Bojanich and Western Australian Planning Commission

[2006] WASAT 315

BOJANICH and WESTERN AUSTRALIAN PLANNING COMMISSION [2006] WASAT 315

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2006] WASAT 315
Act:	PLANNING AND DEVELOPMENT ACT 2005 (WA)
Case No:	DR:115/2006	Heard:	4 AND 5 OCTOBER 2006
Coram:	MR D R PARRY (SENIOR MEMBER)	Delivered:	5/10/06
No of pages:	22	Judgment Part:	1 of 1
Result:	Application for review dismissed Decision of respondent to refuse subdivision approval affirmed
Category:	B
PDF Version

Parties:	SJ & EK BOJANICH WESTERN AUSTRALIAN PLANNING COMMISSION
Catchwords:	Town planning ­ Subdivision application ­ Rural­residential subdivision comprising 14 lots between 2.0 and 2.6 ha and two lots of 4.1 and 4.2 ha ­ General farming zone ­ Objectives of zone to accommodate agricultural, horticultural and equestrian activities and to maintain and enhance rural character and amenity ­ Land has limited potential for uses contemplated by zoning because water allocation restricted to 10% of area ­ Draft land use and water management strategy identifies site as possible rural living which could include special rural with lot sizes of 1.0 and 4.0 hectares ­ Draft strategy is seriously­entertained planning proposal ­ Consideration of appropriate weight ­ Report on public exhibition not yet presented to Commission ­ Position of Commission and approval and endorsement authorities not known ­ Part of land within groundwater Priority 2 protection area ­ Subdivision contrary to orderly and proper planning ­ Materially inconsistent with current strategic and statutory planning framework ­ Draft strategy cannot be given sufficient weight to allow approval ­ Subdivision likely to cause detrimental effects on groundwater resource
Legislation:	City of Wanneroo District Planning Scheme No 2, cl 3.16.1, cl 3.16.2, cl 3.18.1 Interpretation Act 1984 (WA), s 37 Metropolitan Region Scheme Metropolitan Water Supply, Sewerage, and Drainage Act 1909 (WA) Planning and Development (Consequential and Transitional Provisions) Act 2005 (WA), s 17 Planning and Development Act 2005 (WA), s 251(1) Town Planning and Development Act 1928 (WA), s 20(5)
Case References:	Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433 Maher & Anor and Western Australian Planning Commission [2006] WASAT 129 Strawbridge & Anor and Western Australian Planning Commission [2006] WASAT 96 WR Carpenter Properties Pty Ltd and Western Australian Planning Commission [2006] WASAT 200 Nil

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : BOJANICH and WESTERN AUSTRALIAN PLANNING COMMISSION [2006] WASAT 315 MEMBER : MR D R PARRY (SENIOR MEMBER) HEARD : 4 AND 5 OCTOBER 2006 DELIVERED : Edited reasons delivered extemporaneously on 5 OCTOBER 2006 FILE NO/S : DR 115 of 2006 BETWEEN : SJ & EK BOJANICH

Applicants

AND

WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Town planning ­ Subdivision application ­ Rural­residential subdivision comprising 14 lots between 2.0 and 2.6 ha and two lots of 4.1 and 4.2 ha ­ General farming zone ­ Objectives of zone to accommodate agricultural, horticultural and equestrian activities and to maintain and enhance rural character and amenity ­ Land has limited potential for uses contemplated by zoning because water allocation restricted to 10% of area ­ Draft land use and water management strategy identifies site as possible rural living which could include special rural with lot sizes of 1.0 and 4.0 hectares ­ Draft strategy is seriously­entertained planning proposal ­ Consideration of appropriate weight ­

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Report on public exhibition not yet presented to Commission ­ Position of Commission and approval and endorsement authorities not known ­ Part of land within groundwater Priority 2 protection area ­ Subdivision contrary to orderly and proper planning ­ Materially inconsistent with current strategic and statutory planning framework ­ Draft strategy cannot be given sufficient weight to allow approval ­ Subdivision likely to cause detrimental effects on groundwater resource

Legislation:

City of Wanneroo District Planning Scheme No 2, cl 3.16.1, cl 3.16.2, cl 3.18.1

Interpretation Act 1984 (WA), s 37
Metropolitan Region Scheme
Metropolitan Water Supply, Sewerage, and Drainage Act 1909 (WA)
Planning and Development (Consequential and Transitional Provisions) Act 2005 (WA), s 17
Planning and Development Act 2005 (WA), s 251(1)
Town Planning and Development Act 1928 (WA), s 20(5)

