Brown and Anor and Western Australian Planning Commission - [2007] WASAT 241

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: BROWN & ANOR and WESTERN AUSTRALIAN PLANNING COMMISSION [2007] WASAT 241

MEMBER: MR R EASTON (SENIOR SESSIONAL MEMBER)

HEARD: 27 JULY 2007

DELIVERED : 17 SEPTEMBER 2007

FILE NO/S: DR 151 of 2007

BETWEEN: MARIA ANNE BROWN
IAN REGINALD BROWN
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Town Planning - Subdivision - Rural land - Productive agricultural land - Townsite - Draft planning scheme - Statement of Planning Policy No 2.5 "Agricultural & Rural Land Use Planning" - Policy No DC 3.4 "Subdidivision of Rural Land" - Precedent - Rural character - Existing subdivision pattern - Special exemptions of s 138(3) of the Planning and Development Act 2005 (WA) - Hardship provisions of s 241(3) of the Planning and Development Act 2005 (WA)

Legislation:

Planning and Development Act 2005 (WA), s 24(5), s 25, s 138, s 138(3), s 241, s 241(3), s 250(1)
Shire of Irwin Draft Local Planning Scheme No 5, cl 5.30.1, cl 6.3
Shire of Irwin Town Planning Scheme No 4, cl 3.7, cl 3.7.1(3), cl 3.7.2(3), cl 5.2.8, cl 5.2.8(e)(iii)
State Administrative Tribunal Act 2004 (WA), s 29
Town Planning and Development Act 1928 (WA), s 5AA

Result:

The application for review is allowed
The decision of the respondent is set aside and conditional approval granted

Category: B

Representation:

Counsel:

Applicant: Mr Wittkuhn
Respondent: Ms Patterson

Solicitors:

Applicant: McLeods Barristers & Solicitors
Respondent: State Solicitor's Office

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

Aspen Pty Ltd v State Planning Commission (Unreported; Appeal No 13 of 1988, 21 October 1988)
Goldin & Anor v Minister for Transport (2002) 121 LGERA 101
Hill v State Planning Commission (1994) 10 SR (WA) 354
Landpark Holdings Pty Ltd and Western Australian Planning Commission [2007] WASAT 130
Marshall v Western Australian Planning Commission (1995) 15 SR (WA) 170
Nicholls v Western Australian Planning Commission (2006) 149 LGERA 117
Perrymead Investments Pty Ltd v Western Australian Planning Commission (1996) 16 SR (WA) 181
Stewart and Western Australian Planning Commission [2005] WASAT 116

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

This matter involved an application for review of the Western Australian Planning Commission's refusal of a proposal to subdivide Lot 22 Midlands Road in the Irwin Townsite into two lots of 2.388 hectares and 2.023 hectares.
The principal issue involved whether the proposal conflicted with the planning framework, having regard to whether the proposal would result in loss of productive agricultural land in conflict with regional policies and whether the proposal had the potential to result in additional development that would adversely impact on the rural character of the locality.
The Tribunal determined that the proposal did not conflict with the planning framework; that it would not result in the loss of productive agricultural land; that it was consistent with the subdivision pattern within the Irwin Townsite and that it would not adversely impact on the character of the locality.
If the proposal conflicted with the planning framework, the Tribunal was asked to consider this application in terms of s 138(3) and s 241(3) of the Planning and Development Act 2005 (WA). It was not necessary to determine the application under these sections of the Act because the Tribunal did not find any conflict with the planning framework. Nevertheless for completeness, the Tribunal did find that the unique circumstances of the application would have allowed approval under s 138(3). However, the application would have failed had it needed to rely on the hardship provisions of s 241(3).
The application for review of the Western Australian Planning Commission's decision was allowed subject to conditions.
Introduction
These proceedings involve an application brought by Maria and Ian Brown (applicants), pursuant to s 250(1) of the Planning and Development Act 2005 (WA) (PD Act), for review of the decision of the Western Australian Planning Commission (respondent or Commission) to refuse an application to subdivide Lot 22 Midlands Road, Irwin (subject land) into two lots of 2.388 hectares and 2.023 hectares.
The application was received by the respondent on 30 October 2006 and was refused on 30 January 2007 for the following reasons:
"1.The proposed subdivision is inconsistent with the 'General Farming' zoning of the land in Council's Town Planning Scheme. Subdivision in the manner proposed would create the potential for additional building development and the introduction of increased non-rural activity in conflict with the zoning objectives.
2. The proposed subdivision is inconsistent with the Commission[']s Policy DC3.4 'Subdivision of Rural Land' which has a general presumption against supporting the subdivision of Rural land unless it is specifically provided for in a town planning scheme, an endorsed local planning strategy or an endorsed local rural strategy.
3.Approval to the subdivision would create an undesirable precedent for the further subdivision of other lots of a similar size in the Rural Zone of this locality."
The applicants requested the respondent to reconsider its decision in accordance with the provisions of s 24(5) of the PD Act. In an undated letter (possibly referring to a meeting on 3 April 2007) the respondent advised that it had decided to reiterate its previous decision. The letter stated in part:
"Having taken all of the points in your request for reconsideration into account, the Western Australian Planning Commission has concluded that the reasons for the original refusal were well founded and that no compelling evidence has been provided to warrant a departure from its previous decision. Accordingly, the Commission has resolved to reiterate its previous decision to refuse the application. However, it is noted that the current policy framework that applies to the Irwin Townsite is under review and this may alter the way subdivision application(s) in the Irwin Townsite are considered in the future."
On 30 April 2007, the applicants lodged an appeal against the respondent's reiteration of its earlier refusal.

