CJ VENN AND VERNICE PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION
[2006] WASAT 365
•15 DECEMBER 2006
CJ VENN AND VERNICE PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2006] WASAT 365
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 365 | |
| TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) | |||
| Case No: | DR:579/2005 | 21 AUGUST 2006 | |
| Coram: | MR L GRAHAM (SESSIONAL MEMBER) | 14/12/06 | |
| 22 | Judgment Part: | 1 of 1 | |
| Result: | The application for review is dismissed | ||
| B | |||
| PDF Version |
| Parties: | CJ VENN AND VERNICE PTY LTD WESTERN AUSTRALIAN PLANNING COMMISSION |
Catchwords: | "Special Site" zoning Land capability Original proposal First alternative proposal Second alternative proposal Ad hoc fragmentation of rural land Intensive agricultural use Roaded catchments |
Legislation: | Planning and Development Act 2005 (WA), s 241(1)(a) Shire of Toodyay Town Planning Scheme No 1, cl 3.5.1 - Appendix 2, Sch C Shire of Toodyay Town Planning Scheme No 4(draft), Sch 1, Sch 4 Town Planning and Development Act 1928(WA), s 26(1) |
Case References: | Nil Nil |
Orders | The application for review is dismissed,The decision under review is affirmed |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) CITATION : CJ VENN AND VERNICE PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2006] WASAT 365 MEMBER : MR L GRAHAM (SESSIONAL MEMBER) HEARD : 21 AUGUST 2006 DELIVERED : 15 DECEMBER 2006 FILE NO/S : DR 579 of 2005 BETWEEN : CJ VENN AND VERNICE PTY LTD
- Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
"Special Site" zoning - Land capability - Original proposal - First alternative proposal - Second alternative proposal - Ad hoc fragmentation of rural land - Intensive agricultural use - Roaded catchments
Legislation:
Planning and Development Act 2005 (WA), s 241(1)(a)
Shire of Toodyay Town Planning Scheme No 1, cl 3.5.1 - Appendix 2, Sch C
(Page 2)
Shire of Toodyay Town Planning Scheme No 4(draft), Sch 1, Sch 4
Town Planning and Development Act 1928(WA), s 26(1)
Result:
The application for review is dismissed
Category: B
Representation:
Counsel:
Applicant : Mr JR Ferguson (Acting as Agent)
Respondent : Ms KY Loh
Solicitors:
Applicant : JR Ferguson (Environmental Consultants)
Respondent : State Solicitor's Office
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
(Page 3)
Summary of Tribunal's decision
1 The application for review has been lodged by CJ Venn and Vernice Pty Ltd against a decision of the Western Australian Planning Commission to not approve the amalgamation of two lots of 100 hectares and 128 hectares zoned "Special Site" and their resubdivision into two lots of 40 hectares and one lot of 148 hectares in Frank Venn Road, Toodyay.
2 In undertaking this review, the Tribunal has had regard to the background to the matter, the relevant provisions of State and local rural policy and statutory provisions along with matters of land capability, water supply and the continuation of the existing emu farming operation.
3 The matter was complicated to a degree by previous approvals given by the respondent to subdivide the original landholding, but matters such as land capability, productivity and water supply to sustain a viable enterprise were the decisive considerations.
4 The respondent was able to provide a great deal of technical and scientific argument against the proposal which could not be countered by the applicants. Their arguments were largely based on unsubstantiated opinion without technical support.
5 The application for review is dismissed.
Introduction
6 The application for review, dated 20 September 2005, was made under the provisions of s 26(1) of the Town Planning and Development Act1928 (WA) (TPD Act) and lodged by Mr JR Ferguson on behalf of CJ Venn and Vernice Pty Ltd (applicants) against a decision of the Western Australian Planning Commission (WAPC) (respondent) on 26 August 2005 to refuse the proposed amalgamation and resubdivision of Lots 117 and 118 Frank Venn Road, Toodyay.
