Cornhill and Western Australian Planning Commission
[2009] WASAT 9
•22 JANUARY 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: CORNHILL and WESTERN AUSTRALIAN PLANNING COMMISSION [2009] WASAT 9
MEMBER: JUSTICE M L BARKER (PRESIDENT)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 22 JANUARY 2009
FILE NO/S: DR 385 of 2008
BETWEEN: MICHAEL CORNHILL
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Review by judicial member of determination of Tribunal upon a matter involving a question of law - Town planning - Subdivision - Rural zone - Severance of 3.2 hectares containing approved light industrial development, leaving 43.0313 hectares for continuation of low level grazing - Whether Tribunal erred in law in its consideration of planning framework - Whether Tribunal failed to consider relevant matter - Crossapplication for review - Whether Tribunal erred in law in interpretation of local planning scheme - Whether Tribunal erred in consideration of adverse planning precedent - Whether judicial member should refer matter back to Tribunal for redetermination or substitute determination
Legislation:
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 135, s 138, s 244, s 251(1)
Shire of Serpentine-Jarrahdale Town Planning Scheme No 2, cl 5.1.1, cl 5.4.2(c), cl 5.8, cl 5.9, cl 5.12
State Administrative Tribunal Act 2004 (WA), s 3(1)
Result:
Application for review allowed
Subdivision approval granted subject to conditions
Category: B
Representation:
Counsel:
Applicant: Mr J C W Skinner
Respondent: Ms C A Ide
Solicitors:
Applicant: Jackson McDonald
Respondent: State Solicitor's Office
Case(s) referred to in decision(s):
Aspen Pty Ltd v State Planning Commission [1988] WATPAT 18
Cornhill and Western Australian Planning Commission [2008] WASAT 208
Cornhill v Western Australian Planning Commission [2001] WATPAT 20
Goldin v Minister for Transport Administering the Ports Corporations and Waterways Management Act 1995 (2002) 121 LGERA 101
Ingram v Western Australian Planning Commission [2003] WASCA 77
Landpark Holdings Pty Ltd and Western Australian Planning Commission [2007] WASAT 130
Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117
Williams and Western Australian Planning Commission [2005] WASAT 10
Wilson v Western Australian Planning Commission [2007] WASC 39
REASONS FOR DECISION:
Summary of Tribunal's (judicial member's) decision
Mr Michael Cornhill applied for review by a judicial member of a determination of the Tribunal in which it refused to grant subdivision approval of a 46.2313 hectare rural zoned property into lots of 3.2 hectares and 43.0313 hectares. The proposed smaller lot contains a historic, current and lawful light industrial development.
The President determined that the Tribunal erred in law in two respects. First, it failed to take into account a relevant matter for consideration, namely, whether the proposed subdivision would result in the maintenance or loss of land having productive capacity for agricultural production. Secondly, the Tribunal failed to take into consideration one of two established criteria as to the circumstances in which precedent is a relevant consideration in a planning assessment, namely, that there is more than a mere chance or possibility that there may be later undistinguishable applications.
The President determined that the proposed subdivision warrants approval, subject to appropriate conditions. The subdivision accords with orderly and proper planning having regard to the applicable planning framework. The local planning scheme contemplates two lot subdivisions of rural zoned land 'because of particular circumstances', which includes the severance of a historic, continuing and lawful light industrial development. The subdivision is also generally consistent with the other elements of the framework. Adverse planning precedent is not a relevant consideration in this case because the proposed subdivision is not objectionable and there is, at the highest, only a chance or possibility of later similar applications.
The President allowed the application for review and substituted a determination that subdivision approval be granted subject to conditions to be determined on the basis of the parties' further written submissions.
Application for review by judicial member
Mr Michael Cornhill has applied under s 244 of the Planning and Development Act 2005 (WA) (PD Act) for a review by a judicial member of the determination made by the Tribunal on 11 September 2008 in Cornhill and Western Australian Planning Commission [2008] WASAT 208. In its determination, the Tribunal refused to grant subdivision approval of a 46.2313 hectare rural zoned property at Lot 394 Jarrah Road, Hopelands (site), in the Shire of SerpentineJarrahdale (Shire), into two lots of 3.2 hectares and 43.0313 hectares.
