Burridge & Anor and Western Australian Planning Commission - [2007] WASAT 178

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: BURRIDGE & ANOR and WESTERN AUSTRALIAN PLANNING COMMISSION [2007] WASAT 178

MEMBER: MR B HUNT (SENIOR SESSIONAL MEMBER)
MS M CONNOR (MEMBER)
MR R EASTON (SENIOR SESSIONAL MEMBER)

HEARD: 20 MARCH 2007
21 MARCH 2007

DELIVERED : 6 JULY 2007

FILE NO/S: DR 103 of 2006

BETWEEN: JOHN BURRIDGE
MARGARET BURRIDGE
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Town planning – Subdivision of rural land – Water availability – Maximum sustainable yield of 60 000 kilolitres per year – Range of factors could influence the sustainable yield – Whether there is provision for an adequate water supply to ensure the continued use of the land for productive agricultural purposes on each of the proposed lots – Whether the extraction of water from the superficial aquifer will have any unacceptable environmental impacts on water dependent ecosystems – Monitoring and management of extraction from superficial aquifer necessary – What is the appropriate mechanism to control extraction of water – Diversification of agricultural land uses to support viability for smaller lots – Shared farming

Legislation:

Planning and Development Act 2005 (WA), s 241
Rights in Water and Irrigation Act 1914 (WA)
Shire of Beverley Town Planning Scheme No 2, cl 3.5, cl 3.6, cl 3.6.2, cl 3.6.2(i)

Result:

Application for review is dismissed
The decision of the respondent is affirmed

Category: B

Representation:

Counsel:

Applicant: Mr M Hardy
Respondent: Ms Paterson

Solicitors:

Applicant: Hardy Bowen
Respondent: State Solicitor

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

Ingram & Anor v Western Australian Planning Commission [2003] WASCA 77

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Mr Burridge applied to the State Administrative Tribunal for review of the decision of the Western Australian Planning Commission refusing approval to amalgamate and resubdivide Lot 3 and Lot 6 Maitland Road, Kokeby into eight freehold lots ranging in area from 46 hectares to 69 hectares.
The most significant issue in the determination of this matter, as accepted by the parties, was whether there was the provision of an adequate water supply to support productive agricultural use on each of the proposed lots. It was essential that the Tribunal be satisfied on this point as the overarching objective embodied in all of the planning instruments underlines the protection of agricultural land by ensuring the continued use of land for productive agricultural purposes. The Tribunal considered this to be a threshold question, however, allied to this was whether the extraction of water from the superficial aquifer would have any unacceptable environmental impacts on nearby wetlands and the Dale River.
It was established that the only groundwater available for extraction was from the superficial aquifer, which would supply Lots 4 – 8. The water supply for Lots 1 – 3 was identified as roaded catchments and covered dams.
The experts on water issues agreed that the estimated maximum sustainable yield from the superficial aquifer was 60 000 kilolitres per year. However, the evidence before the Tribunal showed that a range of factors could influence the sustainable yield and that there was no certainty that the maximum would be available on an annual basis.
The Tribunal was not satisfied that the maximum sustainable yield represented the likely allocation limit, given the variables of rainfall, upstream extraction, land utilisation and environmental requirements, which would undoubtedly affect the sustainability of proposed lots for intensive agricultural purposes. Although the Tribunal was receptive to the concept of the diversification of agricultural land uses on individual lots, the Tribunal was not convinced in this instance given the difficulties associated with allocation limits and monitoring, that there would be an adequate water supply to each of the proposed lots, particularly Lots 1 – 3, to sustain long‑term intensive agricultural use on the lots. Furthermore, the Tribunal was unable to conclude with any certainty that the extraction of the maximum 60 000 kilolitres would not adversely impact on the long‑term sustainability of the resource or the natural environment.
The Tribunal was also concerned about the current lack of controls over extraction of water from the aquifer and the establishment of an appropriate mechanism to manage the abstraction of water from the aquifer. The Tribunal considered that there was need for a more strategic approach to be adopted in relation to the allocation and management of the abstraction of water in the area.
The Tribunal found that the proposed subdivision was contrary to the orderly and proper planning of the area, and did not accord with the sound planning principles that have been formulated to provide a context for decision‑making for the subdivision of rural land. The application for review was dismissed and the decision of the respondent to refuse the subdivision application was affirmed.

