Carlotta Investments Pty Ltd and Western Australian Planning Commission
[2008] WASAT 293
•10 DECEMBER 2008
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: CARLOTTA INVESTMENTS PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2008] WASAT 293
MEMBER: MR L GRAHAM (SENIOR SESSIONAL MEMBER)
HEARD: 6 OCTOBER 2008
DELIVERED : 10 DECEMBER 2008
FILE NO/S: DR 161 of 2008
BETWEEN: CARLOTTA INVESTMENTS PTY LTD
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Town planning - Application for subdivisional approval - Orderly and proper planning - Hardship - Precedent - Dual dwelling agreement - Rural resource zone - Definition of the locality - Application of sound planning principles
Legislation:
City of Wanneroo District Planning Scheme No 2, cl 3.17.1, cl 3.17.2, cl 3.17.4(b), cl 3.17.4(c)
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 138(3), s 241(3), s 251(1)
Result:
Application for review dismissed
Category: B
Representation:
Counsel:
Applicant: Mr MP Goff
Respondent: Mr J Algeri
Solicitors:
Applicant: MGA Town Planners (Town Planners)
Respondent: Joe Algeri Property Planning and Appeals Consultants (Town Planners)
Case(s) referred to in decision(s):
Strawbridge & Anor and Western Australian Planning Commission [2006] WASAT 96
WR Carpenter Properties Pty Ltd and Griffin Coal Pty Ltd and Western Australian Planning Commission [2006] WASAT 200
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The application for review was lodged against a decision of the Western Australian Planning Commission to refuse a three lot rural subdivision proposal by Carlotta Investments Pty Ltd at Lot 12 Gibbs Road, Nowergup.
The State Administrative Tribunal examined the respective position of the parties, the background to the application, the extensive legislative and policy provisions, a definition of 'locality' and matters of orderly and proper planning, hardship, precedent and an existing Dual Dwelling Agreement between Carlotta Investments Pty Ltd and the City of Wanneroo.
The Tribunal found no case for 'hardship' and determined that to create two essentially rural/residential lots in a 'Rural Resource' zone would not be in the interests of orderly and proper planning and could give rise to other similar applications on nearby large lots.
The Tribunal determined that, in order for the Raiter/Anderson families to resolve their somewhat unique share farming arrangements, they may have to resolve their circumstances outside the planning system, or lodge a revised subdivision proposal that more accurately reflects the existing statutory framework for the 'Rural Resource' zone.
The application for review was dismissed.
Introduction
The application for review, dated 28 April 2007, was lodged by MGA Town Planners on behalf of Carlotta Investments Pty Ltd (applicant) against a decision of the Western Australian Planning Commission (WAPC or respondent) on 1 April 2008 to refuse the subdivision of Lot 12 Gibbs Road, Nowergup in the City of Wanneroo (City) into three new lots.
The application for review was made under the provisions of s 251(1) of the Planning and Development Act 2005 (WA) (PD Act).
The reasons for refusal were:
1.The land is zoned 'Rural' in the Metropolitan Region Scheme where the Commission does not favour further fragmentation as this leads to smaller lot sizes and closer development which would conflict with [the] intent of the zoning of this Scheme.
2.The land is zoned 'Rural Resource' in the City of Wanneroo's District Planning Scheme No. 2. 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.
3.The Commission's Agricultural and Rural Land Use Planning Policy, a provision of Statement of Planning Policy No. 1, Variation No. 2, requires Councils to prepare a Local Rural Strategy to comprehensively plan for change and development in rural/special rural areas. In the absence of an approved Local Rural Strategy, the Commission is not prepared to approve the subdivision of rural/special rural land that would lead to unplanned development and could be to the detriment of other rural uses, proper management of rural/special rural land and a rational settlement pattern.
4.The application is inconsistent with the Metropolitan Rural Policy (1995), a provision of Statement of Planning Policy No. 1, Variation No. 2, which includes the objective of safeguarding operations requiring rural locations in Perth. The Commission is not prepared to approve the creation of lots that would threaten existing operations requiring a rural location within the Perth Metropolitan Region.
5.The application does not comply with the Commission's Policy DC 3.4 Subdivision of Rural Land, a provision of Statement of Planning Policy No. 1, Variation No. 2, by reason that the subject land has not been identified for residential development in a town planning scheme, an endorsed local planning strategy or an endorsed local rural strategy and it has not been demonstrated that the site is suitable for closer subdivision.
6.The subject land is located within the study area of The future of East Wanneroo: Land use in water management in the context of Network City, August 2007 which will guide the planning for the future development of the East Wanneroo area. The proposal, if approved, would result in the fragmentation of land which would prejudice the planning of the area.
7.Town Planning practice has established that closer development of rural land and the resulting land use mix increases the likelihood of potential conflict between land owners and hence the need for appropriate land management controls. This fact is recognised in the City of Wanneroo District Planning Scheme No. 2 through a separate 'Special Rural' zone to specifically address these issues. Development of the subject land in the manner proposed in this locality is considered inappropriate as adequate controls to address land use conflict and management are not available.
8.Approval to the subdivision would create an undesirable precedent for the further subdivision of other lots of a similar size in the 'Rural Resource' zone of this locality.
Subject land
The subject land can be described as Lot 12 Gibbs Road, Nowergup on Diagram 39500 and is located on Certificate of Title Volume 386 Folio 184A.