The smaller of the proposed lots contains a light industrial development that commenced in the mid 1980s and received development approval from the Shire on 21 February 2002. The development approval required the area the subject of the approval to be fenced and the boundaries of that area to be planted with three rows of local tree and shrub species. The fencing and landscaping has been carried out.
The larger of the proposed lots is used for low level grazing.
Section 244 of the PD Act enables a judicial member to review a determination upon a 'matter involving a question of law' that was made by the Tribunal when constituted without a legally qualified member as defined in s 3(1) of the State Administrative Tribunal Act 2004 (WA). The determination in question was made by the Tribunal when constituted by Senior Sessional Member Graham, who is not a legally qualified member.
Background
In February 2001, Mr Cornhill applied to the Western Australian Planning Commission (Commission) for approval under s 135 of the PD Act to subdivide the site into two lots of about 8 hectares and 38 hectares. The Commission refused to grant approval and its decision was affirmed on appeal to the former Town Planning Appeal Tribunal on 21 September 2001: Cornhill v Western Australian Planning Commission [2001] WATPAT 20.
On 29 June 2007, Mr Cornhill applied to the Commission for approval to subdivide the site into two lots of 3.2 hectares and 43.0313 hectares. On 18 February 2008, the Commission refused to grant approval.
On 17 March 2008, Mr Cornhill applied to the Tribunal for review of the Commission's decision under s 251(1) of the PD Act.
On 10 July 2008, the Tribunal, constituted by Senior Sessional Member Graham, conducted the final hearing in the proceedings and reserved its decision.
On 11 September 2008, the Tribunal published its decision to refuse subdivision approval and its reasons for the decision.
Tribunal's reasons for determination
At [12] of the reasons, the Tribunal noted that the site is zoned 'rural' under both the Metropolitan Region Scheme (MRS) and the Shire of SerpentineJarrahdale Town Planning Scheme No 2 (TPS 2 or Scheme). At [13], the Tribunal identified the following additional elements of the applicable planning framework:
•Shire of SerpentineJarrahdale Rural Strategy (Rural Strategy);
•State Planning Policy No 2.5 Agricultural and Rural Land Use Planning (SPP 2.5); and
•Development Control Policy 3.4 Subdivision of Rural Land (DC 3.4) published by the Commission.
The Tribunal set out the relevant parts of the applicable planning framework at [26] [54] of the reasons.
At [16] of the reasons, the Tribunal identified the 'principal planning issues' as follows:
(a)Does the proposal accord with orderly and proper planning; specifically having regard to the relevant statutory and policy provisions?
(b)Would an approval be likely to set a precedent for further subdivision of the Rural Policy Area [which includes the site]?
The Tribunal's reasoning for its refusal of the proposed subdivision is contained under the heading 'Conclusions' at [67] [120] of the reasons.
In relation to the issue of whether the proposal accords with orderly and proper planning, the Tribunal considered, in particular, three matters of contention between the parties.
The first matter of contention was the 'likely longterm use' of the proposed smaller lot. The Tribunal expressed the following findings in relation to this matter at [75] - [78]:
It is the Tribunal's view that, although highly unlikely in the foreseeable future, the existing light industrial use on proposed Lot 1 could change. There is no reason why, due to family or business circumstances (as previously occurred in the applicant's shift from Baldivis to the subject land), a separate lot could not be sold and used by others for a use more in keeping with the rural zone. …
It is also possible, no matter how unlikely the prospect today, that a separate Lot 1 could, theoretically, be used for a farmlet or rural/residential purpose some time into the future. The Tribunal supports the respondent on this point.
