BRENNAN and WESTERN AUSTRALIAN PLANNING COMMISSION
[2024] WASAT 3
•29 JANUARY 2024
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: BRENNAN and WESTERN AUSTRALIAN PLANNING COMMISSION [2024] WASAT 3
MEMBER: MR R POVEY, MEMBER
HEARD: 6 - 8 DECEMBER 2023
DELIVERED : 29 JANUARY 2024
FILE NO/S: DR 39 of 2022
BETWEEN: PETER BRENNAN
First Applicant
COLLEEN BRENNAN
Second Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Town planning – Subdivision – One lot into two lots – Land zoned General Agriculture – Rural land subdivision – Land bisected by a creek – Application of policy – General policy presumption against rural land subdivision – Exception to policy where land divided by 'significant physical division' – Dwellings on site – Approval runs with the land – Ad hoc fragmentation of rural land – Water management – Orderly and proper planning – Adverse planning precedent
Legislation:
Draft Shire of Augusta - Margaret River Local Planning Scheme No 2, cl 53, c 53(1), cl 79(1)
Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA)
Planning and Development Act 2005 (WA), s 3(1), s 3(1)(c), s 135, s 135(1), s 138, s 138(3), s 138(3)(a), s 241, s 241(1)(a), s 251(1)
Planning and Development Regulations 2009 (WA), reg 21
Shire of Augusta - Margaret River Local Planning Scheme No 1, cl 4.2.2.2, cl 4.2.2.2(b), cl 4.2.2.2(c), cl 4.16, cl 4.16.2, cl 4.16.2(b), cl 4.16.5, cl 4.16.5(a), cl 4.16.5(b), cl 4.16.5(c), cl 4.16.5(c)(i), cl 4.16.5(c)(ii), s 138(3)(c)(i)
Shire of Augusta - Margaret River Local Planning Strategy 2036
State Administrative Tribunal Act 2004 (WA), s 27(2)
State Planning Strategy 2050
Result:
The application for review is dismissed
The decision of the respondent is affirmed
Category: B
Representation:
Counsel:
| First Applicant | : | Ms I Mosole |
| Second Applicant | : | Ms I Mosole |
| Respondent | : | Mr V McMullen |
Solicitors:
| First Applicant | : | Lavan |
| Second Applicant | : | Lavan |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Bookara Holdings Pty Ltd and Western Australian Planning Commission [2015] WASAT 111
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55
Hancock and Western Australian Planning Commission [2010] WASAT 145
Low & Anor v Swan Cove Holdings Pty Ltd & Anor [2003] WASCA 115
Marshall v Metropolitan Redevelopment Authority [2015] WASC 226
Marshall v Western Australian Planning Commission (1995) 15 SR (WA) 170
Martin v Western Australian Planning Commission [2018] WASC 42
Nicholls and Western Australian Planning Commission [2005] WASAT 40
Taylor and Western Australian Planning Commission [2023] WASAT 16
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
This decision deals with an application for subdivision of land at Lot 2899 Rosa Brook Road, Rosa Brook (Land). Mr Peter Brennan and Mrs Colleen Brennan (applicants) seek approval to subdivide the Land into two lots (proposed subdivision), being proposed lot 88 (PL 88) with an area of 38 hectares and proposed lot 89 (PL 89) with an area of 9.6 hectares. On 11 February 2022, the Western Australian Planning Commission (WAPC, Commission or respondent) refused the proposed subdivision, and it is this decision the subject of this Application for Review, brought under s 251(1) of the Planning and Development Act 2005 (WA) (PD Act).
In these reasons I will firstly describe the conduct of the proceedings, then set out the planning framework, including the power to approve subdivision. Next, I describe the Land, the proposed subdivision, and the locality. Finally, I will consider and determine the four issues that arise in this proceeding.
For the reasons given below, I have determined the 'correct and preferable decision at the time of the decision upon the review', under s 27(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) is to dismiss the application for review and affirm the decision of the respondent.
Conduct of the proceedings
On 18 October 2021, the respondent received an application for subdivision of the Land.
As part of the assessment, the application was referred to various authorities, including the Shire of Augusta Margaret River (Shire). On 16 December 2021, the Shire advised it did not support the proposed subdivision and provided its reasons.[1]
[1] Respondent's s 24 Bundle of Documents, page 9, Exhibit 3.
On 11 February 2022, the respondent refused the application for the following reasons:[2]
1.The proposed subdivision does not comply with the policies and objectives of State Planning Policy 2.5 – Rural Planning, which seeks to prevent ad-hoc and unplanned fragmentation of rural land. The subdivision, if permitted, would result in the unplanned breakdown of the subject land.
2.The proposed subdivision does not comply with Development Control Policy 3.4 – Subdivision of Rural Land, which requires that in the absence of the planned provision for closer settlement and/or more intensive agricultural uses, the creation of new or smaller lots will only be by exception. The subdivision does not comply with any of these exceptions.
3.The proposed subdivision is inconsistent with the development and subdivision requirements of General Agriculture zone as set out by the Shire of Augusta – Margaret River Local Planning Scheme No. 1, which specifies that subdivision proposing lots less than 80 hectares will not be supported and lots may be subdivided to a minimum of 40 hectares per lot where certain criteria are met.
4.The proposed subdivision is inconsistent with the Shire of Augusta – Margaret River Local Planning Strategy, which states that subdivision of rural land will not be supported unless in accordance with Development Control Policy 3.4 – Subdivision of Rural Land.
5.The proposal represents an ad-hoc and unplanned breakdown of land holdings which would be detrimental to the use of the land for rural purposes.
6.Approval to the subdivision would create an undesirable precedent for the further subdivision of other lots in the General Agriculture zone of this locality.
[2] Respondent's s 24 Bundle of Documents, page 4, Exhibit 3.
On 25 February 2022, the applicants lodged an Application for Review with the Tribunal. Following mediation at the Tribunal, the matter was listed for final hearing (hearing). The parties filed and gave the other party a Statement of Issues, Facts and Contentions (SIFC). The respondent filed a bundle of documents under s 24 of the SAT Act (and a supplementary and further supplementary s 24 bundle) and the applicants also filed a bundle of documents with the Tribunal. Further documents were filed during the hearing.
The hearing was conducted over three days, being 6 to 8 December 2023. At the hearing I heard evidence from two town planning experts, Ms Leah Elliot, a town planner employed with the Department of Planning, Lands and Heritage for approximately six years (currently a senior planning officer), called on behalf of the respondent and Mr Alessandro Stagno, a town planner and director of Apex Planning Pty Ltd (with approximately 9 years' experience as a town planning consultant), called on behalf of the applicants. Ms Elliot and Mr Stagno filed individual witness statements with the Tribunal which they adopted as their evidence-in-chief and were cross‑examined.
On 1 December 2023, prior to the hearing I, together with the counsel for the parties, the two planning experts and one of the applicants, undertook a view of the Land and its surrounds.
Planning framework
The relevant planning framework which I have considered in determining the application includes:
(a)PD Act;
(b)Planning and Development Regulations 2009 (WA) (PD Regulations)
(c)Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA) (EPCNVR);
(d)Shire of Augusta - Margaret River Local Planning Scheme No 1 (LPS 1);
(e)State Planning Policy 1 – State Planning Framework (SPP 1);
(f)State Planning Policy 2.5 – Rural Planning (SPP 2.5);
(g)Statement of Planning Policy No 3 – Urban Growth and Settlement;
(h)Operational Policy 1.1 – Subdivision of land – general principles;
(i)Development Control Policy 3.4 – Subdivision of rural land (DC 3.4);
(j)State Planning Strategy 2050;
(k)Shire of Augusta – Margaret River Local Planning Strategy 2036 (LP Strategy);[3] and
(l)Draft Shire of Augusta – Margaret River Local Planning Scheme No 2 (DLPS 2).[4]
[3] Endorsed by the WAPC on 18 January 2022.
[4] DLPS 2 is being advertised until 31 January 2024, Witness Statement of Leah Elliot, para 66, Exhibit 6. DLPS 2 is discussed further at [39] – [43].