The 'L' shaped property is located on the south‑east corner of Gibbs Road and Godel Road. It has an area of 68.1007 hectares.
There are five large sheds on the subject land that are used for poultry production. These are located, along with associated outbuildings, towards the north‑west corner of the land.
There are two existing dwellings some 150 metres south of the poultry sheds. Each dwelling has a separate access to Gibbs Road.
The proposed subdivision seeks to create three lots of 6,808 square metres, 6,675 square metres and 66.6641 hectares. Each of the two smaller lots would contain one of the existing dwellings, and the balance lot would remain for rural purposes.
Legislative and policy framework
The subject land is zoned 'Rural' in the Metropolitan Region Scheme (MRS) and 'Rural Resource' in the City of Wanneroo District Planning Scheme No 2 (Scheme or DPS 2).
Of relevance are a series of State and local planning policy documents. These include:
(a)WAPC Statement of Planning Policy No 2.4 ‑ Basic Raw Materials (SPP 2.4);
(b)WAPC Statement of Planning Policy No 2.5 ‑ Agricultural and Rural Land Use Planning (SPP 2.5);
(c)WAPC Statement of Planning Policy No 3 ‑ Urban Growth and Settlement (SPP 3);
(d)WAPC Statement of Planning Policy No 4.3 ‑ Poultry Farms Policy (SPP 4.3);
(e)A Rural Small‑Holdings Policy Study ‑ Western Australia, 1977 (RSHPS);
(f)North West Corridor Structure Plan, 1992 (NWCSP);
(g)Metropolitan Rural Policy, 1995 (MRP);
(h)WAPC Development Control Policy No 3.4 ‑ Subdivision of Rural Land (DC 3.4);
(i)WAPC The Future of East Wanneroo ‑ Land use and water management in the context of Network City (EWLUWM); and
(j)City of Wanneroo ‑ Interim Local Rural Strategy 2000 (ILRS).
Respondent's position
The position of the respondent is outlined in a Statement of Issues, Facts and Contentions (SIFC) dated 16 September 2008. The respondent contends:
(a)The average size of the proposed two smaller lots is 6,741 square metres. This is 55% smaller than the smallest lot in the locality as defined by the respondent, being the 1.51 hectare lot in the south‑western portion of the locality.
(b)The majority of the smaller lots in the locality are on the western side of Gibbs Road which is zoned 'General Rural' in DPS 2. On the eastern side of Gibbs Road within the 'Rural Resource' zone, with the exception of a 1.51 hectare lot, all the lots are substantially over 20 hectares in area (with the exception of one lot that is 19.93 hectares).
(c)The two proposed smaller lots are not consistent with the prevailing lot sizes in the locality. The balance lot of 66.6 hectares is consistent with the larger lots on the east side of Gibbs Road.
(d)The two proposed smaller lots are consistent with a 'Special Residential' zoning (2,000 square metres to 1 hectare), as compared to a 'Rural Residential' zoning (1 hectare to 4 hectares) or 'Rural Smallholding' zoning (4 hectares to 40 hectares).
(e)The policy of the City on the subdivision of rural land states that the minimum area for subdivision of the subject land is 20 hectares, except in special cases where a minimum area of 8 hectares may be supported. The two smaller lots are on average 91.5% smaller than the 8 hectare minimum.
(f)DPS 2 clearly seeks to provide for the continued and expanded use of land within the 'Rural Resource' zone for agriculture, horticulture and basic raw materials. DPS 2 reflects the requirements of SPP 2.5, DC 3.4, the RSHPS, the MRP and the NWCSP to protect productive rural land for agriculture and raw material resources and to avoid land use conflicts that might threaten such resources.
(g)The existing large lot sizes of the subject land, and surrounding land, facilitates land uses that are consistent with DPS 2, SPP 2.5 and relevant policies. The proposed subdivision would create two essentially residential lots that are unrelated in size to the surrounding rural lots and are incapable, due to their size, of being used for purposes that are consistent with DPS 2, SPP 2.5 and relevant policies.
(h)The creation of the two proposed smaller lots would potentially create land use conflicts with surrounding rural uses (such as the existing on-site poultry farming) arising from different expectations of amenity. These conflicts would potentially impact on the operation of the rural uses that are identified as priority uses in the zone.
(i)Approval for two dwellings on the subject land was granted in accordance with DPS 2 on the basis that the dwellings would be used for purposes associated with the management of the land. This arrangement was highlighted in an agreement entered into between the owner of the subject land and the City where the owner agreed not to apply for subdivision before the zoning of the land changed to permit subdivision.
(j)The proposed subdivision would potentially facilitate sale of the dwellings to persons not associated with the management of the lawful and preferred rural uses on the subject land.
(k)The creation of essentially residential lots is inconsistent with SPP 2.4 as it would create the potential for conflict with, and constrain processes involved in, the extraction of raw materials in the locality that is identified as a regionally significant Priority Raw Materials area.
(l)The proposed lots would create essentially residential lots within 150 metres of the existing poultry sheds which could not help but impact on owners unconnected with poultry farm management, in respect to odour and potential noise and dust. This situation would be inconsistent with SPP 4.3.
(m)The subdivision would create the potential for an additional two dwellings on the balance lot of 66.6 hectares under DPS 2, thereby increasing the encroachment of sensitive uses and reducing the protection of existing rural uses on the subject land and surrounding land. This would be inconsistent with DPS 2, SPP 2.4, SPP 2.5 and SPP 4.3.