The second matter of contention between the parties was whether the proposed subdivision is 'consistent with the purpose and intent of the rural zone in TPS 2'. At [81], the Tribunal observed that the resolution of this question required an assessment of cl 5.4.2(c) of TPS 2. This provision states as follows:
The subdivision of rural land in the Shire for lots ranging in area from 2,000 [square metres] to 4 hectares shall only occur on land that is appropriately zoned either Special Rural (Rural Living A and B Rural Living) or Special Residential under the Scheme as applicable and Clauses 5.8, 5.9 and 5.12 shall apply and be satisfied. This excludes all existing lots that are currently zoned Rural on the Scheme map that are between 2,000 [square metres] to 4 hectares in area or any one or two lots created because of particular circumstances. (Emphasis supplied)
At [97], the Tribunal determined that the first exclusion in the second sentence of cl 5.4.2(c) of TPS 2 (existing lots that are currently zoned 'rural' on the Scheme map that are between 2,000 [square metres] to 4 hectares in area) 'refers to lots created previously', whereas the second exclusion (any one or two lots created because of particular circumstances) 'appears to relate to the future creation of one or two lots'. At [98], the Tribunal said:
The overall conclusion that the Tribunal draws is that although clause 5.4.2(c) was intended to deal with the future creation of ruralresidential lots in the rural zone, it does, in fact, open up the possibility of one or two lots being created into the future for other purposes.
In consequence of this conclusion, the Tribunal determined at [100] that:
… would be appropriate for the Commission, or this Tribunal, to approve the creation of one or two lots because of particular circumstances. Such a particular circumstance could include the creation of a light industrial use lot in the rural zone in the Shire and, as such, an approval would not breach s 138(2) of the PD Act.
The third matter of contention between the parties was whether the proposal is consistent with the other three principal elements of the planning framework, namely the Rural Strategy, SPP 2.5 and DC 3.4.
At [108], the Tribunal found that the proposed subdivision would be contrary to the intent of the Rural Strategy because 'it would be possible for the proposed [smaller lot] to be used for a farmlet or rural-residential lot sometime into the future'.
At [112] - [115], the Tribunal found that the proposed subdivision would be inconsistent with SPP 2.5 and DC 3.4, because it involves the ad hoc fragmentation of rural land.
The Tribunal considered and determined the issue of adverse planning precedent at [117] [119] of the reasons as follows:
From the perspective of the Tribunal, although each case should be judged on its merits, what is being sought here is a consolidation of an approved 3.2 hectare light industrial use on the subject land by way of a separate subdivision of that use.
From an examination of Table 1 of TPS 2, there are over 50 land uses (caravan park, consulting rooms, child minding centre, field depot, etc) that could be approved within the rural zone, subject to the Shire's discretion.
If each approved use was to be consolidated by way of subdivision, then such an outcome would be contrary to the intent of the Rural Strategy and State Policies [sic] SPP 2.5 and DC 3.4. This would inevitably lead to the eventual breakdown of the rural zone. (Emphasis in original)
Grounds for review
Mr Cornhill advanced the following three grounds for review:
Ground 1 That the Tribunal erred in law in its findings regarding the ability of [the proposed smaller lot] to be used for purposes other than the approved lightindustial use.
Ground 2 That the Tribunal erred in law in the interpretation of the relevant provisions of the [Rural Strategy], [DC 3.4] and [SPP 2.5], and therefore in the application of those policies to the proposed subdivision.
Ground 3 That the Tribunal erred in law in the manner in which it considered the issue of undesirable precedent, and its findings in that regard.
I will address each of these grounds for review in turn.
Did the Tribunal err in law in its findings about possible future use?
At [72] of the reasons, the Tribunal referred to the evidence of Mr Cornhill that his reason for seeking the subdivision is so that his son can continue the business and raise funds. Mr Cornhill contends that the Tribunal's findings at [75] - [78], referred to earlier, that the proposed smaller lot could be sold and used by others for a farmlet or rural/residential purpose, and at [108], that the proposal would be contrary to the intent of the Rural Strategy, are 'contrary to [his] uncontested evidence' about proposed future use.