The power to approve subdivision
Before turning to the issues for determination, it is necessary to briefly set out the sections of the PD Act (and associated PD Regulations) relevant in this case.
The power to approve subdivision is in s 135(1) of the PD Act:
(1)A person is not to —
(a)subdivide any lot; or
(b)amalgamate any lot with any other lot, whether within the same district or otherwise; or
(c)lay out, grant or convey a road,
without the approval of the Commission.
The WAPC's functions when approving subdivision are set out in s 138 of the PD Act which provides as follows:
(1)The Commission may give its approval under section 135 or 136 subject to conditions which are to be carried out before the approval becomes effective.
(2)Subject to subsection (3), in giving its approval under section 135 or 136 the Commission is to have due regard to the provisions of any local planning scheme that applies to the land under consideration and is not to give an approval that conflicts with the provisions of a local planning scheme.
(3)The Commission may give an approval under section 135 or 136 that conflicts with the provisions of a local planning scheme if —
(a)the local planning scheme was not first published, or a consolidation of the local planning scheme has not been published, in the preceding 5 years and the approval is consistent with a State planning policy that deals with substantially the same matter; or
(b)the approval is consistent with a region planning scheme that deals with substantially the same matter; or
(c)in the opinion of the Commission —
(i)the conflict is of a minor nature; or
(ii)the approval is consistent with the general intent of the local planning scheme;
or
(d)the local planning scheme includes provisions permitting a variation of the local planning scheme that would remove the conflict; or
(e)in the case of an application under section 135, the local government responsible for the enforcement of the observance of the scheme has been given the plan of subdivision, or a copy, under section 142 and has not made any objection under that section; or
(f)the approval is given in circumstances set out in the regulations.
(4)Despite subsection (3), the Commission is to ensure that an approval under section 135 or 136 complies with the provisions of a local planning scheme to the extent necessary for compliance with an environmental condition relevant to the land under consideration.
His Honour Chaney J observes in Martin v Western Australian Planning Commission [2018] WASC 42 at [33] (Martin) the discretion that arises under s 135 of the PD Act 'is unfettered save that it must be exercised having regard to the scope and purpose of the PD Act'.
For completeness, the overarching scope of the PD Act is '[a]n Act to provide for a system of land use planning and development in the State and for related purposes'.[5]
[5] PD Act, page 1.
The purpose of the PD Act set out in s 3(1), which relevant in this case is:[6]
…
(c)promote the sustainable use and development of land in the State.
[6] ts 24, 6 December 2023 and as the Tribunal (DP Jackson and SM Willey) observed in Taylor and Western Australian Planning Commission [2023] WASAT 16, at [160] - [163], is relevant to subdivision.
Additionally, in Martin[7] Chaney J identifies reg 21 of the PD Regulations being the matters to be considered on an application for subdivision. The regulation provides:
[7] Martin at [33].
Matters to be considered on application for subdivision
When considering a section 135 application, the Commission must have regard to all relevant matters including but not limited to these –
(a)the size, shape and dimensions of each lot;
(b)the services available to each lot;
(c)drainage of the land;
(d)access to each lot;
(e)the amount of public open space to be provided;
(f)any relevant planning scheme;
(g)any relevant regulations made by the Minister under the Act;
(h)any relevant local laws relating to town planning.
Further, s 241 of the PD Act identifies the Tribunal is to have regard to certain matters and s 241(1)(a) is relevant in this case:
(1)In determining an application in accordance with this Part the State Administrative Tribunal is to have due regard to relevant planning considerations including –
(a)any State planning policy which may affect the subject matter of the application[.]
…
The Land
The details of the Land are, I find, as follows.
The Land:
(a)is located approximately 15 kilometres east of the Margaret River Town Centre,[8] and is on the north-western corner of the intersection of Rosa Brook Road and Bessell Road, Rosa Brook;
(b)is zoned 'General Agriculture' under LPS 1 and is proposed to be zoned 'Rural' under DLPS 2; and
(c)is formally identified as Lot 2899 Rosa Brook Road, Rosa Brook on Plan 203097, Certificate of Title Volume 1629 Folio 496 and has an area of 47.5659 hectares and is generally triangular in shape.
[8] Respondent's SIFC, para 10, Exhibit 2.
The eastern boundary of the Land adjoins the Bessell Road reserve which is an unsealed (gravel) rural road. The north-west boundary adjoins two properties. The southern boundary abuts Rosa Brook Road. Rosa Brook Road is a two lane (single carriageway in each direction) sealed road and is the main road link between the towns of Margaret River and Nannup. It has a posted speed limit of 100 km/h along the frontage of the Land.
The Land has:
(a)eight gates/access points connecting to adjoining public roads, three on Bessell Road and five on Rosa Brook Road;[9]
(b)three (grouped) dwellings, being two existing dwellings on PL 88, dwelling 2 (approved 1995) and a separate granny flat, located south of dwelling 2 closer to Rosa Brook Road (approved in 1998) and one dwelling on PL 89, dwelling 1 (also approved in 1995) and outbuildings associated with the use of the Land.[10] Dwelling 1 (on PL 89) is accessed from Bessell Road, while the buildings on PL 88 (including dwelling 2 and the granny flat) are accessed via Rosa Brook Road; and
(c)two creek lines which connect to the Margaret River (to the north) and which traverse over the eastern and western portions of the Land, and will be referred to as the 'eastern creek' and 'western creek'.
[9] Identified in the Witness Statement of Alessandro Stagno, Annexure 2 (Aerial Photo of Lot 2899 (1665) Rosa Brook Road, Rosa Brook, Exhibit 11. As observed at the view, not all the gates/access points provide for regular vehicle access to Rosa Brook Road. Nothing, in my view, turns on this.
[10] See Exhibit 8.
The Land is predominantly cleared of vegetation; however, three plots of vegetation are present:[11]
(a)Plot 1 (located on PL 89) is associated with the eastern creek.
(b)Plot 2 (located on PL 88) is located approximately central on the site and runs north - south between the granny flat and dwelling 2.
(c)Plot 3 (located on PL 88) is associated with the 'western creek'. A vehicle track crosses the western creek.
[11] At the hearing these plots of vegetation were identified as plots 1, 2 and 3 using the Witness Statement of Alessandro Stagno, Annexure 2 – Aerial photo of Lot 2899 Rosa Brook Road, Rosa Brook, Exhibit 11.
Plot 1 (which is a focus in this proceeding) contains a dam (at the southern end of the Land) fed by the eastern creek, however the width of the eastern creek within the Land is unclear.[12] The vegetation in Plot 1 ranges in width from approximately 70 metres to 130 metres[13] and covers approximately 5 hectares, running from the northern boundary with Bessell Road to the southern boundary at Rosa Brook Road (approximately 589 metres). The planning experts agree, and I accept, it is mostly remnant native vegetation, in excellent condition,[14] except for around the dam which is regrowth.[15]
[12] Respondent's SIFC, para 19, Exhibit 2. Mr Stagno also advises he was not able to determine the physical width of the creek as its visibility is obscured by the amount and density of the vegetation – Witness Statement of Alessandro Stagno, para 7.15, Exhibit 11.
[13] The Respondent's SIFC indicates a maximum width of 120 metres (para 18, Exhibit 2) however the evidence of Mr Stagno indicates a maximum width of 130 metres and Ms Elliot's evidence, a maximum width of 160 metres. Nothing, in my view, turns on these differences. I have adopted 130 metres as the maximum width of the vegetation in plot 1 in these reasons.
[14] The planning witnesses base their opinion on a letter from the Department of Biodiversity Conservation and Attractions at Respondent's Supplementary s 24 Bundle of Documents, page 497, Exhibit 4.
[15] ts 125 – 126, 7 December 2023.
The proposed subdivision
The proposed subdivision seeks to create two lots. PL 88 is to be 38 hectares and occupies the larger western portion of the Land. PL 89 is to be 9.6 hectares and occupies the eastern portion of the Land.