(n)Section 138 of the PD Act states that the WAPC must not approve subdivision that conflicts with the provisions of a local planning scheme and, if that scheme is over five years old, various criteria must be satisfied before approval can be granted. DPS 2 was gazetted in July 2001 and the proposed subdivision is inconsistent with the Scheme and State Planning Policy, and does not satisfy any of the criteria listed in s 138(3) of the PD Act to be eligible for approval.
(o)Until further planning studies determine that closer settlement is appropriate within the area, it is premature, and not in the interests of orderly and proper planning, to potentially prejudice existing and future land uses that comply with the intended function of the zoning by introducing essentially residential lots with attendant land use conflicts.
(p)Approval of the subdivision would potentially create an undesirable precedent for subdivision to create similar smaller lots for existing single dwellings within the locality. Also, it would create a precedent for the individual subdivision of other grouped dwellings approved under the provisions of the 'Rural Resource' zone.
(q)The structuring of business affairs of a particular landholder is not a sufficient justification for subdivision, and the issue of hardship is not addressed in any known planning instruments applicable to the subject land. The issue of hardship is not considered relevant to the application.
Applicant's position
The position of the applicant is outlined in a 'Statement of Issues, Facts and Contentions in Reply' dated 23 September 2008. The applicant contends:
(a)The proposed subdivision is consistent with the objectives of the 'Rural Resource' zone and the provisions of the Scheme relating to subdivision within this zone. The Scheme does not prevent subdivision of the type proposed.
(b)The City does not have a local rural strategy with properly constituted policies for dealing with subdivisions in the 'Rural Resource' zone.
(c)The WAPC policies dealing with the subdivision and development of 'rural' land are many and cause confusion. This confusion is exacerbated by various additional studies/reports.
(d)The proposed subdivision conforms with DC 3.4 (cl 4.1(d) and cl 4.1(e)) in circumstances where there is no local planning strategy or local rural strategy.
(e)Clause 4.9 of DC 3.4 is not a relevant limiting factor on the creation of house lots under cl 4.1 because:
(i)a house lot is not a 'homestead lot'; and
(ii)the construction of DC 3.4 means that cl 4.1 can be considered independent of cl 4.9.
(f)The proposed subdivision is consistent with the agricultural use of the land and does not rely on proving hardship. Nevertheless, hardship is a contributing factor.
(g)The proposed submission is consistent with the character of the area as identified in the EWLUWM and sound planning principles have guided that document. In the absence of a local planning strategy/local rural strategy, those principles should guide decisions on subdivision.
(h)The history of subdivision along Gibbs Road and Karoborup Road is such that the character of the land along those roads is formed by that subdivision activity. The section on the eastern side of Gibbs Road near Lot 12 is an anomaly because of the large lot sizes.
(i)The special circumstances of this case and the situation outlined in (h) above indicate that this subdivision would not create a precedent.
Planning issues
(a)Does the proposal accord with orderly and proper planning; specifically having regard to the relevant statutory and policy provisions?
(b)Would an approval be likely to set a precedent for further subdivision in the locality?
(c)Do the particular circumstances of this case justify a consideration of 'hardship'?
Assessment of the proposal
Background
The background to this matter is best explained in the witness statement dated 6 October 2008 of Dr Isaac Raiter, a Director and principal shareholder of the applicant. He explains:
(a)In 1972, Dr Raiter employed Mr Russell Anderson to manage Lot 12 and Lot 13 Gibbs Road, Nowergup. This involved the farming of cattle, sheep, lucerne, hay, oats, carrots and pine forests.
(b)In 1991, Dr Raiter and his son, together with Mr and Mrs Anderson, established Nowergup Poultry and were granted a licence from Inghams Chickens to breed poultry.
(c)The implied contractual terms of the partnership included a requirement for the Andersons to remain on the land to operate and service the business, with the Raiters providing the land and infrastructure for the business.
(d)In 1991, Dr Raiter built a brick and tile residence on the property for the Anderson family. The transportable house, which had accommodated the Anderson family since 1972, was subsequently occupied by Mr Anderson's son.
(e)In order to gain an approval to build a second house, the company was obliged to enter into a Dual Dwelling Agreement (Deed) to not seek to subdivide the land or apply for approval to any subdivision thereof without the prior written consent of the Council. This arrangement was contingent on the then General Rural zoning not changing to another zoning ' … whereby the land may be subdivided'.
(f)On 25 October 2007, an application for approval to subdivide (Form 1A) was lodged with the WAPC.
(g)A refusal to subdivide, for the reasons outlined in [8] above, was issued on 1 April 2008.
(h)The application for review, under s 251(1) of the PD Act, was lodged with the Tribunal on 28 April 2008.
Legislative and policy provisions
Statement of Planning Policy No 2.4 – Basic Raw Materials
The purpose of SPP 2.4 is to set out the matters that need to be taken into account, and given effect to, by the WAPC and local governments in considering zoning, subdivision and development applications for both extractive industries themselves (for the extraction of basic raw materials) and in the vicinity of basic raw material resource areas.
The objectives of SPP 2.4 under cl 5.1 are to:
•identify the location and extent of known basic raw material resources;
•protect Priority Resource Locations, Key Extraction Areas and Extraction Areas from being developed for incompatible land uses which could limit future exploitation;
•ensure that the use and development of land for the extraction of basic raw materials does not adversely affect the environment or amenity in the locality of the operation or during or after extraction;
•Provide a consistent planning approval process for extractive industry proposals including the early consideration of sequential land uses.
