CORRERING Pty Ltd and Western Australian Planning Commission
[2007] WASAT 288
•2 NOVEMBER 2007
CORRERING PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2007] WASAT 288
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 288 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:52/2007 | 7 AUGUST 2007 | |
| Coram: | MR R EASTON (SENIOR SESSIONAL MEMBER) | 1/11/07 | |
| 38 | Judgment Part: | 1 of 1 | |
| Result: | The application for review is allowed | ||
| B | |||
| PDF Version |
| Parties: | CORRERING PTY LTD WESTERN AUSTRALIAN PLANNING COMMISSION |
Catchwords: | Town planning Subdivision Rural land Productive agricultural land Sustainable water supply Economically viable Intensive agricultural use Broadacre farming Sandalwood plantations Land conservation Creation of lifestyle lots Precedence Orderly and proper planning |
Legislation: | Planning and Development Act 2005 (WA), s 25, s 251(1) Shire of Beverly Town Planning Scheme No 2, cl 3.5, cl 3.6 Town Planning and Development Act 1928 (WA), s 5AA |
Case References: | Aspen Pty Ltd v State Planning Commission (Unreported; Appeal No 13 of 1988, 21 October 1988) Burridge & Anor and Western Australian Planning Commission [2007] WASAT 178 Goldin & Anor v Minister for Transport (2002) 121 LGERA 101 Ingram & Anor v Western Australian Planning Commission [2003] WASCA 77 Marshall v Western Australian Planning Commission (1995) 15 SR (WA) 170 Nicholls and Western Australian Planning Commission (2006) 149 LGERA 117 |
Orders | 1. The application for review is allowed.,2. The decision of the Western Australian Planning Commission to refuse the application to subdivide Lot 3366 Beringer Road, Morbinning is set aside and a decision is substituted that subdivision approval be granted subject to the following conditions:,(i) Those lots not fronting an existing road being provided with frontage to a constructed road(s) connected by a constructed road(s) to the local road system and such road(s) being constructed and drained at the applicant/owner's cost. As an alternative, the Western Australian Planning Commission is prepared to accept the applicant/owner paying to the local government the cost of such roadworks as estimated by the local government subject to the local government providing formal assurance to the Western Australian Planning Commission confirming that the works will be completed within a reasonable period as agreed by the Western Australian Planning Commission.,(ii) The proposed east-west road being a minimum of 30 metres in width (Local Government).,(iii) The battleaxe access driveways are to be constructed and drained at the subdivider's cost, to the specifications approved by and to the satisfaction of the Shire of Beverley (Local Government).,(iv) A strategic fire management plan be prepared and implemented to the specifications of the local government and the Fire and Emergency Services Authority (Local Government).,(v) All buildings and effluent disposal systems, having the necessary clearance from the new boundaries as required under the relevant legislation (Local Government).,(vi) Arrangements being made to the satisfaction of the Western Australian Planning Commission and to the specification of Western Power for the provision of an underground electricity supply service to all the proposed lots below a minimum lot size of 50 hectares. If an existing aerial electricity cable servicing the land the subject of this approval crosses over a proposed lot boundary as denoted on the approved plan of subdivision, satisfactory arrangements will need to be made for the removal and relocation of that cable (Western Power).,(vii) The transfer of land as a Crown Reserve, free of cost to the Western Power Corporation for the provision of electricity supply infrastructure. The specific location and area of land required is to be to the satisfaction of the Western Australian Planning Commission (Western Power).,(viii) Each lot is to be provided with at least one dam to the requirements and satisfaction of the Western Australian Planning Commission.,(ix) The subdivider of the land shall make arrangements to ensure that prospective purchasers of the proposed lots are advised in writing that provision of a reticulated sewerage service swill not be available to the lots and that all future dwellings on the lots will need to be connected to on-site effluent disposal system(s) (Local Government).,(x) Prior to the commencement of any siteworks and development activity a subdivision works management plan demonstrating that siteworks will not interfere, alter or pollute any wetland, watercourse, surface water expression or groundwater in the area, or alter the water quality of such waters is to be submitted. This subdivision works management plan is to be submitted prior to the commencement of works and is to be to the specifications of the Department of Water. All development activity on the subject land is to comply with that plan (Department of Water).,(xi) Measures being taken to ensure the identification and protection of any vegetation on the site worthy of retention prior to the commencement of siteworks (Local Government).,(xii) The subdivider of the land shall make arrangements to ensure that prospective purchasers of the proposed lots are advised in writing that provision of a reticulated water service will not be available to the lots and prospective purchasers will be obliged to make their own arrangements to obtain a satisfactory supply of water for domestic, fire fighting and agricultural purposes (Local Government). |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : CORRERING PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2007] WASAT 288 MEMBER : MR R EASTON (SENIOR SESSIONAL MEMBER) HEARD : 7 AUGUST 2007 DELIVERED : 2 NOVEMBER 2007 FILE NO/S : DR 52 of 2007 BETWEEN : CORRERING PTY LTD
- Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Town planning - Subdivision - Rural land - Productive agricultural land - Sustainable water supply - Economically viable - Intensive agricultural use - Broadacre farming - Sandalwood plantations - Land conservation - Creation of lifestyle lots - Precedence - Orderly and proper planning
Legislation:
Planning and Development Act 2005 (WA), s 25, s 251(1)
Shire of Beverly Town Planning Scheme No 2, cl 3.5, cl 3.6
(Page 2)
Town Planning and Development Act 1928 (WA), s 5AA
Result:
The application for review is allowed
Category: B
Representation:
Counsel:
Applicant : Mr I Rogers
Respondent : Ms F Seaward
Solicitors:
Applicant : Hardy Bowen
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)
Burridge & Anor and Western Australian Planning Commission [2007] WASAT 178
Goldin & Anor v Minister for Transport (2002) 121 LGERA 101
Ingram & Anor v Western Australian Planning Commission [2003] WASCA 77
Marshall v Western Australian Planning Commission (1995) 15 SR (WA) 170
Nicholls and Western Australian Planning Commission (2006) 149 LGERA 117
(Page 3)
Summary of Tribunal's decision
1 This matter involved an application for review of the Western Australian Planning Commission's refusal of a subdivision application to subdivide Lot 3366 Beringer Road, Morbinning into 20 lots ranging in size from 40.05 hectares to 107.37 hectares.
2 The issues to be determined by the Tribunal were: whether the applicant had demonstrated that access to a sustainable water supply for domestic, fire fighting and agricultural purposes would be available for each of the proposed lots; whether the proposed lots will be economically viable for intensive agricultural use; whether the proposed subdivision would not adversely affect the use of land for agricultural purposes in the area; how the proposed subdivision and possible future development of the subject land would address land conservation, existing vegetation protection and rehabilitation issues affecting the land; whether the proposed subdivision was consistent with the local town planning scheme, rural strategy and all applicable planning policies; whether the proposed subdivision was likely to create lots which were suitable only for lifestyle purposes and would reduce the availability of land as a resource for agricultural purposes; whether the proposed subdivision would set an undesirable precedent for further subdivision in the locality; and whether the proposed subdivision was contrary to orderly and proper planning.
3 The Tribunal determined all these issues in favour of the applicant. The Tribunal considered the issues in the context of a broader question of whether the proposal will result in land which has productive capacity for agricultural production being lost as a resource. The Tribunal found that the proposal would not result in land being lost as an agricultural resource.
4 The application for review of the respondent's decision was allowed subject to conditions.
Introduction
5 These proceedings involve an application brought by Correring Pty Ltd pursuant to s 251(1) of the Planning and Development Act 2005 (WA) (PD Act) for review of the decision of the Western Australian Planning Commission (WAPC or respondent) dated 19 January 2007 to refuse approval to subdivide Lot 3366 Beringer Road, Morbinning into 20 lots ranging in size from 40.05 hectares to 107.37 hectares.
(Page 4)
6 The application was lodged in April 2006. The proposal was to subdivide an existing 1214 hectare lot which is used for broadacre farming into 20 lots. The proposed uses were for the continuation of broadacre farming and/or to plant sandalwood plantations. The application included a detailed report and several appendices including a land capability report and a report on the economic viability of proposed land use.
7 In support of the application, the land capability report contained the following background to the application:
"The land is part of the farming property owned by the Butterworth family and this report has been prepared in the context of the family's intention to pursue subdivision of Location 3366 in a manner which is compatible with the objectives and criteria of the District Rural Strategy for the Shire of Beverley …
The Butterworth family are part of the Morbinning Catchment Group which was formed in 1989. In 1995, in conjunction with the Department of Agriculture and ALCOA Australia, the catchment group developed the Morbinning Catchment Strategy (Brain & Briscoe 1996) to co-operatively address land management issues, implement sustainable agriculture and create new income sources for farming properties in the locality.