However, this contention does not involve a question of law. As was said in Williams and Western Australian Planning Commission [2005] WASAT 10 at [17]:
Questions such as the adequacy of the evidence, the relative significance or weight to be given to the evidence, and appropriate findings to be made based on the evidence, are questions of fact, which are entirely within the province of the Senior Member to determine for himself, and do not ground any error of law [citations omitted].
Although it appears that the Tribunal accepted Mr Cornhill's evidence as to his reason for seeking subdivision approval, it was open to the Senior Sessional Member to find that farmlet or rural/residential use of the proposed smaller lot was possible in the future.
Mr Cornhill also contends that the Tribunal's findings fail to have regard to cl 5.1.1 of TPS 2 under which any change of use of the proposed smaller lot from light industry to farmlet or rural/residential use would require the Shire's approval.
However, it is apparent from [118] of the reasons that the Tribunal was aware that a change of use requires the Shire's approval under TPS 2. The Tribunal's findings contemplate the possibility of the approval by the Shire of a change of use to farmlet or rural/residential use once subdivision approval is granted.
Mr Cornhill's first ground for review fails.
Did the Tribunal err in law in its consideration of the planning framework?
Mr Cornhill contends that the Tribunal erred in law by not adopting the approach detailed in Ingram v Western Australian Planning Commission [2003] WASCA 77 (Ingram) at [43]:
… the [Town Planning] Appeal Tribunal was bound to consider, as a most relevant factor, whether, in effect, the subdivision of the land proposed by the appellants would result in the maintenance or loss of land having productive capacity for agricultural production.
This passage was quoted with approval by Le Miere J in Wilson v Western Australian Planning Commission [2007] WASC 39 at [26], which was also an appeal from a decision of the former Town Planning Appeal Tribunal.
The Commission contends that the Tribunal did not err as alleged, because the finding at [43] in Ingram 'pertained only to the particular circumstances of that matter'. The Commission also submits that the Tribunal was not required to consider or make findings on the issue of impact of the subdivision on the agricultural productivity of the site 'as the answer to this question was obvious'; the proposed smaller lot 'is currently under no productive agricultural use by virtue of the current industrial use in place' and 'the effect of the proposed subdivision, namely, to place the industrial use into a discrete lot, would not have an impact on the agricultural productivity of the subject land as a whole'.
Finally, the Commission contends that the failure to make an express finding that the agricultural productivity of the site would not be affected by the proposed subdivision was not an error of law, because the Tribunal noted Mr Cornhill's contention that the proposed subdivision does not reduce the capacity of the site to accommodate the full range of rural pursuits as the proposed smaller lot is not suitable for or capable of any use other than the existing light industrial use and the proposed larger lot will continue to be used for low level grazing.
I consider that the Tribunal erred in law by failing to take into account a relevant matter for consideration, namely, whether the proposed subdivision would result in the maintenance or loss of land having productive capacity for agricultural production. The planning framework considered in Ingram was substantially the same as the planning framework applicable in this case. The analysis in Ingram relating to the proper interpretation and application of the planning framework is therefore apposite in this case.
While the Commission's concession that the answer to the question of whether the proposed subdivision would result in the maintenance or loss of land having productive capacity for agricultural production is 'obvious' is properly made, the correct interpretation and application of the planning framework obligated the Tribunal to make a finding and to have regard to it in the exercise of planning discretion. While the Tribunal noted Mr Cornhill's position that the proposed subdivision would not result in the loss of land having productive capacity for agricultural production, because the proposed smaller lot did not currently have capacity for agricultural production and the proposed larger lot did and would continue to have that capacity, it is apparent from the Tribunal's analysis of orderly and proper planning that it failed to have regard to a most relevant factor.