The proposed common boundary runs to the west of the existing vegetation in Plot 1. Other than fencing to this boundary to separate the two lots, I accept, no other physical changes are proposed to the Land.[16]
[16] ts 31, 6 December 2023.
Locality
The planning experts agree, and I accept, the relevant locality is the district of Rosa Brook (except for the lots fronting the Margaret River, because these have a different zoning, and forest areas being Crown land).[17]
[17] ts 67 – 70, 6 December 2023.
Lot sizes in the locality (for those lots zoned 'General Agriculture') vary in size from 1.3 hectares (which is located adjacent the Land to the south) to 101.7 hectares (and adjoins the Land to the north).[18]
[18] Witness Statement of Alessandro Stagno, para 7.34 c – d, Exhibit 11.
The planning experts agree it is common for lots in the locality to contain pockets of vegetation and creek lines extending from the Margaret River.[19] Some waterways are lined with vegetation, while others are cleared. Dams are established throughout the locality, commonly using creek lines.
[19] Witness Statement of Alessandro Stagno, para 7.36, Exhibit 11 and Witness Statement of Leah Elliot, para 30, Exhibit 6.
It is also uncontroversial the locality is mostly rural, with current agriculture activities including dairy, beef and sheep grazing, fruit and vegetable production and viticulture.[20] The locality also has tourism uses such as a horse trail ride business (on Lots 300 and 301 Rosa Brook Road, to the north-west) and a horse boarding stable (on Lot 292 Rosa Brook Road, to the east).[21] A local waste facility is located to the east.[22]
[20] Respondent's SIFC, para 21, Exhibit 2 and applicant's SIFC, para 16, Exhibit 9.
[21] Applicant's SIFC, para 16, Exhibit 9.
[22] Witness Statement of Leah Elliot, para 32, Exhibit 6.
Issues for determination
The parties agree four issues arise for determination:[23]
1.Whether the proposed subdivision is consistent with the statutory planning framework that applies to the Land.
2.Whether the waterway traversing the Land should be considered a significant physical division for the purposes of cl 6.1 of DC 3.4.
3.Whether the proposed subdivision is consistent with orderly and proper planning of the locality.
4.Whether approval of the proposed subdivision would create an undesirable precedent for subdivision of rural land.
[23] The respondent's SIFC identifies two further issues, which are conceded by the applicants. As a result, the respondent accepts these no longer require determination by the Tribunal (ts 33, 6 December 2023).
I will now consider and determine the four issues in turn.
Whether the proposed subdivision is consistent with the statutory planning framework that applies to the Land
The relevant provisions of the statutory planning framework applicable to the proposed subdivision are set out below.[24]
LP Strategy
[24] Provisions of the PD Act and PD Regulations are also applicable and are at [12] – [18].
The LP Strategy, endorsed by the WAPC on 18 January 2022, addresses 'Agriculture and Food' at AF2, dealing with subdivision states, identifies a policy response and states:[25]
With the exception of conservation subdivision, subdivision in accordance with the Leeuwin Naturaliste Ridge State Planning Policy, Augusta-Walpole Coastal Strategy and Development Control Policy 3.4, further subdivision will not be supported in the Agricultural Zone[.]
LPS 1
[25] Respondent's s 24 Bundle of Documents, page 347, Exhibit 3.
The purpose of the General Agriculture zone (which the Land is zoned) are set out at cl 4.2.2.2, as follows:[26]
(a)To provide for a more general classification of rural land, other than that identified as being of State or Regional agricultural significance as set out in Local Planning Strategy, used, or capable of being used for a range of agricultural activities complemented by other ancillary uses which do not detract from the primary use of the land for agricultural purposes;
(b)To provide that subdivision and development activities that generate alternative and incompatible land use proposals should not be permitted; and
(c)Notwithstanding the zoning of land, to provide for the retention and protection of portions of land within that Zone that are not cleared and that are valuable to the high landscape values and ecological systems of the Scheme area.
[26] Respondent's s 24 Bundle of Documents, page 42, Exhibit 3.
The objectives of the General Agriculture zone are also at cl 4.2.2.2, as follows:[27]
(a)To provide for the broad range of potential extensive agricultural activities, and, where appropriate, some intensive agricultural and horticultural uses of land notwithstanding that some of the activities might also be appropriate to the Priority Agriculture Zone;
(b)To preserve the established rural character and amenity of the land within the Zone consistent with the ongoing use and development of that land for productive agricultural purposes;
(c)To oppose subdivision proposals which would adversely affect the utility of agricultural land for productive purposes through specific subdivision criteria to ensure long term agricultural sustainability and appropriate lot sizes as set out at clause 4.15.5 [sic][28]; and
(d)To allow for the provision of sustainable low-impact tourist development such as chalet development but only where an established and continued agricultural, horticultural, viticultural or other similar rural production, or significant tracts of native vegetation that can be protected on the land holding and where such uses will be incidental and complementary to that established use or protection of the significant native vegetation.
[27] Respondent's s 24 Bundle of Documents, pages 42 - 43, Exhibit 3.
[28] The reference to cl 4.15.5 appears to be an error as this clause relates the Bushland Protection zone (and is not relevant in this case). Clause 4.16.5 is accepted as the relevant clause.
Clause 4.16 deals with development in Priority Agriculture and General Agriculture zones and cl 4.16.2 addresses dwellings and rural workers accommodation on land in these zones. Clause 4.16.2(b) states:[29]
The fact that approval may have been sought and obtained for more than one dwelling on any lot shall not be regarded by the local government or the Western Australian Planning Commission as justification for support for the subdivision of the land.
[29] Respondent's s 24 Bundle of Documents, page 60, Exhibit 3.
Clause 4.16.5 addresses subdivision in Priority Agriculture and General Agriculture zones and relevantly states:[30]
[30] Respondent's s 24 Bundle of Documents, pages 61, Exhibit 3.
(a)In the absence of the planned provision of closer settlement and more intensive agricultural uses, existing large rural lots are to be retained for broad acre and traditional forms of farming and the fragmentation of rural land and loss of rural character through piecemeal, unplanned subdivision is not permitted.
(b)Notwithstanding clause 4.16.5 (a), subdivisions proposing lot sizes of 80 hectares or more will be considered.
(c)Subdivisions proposing lots of less than 80 hectares will not be supported except where the lot is a minimum of 40 hectares and all of the following criteria are met:
(i)an agronomist's report or similar demonstrates that each new lot will contain a minimum of 30 hectares of land with high capability rating (class 1 or 2) for annual or perennial horticultural production;
(ii)a hydrologist's report or similar demonstrating that each new lot has long term secure access to a supply of water of sufficient quantity and quality as applicable to the potential agricultural production on the land, and the Department of Water is prepared to agree that the capture of that water is within the limits of an endorsed water allocation management plan or is within the sustainable yield for that sub-catchment;
(iii)the total lot area incorporates the minimum area of 30 hectares of high capability of land, plus the water capture and/or storage area (as necessary), plus an area for farm infrastructure and buildings with sufficient setback from adjoining properties so as not to restrict potential agricultural productivity on those properties, setbacks from watercourses and wetlands. Plus the retention of any remnant vegetation that should be protected from clearing;
(iv)in order to demonstrate agricultural sustainability and suitability of a proposed lot (i.e. adequate water and soil provision), the applicant will need to demonstrate that the lot can accommodate a wide range of crops.
(v)Applicants should address the matters raised in the Western Australian Planning Commission's Development Control Policy DC 3.4 Subdivision of Rural Land, Section 6 "Additional Information to Support Subdivision" where applicable.
…
(e)Minimum lot sizes are subject to the constraints and capability of the land, and larger lot sizes may be required to ensure the ongoing agricultural sustainability of the lots.
(f)Notwithstanding 4.16.5 (a) subdivisions will be considered where the significant conservation values of land are protected in perpetuity through conservation covenants consistent with criteria set out in an applicable Policy endorsed by Council and the Western Australian Planning Commission.
