Clark and Western Australian Planning Commission - [2014] WASAT 170

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: CLARK and WESTERN AUSTRALIAN PLANNING COMMISSION [2014] WASAT 170

MEMBER: MR J JORDAN (MEMBER)

HEARD: 15 MAY, 21 AUGUST AND 15 SEPTEMBER 2014

DELIVERED : 15 DECEMBER 2014

PUBLISHED : 19 DECEMBER 2014

FILE NO/S: DR 382 of 2013

BETWEEN: HERBERT HORSLEY CLARK
EVELYN FRANCES CLARK
Applicants
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Town planning - Subdivision - Refusal - General Agriculture zoning under local planning scheme - Zoning is 'Rural Land' under State Planning Policy 2.5 Proposed creation of 7 hectare lot and 37.95 hectare lot - Lot size pattern in locality - 'Core' area of smaller lots - Outer area of lots up to about 40 hectares around 'core' - Perceived use made of rural zoned lots, rural use and rural living uses - Local strategy for locality - State Planning Policy 2.5 - Rural land use planning - Development Control Policy 2.3 Subdivision of rural zoned land Relationship between definitions for zones and uses - Uses permitted in zones - Tests for suitability of land for proposed use - Application of policy

Legislation:

City of Albany Planning Scheme No 1, cl 4.2.20, cl 5.5.16.4
Planning and Development Act 2005 (WA), s 252(1)

Result:

1. The application for review is dismissed
2. The decision of the Western Australian Planning Commission dated 11 September 2013 to refuse the application to subdivide Lot 19 Puls Road, Torbay is affirmed

Summary of Tribunal's decision:

This matter involved an application for review of the refusal of a proposal to subdivide a lot in a rural zone currently used for rural living into a 7 hectare lot and a 37.95 hectare lot.
The Tribunal determined that the provisions of the Western Australian Planning Commission's policies State Planning Policy 2.5 and Development Control Policy 3.4 that guide rural subdivision were applicable.
The Tribunal considered the proposed subdivision in the context of the objectives for the rural zoning of the site and locality under the local planning scheme and the classification of the site and lots in the locality for continued rural land use under the adopted planning strategies.
The Tribunal concluded that the subdivision would not be consistent with orderly and proper planning because it would be inconsistent with the intent of the planning instruments and the policies that guide the subdivision of rural land. The Tribunal further found that the subdivision would be ad hoc because it was not satisfied there was a sound planning basis for the proposed lot size or location and that the subdivision would set an undesirable precedent because it would not be distinguishable from any later application in this locality while the current planning controls remain in place.
The Tribunal decided to dismiss the application.

Category: B

Representation:

Counsel:

Applicants: Mr I McKellar with Ms K McKellar (Acting as Agents)
Respondent: Ms S Grebe (Acting as Agent)

Solicitors:

Applicants: Civil Technology Pty Ltd (Civil Engineers and Project Managers)
Respondent: Western Australian Planning Commission

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

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
Macri and the Western Australian Planning Commission [2013] WASAT 157
Macri v Western Australian Planning Commission [2014] WASC 153
Squires & Anor and Western Australian Planning Commission [2006] WASAT 144

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

The Tribunal issued its decision dismissing the application for review of the refusal of the proposed subdivision on 15 December 2014. Following are the reasons for that decision.
These proceedings involved an application brought by Mr Herbert Horsley Clark and Mrs Evelyn Frances Clark (applicants) pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) for review of the refusal by the Western Australian Planning Commission (Commission or respondent) to grant approval for the proposed subdivision of Lot 19 Puls Road, Torbay (site).

