Bernardini and Western Australian Planning Commission - [2010] WASAT 105

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: BERNARDINI and WESTERN AUSTRALIAN PLANNING COMMISSION [2010] WASAT 105

MEMBER: MR J JORDAN (MEMBER)

HEARD: 14 APRIL 2010

DELIVERED : 15 JULY 2010

FILE NO/S: DR 348 of 2009

BETWEEN: REMO BERNARDINI
GIUSEPPE MUCCIARONE
VAN HOA LEA
Applicants
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Town planning Subdivision Refusal Six rural residential lots Variation from adopted Development Plan Objectives of Rural Residential zone Impact on remnant vegetation Building envelopes Effect on site as wildlife and biodiversity corridor Aim of local planning strategy Effect of draft local biodiversity strategy Subdivision 'generally' in accordance with Development Plan Conservation covenants as condition of subdivision

Legislation:

Planning and Development Act 2005 (WA), s 251(1)
Shire of Chittering Town Planning Scheme No 5, Sch 5
Shire of Chittering Town Planning Scheme No 6, cl 1.6, cl 4.2.6, cl 5.8.1

Result:

The application for review is dismissed
The refusal of the application for approval to subdivide Lot 815 Blue Squill Drive, Lower Chittering, is affirmed

Category: B

Representation:

Counsel:

Applicants: Mr B McMurdo
Respondent: Ms C Ide

Solicitors:

Applicants: Lavan Legal
Respondent: State Solicitor's Office

Case(s) referred to in decision(s):

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

This matter involved an application for review of the deemed refusal of an application to the Western Australian Planning Commission for approval to subdivide a site in Lower Chittering into six Rural Residential lots of between 2.1 hectares and 2.8 hectares.
The Western Australian Planning Commission was concerned that the proposed lots were inconsistent with the Development Plan prepared for the Rural Residential zone in which the site is located. Also of concern was the adverse impact the subdivision might have on remnant vegetation and the function of the site as a wildlife and biodiversity corridor.
The Tribunal found that the proposed subdivision of one lot into six lots would not be 'generally in accordance' with the subdivision layout shown on the Development Plan and would have an impact on remnant vegetation. The subdivision would therefore be inconsistent with the objectives for the Rural Residential zone in the local planning scheme.
The Tribunal did find, however, that the proposed subdivision would not affect the function of the site as a wildlife and biodiversity corridor.
The Tribunal further found that the proposed subdivision would set an undesirable precedent for the subdivision of nearby lots zoned Rural Residential that are of a size sufficient to be similarly subdivided into lots of about 2 hectares. The Tribunal finally formed the view that it would not be consistent with orderly and proper planning to approve the subdivision, with a condition requiring that conservation covenants be agreed to overcome the effects of the subdivision on the vegetation, in the absence of evidence that the agreement of an appropriate authority to the covenants could be obtained and the condition of approval could be satisfied.
The Tribunal decided to dismiss the application for review and affirm the refusal of the proposed subdivision.

Introduction

These proceedings involve an application brought by Remo Bernardini, Giuseppe Mucciarone and Van Hoa Lea (applicants) pursuant to s 251(1) of the Planning and Development Act 2005 (WA) (PD Act), for review of the deemed refusal by the Western Australian Planning Commission (Commission) of an application to subdivide No 112 (Lot 815) Blue Squill Drive, Lower Chittering (site) into six lots.
The site is approximately 8 kilometres southeast of the Muchea townsite and 9 kilometres north-east of the Bullsbrook townsite. It is 13.7146 hectares in area and has five boundaries, but might be described as generally triangular in shape. At the north-eastern boundary, the site has frontage to Blue Squill Drive. The southern boundary abuts Morley Road and the western boundary has frontage to Jenkins Road for about two-thirds of its length. The south-eastern boundary is the longest at 615 metres and abuts Bush Forever site No 80 in the City of Swan. Approximately 70% of the site is remnant vegetation, comprising Marri woodland with associated understorey, but with a track cut through it. The remaining 30%, at the southern end of the site, had been parkland cleared and grazed but now has regrowth. Lots to the north, south and west of the site contain the same remnant and regrowth vegetation.

The proposal

It is proposed to subdivide the site into six lots, ranging in size between 2.1 hectares and 2.83 hectares. Each proposed lot is shown as including a building envelope of approximately 2,000 square metres to accommodate a single house and ancillary infrastructure, such as a water tank and on-site effluent disposal, and a cleared accessway to the frontage road.

