Cornhill and Western Australian Planning Commission
[2008] WASAT 208
•11 SEPTEMBER 2008
CORNHILL and WESTERN AUSTRALIAN PLANNING COMMISSION [2008] WASAT 208
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 208 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:94/2008 | 10 JULY 2008 | |
| Coram: | MR L GRAHAM (SENIOR SESSIONAL MEMBER) | 11/09/08 | |
| 25 | Judgment Part: | 1 of 1 | |
| Result: | Application for review dismissed | ||
| B | |||
| PDF Version |
| Parties: | MICHAEL CORNHILL WESTERN AUSTRALIAN PLANNING COMMISSION |
Catchwords: | Town planning Application for subdivision to consolidate light industrial use Orderly and proper planning Undesirable precedent Fragmentation of rural land The distinction between 'use' and 'subdivision' |
Legislation: | Interpretation Act 1984 (WA), s 32(1), s 32(2) Metropolitan Region Scheme Planning and Development Act 2005 (WA), s 138, s 251(1) Shire of Serpentine-Jarrahdale Town Planning Scheme No 2, cl 3.2.2, cl 5.4.2(c), cl 5.10.1, cl 5.10.3(c), cl 5.11, Table 1 |
Case References: | Aspen Pty Ltd v State Planning Commission (Unreported; Appeal No 13 of 1988, 21 October 1988) Cornhill and Western Australian Planning Commission [2001] WATPAT 20 |
Orders | The application for review is dismissed |
Summary | The application for review was lodged against a decision of the Western Australian Planning Commission to refuse an application for subdivision of a 46.2313 hectare rural zoned property at Lot 394 Jarrah Road, Hopelands, into two lots of 3.2 hectares and 43.0313 hectares. The smaller of the proposed lots contains an existing light industrial use.,In undertaking this review, the State Administrative Tribunal examined the respective arguments of the parties, the background to the proposal, the relevant legislative and policy provisions and matters of orderly and proper planning and precedent. A previous decision of the former Town Planning Appeal Tribunal with respect to the subject land was also examined.,The State Administrative Tribunal determined that to support the consolidation of an existing non-rural use, for no public benefit, on part only of a rural property by way of a separate lot for that non-rural use would be contrary to orderly and proper planning as enunciated in the Rural Strategy and relevant State policy documents.,The State Administrative Tribunal also determined that to uphold the application for review would establish an undesirable precedent which could lead to the eventual fragmentation of the rural zone and loss of rural character within the Rural Policy Area of the Shire of Serpentine-Jarrahdale.,The application for review was dismissed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : CORNHILL and WESTERN AUSTRALIAN PLANNING COMMISSION [2008] WASAT 208 MEMBER : MR L GRAHAM (SENIOR SESSIONAL MEMBER) HEARD : 10 JULY 2008 DELIVERED : 11 SEPTEMBER 2008 FILE NO/S : DR 94 of 2008 BETWEEN : MICHAEL CORNHILL
- Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Town planning - Application for subdivision to consolidate light industrial use - Orderly and proper planning - Undesirable precedent - Fragmentation of rural land - The distinction between 'use' and 'subdivision'
Legislation:
Interpretation Act 1984 (WA), s 32(1), s 32(2)
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 138, s 251(1)
Shire of Serpentine-Jarrahdale Town Planning Scheme No 2, cl 3.2.2, cl 5.4.2(c), cl 5.10.1, cl 5.10.3(c), cl 5.11, Table 1
(Page 2)
Result:
Application for review dismissed
Category: B
Representation:
Counsel:
Applicant : Mr JCW Skinner
Respondent : Ms MJ Paterson
Solicitors:
Applicant : Jackson McDonald
Respondent : State Solicitor's Office
Case(s) referred to in decision(s):
Aspen Pty Ltd v State Planning Commission (Unreported; Appeal No 13 of 1988, 21 October 1988)
Cornhill and Western Australian Planning Commission [2001] WATPAT 20
(Page 3)
Summary of Tribunal's decision
1 The application for review was lodged against a decision of the Western Australian Planning Commission to refuse an application for subdivision of a 46.2313 hectare rural zoned property at Lot 394 Jarrah Road, Hopelands, into two lots of 3.2 hectares and 43.0313 hectares. The smaller of the proposed lots contains an existing light industrial use.
2 In undertaking this review, the State Administrative Tribunal examined the respective arguments of the parties, the background to the proposal, the relevant legislative and policy provisions and matters of orderly and proper planning and precedent. A previous decision of the former Town Planning Appeal Tribunal with respect to the subject land was also examined.
3 The State Administrative Tribunal determined that to support the consolidation of an existing non-rural use, for no public benefit, on part only of a rural property by way of a separate lot for that non-rural use would be contrary to orderly and proper planning as enunciated in the Rural Strategy and relevant State policy documents.
4 The State Administrative Tribunal also determined that to uphold the application for review would establish an undesirable precedent which could lead to the eventual fragmentation of the rural zone and loss of rural character within the Rural Policy Area of the Shire of Serpentine-Jarrahdale.
