Cheema and Western Australian Planning Commission
[2014] WASAT 104
•26 AUGUST 2014
CHEEMA and WESTERN AUSTRALIAN PLANNING COMMISSION [2014] WASAT 104
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2014] WASAT 104 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:346/2013 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MS L EDDY (MEMBER) | 26/08/14 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Application unsuccessful | ||
| B | |||
| PDF Version |
| Parties: | DIDAR SINGH CHEEMA WESTERN AUSTRALIAN PLANNING COMMISSION |
Catchwords: | Town planning Subdivision application Preliminary issues Proposed two lot subdivision in Yunderup 'Special Rural' zone Scheme Prohibits further subdivision Whether subdivision proposal conflicts with provisions of Shire of Murray Town Planning Scheme No 4 Whether any exceptions in s 138(3) of the Planning and Development Act 2005 (WA) apply |
Legislation: | Peel Region Scheme, cl 12(e) Planning and Development Act 2005 (WA), s 68, s 138(2), s 138(3), s 251(1) Residential Design Codes of Western Australia (2002) Shire of Murray Town Planning Scheme No 4 Shire of Murray Town Planning Scheme No 4, cl 2.1, cl 2.2, cl 6.4.5, Pt VI State Administrative Tribunal Act 2004 (WA), s 27(1), s 27(2) |
Case References: | Landpark Holdings Pty Ltd and Western Australian Planning Commission [2007] WASAT 130 |
Orders | On the application determined by Member Lisa Eddy, on 26 August 2014 it is ordered that: ,1. The proceeding is adjourned to a further directions hearing at 4 pm on Thursday, 4 September 2014. |
Summary | The application was for review of a decision of the respondent to refuse to grant approval to subdivide land located at No 6 (Lot 13) Murray River Drive, South Yunderup, into two lots. The site was zoned 'Special Rural Zone 3' in the Shire of Murray Town Planning Scheme No 4. The scheme provided that there would be no further subdivision of lots within Special Rural Zone 3. The Tribunal considered, as a preliminary issue, whether the subdivision proposal was capable of approval. This required consideration of the application of s 138 of the Planning and Development Act 2005 (WA) and, in particular, whether the proposal was in conflict with the provisions of the scheme and, if so, whether any of the exceptions in s 138(3) of the Planning and Development Act 2005 applied. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : CHEEMA and WESTERN AUSTRALIAN PLANNING COMMISSION [2014] WASAT 104 MEMBER : MS L EDDY (MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 26 AUGUST 2014 FILE NO/S : DR 346 of 2013 BETWEEN : DIDAR SINGH CHEEMA
- Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Town planning Subdivision application Preliminary issues Proposed two lot subdivision in Yunderup 'Special Rural' zone Scheme Prohibits further subdivision Whether subdivision proposal conflicts with provisions of Shire of Murray Town Planning Scheme No 4 Whether any exceptions in s 138(3) of the Planning and Development Act 2005 (WA) apply
Legislation:
Peel Region Scheme, cl 12(e)
Planning and Development Act 2005 (WA), s 68, s 138(2), s 138(3), s 251(1)
Residential Design Codes of Western Australia (2002)
Shire of Murray Town Planning Scheme No 4
Shire of Murray Town Planning Scheme No 4, cl 2.1, cl 2.2, cl 6.4.5, Pt VI
State Administrative Tribunal Act 2004 (WA), s 27(1), s 27(2)
Result:
Application unsuccessful
Summary of Tribunal's decision:
The application was for review of a decision of the respondent to refuse to grant approval to subdivide land located at No 6 (Lot 13) Murray River Drive, South Yunderup, into two lots. The site was zoned 'Special Rural Zone 3' in the Shire of Murray Town Planning Scheme No 4. The scheme provided that there would be no further subdivision of lots within Special Rural Zone 3. The Tribunal considered, as a preliminary issue, whether the subdivision proposal was capable of approval. This required consideration of the application of s 138 of the Planning and Development Act 2005 (WA) and, in particular, whether the proposal was in conflict with the provisions of the scheme and, if so, whether any of the exceptions in s 138(3) of the Planning and Development Act 2005 applied.
Category: B
Representation:
Counsel:
Applicant : No appearance
Respondent : No appearance
Solicitors:
Applicant : N/A
Respondent : State Solicitor's Office
Case(s) referred to in decision(s):
Landpark Holdings Pty Ltd and Western Australian Planning Commission [2007] WASAT 130
Introduction
1 By application lodged with the Tribunal on 23 September 2013, Mr Didar Singh Cheema (applicant) sought, pursuant to s 251(1) of the Planning and Development Act 2005 (PD Act), review of a decision of the Western Australian Planning Commission (respondent) to refuse to grant approval to subdivide land located at No 6 (Lot 13) Murray River Drive, South Yunderup (site) into two lots. In March 2014, Senior Member McNab ordered that a preliminary issue was, following the filing and serving of specified documents, to be determined on the documents.