Introduction

John Burridge and Margaret Anne Pollock Burridge (applicants) made an application, dated 29 March 2005, to the Western Australian Planning Commission (respondent or WAPC) for approval to amalgamate and re‑subdivide Lot 3 and Lot 6 Maitland Road, Kokeby (subject land) to create 12 lots ranging in area from 22 hectares to 62 hectares.
The respondent refused the application on 18 August 2005 for the following reasons:
"1.The proposal is inconsistent with the Beverley‑Brookton Rural Strategy as it proposes lots which are less than 40 hectares in area, and it has not been demonstrated that sufficient groundwater exists, that intensive agricultural pursuits can be supported, or that the proposal will not adversely affect other agricultural enterprises in the area.
2.Approval to the subdivision would set an undesirable precedent for the further subdivision of surrounding lots."
The applicants requested a reconsideration of the respondent's decision and submitted a revised plan of subdivision proposing eight lots, ranging in area from 46 hectares to 69 hectares.
The respondent gave detailed consideration to submissions made for reconsideration and noted the Shire of Beverley's support for the proposal. The information provided by the applicants was assessed by the Department of Agriculture who provided a report to the respondent. After further consideration the WAPC reiterated its previous decision.
Although the applicants initially sought a review by the Tribunal of the 12 lot subdivision, they have since decided to pursue the application on the basis of the revised eight lot proposal that was the subject of the reconsideration by the respondent.
The respondent has agreed to treat the subdivision plan submitted for reconsideration as the applicable plan for the application for review.

Subject land

The subject land is more particularly described as Lot 3 and Lot 6 Maitland Road, Kokeby comprised in Certificates of Title Volume 2214 Folio 524 and Volume 2525 Folio 400 and is 462.39 hectares in area.
The subject land is located within the Shire of Beverley (Shire or Council) and is 15 kilometres south‑west of the town of Beverley.
The subject land straddles a swale at the base of which is Lake Grimshaw. Immediately west of the subject land is Maitland Swamp, and other wetlands occupy abutting land to the east.
One of the proposed new lots contains a portion of a wetland which forms part of Maitland Swamp. The Department of Water has advised that this portion of Maitland Swamp and groundwater under and around the subject land drains to the Dale River, which is located to the west/south‑west of the subject land.
The subject land is largely cleared, with some pockets of vegetation remaining, and has recently been used mainly for cattle grazing.
The majority of the soils of the subject land can be described as deep yellow sands and deep yellow sandy earths. Mr Lindsay Stephens, a consultant expert in land capability and land assessment, gave evidence on behalf of the applicants and identified the northern portion of the site as sandy gravel over loam subsoils. He considered that the soils were better suited to perennial horticulture and perennial crops rather than grazing or broadacre cropping.

Water availability

The Department of Agriculture estimated the annual rainfall for the subject land as 430 millimetres, given its location between the towns of Beverley and Brookton, which experience mean annual rainfall of 420 millimetres and 458 millimetres respectively. This figure was accepted by the parties and used as a basis for calculating recharge and sustainable yield.
The subject land has two potential sources of underground water: a superficial aquifer from which small amounts of relatively high quality water can be extracted; and a deeper palaeochannel from which larger volumes of higher salinity water can be extracted.
The aquifers appear to be hydrologically linked in some areas. Groundwater contained within the palaeochannel aquifer is considered too saline to be used for irrigation. The uppermost (superficial) aquifer is fresh and therefore the only groundwater available for extraction.
The superficial aquifer is recharged directly from rainfall. Proposed Lots 1 – 3 do not have access to this aquifer.
The area is not a prescribed groundwater area and bores (other than artesian) do not require licensing with the Department of Water.
In order to establish the amount of water available from the superficial aquifer, the parties' experts considered the sustainable yield of the aquifer. In the joint statement of Mr Matt Giraudo, a senior environmental hydrologist appearing as a witness for the respondent, and Mr Stephens, "sustainable yield" was defined as "the maximum volume of water that can be extracted without adversely impacting the long‑term sustainability of the resource or the natural environment".
Mr Giraudo and Mr Stephens agreed that based on available information, the estimated sustainable yield from the superficial aquifer is a maximum of 60 000 kilolitres per year. This matter will be discussed further below.