5 The application for review was dismissed.
Introduction
6 The application for review, dated 17 March 2008, was lodged with the State Administrative Tribunal (Tribunal) by Mr Alan Marsh of AJ Marsh Pty Ltd on behalf of Mr Michael Cornhill (applicant) against a decision of the Western Australian Planning Commission (respondent, or Commission) on 18 February 2008 to refuse the subdivision of Lot 394 Jarrah Road, Hopelands, in the Shire of Serpentine-Jarrahdale (Shire) into two lots of 3.2 hectares and 43.0313 hectares.
7 The application was made under the provisions of s 251(1) of the Planning and Development Act 2005 (WA) (PD Act).
(Page 4)
8 The reasons for refusal were:
1. The land is identified as Rural in the Metropolitan Region Scheme and the Shire of Serpentine-Jarrahdale Town Planning Scheme No. 2 where the ad hoc subdivision of land that will adversely impact on the rural character and amenity is not supported.
2. Subdivision of this land would be contrary to the Rural Strategy for the Shire of Serpentine - Jarrahdale, which recommends a minimum lot size of 40ha to protect the rural character and amenity of the area and use of land for productive agricultural activity within the area designated as 'Rural Policy Area'.
3. There is no vector of subdivision/development for the creation of a 3.2 hectare lot which reflects an arbitrary size for the locality and property with no justification against the planning objectives referred to in reasons 1 and 2.
4. Capability and suitability of the land to sustain closer development has not been demonstrated.
5. The Commission is unable to approve the proposed subdivision as an approval would contravene Section 138 (2) of the Planning and Development Act 2005.
Section 138 (2) stipulates that subject to subsection (3), in giving its approval under Section 135 or 136, the Commission is to have regard to the provisions of any local planning scheme that applies to the land under consideration and is not to give an approval that conflicts with the provisions of a local planning scheme.
The proposed subdivision conflicts with the provisions of the Shire of Serpentine and Jarrahdale Town Planning Scheme No. 2. In this regard the land is zoned 'Rural'.
6. Approval to the subdivision would set an undesirable precedent for the further subdivision of surrounding lots.
Subject land
9 The subject land can be described as Lot 394 Jarrah Road, Hopelands, on Deposited Plan 202726, Volume 2104, Folio 216. It has an area of 46.2313 hectares with a frontage to an unsealed Jarrah Road of 886.87 metres, a rear boundary of 683.97 metres, a western side boundary of 959.53 metres and an eastern side boundary of 395.01 metres.
10 The site is relatively flat and there are three dwellings positioned well apart towards Jarrah Road. The westernmost dwelling is used as a caretaker's residence and office for an associated light industrial use.
(Page 5)
- There are several large sheds in close proximity used for the construction and storage of prefabricated sheds, dwellings and other buildings, and the storage and maintenance of vehicles, machinery and equipment.
11 There is an existing north-south easement containing a high voltage power line some 100 metres wide along the western boundary of the subject land which, apart from a 3.2 hectare area for light industrial use, is mainly used for grazing purposes. There are some significant stands of trees on the property, but it is generally open in nature.
Legislative and policy framework
12 The subject land is zoned 'rural' in the Metropolitan Region Scheme (MRS) and 'rural' in the Shire of Serpentine-Jarrahdale Town Planning Scheme No 2 (Scheme or TPS 2).
13 Of relevance in this matter are:
(a) Shire of Serpentine-Jarrahdale Rural Strategy (Rural Strategy);
(b) Western Australian Planning Commission - Statement of Planning Policy No 2.5 (Agricultural and Rural Land Use Planning) (SPP 2.5); and
(c) Western Australian Planning Commission - Development Control Policy 3.4 (Subdivision of Rural Land) (DC 3.4).
Respondent's position
14 The position of the respondent is outlined in its Statement of Issues, Facts and Contentions dated 7 May 2008. The respondent contends:
(a) The proposed subdivision is not consistent with the purpose and intent of the 'rural' zoning in TPS 2 in that the proposed Lot 1 (3.2 hectares) is too small to accommodate the full range of rural pursuits and associated activities.
(b) Clause 5.4.2(c) of TPS 2 precludes the subdivision of rural land into lots of 2,000 square metres to 4 hectares unless the rural land is appropriately zoned (eg Special Rural) or the lots were created because of 'particular circumstances'.
(Page 6)
- (c) The land is zoned 'rural' and there is nothing to indicate that the subject land was created because of 'particular circumstances'.
(d) Under s 138(2) of the PD Act, approval is not to be given to a proposal that conflicts with the provisions of a local planning scheme unless the criteria listed under s 138(3) apply. None of the criteria apply in this case.
(e) The fact that there are three dwellings on the subject land does not constitute sufficient grounds for subdivision pursuant to cl 5.10.3(c) of TPS 2.
(f) The Rural Strategy has been prepared in accordance with cl 3.1 of DC 3.4 and cl 5.1 of SPP 2.5. It should be afforded considerable weight as it has been consistently applied in the assessment and determination of subdivision applications within the Shire by the respondent.
