CLARK and WESTERN AUSTRALIAN PLANNING COMMISSION
[2015] WASAT 44
•22 APRIL 2015
CLARK and WESTERN AUSTRALIAN PLANNING COMMISSION [2015] WASAT 44
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2015] WASAT 44 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:20/2015 | DETERMINED ON THE DOCUMENTS | |
| Coram: | JUDGE D R PARRY (DEPUTY PRESIDENT) | 22/04/15 | |
| 25 | Judgment Part: | 1 of 1 | |
| Result: | Tribunal's determination affirmed | ||
| B | |||
| PDF Version |
| Parties: | HERBERT HORSLEY CLARK EVELYN FRANCES CLARK WESTERN AUSTRALIAN PLANNING COMMISSION |
Catchwords: | Review by judicial member of determination of Tribunal upon a matter involving a question of law under s 244 of the Planning and Development Act 2005 (WA) Tribunal affirmed decision to refuse to grant subdivision approval for two lot subdivision of General Agriculture zoned land into 7 hectare lot and 37.9 hectare lot Whether Tribunal erred in law Whether Tribunal erred in determination that subdivision application conflicts with State Planning Policy 2.5 Land Use Planning in Rural Areas Whether Tribunal erred in law in determination that proposed subdivision involves creation of new rural lots through ad hoc, unplanned subdivision Words and phrases: 'ad hoc, unplanned subdivision' |
Legislation: | City of Albany Local Planning Scheme No 1, cl 4.2.20, cl 5.5.16.4 Planning and Development Act 2005 (WA), s 241(1), s 241(1)(a), s 244, s 251(1) State Administrative Tribunal Act 2004 (WA), s 3(1) |
Case References: | AB v State of Western Australia & Anor [2011] HCA 42; (2011) 244 CLR 390; (2011) 85 ALJR 1233 Clark and Western Australian Planning Commission [2014] WASAT 170 Clive Elliot Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433 Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522 Thomas and Town of Cambridge [2013] WASAT 206 |
Orders | On the application determined by Deputy President, Judge Parry on 22 April 2015, it is ordered that:,1. The application for review by a judicial member is dismissed.,2. The determination of the Tribunal made on 15 December 2014 and for which written reasons were published on 19 December 2014 in DR 382 of 2013 is affirmed. |
Summary | Mr and Mrs Clark sought review by a judicial member upon a matter involving a question of law of a determination by the Tribunal when constituted without a legally qualified member. In the determination, the Tribunal affirmed the decision of the Western Australian Planning Commission to refuse subdivision approval for the subdivision of land zoned General Agriculture into two lots with areas of 7 hectares and 37.95 hectares. Mr and Mrs Clark contended that the Tribunal erred in law in its interpretation and application of State Planning Policy 2.5 - Land Use Planning in Rural Areas including in relation to the policy measure in cl 5.1 of SPP 2.5 that '[c]reation of new lots through ad hoc, unplanned subdivision is considered to be inconsistent with, or contrary to, the objectives of this policy'.,The judicial member determined that the Tribunal did not err in law in its interpretation and application of SPP 2.5. The policy measure in cl 5.1 of SPP 2.5 is relevant to the assessment of the proposed subdivision, because the site is 'rural land' as defined in SPP 2.5 and the site and locality is not identified or proposed as a 'rural living precinct' or otherwise identified or proposed for rural living land uses under the applicable planning framework. ,The judicial member also determined that the Tribunal did not err in law in its determinations that the proposal involves 'ad hoc, unplanned subdivision' for the purposes of cl 5.1 of SPP 2.5, that there is not any sufficiently cogent reason to depart from the application of the policy measure that such a subdivision 'is considered to be inconsistent with, or contrary to, the objectives' of SPP 2.5, and that this together with other planning considerations referred to in its findings on issues warrants the refusal of the proposed subdivision. ,The judicial member determined that, on its proper interpretation, the expression 'ad hoc, unplanned subdivision' in cl 5.1 of SPP 2.5 refers to a subdivision that is not contemplated by and planned for in the applicable planning framework, and particularly an existing, relevant planning strategy or planning scheme and the Commission's Development Control Policy 3.4 - Subdivision of Rural Land. ,The application for review by a judicial member was dismissed and the determination of the Tribunal was affirmed., |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : CLARK and WESTERN AUSTRALIAN PLANNING COMMISSION [2015] WASAT 44 MEMBER : JUDGE D R PARRY (DEPUTY PRESIDENT) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 22 APRIL 2015 FILE NO/S : DR 20 of 2015 BETWEEN : HERBERT HORSLEY CLARK
- EVELYN FRANCES CLARK
Applicants
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Review by judicial member of determination of Tribunal upon a matter involving a question of law under s 244 of the Planning and Development Act 2005 (WA) - Tribunal affirmed decision to refuse to grant subdivision approval for two lot subdivision of General Agriculture zoned land into 7 hectare lot and 37.9 hectare lot - Whether Tribunal erred in law - Whether Tribunal erred in determination that subdivision application conflicts with State Planning Policy 2.5 - Land Use Planning in Rural Areas - Whether Tribunal erred in law in determination that proposed subdivision involves creation of new rural lots through ad hoc, unplanned subdivision - Words and phrases: 'ad hoc, unplanned subdivision'
Legislation:
City of Albany Local Planning Scheme No 1, cl 4.2.20, cl 5.5.16.4
Planning and Development Act 2005 (WA), s 241(1), s 241(1)(a), s 244, s 251(1)
State Administrative Tribunal Act 2004 (WA), s 3(1)
Result:
Tribunal's determination affirmed
Summary of Tribunal's decision:
Mr and Mrs Clark sought review by a judicial member upon a matter involving a question of law of a determination by the Tribunal when constituted without a legally qualified member. In the determination, the Tribunal affirmed the decision of the Western Australian Planning Commission to refuse subdivision approval for the subdivision of land zoned General Agriculture into two lots with areas of 7 hectares and 37.95 hectares. Mr and Mrs Clark contended that the Tribunal erred in law in its interpretation and application of State Planning Policy 2.5 - Land Use Planning in Rural Areas including in relation to the policy measure in cl 5.1 of SPP 2.5 that '[c]reation of new lots through ad hoc, unplanned subdivision is considered to be inconsistent with, or contrary to, the objectives of this policy'.