7 The letter dated 26 August 2005 explained that the respondent had resolved not to accept revised plans dated 1 July 2005 and to reiterate its earlier decision of 18 September 2003 that the subdivision was contrary to the WAPC policies in that:
(a) it represented the fragmentation of land outside an approved planning framework;
(Page 4)
- (b) it had not been demonstrated that the land was capable and suitable for more intensive use and development;
(c) subdivision would create the potential for additional building development detrimental to the amenity of the locality; and
(d) non-rural activities would be introduced in conflict with legitimate rural uses in the locality.
8 The decision letter also explained that supporting information, as part of the request for reconsideration of the matter, had not adequately demonstrated the capability of the proposed lots to sustain intensive agriculture production, and that there was no evidence that each of the proposed lots was capable of providing the necessary water supply.
The subject land and the alternative proposals
9 The subject land can be described as Lot 117 Frank Venn Road, Hoddy's Well on Diagram 100051, Certificate of Title Volume 2193, Folio 736, and Lot 118 Frank Venn Road, Hoddy's Well on Diagram 100051, Certificate of Title Volume 2193, Folio 737. Lot 117 has an area of 128.6839 hectares and Lot 118 an area of 99.809 hectares.
10 The subject land is located approximately 13 kilometres south of the Toodyay town centre on the Clackline - Toodyay Road. Lot 117 has access via Frank Venn Road to the north and from an unnamed road to the south whilst Lot 118 has access from both the Clackline - Toodyay Road and Frank Venn Road.
11 The general downward slope of the land is from north to south. There is a watercourse and drainage lines and the land is used for the grazing of sheep and emus. There is evidence of sand extraction in the northern part of Lot 117 towards Frank Venn Road, and there is substantial vegetation towards the western extremity of that lot.
12 The "original proposal", which was lodged with the respondent on 19 March 2003, sought to subdivide Lot 117 into three lots of 40.0 hectares (proposed Lot 200), 40.6 hectares (proposed Lot 201) and 48.1 hectares and to amalgamate this land (48.1 hectares) with the existing Lot 118 to form a new Lot 202 of 147.9 hectares.
13 The intent of the "original proposal" was that proposed lots 200 and 201 would be for rural use and owned by Vernice Pty Ltd, and that
(Page 5)
- proposed Lot 202 would be owned by Mr C J Venn for the continuation of his emu farm.
14 On 1 July 2005 the applicants provided two alternative subdivision proposals. The "first alternative" was to subdivide Lot 117 into three lots of 40 hectares (proposed Lot 200), 37 hectares (proposed Lot 201) and 51.7 hectares and to amalgamate this land (51.7 hectares) with existing Lot 118 to form a new larger lot of 151.5 hectares (proposed Lot 202).
15 The "second alternative" proposed to subdivide Lot 117 only into three lots of 40.0 hectares (proposed Lot 200), 40.0 hectares (proposed Lot 201) and 48.6893 hectares (proposed Lot 202).
16 It is the understanding of the Tribunal that the applicants have now reverted to the "original proposal" as formalised in their application for review.
Legislative framework
17 The subject land is zoned "Special Site" in the Shire of Toodyay's Town Planning Scheme No 1 (TPS 1).
18 Under Sch C of TPS 1 the permitted uses and provisions are:
(a) Emu farm, tannery and workshop showroom. Art and craft gallery, eating facility and accommodation units.
(b) Tannery use subject to approval of the Environmental Protection Authority (EPA).
(c) Rural use.
19 Other relevant statutory and policy documents at State and local level include:
(a) the "draft" Shire of Toodyay Town Planning Scheme No 4 (Draft TPS 4).
(b) Avon Arc Sub-Regional Strategy (AASRS).
(c) The WAPC Statement of Planning Policy No 2.5 – Agricultural and Rural Land Use Planning (SPP 2.5).
(d) The WAPC Statement of Planning Policy No 3 – Urban Growth and Settlement (SPP 3).
(Page 6)
- (e) The WAPC Development Control Policy DC No 3.4 - Subdivision of Rural Land (DC 3.4)
(f) The WAPC Development Control Policy DC 1.1 – Subdivision of Land – General Principles (DC 1.1).