(g) The proposed subdivision is not consistent with the objectives of the Rural Strategy, in that the proposed Lot 1 is below 40 hectares as specified for the Rural Policy Area.
(h) Clause 1 of DC 3.4 advises that the respondent will have due regard to the provisions of the local planning scheme and any endorsed local planning strategy or local rural strategy applying to the land.
(i) The proposed subdivision is not inconsistent with TPS 2 and the Rural Strategy. There is a general presumption against subdivision as set out in cl 3.1 of DC 3.4.
(j) The light industrial use contained within proposed Lot 1 is not a specific non-rural land use, or ancillary to the rural use, and, as such, cannot be considered under cl 4.4 of DC 3.4.
(k) An undesirable precedent will be created by the proposed subdivision considering that there are approximately 139 lots within the Rural Policy Area (RPA) that are more than 40 hectares in size. These could be subdivided in a similar way and the proliferation of additional lots
- within the RPA will constrain future comprehensive planning.
- (l) Approval of the subdivision would undermine local and regional planning strategies which identify a rural buffer of larger lots for agricultural pursuits separated by Rural Living and Farmlet Policy areas from smaller lots in close proximity to the Byford, Mundijong and Serpentine townsites.
Applicant's position
15 The position of the applicant is outlined in the Applicant's Response to Statement of Issues, Facts and Contentions of May 2008. The applicant contends:
(a) The proposed subdivision is consistent with the purpose and intent of the 'rural' zoning of the subject land.
(b) The proposed subdivision does not reduce the capacity of the subject land to accommodate the full range of rural pursuits and associated activities because:
(i) the whole of that part of the land which is used for low level grazing will continue unaffected as proposed Lot 2;
(ii) that part of the land which has a planning approval for a light industrial use (proposed Lot 1) is not suitable for, or capable of, any use other than the existing light industrial use; and
(iii) the formal separation of that part of the subject land that has planning approval (proposed Lot 1) from the remainder (proposed Lot 2) does enhance the capacity of the remainder to continue to accommodate its existing rural use.
(c) The provisions of cl 5.4.2(c) of TPS 2 relate to variations and exclusions of the Residential Design Codes of Western Australia (2002) and the subdivision of rural land for residential purposes. They are not applicable to the present case, as the proposed subdivision is not for residential purposes.
(Page 8)
- (d) Further, or alternatively, the provisions of cl 5.4.2(c) preclude subdivision of rural land for lots ranging in area from 2,000 square metres to 4 hectares and expressly exclude 'any one or two lots created because of particular circumstances'. In the present case, the planning approval for the 3.2 hectares (proposed Lot 1) constitutes 'particular circumstances' for the creation of proposed Lot 1.
(e) The criteria listed in s 138(3) of the PD Act to allow a proposal apply in this case as the proposed subdivision is consistent with the objectives and provision of SPP 2.5, DC 3.4 and the Rural Strategy and the general intent of TPS 2.
(f) The proposed subdivision does not involve the fragmentation of land for farmlet or residential development.
(g) As the proposed subdivision is consistent with TPS 2 and the Rural Strategy, it falls outside the general presumption against subdivision as specified in cl 3.1 of DC 3.4.
(h) The proposed subdivision does not result in the fragmentation of rural land as specified in cl 4.1 of DC 3.4, as the whole of that part of the subject land suitable for rural use, and currently used for low-level grazing, will continue.
(i) Alternatively, for the same reasons specified in (g) and (h) above, the present case falls within the circumstances described in cl 4.1(f) of DC 3.4 which acknowledges 'are not fragmentation, do not result in the loss of rural character and may be permitted.'
(j) The circumstances of the proposed subdivision fall within the scope of cl 4.3 or cl 4.4 of DC 3.4
(k) The proposed subdivision does not conflict with any of the key objectives set out in cl 4 of SPP 2.5, and is not for the purposes of rural-residential or rural-smallholdings as defined in SPP 2.5
(Page 9)
- (l) The proposal will not result in an undesirable precedent as there is no suggestion that the 139 other lots referred to in [14(k)] above have circumstances similar to the subject land, and thereby result in a 'proliferation of additional lots'.
(m) The proposed subdivision will not undermine local and regional planning strategies.
Planning issues
16 The principal planning issues are:
(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 in the Rural Policy Area?
Assessment of the proposal
Background
17 According to the planning officer's report to Council of 1 February 2002 (Exhibit No 5), the applicant began developing a small 3.2 hectare section of the property as a light industrial business in the mid 1980s. Building licences were issued for residences, sheds, a workshop and toilet block.
18 In order to legitimise the 3.2 hectare light industrial use by way of a planning approval, a development application was lodged with Council on 28 December 2001. It was approved on 21 February 2002 subject to a number of conditions including:
13. The applicant is to provide an independent certification that land will be suitable for any use or development appropriate with the zone at permanent cessation or change of ownership and would not present any adverse impact to the environment or human health.
19 Attached to the approval was an Advice Note which stated:
1. This approval does not indicate that Council would support subdividing off of this section of land from Lot 394 Jarrah Road.
(Page 10)
20 Previously, in February 2001, the applicant had applied to the Commission for approval to subdivide the property into two lots of about 8 hectares and 38 hectares. The application to subdivide was refused.