Planning framework

The relevant planning documents relating to this matter are as follows:
•Shire of Beverley Town Planning Scheme No 2 (TPS 2).
•Shire of Beverley District Rural Strategy (DRS) which the Shire of Beverley prepared in conjunction with the Shire of Brookton. The DRS is incorporated into the TPS 2 by reference and was introduced by Amendment No 9 (gazetted 5 December 2000).
•Statement of Planning Policy No 2.5 – Agriculture and Rural Land Use Planning (SPP 2.5). Under s 241 of the Planning and Development Act 2005 (WA) (PD Act), the Tribunal is required to have regard to any state planning policy which may affect the subject matter of an application for review.
•Policy No DC3.4 – Subdivision of Rural Land (DC3.4). This policy sets out specific principles and criteria used by the respondent in its determination of applications for the subdivision of rural land. The subject land comes within the definition of rural land.
•Avon Arc Sub‑Regional Strategy (AASRS). This strategy provides a regional framework for long‑term land use and provides guidance for local governments in the region in commenting on subdivision applications.

Shire of Beverley Town Planning Scheme No 2

The land is zoned "Farming" in TPS 2 and cl 3.5 provides " … that land use and subdivision proposals [will be supported] which are consistent with the continued viability of agricultural production … " and that proposals will have regard to the DRS and the provisions contained in cl 3.6 of TPS 2.
Clause 3.6 of TPS 2 provides that Council shall, amongst other matters, have regard to specific provisions for the DRS policy areas in considering subdivision applications. The relevant policy area for this land is BE3 (policy area BE3).
Clause 3.6.2 of TPS 2 states that "[i]n policy area BE3" subdivision will not be recommended and development approval will not be supported for proposals which are inconsistent with the continued use of land for productive agricultural purposes. A minimum lot size of 40 hectares is recommended for the subdivision of land in [this] policy area". Clause 3.6.2 further states that in policy area BE3, subdivision to a minimum lot size 20 hectares may be recommended if it can be demonstrated that a proposal will not adversely affect the use of land for agriculture purposes in the area.
Subclause 3.6.2(i) of TPS 2 provides that the Council will in any policy area recommend subdivision and support development when the following circumstances apply:
"(d)It is proposed to create lots for intensive or other agricultural purposes and it can be demonstrated that the proposal will not adversely affect the use of land for agricultural purposes in the area. A study of the suitability and capability of the site for the proposed use will be required, including information on the following matters:
•the availability and provision of a suitable water supply to the land[;]
•provision of constructed road access and services[;]
•land management measures[;]
•environmental consideration[;]
•drainage catchment considerations[;]
•bushfire management[;]
•economic feasibility of the project[;]
•stocking levels relating to new lots created."
The land uses identified in the applicants' submissions fall within the use class definition of "Intensive Agriculture" as contained in Schedule 1 of TPS 2.

District Rural Strategy

The main objectives of the DRS are:
"1.3.1.Designate areas within the [Shire], where the further subdivision or boundary realignment of Farming Zoned land would not be supported, in the interest of sustainable, productive and economically viable Agricultural Land preservation.
1.3.2Designated areas within the subdivision of Farming Zoned land would be supported in the interest of genuine Agricultural Activity of a more intensive or specialist nature.
1.3.3 …
1.3.4Provide a general guide to future land use, zoning, subdivision, development and resource management throughout the District Rural Strategy Area, after paying regard to land capability, land management, economic and overall servicing criteria ... "
The DRS divides the Shire into a number of policy areas. The subject land is located within policy area BE3. Clause 6.2.3 of the DRS, related to policy area BE3 and provides conditional support for low quality privately owned agricultural land where " … in the interests of watercourse protection, revegetation, remnant vegetation protection/rehabilitation, land care and greening principles and where groundwater supplies are proven which encourage projects of an intensive agricultural nature".
TPS 2 was amended to incorporate the intent of the DRS, which is reflected in cl 3.6.2 of TPS 2.