Subject land, locality and proposal

The subject land is described as Lot 22 Midlands Road, Irwin. It is triangular shaped with a frontage of approximately 480 metres to Midlands Road (south), 135 metres to Harriet Street (east) and just over 500 metres to a railway reserve at the rear. The subject land has an area of 4.4114 hectares.
The subject land contains an existing dwelling, associated outbuildings and a small orchard at the western end. The eastern end of the subject land is vacant apart from a windmill and a small bore.
The subject land is located within the Irwin Townsite. The Townsite has not been developed. Some of the roads are not constructed and there is no sewerage, reticulated water, community or commercial facilities within the Townsite. The nearest facilities are located 17 kilometres away in Dongara.
The Townsite consists of 24 lots and a reserve. The lots range in size from 1.9398 hectares to 10.028 hectares. The majority (15 lots) are less than 2.5 hectares. The subject land is currently the third largest lot in the Townsite. The proposed subdivision will increase the number of lots that are less than 2.5 hectares from 15 to 17 lots.
Outside the Townsite, the lot sizes in the immediate locality range from 0.4 hectares to 64.19 hectares.

The proposal

The proposal is to subdivide the subject land into two lots. The western lot is proposed to be 2.388 hectares in area. It will contain the existing house and will have a frontage of 328 metres to Midlands Road. The eastern lot is proposed to be 2.023 hectares in area with a frontage of 150 metres to Midlands Road and a 135 metre frontage to Harriet Street.

Planning framework

Zoning

The subject land is zoned "General Farming" under the Shire of Irwin Town Planning Scheme No 4 (TPS 4 or Scheme). TPS 4 does not make special provisions for land within the Irwin Townsite compared to land outside the Townsite.
The proposed zoning is "Rural Smallholdings" in the Shire of Irwin Draft Local Planning Scheme No 5 (Draft LPS 5) (also known as "Town Planning Scheme No 5"). Draft LPS 5 does not make special provisions for land within the Irwin Townsite compared to land outside the Townsite. However, cl 5.30.1 of Draft LPS 5 sets minimum lot sizes for the "Rural Smallholdings" zone with the minimum lot sizes being 15 hectares in area D, 20 hectares in area G and "[f]or land in and adjacent to the Irwin Townsite, the minimum lot size shall be 10 [hectares]."
There is extensive planning framework at both a regional and shire level to guide decision‑making on the subdivision of rural land.

Regional planning framework

The Statement of Planning Policy No 1 - State Planning Framework (SPP 1) was prepared under s 5AA of the Town Planning and Development Act 1928 (WA) and continues in force as a State Planning Policy under s 25 of the PD Act. SPP 1 sets out the key principles guiding planning decision‑making on land use and regional development. SPP 1 establishes a central framework for State and regional policies, strategies and guidelines and provides the context for decision‑making by the respondent on matters of land use and development, including subdivision. Pursuant to s 241 of the PD Act, the Tribunal is required to have due regard to the provisions of this policy.
Relevant policies listed in SPP 1 include Statement of Planning Policy No 2.5 ‑ Agricultural and Rural Land Use Planning (SPP 2.5) and Policy No DC 3.4 ‑ Subdivision of Rural Lands (DC 3.4).
SPP 2.5 lists four key objectives which are:
i)Protect agricultural land resources wherever possible;
ii)Plan and provide for rural settlement where it can;
iii)Minimise potential for land use conflict; and
iv)Carefully manage natural resources.
Clause 5.3.1(iii) of SPP 2.5 states that the respondent will only support subdivision of "Rural‑Residential" and "Rural Smallholdings" where the land has been appropriately zoned within the town planning scheme.
DC 3.4 is listed as an operational policy under SPP 1 and is directly relevant to this application. Clause 3.1.1 of DC 3.4 states: "There is a general presumption against subdivision of rural land unless it is specifically provided for in a town planning scheme, an endorsed local planning strategy or an endorsed local rural strategy."

Local planning framework

The local planning framework is made complex because of the pending change from TPS 4 to Draft LPS 5. TPS 4 is the current Scheme and the relevant planning law. Nevertheless, Draft LPS 5 and the associated Draft Local Planning Strategy are "seriously entertained planning documents" due to their advanced nature. The respondent states that "[o]n 22 May 2007 the Minister for Planning and Infrastructure granted Final Approval to the Draft LPS 5 and the Draft Rural Strategy, subject to a number of modifications which are not relevant to the present application."