21 An appeal was lodged with the then Town Planning Appeal Tribunal (TPAT) but dismissed on 21 September 2001.
22 An application for approval to commence development beyond the 3.2 hectares was lodged with Council on 28 May 2003. The application was refused on 22 December 2003 on the grounds that:
1. The light industrial use can be adequately contained within the existing approval area of 3.2 hectares.
23 On 29 June 2007, the applicant sought an approval from the Commission for the subdivision of the subject land into two lots of 3.2 hectares and 43.0313 hectares. The 3.2 hectares (proposed Lot 1) has a frontage to Jarrah Road of 270 metres, a rear boundary of 140 metres and side boundaries of 210 metres and 150 metres.
24 On 18 February 2008, the respondent refused the proposed subdivision.
25 On 17 March 2008, an application for review was lodged with the Tribunal.
Legislative and policy provisions
Shire of Serpentine-Jarrahdale Town Planning Scheme No 2
26 The subject land is zoned 'rural' under the Scheme and there is no minimum lot size specified.
27 The purpose and intent of the rural zone is specified in cl 5.10.1:
The purpose and intent of the Rural zone is to allocate land to accommodate the full range of rural pursuits and associated activities conducted in the Scheme Area.
28 Under the Zoning Table (Table 1), there are a range of rural pursuits specified and these include 'light industry' as an 'SA' use. This category is explained under cl 3.2.2:
'SA' means that the Council may, at its discretion, permit the use after notice of the application has been given in accordance with Clause 6.3.
(Page 11)
29 The interpretation that the Tribunal places on cl 5.10.1 and Table 1 is that, subject to notification, a light industrial use could be permitted in the rural zone. This is precisely what occurred with the Council approval of 21 February 2002.
30 Under cl 5.4.2(c), which falls under the heading 'Residential Planning Codes - Variations and Exclusions', it states:
The subdivision of rural land in the Shire for lots ranging in area from 2000 [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 2000 [square metres] to 4 hectares in area or any one or two lots created because of particular circumstances.
31 It is the precise meaning of the end of the last sentence of cl 5.4.2(c) that is at issue between the parties.
Shire of Serpentine-Jarrahdale Rural Strategy
32 As advised in the witness statement, dated 1 July 2008, of Ms Elizabeth Anne Johnson, a senior planning officer at the Department for Planning Infrastructure:
The Strategy is a broad statement of strategic land use and intent for the district, to be used for the purpose of guiding subdivision and development ... The Strategy was endorsed by the Shire and the Respondent in 1994. It was subsequently reviewed by the Shire and endorsed by the Respondent in 1996 and 2003.
33 Under the heading 'The Rural Strategy in a nutshell', the document advises at page 4:
Another primary concern of the Rural Strategy is to plan for the wise use and management of land in rural areas … It also seeks to protect the rural character of the Shire and the rural lifestyle of its community …
34 As the subject land falls within the 'Rural Policy Area' (RPA), the Overview of the RPA at page 42 is relevant. It states:
… It provides for a mosaic of agricultural uses but does not offer the protection for agriculture embodied in the Agriculture Protected Policy Area … The protection of rural lifestyle, of agricultural production, and rural character are very significant, but not necessarily over-riding objectives in the use and development of land.
(Page 12)
35 The policy objectives of the RPA at page 42 are:
R1 To retain and maintain the productive capacity of land and agricultural enterprise in close proximity to Perth and its markets;
R2 To encourage, provide opportunities for, and control over, a mosaic of productive agricultural land uses;
R3 to adopt pro-active and co-operative approaches with landowners and the wider community to address catchment management and land degradation problems;
R4 To promote the objectives of the Environmental Repair Overlay in the Rural Policy Area;
R5 To otherwise prevent the further fragmentation of land for farmlet development in the Policy Area.
36 In the witness statement, dated 30 June 2008, of Mr Sean Fairfoul, a qualified town planner and Associate at Greg Rowe and Associates, he argues at his [76]:
The proposed subdivision would not be in contravention of any of the above objectives.
37 However, the view of Ms Johnson at her [30] is that:
… the application does not comply with the provisions, objectives or intentions of the Strategy.
38 On the matter of lot size, the Strategy advises at page 43:
• A range of lot sizes above 40 hectares is supported. The recommended minimum lot size for new subdivision is 40 hectares.
39 The reasoning behind the 40 hectare minima is explained under 'Lot Sizes' for the RPA at page 42:
The Rural Policy Area is largely already subdivided at or below that for sustainable agricultural production … However, the subdivision of new lots is not supported below a minimum lot size of 40 hectares … This is not set as a minimum viable lot size for agriculture … Rather, it is intended as a disincentive to subdivision for farmlets or residences …
40 The position of the applicant on lot size is that the existing planning approval for a light industrial use supports the formal separation of the 3.2 hectare area from the remainder of the land which would, at 43.03 hectares, remain above the 40 hectare minima.