(g) Shire of Toodyay "draft" Local Planning Strategy (draft LPS 2).
(h) Planning Bulletin No 26 (PB 26).
Respondent's position
20 The respondent's position is outlined in its "Statement of Issues, Facts and Contentions" dated 24 November 2005. It argues:
(a) The respondent is uncertain of the extent of the agricultural capability of the subject land but it is of the view that it is only capable of broadacre cropping and grazing. This type of agricultural use is more productive with larger lot sizes.
(b) The respondent is unconvinced of the productive and sustainable agricultural capability of the subject land for more intensive agricultural uses than those currently used.
(c) The application, if approved, would result in proposed lots 200 and 201 having no access to the current water supplies on Lot 118 and no water supply for domestic, fire management and agricultural purposes. This lack of water would impact on their ability for more intensive agricultural uses.
(d) TPS 1 does not specifically provide for the subdivision of land zoned "Special Site".
(e) The subject land was formerly zoned Rural 2 and was rezoned merely to accommodate tourist activity related to the emu farm.
(f) The rural use permitted under the "Special Site" zoning should be construed as analogous to land zoned Rural 2. Further subdivision of Rural 2 zoned land is contrary to cl 3.5.1 of TPS 1.
(Page 7)
- (g) Clause 3.1.1 of DC 3.4 provides for a general presumption against the subdivision of rural land unless it is specifically provided for in a town planning scheme, an endorsed local planning strategy or an endorsed local rural strategy. Those circumstances are not applicable in this case.
(h) The AASRS recommends restrictions be placed on the subdivision of productive agricultural land unless it has been demonstrated that the land can support a more intensive agricultural use. At this stage, more intensive uses have not been demonstrated.
(i) The respondent is concerned that the proposed smaller lots would be used for rural/residential purposes which are not permitted under the "Special Site" zoning.
(j) The proposals create an undesirable pattern of settlement outside the Toodyay townsite which is not provided for in the strategic planning for the area.
(k) Clause 2 of DC 3.4 and cl 4 of SPP 2.5 seek to minimise the ad hoc fragmentation of rural land. The proposal is contrary to that objective.
Applicant's position
21 The applicants' position is outlined in their response of 20 July 2006 to the respondent's "Statement of Issues, Facts and Contentions". They argue:
(a) The proposal may provide the opportunity for more environmental and agricultural sustainability than the existing lots.
(b) The area carrying emus on Lot 117 is already an intensive rural use and it does not have to be demonstrated that a more intensive use than that currently existing is a prerequisite to subdivision.
(c) Both proposed lots 200 and 201 would have an adequate water supply.
(Page 8)
- (d) Proposed Lot 200 would obtain its water from a sealed surface water catchment to the north for grape production or from a bore to the south-east suitable for stock.
(e) Proposed Lot 201 would obtain its water from an existing source suitable for cattle, sheep and fish farming.
(f) Potable water for household consumption would be sourced from roof or sealed catchments.
(g) It is not acceptable to argue that a rural use permitted under the "Special Site" zoning should be construed as analogous to land zoned Rural 2 as the respondent previously allowed the subdivision of the original Lot 116 into the existing lots 117 and 118.
(h) Although cl 3.1.1 of DC 3.4 provides for a general presumption against the subdivision of rural land, the respondent has allowed the subdivision of high quality agricultural land for lots ranging from 17.5 hectares to 20.0 hectares some 8 kilometres both north and south of the Town of Toodyay.
(i) No notice has been taken by the respondent of the AASRS in the preparation of the draft TPS 4 and draft LPS 2. In any case, the applications are not inconsistent with the AASRS.
Planning issues
22 The principal planning issues are:
(a) Does the proposal accord with relevant statutory and policy requirements?
(b) If the answer to (a) is in the negative, is there still sufficient reason, based on the merits of the case, to set the decision of the respondent aside?