DLPS 2
Ms Elliot identifies DLPS 2 and says at the time of the hearing (and until 31 January 2024) is being advertised for public comment. Ms Elliot's evidence, which I accept, is that DLPS 2 consolidates the existing 'General Agriculture' and 'Priority Agriculture' zones into a single 'Rural' zone. The Land is proposed to be zoned 'Rural' under DLPS 2.[31]
[31] Witness Statement of Leah Elliot, paras 66 – 68, Exhibit 6.
DLPS 2, at cl 79(1), contains a provision which seeks to restrict subdivision of rural land:
There is a general presumption against further subdivision of land in the Rural zone. Subdivision will only be considered in accordance with the limited circumstances set out in the Western Australian Planning Commission's Development Control Policy 3.4: Subdivision of rural land.
DLP 2 provides objectives of the Rural zone as follows:[32]
•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.
•To provide for the operation and development of existing, future and potential rural land uses by limiting the introduction of sensitive land uses in the Rural zone.
•To provide for a range of non-rural land uses where they have demonstrated benefit and are compatible with surrounding rural uses.
[32] Witness Statement of Leah Elliot, para 68, Exhibit 6.
Clause 53 addresses environmental protection and at subclause (1) relevantly provides:[33]
All land clearing requires the prior development approval of the local government, with the exception of the following:
…
(e)clearing for farm management purposes within the Rural zone in accordance with the Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (as amended)[.]
[33] Witness Statement of Leah Elliot, para 69, Exhibit 6.
The parties agree DLPS 2 is a relevant planning consideration but given its early state of progress agree it is not yet, I accept, a seriously entertained planning proposal.[34] I therefore accept the applicants' submission[35] and accord DLPS 2 limited weight in my determination in this matter.
SPP 2.5
[34] ts 168, 181 – 182, 8 December 2023 and Nicholls and Western Australian Planning Commission [2005] WASAT 40 (Nicholls) at [58] – [59].
[35] ts 168, 8 December 2023.
SPP 2.5 addresses rural planning and provides relevant policy objectives at cl 4:[36]
[36] Respondent's s 24 Bundle of Documents, page 430, Exhibit 3.
(a)support existing, expanded and future primary production through the protection of rural land, particularly priority agricultural land and land required for animal premises and/or the production of food;
(b)provide investment security for existing, expanded and future primary production and promote economic growth and regional development on rural land for rural land uses;
…
(d)provide a planning framework that comprehensively considers rural land and land uses, and facilitates consistent and timely decision-making;
(e)avoid and minimise land use conflicts;
(f)promote sustainable settlement in, and adjacent to, existing urban areas; and
(g)protect and sustainably manage environmental, landscape and water resource assets.
The relevant policy measures are at cl 5.1, which says '[t]he WAPC will seek to protect rural land as a State resource by:[37]
[37] Ibid.
(a)requiring that land use change from rural to all other uses be planned and provided for in a planning strategy or scheme;
…
(c)ensuring retention and protection of rural land for biodiversity protection, natural resource management and protection of valued landscapes and views;
(d)protecting land, resources and/or primary production activities through the State's land use planning framework;
(e)creating new rural lots only in accordance with the circumstances under which rural subdivision is intended in Development Control Policy 3.4: Subdivision of rural land;
(f)preventing the creation of new or smaller rural lots on an unplanned or ad-hoc basis, particularly for intensive or emerging primary production land uses;
(g)comprehensively planning for the introduction of sensitive land uses that may compromise existing, future and potential primary production on rural land[.]'
Clause 6 addresses implementation of SPP 2.5 and cl 6.5 addresses subdivision as follows:[38]
[38] Respondent's s 24 Bundle of Documents, page 438, Exhibit 3.
It is the view of the WAPC that there are sufficient, suitably sized and located rural lots to cater for intensive and emerging primary production land uses. Creation of new rural lots through ad-hoc, unplanned subdivision will not be permitted.
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.
DC 3.4
DC 3.4 'sets out the principles that will be used by the WAPC in determining applications for subdivision of rural land' and 'is consistent with the objectives of [SPP 2.5], which establishes the statewide policy framework for rural land use planning in Western Australia'.[39]
[39] Respondent's s 24 Bundle of Documents, page 416, Exhibit 3.
Clause 5 provides general policy provisions:[40]
It is the opinion of the WAPC that rural land uses are the highest and best use for rural zoned land. Where an alternative use is proposed, such as residential, the use must be planned in a strategy or scheme and zoned accordingly. When determining subdivision proposals on rural land, the following measures will be applied:
(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.
[40] Respondent's s 24 Bundle of Documents, page 418, Exhibit 3.
Clause 6 provides the circumstances under which rural subdivision may be considered:[41]
[41] Respondent's s 24 Bundle of Documents, pages 418 – 419, Exhibit 3.
In considering applications under section 6, the WAPC will consider rural subdivision in the following exceptional circumstances:
(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. These forms of subdivision, which may result in additional dwelling entitlements, are considered to provide incentives for rural subdivision. As such the remainder of this policy outlines the applicable standards for rural subdivision.
Clause 6.1 addresses significant physical divisions (a consideration at the heart of this Application for Review):[42]
The existing physical division of a lot by a significant natural or constructed feature may be formalised through subdivision. The physical division in itself however, does not warrant the creation of additional or smaller lots. A significant physical division would include, but not be limited to, a controlled access highway or a river but would not generally include minor barriers such as rural roads or creeks that are commonly crossed for farm management purposes.
The WAPC may support boundary realignment where a rural property comprises multiple small titles and there is scope to resolve the physical division by rationalising multiple lots in one ownership through boundary realignments, without creating additional lots.
Lot boundaries that result in encroachments may be corrected through minor boundary realignments, provided the realignments do not adversely affect environmentally sensitive areas or create additional or smaller lots.
Contentions – Issue 1
[42] Respondent's s 24 Bundle of Documents, page 419, Exhibit 3.
The respondent contends the proposed subdivision does not meet either the 80 hectares or 40 hectares minimum lot size requirements of cl 4.16.5 of LPS 1. Therefore, the respondent says that to be considered for approval, the proposed subdivision needs to meet the exceptional circumstances requirements of cl 6 of DC 3.4, which the respondent contends it does not.[43]
[43] Respondent's SIFC, paras 54 – 57, Exhibit 3.
The applicants concede 'the proposed subdivision is not of a type contemplated by cl 4.16.5 of LPS 1'.[44] However, the applicants contend exceptional circumstances exist due to what they say is a 'significant physical division' on the Land (within the use of that term in DC 3.4), being the eastern creek (in Plot 1) and that '[b]y logical extension, the proposed subdivision is consistent with SPP 2.5 and should be supported on that basis'.[45]
[44] Applicant's SIFC, para 31, Exhibit 9.
[45] Applicant's SIFC, paras 46 – 47, Exhibit 9.
The applicants also reject cl 4.16.2(b) of LPS 1[46] as relevant to the proposed subdivision because they say this provision 'relates to dwellings that have merely been approved, as opposed to dwellings that already exist (the dwellings on the subject land already exist)'.[47]
[46] See [37].
[47] Applicant's SIFC, para 19.2, Exhibit 9.
I will now turn to consider the evidence and firstly whether it is possible to grant approval in circumstances where, on the evidence before me, the proposed subdivision conflicts with the provisions of LPS 1 and secondly, whether the existing dwellings on the Land could be considered a factor (under LPS 1) which supports the proposed subdivision.
Is it possible to grant approval to the proposed subdivision in conflict with the provisions of LPS 1?
The evidence of Mr Stagno identifies s 138(2) of the PD Act[48] is relevant and I agree it is. This says, 'the Commission is to have due regard to the provisions of any local planning scheme that applies to the land under consideration and is not to give an approval that conflicts with the provisions of a local planning scheme'. Further, Mr Stagno's evidence, which I also accept, is a conflict exists between the proposed subdivision (with lot sizes below 40 hectares) and cl 4.16.5(b) and cl 4.16.5(c) of LPS 1.[49] As mentioned,[50] the applicant readily concedes the proposed subdivision is not of a type contemplated by cl 4.16.5 of LPS 1.