(Page 13)
41 The position of the respondent on lot size is that the proposed 3.2 hectare lot would be contrary to both TPS 2 and the Rural Strategy. Also, that it would create a de facto Rural Living lot by virtue of its size and that it could be used as a so-called 'commuter' lot with a resident(s) commuting from home to work.
Planning and Development Act 2005 (WA)
42 Of relevance between the parties are the provisions of s 138:
(1) The Commission may give its approval under section 135 or 136 subject to conditions which are to be carried out before the approval becomes effective.
(2) Subject to subsection (3), in giving its approval under section 135 or 136[,] the Commission is to have due regard to the provisions of any local planning scheme that applies to the land under consideration and is not to give an approval that conflicts with the provisions of a local planning scheme …
(3) The Commission may give an approval under section 135 or 136 that conflicts with the provisions of a local planning scheme if:-
…
(c) in the opinion of the Commission -
(i) the conflict is of a minor nature; or
(ii) the approval is consistent with the general intent of the local planning scheme; …
Statement of Planning Policy 2.5
44 The SPP 2.5 applies to all rural land in Western Australia and is to be read in conjunction with DC 3.4.
45 The Policy contains four key objectives in cl 4, including:
1. Protect agricultural land resources wherever possible by -
(a) discouraging land uses unrelated to agriculture from locating on agricultural land;
- (b) minimising the ad hoc fragmentation of rural land;
…
46 Under cl 5 (Policy Measures), subclause 5.1 - the requirements for local planning strategies - includes:
(i) Local planning strategies should -
…
(e) develop subdivision and development criteria for the identified agricultural, tourist and closer settlement areas;
…
The Commission will only support subdivision for Rural-Residential and Rural Smallholdings where the land has been appropriately zoned within the town planning scheme and the provisions of Policy No DC 3.4 (2001) Clause 6 can be complied with.
48 Under cl 6.2.1, the Policy states that the Commission will:
• Determine applications for subdivision consistent with the objectives of this policy.
49 The position taken by the applicant is that, as the proposed subdivision is for an existing light industrial use, it is not for either rural-residential or rural-smallholding purposes.
50 The position of the respondent is that it will only determine applications for subdivision which are consistent with the objectives of the policy.
Development Control Policy 3.4
51 The general policy requirement in cl 3.1 states:
It is WAPC policy that the subdivision of rural and agricultural land for closer settlement (rural-residential and rural-smallholdings) and more intensive agricultural uses should be properly planned through the preparation of regional and local planning strategies and provided for in local planning schemes prior to subdivision.
52 Clause 4.1 deals with the retention of rural character:
(Page 15)
- It is WAPC policy that, in the absence of the planned provision for closer settlement and more intensive agricultural uses, existing large rural lots be retained for broadacre and traditional forms of farming[,] and that the fragmentation of rural land and loss of rural character through piecemeal, unplanned subdivision not be permitted.
The following forms of subdivision are not fragmentation, do not result in loss of rural character and may be permitted:
…
(f) For other unusual or unanticipated purposes which, in the opinion of the WAPC, do not conflict with policy and are necessary in the public interest.
53 Under cl 4.3 (Significant physical division), the Policy states:
The existing physical division of a lot by a significant natural or constructed feature may be formalised through subdivision. A significant physical division generally does not include rural roads or creeks that are commonly crossed for farm management purposes.
54 Under cl 4.4 (Public utilities and ancillary uses), the Policy states:
New lots for existing or proposed specific non-rural land uses such as recreation facilities, public utilities and quarries or uses ancillary to the rural use of the land such as abattoirs and canning works may be created through subdivision.
55 The position taken by the applicant is that the case falls within the circumstances described in cl 4.1(f) and either cl 4.3 or cl 4.4.
56 The position of the respondent, as argued in the witness statement of Ms Johnson at her [44], is:
(a) The application is for the personal benefit of the applicant and is not in the public interest. Clause 4.1(f) [of DC 3.4] does not apply.
(b) The trees planted to screen the light industrial use do not represent a significant physical division. Clause 4.3 [of DC 3.4] does not apply.
(c) The applicant's business caters for demand from Pinjarra to Karratha and is not ancillary to the rural use of the land. Clause 4.4 [of DC 3.4] does not apply.
(Page 16)
The matter of orderly and proper planning
57 This matter is best addressed by assessing the proposal against the relevant provisions of both the statutory and policy documents.
58 The position of the applicant is that the proposed subdivision is consistent with the purpose and intent of the 'rural' zoning in the Scheme and the Rural Strategy and the relevant provisions of the policy documents. The respondent differs on all these aspects.
59 Of particular importance between the parties is the interpretation to be placed on cl 5.4.2(c) of the Scheme.
The matter of precedent
60 This matter is addressed by the respondent in [14(k)] and [14(l)] above, and by the applicant in [15(l)] and [15(m)] above.
61 In the witness statement of Ms Johnson at her [48] and [49], she argues:
(a) there are in excess of 40 different non-rural and non-residential land uses that are permitted, or are discretionary, within the rural zone and it is likely that there are many lots within the Rural Policy Area with similar circumstances to the subject land; and
(b) the application, if approved, will undermine the endorsed Rural Strategy and open up large tracts of rural land to the pressure of subdivision. It would be possible for all existing and future businesses to be excised from rural portions of landholdings, which is contrary to SPP 2.5, DC 3.4 and the Strategy.