Result:

Application for review dismissed

Decision of respondent to refuse subdivision approval affirmed

Category: B

Representation:

Counsel:

Applicants : Mr PD Webb (Acting as Agent)
Respondent : Ms CA Ide with Ms M Patterson

Solicitors:

Applicants : Peter D Webb & Associates
Respondent : State Solicitor's Office

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

Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433
Maher & Anor and Western Australian Planning Commission [2006] WASAT 129
Strawbridge & Anor and Western Australian Planning Commission [2006] WASAT 96
WR Carpenter Properties Pty Ltd and Western Australian Planning Commission [2006] WASAT 200
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Case(s) also cited:

Nil

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REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 Mr and Mrs Bojanich applied to subdivide their land in East Wanneroo into 14 lots of between 2.0 ha and 2.6 ha, a lot of 4.1 ha and a lot of 4.2 ha. The land is zoned "General Farming" under the local planning scheme. The objectives of the zone are to accommodate agricultural, horticultural and equestrian activities and to maintain and enhance the rural character and amenity of the area. However, as the available water allocation would only allow 10% of the land to be irrigated, there is limited potential for use consistent with the zoning. Part of the site is identified as Priority 2 groundwater source protection area.

2 Following the hearing, the Tribunal gave an oral decision in which it dismissed the application. The Tribunal determined that the subdivision would be contrary to orderly and proper planning in two respects. First, it is materially inconsistent with the current applicable strategic and statutory planning framework. Moreover, although a draft land use and water management strategy, which is a seriously-entertained planning proposal, identified the land as possible rural living, which could include special rural with lot sizes of 1.0 to 4.0 ha, the draft strategy cannot be given sufficient weight, as at the date of the Tribunal's decision, to allow the application to be approved. Second, the subdivision is likely to cause detrimental effects on the groundwater resource, as the proposed density in the groundwater source protection area is double that contemplated in a State planning policy.

3 The Tribunal considered that urban planning and environmental factors require that the strategic planning process for East Wanneroo, which has proceeded very slowly to date, must be finalised quickly.

4 The Tribunal's reasons, taken from the transcript and edited in minor respects to aid clarity, were as follows.

Site

5 These proceedings involve an application brought by Mr and Mrs Bojanich (applicants) 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 (Commission) to refuse to approve a plan of subdivision. The land the subject of the proposed subdivision is No 360 (Lot 2316) Neaves Road, Mariginiup (site).

(Page 5)

6 The site has a frontage to Neaves Road of approximately 401 metres out of a total width of 841 metres, because Neaves Road changes alignment whereas the northern boundary of the site continues along the same alignment. The result is that the western part of the site is separated from Neaves Road by a triangular-shaped property. At approximately the point where Neaves Road changes alignment, the site is divided into two by a narrow strip of land owned by the Water Corporation. The site has a total area of approximately 39.98 hectares and has been substantially cleared for grazing with the principal exception of a narrow strip of trees and scrub along the Neaves Road frontage.

7 The western part of the site is zoned "Rural" and the eastern part of the site is zoned "Rural - Water Protection" under the Metropolitan Region Scheme (MRS).

8 The site is located on the Gnangara Water Mound which is a major shallow groundwater resource for Perth's public drinking water requirements, as well as for the water needs of agricultural and commercial development. The reason that the eastern part of the site is zoned "Rural - Water Protection" under the MRS is that it is located within the Gnangara Mound Underground Pollution Control Area under the Metropolitan Water Supply, Sewerage, and Drainage Act 1909 (WA) by-laws and within the area subject to State Planning Policy 2.2 - Gnangara Groundwater Protection (SPP 2.2). The main purpose of SPP 2.2 is to "prevent, control or manage development and land use changes in the policy area that are likely to cause detrimental effects to the underground recourse". SPP 2.2 establishes a priority classification system for all public drinking water source areas "in order to restrict or manage activities that may cause groundwater pollution or significant contamination". The eastern part of the site is classified as a Priority 2 source protection area under SPP 2.2.