2 The preliminary issue before the Tribunal is whether the proposed subdivision of the site into two lots can be granted, or whether the Tribunal is precluded from approving the proposed subdivision by virtue of the operation of s 138(2) of the PD Act. Both parties agree that this issue requires the Tribunal to determine:
1) whether approval of the proposed subdivision would be in conflict with the provisions of the relevant town planning scheme; and
2) whether any of the exceptions set out in s 138(3) of the PD Act apply to the application for subdivision.
The site and its locality
3 The following facts are taken from the Agreed Statement of Facts lodged with the Tribunal for the purposes of the determination of the preliminary issue.
4 The site has an area of 2.3347 hectares and is connected to a reticulated water supply. There are two existing outbuildings located adjacent to the northern boundary of the site, accessed via a single driveway from Murray River Drive. To the east (rear) of the site is a Primary Regional Road Reserve (PRR Reserve) associated with Forrest Highway. The portion of Forrest Highway that abuts the site is elevated above natural ground level. The site is located within the flood fringe associated with the Murray River. The site is parkland cleared with the majority of remaining mature vegetation located within one of the proposed subdivided lots. The lots immediately surrounding the site range in size from 2 hectares to 3 hectares.
5 Under the Shire of Murray Town Planning Scheme No 4 (TPS 4 or Scheme) the site is zoned 'Special Rural' and, more particularly, is located within 'Special Rural Zone 3' (SRZ 3). There are 27 lots, including the site, within the part of SRZ 3 that is on the western side of the PRR Reserve (western part of SRZ 3). The lots in the western part of SRZ 3 range from 1.25 hectares to 3 hectares. The western part of SRZ 3 is itself separated into a further two parts by an area of lineal regional open space associated with the Murray River floodway. The larger lots within the western part of SRZ 3 (ranging in size from 2 hectares to 3 hectares) are located to the east of the open space. The site is located in this area. To the west of the open space the lots are smaller (ranging from 1.25 hectares to 2.57 hectares in size with lots generally below 2 hectares).
Does approval of the proposed subdivision conflict with the provisions of TPS 4?
6 Relevantly, s 138(2) of the PD Act states:
Subject to subsection (3), in giving its approval under section 135 or 136 the Commission is to have due regard to the provisions of any local planning scheme that applies to the land under consideration and is not to give an approval that conflicts with the provisions of a local planning scheme.
7 Pursuant to s 68 of the PD Act, TPS 4 has effect as if it were 'enacted by' the PD Act. Thus, in order to determine whether the proposed subdivision conflicts with the provisions of TPS 4, the Tribunal must apply the usual principles of statutory interpretation to the provisions of TPS 4.
8 The objectives of TPS 4 are specified in cl 2.1 and cl 2.2 of the Scheme. Pt VI of TPS 4 is headed 'Special Provisions' and includes provisions relating to Special Rural zones. Clause 6.4.5 in Pt VI of TPS 4 relevantly provides:
All subdivision, development and use of land within a Special Rural Zone shall comply with the Special Provisions contained in Schedule IV of the Scheme relating to the particular parcel or parcels of land, in addition to any other provisions contained in SubClauses 6.4.6 and 6.4.7 of this Part, and the Scheme generally.
9 Schedule 4(i) of TPS 4 provides, in relation to SRZ 3, that '[n]o further subdivision will be permitted'. There are no other provisions in TPS 4 that limit or condition the effect of the prohibition of further subdivision of SRZ 3 in Sch 4 of TPS 4.
10 The Tribunal finds, having regard to the words used in these provisions in the context of TPS 4 as a whole, that the proposed subdivision conflicts with the provisions of TPS 4.
Do any of the exceptions in s 138(3) of the PD Act apply?
11 As the proposed subdivision conflicts with the provisions of TPS 4, the Tribunal could only approve the proposed subdivision if one of the exceptions in s 138(3) of the PD Act applies.
Section 138(3)(a) of the PD Act
12 Section 138(3)(a) of the PD Act provides that:
The Commission may give an approval under section 135 or 136 that conflicts with the provisions of a local planning scheme if
(a) the local planning scheme was not first published, or a consolidation of the local planning scheme has not been published, in the preceding 5 years and the approval is consistent with a State planning policy that deals with substantially the same matter[.]