Planning framework

The site is zoned Rural Residential under the Shire of Chittering Town Planning Scheme No 6 (TPS 6). The site was previously part of a much larger lot, Lot 5 Polinelli Road (Lot 5), of about 90 hectares. Lot 5 was zoned Rural 1 Landscape Protection Zone in the Shire of Chittering Town Planning Scheme No 5 (TPS 5). Lot 5 was the subject of Amendment 68 to TPS 5 in December 1999 to change the zoning from Rural 1 Landscape Protection Zone to Rural Living Zone A.
Amendment 68 inserted Sch 5 into TPS 5, which set out sitespecific requirements for Lot 5, and these requirements were also set out on the Development Plan. These included:
(1)Lot sizes
In considering development and subdivision on the land the Scheme requirements for 'Rural Living A' zone shall apply and should be generally in accordance with the approved Development Plan. The minimum average lot size should be 4 ha as recommended by the Shire of Chittering Rural Strategy.
(2)Vegetation preservation
No clearing shall be permitted, without Planning Consent, outside the designated building envelopes as depicted on the Development Plan, unless those trees are dead, diseased, or present a danger to property.
A Development Plan was prepared and adopted as required by Sch 5 of TPS 5, and subdivision in accordance with the Development Plan was then completed. The subdivision included the creation of the site.
TPS 5 was revoked with a gazettal of TPS 6 in November 2004. Clause 5.8.1 of TPS 6 states:
Subdivision shall be generally in accordance with a[n] Outline Development Plan prepared in accordance with Council policy or any subsequent variation approved by the Council and the Western Australian Planning Commission.
An application for subdivision of land in these zones is to be accompanied by a[n] Outline Development Plan prepared in accordance with Council policy.
…
The provisions specific to Lot 5 remain set out on the Development Plan, but Sch 5 of TPS 5 was not repeated in TPS 6. The Tribunal is of the view that the annotations on the Development Plan are now requirements that subdivision and development 'shall be generally in accordance with' and no longer have statutory effect as provisions of a gazetted town planning scheme.
The aims of TPS 6 are set out at cl 1.6 and include the following:
a)To provide environmental protection and enhancement of biodiversity and the natural resources including land, air and water quality;
…
c)To ensure all developments comply with the principles of catchment management;
…
g)To protect and improve areas of remnant vegetation and, waterways from further degradation;
h)To facilitate vegetated wildlife corridors and greenways, particularly along the primary water courses throughout the Shire by means of reserves and partnerships with government agencies and private landholders;
The Shire of Chittering (Shire) has adopted a Local Planning Strategy (LPS) to provide guidance in relation to the examination of subdivision applications. The LPS identifies the site as falling within a Rural Living Precinct.
Clause 9.7 of the LPS outlines strategies and actions for the Rural Residential zone including:
To contain the spread of rural residential development and contain it within specific areas which do not detract from the overall rural character of the Shire, and which do not result in the loss of productive land or impact on the natural environment;
To stage development in a cohesive manner in predetermined locations best fitting the land form and environmental constraints;
…
To provide for a range of lot sizes in the rural residential areas, appropriate to the level of services and land form constraints and opportunities, to satisfy the various requirements of the residents;
…
The Shire, in conjunction with the Western Australian Local Government Association is in the process of considering the Shire of Chittering Draft Local Biodiversity Strategy (draft LBS), and the respondent says it is expected that the draft LBS will be finally adopted by the Shire in 2010. The goals of the draft LBS are to retain all existing natural areas, to protect at least 10% of natural areas by a conservation reserve, zone or covenant, and to manage natural areas.
The draft LBS focuses on Local Natural Areas (LNAs), which are areas of bushland, forest, water courses, wetlands and granite outcrops that are not currently protected in the public conservation estate or included within State Forest or water catchment areas. The draft LBS states, at cl 1.2, that 'the greatest threat to biodiversity in the Shire is from direct clearing for development, especially rural residential type subdivision.'
Section 2 of the draft LBS sets out the proposed vision for biodiversity conservation as follows:
In 2050 the Shire will have retained at least 21,000 ha of the 22,465 ha of Local Natural Areas and protected at least 3230 ha within these LNAs.
Clause 1.5 of the draft LBS states that 22,421 hectares in the Shire are classified as LNAs. Clause 3.3 of the draft LBS categorises native vegetation as one of four condition ratings: 'very good', 'good', 'degraded', and 'very degraded'. Figure 7 and Table 19 of the draft LBS identify the site as possessing 'good' quality vegetation.
Figure 9 of the draft LBS identifies the site as providing a local ecological linkage. Clause 3.4 of the draft LBS states:
Ecological linkages of regional and local significance have been identified throughout the Shire by the Perth Biodiversity Project to help improve an understanding of the importance of connectivity between remaining LNA's … these linkages are a series of Local Natural Areas (continuous and noncontinuous) that connect to larger natural areas. Local Natural Areas form stepping stones and allow the movement of species, seeds and other genetic material across the landscape.