The judicial member determined that the Tribunal did not err in law in its interpretation and application of SPP 2.5. The policy measure in cl 5.1 of SPP 2.5 is relevant to the assessment of the proposed subdivision, because the site is 'rural land' as defined in SPP 2.5 and the site and locality is not identified or proposed as a 'rural living precinct' or otherwise identified or proposed for rural living land uses under the applicable planning framework.
The judicial member also determined that the Tribunal did not err in law in its determinations that the proposal involves 'ad hoc, unplanned subdivision' for the purposes of cl 5.1 of SPP 2.5, that there is not any sufficiently cogent reason to depart from the application of the policy measure that such a subdivision 'is considered to be inconsistent with, or contrary to, the objectives' of SPP 2.5, and that this together with other planning considerations referred to in its findings on issues warrants the refusal of the proposed subdivision.
The judicial member determined that, on its proper interpretation, the expression 'ad hoc, unplanned subdivision' in cl 5.1 of SPP 2.5 refers to a subdivision that is not contemplated by and planned for in the applicable planning framework, and particularly an existing, relevant planning strategy or planning scheme and the Commission's Development Control Policy 3.4 - Subdivision of Rural Land.
The application for review by a judicial member was dismissed and the determination of the Tribunal was affirmed.
Category: B
Representation:
Counsel:
Applicants : Mr I McKellar (Agent)
Respondent : Mr I Repper
Solicitors:
Applicants : N/A
Respondent : State Solicitor's Office
Case(s) referred to in decision(s):
AB v State of Western Australia & Anor [2011] HCA 42; (2011) 244 CLR 390; (2011) 85 ALJR 1233
Clark and Western Australian Planning Commission [2014] WASAT 170
Clive Elliot Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433
Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522
Thomas and Town of Cambridge [2013] WASAT 206
Application for review by a judicial member
1 Mr Herbert Horsley Clark and Mrs Evelyn Frances Clark (applicants) seek review by a judicial member, under s 244 of the Planning and Development Act 2005 (WA) (PD Act), of a determination made by the Tribunal constituted by Member Mr J Jordan in a planning review proceeding brought by the applicants under s 251(1) of the PD Act (determination). In the planning review proceeding, the applicants sought review by the Tribunal of the refusal by the Western Australian Planning Commission (WAPC or Commission) to grant approval for the subdivision of Lot 19 Puls Road, Torbay (site) into two lots. The application for review was heard on 15 May 2014, 21 August 2014 and 15 September 2014. On 15 December 2014, the Tribunal dismissed the applicants' application for review and affirmed the Commission's refusal of subdivision approval. On 19 December 2014, the Tribunal published written reasons for the determination: Clark and Western Australian Planning Commission [2014] WASAT 170 (Tribunal's reasons).
2 The site is zoned General Agriculture under the City of Albany Local Planning Scheme No 1 (LPS 1 or Scheme). The site is located approximately 18 kilometres west of the city centre of Albany and abuts the northern boundary of the Torbay townsite. As found by the Tribunal at [3] of its reasons, the Torbay townsite includes 35 lots north of Railway Road, ranging in size from approximately 1.3 hectares to 6.7 hectares, each developed with a house with reticulated electricity, and formed gravel road access, but without reticulated water. As found by the Tribunal at [6] of its reasons, lots to the north and west and immediately to the east of the site range in size from approximately 7 hectares to approximately 50 hectares. As also found by the Tribunal at [6] of its reasons, near to the eastern side of the site is Rutherford Road, east of which lots are generally about 40 hectares or greater in area, and about 1.5 kilometres to the north and to the west of the site the lot pattern changes such that lots are predominately greater than 40 hectares in area and are generally used for broadacre farming.
3 The site has an area of 44.96 hectares. The proposed subdivision involves the creation of a 7 hectare lot, with a frontage to Newbold Road, and a 37.95 hectare lot, accessed via a track in Puls Road. The proposed larger lot would 'wrap around' the proposed smaller lot and would separate the proposed smaller lot from the Torbay townsite by about 200 metres. Lots in the Torbay townsite which abut the southern boundary of the proposed larger lot range in size from 9,869m² to 1.9 hectares, with one lot having an area of 6.7 hectares.
4 Section 244 of the PD Act enables a judicial member to review a direction, determination or order of the Tribunal '… upon a matter involving a question of law …' that was made in a proceeding under the PD Act by the Tribunal when constituted without a legally qualified member as defined in s 3(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). Member Jordan is not a legally qualified member as defined in s 3(1) of the SAT Act.
5 As I held in Thomas and Town of Cambridge [2013] WASAT 206 at [5] and [23], in a review by a judicial member under s 244 of the PD Act, the reasons for determination of the Tribunal must be read as a whole, not minutely or finely with an eye keenly attuned to the perception of error, not in an overly critical or pernickety manner, and not concerned with looseness of language or phrasing.