13 The parties state in the Statement of Agreed Facts that:
TPS 4 was gazetted in 1989 and has not been consolidated in the preceding 5 years.
14 Thus, the first part of the exception in paragraph (a) applies. It is necessary then to consider whether there is a State planning policy that deals substantially with the same matter and, if so, whether the proposed subdivision would be consistent with that State planning policy.
15 The parties have referred the Tribunal to Statement of Planning Policy No 11 Agricultural and Rural Land Use Planning (later renamed State Planning Policy 2.5), gazetted in 2002, and to State Planning Policy 2.5 Land Use Planning in Rural Areas, gazetted in November 2013 (SPP 2.5 (2013)). The parties agree that SPP 2.5 (2013) was gazetted after the decision under review was made and after the current application was lodged with the Tribunal. Clause 1 of SPP 2.5 (2013) states:
… This policy replaces Statement of Planning Policy No.11 Agricultural and Rural Land Use Planning (known as State Planning Policy 2.5).
16 As the nature of review proceedings before the Tribunal is a de novo hearing, the Tribunal is not confined to matters that were before the decisionmaker. The Tribunal can consider new material, whether or not it existed at the time the decision was made: s 27(1) of the State Administrative Tribunal Act 200 (WA) (SAT Act). The purpose of the review is to produce the correct and preferable decision at the time of making the decision: s 27(2) of the SAT Act. In that context, it is appropriate that the Tribunal consider SPP 2.5 (2013), rather than the now replaced Statement of Planning Policy No 11 Agricultural and Rural Land Use Planning (later renamed SPP 2.5), in order to determine whether the exception in s 138(3)(a) of the PD Act applies to the proposed subdivision.
17 SPP 2.5 (2013) states, in clause 3.1, that the policy applies to rural and rural living land in Western Australia. The terms 'rural land' and 'rural living' are defined in the table in clause 6 of SPP 2.5 (2013) to mean:
Rural land Land identified in an endorsed strategy or zoned for rural or agricultural land use under a local planning scheme or strategy
Rural living A land use that is residential in nature, characterised by a grouping of lots generally in the order of one to 40 hectares. Although primary production may occur on some rural living properties it is usually for hobby farming, lifestyle activities or incidental income purposes. In terms of land use zones this includes, but is not limited to, special residential, rural living, rural retreat, rural residential, special rural, rural smallholdings, and landscape protection zones. This also includes subdivision of rural land into smaller landholdings. eg. a boundary realignment which results in lots of a size where residential is the predominant land use. Rural living is not considered a rural or agricultural land use, as defined by the Planning and Development Act 2005
18 The definition of 'rural land' refers to land zoned for agricultural or rural land use and those phrases are both defined in SPP 2.5 (2013) in a way that excludes rural living. 'Rural living' includes land use zones including special rural. The term 'special rural' is itself defined to mean:
A sub-set of rural living and a land use zone with land parcels from one to four hectares in size and generally provided with scheme water and power supply.
19 Therefore, the site that is the subject of the applicant's subdivision proposal is 'rural living', rather than 'rural land' within the meaning of SPP 2.5 (2013).
20 Clause 3.2 of SPP 2.5 (2013) relevantly provides that the policy should be applied throughout State and local government planning decision making in conjunction with other State Planning policies:
…
• for the preparation of regional frameworks, subregional strategies and local planning strategies and schemes where it may be incorporated into local planning schemes by reference;
• when initiating or assessing amendments to region schemes or local planning strategies and schemes; and
• for rural land to guide decision making for subdivision in tandem with Development Control Policy 3.4 Subdivision of rural land.
Where there is no Western Australian Planning Commission (WAPC) endorsed strategic or statutory planning instrument in place to guide decision making, the intent and measures of this policy shall apply. …
21 The Objectives of SPP 2.5 (2013) are specified in clause 4 as follows:
a) To protect rural land from incompatible uses by:
i) requiring comprehensive planning for rural areas;
ii) making land use decisions for rural land that support existing and future primary production and protection of priority agricultural land, particularly for the production of food; and
iii) providing investment security for the existing and future primary production sector.
b) To promote regional development through provision of ongoing economic opportunities on rural land.
c) To promote sustainable settlement in, and adjacent to, existing urban areas.
d) To protect and improve environmental and landscape assets.
e) To minimise land use conflicts.