Issues

The issues arising in this matter identified by the respondent and the applicants can be summarised as follows:
1)whether the proposed subdivision is consistent with the current Development Plan;
2) whether the proposed subdivision will have an impact on remnant vegetation on the site and on the function of the site as a wildlife and a biodiversity corridor;
3)whether the impact of the proposed subdivision on remnant vegetation and the function of the site as a wildlife and biodiversity corridor is consistent with:
(a)the draft local biodiversity strategy;
(b)the objectives of the Rural Residential zone under TPS 6; and
(c)the aims for Rural Living Precincts under the LPS;
4)whether the proposed subdivision will have an impact on declared rare and priority flora which may be present on the site;
5)whether the approval of the proposed subdivision would set an undesirable precedent for the subdivision of other lots zoned Rural Residential; and
6)whether it is appropriate to use conservation covenants as a conditioning of subdivision approval to protect remnant vegetation on the site.

Discussion

Issue 1: Whether the proposed subdivision is consistent with the current Development Plan for the land

Clause 5.8.1 of TPS 6 requires that subdivision of land in the Rural Residential zone 'shall be generally in accordance with a[n] Outline Development Plan … or any subsequent variation approved by the Council and the Western Australian Planning Commission'. The current Development Plan, adopted in 2000 under TPS 5, shows the site as a single lot of 14 hectares. It is now proposed the site be subdivided into six lots of between 2.1 hectares and 2.8 hectares.
The respondent said the proposed subdivision was a 'significant departure' from the Development Plan. Ms Catherine Meaghan, a planner called as a witness for the respondent, said the Development Plan showed Lot 5 subdivided into 22 lots. The subdivision would add five more, an increase of 22%. Ms Meaghan said a variation of 5% 10% might be considered, but the proposal required too liberal an interpretation of the term 'generally'. The subdivision would therefore not be consistent with the Development Plan. The Tribunal noted that the provisions on the Development Plan refer to an average lot size of 4 hectares. The subdivision would result in the average lot size changing from about 4.1 hectares to about 3.3 hectares, which, it is considered, would have an influence on the character of the subdivision.
Mr Michael Taylforth, a planner called by the applicants, said the word 'generally' implies flexibility. Mr Taylforth said the test should not simply be the number of lots. The proposed subdivision should be considered on its merits, given the context of the site and surrounding area and the objectives of the LPS and TPS 6. He said that creating five additional lots that meet the broad environmental objectives of the original Development Plan would not be a major departure from the intent of that plan. In the opinion of Mr Taylforth, the proposed subdivision was a minor variation to the Development Plan, and therefore generally in accordance with it.
The respondent's Section 24 bundle of documents included a copy of Amendment 68 to TPS 5, and its accompanying report, which amended TPS 5 to create the Lot 5 Rural Living zone which includes the site. The objective of Amendment 68, as set out in the report, was:
To provide for a variety of lot sizes in a Rural Living environment where the land form and existing natural vegetation is to be preserved and where there is an overriding requirement to conserve the natural environment.
The Tribunal does not agree with the applicants that the lot layout of the Development Plan is to be considered of minor significance, compared to the environmental objectives for the zone. The subdivision layout is significant in establishing the character of the area and, as discussed below, does have an impact on remnant vegetation. To have six lots where there is one shown on the Development Plan is considered by the Tribunal to be beyond what might be argued to be a minor variation. The Tribunal is of the view that the additional lots will result in a subdivision layout not generally in accordance with the Development Plan.
The applicants have, however, submitted that there are planning and environmental grounds to support the proposed variation to the Development Plan. These are addressed in the issues to follow.

Issue 2: Whether the proposed subdivision will have an impact on the remnant vegetation on the site and on the function of the site as a wildlife and biodiversity corridor

Impact on remnant vegetation

A flora assessment of the site, conducted by Ms Kylie Del Fante, an environmental scientist and botanist called by the applicants, determined that the proposed building envelopes were located in the most disturbed area of each lot. Under examination at the hearing, Ms Del Fante said that her assessment was based on instruction that there was to be six lots. Ms Danielle Matthews, an environmental planner called by the respondent, noted that portions of the proposed building envelopes were not within degraded areas, so some clearing of remnant vegetation would be required to facilitate development.
These two experts and Ms Teresa Gepp, an environmental scientist called by the applicants, agreed that rural residential development generally results in the decline of bushland over time. This was because of clearing for bushfire protection, the keeping of domestic animals, planting of nonindigenous vegetation, the spread of weeds from cleared and cultivated areas, and the introduction of dieback contaminated soil. This decline was generally known as the 'edge effect' where the impact of rural residential development spread from the building envelope and accessways into the remnant vegetation. These experts agreed that the impact from rural residential development might be mitigated by active management.
It was a submission of the applicants that subdivision conditions that required bushland management, particularly the use of conservation covenants, would ensure the proposed subdivision would have no undue impact on the remnant vegetation. The appropriateness of conservation covenants imposed as a condition of subdivision as a means of land use management, in the circumstances of the proposed subdivision, isִdiscussed further below at issue 6.