6 The applicants are not legally represented. Their agent initially filed a document setting out eight 'grounds in support of application for review by a judicial member'. However, in the agent's written submissions filed on behalf of the applicants on 11 February 2015, six of the eight grounds were withdrawn, leaving the following two grounds for review:
1) The Tribunal erred in law (at paragraph 68) by holding that the application was in conflict with [State Planning Policy 2.5 Land Use Planning in Rural Areas (SPP 2.5)].
7) The Tribunal erred in law (at paragraphs 61 and 62):
a. by holding that the absence of prior (statutory) planning for the proposal made the application 'ad hoc' and therefore could not be supported,
b. by holding that 'ad hoc' was a relevant factor[,]
c. by failing to have regard to highly relevant factors namely the (uncontradicted) findings of fact made by the Tribunal in the third sentence of paragraph 62 (namely convenience to the Applicant[s], topography, vegetation cover and the keeping [of] pasture all in the one lot).
Tribunal's reasons for determination
8 After referring to details of the site, locality and the proposed subdivision (as generally set out earlier in these reasons), the Tribunal provided a detailed survey of the applicable planning framework at [8] [35] of its reasons, including LPS 1, the City of Albany Local Planning Strategy (ALPS), the City of Albany Local Rural Strategy (LRS), theCommission endorsed Lower Great Southern Strategy (LGSS),theCommission's Development Control Policy 3.4 Subdivision of Rural Land (DC 3.4)and the City of Albany Local Planning Policy 5 (LPP 5).
9 As noted earlier, the site is zoned General Agriculture under LPS 1. As the Tribunal found at [8] of its reasons, lots to the north, east and west of the site and lots in the Torbay townsite are also zoned General Agriculture. As the Tribunal also said at [8] of its reasons, although LPS 1 contains a Rural Village zone, and although certain small historical townsites in the Scheme Area are included within that zone, the Torbay townsite is not.
10 At [9] of its reasons, the Tribunal noted that cl 4.2.20 of LPS 1 provides objectives for the General Agriculture zone as follows:
(a) Provide for the sustainable use of land for agricultural and rural activities;
(b) Support complementary land uses where those land uses do not detract from adjoining agricultural and rural activities and are compatible with the character and amenity of the area;
(c) Prevent land uses and development within the zone that may adversely impact on the continued use of the zone for agricultural and rural purposes;
(d) Provide for value-adding opportunities to agricultural and rural products on-site; and
(e) Provide for tourism experiences where those developments do not impact upon adjoining agricultural and rural land uses.
11 At [10] of its reasons, the Tribunal referred to cl 5.5.16.4 of LPS 1 which states as follows:
Subdivision within the General and Priority Agriculture zones will not be supported by the Local Government unless it complies with an endorsed Local Planning Strategy prepared in accordance with Statement of Planning Policy 2.5 - Agriculture and Rural Land Use Planning.
12 The Tribunal then referred to the ALPS and noted that Map 9B of the ALPS designates the site as falling within an area of Priority Agriculture. At [12] of its reasons, the Tribunal set out the following extract from cl 5.5.1 of the ALPS:
Over the past 20 years prime agricultural land has been lost to other uses such as Rural Residential and hobby farm development, reducing the agriculture land area and opportunities to improve productivity.
Incompatible land uses and land management can create conflicts between agricultural and Rural Residential uses or between two agricultural uses. For example, chemical spray drift from a market garden can affect the water quality in a land-based aquaculture development.
WAPC SPP No. 11 Agricultural and Rural Land Use Planning [now replaced by SPP 2.5] provides the basis for the planning of Priority and General Agricultural areas in WA. One of the policy's key objectives is to protect agricultural land resources by:
• Discouraging land uses unrelated to agriculture from being located on agricultural land.
• Minimising the ad hoc fragmentation of rural land.
• Improving resource and investment security for agriculture and allied industry production.
Priority Agricultural areas are those with State, regional and local significance and must be protected as finite resources containing land suitable for traditional agricultural activities and irrigated annual and perennial (three seasons or more) horticulture and other irrigated crops and pasture. …
13 The Tribunal referred to provisions of SPP 2.5 at [19] [28] of its reasons. Given that the applicants' remaining grounds for review by a judicial member relate principally to the Tribunal's interpretation and application of SPP 2.5, I will set out those paragraphs in full:
19 The parties identified as significant to the determination of this matter State Planning Policy 2.5 - Land Use Planning in Rural Areas (SPP 2.5) released by the respondent in November 2013. SPP 2.5 applies to 'rural and rural living land in Western Australia'. Clause 3.2 states SPP 2.5 should be applied [']throughout [the] State and local government planning decision-making', including 'to guide to decision making for subdivisions in tandem with [the respondent's] Development Control Policy 3.4 - Subdivision of Rural Land' (DC 3.4).
20 The relevant policy objectives of SPP 2.5 are set out in clause 4 and include:
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 development in, and adjacent to, existing urban areas.
d) To protect and improve environmental, landscape and cultural assets.
(e) To minimise land use conflicts.
21 Clause 5.1 of SPP 2.5 states:
…
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 identifie[d] as priority agricultural land in a planning strategy or scheme is to be retained for that purpose;
c) beyond its [principal] 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.
22 Clause 5.3 of SPP 2.5 refers to the State as having regional variations and the respondent's decisions as being guided by the need to provide economic opportunities for rural communities and to protect primary production and natural resource assets. Therefore:
…
b) the differing needs of the various regions are recognised and regional variations may be considered where they meet the staged 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.