62 In the witness statement of Mr Fairfoul at his [116] - [118], he argues:
(a) given the nature of the light industrial use on the subject land, it is unlikely that the surrounding sites (currently occupied by rural pursuits) would be subdivided in a similar manner;
(b) as there does not appear to be another site nearby which shares closely similar characteristics to the subject land, the potential for subdivision is unlikely.
(Page 17)
63 The matter of precedent was addressed in Aspen Pty Ltd v State Planning Commission (Unreported; Appeal No 13 of 1988, 21 October 1988) (Aspen) wherein it was explained that precedent is not to be treated as a 'stand alone' argument and is but one factor to be taken into account in reaching a decision.
64 The approach adopted by Aspen will be continued in this review.
The previous Tribunal decision
65 On 21 September 2001, the then TPAT handed down its decision in Cornhill and Western Australian Planning Commission [2001] WATPAT 20 in relation to the subject land.
66 The Tribunal dismissed the appeal, which sought the subdivision of the subject land into two lots of 38.08 hectares and 8.24 hectares, for the following broad reasons:
(a) The only basis for an approval would be if the use was for the betterment of the public as a whole, such as a dairy.
(b) The Tribunal was not satisfied that the light industry carried on was for the public benefit.
(c) The only benefit is personal to the applicant and, although legitimate in advancing the appellant's interests, was not to the long-term benefit or aspirations of the community and could not outweigh a coherent Rural Strategy that stood against subdivision by excision.
Conclusions
67 The application for review was lodged against a decision of the Commission to refuse an application for subdivision of a 46.2313 hectare rural zoned property at Lot 394 Jarrah Road, Hopelands, into two lots of 3.2 hectares (proposed Lot 1) and 43.0313 hectares (proposed Lot 2).
68 In undertaking this review, the Tribunal examined the respective position of the parties, the background to the proposal, the relevant legislative and policy provisions, and matters of orderly and proper planning and precedent. A previous decision of the former TPAT, delivered on 21 September 2001 in relation to the subject land, was also examined.
(Page 18)
69 In examining this matter, the Tribunal had before it a situation where the applicant, operating as Cornhill Building & Fabrication Pty Ltd, was granted approval on 21 February 2002 by the Shire to conduct a light industrial use on proposed Lot 1 located towards the north-west corner of the subject land.
70 There is a residence and several large sheds located on the 3.2 hectares. The area is fenced and defined by some extensive tree planting.
71 A matter of contention between the parties was the likely long-term use of proposed Lot 1.
72 The Tribunal was assisted in this matter in the following exchange between Senior Sessional Member Graham and the applicant.
Mr Graham:
… Could you just explain why you are seeking the subdivision?
Mr Cornhill:
Well, mainly so that my son can continue the business and raise funds because I'm 65 now and I just want to retire and give him the business …
The evidence and the commonsense would suggest that this land is going to continue to be used for this [light industrial] purpose for the foreseeable future.
74 However, in her closing statement, Ms Paterson, Counsel for the respondent, advised:
… but if the subdivision is approved, there would be nothing to prevent the lot being used for a farmlet or, if we take the view that because it's just under that four hectares, a rural residential purpose … in any event, sheds can be removed.
75 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.
(Page 19)
76 Such a circumstance appears to be contemplated in condition 13 at [18] above where the current planning approval was granted by the Shire on 21 February 2002.
77 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 sometime into the future. The Tribunal supports the respondent on this point.
78 A further point of contention between the parties is whether the proposed subdivision is consistent with the purpose and intent of the rural zone in TPS 2.
79 Any analysis requires a distinction to be made between 'use' and 'subdivision'.
80 The 'use' of the land is addressed in the Scheme, whereby the Shire, at its discretion, is able to approve a light industrial use in the rural zone. This is exactly what happened with the planning approval of 21 February 2002.
81 However, the important question now is whether the Scheme provides for the consolidation of a 'use' as it were, by means of 'subdivision'. The parties are at odds on this point and led the Tribunal to cl 5.4.2(c) of TPS 2.
82 The position of the applicant is summarised in the Applicant's Outline of Submissions dated July 2008. It says:
16. As to cl 5.4.2(c) of TPS 2, relied upon by the Respondent, cl 5.4.2(c) is part of a clause dealing with variations and exclusions to the Residential Planning Codes and relates to the subdivision of rural land for rural-residential purposes … As such, cl 5.4.2(c) is not applicable to the present case, as the Proposed Subdivision is not for any rural-residential purpose.
17. Further or alternatively, cl 5.4.2(c) expressly excludes from its operation 'any one or two lots created because of particular circumstances'. The history of use of the Subject Land, including the Planning Approval, constitute 'particular circumstances' for the creation of one lot (the proposed Lot 1) with an area of 3.2 hectares. The proposed Lot 1 is therefore consistent with the provisions of cl 5.4.2(c) of TPS 2.