SPP 2.5

SPP 2.5 identifies as a fundamental principle the protection of the State's priority agricultural land resource and provides guidance for the preparation of local planning strategies and policies. This policy should be read in conjunction with DC 3.4.
The two following key objectives of SPP 2.5 are particularly relevant to this application:
"1.Protect agricultural land resources wherever possible by:
(a)discouraging land uses unrelated to agriculture from locating on agricultural land;
(b)minimising the ad hoc fragmentation of rural land; and …
4.Carefully manage natural resources by:
(a)discouraging development and/or subdivision that may result in land or environmental degradation;
(b)integrating land, catchment and water resource management requirements with land use planning controls … "
SPP 2.5 envisages the implementation of these key principles through the preparation of planning schemes, strategies and policies both at a regional and local level.
The Shire prepared its DRS in accordance with the objectives of SPP 2.5 and amended TPS 2 accordingly to reflect the outcomes of the DRS.

DC 3.4

DC 3.4 states at cl 3.1.1 that 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. In this instance, the Shire has adopted a DRS that has been endorsed by the respondent (see para [33] to [35] above).
Clause 6.1.1 also states that the respondent may also consider additional issues including:
•Whether lots are of sufficient size to be environmentally and economically sustainable in the long‑term as agricultural enterprises;
•The capacity of the land to accommodate the proposed use, and whether each lot contains sufficient land of high to very high capability for intensive agriculture.
•Whether each lot has a sustainable water supply for domestic, fire management and agricultural purposes.

Avon Arc Sub‑Regional Strategy

The AASRS places the subject land in the "Avon Valley and Zone of Rejuvenated Drainage" land planning unit and in cl 3.1.6 states that in managing the vision for this area, broadacre farming is to be the dominant land use and that subdivision for rural living is to occur only in close proximity to Consolidated Urban Settlements in the western or central band of the unit where consistent with local planning strategies.
Clause 5.2 of the AASRS provides that " … isolated pockets of groundwater, particularly in the Shires of Brookton and Beverley, allow horticultural production with the potential for expansion, depending on the outcome of groundwater investigations".

Issues

The parties identified the following six principal issues for consideration in the review:
•Whether a sustainable water supply is available for domestic, fire management and productive agricultural purposes on the proposed lots.
•Whether land use conflicts with neighbouring land would restrict viable agricultural use of the subject land.
•Whether the proposed lots would be viable for agricultural use.
•Whether the proposed subdivision would have unacceptable environmental impacts on nearby wetlands and the Dale River.
•Whether the proposed subdivision is inconsistent with applicable local town planning policies and strategies.
•Whether the proposed subdivision would set an undesirable precedent for further subdivision in the locality.
Clearly, the most significant issue in the determination of this matter, as accepted by the parties, is whether there is the provision of an adequate water supply to support productive agricultural use on each of the proposed lots. It is essential that the Tribunal be satisfied on this point as the overarching objective embodied in all of the planning instruments underlines the protection of agriculture land by ensuring the continued use of land for productive agriculture purposes. The Tribunal considers this to be a threshold question, however, allied to this is whether the extraction of water from the superficial aquifer would have any unacceptable environmental impacts on nearby wetlands and the Dale River.

Parties' arguments

The respondent contended that the proposed subdivision is not consistent with the established planning framework as it has not been demonstrated that there is a sufficient water supply to service the proposed lots to ensure the continued use of the land for productive agricultural purposes. Furthermore, the respondent argued that there is insufficient evidence to ensure with any degree of certainty that the extraction of water from the superficial aquifer would not present a significant risk to the surrounding natural environment.