9 The site is zoned "General Rural" under the City of Wanneroo District Planning Scheme No 2 (DPS 2 or Scheme).

Locality

10 Across Neaves Road from the site is a large area of State Forest. There is also a large area of State Forest approximately 500 metres to the south-east of the site.

11 To the south and west of the site are large rural properties zoned "Rural" under the MRS and "General Rural" under DPS 2.

(Page 6)

12 Adjoining the site to the east are two rural-residential subdivisions comprising a total of 90 lots with areas of 2.0 hectares or greater. Unlike the site, the land the subject of these subdivisions is zoned "Special Rural" under DPS 2, which cl 3.18.1 of the Scheme states is "intended to accommodate rural-residential retreats on lots generally ranging between one and four hectares in size".

13 There is another area of rural-residential subdivision on land zoned "Special Rural" under the Scheme approximately 500 to 600 metres to the west and south-west of the site.

14 Finally, in relation to the immediate locality, there are eight properties on Neaves Road to the north-west of the site, on the far side of the triangular-shaped property, which, although zoned "General Rural" under DPS 2, are essentially rural-residential lots of between 2.0 hectares and 3.0 hectares in area. A subdivision application to create the third and fourth lots to the north-west of the site was approved by the Tribunal on 13 April 2006: see Strawbridge & Anor and Western Australian Planning Commission [2006] WASAT 96. I will consider the Strawbridge decision later in these reasons.

Proposed subdivision

15 The subdivision application proposes 16 rural-residential lots serviced by a road off Neaves Road. Fourteen of the proposed lots would have areas of between 2.0 and 2.6 hectares. The two westernmost lots, which partly comprise a mapped wetland, would have areas of 4.1 hectares and 4.2 hectares.

16 The proposed road would enter the site from Neaves Road in the north, with a road reserve width of 16.0 metres, and turn to the west approximately halfway into the site, with a road reserve width of 14.2 metres, to the western boundary. In addition, a section of road culminating in a cul-de-sac would extend from the proposed road to service two or three lots in the south-eastern part of the site.

17 The proposed subdivision plan is Attachment A to these reasons.

18 The subdivision application was notified to the Department of Environment, Western Power, the City of Wanneroo (City) and the Water Corporation. The only objection received was from the City. The City requested the Commission to defer the application until the draft East Wanneroo Land Use and Water Management Strategy (draft strategy) has

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been advertised and adopted by the Commission. I will consider the draft strategy later in these reasons.

Consideration of proposed subdivision

19 The Tribunal considers that the subdivision application warrants refusal for each of two reasons.

20 First, the proposed subdivision is materially inconsistent with the current applicable strategic and statutory planning framework. The draft strategy cannot properly be given sufficient weight to allow the application to be approved, notwithstanding the current planning framework.

21 Second, on the evidence presented to the Tribunal, the proposed subdivision is likely to cause detrimental effects to the groundwater resource, contrary to SPP 2.2 and orderly and properly planning.

22 The Tribunal will address each of these determinative issues in turn.

Inconsistency with planning framework

23 Prior to its repeal with effect from 9 April 2006, s 20(5) of the Town Planning and Development Act 1928 (WA) (TPD Act) provided that the discretion of the Commission is relevantly not fettered by the provisions of a town planning scheme.

24 Although the application for review was made on 11 April 2006, the subdivision application was made and determined by the Commission well before the repeal of the TPD Act. The effect of s 17 of the Planning and Development (Consequential and Transitional Provisions) Act 2005 (WA) and s 37 of the Interpretation Act 1984 (WA), is that s 20(5) of the TPD Act continues to apply in relation to the determination of the review.

25 However, as the Tribunal held in WR Carpenter Properties Pty Ltd and Western Australian Planning Commission [2006] WASAT 200 at 113:

"Although the Commission (and the Tribunal on review) is not fettered in the exercise of planning discretion by the provisions of [the operative local planning scheme] and may depart from the provisions of policy controls in appropriate circumstances, it is generally contrary to orderly and proper planning to approve a subdivision which is materially inconsistent with the strategic and statutory planning framework."

(Page 8)

26 Clause 3.16.1 and cl 3.16.2 of DPS 2 state as follows:

"3.16.1 The objectives of the General Rural Zone are to:

(a) accommodate agricultural, horticultural and equestrian activities; and

(b) maintain and enhance the rural character and amenity of the areas designated for rural use and to protect their ground water and environmental values.