The site and locality

In 1910 the Torbay townsite was gazetted. The Torbay townsite is located approximately 18 kilometres west from the city centre of Albany. The local government area of the City of Albany (City) includes the City but also extensive rural areas. Located within the Torbay townsite, abutting the south side of Railway Road, is Crown Land. North of Railway Road are some 35 lots ranging in size from approximately 1.3 hectares to 6.7 hectares. The lots in the townsite are each developed with a house with reticulated electricity, and formed gravel road access, but no reticulated water. The townsite has a hall, a school bus service and a fire brigade station.
The site has an area of 44.96 hectares and abuts the northern boundary of the Torbay townsite. The site has frontage to Newbold Road at the western end and about midway across the southern boundary, the site has a 20 metre wide access to the end of an extension of Puls Road, a road within the Torbay townsite.
No contours were provided, but the site was described as falling from the northwest corner to the southern boundary. Approximately 58% of the site, mostly in the northern half, is covered by remnant vegetation. On the site are one dwelling, four outbuildings and a dam.
Lots to the north and west and immediately to the east of the site range in size from approximately 7 hectares to about 50 hectares. Near to the eastern side of the site is Rutherford Road, east of which, lots are generally about 40 hectares or greater. About 1.5 kilometres to the north and to the west of the site, the lot size pattern changes so that lots are predominately greater than 40 hectares and the evidence was, that these lots are generally used for broadacre farming.

Proposed subdivision

Proposed is the excision of a 7 hectare lot from the northwest corner of the site. The new lot would have a frontage of 449.6 metres to Newbold Road with a frontage of 59 metres to the northern boundary, giving it a triangular appearance because of the obtuse angle at the corner of the front and side boundary. The remainder of the site would be a lot of 37.95 hectares that 'wraps around' the 7 hectare lot to the east and the south. The 7 hectare lot would be separated from the Torbay townsite by about 200 metres of the larger lot. The existing residence, sheds and dam would be on the 37.95 hectare lot. Abutting the southern boundary of a larger lot are Torbay townsite lots ranging in size from 1.9 hectares to 9869m², plus a lot of 6.7 hectares. Access to the dwelling on the larger lot is via a track in the northsouth section of Puls Road.

Planning framework

North of Railway Road, lots are zoned General Agriculture in the City of Albany Local Planning Scheme No 1 (LPS 1), including the site, lots to the north, east and west of the site and lots in the Torbay townsite. South of Railway Road, lots are zoned Priority Agriculture. LPS 1 contains a Rural Village zone, and while certain other small historical townsites in the LPS 1 Scheme Area are included within this zone, the Torbay townsite is not.
Clause 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 onsite; and
(e)Provide for tourism experiences where those developments do not impact upon adjoining agricultural and rural land uses.
Clause 5.5.16.4 of LPS 1 states:
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.
The City's adopted City of Albany Local Planning Strategy (ALPS) was endorsed by the respondent on 15 June 2010. Map 9B of the ALPS designates the site as falling within an area of Priority Agriculture.
Clause 5.5.1 of the ALPS states:
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 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. …
Clause 8.3.5 of ALPS provides the strategic objectives for Rural Living areas as follows:
…
Ensure that future rural living areas are planned and developed in an efficient and coordinated manner by being located either adjacent to Albany or designated on the ALPS maps, or within existing rural townsites in accordance with Table 5 along with adequate services and community infrastructure.
Rural Living areas have been classified and identified in Plans 9A and 9B as Special Residential, Rural Residential, Rural Small Holdings and Conservation.
The strategy's objectives for Rural Living areas are to:
•Discourage the creation of additional rural townsites for living purposes.
•Avoid the development of Rural Living areas on productive agricultural land, other important natural resource areas and areas of high bushfire risk, flooding and environmental sensitivity.
•Avoid the development of Rural Living areas on future and potential longterm urban areas.
•Provide for compact growth of selected existing rural townsites in accordance with Table 5, based on land capability and available services and facilities.
•Minimise potential for generating landuse conflicts.
Table 5 of ALPS lists, rural townsites, including Torbay, giving details of existing infrastructure and services. Appropriate 'Growth Scenario' is given for each townsite and for Torbay, this is listed as 'no growth'. The site is not located adjacent to Albany on the ALPS maps, nor is it within an existing rural townsite identified in Table 5 for growth.
The ALPS refers to the City of Albany's Local Rural Strategy (LRS), but does not supersede it. The ALPS does refer to a review to be made of the LRS.
The LRS was endorsed by the respondent in January 1996. It does not include the whole of the City but does include the area within which the site is located. The site is located within the 'Torbay 6' precinct under the LRS. The policy statement for Torbay 6 states:
Council will provide for the protection of horticulture in the area (for example; potatoes, fruit, grapes, nuts) and the establishment of compatible small scale tourist enterprises through:
1.precluding rural residential development;
2.precluding any other proposals for non-agricultural purposes;
3.supporting proposals which would facilitate agricultural production; and
4.restricting tourist development such that small scale nonaccommodation developments may be approved, but tourist accommodation developments are subjected to restrictions … .
The respondent endorsed the 'Lower Great Southern Strategy' (LGSS) in June 2007 and this includes the City and neighbouring shires. The LGSS identifies the site as Rural. It provides a settlement hierarchy and identifies four rural villages, including Torbay.
The LGSS identifies that where expansion of a rural village is proposed issues relevant to that particular village should be addressed, including:
•aging infrastructure and the cost for the extension and upgrading of services;
•cost of extending infrastructure to support development;
•maintaining existing community assets;
•loss of community services and facilities such as health and education; and
•impact of natural hazards such as bushfires.
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 State and local government planning decisionmaking', 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).
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.
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 identifies 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.
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 evidencebased 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.
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.
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.
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 (5^th 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 …
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.
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.
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:

Broadacre farming

Largescale agricultural operation, traditionally involving farming of grains and/or livestock.

Locality

A place, area or district, the size of which will vary in relation to context.

Rural land

Land identified in an endorsed strategy or zoned for rural or agricultural land use under a local planning scheme or strategy.

Rural land use

A subset of rural land, and any land use that could be expected to occur in a rural zone. Does not include rural living … [.]

Rural living

A land use that is residential in nature characterised by a grouping of lots generally in the order of one to 40 hectares. Although primary production may occur on some rural living properties it is usually for hobby farming, lifestyle activities or incidental income purposes. In terms of land use zones this includes, but is not limited to, special residential, rural living, rural retreat, rural residential, special rural, rural smallholdings, and landscape protection zones. This also includes subdivision of 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.

Rural residential zone/

Special rural zone

A subset of rural living and a land use zone with land parcels from one to four hectares in size and generally provided with scheme water and power supply.

Rural settlement

A subset of rural living, generally located on the outskirts of an existing town. Rural settlement may also be used to describe proposals for rural living as this land use results in people settling in rural areas.

Rural smallholdings zone

A subset of rural living, and a land use zone where lots are developed as an estate, predominantly with a lifestyle focus. Primary production may occur on the site, but is not guaranteed. Land parcels range from four to 40 hectares in size. [They may] also be known as rural retreat.