Under cl 6.1 of SPP 2.4 (Policy Areas), 'Priority Resource Locations' are defined as locations of regionally significant resources that should not be constrained by incompatible uses or development, whilst 'Key Extraction Areas' are defined as resource areas providing for the long term supply of basic raw materials. The latter should be protected under the town planning scheme.
In the witness statement, dated 30 September 2008, of Mr Peter Goff, a qualified town planner for the applicant, he shows at his Figure 3 an extensive 'Priority Resource Location' as identified in SPP 2.4. It is clear that the subject land falls within the location but, unlike several other sites in the locality, is not classified as a 'Key Extraction Area'.
However, in his evidence at the hearing, Mr Anderson advised:
The limestone quarry on lot 12, we lease that out and get a royalty payment, which is a minimal payment of a couple of thousand dollars a month …
It is clear to the Tribunal that, at the present time at least, the quarrying of limestone from the subject land is a relatively minor activity in relation to the total farm operation.
Statement of Planning Policy No 2.5 ‑ Agricultural and Rural Land Use Planning
Under cl 2 of SPP 2.5 (Background and Purpose), it states:
The policy is guided by the following fundamental principles -
•The State's priority agricultural land resource should be protected
•Rural settlement opportunities should be provided if sustainable and of benefit to the community
•The potential for land use conflict should be minimised
•The State's natural resources should be carefully managed.
Under cl 4 of SPP 2.5 (Policy Objectives), it states:
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
c.improving resource and investment security for agricultural and allied industry production.
Under cl 5 of SPP 2.5 (Policy Measures), it states:
(ii)Local planning policies may be prepared to assist a local government in making decisions under its town planning scheme. The local planning policies should be consistent with the provisions of this policy.
The position of the respondent with respect to SPP 2.5 is that the local government is required to prepare a local planning strategy (local rural strategy) and that, in the absence of such a strategy, it is generally not prepared to approve the subdivision of rural land that would lead to unplanned development and could prejudice the future planning, development and use of an area and/or the rural land resources.
The position of the applicant is that, by the creation of the two managers' house lots related to the agricultural enterprise, it would maintain a viable agricultural activity in the short to medium term and improve the investment security of the part owners/managers of the agricultural enterprise in line with cl 4(c) of the policy at [26] above.
Statement of Planning Policy No 4.3 ‑ Poultry Farms Policy
The background to the policy is explained in this way:
The Commission is aware of the conflicts which can arise between poultry farms and residential, rural-residential and other developments because of the odours, noise, dust and visual impacts associated with poultry farms.
Under cl 5.4 of SPP 4.3 (Proposals for Residential and Rural‑Residential Development in the Vicinity of Poultry Farms), it states:
5.4.1In [considering] proposals for the zoning, subdivision and development of land for … rural-residential purposes (closer than 300 metres to any existing or approved poultry shed), the Commission and/or local government may require an assessment to show that the operation of the poultry farm will [not] adversely affect the amenity of the new residents in the proposed … rural-residential area.
Under cl 5.4.3 of SPP 4.3, it states:
The Commission will generally require, as a condition of subdivision approval, that prospective purchasers within 50 metres of any existing poultry farm are [advised] of the existence of the poultry farm.
The position of the respondent is that the two proposed smaller lots are well within the 300 metre buffer zone (at 39.6 metres and 89.6 metres respectively from the existing poultry sheds) and, that if purchased in the future by persons not associated with the poultry farm business, could give rise to conflict with the owners of the poultry farm or amenity grounds.
The position of the applicant is that the proposed subdivision would not alter the current proximity of the two residences to the existing poultry sheds but, in any event, a memorial could be placed on the titles of the proposed lots warning of the proximity of the poultry farm and the potential for impacts.
The position of the Tribunal is that, although the proximity of the two dwellings to the poultry sheds is far from ideal, any potential purchaser of one or both of the two smaller lots would be more than aware of the existence of the poultry sheds if still operational. However, a memorial on the title would be necessary in the event of subdivision.
A Rural Small-Holdings Policy Study (1977)
In relation to the subject land, the policy recommends that:
Except in special circumstances the market garden areas of Wanneroo, Spearwood, Wattleup and Rockingham be controlled for subdivision on the basis of the lot sizes shown on Map 15 (4, 8 and 20 hectares depending on location).
The subject land falls within an area where the suggested minimum lot size is 20 hectares.
The position of the respondent is explained in the witness statement, dated 1 October 2008 of Ms Sally Grebe, a qualified town planner and Senior Planning Officer with the Department for Planning and Infrastructure. She states at her [66]:
Whilst the RSHP is now approximately 30 years old, its principles remain enshrined in the subsequent relevant policies … It is my view that the proposed subdivision into small residential sized lots does not satisfy the fundamental principle of protecting rural land for rural use, especially given that the area of the subject land is currently used for productive rural purposes.
The position of the applicant is outlined by Mr Goff in his witness statement. He argues:
(a)A Rural Small Holdings Policy (1980) grew out of the 1977 RSHPS but maintained the minimum lot size of 20 ha for the locality.
(b)Since the policy was adopted in January 1980 there have been many smaller lots created along Gibbs/Karoborup Roads with the result that the minimum lot size of 20 hectares for land fronting these roads has little relevance, and any lot 20 hectares or above is an anomaly.