Furthermore, while the Tribunal considered that the possibility of a future change of use of the proposed smaller lot from light industrial to farmlet or rural/residential was a relevant and ultimately determinative consideration, the fact that the proposed subdivision would not result in the loss of land having productive capacity for agricultural production should, logically, have overridden this consideration and avoided it from being a determinative one. This is because, as was said in Ingram at [30]:
In broad terms, it may be said that in the Rural Policy Area the Rural Strategy aims to maintain land that has a productive capacity for agricultural production as a resource. As a result, it does not envisage the subdivision of land within the Rural Policy Area for pursuits which would, in substance, comprise 'farmlets' or 'residences' or pursuits that are comprehended in other policy areas. In general terms, the Rural Policy Area envisages lot sizes that will not restrict 'full-time commercial agricultural pursuits'.
As found in Ingram at [34], the Rural Strategy, through the creation of such policy areas as the Rural Policy Area and the Farmlet Policy Area, has given effect to DC 3.4.
Had the Tribunal in this case given consideration to whether the proposed subdivision would result in the maintenance or loss of land having productive capacity for agricultural production, its assessment of this issue would have logically overridden its consideration that 'it would be possible for the proposed [smaller lot] to be used for a farmlet or rural/residential lot some time into the future and, in the view of the Tribunal, this would clearly be contrary to the intent of the Rural Strategy' (at [108]) and would involve the fragmentation of rural land, contrary to the intent of SPP 2.5 and DC 3.4 (at [112] and [115]). The reason why the planning framework is antipathetic to the creation of farmlets or residences in the Rural Policy Area is to give effect to its key aim to maintain land that has a productive capacity for agricultural production as a resource. In a case such as the present, where it is 'obvious' that the land does not have productive capacity for agricultural production as a resource, because of its historic, continuing and lawful use and configuration for light industrial purposes, the planning framework's antipathy to the possibility of farmlet or rural/residential use is not apposite, or at least not as apposite as envisaged by the Tribunal in this case. If the land does not have productive capacity for agricultural production as a resource, because of its light industrial use and character, the possibility that the use may ultimately change, with the Shire's consent to farmlet or rural/residential use, would not alter its consistency with the planning framework.
Mr Cornhill's second ground for review succeeds.
Commission's counter-contention: Did the Tribunal err in its interpretation of cl 5.4.2(c) of TPS 2?
It is convenient at this point to address what is in effect a notice of contention in the Commission's submissions that, even if Mr Cornhill's second ground for review is successful, the decision of the Tribunal should be affirmed on another ground.
The Commission contends that the Tribunal erred in law in its interpretation of cl 5.4.2(c) of TPS 2, because the second sentence of cl 5.4.2(c) 'clarifies and emphasises the operation of the first sentence', rather than providing two exceptions to the operation of the first sentence, as determined by the Tribunal at [97] and [98] of the reasons.
The Commission submits that its proposed interpretation of the second sentence of cl 5.4.2(c) is appropriate having regard to:
(a)the matters considered in the balance of the clause, namely characteristics of the parent lot that is sought to be subdivided;
(b)the use of the word 'created' in the second part of the second sentence which is in the past tense and plainly refers to an event which has already occurred, namely the creation of a parent lot; and
(c)the ordinary meaning conveyed by the wording of the provision in the context of TPS 2 as a whole.
Section 138(2) of the PD Act precludes the Commission and the Tribunal on review from giving a subdivision approval that conflicts with the provisions of a local planning scheme, unless any one of the seven exceptions set out in s 138(3) of the PD Act is established: Landpark Holdings Pty Ltd and Western Australian Planning Commission [2007] WASAT 130. The Commission contends that, as the proposed subdivision conflicts with cl 5.4.2(c) of TPS 2 on its proper interpretation, and as none of the exceptions provided for in s 138(3) of the PD Act apply, the Tribunal does not have power to approve the proposed subdivision.
The drafting of cl 5.4.2(c) of TPS 2 leaves much to be desired in terms of its clarity of expression. However, I consider that the Tribunal interpreted the effect of the second sentence of the clause correctly. Properly interpreted, the second sentence of cl 5.4.2(c) does not clarify and emphasise the operation of the first sentence, but rather prescribes a substantive exception to the operation of the first sentence that contemplates subdivision of land in circumstances which are different to those referred to in the first sentence.