Impact of the proposed subdivision on the function of the site as a wildlife and a biodiversity corridor

The three environmental experts agreed that the term 'linkage' is now preferred to the term 'corridor', previously in common usage, to more accurately reflect the purpose of the vegetation. The vegetation need not be continuous to accommodate large mammals, but can be continuous or non-continuous to provide an ecological linkage for all elements of biodiversity. Clause 3.4 of the draft LBS identified LNAs that connect to larger natural areas as 'stepping stones', which include all types of vegetation and its different functions as an ecosystem, which includes pollen transfer, insects and habitats for different species of birds.
The experts agreed that the proposed subdivision would not substantially affect the function of the ecological linkages in the locality, notwithstanding there would be clearing for firebreaks, access roads and the building envelopes on the lots. This was because of the actual function of an ecological linkage and the extensive Bush Forever site adjoining to the east, which, it was understood, was to become protected under a conservation covenant with the National Trust Western Australia.
The Tribunal concluded that, if the preservation of the wildlife and biodiversity linkage was the only test for determining this matter, then this subdivision might be allowed. There are, however, other issues to be considered, and all issues together will be determinative of this matter.

Issue 3: Whether the impact of the proposed subdivision on remnant vegetation and on the function of the site as a biodiversity linkage would be consistent with:

(a) the draft Local Biodiversity Strategy;

(b) the objectives of the Rural Residential zone under TPS 6; and

(c) the aims for Rural Living Precincts in the Local Rural Strategy.

(a) draft Local Biodiversity Strategy

In the draft LBS, the Shire is reported to have remaining 39,370 hectares (32%) of the original extent of pre-European vegetation. Of this vegetated area, 16,906 hectares is reported as being in government reserves, and the draft LBS is directed to the 22,425 hectares of vegetation on private land and the local government reserves. Ms Gepp, in her witness statement, restated that the draft LBS set, as a target, the retention of at least 21,000 hectares of the remaining 22,465 hectares of local natural areas by 2050. She considered the vegetation on the site to only be of local significance because more than 30% of preEuropean vegetation remains.

The draft LBS identifies the vegetation of the site as being of the Mogumber Complex South, which is said to be 'at risk'. The Mogumber Complex South vegetation is categorised as regionally significant, because less than 10% of the preEuropean extent is currently protected within conservation reserves in Western Australia.
In the draft LBS, the site has not been identified as an 'indicative high conservation value area', because it is zoned Rural Residential. This means the site has not been identified as an option for 'protection' by means of a conservation reservation, zone or covenant. The vegetation the site has, however, has been identified for retention as a LNA in good condition.
Ms Matthews said the draft LBS had been used as a basis for decisionmaking by the Shire and the Commission. It was the respondent's submission that the draft LBS is a seriously-entertained proposal because of the likelihood that it will finally be adapted by the Shire in the next few months.
Ms Matthews highlighted that, at cl 1.3.2 of the draft LBS, a key issue related to biodiversity conservation in the Shire is the reconsideration of the amount of future rural residential subdivision, as this type of development does not ensure the protection of ecologically viable natural areas and is considered incompatible with the retention or protection of LNAs.
It was common ground between the environmental experts that the draft LBS was a strategy concerned with identifying and categorising vegetation types and for addressing the protection, retention, and management of vegetation. The two planning experts agreed that the draft LBS was not a planning strategy for determining development and subdivision applications. The draft LBS, when adopted, should be integrated into a revised local planning strategy and, if required, be a consideration in any amendment to the provisions of TPS 6. The Tribunal agreed with this view of the draft LBS.
The proposed subdivision would result in a loss of some remnant vegetation, as discussed above. The loss of any of the LNA vegetation would be inconsistent with the goal in the draft LBS of 'retaining all existing natural areas'. The Tribunal is of the view that the draft LBS, while not determinative of the matter, is a consideration when assessing the subdivision because of the stage the draft LBS has reached prior to final adoption.
In respect of issue 3(a), the proposed subdivision is inconsistent with the draft LBS. While this inconsistency is a consideration, it is also necessary for the Tribunal to assess the proposal in light of the relevant provisions of TPS 6 and the LBS. These considerations are discussed below.

(b) The objectives of the Rural Residential zone under TPS 6.