Assessment of proposal
Background
23 The background to this matter is contained in the document dated 28 July 2006 entitled "Respondent's Reply to Applicants' Response to
(Page 9)
- Respondent's Statement of Issues, Facts and Contentions" as prepared by the State Solicitor for Western Australia. It explains:
(a) On 25 November 1996 the respondent approved an application to subdivide Lot M 1359, Avon 1953, Clackline Road Toodyay into four lots measuring 43.7 hectares, 44.3 hectares, 50.8 hectares and 209 hectares. Lot M 1359 was zoned "Special Site" in TPS 1 but the subdivision of the 347 hectare site did not proceed.
(b) On 14 July 1998 the respondent approved a similar application to subdivide Lot M 1359 into four lots measuring 35.9 hectares, 34 hectares, 42 hectares and 235.1 hectares on the basis that a similar application had been approved in November 1996, and an approval would allow land that was currently used as an emu farm to be sold.
(c) The 235.1 hectare proposed lot became Lot 116 and, upon survey, measured 228.5 hectares.
(d) On 13 January 2000 the respondent approved an application to further subdivide Lot 116 into two lots of approximately 100.0 hectares and 128 hectares on the basis that:
(i) given the zoning of the land as "Special Site" it was difficult to apply criteria normally used to assess other broadacre rural subdivisions;
(ii) the proposed lots were larger than the previously approved lots to the west, and were generally consistent with the prevailing lot size; and
(iii) the purpose of the application was to create lots for rural purposes which was permitted under the zoning provisions pertaining to the site.
(iv) in June 2000, Lot 116 was formally subdivided into lots 117 and 118.
(Page 10)
- "Special Site" zoning as a rationale to support subdivision, along with other reasons unrelated to policy.
25 In November 1996, in considering the application to subdivide Lot M 1359, the respondent noted:
(a) an emu farm operated on the land, and subdivision would enable land currently used for that purpose to be sold;
(b) the land was exempt from the normal considerations of rural subdivisions as it was zoned "Special Site"; and
(c) given the restrictions on the use of the land under the prevailing zoning and Council support for the proposal, the application ought to be approved.
26 In the view of the Tribunal, the rationale expressed in [25(a) to (c)] could equally be applied today as a basis to support the current proposal. However, in the matter under review, the respondent has simply chosen not to do so.
State and local policy and statutory provisions
27 Under s 241(1)(a) of the Planning and Development Act 2005 (WA) (PD Act), the Tribunal is required to have regard to relevant planning considerations, including any Statements of Planning Policy which may affect the subject matter of the application.
28 One such policy is SPP 2.5 which applies to all rural land in Western Australia. It aims to protect agricultural land 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 industry production.
29 The policy puts a strong emphasis on the use of town planning schemes to avoid land use conflicts and to appropriately zone land for "rural-residential" and for "rural smallholdings" purposes. In the case of the latter, the lot sizes can range from four hectares to 40 hectares where part-time or full-time income can be derived from a variety of land uses.
(Page 11)
- There is also a need to provide an adequate water supply for domestic and other purposes.
30 Under DC 1.1 there is an emphasis on ensuring that subdivision accords with the provisions of the relevant town planning scheme; whereas DC 3.4 includes as a policy measure a general presumption against subdivision unless it is specifically provided for in a scheme, an endorsed local planning strategy or an endorsed local rural strategy. None of these circumstances apply in this case.
31 Under cl 6.1.1 of DC 3.4, the matters of lot size and land capability are addressed. The emphasis here is that lots should be of a sufficient size to be environmentally and economically sustainable in the long term as an agricultural enterprise, and that the land has the capacity to accommodate the proposed use.
32 Under cl 5.6 of SPP 3 there is a recognition of the need for rural-residential living, but to ensure that these areas are part of the overall settlement pattern.
33 The same sentiments are expressed in cl 3.1.6 of the AASRS, but with the emphasis on subdivision for rural living being in close proximity to an urban settlement such as Toodyay.
34 Under the draft LPS 2, which is nearing completion and can be regarded as a seriously entertained planning proposal, the subject land is shown as "general agriculture". A primary objective of the strategy is to protect broadacre landholdings with subdivision only supported for a legitimate purpose contemplated by SPP 2.5 and DC 3.4.