(c)The 20 hectare lot size policy in Wanneroo is subject to a 'special circumstances' provision which the applicant believes applies in this case.
(d)The policy states at page 78:
'Commonwealth and State Government should become more committed to maintaining agriculture in particular areas. Positive encouragement to farmers in certain areas is seen as an integral part of rural planning policy.'
The Raiters/Andersons are looking for encouragement to continue farming having regard to their special circumstances.
North-West Corridor Structure Plan (1992)
The aim for 'rural' areas, which include the subject land, are to 'protect groundwater resources, conserve and protect key agricultural land and basic raw materials from inappropriate development … and enhance rural amenity and landscape features. An important consideration is to ensure that subdivision for special rural and rural residential uses is consistent with these aims.'
In relation to the Nowergup area, the NWCSP states:
The area of Neerabup and Nowergup north of Flynn Drive has been identified as a primary resource area for limestone. The area should be protected from urbanisation until such time as the resource has been extracted. Extraction should be concentrated in the south in the short‑term to utilise resources in the Flynn Drive industrial area prior to industrial development.
The position of the respondent is that the creation of the two smaller lots may create a precedent for other incompatible small lot subdivision and that this would be contrary to the NWCSP that expressly seeks to protect the identified primary resources in the area.
The position of the applicant is that no urbanisation or development is contemplated by the subdivision and that, because of the special circumstances of this case, a precedent would not be created.
Metropolitan Rural Policy (1995)
The fundamental premise of the policy is that the 'Rural' zone should not be regarded as a resource for continued subdivision but should be viewed in terms of appropriate land uses taking into account a range of public and private objectives.
The policy also advises that subdivision and development will not normally be permitted within priority resource areas except where it can be demonstrated that the proposal will not prejudice the long‑term exploration of the resource.
The position of the respondent is that the large lot size of the subject land, and surrounding land within the 'Rural Resource' zone, facilitates land uses that are consistent with the zone. The proposed two smaller lots would be inconsistent with the zone.
The position of the applicant is that the policy recognises the metropolitan areas' need for food supplies, as well as the landscape benefits of the rural areas, and that the requirement to accommodate the needs of the farm managers and their families in this case by permitting subdivision is consistent with that policy objective.
Development Control Policy No 3.4
The general policy requirement in cl 3.1 of DCP 3.4 states:
It is WAPC policy that the subdivision of rural and agricultural land for closer settlement (rural-residential and rural-smallholdings) and more intensive agricultural uses should be properly planned through the preparation of regional and local planning strategies and provided for in local planning schemes prior to subdivision.
Clause 4.1 of DCP 3.4 deals with the retention of rural character:
It is WAPC policy that, in the absence of the planned provision for closer settlement and more intensive agricultural uses, existing large rural lots be retained for broadacre and transitional forms of farming [ , ] and that the fragmentation of rural land and loss of rural character through piecemeal, unplanned subdivision not be permitted.
The following forms of subdivision are not fragmentation, do not result in loss of rural character and may be permitted:
…
(b)To reduce the area of large land parcels which are two or more times the area of typical lots used in the district for farming.
…
(e)To allow for the continued occupation of existing houses when they are no longer used in a farming operation.
(f)For other unusual or unanticipated purposes which, in the opinion of the WAPC, do not conflict with policy and are necessary in the public interest.
The position of the respondent is that there is no regional or local planning strategy in place as required by cl 3.1 of DCP 3.4, and that cl 4.1(e) of DCP 3.4 does not contemplate a circumstance where the two existing dwellings on the subject land would be transferred to the Andersons on separate titles and that the poultry farm would continue to operate.
The position of the applicant is that, even if subdivision were to occur as proposed, the overall character of the area would remain after subdivision. Also, the large remainder lot would be well over eight times the area of typical lots along Gibbs Road and Karoborup Road and, as such, the proposed accords with cl 4.1(b) of DCP 3.4.
The future of East Wanneroo ‑ Land Use and Water Management
This land use and water management study covers a vast area east of Wanneroo Road from Wangarra in the south to Carabooda in the north. The study advises of:
… the possible establishment of a new agricultural and horticultural area in the northern-east Wanneroo to replace those southern areas lost to future urban development.
Under cl 5.4 of EWLUWM, it states:
The north-east position of Carabooda/Nowergup will remain zoned rural and be available for agricultural/horticultural production and the protection of the significant deposits of sand and limestone in the area.
The question of new areas for small rural lots is explained in this way under cl 5.2 of EWLUWM:
Potential new rural subdivision/landscape protection areas are also proposed in the areas of remnant tuart and karst landforms in Carabooda/Nowergup, just east of Wanneroo Road. Although currently zoned rural, these areas are generally not suitable for intensive horticulture because of surface limestone … A notional line is shown in figure 5 to give an indication of the potential of the area for further rural small lot subdivision, and therefore, only gives a general indication and not a precise definition of existing lots that are suitable or not suitable for future small lot rural subdivision … The exact extent of new rural small lot subdivision would be subject to further local area structure planning and local planning scheme amendments to be undertaken by the City of Wanneroo.
The position of the respondent is that the subject land is not included in the potential area for further rural small lot subdivision as it is east of the so-called 'notional line'.
The position of the applicant is summarised in the witness statement of Mr Goff at his [6.0]:
A brief summary of the report recommendations for Nowergup is that Gibbs/Karoborup Roads are recognised as a special character area partly due to the existing subdivision pattern of smaller lots resulting in cottage industries and tourism activity. That pattern is to be fostered. The eastern part of Nowergup is likely to provide basic raw materials.