The objectives for the Rural Residential zone under TPS 6 are set out at cl 4.2.6 and are:
To designate areas where rural residential developments can be accommodated without detriment to the environment or the rural character of the area.
To meet the demand for a rural lifestyle on small lots, generally in excess of 1 hectare.
To maintain and enhance the rural character and amenity of the locality.
In her witness statement, Ms Meaghan said that the Development Plan and the subdivision that followed was consistent with the aims and objectives subsequently adapted for TPS 6 and the Rural Residential zone. In her opinion, the existing subdivision layout of the Development Plan meets the demand for rural lifestyle, maintains and enhances rural character, and accommodates rural residential development without detriment to the environment.
Ms Meaghan said the proposed subdivision fundamentally conflicted with the first of the three objectives listed for the Rural Residential zone. This was because it would result in the loss of remnant vegetation which had been earmarked as significant and worthy of preservation since the subdivision of the site was first contemplated under Amendment 68 and identified again in the draft LBS.
Mr Taylforth said that the proposed subdivision would be consistent with the objectives for the Rural Residential zone under TPS 6. He referred to areas shown as 'remnant vegetation' on the Development Plan and emphasised that building envelopes would be located on what he assumed were areas that had been parkland cleared or subject to edge effects. Subdivision with appropriate management conditions would, in his opinion, ensure protection of relatively undisturbed areas of remnant vegetation. That is, subdivision could occur 'without a detriment to the environment'.
Mr Taylforth said the proposed lot sizes would be consistent with the minimum lot size of 'generally in excess of 1 hectare', at cl 4.2.6 of TPS 6, and with the pattern of 2 hectare lots of other existing rural residential developments in the wider locality.
The Tribunal notes that TPS 6, and TPS 5 before it, required that, when a particular Rural Residential zone was created, an Outline Development Plan had to be prepared before subdivision could occur, to ensure the objectives for the Rural Residential zone were achieved. For Lot 5, this translated into larger lots being created at the eastern edge and in the south, including the site, for the preservation of particular areas of remnant vegetation.
There was no evidence before the Tribunal that there had been any change in the character of Lot 5 since the adoption of the Development Plan, other than the creation of the lots identified in the Development Plan. There might well have been alternative subdivision designs possible when the Development Plan was drawn up, but the Development Plan was the design adopted by the Shire and the Commission to address the objectives of the zone and to establish the desired character of the area.
The applicants have argued that the proposed subdivision also meets the objectives for the Rural Residential zone under TPS 6. The Tribunal does not consider, however, that it would be orderly and proper planning to use the subdivision process to adopt an alternative design for this Rural Residential zone that is not 'generally in accordance' with the adopted Development Plan. The Tribunal considers that the proposed subdivision would result in a different character and amenity being established because of the increase in building envelopes, accessways, houses, outbuildings and edge impacts on vegetation.
The Tribunal has formed the view that the proposed subdivision cannot be accommodated without detriment to the existing rural character and amenity, and therefore would not be consistent with the objectives for the Rural Residential zone under TPS 6.

(c) The aims for Rural Living Precincts under the LPS

The former Lot 5 and the subdivision resulting from the Development Plan fall within a 'Rural Living Precinct' under the LPS. Clause 8.5.2 of the LPS lists the aims for the Rural Living Precinct, which include:
To provide a safe and pleasant rural living environment in a cohesive development pattern;
…
To provide for a range of lot sizes to match land form capabilities;
To provide for biodiversity corridors in association with conservation of natural vegetation and watercourses;
…
The Development Plan was drawn in 2000. The LPS was prepared for the period 2001 2015. Ms Meaghan's opinion was that the subdivision shown on the Development Plan is consistent with the aims for the LPS, with the lot sizes responding appropriately to the landforms and environmental characteristics. Ms Meaghan considered the subdivision on the Development Plan struck an appropriate balance between the planning and environmental objectives for the zone.
Mr Taylforth was of the view that the proposed subdivision for the site creates lots within the lot size range for rural residential in the locality and would restrict vegetation clearing to the building envelopes. The remnant vegetation will maintain a biodiversity corridor. It was his opinion that the proposed subdivision was consistent with the Rural Living Precinct of the LPS.
The Tribunal notes that the Development Plan has lot sizes based on vegetation and not landform, and the biodiversity corridor would be maintained. If the LPS were the only reference for weighing the merit of subdivision proposals in the Rural Residential zone, then it is not immediately apparent that the proposed subdivision would be in conflict with those aims. The LPS is not, however, the only reference, and it is necessary that the Tribunal have regard to the proposed subdivision in light of the other planning instruments.