35 Under the draft TPS 4, which is also nearing completion and can be regarded as a seriously entertained planning proposal, the subject land falls within a "special use" zone which, under Sch 4, retains the current range of allowable uses under TPS 1. These are specified in [18].
36 One difficulty that appears to arise is that although a "rural use" is allowed under the "Special Site" zoning of TPS 1 and the "special use" zoning of the draft TPS 4, there is no definition of "rural use" in draft TPS 4.
37 Under TPS 1 a "rural use" is described in Appendix 2:
(Page 12)
- "Rural use: means the use of land for any of the purposes set out hereunder and shall include such buildings normally associated therewith:
(a) the growing of vegetables, fruit, cereals or food crops, and processing, treatment and packaging of produce;
(b) the rearing or agistment of goats, sheep, cattle or beasts of burden;
(c) the stabling, agistment or training of horses except on a commercial basis;
(d) the growing of trees, plants, shrubs or flowers for replanting in domestic, commercial or industrial gardens;
(e) the sale of produce grown solely on the lot;
(f) the keeping of domestic pets and poultry; or
(g) permaculture and hydroponics."
38 The farming of poultry, rabbits, emus or exotic animals is not automatically allowed, and requires the consent of Council.
39 Under the draft TPS 4 a "rural pursuit" is described in Sch 1:
"rural pursuit means any premises used for:
(a) the rearing or agistment of animals;
(b) the stabling, agistment or training of horses;
(c) the growing of trees, plants, shrubs or flowers for replanting in domestic, commercial or industrial gardens; or
(d) the sale of produce grown solely on the lot, but does not include agriculture – extensive or agriculture – intensive; …"
" … premises used for the raising of stock or crops …"
41 The definition of "agriculture – intensive" means:
(Page 13)
- " … premises used for trade or commercial purposes, including outbuildings and earthworks, associated with the following:
(a) the production of grapes, vegetables, flowers, exotic or native plants, or fruit or nuts;
(b) the establishment or operation of plant or fruit nurseries;
(c) the development of land for irrigated fodder production or irrigated pasture (including turf farms); or
(d) aquaculture."
43 In having regard to the foregoing, the applicant can take little comfort from the various State rural policies or the draft LPS 2 to support their proposals, unless the land was appropriately zoned.
44 In this case, however, the land is zoned "Special Site" and, as pointed out in [25], it is this zoning classification which provided the respondent with the opportunity to support its decision to allow the breakdown of the original Lot M 1359.
45 The respondent now seeks to put that rationale to one side and to argue that the "rural use" permitted under the "Special Site" zoning should be construed as analogous to a Rural 2 zone where further subdivision would be contrary to cl 3.5.1 of TPS 1. It also brings the full armoury of current rural policy to oppose the subdivision, and to argue that these policies are considerably different to those operating previously.
46 Of interest to the Tribunal is the somewhat confusing provision of TPS 1 and draft TPS 4 which would allow a tannery, eating facilities and accommodation units within a reasonable distance of one another. If this was to occur, considerable thought would be needed to properly locate the respective uses.
47 A further point of relevance is the definition of "rural use" which, under TPS 1, would allow the range of uses contemplated by the applicant. However, the definition "rural use" is not included in draft
(Page 14)
- TPS 4 and, if the definition "rural pursuit" is used in its place, then some of the uses contemplated by the applicant (grapes, flowers, aquaculture) would be specifically excluded.
48 As the overall assessment of the matter can take place under the provisions of TPS 1, the questions of land capability and an appropriate water supply for the uses contemplated need to be examined and answered.
The matter of land capability
49 In the witness statement dated 7 August 2006, of Timothy Charles Johnston, a qualified agricultural scientist for the respondent, he argues:
(a) For the purpose of describing the soils on the subject land the document titled "Land Resources of the Northern Region" by Lantzke N and Fulton, 1 (1993) has been used.
(b) The three soil types affecting the subject land are Yalanbee, Leaver and Pindalup landscape units.