Town Planning Scheme No 4 and Local Rural Strategy 1993

The subject land is zoned "General Farming" in TPS 4 and is located in Policy Area C of the Shire of Irwin's Local Rural Strategy 1993 (LRS).
The Policy Statement for the "General Farming" zone states that:
"This zone embraces the broadacre farming areas of the Shire. It is intended to protect the economic viability of those areas generally and to preserve the rural character and appearance of the area. The lot sizes shall be at the discretion of Council based on what is locally accepted as a viable farm unit, or where a non‑farming use is proposed on the amount of land required for that purpose."
The "Zoning and Development Table" for the "General Farming" zone states that the minimum lot size shall be "[b]ased upon locally acceptable Farm Units." The Table does not specify a minimum area of lot per dwelling, noting the requirement is n/a (not applicable).
Clause 3.7 of TPS 4 provides that, in considering subdivision applications, the Council shall have regard to the LRS as specified in cl 5.2.8 of TPS 4.
Clause 3.7.1(3) of TPS 4 sets out the rationale which forms the basis of the Council's LRS for Policy Area C, considering matters such as:
"(a)The need to consolidate and/or promote sound agricultural practice being undertaken on "Active" Rural Holdings throughout the Shire.
(b)The need to encourage realistic active rural land value retention.
(c)The need to encourage the continuing proper and responsible productive use of rural land …
(d)The need to encourage land rehabilitation and the preservation of uncleared low yield rural land.
(e)In the case of projects of a Horticultural and/or Intensive Farming nature, the management of land with adequate water supply and of suitable soil type …"
Clause 3.7.2(3)(a) of TPS 4 provides that subdivision in Policy Area C will only be supported by the Council where:
"(i)Dedicated constructed public road access is available.
(ii)Lot sizes are consistent with the predominant lot sizes in the locality.
(iii)Sufficient water supply is available for the conducting of soundly based agricultural practice.
(iv)Any boundary rationalisation proposed pays regard to existing prevailing lot sizes in the locality, and is consistent with sound land use and management practice.
(v)In the case of any project of a Horticultural and/or Intensive Farming nature, proponents of such developments satisfies Council that the proposed venture has a reasonable prospect of commercial success …
(vi)In the case of projects of a Horticultural and/or Intensive Farming nature, no lot created is to have an area of less than 20 [hectares]."
Clause 3.7.2(3)(b) provides that Council will support the subdivision of land in Policy Area C where:
"… a de facto subdivision already exists on a property, due to such property being bisected by any road, rail or other appropriate service facility."
Clause 5.2.8 of TPS 4 provides that, in considering a subdivision application in the General Farming zone, the Council shall, in addition to the provisions of the Scheme or any applicable Policy Statement, have regard to the LRS.
Clause 5.2.8(e)(iii) provides that the general policies for Policy Area C are:
"That the subdivision/development of land within this Policy Area, the boundaries of which generally coincide with land areas of moderate or high agricultural quality, will be supported by Council for purposes of property consolidation, boundary alignment, and in special circumstances for Horticulture/Intensive Farming land purposes only, in order that continuing broad acre agricultural and/or Horticultural/Intensive Farming land use is promoted, in recognition of the quality of the land."

Draft Local Planning Scheme No 5 and Draft Local Planning Strategy

The subject land is zoned "Rural Smallholdings" in Draft LPS 5 and is proposed to be located in Policy Area C of the Draft Local Planning Strategy.
Clause 5.30.1 of Draft LPS 5 provides site requirements for the "Rural Smallholdings" zone:
"a)This zone relates primarily to Policy Areas D and G as contained in the Shire of Irwin Local Planning Strategy … For land in and adjacent to the Irwin Townsite, the minimum lot size shall be 10 [hectares]."
Of the 24 lots in the Irwin Townsite, only one lot will comply with the minimum lot size in Draft LPS 5. The Shire of Irwin recognises this inconsistency and, in a letter to the Commission, dated 8 May 2007, confirming its support for subdivision of land to 2 hectares in the Irwin Townsite, stated:
"It has been identified that the minimum lot size of 10 [hectares] for in and around the Irwin townsite as proposed by Draft Town Planning Scheme No 5 (Clause 5.30.1), is an anomaly and should be addressed. However, the Shire is in the process of finalising the new Scheme and does not wish to further delay its gazettal by undertaking the review now. The Shire acknowledges the review will require a Scheme Amendment in accordance with the provisions of the Planning and Development Act (2005) for the changes to take effect."
Clause 6.3 of the Draft Local Planning Strategy provides that the aim for Policy Area C is:
"To preserve and protect land within this policy area, which embraces the majority of active rural landholdings in the Shire, for continuing sustainable agricultural activity …"

Issues for Determination

The following four issues arise for determination in this review:
1)Whether the proposed subdivision conflicts with the planning framework.
2)If the proposed subdivision conflicts with the planning framework, whether there is a proper basis to depart from them and approve the proposed subdivision.
3)Whether approval of the proposed subdivision would create the potential for additional building development, introduction of increased non-rural activity and an undesirable precedent for further subdivision of other lots similar in size in the General Farming Zone of this locality.
4)Whether refusal of the subdivision would cause hardship to the applicants and enable the application to be approved under s 241(3) of the PD Act.
The Tribunal will consider each issue in turn.