Arising from this, the Butterworths and [a] number of other landholders in the East Beverley locality are developing farming enterprises based on commercial plantation of West Australian sandalwood (Santalum spicatum) either independently or in conjunction with traditional farming systems (wheat and sheep production). The subdivision proposal seeks to create lots for the continued development of such enterprises."
8 The respondent refused the application for the following reasons:
1. The proposed subdivision is inconsistent with the Commission's Policy DC 3.4 and the Beverley-Brookton District Rural Strategy as it has not been adequately demonstrated that sufficient groundwater exists, that intensive agricultural pursuits can be supported, that the proposed lots will be economically viable, or that the
- proposal will not adversely affect other agricultural enterprises in the area.
- 2. Approval to the subdivision would set an undesirable precedent for the further subdivision of surrounding lots.
3. The proposed subdivision is inconsistent with the "Rural" zoning land in the Council's town planning scheme. The purpose and intent of this zoning is to preserve the area's current rural use and density of development. Subdivision in the manner proposed would create the potential for additional building development and the introduction of non-rural activity in conflict with the zoning objectives.
4. The proposal is not consistent with orderly and proper planning.
Subject land and proposal
9 The subject land is described as Lot 3366 Beringer Road, Morbinning in the Shire of Beverley (Shire) on Deposited Plan 103218, Certificate of Title Volume 1181 Folio 774. The subject land has frontages of approximately 2.9 kilometres to both Beringer Road to the west and Ewert Road to the east.
10 The subject land has an area of 1214.86 hectares. In the application documents, the subject land is described as "one of the few remaining large landholdings in the area, with the general lot size within this part of the Shire being significantly smaller. Lot sizes in the immediate vicinity of the site ranging (sic) between approximately 39 and 190 hectares, with the majority in the 40-70 hectare range."
11 The subject land is located approximately 15 kilometres south-east of the Beverley townsite and receives an average rainfall of approximately 380 millimetres per year.
12 Several watercourses traverse the subject land, and it contains 18 existing dams or soaks. The subject land has been used for broadacre agriculture and has been mostly cleared of trees. The remnant vegetation on the subject land is mainly associated with the watercourses. A small tree plantation has been established in the north-eastern corner of the subject land.
(Page 6)
13 The proposal is to provide a 20 metre road through the middle of the subject land between Ewert Road and Beringer Road and to create 20 lots ranging from 40.05 hectares to 107.37 hectares with the average size being 60.0574 hectares.
14 The proposal is that the lots will continue to be used for agricultural purposes as either sandalwood plantations or a continuation of the existing use as broadacre farming - cropping and grazing. The proposal was supported by a land capability assessment report.
15 Part of the conclusion of the land capability assessment report was that:
"The capability analysis for the two most common agricultural activities in the area, pasture for sheep grazing and wheat cropping, confirms the broad-brush assessment in the District Rural Strategy that Location 3366 [the subject land] is predominantly good quality productive agricultural land. Furthermore, the assessment of limitations for sandalwood indicates the land is equally if not better suited for this form of land use."
16 The land capability assessment report was completed prior to the preparation of the subdivision plan, because the subdivision was to be based, in part, on the findings of the report. With reference to the form of subdivision, the conclusions of the land capability assessment report were:
"In addition to consideration of topography and drainage subcatchments … it is important to ensure that lots are designed to encompass sufficient area of 'fair' or better capability land for the proposed or most likely form of future land use.
The District Rural Strategy (Shire of Beverley 1998) sets a minimum lot size of 40 ha in this planning precinct. This is presumably based on a consideration of the range of existing lots in the area, as well as the concept that lots of this size will be suitable as trading parcels for productive agricultural purposes without being small enough to be attractive to purchasers for nonagricultural purposes.
However, whatever lot size is stipulated, the actual lot sizes should be based on exclusion of non-productive areas such as drainage lines, areas of remnant vegetation and rock outcrop.
(Page 7)
- In combination with consideration of topography and drainage, the design of the subdivision needs to reflect the nature of the land and its inherent variations in capability and productivity."
17 The design of the proposed subdivision was completed after the land capability assessment report. In the application, the subdivision design was described as follows:
"The subdivision design has considered the issues associated with the capability of the land, adjoining land uses and physical features of the land. While lot boundaries have been located to reflect the outcomes of the land assessment report they have also been designed to be generally rectangular in size and shape."