Issue 4: Whether the proposed subdivision would have an impact on declared rare and priority flora which may be present on the site

The only flora assessment, conducted by Ms Del Fante, was not a comprehensive survey of the whole site. Ms Del Fante was presented with a plan of the proposed subdivision and was instructed to identify within the selected building envelopes and accessways, flora species, including any declared rare flora and priority flora. It was common ground that Priority 3 flora was found in the proposed building envelopes. The particular plants found were classed as Priority 3 because the populations were considered to be widespread on the site and the plant was not under threat of elimination because of the subdivision.
The flora assessment was made during November in 2009, a month when Ms Del Fante understood 30% of the declared rare flora in the area flowered. The three experts agreed that if the proposed subdivision were to be revised, a comprehensive flora and vegetation survey should be undertaken during spring.
The Tribunal has formed the view that the impact on declared rare and priority species on the building envelopes and accessways is not, of itself, a reason why subdivision should be refused. The experts did agree, however, that the subdivision would have edge effects, as discussed above under issue 2, and if the subdivision were to be allowed, there would need to be appropriate conditions to prevent any edge effects impacting on the Priority 3 flora already identified for the site, and on any other declared rare species or priority flora that might be identified by further flora studies. Conditions of subdivision proposed by the applicants to address the impact of subdivision on the vegetation are discussed below.

Issue 5: Whether the proposed subdivision would set an undesirable precedent for the subdivision of other lots zoned Rural Residential

The Tribunal asked the parties if there was any way to distinguish the site from the six other lots zoned Rural Residential on the Development Plan, which, at between 4.4 hectares and 6.6 hectares, are of sufficient size to also be subdivided into lots of at least 2.1 hectares. Both Mr Taylforth and Ms Meaghan agreed that the six other Rural Residential lots and the site exhibited similar topographical and vegetation characteristics.
Ms Meaghan said the subdivision would create an undesirable precedent for the subdivision of these other larger lots at the eastern side of the Rural Residential zone. Amendment 68, and the subsequent Development Plan, was based on protection of remnant vegetation. To subdivide the site and the six other lots, which are larger than 4 hectares, would set an undesirable precedent and compromise this planning objective.
Mr Taylforth's view was that the proposed subdivision responds to the specific environmental conditions of the site. Any future application to subdivide other lots would need to be considered on its merits, particularly in relation to environmental protection. If remnant vegetation can be protected so that the biodiversity linkages remain, then a subdivision application should be afforded some merit. The proposed subdivision, with management controls in place, such as building envelopes and restrictive covenants, would not be an undesirable precedent.
It was the applicants' submission that TPS 6 provides for subdivision of Rural Residential lots into 2 hectares and this has occurred elsewhere in the locality on Rural Residential zoned land. The proposed lots would be consistent with the lot sizes in other rural residential subdivisions. The applicants also said that any precedent from the subdivision would not be undesirable because of positive planning outcomes. The proposed subdivision would protect vegetation, where TPS 6 did not now provide sufficient protection.
The Tribunal is of the view that the mere fact that other Rural Residential zones in the locality include 2 hectare lots is not, of itself, a reason why the subdivision of the site to 2 hectares should be allowed. TPS 6, and its predecessor TPS 5, just did not simply set a 2 hectare minimum for Rural Residential zoned lots to facilitate subdivision to that size as a matter of course. TPS 5 initially, and then TPS 6, required that, prior to subdivision, there be prepared for each Rural Residential zone an Outline Development Plan to achieve the relevant zoning objectives and to accommodate the characteristics particular to the land. In this instance, Amendment 68 was accompanied by a report which identified objectives to be satisfied in preparing the Development Plan. The Development Plan was then prepared and endorsed by the Shire and the respondent. The Tribunal is of the view that to set aside that endorsed pattern of subdivision without there first being adopted a revision to the Development Plan would not be consistent with orderly and proper planning.
The Tribunal has concluded that subdivision as proposed in the absence of a revision to the Development Plan would be objectionable in planning terms, because it would be inconsistent with the objectives for the zone and TPS 6. The photographic and topographic evidence provided by the parties illustrated that the site exhibited similar characteristics to the six neighbouring lots, with sufficient area to support subdivision into 2 hectare lots. In this respect, the Tribunal has formed the view that there would be more than a mere chance of possibility that there may be later undistinguishable applications. The Tribunal has found, therefore, that the proposed subdivision would set an undesirable precedent for the subdivision of the nearby larger Rural Residential lots.
The applicants have submitted that, by imposing appropriate conditions, most significantly conservation covenants, the proposed subdivision could result in the planning benefit of increasing the protection afforded to remnant vegetation, and therefore, any precedent would not be undesirable.
The use of conservation covenants as conditions of subdivision approval in this instance is the next issue for discussion.