(c) Existing Lot 118 predominantly comprises the buckshot gravels of the Yalanbee soil landscape unit and some 70 percent is arable.
(d) Lot 118 is suitable for grazing with sub-clover as a dominant pasture species. The soils are also suitable for cropping; particularly coarse grains, lupins and canola.
(e) Existing Lot 117 comprises:
(i) the Yalanbee landscape unit on the northern end of the lot of approximately 7-8 hectares, and on the south-east corner of approximately 15 hectares;
(ii) the Pindalup landscape unit which is associated with the drainage line; and
(iii) The Leaver landscape unit over some 50 percent of Lot 117 towards the western side of the lot.
(Page 15)
- (f) The Pindalup soils on Lot 117 are in general shallow sand over clay with very poor drainage and with potential for salinity. They are not suited to any form of agriculture.
(g) the Leaver soils on Lot 117 are unsuitable for cropping and grazing and are mostly uncleared.
(h) The Yalanbee soils on the northern end of Lot 117 are reasonably productive and are suitable for grazing and cropping.
(i) The Yalanbee soils on the south-east corner are reasonably productive but, with existing trees, the land is only suitable for extensive grazing. If cleared, the land may be suitable for grazing and/or cropping.
(j) The best use of Lot 117 is to maintain the current land use of grazing and emu farming.
50 On the overall capability of the subject land, Mr Johnston concluded that the various subdivisional configurations proposed would not improve the overall agricultural capacity as it did not appear that intensive agricultural crops or enterprises could be sustained on smaller lots. Also, if the smaller lots were created, there would be a loss of land from building envelopes and dams to house water.
51 Regarding the proposed Lots 200, 201 and 202, Mr Johnston concluded:
(a) There are only 7-8 hectares of reasonably productive soil at the northern end of proposed Lot 200, which is insufficient to sustain intensive agriculture without adequate water. As there is inadequate water, the best agricultural use is to maintain the extensive grazing and cropping rather than any intensive agricultural use.
(b) There are only 15 hectares of reasonably productive soil at the south-east corner of proposed Lot 201, which is insufficient to sustain intensive agriculture without adequate water. The groundcover is too saline and the only other water source would be dams or "roaded catchments", but there is insufficient suitable land for this alternative. Accordingly, the best solution is to maintain
- the current land use of extensive grazing and cropping, rather than any intensive agricultural use.
- (c) Under the "original proposal" and the "first alternative" application, the proposed Lot 202 would be best suited for extensive grazing and cropping. The two existing dams would be insufficient for intensive agriculture.
(d) Under the "second alternative" there is no productive soil of high to very high capability for intensive agriculture.
52 In his response of 3 February 2006 to the submissions of Mr Johnston, Mr JR Ferguson, an environmental consultant for the applicant, argued:
(a) Although it is accepted that there are 8 hectares of land at the northern end of existing Lot 117; on the proposed Lot 200 there is a further 12.0 hectares, with only single standing trees with no understorey of Yalanbee and Leaver soil types. These can be quickly brought into production by the removal of the trees. A small area of 2.0 hectares could also be used for grape production.
(b) There is an approximate 17.0 metre fall over 750 metres of the drainage line where it enters Lot 117 to exit at the north-west boundary of proposed Lot 201. Two drains of 130 metres and 250 metres could be built to drain this area.
(c) It is accepted that the western portion of proposed Lot 200 is the heavier soil type and unsuitable for cropping or intensive agriculture, but it is suitable for the farming of emus.
(d) The parkland cleared soils on proposed Lot 201 can be made productive by the removal of individual trees to allow agricultural production with dryland olives or even grapes. There are many hectares of grapes for currants, sultanas and wine both east and west of the Toodyay-Clackline Road.
(e) The parkland cleared soils on proposed Lot 201 can, with the trees removed, be used for grain production and peas or lupins for supplementary feeding of emus.
53 In the view of the Tribunal, the evidence of Mr Johnston must be favoured over that of Mr Ferguson because of its scientific base, rather
(Page 17)
- than expressions of opinion. Also, there was no need for Mr Johnston to explore the full extent of the emu operation as this is already allowed for within the "Special Site" zoning classification.