[48] See [13].
[49] Witness Statement of Alessandro Stagno, paras 8.7 and 8.27, Exhibit 11.
[50] At [38].
However, Mr Stagno's evidence is, under s 138(3) of the PD Act[51] the Commission may give an approval that conflicts with a local planning scheme (relevantly) where:[52]
[51] See [52].
[52] Witness Statement of Alessandro Stagno, paras 8.28 – 8.29, Exhibit 11.
…
(a)the local planning scheme was not first published, or a consolidation of the local planning scheme has not been published, in the preceding 5 years and the approval is consistent with a State planning policy that deals with substantially the same matter; or
…
(c)in the opinion of the Commission —
(i)the conflict is of a minor nature[.]
Here, Mr Stagno says, and I accept, LPS 1 was gazetted on 24 September 2010 and no consolidation was published in the last 5 years. He asserts, on this basis s 138(3)(a) of the PD Act is capable of being applied.[53] No contrary evidence is provided. Therefore, I accept this allows approval to be contemplated in this case, despite the proposed subdivision conflicting with LPS 1.
[53] Witness Statement of Alessandro Stagno, para 8.30, Exhibit 11.
As to cl 138(3)(c)(i) of the PD Act, Mr Stagno's evidence is that the departure from the relevant provisions of LPS 1 is of a 'minor' nature. He says this goes to a consideration of orderly and proper planning.[54] This is considered later at Issue 3.[55] However, here I observe that cl 4.16.5(c)[56] requires, in addition to a specified lot size (being a minimum of 40 hectares, which is not met in this case), that five criteria be met. The five criteria, among other things, go to horticultural production (and require an agronomist's report demonstrating each new lot will contain a minimum 30 hectares of land with a high capability rating) and security of access to water of sufficient quantity and quality for the potential agricultural production on the land (to be satisfied by a hydrologist's report).
[54] Witness Statement of Alessandro Stagno, paras 8.34, 8.37 and 8.51, Exhibit 11.
[55] See [85] – [105].
[56] See [38].
Under cross-examination, Mr Stagno agrees cl 4.16.5(c) requires all the five criteria to be addressed.[57] However, they are not addressed in the evidence before me. To determine if the 'conflict is of a minor nature', it necessary to consider not only the proposed lot sizes, but also, in my view, determine the extent to which the criterion can be met (if at all) in this case, to reach a concluded view. In the absence of evidence, I cannot conclude the conflict with cl 4.16.5(c) is of a minor nature in this case.
[57] ts 50-52, 6 December 2023.
However, given my earlier observations (at [57]), I accept approval can be considered in conflict with the provisions of LPS 1 because s 138(3)(a) of the PD Act is satisfied in this case. What this means is a discretionary power to approve the proposed subdivision exists. However, whether planning discretion to approve the proposed subdivision should be exercised in this case will, in my view, depend on the findings to issues 2 to 4, to which I will turn shortly.
Whether the existing dwellings on the Land are a factor which support the proposed subdivision?
As mentioned,[58] the Land contains three grouped dwellings, dwelling 1 on PL 89 and dwelling 2 on PL 88. On the evidence before me, these dwellings were approved in 1995. A further dwelling on PL 88 (granny flat) was approved in 1998.[59]
[58] See [22].
[59] Annotated site view map, Exhibit 8.
At the hearing Mr Stagno was asked if the applicants are 'relying on the fact that there are two dwellings on the land to support its proposal for subdivision?'. His response confirms this is part of the applicants 'justification of the subdivision proposal'.[60]
[60] ts 99, 7 December 2023. As observed, in fact, three dwellings are on the Land.
Clause 4.16.2(b) of LPS 1 states:
The fact that approval may have been sought and obtained for more than one dwelling on any lot shall not be regarded by the local government or the Western Australian Planning Commission as justification for support for the subdivision of the land.
As to this clause, Mr Stagno's written evidence is that '…the distinction between "approved" and "existing" is clear enough and substantial enough that clause 4.16(2)(b) should not apply'.[61] I do not accept this evidence, as I will explain.
[61] Witness Statement of Alessandro Stagno, para 8.23, Exhibit 11.
Mr Stagno, under cross-examination by Mr McMullen, counsel for the respondent, resulted in the following exchange, in which Mr Stagno accepts 'the approval' of the existing dwellings runs with the land:[62]
[62] ts 46, 6 December 2023.
MR McMULLEN: [respondent's counsel]
… If development on land is applied for and approved, then it might lapse if it was not substantially commenced, but if it was substantially commenced and carried out, then it's approved development.
MR STAGNO: Approved existing development.
MR McMULLEN: Yes. Well, the clause doesn't, particularly, say existing or not. I think you're, possibly, reading in words that are not there. Have you ever heard the expression, approval runs with the land? Do you agree with that?
MR STAGNO: I agree with that.
MR McMULLEN: Right. So in this case, approval is running with the land.
MR STAGNO: Yes.
I also accept the submission of Mr McMullen that it is a well‑established principle in planning law that a development approval, which as Mr Stagno accepts in this case, runs with the land.[63] On this basis, I am satisfied, and I find, there is no scope that cl 4.16.2 of LPS 1 does not apply, as the applicants contend. Therefore, consistent with cl 4.16.2, I do not regard the existing (approved) dwellings as supporting justification for the proposed subdivision.
[63] ts 180, 8 December 2023. See for example Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55 at [67] and Low & Anor v Swan Cove Holdings Pty Ltd & Anor [2003] WASCA 115 at [182].
However, I also observe, and despite similar provisions in DC 3.4 (at cl 6.2), the existence of dwellings on the Land, is not a matter which fetters the discretion available to me, as the decision-maker in this case, given the observations of his Honour Chaney J in Martin[64] identified earlier at [14].
[64] Martin at [33].
Issue 2, to which I turn next, involves further consideration of the statutory planning framework, being cl 6.1 of DC 3.4. I will also return to the statutory planning framework at Issue 3 (orderly and proper planning).[65] Therefore, my findings to this issue (Issue 1) are provided later (at [100] – [105]) after considering these issues.
Whether the waterway traversing the Land should be considered a significant physical division for the purposes of cl 6.1 of DC 3.4
[65] Commencing at [85].
The respondent contends cl 6.1 of DC 3.4 specifies that significant physical divisions include rivers but not creeks that are commonly crossed for farm management purposes. Further, while the respondent accepts, vegetation lining the creek may present a barrier, the respondent contends the Land has frontage to Rosa Brook Road and Bessell Road which provides access to the balance of the Land and as a result traversing the eastern portion of the Land is not a significant physical division which warrants subdivision under cl 6.1 of DC 3.4.[66]
[66] Respondent's SIFC, paras 61 – 63, Exhibit 2.
The applicants contend a creek (such as the eastern creek on the Land) may be a 'significant physical division' if it cannot be commonly crossed for farm management purposes and it physically divides the Land. Further, the applicants contend it is unreasonable to expect a single landowner to travel along a section of public road (as distinct from simply crossing from one side to the other) to access different parts of their landholding.[67]
[67] Applicant's SIFC, paras 36 – 37, Exhibit 9.
The parties accept the term 'significant physical division' is not defined in DC 3.4, instead cl 6.1 describes what one may (or may not) be, as follows:[68]
… A significant physical division would include, but not be limited to, a controlled access highway or a river but would not generally include minor barriers such as rural roads or creeks that are commonly crossed for farm management purposes [.]
[68] Respondent's s 24 Bundle of Documents, page 419, Exhibit 3.
I will now turn to consider the evidence.
Ms Elliot considers a significant physical division one which is not limited to the boundaries of a single lot, saying it is 'significant' because it affects a large area and has limited points at which it can be crossed. Further she asserts the permanency of the barrier is relevant and draws on the examples found in DC 3.4 of 'a controlled access highway' and 'a river', saying it is unlikely either will cease to present a barrier.[69]
[69] Witness Statement of Leah Elliot, para 92, Exhibit 6.