Whether the proposed subdivision conflicts with the planning framework

There is an extensive planning framework at both a regional and shire level to guide decision‑making on the subdivision of rural land.

Regional planning framework

The policies SPP 2.5 and DC 3.4 work together. Their key purpose in the context of this application is the protection of agricultural land and, in the case of DC 3.4, there is a qualified presumption against the subdivision of rural land.
Mr Breeze, a senior planner employed by the respondent, states that he believes the proposal does not comply with SPP 2.5 for the following reasons:
"(a)it has not been demonstrated that the proposed lot sizes are capable of supporting economically viable broadacre activities or intensive agricultural pursuits;
(b)the proposed lots are to be used for lifestyle purposes rather than the continued use of land for productive agricultural purposes;
(c)it has not been demonstrated that each lot has a sustainable water supply for domestic, fire management, agricultural purposes and environmental uses;
(d)the land has not been appropriately zoned within the town planning scheme to allow further subdivision to occur; and
(e)it would result in the ad hoc fragmentation of land to the detriment of the continued agricultural use of the land."
Mr Breeze gives similar reasons for the proposal's failure to comply with DC 3.4, especially cl 6, adding that there has been no agricultural assessment and that "the possible impact of surrounding land uses and potential nuisance for [sic] significant noise (i.e. farm machinery) and other forms of nuisance to the proposed use (i.e. dust, spray drift etc) has not been assessed". He also expressed concern that the applicant has not demonstrated how the proposal will enhance the rural amenity of the area.
Mr Maiorana, a planning expert for the applicants, states there is sufficient flexibility within TPS 4 to permit subdivision.
Mr Maiorana argued that, consistent with the objectives of SPP 2.5, the proposal would not result in conflicting land uses because there was adequate separation of the subject land from productive agricultural land.
The significant element of Mr Maiorana's evidence was that SPP 2.5 and DC 3.4 are focused on productive agricultural land and that they therefore have limited or no relevance in this application, because the subject land is not productive agricultural land but rather a townsite lot typical of rural residential and containing a small non‑profitable orchard.

Mr Maiorana argued that the new lot will not result in the loss of any agricultural land because the size, location and soil of the existing and proposed lots are unsuitable for any increased rural activities. He noted the evidence of the applicants that the existing orchard breaks even. The orchard will be fully contained within one of the lots and cannot be expanded because of the lack of appropriate soil.
Focussing on the question of whether the proposal could result in the loss of agricultural land, the Tribunal had the benefit of the evidence of Mr McKenzie, an agricultural expert for the applicants. Mr McKenzie defined a viable rural business as "an enterprise that generates adequate net profit after taxation expenses to provide for the needs of those dependent on the enterprise." Mr McKenzie, when questioned, stated that this definition was accepted by the Agricultural Department of Western Australia and the majority of members of the Australian Association Of Agricultural Consultants, of which Mr McKenzie was President from November 2003 to September 2006. He further stated that, from his experience of consulting in the locality, the minimum size for a viable horticultural farm would be in the vicinity of 40 hectares.
He observed that the subject land was less than 10% of the size required for a viable business. However, more significant was his analysis of the soil types where he identified that this particular site contains four distinct soil types, with non‑productive shale loam comprising approximately 25%; fertile sand loam (the location of the orchard) comprising 20%; deep acid sands (infertile and highly leaching of water and nutrients) 15%; and heavy cracking clay 40%. The heavy cracking clay is on the eastern end of the site and is the major soil type on the eastern end of the two lots. Mr McKenzie described this soil as "untrafficable in winter due to waterlogging, which causes plants to drown from deoxygenated root systems. The clays are also very hard setting and non‑friable in summer, which prohibits summer crops such as vegetables."
The evidence of Mr McKenzie was that the subject land was not productive agricultural land and that it had no potential as an "add‑on lot". In explaining the latter point he noted the subject land was too small; it was isolated from other agricultural land; the shape was not appropriate for large scale machinery; and the four different soil types reduced any prospects of the land being viable.
On the question of possible conflict between the different land uses - productive broadacre farming outside the Irwin Townsite and the subject land - Mr McKenzie was definite in asserting there would be no conflict. He noted that the subject land was surrounded by other lots in the town centre that would act as a buffer and furthermore modern farming practices in the West Midlands (the use of "no‑till" machinery and the retention of stubble) negated the risk of dust from wind erosion. He also noted that modern application technology for herbicides and insecticides mean that the risk of drift from sprays is minimal.
The final significant aspect of Mr McKenzie's evidence concerned available water on the subject land. He stated that there are two bores: one on either side of the proposed subdivision. The current licence permits 37 440 kilolitres. The water volume from each bore is 10 600 litres per hour and he described the quality as excellent at approximately 16 grains of salt. Mr McKenzie stated "[w]ater supplies for the eastern and western portions of the property are sufficient for human consumption and fire treatment purposes."
Although Mr McKenzie was thoroughly cross‑examined, his evidence was not challenged. The Tribunal accepts the evidence of Mr McKenzie and notes his conclusion that "[t]he property will under no circumstances be a viable rural holding."
The Tribunal finds that there are no conflicts with SPP 2.5 and DC 3.4 because there will be no loss of productive agricultural land. The subject land is too small, too isolated, the wrong shape and has the wrong soil types to be a viable agricultural business. The orchard will be contained within one lot and there is no reason why it cannot continue to operate albeit at "break even" point as shown in the evidence. Similarly, the Tribunal finds that the proposal would not result in conflict in land use. The proposed lot sizes are consistent with the majority of lots in the Irwin Townsite. The lots are isolated from adjoining agricultural land and generally surrounded by other lots as a buffer from nearby agricultural land.