The applicants contended that the current broadacre farming of the land is not a viable or sustainable use. To substantiate this contention, the applicants referred to cl 6.2.3 of DRS, which acknowledges that in policy area BE3 the quality of agriculture land is low, and the land capability assessment prepared by Mr Stephens which specifically analysed the soil types of subject land. From his analysis of the soils, Mr Stephens concluded that "the current nature of the soils currently makes crops difficult to sustain" and "[o]verall there are significant areas of soils that are less well suited to cropping and grazing". Mr Burridge was called to give evidence of farming activity on the subject land. Based on his farming experience he had concluded that broadacre farming is not suitable and not economically viable within this area of Beverley. He told the Tribunal that he had tried unsuccessfully to sell the property during 2004 and received no realistic offers. Mr Burridge considered the property to be far too large for a small farmer and far too small for a broadacre farmer. He stated that there are no broadacre farmers in the area to whom the property appeals to as an "add‑on block".
The applicants submitted that there was the realistic prospect of agricultural uses other than broadacre farming which could contribute to the land remaining in agricultural production. The applicants considered that the subdivision will provide an opportunity for the subject land to be used for more intensive and diversified agricultural uses as promoted by the AASRS, thus maximising the potential for the subject land to remain productive. The applicants argued that if it could be demonstrated that there was sufficient water to service the proposed lots in a way that promotes, if not necessarily guarantees, the use of the lots so created for continuing agricultural purposes, then the various tests that are set out in the planning documents would be satisfied. In relation to the extraction of water from the superficial aquifer, the applicants argued that proposed subdivision would in fact assist in the management and protection of the environment as currently there is no control over extraction of water from the aquifers.
In the joint witness statement of Mr Giraudo and Mr Stephens, it was agreed that the estimated sustainable yield from the superficial aquifer is a maximum 60 000 kilolitres per year, with a qualification by Mr Giraudo that extraction at that level has potential adverse impacts to local groundwater dependent ecosystems. It was further agreed that the volume of water available for extraction from the superficial aquifer would be less than the agreed maximum during years of low rainfall, where extraction is limited by aquifer storage and/or yield, or due to potential adverse impacts on dependent ecosystems. There was a divergence in the experts in evidence as to whether the 60 000 kilolitres included environmental flow requirements. Mr Giraudo's evidence was that the maximum 60 000 kilolitres figure did not include environmental flow requirements because there is insufficient information to do that with any degree of accuracy, whereas Mr Stephens was of the opinion that the definition of sustainable yield takes into account the environment and therefore environmental flows.
Mr Giraudo was particularly concerned about the potential impacts on the surrounding wetlands and the Dale River, and could not state with any confidence that the extraction of maximum 60 000 kilolitres per year from the superficial aquifer would not adversely impact the long‑term sustainability of the resource or the natural environment, as environmental flow requirements may affect the amount of water available for extraction. Mr Giraudo was at pains to point out that the 60 000 kilolitres was a maximum and that there are no controls in place regulating and monitoring the extraction of water from the aquifer. Mr Giraudo detailed the normal process as follows:
"[N]ormally[,] what would happen is that there would be a preliminary figure set which would be agreed to and then there would be controls in place and that would be reviewed over time. So there would be monitoring set up to monitor the impact on the downstream environment, to monitor the impact on the water level within the aquifer and the salinity of the aquifer. The information would be recorded, or presented to the Department of Water, who would analyse that then review the water allocation at an appropriate time frame."
Mr Stephens agreed that monitoring and management of the extraction of water from the aquifer was necessary. It was common ground between the parties that a committee set up under the Rights in Water and Irrigation Act 1914 (WA) (RWI Act) was the most appropriate mechanism to ensure management of the water resource, however, it was unlikely to be operational in the short‑term. It was further agreed that imposing conditions on a subdivision approval was fraught with difficulties as there are constraints on the power of the WAPC to impose conditions which cannot be satisfied in advance of the endorsement of a plan or diagram of subdivision. The alternate suggested by the applicants was that the groundwater resource be controlled via the local government planning process whereby a development application would have to identify any need for groundwater abstraction in the application and the control be regulated through the imposition of conditions on the development approval.