The respondent also listed SPP 3 as part of the planning framework.
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. …
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 adhoc, unplanned subdivision is considered to be inconsistent with or contrary to the objectives of this policy.
Clause 5 of DC 3.4 includes a statement that when determining subdivision proposals on rural land, the following measures will be applied:
a)the creation of new or smaller lots will be by exception;
b)proposals will be considered against strategies and schemes;
c)adequate buffer distances for sensitive and/or incompatible land uses can be achieved; and
d)proposals will be assessed against any relevant State planning policies and/or operational policies.
Clause 6 of DC 3.4 provides that the respondent will consider rural subdivision in the following exceptional circumstances:
a)to realign lot boundaries with no increase in the number of lots, where the resultant lots will not adversely affect rural land uses;
b)to protect and actively conserve places of cultural and natural heritage;
c)to allow for the efficient provision of utilities and infrastructure and/or for access to natural resources;
d)in the Homestead lot policy area (Appendix 2), to allow for the continued occupation of existing homesteads when they are no longer used as part of a farming operation; and
e)for other unusual or unanticipated purposes which, in the opinion of the WAPC, do not conflict with this and other relevant policies and are necessary in the public interest.
The City has also adopted Local Planning Policy 5 (LPP 5). The objective of LPP 5 is to 'protect existing and potential agricultural production from unjustified urban development and to promote the sustainable use of land and water resources in order to maximise the long term future of agriculture'.
LPP 5 provides guidance where the City may support subdivision of rural land, including where:
1)The subdivision is within a rural residential or environmental protection zone and appropriate land use provisions are in place;
2)The subdivision is for farm consolidation purposes and complies with policy statement F2.4;
3)The purpose of the subdivision is to excise an existing approved intensive agricultural enterprise where it can be shown that the enterprise has been operating in a sustainable and economically viable manner for at least two years …;
4)The purpose of the subdivision is to excise an approved tourist or industrial development, or for other uses which would be ancillary to the legitimate General Agriculture and Priority Agricultural use of land, and policy statement is complied with.

Issues

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.
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.
The issues listed by the parties overlap and are interrelated and are discussed below.