23 Clause 5.6 of SPP 2.5 is titled 'Rural living precincts' and states that [']State Planning Policy 3 - Urban Growth and Settlement [SPP 3] provides broad strategic direction for settlement planning …'. Clause 5.6 goes on to state that SPP 2.5:
… provides specific guidance in relation to establishing rural living precincts. Rural living proposals on rural land may be supported where they comply with the objectives of this policy and meet requirements of this section.
24 Clause 5.6 then goes on to list policy measures that apply to the respondent's decision-making for identifying rural living 'precincts' and for rural living proposals.
25 The word 'precinct' does not appear in the definitions of 'Rural land' or 'Rural living' in SPP 2.5. At this point it is appropriate to define 'precinct', a word important to clause 5.6. The word is used in SPP 2.5 in the definition 'Processing precinct for primary produce', which commences '[a]n area set aside for concentrated or largescale processing operations …'. In this matter, the Tribunal considers adopting a similar meaning is appropriate to give meaning to the expression 'rural living precinct' in clause 5.6. That is, for the purpose of clause 5.6, a rural living precinct would be 'an area set aside for rural living'. This meaning is consistent with the ordinary meanings given for precinct in the Macquarie Dictionary (5th ed 2009), which include:
A place or space of definite or understood limits;
An enclosing boundary or limit;
…
The parts or regions immediately about any place; the environs …
26 To note is that, Torbay townsite, the site and the neighbouring lots, have not and are not planned to be identified as rural living precincts under any relevant planning instruments.
27 Clause 5.8 of SPP 2.5 is concerned with avoiding land use conflicts. It states that the introduction of sensitive land uses such as additional housing or accommodation in rural areas 'can compromise rural land uses and effectively sterilise rural land'. Incompatible land uses are also said to include uses that are acceptable in a rural zone but may also have a negative impact on or constrain existing or potential rural land uses in the locality. The introduction of such land uses will generally not be supported.
28 Clause 6 of SPP 2.5 sets out definitions. It states that the definitions may also apply to DC 3.4. The list of definitions includes:
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traditionally involving farming of grains and/or livestock. |
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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 land into smaller landholdings. [For example], a boundary realignment which results in lot 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. |
Special rural zone |
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30 The respondent adopted DC 3.4 as a 'guide to the subdivision of rural land to achieve the five key objectives at cl 4 of SPP 2.5'. Clause 3 of DC 3.4 states:
It is the policy of the WAPC that the subdivision of rural land for rural living land uses must be properly planned through the preparation and endorsement of strategies and schemes and be accordingly zoned in local planning schemes prior to subdivision.
Rural living is considered a residential land use and not a rural land use. Therefore, this policy does not apply to rural living proposals or subdivision. …
31 Clause 4 of DC 3.4 states:
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.
Where local conditions require subdivision or creation of land parcels for this purpose, it should be provided for in a strategy or scheme and supported by the provision of evidence from the agency responsible for agriculture and food. Creation of new rural lots through ad-hoc, unplanned subdivision is considered to be inconsistent with or contrary to the objectives of this policy.
36 The respondent filed a list of what it considered to be the issues, as follows:
1) whether the proposed subdivision should be approved having regard to relevant planning considerations, and orderly and proper planning;
2) whether the proposed subdivision will give rise to land use conflicts;
3) whether the proposed subdivision represents ad hoc, unplanned subdivision, contrary to the relevant town planning instrument; and
4) whether approval of the proposed subdivision would set an undesirable precedent.
37 The applicants submitted the following two issues should be added:
5) whether the land, under SPP 2.5, is classed as 'rural living' land, regardless of its rural zone; and
6) if the answer to question 5 above is 'yes', whether the presumption in SPP 2.5 against ad hoc subdivision applies.
If the Commission has adopted such a 'policy', and it is relevant to the application, the policy will be expected to guide the exercise of discretion. However, the existence of such a 'policy' is not intended to replace the discretion of the Commission in the sense that it is to be inflexibly applied regardless of the merits of the particular case before it. Notwithstanding this understanding, the relevant consideration in many applications will be why the 'policy' should not be applied; why the planning principles that find expression in the 'policy' are not relevant to the particular application. Good public administration demands no less an approach.
(Clive Elliot Jennings (Barker J) at [24])
When zoning under a town planning scheme has town planning consequences it is part of all the circumstances which fall to be considered by the Tribunal. The town planning consequences may (without in any way attempting an exhaustive list) involve the orderly development of land, the maintenance of the character of the area, the aesthetics of the proposed development, environmental risks of any kind, the size of the proposed lots in relation to others in the locality and the control over the use of the land.
While the town planning implications of a particular zoning will often be a most important factor in the approval of a subdivision, each decision made by the Tribunal will depend on all factors relevant to the land in question. Zoning should not be elevated to the position of absolute arbiter of subdivision approvals.
(Falc (Ipp J) at 535)
17 At [41] [42] of its reasons, the Tribunal summarised the general contentions of the parties in the planning review proceeding as follows:
41 There was no dispute between the parties that it was open to the applicants to apply for the subdivision of the site and for the Tribunal to determine whether or not to approve the subdivision.
42 It was the respondent's submission that Falc and Clive Elliot Jennings support that SPP 2.5 and DC 3.4 should be given significant weight in the determination of this matter. It was the applicants' submission that this matter 'turns on interpretation of SPP 2.5 and DC 3.4'. In the applicants' submission, they contended that because of the rural living use made of the site, the constraints on the subdivision of rural land in these policies do not apply to the site.