3.16.2 When considering applications for subdivision or for planning approval for development which relate to land which is within the General Rural Zone, Council shall have regard to the objectives set out in Clause 3.16.1 for the General Rural Zone, the contents of any Local Rural Strategy adopted by Council and the Commission and any other requirement for proper and orderly planning."

27 The proposed subdivision is not intended to and does not accommodate agricultural, horticultural or equestrian activities. As noted earlier, the subdivision involves 16 rural-residential lots, although the residents of the proposed lots might, subject to the availability of water, use their properties for agricultural, horticultural or equestrian purposes which are ancillary to domestic rural-residential use by, for example, keeping a horse or growing some fruit or vegetables. In this regard, the evidence of Mr John Connolly, the Program Manager of the Swan Avon Region of the Water and Rivers Commission, is that a licence is not required to use groundwater to irrigate up to 0.2 hectare on a rural-residential property, and that a licence might be granted to use groundwater to grow feed for a single horse over about 1.0 hectare.

28 Further, the Tribunal accepts the evidence of Mr Malcolm Logan, a senior planning officer of the Department for Planning and Infrastructure, that the proposed subdivision would not maintain or enhance the rural character and amenity of the areas designated for rural use. The areas designated for rural use are the areas zoned "General Rural" under DPS 2. As noted earlier, the areas zoned "General Rural" in the locality generally comprise large rural properties, with the exception of the eight properties to the north-west of the site.

(Page 9)

29 The proposal would fundamentally alter the rural character and amenity of the areas designated for rural use by replacing a large, open, rural property with 16 rural-residential lots and roads. As Mr Logan said, the rural-residential development which would follow subdivision approval is likely to be predominantly residential in character. This would "result in a change in the character of the area towards one that is more residential than the intended rural". In this regard, although the existing vegetation along Neaves Road could be conditioned to remain, rural-residential development on the site is likely to be apparent from Neaves Road across the triangular-shaped lot, from the proposed roads within the site which would form part of the public domain, and from adjoining rural properties to the south and west.

30 Furthermore, for reasons discussed later, the subdivision application would not, on the evidence presented to the Tribunal, protect the groundwater.

31 However, on the evidence of Dr Elizabeth Mattiske, a plant ecologist who gave evidence on behalf of the applicants, the subdivision is consistent with the objective of protecting environmental values, because the existing vegetation could be substantially retained, and the wetlands on the site are so degraded as no longer to warrant protection from a conservation perspective.

32 The predominant size of the proposed allotments is also significantly smaller than the size of allotments contemplated by the relevant strategic and statutory planning documents. The City's Interim Rural Strategy, while adopted only by the City and not by the Commission, states that the City will only support subdivision of rural zoned land south of Neaves Road where each lot has a minimum area of 4.0 hectares. Similarly, the Rural Smallholdings Policy adopted by the Town Planning Board of Western Australia and the Perth Metropolitan Region Planning Authority in 1977 and published in 1980, suggests minimum rural lot sizes of 4.0 hectares on the site. Although the Rural Smallholdings Policy is somewhat ancient in terms of urban development of Perth, it is identified as an element of the State Planning Framework in State Planning Policy 1 - State Planning Framework Policy (SPP 1), which was most recently gazetted on 3 February 2006. Clause 2.4 of SPP 1 states that the State Planning Framework provides a context for decision-making on land use and informs the Commission on those aspects of State level planning policy which are to be taken into account and given effect to in order to ensure integrated decision-making across all spheres of planning.

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33 It follows from the foregoing that the site has not been zoned for rural-residential development of the nature which would result from the proposed subdivision. Clause 5.3.1(iii) of State Planning Policy 2.5 - Agriculture and Rural Land Use Planning, and cl 4.1.1 of the Commission's Development Control Policy 3.4 - Subdivision of Rural Land each state that the Commission will only support subdivision for rural-residential where the land has been appropriately zoned. Although these policies cannot fetter the Commission's or the Tribunal's discretion, the "relevant consideration is why the 'policy' should not be applied; why the planning principles that find expression in the policy are not relevant to the particular application" (per Barker J in Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433 at [24]).

34 Mr PD Webb, a consultant town planner who both represented and gave evidence on behalf of the applicants, presented essentially three arguments as to why these policies should not be applied and generally as to why the subdivision application should be approved.