Planning framework
18 The site is zoned "Farming" in the Shire of Beverley Town Planning Scheme No 2 (TPS 2).
19 There is extensive planning framework at both a regional and shire level to guide decision-making on the subdivision of rural land.
Regional planning framework
20 The State Planning Policy No 1 - variation no 2(SPP 1) was prepared under s 5AA of the now repealed Town Planning and Development Act 1928 (WA) (TPD Act) and has continued in existence under s 25 of the PD Act. SPP 1 sets out the key principles guiding planning decision-making on land use and regional development. SPP 1 unites existing state and regional policies, strategies and guidelines within a central framework which provides the context for decisionmaking by the respondent on matters of land use and development - including subdivisions. SPP 1 states that the state planning framework includes all policies listed in Pt B of SPP 1. The Tribunal is required to have due regard to the provisions of this policy and the listed policies.
21 Policy DC 1.1 - Subdivision of Land General Principles(DC 1.1) sets out the general principles which will be used by the WAPC in determining applications for subdivision of land in general.
22 State Planning Policy No 2.5: Agricultural and Rural Land Use Planning (SPP 2.5) applies to all rural land and is used in conjunction with Policy No DC 3.4: Subdivision of Rural Lands (2002) (DC 3.4) to guide the WAPC's decision-making on subdivision of rural land.
(Page 8)
23 SPP 2.5 lists four key objectives (mirrored in DC 3.4) which are:
"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; and …
2) Plan and provide for rural settlement where it can …;
3) Minimise potential for land use conflict by:
a) providing adequate separation distance between potential conflicting land uses …;
c) identify areas that are suitable and capable for intensive agricultural pursuits as agricultural priority areas; and …
4) Carefully manage natural resources."
24 Clause 3.1.1 of DC 3.4 states: "There is a general presumption against subdivision of rural land unless it is specifically provided for in a town planning scheme, an endorsed local planning strategy or an endorsed local rural strategy."
25 Clause 6.1.1 of DC 3.4 sets out the relevant matters that the WAPC will take into consideration when assessing subdivision applications.
26 Planning Bulletin 26 - Water Source Requirements Relating to the Assessment of Subdivision Applications for Intensive Agriculture (PB 26) provides that a hydrological report may be required for rural subdivision applications involving proposals for intensive agriculture.
Referrals
27 The respondent refers to various third parties for gathering information to guide its decisionmaking.
(Page 9)
28 The respondent referred the application to the Shire which wrote back to the WAPC stating its support for the application subject to conditions.
29 The respondent referred to The Department of Food and Agriculture's Farmnote 80/99 - Speciality Timbers for the Western Australian Wheatbelt (Farmnote). The Farmnote refers to the commercial viability of sandalwood in the wheatbelt and indicates limited profitability compared to grazing or cropping.
30 The applicant argues the Farmnote is irrelevant because it is out of date and does not reflect the current situation. The applicant believes it would have been more appropriate for the WAPC to refer to the Forest Product Commission (FPC) which "is the lead agency in commercial timber production and in particular the establishment of State Government sandalwood plantations on farmland in the Wheatbelt under the State Government's 'Action Plan for Tree Farming in Western Australia'."
31 Subsequent arguments presented by the parties and statements by witnesses will guide the Tribunal's decision on weight to be attributed to these two agencies and their associated documents.
32 Avon Arc Sub-Regional Strategy (AASRS)
33 The purpose of the AASRS is to provide a regional framework for longterm land use within the Avon Arc Sub-Region which forms the western portion of the wheatbelt region.
34 The AASRS places the majority of the subject land within "Avon Valley and Zone of Rejuvenated Drainage" land planning unit. Clause 3.6 states that in managing the vision for this area, broadacre farming is the dominant land use and that subdivision for rural living is only to occur in close proximity to consolidated urban settlements. The balance of the land - portion in the southwest corner of the subject land - is located in the "Avon Valley Catchment and Zone of Ancient Drainage" land planning unit, where broadacre farming is the dominant land use and freehold subdivision into smaller lots is generally not supported.
Local planning framework
TPS No 2
35 Clause 3.5 of TPS 2 (General Farming) provides:
(Page 10)
- "In this zone the Council will support land use and subdivision proposals which are consistent with the continued viability of agricultural production … as well as the maintenance of rural character and amenity. Subdivision proposals shall have regard to the Shire of Beverley/Brookton District Rural Strategy and the provisions of cl 3.6 of the Scheme."
36 The continuation of cl 3.5 then lists various matters which applicants must demonstrate in support of their proposals.