83 In closing, Mr Skinner elaborated further:
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- If we need to go any further than that, Sir, we say that there is the express exclusion in clause 5.4.2(c), and when one reads that in its ordinary and natural meaning, we say that it is clear that it must be referring to the prospective creation of lots … It's talking about the future subdivision of land …
84 The position of the respondent is that cl 5.4.2(c) applies to rural land generally and is not limited or constrained by the heading 'Residential Planning Codes - Variations and Exclusions'.
85 The respondent relies on s 32(2) of the Interpretation Act 1984 (WA) (Interpretation Act) which states:
A marginal note or footnote to a written law and, in a context where there is no marginal note with respect to the relevant provision and notwithstanding subsection (1), a heading to a section, regulation, rule, local law, by-law, or clause of a written law, or to a portion of a section, regulation, rule, local law, by-law or clause of a written law, shall be taken not to be part of the written law.
86 In closing, Ms Paterson summarises:
So we say that the heading should not be taken into account in interpreting the clause.
87 The position of the applicant on this point is that cl 5.4.2(c) is limited and constrained by the heading 'Residential Planning Codes - Variations and Exclusions' as outlined in s 32(1) of the Interpretation Act:
The headings of the Parts, divisions and subdivisions into which a written law is divided form part of the written law.
88 In advancing her arguments on the operation of cl 5.4.2(c), Ms Paterson advised in closing:
It seems to be accepted that the proposed subdivision is contrary to the general prohibition that is set out in the first sentence of the clause, in that the land is not appropriately zoned in the terms specified by that clause.
The first exception is not relevant. Then we come to the 'particular circumstances' exception. The respondent says that the 'particular circumstances' exception relates to the 'parent' lot and, as I explained in opening, we say that for two reasons: first, the rest of the clause in the general prohibition and the first exception deal with the parent lot, deal with the characteristics of the parent lot, deal with its zoning and - in respect of the first exception - the zoning as well as its size. So we say consistently with that the second exception should be read as applying to the parent lot; second, we say that 'created' is in the past tense and ought to be read as such, in accordance with its ordinary meaning. This is a simple
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- application of the general rule that the words of a statute should be given their ordinary grammatical, literal meaning unless that would lead to some absurdity or to some repugnance or inconsistency with the rest of the statute.
89 The Tribunal was led by the parties to an officer's report from the then Department of Planning and Urban Development, dated 7 April 1993, dealing with an Amendment 29 to TPS 2 titled 'Text Amendment to clarify the application of the R Codes in respect of Rural land'. The report says, at [2]:
The Amendment will clarify the intent of Clause 5.4.2 of the Scheme that subdivision for rural-residential development shall only occur on land zoned either Special Rural or Special Residential under the Scheme …
90 At [7], the officer's report says:
The basis for the proposed alterations stems from suggestion in the independent opinion and one of the submissions received that Council will no longer be able to support the creation of 'one-off' lots, within the 2000 [square metres] to 4 hectare range for Special Use purposes. Amendment No 29 will require all such lots to be rezoned to Special Rural or Special Residential, which may not be appropriate for particular land uses. Furthermore, the comments indicate that Council should retain its discretion to support Special Uses and retain the flexibility to recommend approval to individual lots in Rural Zones for specific purposes. The modified Amendment is, in Council's opinion, better geared towards achieving this. (Emphasis added)
91 The officer's report goes on to say, at [8]:
Two points can be made from Council's requested modifications:
8.1 Council has no existing right to approve subdivision in the Rural Zone, at most[,] Council may currently recommend approval to the creation of any individual lot of 2000 [square metres] to 4 hectares. Furthermore, the Amendment is worded to refer to land for 'rural-residential' lots to be rezoned. Accordingly, this would have no impact on the creation of a lot or lots for Special Use purposes (which would in any case be the subject of a separate rezoning pursuant to Clause 5.11).
8.2 There appears no basis for the removal of the second paragraph of the Amendment as originally proposed. This paragraph emphasises the need for rezoning of proposed rural-residential sized lots to either Special Rural or Special Residential. An additional comment may however be incorporated to avoid confusion regarding the creation of special use lots and/or the intent of Amendment 29 for rural-residential lots.
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92 In order to put the last sentence of cl 8.2 in [91] above into effect, the following words were proposed:
… This excludes the subdivision of lots for Special use purposes which would be subject to separate rezoning for that use.
93 Just why these words were changed in the final amendment to:
This excludes all existing lots that are currently zoned Rural on the Scheme Map that are between 2000 [square metres] and 4 hectares in area or any one or two lots created because of particular circumstances.
- is not clear to the Tribunal.
94 However, the effect of the change does appear to have opened up the possibility, perhaps inadvertently, of one or two lots being created for particular circumstances; including 'light industrial'.
95 In trying to determine whether the amendment is intended to refer to the past or future tense, regard must be had to the intent of Amendment 29 to TPS 2.
96 Because the Amendment was designed to ensure that subdivision for rural-residential purposes was not sporadic, but only occurred on land that was appropriately zoned, it is clearly intended to relate to a future circumstance. That view is supported in [3] of the officer's report, which indicated a need to defend an appeal to the then TPAT involving a proposal to subdivide rural land for rural-residential purposes within the Byford-Mundijong Urban Corridor.