Ms Watts, a senior planning officer of the Department for Planning and Infrastructure appearing for the respondent, expressed doubt that a local government would be in the position to monitor and enforce controls or measures that would be necessary to control the abstraction of water. Mr Talyforth, an experienced and qualified planning and environmental consultant who gave evidence on behalf of the applicants, considered this to be a feasible option as in exercising its function under the town planning scheme in approving suitable use for the land, the local government could impose planning conditions relating to the monitoring and management of the water resource.
The respondent contended that the volume of water from the superficial aquifer is not a sustainable water supply for productive agricultural purposes, and that proposed Lots 1 – 3, in not having access to the superficial aquifer, have even less prospect of maintaining land in production.
The applicants disputed this assertion and evidence was led by Mr Stephens to show that the proposed lots could be productive by establishing a mix of alternative agricultural land uses (some of which require water) and broadacre farming (grazing and/or cropping).
Mr Stephens provided a table headed "Summary of Some Alternative Land Uses" (Exhibit 8 ‑ Annexure 4) which sought to demonstrate for each of the proposed lots the area of useful land for perennial horticulture, the water supply likely to be achieved annually, and examples of possible land uses (based on soil types). In determining the available water supply he considered such potential water sources as roaded catchments, access to the palaeochannel aquifer, covered dams and access to the superficial aquifer. It was acknowledged by Mr Stephens that water from the palaeochannel was too saline to be used for irrigation purposes but he maintained it could be used for farming of barramundi or black bream.
Mr Stephens also produced a document headed "Potential Income from Diversified Land Uses" (Exhibit 14) which lists 29 agricultural land uses and provides estimates on the possible income per lot for each of the uses for Lots 1 – 3 with limited water and Lots 4 – 8 with 12 000 kilolitres per annum per lot.
Mr Stephens considered that these documents demonstrated that there are land uses that can be established on the proposed lots with the water that is available, and that these uses can be viable. He also submitted that there could also be a diversification of activities on a lot. A further option put by Mr Stephens was the possibility of share farming the remaining portion of land that was not used by the intensive agriculture use(s). He gave evidence, based on his familiarity with the area as a landowner, that land all through the area is utilised often in mutually beneficial share farming arrangements.
It was his opinion that Lots 1 – 3, due to roaded catchments and covered dams being the only water supply servicing these lots, would only generate a part‑time income, whereas Lots 4 – 8 would probably be capable of producing a full‑time income depending on what land uses were chosen.
He considered that viability of a land use was not limited to whether it produced a full‑time income but whether it was worthwhile and resulted in the land being used productively. He submitted that " … just because a farm does not produce a full‑time income does not mean that it is not viable, nor that it is not economically worthwhile to undertake a particular agricultural activity".He also wanted to dispel the general belief that "the only profitable way to run an agricultural business is to have a larger commercial operation". He maintained that the small family operated enterprises which exist on relatively small areas of land and where labour is supplied by one or both partners and may be supplemented by outside funds, are proving to be viable operations and gave examples using the viticulture industry with particular reference to the Swan Valley. Mr Stephens was also able to refer to examples in the general area of viable "alternative" crops that used minimal water.
The respondent relied on a report that was prepared by the Department of Agriculture, dated February 2006, to counter Mr Stephens' evidence on soils, diversified crops and farming activity in the area. The respondent did not call a witness that could attest to the methodology and findings of the report and, as such, the veracity of the report could not be tested. The Tribunal is therefore reluctant to accord any weight to this report.