The ordinary meaning conveyed by the words 'This excludes …' in the second sentence of cl 5.4.2(c) of TPS 2 is that the circumstances identified by the following words involve an exception or exceptions to the operation of the first sentence of the clause. In other words, the restriction of subdivision of rural land in the Shire to create lots of between 2,000 square metres and 4 hectares in area to land zoned either Special Rural (Rural Living A and B Rural Living) or Special Residential under TPS 2 and subject to cl 5.8, cl 5.9 and cl 5.12 of the Scheme, 'excludes' the circumstances envisaged in the second sentence. In the second sentence, the Scheme contemplates the approval of the subdivision of rural land in the Shire not referred to by the first sentence where the land:
•is currently zoned 'rural' under TPS 2 and has an area of between 2,000 square metres and 4 hectares; or
•is proposed to be subdivided into no more than two lots because of 'particular circumstances'.
The second of these circumstances does not identify any particular characteristics of the parent lot that is sought to be subdivided. Rather, it involves a consideration of the proposed post-subdivision lots by specifying a maximum of two lots and a requirement that the subdivision be because of particular circumstances.
The word 'created' in the second part of the second sentence, while often indicating the past tense of the verb 'to create', in the present planning context of forming part of an exception to the restriction of future subdivision to the circumstances envisaged in the first sentence, refers to the possibility of one or two lots being created into the future for other purposes (emphasis added).
Furthermore, the first part of the second sentence of cl 5.4.2(c) of TPS 2 contains textual indications suggesting that the second sentence does not clarify and emphasise the operation of the first sentence, but rather is a substantive provision that contemplates subdivision in circumstances different to those referred to in the first sentence.
If the second sentence were merely intended to clarify and emphasise the operation of the first sentence, it would simply refer to land that is currently zoned 'rural' under TPS 2, rather than lots zoned rural 'that are between 2,000 [square metres] to 4 hectares in area'. Furthermore, the nomination of the minimum and maximum areas indicates that the second sentence is not intended to clarify and emphasise, but rather to create an additional substantive provision, because all 'rural' zoned land is excluded from the first sentence, and not simply 'rural' zoned land between 2,000 square metres and 4 hectares in area. Finally, given the clear reference to only 'special rural' and 'special residential' zoning in the first sentence, there would seem to be no need for clarification and emphasis that 'rural' zoned land is not included in the first sentence. If the second sentence were for clarification and emphasis purposes the minimum area that would need to be specified in the second sentence is 4,000 square metres to enable two 2,000 square metres lots (which are the smallest lots contemplated by the first sentence) and the maximum area that should logically be referred to in the second sentence is 8 hectares, so as to permit two lots of the maximum 4 hectares contemplated by the first sentence.
It follows that the Commission's counter-contention fails. The Tribunal did not err in law in its interpretation of cl 5.4.2(c) of TPS 2.
The Tribunal found, at [100] of the reasons, that the Scheme contemplates the approval of the creation of one or two lots because of particular circumstances and that such a 'particular circumstance could include the creation of a light industrial use lot in the rural zone in the Shire'. I agree with the Tribunal's finding that the words 'particular circumstances' in cl 5.4.2(c) of TPS 2 include the present circumstances of a historic, continuing and lawful light industrial use in the rural zone under TPS 2. I therefore consider that approval of the proposed subdivision would not conflict with the provisions of TPS 2.
Did the Tribunal err in law in its consideration of adverse planning precedent?
In Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117 (Nicholls), the Tribunal referred, at [72] - [73], to two Western Australian cases, including Aspen Pty Ltd v State Planning Commission [1988] WATPAT 18, and the leading New South Wales decision of Goldin v Minister for Transport Administering the Ports Corporations and Waterways Management Act 1995 (2002) 121 LGERA 101 (Goldin), and, at [74], adopted the following criteria stated by Lloyd J in Goldin as to the circumstances in which precedent is a relevant consideration in a planning assessment:
(1)that the proposed development or subdivision is not in itself unobjectionable; and
(2)that there is more than a mere chance or possibility that there may be later undistinguishable applications.