54 Again, although Mr Ferguson may be correct in relation to the drainage issues, he has not contested the unsuitability of the Pindalup soils for agriculture which are associated with those drainage lines.
The matter of production and water supply
55 In the "Agricultural Capability Report" dated 20 January 2006 by Bedbrook Johnston Williams and signed by Mr Tim Johnston, it is argued:
(a) Apart from the available area for production, other factors such as climate, soil, topography and water supply need to be taken into account for the growing of grapes.
(b) The preferred soil type for grapes are well drained gravely loams. However, in proposed Lot 201, much of the landscape has a problem with potential waterlogging and the soils are not well drained, as evidenced by the soak in the south-west corner with clay at a very shallow depth.
(c) For a five hectare area to be viable there would need to be significant irrigation with a maximum desirable salinity level of 100 milliSiemens (mS/m). Tests included in the applicants' submissions from the soaks in proposed Lot 201 are 935 mS/m and 220 mS/m from a neighbouring bore.
(d) If water was obtained from a "roaded catchment", then for each hectare of "roaded catchment" with a 500 millimetre annual rainfall then around 1700 cubic metres of water would be collected. For five hectares of grapes, some 10 000 cubic metres would be required, and the "roaded catchment" water would require six hectares of land. The calculations assume that a "suitable clay base to hold the water could be found. This can be a significant problem in the Yalanbee and Leaver soil types.
(Page 18)
- (e) The foregoing comments are equally applicable to the growing of currants and sultanas.
(f) The possibility of growing lavender, melaleuca and Geraldton wax were assessed and determined:
(i) According to the Department of Primary Industries in Victoria, an area in excess of 50 hectares is required to be profitable, and the plants require good drainage and full sun and to be positioned away from eucalypts. With proposed Lot 201, the lack of good drainage and the parkland cleared nature of the land makes it unsuitable for lavender and other floriculture.
(ii) The lack of water on proposed Lot 200 and its gravely soils, makes it unsuitable for wild flowers which require the sandier type soils.
(g) Although olives are hardy and possess drought resistant qualities, they favour well drained slightly alkaline loams in areas devoid of frost. Proposed Lot 201 in particular would not be suitable.
56 In his evidence at the hearing, Mr SW Ferguson, a plant operator and supervisor with Vernice Pty Ltd, responded to questions from Mr JR Ferguson:
(a) From his experience in dam sinking operations, up to 4 000 cubic metres of water could be provided on proposed Lot 200.
(b) The sealing of dams, without an adequate clay base, can be achieved with plastic lining.
(c) The water holding capacity at the bottom of proposed Lot 201 is virtually unlimited.
(d) There are considerable variations in the salt content of water from wells, bores and soaks ranging from 50 mS/m from the property adjacent to proposed Lot 201 through to 1100 mS/m on the subject land itself.
(e) There is sufficient water on proposed Lot 201 to run a viable intensive agricultural enterprise such as fish
- farming. This could be achieved by way of a series of small dams averaging 1500 cubic metres and amounting to a total of 6000 cubic metres.
57 In the view of the Tribunal, the submissions by Mr T Johnston on the inadequacy of the land to sustain grapes, currants and sultanas, floriculture and olives is convincing, but less so on the matter of the water supply. In that respect, the Tribunal acknowledges the on-site experience of the applicants, but there is still no technical data from them on the quantity of water or variations in salinity levels over time, or the effect of those salinity levels on specific agricultural uses.
58 On that matter, the Department of Agriculture publication "Farmnote" (No 34/2004) on water salinity and crop irrigation was helpful from the respondent, but there was no additional or countervailing arguments on a site specific basis to assist the Tribunal from the applicants' side.
The matter of emu farming
59 In his evidence at the hearing, Mr CJ Venn, the owner of existing Lot 118, advised:
(a) He currently leases Lot 117 from Vernice Pty Ltd and operates some 40 to 50 hectares at a central location for emu farming with some 450 to 500 birds.