37 Clause 3.6 of TPS 2 requires the Council to have regard to various matters including the specific provisions of the relevant policy area of the District Rural Strategy (DRS). The subject property is within the Be6 Policy Area of the DRS.
38 Clause 3.6 then provides that:
"In policy areas … Be6 … subdivision will not be recommended and development approval will not be supported for proposals which are inconsistent with the continued use of land for productive agricultural purposes. A minimum lot size of 40 hectares is recommended for the subdivision of land in [this] policy area."
39 Clause 3.6(i) of TPS 2 goes on to describe circumstances where Council will support subdivision. Subclause (d) is relevant and applies to lots proposed for intensive agricultural purposes. This subclause requires a detailed study of the suitability and capability of the site for the proposed uses and sets out various matters to be addressed.
40 The proposed use of sandalwood plantations falls within TPS 2's definition of intensive agriculture.
41 DRS
42 The DRS is incorporated into TPS 2 by reference and was introduced by amendment No 9 (December 2000). The objectives include:
"1.3.1 Designate areas within the Shires where the further subdivision or boundary realignment would not be supported in the interests of sustainable, productive and economically viable Agricultural land preservation;
1.3.2 Designate areas within the Shires where the subdivision of farming land would be supported in the interest of
- genuine Agricultural Activity of a more intensive or specialist nature.
- …
1.3.4 Provide a general guide to future land use, zoning, subdivision, development and resource management throughout the District Rural Strategy Area, after paying regard to land capability, land management, economic and overall servicing criteria."
43 The DRS divides the Shire into a number of Policy Areas. The subject land is located within Policy Area Be6. Clause 6.2.7 of the DRS relates to Policy Area Be6. The opening statement is:
"That the subdivision and development of privately owed, generally high quality agricultural land within this policy area for purposes of a nonagricultural nature will not generally be recommended by Council due to the need to protect the integrity of a land resource which is required to ensure the continued economic well-being of the Agricultural Industry in the Beverley Shire."
44 However, cl 6.2.7(i) provides that:
"Subdivision Approval will however be recommended and development supported on privately owned land within this Policy Area in cases where:-
…
[the relevant section reads]
Detailed study shows the realistic intensive-specialist agricultural development is genuinely viable in a particular locality …"
45 The clause then continues to describe various actions and processes to enable consideration.
46 In cl 6.2.7 (ii), it is noted that:
"Where the subdivision of land is considered by the provisions of 6.2.7(i) the minimum lot size which will be recommended by
(Page 12)
- Council provided the subdivision proposal addresses the criteria detailed in 6.1.6, is 40ha …"
47 Clause 6.1.6 ties the assessment back to the Council's recognition of various State Government objectives relating to agricultural land and the recently published Guidelines for the Environment and Planning.
Issues
48 The parties agreed that the issues to be determined are:
(i) whether the applicant has demonstrated that access to a sustainable water supply for domestic, fire fighting and agricultural purposes is available for each of the proposed lots;
(ii) whether the applicant has demonstrated that the proposed lots will be economically viable for intensive agricultural use;
(iii) whether the applicant has demonstrated that the proposed subdivision will not adversely affect the use of land for agricultural purposes in the area;
(iv) whether the applicant has demonstrated how the proposed subdivision and possible future development of the subject land will address land conservation, existing vegetation protection and rehabilitation issues affecting the land;
(v) whether the proposed subdivision is consistent with the local town planning scheme, rural strategy and all applicable planning policies;
(vi) whether the proposed subdivision is likely to create lots which are suitable only for lifestyle purposes and would reduce the availability of land as a resource for agricultural purposes;
(vii) whether the proposed subdivision will set an undesirable precedent for further subdivision in the locality; and
(viii) whether the proposed subdivision is contrary to orderly and proper planning.
(Page 13)
49 Some of the issues are quite narrow, while others are broader. It is the Tribunal's opinion that there is one central theme that binds all the issues together, and that is whether or not the proposed subdivision will result in the loss of land having productive capacity for agricultural production. When considering each issue, the Tribunal will consider the central theme.
Whether the applicant has demonstrated that access to a sustainable water supply for domestic, fire fighting and agricultural purposes is available for each of the proposed lots
50 The respondent argues that although the proposed subdivision meets the minimum lot size requirements of the DRS for Policy Area Be6, the proposal has failed to meet planning requirements to demonstrate the availability of suitable adequate water. Mr Bouwhuis, a senior planning officer appearing for the respondent, observed that the proposal represented a significant intensification of the existing land use. He argued that:
"Therefore, critical to the proposed subdivision is the availability of a suitable water supply for domestic, fire fighting and agricultural purposes."