Interim Local Rural Strategy
The ILRS provides a policy direction for consideration of subdivision and development applications within rural areas of the City. The subject land falls within a 'Rural Resource' area.
Under P 3.3 of ILRS, it states:
Potentially incompatible uses, such as rural living, should not be permitted in the Rural Resource Zone unless it can be demonstrated to the satisfaction of Council there is no potential for adverse impacts to the carrying out of the priority resource use.
Under P 14.1 of ILRS, it states:
The boundary of the 20 hectare limit subdivision policy area is revised in accordance with the Rural Resource Zone (north of Flynn Drive) in the City of Wanneroo Town Planning Scheme. Subdivision below 20 hectares should not generally be supported because it would tend to undermine the rural resource objectives unless it can be shown how, in special cases, this would not be the case. Where subdivision below 20 hectares is to be supported, a minimum lot size of 8 hectares should be applied.
The provisions of P 14.1 of ILRS were incorporated into the City of Wanneroo Policy Manual (Subdivision of Rural Zoned Land) on 14 December 2004.
The position of the respondent is that the ILRS and the City's Policy Manual do not contemplate Rural‑Residential, Rural‑Smallholdings or residential lots and that the two proposed smaller lots are, on average, 91.5% below the absolute minimum 8 hectare limit.
The applicant acknowledges the ILRS subdivision policy outlined in [59] above but highlights the factual situation of numerous smaller lots approved along Gibbs Road and Karoborup Roads.
District Planning Scheme No 2
The subject land is zoned 'Rural Resource' and the objectives of the zone are outlined in cl 3.17.1 of DPS 2:
(a)Protect from incompatible uses or subdivision, intrusive agriculture, horticultural and animal husbandry areas with the best prospects for continued or expanded use;
(b)Protect from incompatible uses or subdivision basic raw materials priority areas and basic raw materials key extraction areas.
The matter of two dwellings on a single lot is addressed in this way under cl 3.17.4(b) of DPS 2:
If the Council approves or has at any time before the gazettal of the scheme approved a second dwelling on a lot in the circumstances set out in paragraph (b), that approval shall not be and shall not be taken to be support in any way for the future subdivision or strata subdivision of the lot or provision of separate certificates of title in respect of the two dwellings on the lot.
Clause 3.17.4(c) of DPS 2 elaborates further:
… a second dwelling on a lot in this zone should be allowed to facilitate the carrying on of rural and resource exploitation uses, and the provisions should expressly not be used presently or in the future to support fragmentation of the land, or the alienation of ownership or use of either of the dwellings from the ownership and control of the person carrying on the rural or resource exploration use.
The position of the respondent is:
(a)The proposed two smaller lots would be incapable of being used for the rural resource purposes identified by the zoning.
(b)The subdivision creates the potential for an additional two dwellings on the balance lot of 66.6 hectares.
(c)The proposed subdivision would 'fragment' the land.
(d)The proposed subdivision provides for the alienation of ownership or use of either of the dwellings from the ownership and control of the operators of the rural activities on the land.
(e)The fact that DPS 2 does not specifically prohibit subdivision of the subject land is not a reason to grant an approval. The proposal must demonstrate that it achieves the objectives of the zone, and that is not the case in this instance.
The position of the applicant is that parts of the text (cl 3.17.2) of the Scheme relating to subdivision or development in the 'Rural Resource' zone are predicated on the existence of a local rural strategy, and such a strategy does not exist.
The matter of the locality
In her witness statement, Ms Grebe describes the locality as:
… a discreet [sic] area that is bounded by Wesco Road to the south, Gibbs Road to the west, McLennan Drive to the north and state forest to the east. The subject land is located centrally within the 'locality'.
At the hearing, and in reference to Figure 2 (Current cadastral highlighting larger lots on Gibbs Road and Karoborup Road), Mr Goff argued that the locality includes those lots on either side of Gibbs Road and Karoborup Road that comprise a so‑called "rural way" or "character area".
From the perspective of the Tribunal, the matter of the locality, although important, will not be the determinant factor in this review. However, the Tribunal is reluctant to move north into Carabooda as suggested by Mr Goff, and a locality bounded by Kiln Road in the north, the State forest to the east and land on either side of Gibbs Road south to Wesco Road is a reasonable definition of 'locality' in this review. The Tribunal does note, however, a number of 2‑hectare to 7‑hectare lots on either side of Gibbs Road south of Wesco Road.
The matter of orderly and proper planning
This matter is best addressed by assessing the proposal against the relevant provisions of both the statutory and policy documents.
As outlined in the legislative and policy provisions in [19] to [67] above, there is a wide divergence of views between the parties on these documents.
From the perspective of the Tribunal, the critical focus of this review must be on what the documents are attempting to achieve over the longer term as sound planning principles, and what flexibility, if any, exists to allow the current proposed subdivision without compromising those principles.
The matter of hardship
Under s 241(3) of the PD Act, it advises:
In determining an application for the review of the determination, 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.
The position of the respondent is that the proposed subdivision will affect the application of sound planning principles, whilst the applicant argues that, although the circumstances may not represent hardship in terms of s 241(3) of the PD Act, they do contribute to a situation where the future of the farm would be jeopardised in the short term. In that sense, the applicant argues that the circumstances surrounding the subdivision are consistent with sound planning principles.