18 At [45] of its reasons, the Tribunal accepted the evidence of Mr Henry Dykstra, a town planning expert witness called by the applicants, 'that the site is currently used for rural living' meaning that 'the site is used mainly for residential purposes, perhaps with some primary production on the cleared areas of "pasture" and not for a rural land use, as defined in SPP 2.5'. The Tribunal also noted that '[t]his was not disputed by the respondent'. However, the Tribunal rejected the applicants' contention that, because of the rural living use made of the site, the constraints on the subdivision on rural land in SPP 2.5 and DC 3.4 are not applicable to the proposed subdivision. The Tribunal gave the following reasons for its determination in this respect:
50 The Tribunal considers that DC 3.4 and SPP 2.5 are applicable when considering this proposed subdivision. The Tribunal has accepted that the site is currently used for rural living purposes, but the Tribunal does not accept that the site being used in this way means the land can be 'classed' as 'rural living' as asserted by the applicants. SPP 2.5 is not interpreted by the Tribunal to place lots in any particular 'class'. The site remains 'rural land' but with the current owner choosing to use it for rural living rather than for a rural land use, as defined in SPP 2.5. LPS 1 objectives include opposing rural living use of rural lots, but there would appear to be nothing in the policies or LPS 1 that would prevent an owner from simply using rural land in this way when there is no requirement for an application for planning approval in those particular circumstances.
51 The Tribunal recognises that this locality might have the attributes the applicants identify, and that these attributes might be common, and indeed be necessary, in areas elsewhere identified in a local planning scheme for rural living purposes. It might be that identifying these characteristics could form the basis for a submission by a land owner to have the City amend its local planning scheme to zone the locality differently. That, however, is not the purpose of this application.
52 The Tribunal considers that a lot, or a proposed lot, being about 40 hectares or less, or an owner deciding to use such a rural lot for a rural residential use, does not constitute a basis for allowing subdivision as a matter of course. That is, these two factors cannot have the effect of putting in place planning controls applicable to the land use those owners have chosen and of setting aside the zoning objectives and subdivision guidelines applicable under the existing General Agriculture zoning of LPS 1.
19 The Tribunal then specifically addressed each of the six issues identified by the parties. In relation to issue 1 ('whether the proposed subdivision should be approved having regard to relevant planning considerations, and orderly and properly planning'), the Tribunal found and determined as follows at [53] of its reasons:
In respect to issue 1, the Tribunal considers the provisions of SPP 2.5 and DC 3.4 are applicable when considering the subdivision of the General Agriculture zoned site. It would not be orderly and proper planning to set aside the zoning controls in LPS 1, the intent of the City's adopted strategies and policy provisions for rural subdivision applicable to this rural land without more relevant factors than just the current use of the land being in place.
20 In relation to issue 2 ('whether the proposed subdivision will give rise to land use conflicts'), the Tribunal found and determined at [60] of its reasons as follows:
The Tribunal had conflicting comments from Mr Petrovski [a town planning expert witness called by the Commission] and Mr Dykstra, but had no evidence of the actual use made of the rural lots adjoining and opposite the site. The Tribunal is of the view that the proposed subdivision, by introducing a further title for a lot of 7 hectares in a rural locality where the predominant lot size north of the Torbay townsite is considerably larger, would not be consistent with minimising the potential for land use conflict. The creation of the proposed lot is considered to give rise to the potential for increased future land use conflicts, if neighbouring rural lots, and the remainder of the site, were to be used for the rural uses that might be applied for under LPS 1. …
21 In relation to issue 3 ('whether the subdivision represents ad hoc, unplanned subdivision, contrary to the relevant town planning instrument') and issue 4 ('whether approval of the proposed subdivision would set an undesirable precedent'), the Tribunal found and determined at [61] [63] of its reasons as follows:
61 The Tribunal has formed the view that the proposed excision of the 7 hectare lot would be ad hoc. The Tribunal asked the planning witnesses for their expert opinion on whether there was a rational planning basis for a creation of a 7 hectare lot, as opposed to any other sized rural lot. The experts were not able to identify any particular planning basis for the creation of a lot of that particular size.
62 The experts were also asked to comment on the location of the proposed 7 hectare lot. Again, there was not provided any cogent planning reason for excising 7 hectares in the north-west corner of the site, particularly as the remainder of the site would be between the new lot and the Torbay townsite. The location was chosen by the land owners for convenience and because of topography, vegetation cover and the desire to keep all of the pasture on the larger lot. There has not been prepared any planning document that recognises the locality as being suitable for rural living and sets out in a guide plan how subdivision might occur in the locality, referred to by the applicants as a rural living, in a logical and planned manner. The Tribunal has formed the view that having regard to the lot size pattern in this rural locality, with no planning basis for the location of a lot of the size proposed, the proposed subdivision would be ad hoc and therefore cannot be supported.
63 In looking at the proposed subdivision, while the applicants referred to the site itself being larger than many lots to the north and west of the Torbay townsite, the Tribunal was unable to identify how this proposed excision would be distinguished from any later application that might be made by other owners. That conclusion, together with the subdivision being undesirable because of the absence of any planning support for such a subdivision in the planning strategies, leads the Tribunal to conclude that in addition to being ad hoc, the proposed subdivision would be an undesirable precedent for the subdivision of other rural land zoned lots in this locality.
22 In relation to issue 5 ('whether the land, underSPP 2.5, is classed as "rural living" land, regardless of its rural zone') and issue 6 ('if the answer to question 5 above is "yes", whether the presumption in SPP 2.5 against ad hoc subdivision applies'), the Tribunal found and determined at [67] [68] of its reasons as follows:
67 In respect to issue 5, as mentioned above, the Tribunal does not interpret SPP 2.5 as placing lots in any particular 'class'. The Tribunal has accepted that the use currently made of the site by the owner, fits the rural living definition of SPP 2.5, but considers that the site remains 'rural land' under SPP 2.5, because of the zoning under LPS 1.
