce an increased bushfire threat through the introduction of additional people, property and infrastructure.
54 DFES also referred to policy measure 6.11 of SPP 3.7, which states in part:
Where a landowner/proponent has not satisfactorily demonstrated that the relevant policy measures have been addressed, responsible decisionmakers should1 apply the precautionary principle to all strategic planning proposals, subdivision and development applications in designated bushfire prone areas[.]
56 Mr Parker, called by the respondent, supported the DFES comments. Mr Parker also reviewed the BMP. He formed the view that the site would be dominated by an extreme bushfire hazard level with a BAL rating greater than 29. He considered achieving building footprints within BAL29 showed a lack of consideration of the bushfire threat to people from the site as a whole.
57 Mr Parker emphasised his view that the BMP did not comply with policy objective 5.4 of SPP 3.7 as it failed to identify environmental considerations affected by the subdivision and bushfire management measures. He said the BMP failed to identify the environmental values of SCA5 and the potential for TECs under the EPBC Act. He said that through not addressing the site constraints that may preclude clearing, the BMP failed to demonstrate that the proposed bushfire management measures could be achieved.
58 The applicant put it to Mr Parker that currently the owner could apply for a second house and ancillary accommodation. If subdivision were approved a condition could be imposed to prevent more than one house on each of the new lots. Mr Parker said that the BMP did not change the extreme bushfire hazard on the majority of the site. He was of the opinion that if there was one lot and any additional dwellings were approved they could be in the same location, whereas new dwellings would be approached through areas of extreme hazard. This he said was introducing additional people to bushfire risk in conflict with SPP 3.7.
59 No one from RUIC Fire was called as a witness to contradict Mr Parker's submissions.
60 Mr Stewart, called by the applicant, is an experienced local firefighter. When questioned, he said he had not been instructed to assess the proposal against the provisions of SPP 3.7. He had not prepared a bushfire management plan but had experience in implementing them and had considered the recommendations of the current BMP. Mr Stewart's value as a witness was his experience in firefighting and management in this locality. He referred to the November 2015 fire on the site and said the clearing around the house had resulted in it not being damaged when the vegetation on the site was badly burnt. In his opinion, formed with experience in the district, more owners would ensure better fire control because of additional fire breaks, fuel reduction areas being maintained, fires being noticed sooner and there being more people available to assist in firefighting. He believed that if any threatened vegetation was identified, this could be avoided in the fire management measures.
61 When questioned, Mr Stewart said without subdivision the current owner could maintain an asset protection zone and in consultation with the appropriate authorities establishing strategic firebreaks and access for firefighting vehicles.
62 The applicant said the Tribunal should determine if the BMP is acceptable. The Tribunal would comment that it is required to consider the BMP against the relevant guiding documents and in light of the expert evidence and opinions provided at the hearing. In this matter the Tribunal noted that SPP 3.7 is a consistently applied policy document and a case would have to be made to set aside the objectives. The BMP, it was argued, addressed the objectives, but the Tribunal is satisfied there are sufficient questions raised about the application of the Planning for Bushfire Guidelines and AS 3959 to conclude that the BMP warrants revisiting. This includes in relation to how existing vegetation is to be treated consistent with the requirements of the EPBC Act, the requirements for SCA 5 and any environmental management plan. Importantly, the Tribunal has not accepted that in a designated bushfire hazard locality that it is an appropriate response to facilitate the introduction of additional dwellings and residents because of the contribution they might make to manage the increased fire risk that is arguably created by their actual presence.
63 The Tribunal considers that in an area of high bushfire risk, a bushfire management plan should be agreed with the relevant authorities prior to any subdivision being considered, not, as suggested, as a condition to be cleared after an approval is granted. The Tribunal would add that a bushfire management plan is essential and it is important that a plan for this be agreed, having regard to planning objectives and any environmental management plan, as discussed in the two issues above.
Whether the proposed subdivision would set an undesirable precedent for further subdivision of 'Rural' zoned land in the locality
64 The Tribunal has formed the view that the proposed subdivision is objectionable. This is because, as set out above, the site comprises vegetated floodplain and, potentially, a TEC as well as being adjacent to environmentally sensitive reserves and there has not been carried out a land capability study to establish whether the proposed subdivision is an acceptable design or if subdivision at all is appropriate for the site. Also, it is not clear without further work that the development that can follow subdivision can be managed to ensure maintenance and enhancement of the landscape. The proposal is objectionable because of the absence of the appropriate information to determine its merit.
65 The Tribunal is also of the view that there may be more than a mere chance there is in this locality other rural properties indistinguishable from the site in that they include areas of the same environmental and vegetation attributes, particularly rural lots in SCA 5 Priority 1 area. Any proposal to subdivide such properties would have to be assessed on its inherent merit, but the Tribunal is of the opinion an approval of the current subdivision as proposed, would likely form an undesirable precedent for the determination of those other subdivisions.
Conclusion
66 As set out above, the Tribunal has found that there are no special circumstances that warrant setting aside the policy of not supporting the creation of new rural lots through unplanned subdivision set out in SPP 2.5 and DC 3.4. The Tribunal also found that, under LPS 24, because of the location of the site in the SCA 5 Priority 1 area there was a presumption against subdivision, unless there was in place a structure plan to support subdivision, and there is no such structure plan.
67 The subdivision does propose lots consistent with lot sizes referred to in the LP Strategy, but the LP Strategy also requires consideration of how any environmental impact would be managed. A study of the land capability and environmental attributes of the site has not been carried out. The site warrants such examination because of its location on a floodplain in a locality of potential TECs and adjacent to environmentally significant reserves. The Tribunal considers that because the whole of the site is subject to the special considerations, it would be sound planning practice to carry out the necessary investigative work to assist in determining the attributes of any subdivision proposal, as opposed to allowing subdivision and requiring such investigations to be completed as conditions of approval.
68 In addition, the Tribunal is not persuaded that subdivision to introduce additional owners into the locality to assist with land use management and fire control was a sound basis to establish the unplanned subdivision of holdings in this particular rural locality. The Tribunal is not satisfied that this subdivision will result in circumstances that will promote better land management or achieve environmental benefits, as required in cl 6.5 of DC 3.4.
69 The Tribunal has concluded that the proposed subdivision would be in conflict with the planning objectives of SPP 2.5, DC 3.4 and LPS 24.
70 Having found that the proposed subdivision was itself objectionable because of the particular circumstances, the Tribunal further noted there is a high probability of other indistinguishable subdivisions in the SCA 5 Priority 1 area and so any approval would set an undesirable precedent.
71 Following its examination of the matter, as set out above, the Tribunal decided to dismiss the application and endorse the Commission's refusal.
Orders
The Tribunal makes the following orders:
On the application determined by Senior Sessional Member J Jordan, it is ordered that:
1. The application for review is dismissed.
2. The refusal of the respondent to grant subdivisional approval for Lot 814 Merivale Road, Esperance on 17 February 2017 is affirmed.
I certify that this and the preceding [71] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J JORDAN, SENIOR SESSIONAL MEMBER
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