(b) Emu farming is best conducted on land with trees, and all of Lot 117 is suitable.
(c) The subdivision will allow the existing emu farm operation to be joined to existing Lot 118 to create proposed Lot 202.
60 In the view of the Tribunal, the existing emu farming operation would be assisted long term by the proposed subdivision, but there is no information before it that the existing leasing arrangements with Vernice Pty Ltd would be jeopardised if the subdivision did not proceed.
Conclusions
61 The application for review has been lodged against a decision of the respondent to not approve the amalgamation of two lots of approximately 100 hectares and 128 hectares and their resubdivision into two lots of
(Page 20)
- approximately 40 hectares and one lot of 148 hectares. The subject land is zoned "Special Site" under TPS 1.
62 The reasoning behind the refusal was broadly that TPS 1 does not specifically provide for subdivision of a "Special Site" zone, that the proposal was contrary to the intent of State and local rural policy and that the respondent was unconvinced of the agricultural capability of the subject land and the sufficiency of water to support more intensive agricultural uses beyond cropping and grazing. Also, it was argued that the proposal was an ad hoc subdivision that was not countenanced by policy.
63 The applicants argued that existing Lot 117 with its emu farm operation is evidence of an intensive use, that proposed lots 200 and 201 would have an adequate water supply and that the respondent had already allowed the subdivision of the previous Lot 116 into existing lots 117 and 118.
64 In undertaking this review, the Tribunal has had regard to its background, the relevant provisions of State and local rural policy, the provisions of TPS 1 and the draft TPS 4 and matters of land capability, water supply and emu farming.
65 In the view of the Tribunal the respondent had no hesitation in 1998 in allowing the subdivision of the original 347 hectare Lot M 1359 into three lots of approximately 34 hectares, 36 hectares and 42 hectares with a fourth lot of 228 hectares. It allowed a further subdivision of the 228 hectare lot (Lot 116) into the two existing Lots 117 and 118 in the year 2000.
66 Included in the rationale for allowing subdivision was that the "Special Site" zoning took it outside the normal rural policy considerations for assessing broadacre rural subdivisions.
67 What the respondent now seeks is to put that rationale to one side and to argue that the "rural use" permitted under the "Special Site" zone should be construed as analogous to a Rural 2 zone where further subdivision would be contrary to TPS 1. It also argues that current rural policies are considerably different to those operating previously.
68 The Tribunal finds little substance in the arguments relating to policy; particularly having regard to approvals as late as the year 2000, and the respondent must rely on other matters to effect an outcome in their favour.
(Page 21)
69 On the questions of land capability, productivity and water supply, the respondent has brought to bear on the argument a great deal of technical information on existing soil types and the water and drainage requirements for grapes, currants and sultanas, floriculture and olives. The applicants did not present counter technical arguments and although the Tribunal acknowledges their experience on the subject land, a great deal of their submissions for intensive agriculture were based on unsubstantiated opinion.
70 What needs to be said in a case like this is that although the applicants provided a great deal of material to the Tribunal, there was no scientifically based agriculture capability report or hydrological report to support their arguments. The latter document is required by PB 26.
71 What the applicants needed to do was to adequately demonstrate the capability of the proposed lots to sustain intensive agricultural production, and one of the main requirements is the availability and quality of the water.
72 Submissions by the applicants on the availability of water from "roaded catchments" have not been adequately demonstrated or, if it was potentially available from rainfall, whether the soil types could sustain a viable enterprise.
73 On the question of emu farming, the Tribunal would acknowledge that the enterprise would be assisted long-term if the subdivision was to proceed, but there was no information before it to suggest that existing leasing arrangements would be jeopardised if the subdivision did not proceed.
74 In the view of the Tribunal, the weight of argument falls with the respondent and there is not sufficient reason to set its decision aside.
Orders
75 For the foregoing reasons, the orders of the Tribunal are as follows:
1. The application for review is dismissed.
2. The decision under review is affirmed.
(Page 22)
I certify that this and the preceding [75] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR L GRAHAM, SESSIONAL MEMBER
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