Discussion

In hearing this matter, the Tribunal had the benefit of three expert town planners who were called as witnesses. The applicants called Mr Henry Dykstra and the respondent called Ms Catherine Meaghan and Mr Alex Petrovski. In submissions on this matter, the parties referred to Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522 (Falc). The respondent also referred to Clive Elliot Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433 (Clive Elliot Jennings) which, at [24] states:
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.
The Tribunal, in considering this matter had regard to the following from Falc at page 535:
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.
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.
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.
The Tribunal can start by agreeing with the parties that the General Agriculture zoning under LPS 1 is a 'rural land' zone when considering the application of SPP 2.5 and DC 3.4.
In identifying the use of the site the parties referred to the following sentences in the definition of rural living in SPP 2.5:
In terms of land use zones this includes, but is not limited to, special residential, rural living, rural retreat, rural residential, special rural, rural smallholdings, and landscape protection zones. This also includes subdivision of rural land into smaller land holdings. eg. a boundary realignment which results in lots of the size where residential is the predominant land use[.]
The Tribunal accepts that the site is currently used for rural living on the basis of the opinion of Mr Dykstra who said he visited the site. That is, 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. This was not disputed by the respondent. The applicants' agent said the proposed 7 hectare lot and the remainder of the site would continue to be used for rural living.
Clause 5.5.16.1 of LPS 1 states that a maximum of two houses may be permitted on general agriculture zoned lots greater than or equal to 20 hectares. That is, General Agriculture zoned lots of less than 20 hectares can have one house. The analysis of rural lot sizes by Mr Petrovski and Mr Dykstra reveals that the City includes lots of less than 20 hectares in the General Rural zone.
The experts disagreed on the use made of lots north and west of the site. Mr Dykstra said the lots appeared to be used for rural living and Mr Alex Petrovski was of the opinion that some lots appeared to be put to agricultural use. Both witnesses formed these opinions after driving past the lots. In the Tribunal's view, the comment on land use can be considered as no higher than an educated guess. The Tribunal would add that neither opinion disturbs the General Agricultural zoning of the site and neighbouring lots under LPS 1.
The applicants argued this locality must be identified as an existing rural living precinct. This was based on the site and neighbouring lots to the north and west being used for rural living, the number of lots of 40 hectares or less, the clustering of lots, proximity to the Torbay townsite, topography and types of dwellings.
The applicants said that the provisions of clause 5.6 of SPP 2.5 therefore did not apply to this proposed subdivision. This was because, it is asserted, the applicants are not trying to create a rural living precinct. A rural living precinct already exists in this locality. It was the applicants' submission that it therefore follows that DC 3.4 does not prevent approval of the subdivision. This is said to be because clause 3 of DC 3.4 provides that the policy does not apply to rural living proposals or subdivisions. If DC 3.4 does not apply, then the six circumstances in which rural subdivision can be considered at clause 6 of DC 3.4 are also not applicable to the applicants' proposed subdivision.
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.
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.
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.
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.
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.
Both parties referred to Squires & Anor and Western Australian Planning Commission [2006] WASAT 144 (Squires). Squires was concerned with the subdivision of a lot within the Torbay townsite into a 6.6 hectare lot and a 3 hectare lot. This lot, as with other lots in the Torbay townsite had a 'rural land' zoning under the then town planning scheme. At that time, the respondent had in place earlier versions of SPP 2.5 and DC 3.4. The Tribunal in its summary in Squires at [2] and [3] found:
… The townsite was characterised as being more consistent with a 'Special Rural' or 'Rural Residential' area….
Although the subject land was zoned 'Rural' under TPS No 3, the Tribunal was persuaded that the substantial merits of this particular case supported a departure from the relevant policies relating to the subdivision of rural land. The Tribunal considered that the proposed subdivision was consistent with the existing subdivision pattern and land use established in the townsite and that the creation of an additional freehold lot would not have any adverse impact on the amenity of the area or jeopardise the orderly and proper planning of the locality.
The Tribunal, in its conclusion stated at [49]:
Furthermore, The Tribunal does not consider the argument that approval of the proposed subdivision would set an undesirable precedent for further subdivision of land in the Torbay townsite and other lots zoned 'Rural' in the locality as a sole reason for the proceedings being dismissed, as each case should be treated on its merits and regard given to the particular circumstances of the site.
The Tribunal has formed the view that by looking at the circumstances the Tribunal's decision in Squires can be understood. The Tribunal finds that Squires does not assist by providing a finding of general application for allowing, as a matter of course, subdivision of rural land beyond the boundary of the Torbay townsite into a lot size of the owner's choosing, inconsistent with the prevailing lot size and inconsistent with the Scheme and strategic direction.
In respect to issue 2, the policy documents provide that when considering rural subdivision an objective is to minimise land use conflict. In this regard, LPS 1 at clause 5.5.16.1 provides that a second house might be approved on a rural lot 20 hectares or greater in area. It is not known, however, whether the City would approve the building of a house on the unsubdivided site where it is now proposed to excise the new lot.
The Tribunal accepts that by excising the 7 hectare lot for the stated purpose of providing a house lot for a family member, there would not immediately be created any land use conflict with the current use made of the remainder of the site. Planning, however, is concerned with the ongoing use of lots in particular zones and achieving the objectives of the planning scheme and related strategies.
The Tribunal had conflicting comments from Mr Petrovski 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 LPS1. The planning principle of having regard to existing land uses and the potential for future land use conflict following subdivision was enunciated in Macri v Western Australian Planning Commission [2014] WASC 153 at [42] – [43] where Kenneth Martin J stated:
In a context of what is or is not a relevant planning consideration for WAPC (or SAT) warranting potential imposition of a condition tied to a subdivisional approval such as condition 1, I assess it as both relevant and appropriate for a planning approval entity to have in mind possible future conflict ramifications of dividing an existing lot.
Avoiding future land use conflicts must surely be a relevant planning consideration. I reject any submission that it is unreasonable, let alone manifestly unreasonable, for a planning authority such as WAPC to have in mind as a consideration future land use conflicts. To proceed otherwise on my assessment would defy logic and commonsense, indeed strike at the very rationale for having a planning body assessing proposed subdivisions at all. By its very nature, the statutory function of a 'planning' body must involve a prospective consideration of matters that may arise in the future.
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.
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 northwest 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.
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.