In Nicholls at [75], the Tribunal stated that these criteria are consistent with Western Australian authority, including Aspen.
In the present matter, the Tribunal did not refer to Nicholls or the criteria adopted in that case. Nevertheless, the Tribunal found, in effect, that the proposed subdivision is 'not unobjectionable' in that it is contrary to orderly and proper planning. For reasons set out earlier, this finding was vitiated by an error of law.
Further, it does not appear from the reasons that the Tribunal considered, or at least properly considered, the second criterion for determining whether adverse planning precedent is relevant, namely that there is more than a mere chance or possibility that there may be later undistinguishable applications.
As noted earlier, the Tribunal, referred to over 50 land uses that could be approved in the rural zone, subject to the Shire's discretion. At [119], the Tribunal determined that if each approved use was to be consolidated by way of subdivision, then the outcome would be contrary to the intent of the Rural Strategy, SPP 2.5 and DC 3.4.
However, the Tribunal did not consider whether there is more than a mere chance or possibility that there may be later undistinguishable applications. The fact that other nonrural land uses may be approved in the exercise of discretion by the Shire established, at its highest, a mere chance or possibility of similar applications. It did not establish more than a mere chance or possibility of undistinguishable applications.
The Commission's evidence on this point was vague and largely speculative and consisted of the following:
The Shire's TPS 2 provides for in excess of 40 different nonrural and nonresidential land uses that are permitted or discretionary within the Rural zone, therefore it is likely that there are many lots within the Rural Policy Area with similar circumstances. Indeed, the Respondent currently has before it two applications which are very similar to the subject application currently awaiting the outcome of this application for review. (witness statement of Elizabeth Anne Johnson dated 1 July 2008 at [48] Exhibit 6.)
In order to determine that there is more than a mere chance or possibility that there may be later undistinguishable applications, it is necessary to identify specific sites which are relevantly subject to the same or substantially the same planning framework and have undistinguishable characteristics including in terms of current or approved land use. While the Commission raised the issue of adverse planning precedent, it did not present evidence sufficient to enable such a finding to be made.
Mr Cornhill's third ground for review succeeds.
What is the appropriate result in this case?
Mr Cornhill has succeeded in relation to his second and third grounds for review. The Tribunal erred in material respects in its determination of the proceedings which vitiated its decision in relation to each of the two principal planning issues it was required to consider.
Section 244(2) of the PD Act enables the judicial member upon review to revoke the determination and substitute another determination that the Tribunal could have made in relation to the matter. If appropriate, the matter could instead be remitted to the Tribunal, constituted by Senior Sessional Member Graham or by another member or members, for re-determination in accordance with these reasons.
In my view, it is unnecessary in the present case to remit the proceedings for re-determination. It is apparent from the discussion earlier in these reasons of the various grounds for review and the notice of contention that the proposed subdivision accords with orderly and proper planning, specifically having regard to the relevant statutory and policy provisions, and that adverse planning precedent is not a relevant consideration in this case.
As I determined earlier, the proposed subdivision is contemplated by cl 5.4.2(c) of TPS 2 and is, therefore, consistent with the Scheme. The proposed subdivision is also generally consistent with the Rural Strategy, SPP 2.5 and DC 3.4. Because the proposed smaller lot is lawfully used and configured for light industrial purposes and is physically separated by fencing and landscaping from the proposed larger lot, its formal severance from the remainder of the site does not involve the loss of land having productive capacity for agricultural production. Therefore, even if the use of the proposed smaller lot were to change in the future from light industry to farmlet or rural/residential, with the Shire's consent, the antipathy in the planning framework to farmlet or rural/residential use is not apposite, because the possible change of use would not affect the aim to maintain land that has productive capacity for agricultural production as a resource. Furthermore, the larger proposed lot has an area in excess of 40 hectares, which is the general minimum lot size for new subdivision contemplated by the Rural Strategy, and will continue to be put to low intensity grazing use.