35 First, he contends that, in order to undertake any form of conventional intensive agriculture or horticulture on the site, there is a need to source groundwater in the absence of scheme water, whereas Mr Bojanich has been restricted to a water allocation licence for a maximum of 4.0 hectares. This area is far too small for the establishment and maintenance of a commercial vegetable garden on the poor quality soils of the site.

36 However, the Tribunal accepts the following evidence from Mr Logan:

"Whilst the subject land may not in itself be capable of supporting an economically viable agricultural enterprise, this is not a reason for allowing further subdivision. The creation of lots even smaller than the subject land will of course result in lots that are even less viable for the conduct of economic agricultural pursuits than the current lot might be. Improvements in agricultural viability are more likely to be effected through amalgamation of unviable rural agricultural lots than through further subdivision and fragmentation of the land."

37 Moreover, the site is apparently used for the grazing of camels.

(Page 11)

38 Finally, even if it is the case that the site is not viable for agricultural purposes at all, that does not, in the circumstances of this case, warrant the approval of the proposed subdivision, notwithstanding the strategic and statutory planning framework, although it might be a material consideration as to whether the site should be rezoned to "Special Rural".

39 The second argument presented by Mr Webb is that the use of fertilisers, pesticides, weedicides and similar chemicals required for commercial agricultural and horticultural activities might conflict with the amenity expectations of the residents of the rural-residential properties to the east.

40 However, Mr Logan noted that, as it is unlikely, given the limited availability of water, that the site could be used for intensive agricultural or horticultural activities, there is limited potential for conflict. Furthermore, the residents of the adjoining properties could not reasonably expect to be immune from the typical impacts of rural use of the site, given that the site is zoned "General Rural".

41 The final argument presented by Mr Webb is that the draft strategy is a seriously-entertained planning proposal which should be given sufficient weight to allow approval of the application.

42 The Foreword of the draft strategy, written by the Minister for Planning and Infrastructure, the Hon Alannah MacTiernan MLA, includes the following:

"The east Wanneroo community has raised many issues in relation to current water resource planning allocation and licensing and the lack of strategic land use planning for the area. In particular, many sites set aside for horticultural uses were unable to access water. Clearly, some new direction was needed.

This draft Strategy examines these issues and proposes solutions to the competing demands for groundwater, future land use and development, environmental protection and facilitates the continuation of a horticultural industry in Wanneroo."

43 The overview and purpose section of the draft strategy includes the following:
(Page 12)

"Land use decision-making and planning policy at the State and local government levels have been based on the 1992 structure plan, and the major aim has been to control and limit the development and subdivision of the rural land. The objective has been to ensure that productive agricultural land is not fragmented, remains in suitable lot sizes, is available for existing and future agricultural/horticultural production and does not cause or exacerbate conflicts between incompatible land uses.

This policy approach has been implemented for the past 15 years based on the assumption that there are few constraints to using groundwater and rural zoned land for rural, agricultural or horticultural uses.

Due to climate change and lower rainfall, the situation now clearly is different and the overall planning and management of the Gnangara Mound groundwater resource is entering into a new phase where declining water table levels and availability of groundwater are major issues and limiting factors affecting the whole community."

44 One of the solutions proposed in the draft strategy is major land use changes in the subject locality including a new rural living area to the south of Neaves Road to include the site. Figure 9 identifies this area as "possible rural living". Section 5.2 contemplates that this area could include special rural with lot sizes of 1.0 to 4.0 hectares. It says that the new rural living area will form a rural buffer between new urban areas and help to conserve natural vegetation and rural landscape values. It also says that there is a strong market demand for this type of property.

45 The draft strategy was placed on public exhibition until 27 January 2006. It resulted in hundreds of submissions, a substantial number of which have been considered at officer level, with some still to be properly evaluated at officer level. At a recent briefing to the Commission, the Commission noted that a report would be presented by the Department's assessing officers to it in relation to the public consultation in November 2006 and that the strategy should be assessed using Network City principles and the Gnangara Land and Water Management Plan. It is an agreed fact between the parties that Mr Andrew Moore, the planner with the Department for Planning and Infrastructure tasked to review the public submissions, has said that, in his opinion, the areas identified in the draft strategy as possible rural living

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will ultimately become so designated in the adopted and endorsed policy. However, it is also an agreed fact that Mr Moore has no knowledge of how the Commission will view his opinion in this respect.