The matter of the 'Dual Dwelling Agreement (Deed)'
On 5 March 1992, a Deed was signed between the applicant and the respondent whereby under cl 1(ii) it stated:
That until such time as the land is rezoned from its present rural under the Town Planning Scheme presently applicable thereto to some other zoning whereby the land may be subdivided the Owner will not without the prior written consent of the Council seek to subdivide the land or apply for approval to any subdivision thereof.
In her witness statement, Ms Grebe argues at her [81] to [83]:
•the written consent from Council was not sought prior to the lodgement of the Form 1A application for subdivision;
•the Deed was to highlight that an approval for a second dwelling on the subject land did not provide for subdivision prior to an appropriate rezoning which provided for subdivision;
•the current application is contrary to cl 3.17.4(b) and cl 3.17.4(c) of DPS 2.
At the hearing, the following exchange between Mr Goff and Ms Grebe took place:
Mr Goff:
… is there anything in DPS 2 that says this land cannot be subdivided?
Ms Grebe:
There's nothing to prohibit it, but that doesn't assume that any subdivision would be approved.
From the perspective of the Tribunal, the matter of the Deed is not a determinate factor in the review, other than to say that the intent of cl 1(ii) of the Deed to prevent the pursuit of subdivision without Council consent has been strengthened in cl 3.17.4(c) of DPS 2.
These new provisions in DPS 2 may be a determinate factor in this review.
The matter of precedent
In relation to item 1 of the Tribunal's order dated 16 July 2008, it advised:
(1)The applicant to identify approximately 5 lots in the vicinity of the subject land that may be a precedent to enable the proposed subdivision to proceed; and
(2)the respondent to file and serve a letter in response explaining the historical or other circumstances of the lots identified by the applicant within 21 days.
On 18 July 2008, MGA Town Planners responded listing a total of 21 lots, all of which are south of Wesco Road with the exception of Lot 10 (6.5 hectares) at the corner of Gibbs Road and Nowergup Road and Lot 2 Gibbs Road.
By letter dated 15 August 2008, the respondent replied outlining reasons for the creation of eight only of the 21 lots. These reasons included:
•the existing lots complied with either the minimum lot size requirement or other provisions of the relevant rural policy at the time of approval;
•the proposed lots are not based on an argument of severance of an agricultural landholding by a significant natural or manmade feature as was the case with Lot 2 and Lots 24 to 26 Gibbs Road, Nowergup;
•the existing residential land uses on the subject land are not considered to be ancillary to the predominantly rural land use, as was the case with Lot 55 and Lot 56 Gibbs Road, Nowergup;
•compassionate grounds are not a planning consideration as was the case with the creation of Lot 21 and Lot 23 Gibbs Road, Nowergup which were created on Ministerial appeal.
In the witness statement of Ms Grebe, she describes previous Tribunal decisions in East Wanneroo in this way:
…
(a)Maher & Anor and Western Australian Planning Commission [2006] WASAT 129 (review dismissed);
(b)Bojanich and Western Australian Planning Commission [2006] WASAT 315 (review dismissed);
(c)Waddell & Anor and Western Australian Planning Commission [2007] WASAT 82 (review dismissed);
(d)Williams & Anor and Western Australian Planning Commission [2008] WASAT 6 (review dismissed).
The findings of SAT in relation to the above cases had a common theme that it is generally contrary to orderly and proper planning to approve a subdivision which is materially inconsistent with the strategic and statutory framework.
As explained by Ms Grebe in the case of Strawbridge & Anor and Western Australian Planning Commission [2006] WASAT 96, the Tribunal allowed two approximately 2‑hectare lots. The reasons in that instance were:
(a)the subdivision completed a pocket of 2‑hectare lots;
(b)evidence showed the land was not suitable for agricultural pursuits due to water allocation restrictions;
(c)the land was identified as possible 'rural living' in the EWLUWM document; and
(d)the land was located in the 'General Rural' zone where rural residential uses were not incompatible with the objectives of the zone.
From the perspective of the Tribunal, as interesting as all of the above information is, this matter will be determined on its merits, and the particular circumstances of the case within the current statutory and policy framework.
Conclusions
The application for review was lodged against a decision of the WAPC to refuse the subdivision of a 68.1007‑hectare lot into three lots of 6,808 square metres, 6,675 square metres and 66.6641 hectares at Lot 12 Gibbs Road, Nowergup.
In undertaking this review, the Tribunal examined the respective position of the parties, the background to the application, the extensive legislative and policy provisions, a definition of 'locality' and matters of orderly and proper planning, hardship, precedent and an existing Deed between the applicant and the respondent.
The position of the respondent is that the proposed subdivision is inconsistent with the statutory and policy framework, does not satisfy any of the exemption criteria listed in s 138(3) of the PD Act, would create an undesirable precedent and that the issue of hardship is not relevant to the application.
The position of the applicant is that, in the absence of a local rural strategy, there is no policy framework to deal with subdivision in the 'Rural Resource' zone and, in any event, there is no impediment to subdivision imposed by DPS 2. Also, that the existing subdivision pattern along Gibbs Road and Karoborup Road is that large lots, such as the subject land, are now anomalous and that, in the special circumstances of this case, the proposed subdivision would not create a precedent.