Mr Stagno observes (from aerial imagery and visiting the Land) that Plot 1 (which includes the eastern creek) is not traversable within the Land. He says the eastern creek is lined with dense vegetation with a width of 70 to 130 metres, extending from the northern boundary of the Land (at Bessell Road) to the southern boundary (at Rosa Brook Road).[70]
[70] Witness Statement of Alessandro Stagno, paras 9.3 – 9.4, Exhibit 11.
Mr Stagno asserts this barrier is a significant physical division for three reasons.[71] First, he opines 'the idea that a landowner needs to travel hundreds of metres along a public road to access different part of the same rural landholding is problematic', because he says 'the public road system is not under the control of any landowner and is used by the public at large, there are scenarios that could inhibit the ability to use the external road network'.
[71] Witness Statement of Alessandro Stagno, para 9.9, Exhibit 11.
Second, he contests DC 3.4 does not expressly state a physical division which genuinely restrains movement within a rural lot but is capable of being crossed via the external road network, is not a significant physical division. He says the phrase in cl 6.1 of DC.3.4 'creeks are commonly crossed for farm management purposes' logically relates to crossings within private land that facilitates movement for farm management from one side to the other.
Third, he asserts in a practical sense (if the proposed subdivision was completed) the movements to and from the road network for the dwellings on PL 88 and PL 89 would be the same.
Mr McMullen cross-examined the planning experts on the public road network adjoining the Land. This resulted in the following exchange where Mr Stagno concedes the public road network provides alternative access for the division that is present on Land:[72]
[72] ts 86 – 87, 6 December 2023.
MR McMULLEN: [respondent's counsel]
If you wanted to, if you were the rural land user of this land and you wanted to not traverse plot 1 [vegetation and eastern creek] for any reason and you didn't want to do anything to the vegetation on plot 1 for whatever reason, in fact, it's relatively easily circumvented using the adjoining public roads; do you agree?
MR STAGNO: I wouldn't say it's easily circumvented, but I would say it is an alternative option.
MR McMULLEN: Yes. And you were in agreement with that, Ms Elliot.
MS ELLIOT:Yes.
MR McMULLEN: Right. That being the case, the plot of vegetation and the creek, they're really not significant in any practical sense, are they, Ms Elliot?
MS ELLIOT: In my view, no.
MR McMULLEN: Mr Stagno.
MR STAGNO: Given that they physically divide the land into two separate areas that cannot be crossed within the site itself, it is my opinion that it is significant.
MR McMULLEN: It's not significant in the sense that it's easily bypassed; is that not the case?
MR STAGNO: I wouldn't agree that it's easily bypassed, but the external road network could be used.
I accept this evidence that the public road network provides an alternative access and can be (as it presently is and historically has been) used to access and manage the Land. At the hearing, the planning experts agree there is approximately 300 metres between the two existing gates on Bessell Road enabling each side of the Land (separated by Plot 1/the eastern creek) to be accessed.[73]
[73] ts 83 – 84, 6 December 2023.
Further, considering the evidence on this aspect, I prefer the evidence of Ms Elliot, and agree a significant physical division should be one which is a significant barrier. The eastern creek (and associated vegetation) does not, in my view, constitute a significant physical division in this case, because it is readily overcome by the existing roads, including Bessell Road. This road, I accept, is a road primarily serving local, including rural, purposes and further the Land has the benefit of three gated access points to this road with a distance of approximately 300 metres to be travelled to access each side of eastern creek.[74]
[74] Witness Statement of Leah Elliot, paras 23 – 25 and Attachment LE3 and photos 6 – 8, Exhibit 6. This is in addition to four gate/access points to the Land on Rosa Brook Road, although I accept (as observed at the view) vehicle access is not currently readily available at all these locations.
In Hancock and Western Australian Planning Commission [2010] WASAT 145 (Hancock), the Tribunal considered a rural subdivision which also involved a creek which the applicant contended was a 'significant physical division'. In that case, the applicant asserted the creek flowed all year round and was prone to flooding in the winter months. Further, there was no vehicular access over the creek and because the Shire of Dardanup had allowed the bridge on Rose Road to fall into disrepair, the only access to the part of the site on the north‑eastern side of the creek was the 3 kilometre drive via the South Western Highway.[75] In that case, the Tribunal after considering all the evidence, which included that there may be opportunities for the creek to be crossed at certain locations and at certain times of the year, accepted it presented an inconvenience, but did not constitute a significant physical division, as the term is used in DC 3.4.[76]
[75] Hancock at [46].
[76] Hancock at [51] and [53].
Considering these observations in Hancock, the division of the Land in this case, in my view at its most generous, goes no higher than an inconvenience, given the immediate availability of the adjoining public road network and the short distance (300 metres) between the existing gates/access points enabling ready access to the entire Land.
Further, the planning experts disclaim expertise in farm management and there is no expert evidence of the need for internal access for farm management purposes, given none presently exists (or, on the evidence before me, has historically existed). There is also no evidence that an internal access across the eastern creek, if one is needed, could definitely not be created (or approval for one ever being sought).
Considering the evidence before me, which identifies alternative road access is readily available (and this enables access to the entirety of the Land) I am satisfied, and I find, the eastern creek traversing the Land (and for clarity, the associated vegetation in Plot 1) does not constitute a significant physical division under cl 6.1 of DC 3.4.
Whether the proposed subdivision is consistent with orderly and proper planning of the locality
When considering orderly and proper planning in Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 (Marshall), at [179], her Honour Pritchard J explains:
… The ordinary meaning of the word 'orderly' includes 'characterised by or observant of order, rule, or discipline'. In other words, to be orderly and proper, the exercise of a discretion within the planning context should be conducted in an orderly way - that is, in a way which is disciplined, methodical, logical and systematic, and which is not haphazard or capricious.
And further, in Marshall at [180]:
… The State Administrative Tribunal has observed that at 'the heart of orderly and proper planning' is a public planning process which permits the assessment of individual applications against existing planning policies 'so that the legitimate aspirations found in the planning framework may be translated into reality'.
Also, in Marshall at [182], her Honour continues:
While the exercise of discretion will involve a judgment about what is suitable, appropriate, or apt or correct in a particular case, that judgment must (if it is to be 'orderly') be an objective one. If the exercise of discretion is to be an orderly one, the planning principles identified as relevant to an application should not be lightly departed from without the demonstration of a sound basis for doing so, which basis is itself grounded in planning law or principle. A broad range of considerations may be relevant in that context.
In this case, in the context of orderly and proper planning, the respondent contends closer subdivision of the Land is not consistent with the prevailing lot sizes in the locality, would be an ad-hoc and unplanned breakdown of rural landholdings and is contrary to the intentions for this locality set out in the applicable planning instruments.[77]
[77] Respondent's SIFC, para 47, Exhibit 2.
The applicants submit the proposed subdivision will not have any bearing on the rural potential of the Land and that because the Land is already physically divided into two separate portions (each with an existing dwelling), the proposed subdivision will not change the way the land is used.[78]
[78] Applicant's SIFC para 48 – 49, Exhibit 9.
The evidence of Mr Stagno, which was not contradicted, provides an analysis of lot sizes for lots zoned General Agriculture in the Rosa Brook locality. While prevailing lot size, I accept, may be a consideration, it is not, in my view, in any way determinative of the question of whether the proposed subdivision is consistent with orderly and proper planning in this case. This is because on the evidence of Ms Elliot, which I accept, 'prevailing lot sizes' was removed as a consideration from DC 3.4 in the 2012 version and is not included in the current, 2016, version.[79]
[79] Witness Statement of Leah Elliot, para 123, Exhibit 6.
The relevant considerations, when considering orderly and proper planning in this case, in my view, go to firstly, a consideration of the impact of the proposed subdivision on the purpose for which the land is zoned, being 'General Agriculture' and, secondly, whether the proposed subdivision is consistent with the provisions of the planning framework, and if not, if any cogent reasons exist to depart from the framework in this case. I will now consider these aspects.