The applicants' agent, late in the day, said that a lot of up to about 20 hectares, extending south from the chosen location to the southern boundary of the site, would be acceptable to the applicants. The agent said it was open to the Tribunal to vary the lot size in determining the application for review, citing Macri and the Western Australian Planning Commission [2013] WASAT 157 (Macri).
The Tribunal does not accept that Macri provides a basis for a variation of the lot size in this matter. Macri involved a subdivision of land on which there was an abattoir and four residences. The lot boundary change was determined by the relationship of those uses. In the current proposal, the Tribunal is now being asked to select lot sizes to be created in the absence of sufficient planning controls or improvements that would form a basis for doing so.
The planning framework referred to above includes the ALPS and this includes placing localities in a particular 'class'. At clause 8.3.5 the ALPS refers to rural living areas being 'classified and identified in plans 9A and 9B as Special Residential, Rural Residential, Rural Small Holdings and Conservation'. The site and neighbouring lots are not classified or identified in this way in the ALPS.
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.
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.

Further comment

The respondent made submission in which it was argued that the outcome of this subdivision would have ramifications for the application of SPP 2.5 and DC 3.4 when considering rural subdivision, particularly throughout the Great Southern region, but also throughout the state. The Tribunal would refer again to the principle enunciated in Clive Elliott Jennings set out above. That is, for a properly established policy based on sound planning principles, the consideration is why the policy should not be applied; why the principles found in the policy are not relevant to the particular application.
The Tribunal found in Squires, reasons why SPP 2.5 and DC 3.4 did not apply to the subdivision of a particular rural zoned lot. Mr Dykstra gave verbal evidence of the approval of subdivision of rural zoned lots into small holdings in the Shire of Serpentine-Jarrahdale. If the Tribunal had been satisfied there were appropriate circumstances in this matter, then subdivision might well have been supported, but that was not the case.
The Tribunal does not accept that when a decision is made to support the subdivision of a rural zoned lot, such a decision would lead to a 'proliferation' of rural living lots in the rural zone across, in this case, the City and 'have the effect of undermining strategic and statutory planning for the Greater Albany area' or any other rural area within the State. The Tribunal considers that it is open to a land owner to apply for subdivision and then to have that subdivision assessed against relevant local statutory and strategic documents and the respondent's policies. The decision on the subdivision proposal would then follow.

Conclusion

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.
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.
The Tribunal has therefore decided to dismiss the application.

Orders

1.The application for review is dismissed.
2.The decision of the Western Australian Planning Commission dated 11 September 2013 to refuse the application to subdivide Lot 19 Puls Road, Torbay is affirmed.

I certify that this and the preceding [74] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J JORDAN, MEMBER

Broadacre farming	Largescale agricultural operation, traditionally involving farming of grains and/or livestock.
Locality	A place, area or district, the size of which will vary in relation to context.
Rural land	Land identified in an endorsed strategy or zoned for rural or agricultural land use under a local planning scheme or strategy.
Rural land use	A subset of rural land, and any land use that could be expected to occur in a rural zone. Does not include rural living … [.]
Rural living	A land use that is residential in nature characterised by a grouping of lots generally in the order of one to 40 hectares. Although primary production may occur on some rural living properties it is usually for hobby farming, lifestyle activities or incidental income purposes. In terms of land use zones this includes, but is not limited to, special residential, rural living, rural retreat, rural residential, special rural, rural smallholdings, and landscape protection zones. This also includes subdivision of 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.
Rural residential zone/ Special rural zone	A subset of rural living and a land use zone with land parcels from one to four hectares in size and generally provided with scheme water and power supply.
Rural settlement	A subset of rural living, generally located on the outskirts of an existing town. Rural settlement may also be used to describe proposals for rural living as this land use results in people settling in rural areas.
Rural smallholdings zone	A subset of rural living, and a land use zone where lots are developed as an estate, predominantly with a lifestyle focus. Primary production may occur on the site, but is not guaranteed. Land parcels range from four to 40 hectares in size. [They may] also be known as rural retreat.