46 Section 7.1 of the draft strategy states that after consideration of public submissions and modification of the strategy, the approval process involves endorsement of the final strategy by the City, the Department of Environment, the Department of Agriculture and the Department of Premier and Cabinet, and approval and release of the final strategy by the Minister for Planning and Infrastructure.

47 Mr Webb relies on the Strawbridge decision in which Member Connor determined, at [39], as follows:

"Although the strategy is still undergoing the public consultation process, there has been significant community input incorporated into the preparation of the draft involving a three month public comment period in May 2004 on 'East Wanneroo Land Use and Water Management Strategy - Preliminary Discussion Paper' as well as a community forum held in November 2004 to progress community input in the draft strategy. There is a clear indication that the existing planning framework fails to address the realities of the existing circumstances and there is political pressure for change which led to the preparation of the Strategy. Given community expectation and political impetus, it is likely that there will be land use change in the East Wanneroo area in line with the recommendations contained in the Strategy. Given these reasons, the Tribunal considers it reasonable to take into account the findings of the Strategy as one of the relevant planning factors in determining this matter."

48 Ms CA Ide, who appeared with Ms M Patterson for the Commission, relies on the subsequent decision of Member Jordan in Maher & Anor and Western Australian Planning Commission [2006] WASAT 129 in which the member determined at [43] and [47] as follows:

"While the applicants' frustration at the time taken to get just to the draft stage for this strategy can be understood, the Tribunal does not accept that the ultimate form of the [draft strategy] should be pre-empted by premature support for ad hoc subdivision. There might be cases elsewhere where particular

(Page 14)

circumstances support subdivision of a rural lot occurring now, but this is not considered to be one of those cases ...

The Tribunal as stated above considers that the ultimate form of the [strategy] is not certain and so the proposed subdivision is premature. Unless there are particular circumstances that distinguish a particular proposal, subdivision should occur in an orderly and proper manner consistent with the planning controls in place for the locality. As emphasised by the respondent, there is not yet in place any adopted strategy or a town planning scheme which provides for subdivision of the locality in which the subject land is situated. The planning changes being considered for this locality have not reached the stage where the existing planning controls can simply be put aside."

49 The Commission properly conceded in this case that the draft strategy is a seriously-entertained planning proposal and is, therefore, a relevant matter for consideration in the exercise of planning discretion. However, on the evidence presented to me and assessed as at today's date, I have come to the same conclusion as Member Jordan, namely, that the draft strategy cannot currently be given sufficient weight to warrant approval of the subdivision application in the exercise of planning discretion. In particular, given that a report on the public consultation will not be considered by the Commission until at least November 2006 and the positions of the Department of Environment, the Department of Agriculture, the Department of Premier and Cabinet and the Minister in relation to the subject area being identified as possible rural living are not known, the endorsement and approval of the site being identified for rural living is not sufficiently certain or imminent to, in Member Jordan's words, enable the current planning controls to be put aside.

50 I note that in 2003, the Department of Environment and the Department of Agriculture did not object to a proposal by the applicants to rezone the site from "General Rural" to "Special Rural". However, since that time, the draft strategy has been prepared and SPP 2.2 has been made. The Tribunal does not have the considered position of any of the endorsement and approval authorities in relation to the draft strategy before it as to whether they agree to the designation of the site, including the eastern part of the site, as possible rural living, and as to whether the priority classification of the eastern part of the site as Priority 2 warrants the imposition of a minimum area per lot development standard on possible rural living.

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51 Finally, I note that the actual decision in Strawbridge appears to be sound, on the basis of the following reasoning expressed at [40] to [41]:

"[A]pproval for the subdivision of the subject land follows the existing approved pattern of subdivision on adjoining lots and completes the pocket of 2.0 hectare lots on the southern side of Neaves Road. Approval of the subdivision as proposed would not have any adverse impact on future plans co-ordinating development within the area.

Furthermore, given the existing subdivision and development pattern along the southern side of Neaves Road, the Tribunal does not accept the respondent's assertion that the proposed subdivision will diminish the rural character of the locality. Rural living can contribute to environmental rehabilitation of degraded rural lands, as demonstrated by the rehabilitation undertaken by the applicants on the subject land."