68 In respect to issue 5, the Tribunal has determined that the answer is 'no'. That being the decision, in respect to the question asked in issue 6, the presumption in SPP 2.5 against ad hoc subdivision does apply. As discussed above, the Tribunal has found that he proposed subdivision would be ad hoc and therefore in conflict with the guidance for rural subdivision provided in SPP 2.5.
23 The Tribunal expressed the following 'conclusion' for its determination to refuse the applicants' subdivision application at [72] [74] of its reasons:
72 The Tribunal has found that, while the site currently has a rural living use, the proposal is the subdivision of a lot with a rural land zoning. The site is within a rural zone under LPS 1 and is classified as being for rural land use under the relevant planning strategies. The provisions of SPP 2.5 and DC 3.4 that guide rural subdivision are therefore applicable.
73 The Tribunal has considered the proposed subdivision in the context of the planning controls and the lot size pattern in the locality. The Tribunal has concluded that the proposed subdivision would not be consistent with orderly and proper planning because it would be inconsistent with the planning instruments, and that the subdivision would be ad hoc because there would not be a sound planning basis for the proposed lot size or location. Finally, because the subdivision would be undesirable for planning reasons and would not be distinguishable from any later application, an approval would set an undesirable precedent in this locality while the current planning controls remain in place.
74 The Tribunal has therefore decided to dismiss the application.
Consideration of applicants' grounds for review by a judicial member
Ground 1 'The Tribunal erred in law (at paragraph 68) by holding that the application was in conflict with SPP 2.5.'
24 Section 241(1) of the PD Act expressly required the Tribunal, in determining the application for review, 'to have due regard to relevant planning considerations including … (a) any State planning policy which may affect the subject matter of the application …'. The applicants concede that SPP 2.5 may affect the subject matter of the application. However, the applicants submit that the Tribunal's finding at [68] of its reasons that '[the] proposed subdivision would be ad hoc and therefore in conflict with the guidance for rural subdivision provided in SPP 2.5' 'misunderstands (and thus places incorrect "regard" to) SPP 2.5'.
25 In particular, the applicants contend (as they did before Member Jordan) that the rural living use of the site (as found by the Tribunal at [45] of its reasons) and of other land in the locality (which the Tribunal said at [51] of its reasons '… might … form the basis for a submission by a landowner to have the City [of Albany] amend its local planning scheme to zone the locality differently') has the legal effect that the site and locality is one of, or characterised by, 'rural living', and therefore that 'the presumption against subdivision (ad hoc or not) does not apply (and does not apply regardless of the General Agriculture zone)'.
26 The Tribunal did not err in law in its interpretation and application of SPP 2.5. In particular, the interpretation of SPP 2.5 expressed at [50] of the Tribunal's reasons is sound and correct. Clause 3.2 of SPP 2.5 expressly states that SPP 2.5 'should be applied … for rural land to guide decision making for subdivisions …'. Although 'rural land use' (as defined in cl 6 of SPP 2.5) does not include 'rural living', and although 'rural living' (as defined in cl 6 of SPP 2.5) means '[a] land use that is residential in nature characterised by a grouping of lots generally in the order of one to 40 hectares', SPP 2.5 and, in particular, its policy measure in cl 5.1 that the '[c]reation of new rural lots through ad hoc, unplanned subdivision is considered to be inconsistent with, or contrary to, the objectives of this policy' is relevant to the assessment of the proposed subdivision, because the site is 'rural land' (as defined in cl 6 of SPP 2.5, as it is '[l]and … zoned for rural or agricultural land use under a local planning scheme …', namely General Agriculture under LPS1), and the site and locality is not identified or proposed as a 'rural living precinct' or otherwise identified or proposed for rural living land uses under the applicable planning framework.
27 Importantly, although the Tribunal did not include these words in its quotation of the definition of 'rural land use' at [28] of its reasons, the definition of that term in cl 6 of SPP 2.5 states '(see s 5.6)' after the words 'Does not include rural living'. (However, the Tribunal did refer to cl 5.6 of SPP 2.5 at [23] [25] of its reasons and found at [26] of its reasons that the 'Torbay townsite, the site and the neighbouring lots have not and are not planned to be identified as rural living precincts under any relevant planning instruments.') Clause 5.6 of SPP 2.5 states that:
… Rural living proposals on rural land may be supported where they comply with the objectives of this policy and meet requirements of this section.
28 The 'requirements of this section' then include the following:
The following policy measures shall apply to WAPC decision making for rural living proposals.
a) The rural living precinct is part of a settlement hierarchy established in a WAPC endorsed planning strategy.
b) The WAPC will consider identifying rural precincts or supporting proposals for rural living when:
i) the precinct is adjacent to existing urban areas and has appropriate access to services, facilities and amenities;
..
iii) areas required for priority agricultural land are avoided;
iv) the extent of proposed rural living settlement is guided by existing land supply and take-up and population projections;
..
viii) where an acceptable supply of potable water cannot be demonstrated, the development cannot proceed;
…
30 Finally, in relation to this ground, the applicants submit that, because the definition of 'rural living' in cl 6 of SPP 2.5 refers to 'a grouping of lots generally in the order of one to 40 hectares', the Tribunal failed to make a proper determination of what land constitutes 'rural living' and whether SPP 2.5's policy measures militate against approval of the proposed subdivision because 'the Tribunal must examine both the size and the use of more than one lot in the locality'. In fact, in its assessment of whether the proposed subdivision merits approval, the Tribunal considered the characteristics not only of the site, but also of land in the locality, including lots in the Torbay townsite (at [3], [62] and [73]). However, as is clear from cl 5.6 of SPP 2.5, a determination as to whether there is or should be a 'grouping of lots' so as to constitute a 'rural living precinct' is a strategic planning matter for the Commission in the establishment of a settlement hierarchy, not a matter for the Commission (or the Tribunal on review) in the determination of a subdivision application. This was generally correctly understood by the Tribunal (see [23] [26], [51], [62] and [72] of its reasons).