In terms of the special circumstances of this case, it appears that the applicant is the Raiter family company which has owned Lot 12 since 1972 and is the subject of a share farming venture with the Nowergup Poultry partnership (Isaac and Andrew Raiter 50% and Russell and Margaret Anderson 50%). The share farming arrangement is predominantly a poultry farming enterprise but also includes grazing and other rural activities, including some limestone extraction.
Over a 36‑year period, the Andersons have invested in the farm infrastructure (principally the existing chicken sheds) and in answer to a question from Senior Sessional Member Graham at the hearing on the money invested so far, Mr Anderson replied 'I think probably half a million dollars'.
However, if the existing sheds were to be replaced by 'tunnel ventilated sheds' in line with modern farming and environmental practice, a further investment of up to $3 million could be required.
Having regard to all of these circumstances, Dr Raiter wishes to 'will' the two existing dwellings to the Andersons, which, of itself, could assist that family with the raising of capital.
Of further relevance is the following information, dated 8 October 2008, provided by MGA Planners:
Lot 12 is owned by Carlotta Investments Pty Ltd, Lot 11 to the south is in a complex ownership which includes another company, Carlotta Nominees Pty Ltd 30%, Rima Raiter Superfund 35%, Rima Anderson Superfund 35%. Lot 13 to the east is owned by Carlotta Nominees Pty Ltd (as opposed to Carlotta Investments Pty Ltd) while the small Lot 2 to the south is also owned by Carlotta Nominees Pty Ltd.
On the matter of hardship, the provisions of s 241(3) of the PD Act are relevant. In this regard, there has been no suggestion that the Raiter family are suffering hardship, but rather, that the circumstances of this case are more to do with a somewhat naïve but admirable arrangement between the Raiders and the Andersons over the last 36 years. As stated by Mr Anderson in his evidence:
… we only have an investment in the chicken sheds. So once, you know, that's gone, there's no – you can't on-sell it. There is no investment, there is no reward for my wife and my family and my son. So this is ‑ you know, the reality of the situation only hit back to us in the last few years and, yes, that's where it is …
From the perspective of the Tribunal, the circumstances are such that what is being sought by the applicant is to utilise the planning system, via the Tribunal, to assist a third party as it were, in the form of the Andersons. This is not a circumstance contemplated under s 241(3) of the PD Act, and to use it in this way could open up broadly similar applications from elsewhere in the State.
The Tribunal finds no case of hardship and the matter must be determined on other reasons.
Regarding the existing legislative framework, the Tribunal acknowledges the point raised by the applicant that there is no finalised local rural strategy in the City. However, it would be hard to conceive of any area within the Perth Metropolitan Region where so many planning policies and studies apply, as in the case of East Wanneroo.
What can be said, though, is that SPP 2.5 does contemplate a circumstance where a local rural strategy is not in place and, in that case, the WAPC is generally not prepared to approve the subdivision of rural land that could prejudice long‑term planning.
Again, in a range of these policies, there is a general opposition to the subdivision of rural land on a piecemeal and unplanned basis. More specifically, the NWCSP recognises Nowergup as a primary resource protection area whilst the EWLUWM seeks to retain the north‑east portion of Nowergup for agricultural and horticultural pursuits and the production of significant deposits of sand and limestone.
It is the case though, that the EWLUWM does recognise the prospect of small rural lot subdivision with a notional line drawn on its Figure 5. However, as pointed out by the study:
The exact extent of new rural small lot subdivision would be subject to further local area structure planning and local planning scheme amendments to be undertaken by the City of Wanneroo.
A large scale plan made available by the applicant does show the far western portion of the subject land affected by the notional line but just why the line would not follow Gibbs Road at this point is not known to the Tribunal. In any event, the Tribunal places little importance on this line as a guide to future long‑term planning.
One matter of particular relevance are the provisions of cl 3.17.4(c) of DPS 2 which allows for a second dwelling to facilitate the carrying on of a rural or resource exploitation use. However, this concession is not designed to be used to support the fragmentation of the land; thereby alienating the ownership of the dwellings from the person carrying out the rural or resource exploitation use.
The point to be made here is that this is exactly the situation that occurred on the subject land whereby two dwellings were allowed on conditions imposed by way of a Deed, but now the applicant is attempting to fragment the land and to alienate the ownership of both dwellings from the remainder lot.
Although the agreement was made before DPS 2 which does not, of itself, prevent subdivision of the rural resource zone as advanced by Mr Goff, the intent of cl 3.17.4(c) of DPS 2 is abundantly clear.
In the view of the Tribunal, the proposed subdivision to create essentially rural/residential lots would not be in the interests of orderly and proper planning, and could give rise to other similar applications on nearby large lots. To accede to the applicant's argument, however rational it may appear to be to the applicant, would essentially be contrary to the intent of the statutory framework.
As advised in WR Carpenter Properties Pty Ltd and Griffin Coal Pty Ltd and Western Australian Planning Commission [2006] WASAT 200 at [113]:
Although the Commission (and the Tribunal on review) is not fettered in the exercise of planning discretion by the provisions of [the local planning scheme] and may depart from the provisions of policy controls in appropriate circumstances, it is generally contrary to orderly and proper planning to approve a subdivision which is materially inconsistent with the strategic and statutory framework.
In order to achieve the laudable long-term objectives of the Raiter/Anderson families, some other financial arrangement may need to be found outside the planning system, or a revised subdivision proposal lodged that accords with the existing statutory framework.
Orders
The application for review is dismissed.
I certify that this and the preceding [109] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR L GRAHAM, SENIOR SESSIONAL MEMBER
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