Issue 6: Whether it is appropriate to use conservation covenants as a condition of subdivision approval for the site.

The applicants referred to the uses listed in the zoning table of TPS 6 that might be allowed in the Rural Residential zone, with the exercise of discretion, by the Shire. These include bed and breakfast, home business, cottage industry, plant nursery, rural pursuit and stable. A rural pursuit is defined in TPS 6 to include the 'rearing or agistment of animals' and 'the growing of trees, shrubs and flowers for replanting in domestic, commercial or industrial gardens'. The applicants said that these uses were inconsistent with the objective of preserving vegetation under TPS 6 and the LPS.
Mr Taylforth said subdivision approval with conservation covenants as a condition of approval would be a good planning outcome for protection of the vegetation on the site. The covenants could include provisions for controlling such items as keeping animals, fencing, land uses, management of weeds, the importation of soils and the planting of nonindigenous vegetation. The applicants' submission was that conservation covenants were not an uncommon condition of subdivision, and referred to the respondent's Planning Bulletin No 91, which discussed the use of such covenants.
Mr Taylforth considered it appropriate that the subdivision condition require that a conservation covenant in favour of the Shire be lodged on all titles. The Shire was the appropriate authority, because the purpose of the covenant was to achieve the planning objectives for the site set out in the Shire's TPS 6. The applicants said the Shire should entertain entering into the covenants to achieve what were its planning objectives.
Ms Matthews, Ms Del Fante and Ms Gepp agreed that management controls, such as might be provided by a conservation covenant, were required if there was to be control of the impact of the subdivision on the remnant vegetation. The opinion of the three environmental experts was that neither the National Trust of Western Australia nor the Department of Environment and Conservation, two of the relevant bodies who normally are parties to a conservation covenant, would enter into an agreement to covenant for lots as small as 2 hectares. It was the respondent's further submission that there was no evidence that the Shire had the expertise, resources or willingness to be party to, or to oversee and manage, what might become a large number of conservation covenants on 2 hectare lots in Rural Residential subdivisions.
Ms Meaghan said that management controls should be included in a town planning scheme at the rezoning stage. This was because a subdivision approval required conditions to be satisfied before a deposited plan could be endorsed. A subdivision approval did not provide for ongoing management once lots were created and sold.
The Tribunal has formed the view that approving subdivision with a condition requiring that conservation covenants be agreed for each lot is not an appropriate course in the circumstances of this case. The Tribunal is concerned that no suitable authority will be found to be party to a conservation covenant for lots of about 2 hectares. The Tribunal is of the view that it would not be consistent with orderly and proper planning to approve a subdivision with a condition that requires the agreement of a third party in the absence of evidence that the agreement of the third party can be obtained and just what controls any covenants would include. This is considered to be of particular significance in circumstances where approval to subdivide should not be granted unless it is known that any condition of subdivision requiring a conservation covenant can be satisfied.

Conclusion

Issue 1 was whether the proposed subdivision would be consistent with the current Development Plan for the site. TPS 6 requires that subdivision shall be 'generally in accordance' with the Development Plan.
The applicants said the word 'generally' implies flexibility, and the test should not simply be the number of lots. The five additional lots would be a minor variation because, with appropriate conditions, the lots would meet the broad environmental objectives of the Development Plan.
The Tribunal does not agree that the lot layout shown on the Development Plan is to be attributed only minor significance relative to the environmental objectives of the Development Plan. The Tribunal considers the proposed subdivision of one lot into six lots is not 'generally in accordance' with the subdivision layout shown on the Development Plan as required by TPS 6.
Issue 2 was whether the proposed subdivision will have an impact on the remnant vegetation on the site and on the function of the site as a wildlife and biodiversity corridor. A concern common to the environmental experts was what was called the 'edge effect', where the impact of rural residential development and land use spreads from the building envelopes and accessways and has an impact on the remnant vegetation.
The applicants submitted that, with appropriate conditions imposed, particularly the use of conservation covenants, the proposed lots could be managed and would have no undue impact on the remnant vegetation. As discussed at issue 6 below, the Tribunal has not been convinced that such conditions could be satisfied in this instance.