Tribunal's consideration

The applicants' argument relied heavily on the proposition that the strategic planning framework as expressed in DC 3.4 and SPP 2.5 is designed to ensure that land which can be used for agricultural purposes is used for that purpose and that the net available resource is not diminished.
This position reflects the test articulated by His Honour Barker J in Ingram & Anor v Western Australian Planning Commission [2003] WASCA 77, that being whether, if subdivided, the subject lands which have productive capacity for agricultural production would be lost as a resource.
The evidence of Mr Burridge was that the current property was not viable for broadacre farming and this evidence was not contested by the respondent. However, in cross‑examination, Mr Burridge told the Tribunal that the property is currently used for grazing purposes and that other lots within the surrounding area are used for cropping and/or grazing. This would indicate that there is still some merit in this form of agricultural pursuit and that there is a need to ensure that the capacity for the land for agricultural production is not lost as a resource.
TPS 2 and the DRS recognise that subdivision within this area (policy area BE3), to allow for intensive agriculture, may be appropriate. However, subdivision is contingent upon being able to satisfy a range of criteria, including demonstrating the continued use of land for productive agricultural purposes, that there is a proven ground water supply and that the subdivision advances the protection of the environment.
It is clear from the evidence that Lots 1 – 3 will not have access to the superficial aquifer and will be reliant on rainfall, roaded catchments and covered dams as a water source, which would at best only be sufficient to provide a part‑time income. The principal water supply for Lots 4 – 8 is extracted from the superficial aquifer. The experts estimate the maximum sustainable yield as 60 000 kilolitres, which if divided evenly between the five lots equates to 12 000 kilolitres per lot.
Mr Stephens presented arguments about the diversification of land uses that would have been compelling had it not been for the uncertainties associated with the availability of water, the allocation and monitoring of water from the aquifer and the impacts of extraction on the surrounding wetlands, the Dale River and catchment area in general. The Tribunal acknowledges that some alternative uses may be sustainable using natural rainfall and other uses may use saline water which could be extracted from the palaeochannel. However, the evidence in relation to such land uses was generic and lacking in detail in its application to the subject land. The Tribunal is not convinced that without an adequate additional water supply capable of supporting a range of alternative uses on each of the lots, that the lots would be capable of supporting the continued use of the land for productive agricultural purposes.
The Tribunal should be satisfied that the allocation limit is sufficient and sustainable; that adequate management controls are in place to ensure the use of each of the newly created lots for intensive agricultural purposes; and that the potential impacts from abstraction will not adversely affect surrounding users and the environment. The Tribunal is not satisfied that the maximum sustainable yield represents the likely allocation limit, given the variables of rainfall, upstream extraction, land utilisation and environmental requirements, which will undoubtedly affect the sustainability of proposed lots for intensive agricultural purposes.
Although the Tribunal is receptive to the concept of the diversification of agricultural land uses on individual lots, the Tribunal is not convinced in this instance, given the difficulties associated with allocation limits and monitoring, that there will be an adequate water supply to each of the proposed lots, particularly Lots 1 – 3, to sustain long‑term intensive agricultural use on the lots. Furthermore, the Tribunal is unable to conclude with any certainty that the extraction of the maximum 60 000 kilolitres will not adversely impact on the long‑term sustainability of the resource or the natural environment.
The Shire is outside the proclaimed groundwater areas and as such, there are no controls over the extraction of water in this area. The Tribunal agrees that a committee set up under the RWI Act is the most appropriate mechanism to ensure management of the water resource and is not persuaded that the local government is next best authority to deal with such issues on an application by application basis. The abstraction of water is not only critical to the sustainability of agricultural uses on the subject land, but has the potential to significantly impact on surrounding users and water‑dependent ecosystems. The Tribunal considers that there needs to be a more strategic approach adopted in relation to the allocation of water within the catchment area and consideration of the impacts of abstraction on the environment. The Tribunal is not convinced, based on the evidence, that the local government has the expertise to undertake such an approach.
The Tribunal has not addressed the issue of whether land use conflict with neighbouring land would restrict viable agricultural use of the subject land, as this issue is dependent upon the threshold question being determined in the positive.
For the above reasons, the Tribunal considers that the proposed subdivision is contrary to the orderly and proper planning of the area, does not accord with the sound planning principles that have been formulated to provide a context for decision‑making for the subdivision of rural land and, if approved, would create an undesirable precedent for the subdivision of similar lots in the locality. It follows that the application for review should be dismissed and the decision of the respondent to refuse the subdivision application be affirmed.

Orders

For the above reasons, the Tribunal make the following orders:
1.The application for review is dismissed.
2.The decision of the respondent is affirmed.

I certify that this and the preceding [72] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR B HUNT, SENIOR SESSIONAL MEMBER