97 The first exclusion outlined in [93] above refers to lots created previously but, as explained in [94] above, the second circumstance appears to relate to the future creation of one or two lots. If this was not the case, it should have said 'one or two [existing] lots created because of particular circumstances'.
98 The overall conclusion that the Tribunal draws is that although cl 5.4.2(c) was intended to deal with the future creation of rural-residential 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.
99 If the last sentence was meant to refer to lots for Special Use purposes, as appears to be the case on the reading of the officer's report, then an amendment to cl 5.11 of TPS 2, rather than an amendment to cl 5.4, may have been a more appropriate course of action.
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100 In view of the conclusion reached in [98] above, it 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.
101 However, the critical question before the Tribunal is whether such an approval would be in the interests of orderly and proper planning. An examination of the policy documents is necessary to assist the Tribunal.
102 On the Rural Strategy, the applicant argues that the 40 hectare minimum lot size is not sacrosanct but is geared towards preventing the fragmentation of rural land for farmlet purposes, with a consequential increase in residential density.
103 As explained by Mr Skinner in closing:
We say, well, there's no increase in residential density in this case, there's an existing dwelling on both of the lots, those existing dwellings are both occupied, one by - one in the main area by Mr Cornhill perhaps and the one on the 3.2 hectare lot is a caretaker's dwelling. So there is no increase in residential density that will happen by this subdivision. Again, it[']s just reflecting the existing situation.
104 The position of the respondent was explained by Ms Paterson in closing:
Ms Johnson's evidence was that the proposed subdivision if approved would create a de facto farmlet or rural living lot. In reaching that conclusion[,] she relied on the size of the lot, the fact that it had a dwelling, the sheds which could be useful for those lots and the amenity of the vegetation on the land which would, I would say, be attractive to a potential purchaser of such a lot.
105 It is clear to the Tribunal that the Rural Strategy sets a minimum lot size of 40 hectares and that the overall intent of this lot size within the RPA is to act as a disincentive for farmlets or residences.
106 Under cl 5.10.3 of TPS 2, it is possible for an additional dwelling to be approved on any lot in the rural zone, subject to a number of conditions; including a lot area of not less than 4 hectares.
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107 If each approved dwelling was to be subsequently contained within a newly-created lot, as is being suggested by the applicant in this case, then there would inevitably be a fragmentation of the rural zone.
108 As has already been pointed out in [77] above, it would be possible for the proposed Lot 1 to be used for a farmlet or rural-residential lot sometime into the future and, in the view of the Tribunal, this would clearly be contrary to the intent of the Rural Strategy.
109 Regarding SPP 2.5, the applicant does not accept that the proposal discourages a land use unrelated to agriculture (as a light industrial use has already been approved) or that it minimises the fragmentation of rural land.
110 As explained in the Applicant's Outline of Submissions at [14]:
… the formal separation of the different parts of the Subject Land arguably enhances the capacity of that part of the Subject Land which is used for a rural pursuit to continue to accommodate its existing use.
111 The position of the respondent is that SPP 2.5 specifically seeks to minimise, wherever possible, the ad hoc fragmentation of rural land.
112 From the perspective of the Tribunal, a higher order State Policy such as SPP 2.5 can only provide broad guidance. However, the Tribunal believes that, if a specific land use is approved and eventually followed by subdivision (as contemplated in this case), the ad hoc fragmentation of rural land would not be minimised.
113 Regarding DC 3.4, the applicant argues that, as the proposed subdivision is not for the purpose of a rural-residential lot or a rural smallholding, it is not caught by the general policy requirement of cl 3.1. Also, that as outlined in [15(h)], it does not result in the fragmentation of rural land, and falls within the "permitted" criteria of cl 4.1(f) as detailed in [52] above.
114 The respondent argues that the proposal fails the test of complying with cl 4.1(f) as it is not for an unusual or unanticipated purpose, it conflicts with the policy, and is not in the public interest.
115 The view of the Tribunal is that DC 3.4 is complementary to SPP 2.5 and the reasons outlined in [112] are again relevant here. Also, that the provisions of cl 4.1(f), which require the subdivision to be in the public interest, do not apply in this case.
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116 On the matter of precedent, the applicant argues that there is no evidence that the proposed subdivision would result in an undesirable precedent, whereas the respondent takes the contrary view.
117 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.
118 From an examination of Table 1 of TPS 2, there are over 50 land uses (caravan park, consulting rooms, child minding centre, fuel depot, etc) that could be approved within the rural zone, subject to the Shire's discretion.
119 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 SPP 2.5 and DC 3.4. This would inevitably lead to the eventual breakdown of the rural zone.
120 Such an outcome would be contrary to the orderly and proper planning of the rural zone in the Shire.
Order
121 For the foregoing reasons, the Tribunal orders that:
1. The application for review is dismissed.
I certify that this and the preceding [121] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR L GRAHAM, SENIOR SESSIONAL MEMBER
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