22 Clause 5.1 of SPP 2.5 (2013) provides that:
…
It is the view of the WAPC that there is an existing supply of suitably sized and located rural lots to cater for intensive and emerging primary production land uses. Creation of new rural lots through ad hoc, unplanned subdivision is considered to be inconsistent with, or contrary to, the objectives of this policy. The overarching policy requirements are:
a) land use change from rural to all other uses is to be planned and provided for in a planning strategy or scheme;
b) land identified as priority agricultural land in a planning strategy or scheme is to be retained for that purpose;
c) beyond its principle function for primary production, rural land is also required for public purposes, natural resource management, biodiversity conservation and protection of landscapes and views;
d) the use of rural land for intensive or emerging primary production land uses does not warrant creation of new or smaller rural lots on an unplanned, ad hoc basis; and
e) creation of new rural lots will be by exception and in accordance with Development Control Policy 3.4 Subdivision of rural land, or planned in a strategy or scheme.
23 In clause 5.2 of SPP 2.5 (2013) it is stated that some existing rural or rural living areas may come under pressure for conversion to urban purposes. It is then stated that the following principles will apply to 'Rural land in the Perth and Peel regions':
…
a) Due to its proximity to major population centres, priority agricultural land is to be preserved for that purpose;
b) Conversion of land from priority agriculture to other uses must be appropriately planned in a strategy or scheme, where such conversion is required as a matter of State significance; and
c) Rural living proposals will be considered by exception in planning strategies and schemes, where topography, environmental or servicing constraints do not permit full urban development, and where bushfire risk is not extreme and significant biodiversity values are protected.
24 Clause 5.3 of SPP 2.5 (2013) recognises that Western Australia is a large and diverse State and provides that the respondent's decisions will be guided by the need to provide economic opportunities for rural communities and to protect the State's primary production and natural resource assets. It goes on to state:
… Therefore:
a) the WAPC will continue to promote rural zones in schemes as highly flexible zones that cater for a wide range of rural land uses that can support primary production and value adding, smallscale tourism, environmental protection and biodiversity conservation;
b) the differing needs of the various regions are recognised and regional variations may be considered where they meet the stated objectives of this policy, are evidence-based and are supported in strategies and schemes; and
c) if there is no strategy or scheme justifying variations to this policy, this policy shall prevail.
25 Clause 5.6 of SPP 2.5 (2013) provides the policy measures that shall apply in relation to establishing rural living precincts and then states that rural living proposals may be supported where 'they comply with the objectives of this policy and meet requirements of this section'. Neither the term 'rural living precinct' or 'rural living proposal' is defined in SPP 2.5 (2013). Clause 5.6 goes on to state that 'the following policy measures shall apply' to the respondent's decisionmaking for 'rural living proposals'. The list that follows includes references to both 'rural living precinct' and 'rural living proposal'. Having regard to the definition of 'rural living' it might be argued that clause 5.6 of SPP 2.5 (2013) applies to decisionmaking about any proposal for the subdivision of rural land into a smaller landholding. However, reading the entirety of clause 5.6 of SPP 2.5 (2013) within the context of the State Planning Policy as a whole, it is apparent that the specified policy measures are intended to be applied to decisionmaking about categorising or zoning land for the purpose of this type of land use, that is, rural living as opposed to a rural or agricultural use, and are not intended as a guide to decisionmaking about a specific subdivision proposal of land that already comes within the definition of 'rural living'.
26 SPP 2.5 (2013) clearly deals with the subdivision of rural land and with decisions concerning changing rural land into rural living land. It does not provide any guidance in relation to decisions concerning the further subdivision of rural living land. The relevant provisions of TPS 4 that conflict with the proposed subdivision can be described as provisions relating to whether subdivision of land zoned special rural and, in particular zoned SRZ 3, is permitted. For the purposes of SPP 2.5 (2013), land zoned special rural is rural living land. The Tribunal is not satisfied that SPP 2.5 (2013) deals with substantially the same matter as TPS 4 for the purposes of this subdivision application.
27 Other than SPP 2.5 (2002), which has been replaced and is no longer relevant to this decision, the parties did not refer the Tribunal to any other State Planning Policy. The exception in s 138(3)(a) of the PD Act does not apply to the applicant's subdivision proposal.
Section 138(3)(b) of the PD Act
28 Section 138(3)(b) of the PD Act provides that:
The Commission may give an approval under section 135 or 136 that conflicts with the provisions of a local planning scheme if
…
(b) the approval is consistent with a region planning scheme that deals with substantially the same matter[.]