52 However, this reasoning does not warrant approval in this case. In particular, the proposal does not complete a pocket of 2.0 hectare lots, but rather, involves subdivision of 14 new 2.0 to 2.6 hectare lots, and, unlike the Strawbridge land, the eastern part of the site is subject to special groundwater protection controls. I now turn to consider those controls.

Detrimental effects to groundwater resource

53 Clause 2.1 of SPP 2.2 describes the Priority 2 source protection area, of which the eastern part of the site forms part, as follows:

"Priority 2 source protection areas are defined to ensure that there is no increased risk of pollution to the water source. These areas are declared over land where low risk development already exists. Protection of public water supply sources is a high priority in these areas. Priority 2 areas are managed in accordance with the principle of risk minimisation and conditional development is allowed."

54 Clause 4 states that the objectives of SPP 2.2 include to:

"Ensure that all land use changes in the policy area are compatible with the long-term protection and management of groundwater quality and quantity for public drinking water supply, in accordance with priority source protection area classification objectives."

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55 Clause 5.4 provides the following policy measure to achieve the policy objectives:

"In Priority 2 source protection areas the zoning to special rural, rural living or rural-residential or other similar zones, the subdivision of land and land use development proposals may be approved in the policy area both in the Perth Metropolitan Region and outside it, provided the proposal …

Is based on land capability/suitability assessment and includes management measures to ensure that the risk of contamination to the groundwater resource is minimised ... [and]

Does not result in the creation of lots less than 2 hectares in areas zoned rural living or equivalent to 4 hectares in areas zoned rural."

56 A footnote to this last-mentioned provision states as follows:

"Subdivision approval is subject to other planning and environmental requirements being satisfied. The minimum lot sizes of 2 hectares and 4 hectares referred to are for both sewered and non-sewered subdivision and is not of right. These minimum lot sizes are based on international and national research that shows risks of contamination increase with intensified land use and human settlement (The Select Committee on Metropolitan Development and Groundwater Supplies (1994)). Although reticulated sewerage may lessen the risks attributed to on-site waste water and effluent disposal, other risks related to greater density of occupation significantly impact the permeable sandy soils of the Swan Coastal Plain. These include increased garden fertiliser, pesticide and other household chemical use, road run-off, animal waste and the overall cumulative impacts of closer human settlement. Consequently, there will be a presumption against the intensification of land use through a subdivision below the minimum lot size specified by this policy."

57 Mr Nigel Mantle, an environmental scientist and senior water resources planner with the Department of Water, who gave evidence on behalf of the Commission, described the site as highly vulnerable to contamination, because of the sandy soil on the site which allows nutrients to drain to the groundwater, the shallow depth of the water table, at only 2.0 to 3.0 metres, and the proximity of wells to the north. He said
(Page 17)

that the proposed subdivision would increase the risk of pollution to the water source. This evidence was not challenged or contradicted. Mr Mantle gave the following evidence, which was also not challenged or contradicted:

"The best protection of water quality is achieved without land use intensification. In order to ensure that there is no increased risk of pollution, the [Department of Water] does not support intensification of land uses in Priority 2 areas. The best result in terms of water source protection would be for the subject land not to be subdivided at all. All subdivision carries an increased risk to the water source. That risk increases as lot sizes are reduced.

Table 1 of SPP 2.2 provides that subdivision of the subject land to a lot size of 4 hectares is 'acceptable' and lot sizes of 2 hectares would be 'compatible with conditions' if the land had a special rural zoning. The zoning of the land is relevant in the opinion of the [Department of Water] because planning authorities make decisions about zoning only after considering all the relevant factors - including water source protection. If land is zoned special rural, as a general rule, this means that the planning authorities have been satisfied that the water source can be protected with smaller lot sizes.

The proposal to subdivide the subject land into 4 hectare and 2 hectare lots would, if allowed to proceed, increase the risk to the water reserve with the introduction of additional sources of pollution such as septic tanks, increased fertiliser use (nutrients), pesticide use and fuel storage.

It is very difficult to quantify the increased risk posed by the proposed subdivision of the subject land without detailed information.

Detailed information should be provided in order to satisfy clause 5.4 of SPP 2.2. In my opinion, the applicants have not satisfied clause 5.4 of SPP 2.2 in that they have not provided the information required. For example, there is insufficient information in relation to management measures to ensure that the risk of contamination to groundwater resource is minimised and nutrient management and drainage plans.