Town Planning Scheme No 4 and Local Rural Strategy 1993

Mr Breeze argues that the current use of the land as an orchard is consistent with the zoning of the land as "General Farming". He stated that the proposed residential use "would create the potential for additional building development and the introduction of non-rural activity in conflict with the zoning objectives".
With reference to cl 3.7.2(3), Mr Breeze argued that the proposed lot sizes are not consistent with the locality. In support of this claim he stated that lot sizes in the broader locality must be considered, not just the lots in the historic Irwin Townsite. He noted that TPS 4 does not provide separate provisions for land within the Townsite and that it remains general farming land. Mr Breeze also referred to the horticultural and/or intensive farming land requirements in the "General Farming" zone of TPS 4, which requires a minimum area of 20 hectares. He considered that approval of the subdivision would be inconsistent with the requirement cl 3.7.2(3) of TPS 4.
Mr Breeze also argued that the proposed subdivision is not for the purposes of property consolidation, boundary alignment or horticultural/intensive farming and is therefore inconsistent with the General Policies for Policy Area C as set out in cl 5.2.8(e)(iii) of TPS 4.
The Tribunal agrees with Mr Breeze's statement that the provisions of TPS 4 "provide for preserving viable agricultural land" but disagrees with his assertion that "[t]he Applicant has provided no evidence that there is no prospect of the land (in its current form) being used for commercially viable farming. The Subject Land has a working orchard and the potential to expand its operations towards its eastern boundary …". This claim is inconsistent with the more credible evidence of Mr McKenzie that the land is not viable in its current form and the soils to the east of the orchard are unsuitable for expansion.
Mr Maiorana noted that the intended use for the lots is rural living purposes. Significantly, he referred to the "Zoning and Development Table" and the associated policy statement for the "General Farming" zone, where there is no minimum lot size for the proposed use and where the Council can, at its own discretion, determine the appropriate lot size for a non‑farming use.
The Tribunal supports the argument of Mr Maiorana that the proposed subdivision does not conflict with the provisions of TPS 4, given that these provisions have a dominant concern for protecting the productive use of viable farming land within the general farming zone.
The Tribunal finds that, in accordance with cl 3.7.2(3) of TPS 4, the proposed subdivision is consistent with the predominant lot sizes in the locality. The Tribunal does not agree with Mr Breeze that it is necessary to give weight to the lots outside the Irwin Townsite. As stated elsewhere in the reasons, the Tribunal accepts that the Irwin Townsite has the characteristics of a settlement and can be considered differently from surrounding agricultural land. Mr Breeze, when analysing the photographs, was not successful in convincing the Tribunal the Townsite has a rural character similar to the surrounding rural land, including areas of horticulture or intensive agricultural land. The photographs of paddocks within the Townsite are not inconsistent with smaller lots of rural residential land. Furthermore, the Tribunal agrees with the applicants that details such as intersections, street signs, power poles and buildings combine to create a separate character and that the proposed subdivision will not be out of character with the locality.
The Tribunal finds there is sufficient flexibility within TPS 4 to enable the subdivision of this particular lot with its own unique characteristics (such as soil types and boundaries adjoining road and railway reserves) within the Irwin Townsite. The provisions of TPS 4 and the LRS aim to protect agricultural land. The subdivision will not result in the loss of viable agricultural land and is consistent with the majority of lot sizes within the Irwin Townsite.