The proposed subdivision would not result in the ad hoc fragmentation of rural land, contrary to the intention of the planning framework. The Scheme specifically contemplates subdivision to create one or two lots for particular purposes, including the severance of land lawfully used for light-industrial purposes. The site is already, in practical terms, fragmented by the historic, current and lawful use of the smaller lot for light industry. Finally, the division of the site by the severance of the smaller proposed lot is not 'ad hoc', given the subsisting development approval for a non-rural use on the land contained within the proposed smaller lot.
While, as noted earlier, both the Commission and the former Town Planning Appeal Tribunal refused to allow subdivision of the site in 2001, there are three important differences in the present circumstances.
First, the area of the proposed smaller lot in this case is restricted to the area of the historic, current and lawful use for light industry in accordance with the development approval. In contrast, the area of the proposed smaller lot in the earlier subdivision application was two and a half times the area of the proposed smaller lot in this case and included 4.8 hectares available for low intensity grazing.
Secondly, the area of the proposed larger lot in the earlier subdivision application was less than 40 hectares. In contrast, the area of the proposed larger lot in this application is 43.03 hectares.
Thirdly, while the light industrial use commenced in the mid-1980s, the earlier subdivision was refused by the Commission and the Town Planning Appeal Tribunal prior to the application for and granting of development consent to authorise the use. In contrast, development approval has since been granted for the existing use and the condition of approval requiring fencing and landscaping has been implemented.
Finally, adverse planning precedent is not a relevant consideration in this case, because the proposed subdivision is not objectionable and there is, at its highest, only a chance or possibility that there may be later similar applications.
In my opinion, therefore, the proposed subdivision warrants approval, subject to appropriate conditions.
In accordance with the Tribunal's usual practice, the Commission filed a set of without prejudice, draft conditions of subdivision approval to be imposed in the event that subdivision approval is granted. Mr Cornhill objected to three of the proposed 11 conditions, namely, conditions 4, 5 and 8. As it is unclear whether these objections were resolved between the parties, it is appropriate to allow the parties to file submissions in relation to any conditions remaining in dispute.
Conclusion
The application for review of the Tribunal's determination to refuse to grant subdivision approval should be allowed and a determination should be substituted that subdivision approval is granted subject to conditions to be determined on the basis of the parties' further written submissions.
Orders
I make the following orders:
1.The application for review is allowed and the determination of the Tribunal in Cornhill and Western Australian Planning Commission [2008] WASAT 208 on 11 September 2008 to refuse subdivision approval for the subdivision of Lot 394 Jarrah Road, Hopelands into two lots of 3.2 hectares and 43.0313 hectares is set aside.
2.Subdivision approval is granted for the subdivision of Lot 394 Jarrah Road, Hopelands into two lots of 3.2 hectares and 43.0313 hectares subject to conditions to be determined by another judicial member nominated by the President entirely on the basis of the parties' submissions and without an oral hearing.
3.For the purposes of s 145 of the Planning and Development Act 2005 (WA), the 'prescribed period' shall commence on the publication of the judicial member's determination in relation to the conditions subject to which subdivision approval is granted.
4.By 30 January 2009, the applicant must file with the Tribunal and give to the respondent a statement setting out the respondent's without prejudice draft conditions as amended in its document dated and filed on 11 July 2008, identifying any condition that is objected to by the applicant and containing submissions in support of any objection.
5.In the event that the applicant objects to any of the respondent's without prejudice draft conditions, the respondent must file and provide to the applicant its submissions in relation to any disputed condition by 13 February 2009.
6.By 20 February 2009, the applicant may file with the Tribunal and give to the respondent any submissions in reply.
I certify that this and the preceding [79] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE M L BARKER, PRESIDENT
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