(Page 18)

In my opinion, in order to protect the groundwater resource, the proposal to subdivide the subject land within the P2 control area should not be approved. If it is approved, subdivision should only be to 4 hectare lots."

58 SPP 2.2 states that proponents who wish to deviate from the contents of the policy should provide justification. The proposed subdivision involves 10 lots of between 2.0 and 2.3 hectares in the part of the site which is Priority 2 source protection area and which, according to SPP 2.2, should have a minimum area per lot of 4.0 hectares. The applicants have not presented any qualified evidence to justify such a significant deviation from SPP 2.2. Moreover, they have not challenged or contradicted, meaningfully or at all, Mr Mantle's evidence. A statement that alternative techniques to septic tanks will be used is not, relevantly, justification. As both SPP 2.2 and Mr Mantle's evidence make clear, the minimum 4.0 hectare standard applies even in the case of sewered subdivisions.

59 In order to have justified a reduction in lot areas from 4.0 hectares to 2.0 hectares, the applicants would need to have satisfied the Tribunal, by qualified expert evidence based on a land capability/suitability assessment, that a doubling of rural-residential density will not increase the risk of pollution to the water source. However, no such evidence was presented.

60 The Tribunal therefore finds that the proposed subdivision is likely to cause detrimental effects on the groundwater resource contrary to SPP 2.2.

Conclusion

61 The subdivision application warrants refusal as it is contrary to orderly and proper planning in two important respects. First, it is materially inconsistent with the current applicable strategic and statutory planning framework. Moreover, the draft strategy cannot properly be given sufficient weight to allow the application to be approved notwithstanding the current planning framework. Second, it is likely to cause detrimental effects on the groundwater resource.

62 The Commission also argued that the application warrants refusal, because there is a need for structure planning of the site, together with rural properties to the south and west, to achieve orderly and proper planning in terms of roads and fire hazard mitigation.

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63 Section 8 of the draft strategy notes a need for structure planning for future urban precincts, but is silent in relation to possible rural living areas. The evidence presented to the Tribunal does not establish that the land to the south and west would be incapable of proper and orderly development without structure planning in conjunction with the site. Nevertheless, the Tribunal can certainly envisage circumstances in which structure planning of new rural-residential areas is appropriate.

64 Ultimately, in light of the Tribunal's conclusion that the application warrants refusal in any case, it is unnecessary to come to a considered view in relation to whether the application warrants refusal on account of a need for structure planning. The Tribunal does not express a considered view. However, it would obviously be desirable for the applicants to jointly commission a structure plan with their neighbours to the south and west, if the draft strategy is ultimately endorsed and adopted.

65 The applicants' case, as put eloquently and forcefully by Mr Webb in his closing submissions, is ultimately that while the draft strategy recognises the changing groundwater characteristics of the area, which effectively preclude many, if not most, of the agricultural and horticultural uses contemplated by the "General Rural" zoning, the necessary strategic planning response has been, and continues to be, slow. The applicants are understandably frustrated by their inability to put their land to the types of uses envisaged by the zoning or alternatively, to have the land rezoned for rural-residential use. They are also understandably frustrated by the apparently ad hoc way in which other land in the vicinity, including the adjoining land to the east, has been rezoned from "General Rural" to "Special Rural", while they have sought in vain to have their land rezoned.

66 Mr Webb submits that the planning system cannot be allowed to stagnate and that there has to be a place where landowners can turn to remedy this unfortunate situation. He submits that the place is this Tribunal, which has been established to independently review decisions of both State and local government authorities.

67 The Tribunal can certainly understand the applicants' frustration with the slow pace at which strategic planning of the East Wanneroo area has apparently occurred. Urban planning and environmental considerations require that the strategic planning process for this area be finalised quickly. However, orderly and proper planning is seldom simply a matter of remedying frustrations. Furthermore, the Tribunal is not, in this review, constituted as a strategic planning authority. Its task is to arrive at the correct and preferable decision in relation to the review as at the date

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of the review. I am not satisfied that judged today, the ultimate form of strategic planning and development control for the site will necessarily correspond to the subdivision now proposed, particularly in relation to the part of the site which is identified as groundwater source protection area.

68 It follows that the application for review should be dismissed and the decision of the Commission to refuse subdivision approval affirmed.

I certify that this and the preceding [68] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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MR D R PARRY, SENIOR MEMBER

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Attachment A