Draft Local Planning Scheme No 5 and Draft Local Rural Strategy

Draft LPS 5 and the Draft Local Rural Strategy (Draft LRS) are "seriously entertained" proposals and it is common ground that any further changes before gazettal are unlikely to affect this application.
The respondent's main contention in the context of the Draft LPS 5 and Draft LRS is that the proposal is inconsistent with the minimum lot sizes. Clause 5.30.1 of Draft LPS 5 states that the minimum lot size for this zone and policy area is 10 hectares.
The applicants acknowledged this requirement of Draft LPS 5 and the Draft LRS but argued that, although they are seriously entertained proposals, they should be given limited weight because the Shire of Irwin has described this requirement as an anomaly for the Irwin Townsite. The extract from the Shire of Irwin's letter, quoted earlier in these reasons, states the Shire's intention to address this issue. The Shire's letter explained that attempting to address the issue now would further delay the gazettal of Draft LPS 5 and that the Shire would prefer to resolve the anomaly by a Scheme amendment after Draft LPS 5 is gazetted.
The respondent counter‑argued that there should be no assumption that there would be any change. The Draft LRS and Draft LPS 5 are the result of an exhaustive process and the Irwin Townsite has been zoned "Rural Smallholdings" rather than "Rural Residential". Draft LPS 5 makes adequate provisions for rural residential lots which are logically located close to services in Dongara. "Rural Smallholding" zones are located in areas further out from Dongara and, depending on the Policy area, the minimum lot sizes vary from 10 hectares to 20 hectares.
Mr Breeze also argued that there has been no analysis of demand for further rural residential lots. He contended that there is no reason to assume that the existing "Rural Residential" zones are inadequate. The lot size requirement for "Rural Residential" in Draft LPS 5 varies from 1 hectare to 4 hectares. Mr Breeze stated that, in his opinion, the larger lot sizes in the "Rural Smallholdings" zone were deliberately chosen to prevent further fragmentation.
Mr Breeze did not consider the lot sizes in the Irwin Townsite to be an anomaly and, by reference to photographic evidence, described the area as clearly rural in character rather than rural residential. Mr Maiorana disagreed and contended that the Townsite is different from the surrounding rural land and has the visual character of a settlement. Furthermore, Mr Maiorana disagreed with Mr Breeze's evidence that the paddocks in the Irwin Townsite were characteristic of rural character, and contended rather that the paddocks are indistinguishable from similar paddocks in rural residential lots.
Usually, a proposed minimum lot size in a seriously entertained planning document, especially a Scheme as advanced as Draft LPS 5, would present a significant obstacle for the applicants who, in this case, propose two 2‑hectare lots against a proposed minimum of 10 hectares. On the surface, the proposed subdivision appears to be inconsistent with Draft LPS 5. However, the evidence that the Shire of Irwin has identified the Irwin Townsite as an anomaly changes the balance. The Tribunal agrees that the proposed minimum lot size for the Irwin Townsite is an anomaly, particularly as only one of the 24 lots in the Townsite complies with the proposed zoning. The majority of the lots are around 2 hectares to 2.5 hectares and similar to the size of the proposed subdivided lots. The Tribunal accepts the applicants' evidence that the Townsite has the character of a settlement and that the proposed subdivision will not be out of character with the existing established character of the Irwin Townsite. The Tribunal finds that the Draft LPS 5 and Draft LRS do not present a barrier to approval of the proposed subdivision.

If the proposed subdivision conflicts with the planning framework, whether there is a proper basis to depart from them and approve the proposed subdivision

In view of the earlier reasons, this issue does not arise for determination. However, for completeness and because it was identified as an issue, the Tribunal will briefly address this matter. This issue only applies to TPS 4.
If a conflict had been identified with the requirements of TPS 4 (the Tribunal has not found that such a conflict exists) then the question is whether there is a proper basis to depart from the requirements of TPS 4 where the Scheme does not provide the necessary discretion.
Section 138 of the PD Act gives the respondent authority to approve a subdivision that conflicts with the provisions of a local planning scheme if one of six exceptions out in s 138(3) of the PD Act is established.
Reading the exceptions in context indicates that only one of the exceptions is required. This interpretation was accepted by this Tribunal in Landpark Holdings Pty Ltd and Western Australian Planning Commission [2007] WASAT 130 at [14] and [29].
Relevant exceptions under s 138(3) in this review are, if:
"…
(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;
…
(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 …"
Section 138(3)(c) provides a choice. The exception is achieved if either the conflict is minor or if the approval is consistent with the intent of the scheme. In closing for the applicants, Mr Wittkuhn argued that even if there was a conflict with TPS 4 (which he denied) the conflict was of a minor nature. The subdivision would create lots that were consistent in size with the majority of lots in the Irwin Townsite; the subdivision would not remove productive agricultural land because the existing land is not viable; and any building on the newly created lot would not change the established settlement character of the Irwin Townsite. The Tribunal agrees with Mr Wittkuhn’s arguments and finds that, if there was any conflict with TPS 4, the conflict is minor.
Section 138(3)(c)(ii) is another possible exemption. Mr Maiorana, in his evidence, argued that if any conflict existed, approval would not be inconsistent with the general intent of TPS 4. He noted that the intended use for both lots could be described as rural living, where the nearest use specified in the development table is "Dwelling House": an "AA" use. The table does not nominate a minimum lot size but permits the Council to determine the appropriate lot size for a non-farming use. He also noted that the "Council has considered and accepted that, in this instance, a minimum lot size of 2 [hectares] is appropriate …"
Mr Maiorana stated: "[i]n my opinion, TPS No.4 specifically provides for the subdivision of land within the General Farming zone, where the proposed subdivision will not reduce the economic viability of the broad acre farming areas of the Shire [and where] the proposed subdivision will not diminish the rural character and appearance of the area". Mr Maiorana stated that the land is not viable. The Tribunal accepts that this statement is consistent with the unchallenged expert evidence of Mr McKenzie.
However, the matter of rural character was challenged. Mr Breeze argued that the Irwin Townsite was a mere historic concept and that the locality in and around the Townsite was characterised by paddocks, pasture, horticulture and minimum building. When questioned, he denied that the locality had the character of a townsite: "[i]t presents as small farms. There is no hall, church or other visual clue [to indicate the locality is a townsite.]"
The Tribunal preferred the evidence of Mr Maiorana. When asked a similar question he answered that the character can be understood by travelling from the west where, after passing broadacre farming, there are lots on one side of the road with intensive farming:
"Then the character changes again into the townsite where there is settlement on both sides of the road … power poles, road intersections, [road] signs … This builds a picture of a rural settlement … As you leave going east the character moves back to broadacre … It is not accurate to call it a historic concept."
Given that the dominant lot size in the Townsite is between 2 hectares and 2.5 hectares; the Tribunal finds that an additional lot will not diminish the rural character of the area. There are sufficient grounds for the Tribunal to accept that the proposal is consistent with the general intent of the local planning scheme.
The last matter to consider in this issue is s 138 (3)(e). In this application, the proposed subdivision plan was referred to the Shire of Irwin. Although the Shire initially objected to the proposal, the Shire subsequently withdrew the objection and in a letter to the Commission, dated 8 May 2007, stated that it supported the application:
"Council last considered this subdivision application at its meeting held on 27 February 2007, whereby it resolved the following:
'That Council advise the Western Australian Planning Commission that it supports the proposed subdivision of Lot 22 Midlands Road in the Irwin townsite and generally supports the subdivision of land to 2 [hectares] in the Irwin townsite.'"
Section 138(3)(e) does not require the Council's support. All it requires is that the Council has not made an objection. In this case, the Council has not only withdrawn its objection but has specifically supported the proposal. The way is open for the Commission (and hence the Tribunal) to approve the proposed subdivision.
Therefore, the Tribunal finds that if it had identified that the proposal conflicted with the requirements of TPS 4 then, for the reasons above, the proposal may and should be approved under s 138(3) of the PD Act with either s 138(3)(c) or (e) providing the basis for approval.