Firstly, the evidence of Ms Elliot identifies the importance of productive agricultural uses in the Shire and that it is the intention and expectation for this land to be available for productive agricultural uses.[80] I accept this evidence.
[80] Witness Statement of Leah Elliot, para 109, Exhibit 6.
The relevant objectives of the General Agriculture zone are at cl 4.2.2.2[81] of LPS 1 and in particular (b) and (c) are, in my view, relevant:
…
(b)To preserve the established rural character and amenity of the land within the Zone consistent with the ongoing use and development of that land for productive agricultural purposes;
(c)To oppose subdivision proposals which would adversely affect the utility of agricultural land for productive purposes through specific subdivision criteria to ensure long term agricultural sustainability and appropriate lot sizes as set out at clause 4.15.5 [sic][82][.]
[81] Set out earlier at [35].
[82] The reference to cl 4.15.5 appears to be an error as this clause relates the Bushland Protection zone (and is not relevant in this case). Clause 4.16.5 is accepted as the relevant clause.
However, as mentioned,[83] no expert evidence was before me as to the impact the proposed subdivision would have on the productive agricultural capacity of the land. The applicant submits there will be no impact and relies on the evidence of Mr Stagno who uses historical aerial imagery to conclude PL89 (the smaller proposed lot at 9.6 hectares) has been previously used for agricultural purposes in its own right and this will not change as result of the proposed subdivision.[84] This evidence, in my view, is plainly insufficient to demonstrate the agricultural capacity of the land is unaffected, as I shall explain.
[83] See [58] – [59].
[84] Witness Statement of Alessandro Stagno, para 11.5 c, Exhibit 11.
Under cross-examination, Mr Stagno accepts a rural property could be used for more than one land use at a time and accepts that for stock to subsist on the Land they require feed (such as grass) and water.[85] Mr Stagno accepts the dam on the Land would be wholly within PL 89 and not accessible to PL 88, however he says this dam is currently dedicated for use by dwelling 1 (on PL 89).[86]
[85] ts 73, 6 December 2023.
[86] ts 74 – 75, 6 December 2023.
Further cross-examination on this point, resulted in the following exchange:[87]
[87] ts 75, 6 December 2023.
MR McMULLEN: [respondent's counsel]
… you didn't take account of the availability of water across the site when you made that statement, did you?
MR STAGNO: Not specifically; however, advice from the landowner has been that the dam that you've referenced within [P]lot 1 was established to serve dwelling 1 and the paddock around it. So it was always based on the premise that that dam has never served the area west of [P]lot 1 anyway.
MR McMULLEN: That's its current land use, isn't it?
MR STAGNO: Current and historical.
MR McMULLEN: Yes. But in the future – orderly and proper planning is about the future as well as present; do you agree?
MR STAGNO: Yes.
MR McMULLEN: So subdivision in the manner proposed would constrain the future agricultural capability of the land.
MR STAGNO: Not necessarily because it's still possible to construct a new dam if it was required to do so.
MR McMULLEN: I see. Where would the new dam be constructed?
MR STAGNO: There's 38 hectares of area.
MR McMULLEN: Well, doesn't it have to be in the creek line?
MR STAGNO: Not necessarily. But there is [P]lot 3, which contains a creek line and an existing dam, so that one could probably be expanded.
This evidence points to a relevant impact of the proposed subdivision being the ad-hoc and unplanned fragmentation of the Land, including the management of its water resource. Further, and contrary to cl 4.16.5(c)(i) and (ii) of LPS 1, there is no evidence before me that the water supply for the subdivided lots will, in fact, be sufficient for agricultural production (which includes into the future).
While Mr Stagno (who is not an expert hydrologist or agronomist) suggests an expansion of water storage on PL 88 may be possible, there is an absence of relevant expert evidence (or any evidence of approval being sought or obtained) for expanded water storage.
In my view, considering the evidence before me, ad-hoc fragmentation of the Land and the associated fragmentation of the management of its water resources, which will be an outcome, is a significant factor also weighing against the proposed subdivision. This is particularly so, as the respondent submits,[88] considering the relevant purpose of the PD Act at s 3(1)(c)[89] which goes to the 'sustainable use and development of land'. Further, drawing on the observations of Chaney J identified earlier[90] in Martin, in my view, this is also a factor weighing strongly against the exercise of planning discretion to approve the proposed subdivision.
[88] ts 187 – 188, 8 December 2023.
[89] See [16].
[90] See [14].
Secondly, returning to address the planning framework (identified earlier in Issue 1) this, in my view, does not support the proposed subdivision. Considering my earlier findings at Issue 1, where the approved (existing) dwellings are not a factor to consider in support of the proposed subdivision (under cl 4.16.2 of LPS 1), and at Issue 2, where the eastern creek does not constitute a significant physical division (under cl 6.1 of DC 3.4), other relevant provisions of the planning framework also do not, in my view, support the proposed subdivision. This includes:
(a)LPS 1 cl 4.2.2.2 objective (c), which is relevant given my earlier observations relating to water management in this case and states:
To oppose subdivision proposals which would adversely affect the utility of agricultural land for productive purposes through specific subdivision criteria to ensure long term agricultural sustainability and appropriate lot sizes as set out at clause 4.15.5 [sic][91][.]
[91] The reference to cl 4.15.5 appears to be an error as this clause relates the Bushland Protection zone (and is not relevant in this case). Clause 4.16.5 is accepted as the relevant clause.
(b)LPS 1 cl 4.16.5(a) which states (and I observe, on the evidence before me, there is no planned provision of closer settlement or more intensive agricultural uses in this case):
In the absence of the planned provision of closer settlement and more intensive agricultural uses, existing large rural lots are to be retained for broad acre and traditional forms of farming and the fragmentation of rural land and loss of rural character through piecemeal, unplanned subdivision is not permitted.
(c)LP Strategy – Subdivision Controls, which states:[92]
[92] LP Strategy section addressing Agriculture and Food, Respondent's s 24 Bundle of Documents, page 346, Exhibit 3.
The diversity of available lots in the Shire, across all sizes, suggests there is no justification for allowing existing lots to be subdivided to create smaller agricultural lots [.]
Further, at AF2 the LP Strategy states:[93]
[93] Respondent's s 24 Bundle of Documents, page 347, Exhibit 3.
With the exception of conservation subdivision, subdivision in accordance with the Leeuwin Naturaliste Ridge State Planning Policy, Augusta-Walpole Coastal Strategy and Development Control Policy 3.4, further subdivision will not be supported in the Agricultural Zone[.]
(d)SPP 2.5 – cl 5.1(e), cl 5.1(f)[94] and cl 6.5. Clause 6.5 relevantly states:
It is the view of the WAPC that there are sufficient, suitably sized and located rural lots to cater for intensive and emerging primary production land uses. Creation of new rural lots through ad-hoc, unplanned subdivision will not be permitted.
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 local planning strategy or scheme[.]
(e)DC 3.4 – cl 5(a) and cl 5(b).[95]
[94] See [48].
[95] See [48].
As the Tribunal has observed (and accepted) when considering rural subdivision proposals, the planning framework contains a presumption against the subdivision of rural land.[96] In Bookara Holdings, the Tribunal also observes:[97]
… The proper approach to considering the applicant's subdivision proposal is to apply these policies and determine whether any of the specific circumstances identified by the policies as providing a basis for subdivision apply. If they do not, it is then necessary to consider whether there are any reason why the general policy position should not be applied in this case.
[96] See Bookara Holdings Pty Ltd and Western Australian Planning Commission [2015] WASAT 111 (Bookara Holdings) at [34] and cited by Chaney J in Martin at [56].
[97] Bookara Holdings at [34].
Considering this, and drawing on the observations of her Honour, Pritchard J in Marshall,[98] the present case is one which, given my earlier finding at Issue 2, is absent exceptional circumstances under cl 6 of DC 3.4 and, on the evidence before me, there is no other cogent reason why the general policy position should not be applied in this case. As a consequence, there is no 'demonstration of a sound basis' to depart from the 'legitimate aspirations found in the planning framework'.