29 The site is zoned as 'Rural' under the Peel Region Scheme (PRS). Clause 12(e) of the Peel Region Scheme states that land is classified into a Rural zone for the following purpose:
… [T]o provide for the sustainable use of land for agriculture, assist in the conservation and wise use of natural resources including water, flora, fauna and minerals, provide a distinctive rural landscape setting for the urban areas and accommodate carefully planned rural living developments.
30 The site is part of a larger area of land that has, under TPS 4, become a rural living development within the meaning of the PRS. The division of the Special Rural zones in TPS 4 into a further 36 subunits, each of which have specified subdivision and development criteria or guidelines indicates that the rural living developments within TPS 4 were carefully planned in accordance with the PRS. To be consistent with the PRS, any change to the existing rural living development areas within TPS 4 would have to be carefully planned. The ad hoc subdivision of a single lot within SRZ 3 is not consistent with the PRS.
31 The exception in s 138(3)(b) of the PD Act does not apply to the applicant's subdivision proposal.
Section 138(3)(c) of the PD Act
32 Section 138(3)(c) of the PD Act provides that:
The Commission may give an approval under section 135 or 136 that conflicts with the provisions of a local planning scheme 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[.]
34 In that matter, the relevant finding of the Tribunal was that the proposal under consideration was not in conflict with the town planning scheme: at [22]. For the sake of completeness, the Tribunal went on to consider whether the proposal there under consideration met any of the exceptions provided in s 138(3) of the PD Act. When looking at whether the 'conflict' between the proposal and the scheme was minor in nature, the Tribunal considered the extent of the difference between the proposed lot sizes and the minimum lot sizes that would have been required if the Residential Design Codes of Western Australia (2002) applied to subdivision under the scheme in question. This approach was called for because of the wording of the relevant provisions of the scheme under consideration. The provisions, in substance, specified a particular minimum size of lots, and the proposed lots were smaller than the specified requirements. Determining whether the conflict between the provisions and the proposal was minor in nature therefore required consideration of the degree of variation from the specified lot sizes.
35 In this case, TPS 4 does not provide for any minimum lot sizes when subdividing lots within SRZ 3. Rather, it directly prohibits subdivision of lots within SRZ 3. Because the relevant provision of TPS 4 is worded in an absolute way, any proposal to subdivide lots within that zone is a major conflict with the provisions of TPS 4. Even if this were not the case, it cannot be accepted that subdivision of lots within SRZ 3 is consistent with the general intent of TPS 4 because it is clear that the general intent of the scheme, insofar as it relates to this proposal, is not to allow further subdivision of lots within SRZ 3.
36 The exception in s 138(3)(c) of the PD Act does not apply to the applicant's subdivision proposal.
Section 138(3)(d), (e) and (f) of the PD Act
37 Section 138(3)(d), (e) and (f) of the PD Act provide that:
The Commission may give an approval under section 135 or 136 that conflicts with the provisions of a local planning scheme if
…
(d) the local planning scheme includes provisions permitting a variation of the local planning scheme that would remove the conflict;
(e) in the case of an application under section 135, the local government responsible for the enforcement of the observance of the scheme has been given the plan of subdivision, or a copy, under section 142 and has not made any objection under that section; or
(f) the approval is given in circumstances set out in the regulations.
38 There is no dispute between the parties that the exceptions provided by paragraphs (d) and (f) of s 138(3) of the PD Act do not apply to the applicant's subdivision proposal. The parties also agree that the local government responsible for the enforcement of TPS 4 was given a copy of the subdivision proposal and that it objected to the subdivision proposal.
39 While the applicant contends that the local government's objection was fundamentally flawed and should not stand, the exception in paragraph 138(3)(e) relies on the factual basis that there has been a lack of objection. The exception does not apply in circumstances where there has been an objection, even if that objection is considered by the applicant to have been wrong.
40 The exceptions in s 138(3)(d), (e) and (f) of the PD Act do not apply to the applicant's subdivision proposal.
Conclusion
41 For the reasons given above, the Tribunal finds that the applicant's subdivision proposal is in conflict with the provisions of TPS 4, and that none of the exceptions specified in s 138(3) of the PD Act apply to the proposal. Therefore, pursuant to s 138(2) of the PD Act, the Tribunal cannot give an approval to the subdivision application.
Orders
42 Having come to the above conclusion, there seems little that the Tribunal can do further in relation to this matter except dismiss the application for review. However, in order to give the parties an opportunity to make submission in relation to what the final orders should be, the Tribunal makes the following order:
1. The proceeding is adjourned to a further directions hearing at 4 pm on Thursday, 4 September 2014.
I certify that this and the preceding [42] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS L EDDY, MEMBER
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