Whether approval of the proposed subdivision would create potential for additional building development, introduction of increased non-rural activity and an undesirable precedent for further subdivision of other lots similar in size in the "General Farming" zone of this locality

This issue, as framed by the parties, also questioned whether the proposed subdivision would create the potential for additional building development and the introduction of increased non-rural activity. The Tribunal accepts that the creation of an additional lot may result in an additional dwelling and additional rural living as a non-rural activity. However, the proper question is whether these possible, even likely, consequences of the proposed subdivision are inconsistent with the planning framework. This was addressed earlier in these reasons. The remaining question is whether the proposed subdivision would create an undesirable precedent, recognising that future subdivisions in this locality may result in additional building and non‑rural activity.
Mr Breeze stated that lots in the locality in and around the Irwin Townsite vary from 0.41 hectares to 64 hectares. He contended that approval of the proposed subdivision would set an undesirable precedent for subdivision of other lots of 4 hectares and above.

Mr Maiorana argued that the lot had unique characteristics that enabled it to be approved on merit without risk of creating a precedent.
Precedent was considered by the Tribunal, in an analysis of authorities including Aspen Pty Ltd v State Planning Commission (Unreported; Appeal No 13 of 1988, 21 October 1988) and Marshall v Western Australian Planning Commission (1995) 15 SR (WA) 170, in Nicholls v Western Australian Planning Commission (2006) 149 LGERA 117 at [71]-[75]. In that case, at [74], the Tribunal adopted the following criteria as to the circumstances in which precedent is a relevant consideration in a planning assessment from Goldin & Anor v Minister for Transport (2002) 121 LGERA 101 as consistent with Western Australian authority:
"(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."
For precedent to be a relevant factor both tests must be satisfied. In this instance, for reasons discussed earlier, the proposed subdivision is unobjectionable. Therefore, the adverse precedent argument is not a relevant consideration in this case as each subsequent case will be considered and determined on its own merits.

Whether refusal of the subdivision would cause hardship to the applicants and enable the application to be approved under s 241(3) of the PD Act

Section 241(3) of the PD Act provides that:
"In determining an application for review of the determination of, or conditions imposed in respect of, an application for approval to subdivide a lot into not more than 3 lots, the State Administrative Tribunal may have regard to claims of hardship raised by the applicant and proved to the satisfaction of the State Administrative Tribunal, if the State Administrative Tribunal is of the opinion that such regard will not affect the application of sound planning principles."
In view of the earlier reasons, this issue does not arise for determination. However, for completeness and because it was identified as an issue the Tribunal will briefly address this matter.
If the applicants had relied on this issue the application would have failed. Ms Paterson, in closing arguments for the respondent, correctly argued that the applicants' case on hardship was based on "hope or expectation" rather than genuine hardship. The applicants' evidence did include financial information indicating the orchard was trading close to "break even." However, that is not sufficient grounds to convince the Tribunal that the claimed hardship necessarily correlates to a need to subdivide the lot.