[98] Marshallat [180] and [182] and see earlier at [86] – [87].
Therefore, I am satisfied, and I find, that in the exercise of planning discretion, approval of the proposed subdivision would not be consistent with orderly and proper planning, for two reasons.
Firstly, approval of the proposed subdivision would result in ad‑hoc fragmentation of rural land and cause fragmentation of the management of its water resources.
Secondly, the proposed subdivision is not consistent with the statutory planning framework, and there is no cogent reason why the planning framework, including relevant State planning policies and the local planning scheme, should not be applied in this case.
Whether approval of the proposed subdivision would create an undesirable precedent for subdivision of rural land
The established test when considering the question of adverse (or undesirable) planning precedent is found in Nicholls, and has two limbs to be satisfied:[99]
(1)That the proposed development or subdivision is not in itself unobjectionable; and
(2)That there is more than a mere chance or possibility that there may be later undistinguishable applications.
[99] Nicholls at [74].
Further, in Marshall v Western Australian Planning Commission (1995) 15 SR (WA) 170, cited in Nicholls at [72], the question of undesirable precedent is accepted as a valid planning consideration but there has been reluctance to place great importance on it as an argument. To summarise, undesirable precedent will not defeat, on its own, a subdivision of merit, but where 'there is a strong code and standard and there is no compelling reason why subdivision should proceed, the precedent argument provides a further rationale for refusing subdivision'.
Consideration of the first limb
Turning now to consider the first limb, the respondent contends the proposed subdivision is not unobjectionable and submits this is because it is not consistent with LPS 1, relevant planning policies and that the proposed subdivision results in fragmentation of rural land.[100] Neither the applicants' submissions,[101] nor the evidence of Mr Stagno,[102] address the first limb.
[100] ts 186, 8 December 2023.
[101] ts 30, 6 December 2023 and ts 174, 8 December 2023.
[102] Witness Statement of Alessandro Stagno, para 10, Exhibit 11.
Ms Elliot asserts 'the proposed subdivision would be inconsistent with the intentions, objectives and standards set out in SPP 1 and SPP 2.5 and DC 3.4, the [LP Strategy] and LPS 1, in particular the presumption against the subdivision of agricultural land. Thus, in my view approval of the [proposed subdivision] would represent a departure from the well-established State planning framework and there is no justified reason to depart from it'.[103]
[103] Witness Statement of Leah Elliot, para 102, Exhibit 6.
Given my earlier finding that an exceptional circumstance under cl 6 of DC 3.4 (as to a significant physical division) do not exist in this case,[104] and that the planning framework does not support the proposed subdivision,[105] I accept this evidence of Ms Elliot, and agree the proposed subdivision is not unobjectionable. Therefore, I am satisfied, and I find, the proposed subdivision does not satisfy the first limb.
Consideration of the second limb
[104] See [69] – [84].
[105] See [100] – [105].
As to the second limb, Ms Elliot identifies two sites in the locality (of Rosa Brook) and one in the neighbouring district of Osmington which she says have similar characteristics as the Land. To identify the relevant characteristics, Ms Elliot draws on the two elements highlighted in the applicants' SIFC,[106] which the applicant submits make the Land unique, being, 'it has a significant area that is enclosed between the genuinely impassable vegetated creek and two public road reserves'.
[106] At para 40, Exhibit 9.
The three sites Ms Elliot identifies with these characteristics are:[107]
(a)Lot 313 (No 38) Streatfield Road, Osmington, being 39 hectares in area;
(b)Lot 292 (No 1793) Rosa Brook Road, Rosa Brook, being 29.6 hectares in area; and
(c)Lot 29 (No 1716 Rosa Brook Road, Rosa Brook, being 20.2 hectares in area.
[107] Witness Statement of Leah Elliot, para 106 and Attachment LE10, Exhibit 6.
Mr Stagno's evidence is all these examples have crossing points over the creek lines.[108] He also asserts, based on a comparison with historical aerial photographs,[109] the vegetation in the Rosa Brook examples is regrowth. I accept this evidence, and further that this analysis demonstrates that in this locality, and in the neighbouring district of Osmington, there are no sites that share these two characteristics with the Land.
[108] ts 131, 7 December 2023.
[109] Exhibit 13.
Mr Stagno's written evidence considers precedent by seeking to identify sites in the locality which may share very specific characteristics with the Land. This includes a corner lot with frontage to Rosa Brook Road, a creek with native vegetation extending 70 to 130 metres in width (which prevents vehicular access from one side to the other) and the presence of an existing dwelling on both sides of the constraint.[110] He asserts, applying these specific criterion, there are no other lots with the same characteristics in the locality.[111] This result is, in my view, unremarkable given the very specific criterion he employs.
[110] Witness Statement of Alessandro Stagno, para 10.3, Exhibit 11.
[111] Witness Statement of Alessandro Stagno, para 10.6, Exhibit 11.
However, returning to consider the issue as framed by the respondent (and accepted by the applicant),[112] the respondent submits, and I accept, it relates more broadly to 'rural land' (i.e., not only to rural land in the locality).[113]
[112] Applicant's SIFC, para 3, Exhibit 9.
[113] ts 185 – 186, 8 December 2023.
Ms Elliot argues that as SPP 2.5 and DC 3.4 apply across the State, if a precedent were set through an arbitrary departure from the policy position to conserve agricultural land, it could conceivably be replicated anywhere in the State.[114]
[114] Witness Statement of Leah Elliot, para 103, Exhibit 6.
I accept SPP 2.5 and DC 3.4 have a broader application beyond the locality identified. Considering the key contention at the heart of this application (the existence (or not) of a significant physical division on the Land), on the evidence before me, I cannot be satisfied the proposed subdivision, meets the second limb 'that there is more than a mere chance or possibility that there may be later undistinguishable applications' in the context of rural land generally.
Considering the above, the proposed subdivision does not meet the two limbs of the test for adverse planning precedent (as set out in Nicholls). Therefore, I am satisfied, and I find, approval of the proposed development would create an undesirable precedent for subdivision of rural land.
Conclusion
The proposed subdivision seeks approval to subdivide the Land, being rural land, into two lots.
The established planning framework has a presumption against the subdivision of rural land, and although LPS 1 does contain provisions which may allow subdivision to be considered (at cl 4.16.5(c)), the applicant concedes the proposed subdivision does not meet these requirements.
I accept approval of the proposed subdivision is possible, even in circumstances where it conflicts with the local planning scheme (LPS 1), because an exception at s 138(3)(a) of the PD Act is satisfied in this case.
However, while an exception exists enabling approval to be considered, the proposed subdivision fails, in my view, when considered on its merits. The applicants' main argument is that a significant physical division exists on the land, which meets an exception requirement of cl 6 of DC 3.4. However, I found (at Issue 2) the division of the Land (which, in my view, goes no higher than an inconvenience) cannot be considered a 'significant physical division' within the use of that term under cl 6 of DC 3.4.
Weighing my findings on Issues 1 to 4 and having due regard to the relevant planning considerations, including LPS 1 and the relevant State planning policies,[115] and considering the largely unfettered discretion afforded me as decision maker in this case,[116] I conclude the 'correct and preferable decision at the time of the decision upon the review'[117] is to dismiss the application for review and affirm the decision of the respondent to refuse the proposed subdivision.
[115] As required by s 241(1)(a) of the PD Act.
[116] See [14] – [16].
[117] Under s 27(2) of the SAT Act.
This is for the reasons I have outlined, principally because I have found there is no significant physical division of the Land and there is no other cogent reason to depart from the planning framework in this case. Further, approval of the proposed subdivision would result in ad‑hoc fragmentation of rural land which is contrary to orderly and proper planning and would create an adverse planning precedent.
For these reasons, the Tribunal makes the following orders.
Orders
The Tribunal orders:
1.The application for review is dismissed.
2.The decision of the respondent is affirmed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR R Povey, MEMBER
29 JANUARY 2024
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