Ground 7 'The Tribunal erred in law (at paragraphs 61 and 62):
a. by holding that the absence of prior (statutory) planning for the proposal made the application "ad hoc" and therefore could not be supported,
b. by holding that "ad hoc" was a relevant factor[,]
c. by failing to have regard to highly relevant factors namely the (uncontradicted) findings of fact made by the Tribunal in the third sentence of paragraph 62 (namely convenience to the Applicant[s], topography, vegetation cover and the keeping [of] pasture all in the one lot).'
31 The Tribunal did not err in law in any respect alleged in this ground. In relation to part b of ground 7 ('The Tribunal erred in law … by holding that "ad hoc" was a relevant factor'), a consideration as to whether a new rural lot is proposed to be created through 'ad hoc, unplanned subdivision' is expressly a relevant matter for consideration as stated in cl 5.1 of SPP 2.5. Indeed, given that the Tribunal was required by s 241(1)(a) of the PD Act to have 'due regard', relevantly, to SPP 2.5, the Tribunal would have erred in law had it not had regard to this aspect of the policy measures in SPP 2.5 in its determination of the subdivision application. (Further, this was a relevant consideration under cl 4 of DC 3.4 which, as noted at [31] of the Tribunal's reasons, states that '[c]reation of new rural lots through ad-hoc, unplanned subdivision is considered to be inconsistent with or contrary to the objectives of this policy').
32 In relation to part a of ground 7 ('The Tribunal erred in law … by holding that the absence of prior (statutory) planning for the proposal made the application "ad hoc" and therefore could not be supported'), the applicants submit that 'to treat an unplanned subdivision as being a reason for refusal amounts to an unwillingness on the part of the Tribunal to deal with the application on the merits contrary to the authority in Falc'.
33 This submission is incorrect. It is plain from the Tribunal's reasons, read as a whole, that it carefully addressed the subdivision application 'on the merits'. As the Tribunal said at [54] of its reasons:
It is accepted planning practice, as particularly articulated in Falc, that the zoning does not, of itself, dictate how a subdivision application might be determined. It is necessary to look at all relevant matters.
34 The Tribunal considered the six issues identified by the parties and came to findings on each issue which were reasonably open on the evidence before it. In particular, the Tribunal's determination that the subdivision application warrants refusal in the exercise of planning discretion in part, or in significant part, because it constitutes an 'ad hoc, unplanned subdivision', which is therefore 'inconsistent with, or contrary to, the objectives of [SPP 2.5]' (cl 5.1 of SPP 2.5), was a reasonably open determination in the exercise of planning discretion.
35 Furthermore, contrary to the formulation of part a of ground 7, the Tribunal did not determine that the 'absence of prior (statutory) planning [alone] for the proposal made the application "ad hoc"', although it did regard the absence of planning (either statutory, that is through a planning scheme, or strategic, such as through a planning strategy) as material. The Tribunal's reasoning in this respect does not disclose any error of law. The question of whether a proposed subdivision is contemplated by and planned for in the applicable statutory and strategic planning framework is plainly a material matter for consideration in the exercise of planning discretion as to whether to grant approval to it.
36 The Tribunal's reasons demonstrate that Member Jordan approached the application of planning policy correctly, in accordance with the wellestablished principles stated by Barker J in Clive Elliot Jennings. Ultimately, the Tribunal determined that there was no sufficiently cogent reason to depart from the application of SPP 2.5. At [61] of its reasons, the Tribunal recorded that it 'asked the planning witnesses for their expert opinion on whether there was a rational planning basis for a creation of a 7 hectare lot', and, at [62] of its reasons, the Tribunal recorded that it asked the experts 'to comment on the location of the proposed 7 hectare lot'. The Tribunal found that the expert town planning witnesses 'were not able to identify any particular planning basis for the creation of a lot of that particular size' (at [61]) and did not provide 'any cogent planning reason for excising 7 hectares in the northwest corner of the site, particularly as the remainder of the site would be between the new lot and the Torbay townsite' (at [62]).
37 Furthermore, as is apparent from the findings and determinations of the Tribunal in relation to the other issues and as is clear from its 'conclusion' at [72] [74] of its reasons, the refusal also stemmed from other planning considerations beyond 'ad hoc, unplanned subdivision', including 'potential for increased future land use conflicts' ([60]) and 'undesirable precedent for the subdivision of other rural land zoned lots in the locality' ([63]).
38 The applicants also submit that 'an approving authority is not in a positon to say "we didn't plan for your application so you simply cannot have it" in that the planning authority is bound in law to consider the application on the merits' and that 'a lack of forward planning in contemplation of an application is nothing more than an administrative fact (being of a lack of administrative action) not a planning related fact (i.e. having regard to the actual planning elements of the site itself) and, as such, falls into being an irrelevant fact and not a valid reason for refusal'.