Further in relation to issue 2, the Tribunal has found that, on the evidence of the environmental experts, the proposed subdivision would not substantially affect the function of the site as a wildlife and biodiversity corridor.
Issue 3 was concerned with the impact of the proposed subdivision on the remnant vegetation and on the function of the site as a biodiversity linkage, and whether, because of this impact, the subdivision would be consistent with particular planning instruments.
In respect of the draft LBS, it was common ground between the experts that the draft LBS was not a planning strategy for determining subdivision applications but was a strategy concerned with and identifying, protecting, retaining and managing remnant vegetation. The draft LBS, when adopted, should be integrated into a revised LPS and, if required, amendments made to the provisions of TPS 6.
The Tribunal found that the draft LBS is not determinative but is a consideration, and the proposed subdivision would be inconsistent with it because it would result in a loss of some remnant vegetation. The Tribunal further found, however, that the subdivision should not be refused just because of this inconsistency. It is also necessary for the Tribunal to assess the proposal in light of the relevant provisions of TPS 6 and the draft LBS.
In respect of the objectives of the Rural Residential zone under TPS 6, these were directed to subdivision not being to the detriment of the environment, the rural character and the amenity of the area.
The Tribunal found that, because of the impact the creation of the five additional lots would have on the remnant vegetation, the subdivision would not be consistent with the objectives for the Rural Residential zone under TPS 6.
The third consideration under issue 3 was whether, because of the impact on the remnant vegetation, the proposed subdivision would be consistent with the aims for Rural Living Precincts under the LPS. These aims include providing for a range of lot sizes to match landform capabilities and providing for biodiversity corridors in association with conservation of natural vegetation.
The lot sizes in the Development Plan were determined by vegetation quality, not landform, and it has been found that the subdivision would not have an adverse impact on the function of the site as a biodiversity linkage. The Tribunal has formed the view that, if the aims of Rural Living Precincts in the LPS were the only reference for weighing the merit of the subdivision proposal, then the application might be viewed as not in conflict with those aims.
Issue 4 was whether the proposed subdivision would have an impact on declared rare and priority flora which may be present on the site. Priority 3 flora was found on the proposed building envelopes, but was also widespread throughout the site. The Tribunal found, from the evidence of the environmental experts, that the subdivision would have edge effects affecting the remnant vegetation and the Priority flora.
Issue 5 was whether the proposed subdivision would set an undesirable precedent for the subdivision of other lots zoned Rural Residential. The Development Plan includes other lots of a size sufficient to be subdivided into lots of about 2 hectares, similar to those of the proposed subdivision.
The Tribunal has determined that, in the absence of revision of the Development Plan, the proposed subdivision would be objectionable. This is because the rezoning to Rural Residential, and the Development Plan subsequently prepared for the subdivision, was based on creating larger rural residential lots on the eastern and southern side of Lot 5 to protect remnant vegetation. The proposed subdivision would increase the number of lots and have a consequential impact on that vegetation. In addition, the larger lots and the site all exhibit similar topographical and vegetation characteristics. In this respect, the Tribunal has formed the view that there would be more than a mere chance of possibility that there may be later undistinguishable applications.
The Tribunal has found that the proposed subdivision would set an undesirable precedent for the subdivision of other Rural Residential lots.
Issue 6 was whether it is appropriate to impose conservation covenants as a condition of subdivision approval for the site.
The applicants referred to the uses listed in the zoning table of TPS 6 that might be allowed with the exercise of discretion which might have an impact inconsistent with the TPS 6 and the LPS objectives of preserving remnant vegetation on the site. It was the applicants' submission that vegetation on the site would be better protected from incompatible uses if subdivision were allowed, subject to a condition requiring a conservation covenant in favour of the Shire. The applicants said that subdivision approval with such a condition would overcome the concerns about impact on the vegetation. In addition, because of what was said to be a positive planning outcome, any precedent set by approving the subdivision would not be undesirable.
There was no evidence before the Tribunal that any of the relevant bodies who normally are parties to a conservation covenant would enter into an agreement to covenant for rural residential lots as small as 2 hectares.
The Tribunal is of the view that it would not be consistent with orderly and proper planning to approve a subdivision with a condition that it requires the agreement of a third party in the absence of evidence that the agreement of the third party can be obtained. This is particularly significant when, without the condition requiring the creation of a conservation covenant being satisfied, the subdivision should not proceed.
The Tribunal has decided to refuse the application for review and affirm the refusal of the proposed subdivision. This is because of, in summary, the inconsistency of the proposed subdivision with the Development Plan, the absence of an approved variation to the Development Plan as required under TPS 6, the impact the proposed subdivision will have on the remnant vegetation in conflict with the objectives of TPS 6 and the LPS, the undesirable precedent an approval would have in this Rural Residential zone, and the uncertainty there is in the capacity for subdivision conditions to be satisfied, particularly in respect of conservation covenants that would be critical to ensuring that appropriate land use controls and management are in place for any new lots of the size proposed.

Orders

1.The application for review is dismissed.
2.The refusal of the application for approval to subdivide Lot 815 Blue Squill Drive, Lower Chittering, is affirmed.

I certify that this and the preceding [95] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J JORDAN, MEMBER