Conditions

As required by the Tribunal, the respondent prepared "without prejudice" conditions (draft conditions) to be imposed if the Tribunal considers that approval of the application subject to conditions is appropriate. The respondent proposed that nine conditions be imposed on any approval. The parties agreed to draft conditions 3 ‑ 9 but initially disagreed on draft conditions 1 and 2.
After the parties heard each others' arguments on condition 2, they agreed to delete the condition.
However, the parties remained in dispute over condition 1.
Condition 1 requires:
"Arrangements being made to the satisfaction of the Western Australian Planning Commission and to the specification of Western Power for the provision of an underground electricity supply service to the lots shown on the approved plan of subdivision."
The respondent argues that condition 1 is a standard condition required by Western Power and that the Commission imposes the condition on subdivision approvals. The respondent notes that Western Power has indicated that a transformer will be required but no further specific information is available until the subject land has been assessed.
The applicants argue the condition is vague and uncertain and that it "is impossible to know in advance what arrangements may be satisfactory to Western Power and whether those requirements will be objectively reasonable …". The applicants referred the Tribunal to Stewart and Western Australian Planning Commission [2005] WASAT 116 and Hill v State Planning Commission (1994) 10 SR (WA) 354.
Stewart and Western Australian Planning Commission at [16] ‑ [23] dealt with the suitability and validity of conditions attached to a planning approval of a subdivision. The Tribunal in Stewart and Western Australian Planning Commission referred to findings in Perrymead Investments Pty Ltd v Western Australian Planning Commission(1996) 16 SR (WA) 181.
In Stewart and Western Australian Planning Commission, the Tribunal discussed the need for certainty and the need to avoid leaving room for further discretion by deferring to a third party. In Stewart and Western Australian Planning Commission at [18], the Tribunal refers to findings on this matter in PerrymeadInvestments Pty Ltd v Western Australian Planning Commission at [183] ‑ [184] where the Commission had worded a condition that a road upgrade be to the satisfaction of the Commission and where the condition included a reference to the Local Authority. In PerrymeadInvestments Pty Ltd v Western Australian Planning Commission, considering the implied deferral to the local authority, the former Tribunal at [184] found that:
"… The Commission has reserved to itself the ultimate duty to be satisfied, even though in practice, it has left it for the subdivider to work with the third party to obtain the terms of that satisfaction. This emphasis grants to the Commission the ultimate discretion as to the discharge of the condition."
In this review the wording of condition 1 fails the test of deferring to a third because although the condition is to the satisfaction of the Commission, it is also required to be to the specification of Western Power. Condition 1 does not make it clear whether the specification of Western Power is subject to the ultimate discretion of the Commission. The flaw can be overcome by the Tribunal's authority to vary the condition (State Administrative Tribunal Act 2004 (WA): s 29). Accordingly, the Tribunal retains condition 1 but with alterations to the wording of the condition.
The Tribunal does not agree with the applicant's argument that condition 1 is vague or uncertain. As the Tribunal notes in Stewart and Western Australian Planning Commission at [23], a condition can be initially void for uncertainty "only if no meaning or sensible or ascertainable meaning can be found." (A test quoted from Perrymead Investments Pty Ltd v Western Australian Planning Commission at [367].) As discussed above, the Tribunal found there was a lack of precision in the wording of condition 1 in terms of the reference to the specification of Western Power. However, the Tribunal does not find any doubt as to the meaning of condition 1.
All that is required is that condition 1 needs to be reworded to remove any doubt as to whether the Commission or Western Power has the final say on the implementation of condition 1. The Tribunal's revised wording is:
"Arrangements being made to the satisfaction of the Western Australian Planning Commission having regard to the specifications of Western Power, for the provision of an underground power service to the lots shown on the approved subdivision plan."
Therefore, condition 1 is retained, but reworded; condition 2 is deleted; conditions 3 ‑ 9 are retained but renumbered as conditions 2 ‑ 8.

Orders

The Tribunal makes the following orders:
1.The application for review is allowed.
2.The decision of the Western Australian Planning Commission to refuse the application to subdivide Lot 22 Midlands Road, Irwin into two lots is set aside and a decision is substituted that subdivision approval is granted subject to the following conditions:
(1)Arrangements being made to the satisfaction of the Western Australian Planning Commission having regard to the specifications of Western Power, for the provision of an underground power service to the lots shown on the approved subdivision plan.
(2)The transfer of land as specified by the Western Australian Planning Commission as a crown reserve, free of cost to Western Power for the provision of electricity supply infrastructure.
(3)The existing access gate from Midlands Road to the proposed eastern lot is to be closed and access is to occur from Harriet Street at the existing designated level crossing.
(4)No stormwater is to be discharged from the proposed lots onto Midlands Road.
(5)Any stormwater discharged from the proposed lots is to be directed away from the railway corridor.
(6)Uniform fencing is to be installed along the boundaries of the proposed lots. The fencing must be a minimum of 1.2 metres and in accordance with Schedule 4 of the Shire of Irwin Local Laws Relating to Fencing ‑ Specifications for a sufficient Fence on a Rural Lot and a Special Rural Lot.
(7)A fire management plan being prepared and implemented to the specification of the local government and the Fire and Emergency Services Authority or a contribution being made towards fire fighting facilities in the area.
(8)All building and effluent disposal systems having the necessary clearances from the new boundaries as required under the relevant legislation being shown on the approved plan of subdivision.

I certify that this and the preceding [105] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR R EASTON, SENIOR SESSIONAL MEMBER