39 These submissions are misconceived. Certainly, as the Tribunal expressly recognised at [41] and [54] of its reasons, it was required to have regard to all relevant planning considerations in the assessment of the subdivision application. However, as the Tribunal also recognised, SPP 2.5, which it was bound to have 'due regard' to, expressly provides as a policy measure in cl 5.1 that '[c]reation of new lots through ad hoc, unplanned subdivision is considered to be inconsistent with, or contrary to, the objectives of this policy'.
40 The expression 'ad hoc, unplanned subdivision' is not defined in SPP 2.5, DC 3.4 (which, as noted earlier, uses the same term in cl 4) or the PD Act. As the High Court of Australia held in AB v State of Western Australia & Anor [2011] HCA 42; (2011) 244 CLR 390; (2011) 85 ALJR 1233 at [10]:
What is comprehended by [a legislative provision] falls to be determined by construing its terms in the context of the [legislation] as a whole and by reference to its evident purposes … .
41 Although SPP 2.5 is a planning policy made under Pt 3 of the PD Act, rather than legislation, in my view, a similar approach to its interpretation is appropriate. The ordinary, most apposite meanings of the adjectives 'ad hoc' and 'unplanned' are:
ad hoc … impromptu; …
[impromptu … made or done without previous preparation … ]
unplanned … not covered by an existing plan, as land for housing, settlement, etc.: an unplanned area.
(The Macquarie Dictionary (5th ed, 2009), pages 19, 842 and 1804).
42 Importantly, in order to understand what is meant by the expression 'ad hoc, unplanned subdivision' in cl 5.1 of SPP 2.5, the provision then immediately identifies 'the overarching policy requirements' as including:
a) land use change from rural to all other uses is to be planned and provided for in a planning strategy or scheme;
…
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.
43 The 'objectives of this policy' that the '[c]reation of new rural lots through ad hoc, unplanned subdivision is considered to be inconsistent with, or contrary to' under cl 5.1 of SPP 2.5 include, under cl 4 of SPP 2.5:
a) To protect rural land from incompatible uses by:
i) requiring comprehensive planning for rural areas;
…
e) To minimise land use conflicts.
44 When read having regard to the ordinary, apposite meaning of the words and in the context of cl 4a)i) and e) and cl 5.1a) and e) of SPP 2.5 (and by reference to its evident purposes as disclosed in those contextual provisions), on its proper interpretation, the expression 'ad hoc, unplanned subdivision' in cl 5.1 of SPP 2.5 refers to a subdivision that is not contemplated by and planned for in the applicable planning framework, and particularly an existing, relevant planning strategy or planning scheme and DC 3.4. The Tribunal's reasons at [62] demonstrate that it generally correctly understood the meaning of the expression, 'ad hoc, unplanned subdivision'.
45 The applicants' submissions also reflect a fundamental misunderstanding of the nature and importance of strategic planning as an element of orderly and proper planning. The fact that the applicable planning framework does not contemplate and plan for a proposed subdivision cannot be characterised or dismissed as 'nothing more than an administrative fact'. Statutory and strategic planning is quasilegislative or policymaking, not merely administrative, in nature. Furthermore, statutory and strategic planning has a critical role in orderly and proper planning by guiding the assessment of planning applications. Indeed, as noted earlier, the question of whether a proposed subdivision is contemplated by and planned for in the applicable statutory and strategic planning framework is not only relevant in the exercise of planning discretion as to whether to approve the subdivision application, but is a material matter for consideration in the exercise of planning discretion.
46 Finally, the applicants submit that 'there was, on the evidence, no basis at all for the Tribunal to conclude that there was no planning basisfor the location of a lot of the size proposed', because the Tribunal had found in the third sentence of [62] of its reasons that 'the location was chosen by the land owners for convenience and because of topography, vegetation cover and the desire to keep all of the pasture on the larger lot', which the applicants contend are 'highly relevant [planning] factors'.
47 However, it is apparent from [62] of the Tribunal's reasons that the Tribunal did take these matters in to account. The Tribunal concluded, nevertheless, in effect, that these factors do not constitute a sufficiently cogent reason to depart from the application of cl 5.1 of SPP 2.5, particularly having regard to the other planning considerations that the Tribunal discussed in its reasons. As noted earlier, the reasons of the Tribunal must be read as a whole, not minutely or finely with an eye keenly attuned to the perception of error, not in an overly critical or pernickety manner, and not concerned with looseness of language or phrasing. Read in this way, and having regard to the Tribunal's careful consideration of the merits of the application, including the applicants' arguments, it is clear that the Tribunal assessed the application on its merits and, in particular, that it had regard to the applicants' reasons for the proposed subdivision, but did not regard those reasons as sufficiently cogent factors to depart from the application of cl 5.1 of SPP 2.5 or otherwise to warrant approval of the application in the circumstances of the case. The Tribunal's findings and determinations were reasonably open on the evidence.
48 The Tribunal did not err in law in its determination that the proposal involves 'ad hoc, unplanned subdivision' for the purposes of cl 5.1 of SPP 2.5, that there is not any sufficiently cogent reason to depart from the application of the policy measure that such a subdivision 'is considered to be inconsistent with, or contrary to, the objectives' of SPP 2.5, and that this together with other planning considerations referred to in its findings on the issues warrant the refusal of the proposed subdivision.
Conclusion
49 The applicants have not made out either of the two grounds for review that they have maintained. The application for review by a judicial member should be dismissed and the determination of the Tribunal should be affirmed.
Orders
50 The Tribunal makes the following orders:
1. The application for review by a judicial member is dismissed.
2. The determination of the Tribunal made on 15 December 2014 and for which written reasons were published on 19 December 2014 in DR 382 of 2013 is affirmed.
I certify that this and the preceding [50] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE D R PARRY, DEPUTY PRESIDENT
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