51 Clause 3.5 of TPS 2 requires subdivision proposals in the "General Farming" zone to demonstrate:
52 "…
(iv) The provision of water and services to the site, particularly where the rezoning of farming zoned land for Rural/Residential development is proposed on land identified for such land use on maps 13 and 14 of the District Rural Strategy.
(v) The provision of bush fire services and fire prevention and fire suppression measures."
53 Clause 3.6.2(i)(d) of TPS 2 states the Council will recommend subdivision in various policy areas (including the policy area of the subject land) where it is proposed to create lots for intensive or other agricultural purposes. The clause requires a "detailed study of the suitability and capability of the site for the proposed use" and also requires information on various matters including "the availability and provision of a suitable water supply to the land and bush fire management."
(Page 14)
54 Clause 6.2.7 of the DRS states subdivision will generally not be recommended in Policy Area Be6. However, subdivision will be supported in cases where "detailed study shows that realistic intensivespecialist agricultural development is genuinely viable in a particular locality." The clause also provides that to assist Council in the assessment process, advice may be sought with regard to aspects such as water supply.
55 Clause 6.1.1 of Policy DC 3.4 sets out matters that the respondent may take into consideration when assessing an application to subdivide rural land. One of those matters (item (d)) is "Servicing - Each lot has a sustainable water supply for domestic, fire management and agricultural purposes."
56 Mr Bouwhuis noted that the applicant asserted that sandalwood plantations are not dependent on irrigation and can survive on rainfall. He then stated that "in my opinion if below average rainfall occurred on a consistent basis for numerous years, there would be insufficient water to support sandalwood plantations and the potential for sandalwood plantations to require irrigation is more likely to emerge without this element being addressed in the proposed subdivision."
57 At the time of making that statement, Mr Bouwhuis did not have the benefit of the applicant's hydrology report. However, during the hearing, Mr Bouwhuis confirmed he had since reviewed the hydrology report and commented:
"I think that the applicant has demonstrated that they believe there is sufficient water available, through rainfall, to supply enough water to carry out the proposed sandalwood plantation use, but, as I said before, I don’t believe there is sufficient water to provide a domestic supply and fire fighting supply."
58 In explanation, Mr Bouwhuis stated that he believed the proposed use of sandalwood plantation would increase the susceptibility of the subject land to fire.
59 The respondent also referred to the findings of the Tribunal in Burridge & Anorand Western Australian Planning Commission [2007] WASAT 178 where the Tribunal refused an application to amalgamate two lots and then subdivide them to create eight lots ranging from
(Page 15)
- 46 hectares to 69 hectares in the Shire where the lots were to be used for a range of intensive agricultural pursuits. The respondent stated that in Burridge, the Tribunal recognised that the most significant issue was whether there was an adequate water supply to support productive agriculture and each of the proposed lots.
60 Mr Bouwhuis argued that a similar set of circumstances exists in this proposed subdivision relating to an unsubstantiated supply of water and that the proposal should not be approved because of a lack of adequate water.
61 The applicant argues that natural rainfall is sufficient and adequate for the proposed agricultural purposes as either sandalwood plantations or a continuation of the existing use as broadacre farming - cropping and grazing.
62 Mr Taylforth, an expert planner appearing for the applicant, provided an assessment of the proposed subdivision to address the three water servicing issues raised in DC 3.4:
63 Sustainable water supply for:
(i) domestic purposes;
(ii) fire management purposes; and
(iii) agricultural purposes.
64 Mr Taylforth stated that this will be supplied by each landowner installing a rainwater tank: "The provision of rainwater tanks for domestic water supply is an almost ubiquitous form of providing a sustainable water source and supply for domestic use in farming areas."
65 Mr Taylforth stated that water for fire management purposes will be available from rainwater tanks and dams on each lot. The provision of water in this manner is standard acceptable agricultural practice. Mr Taylforth noted that the respondent has referred the proposal to Fire and Emergency Services Authority of Western Australia (FESA) and that its support for the proposal was included in the evidence.
66 Mr Taylforth noted that there were only two forms of agricultural land use proposed on each of the lots: either use for sandalwood plantations, or a continuation of the current use which is broadacre cropping and/or grazing. He stated that neither of these agricultural land uses are dependent upon irrigation and can exist purely on rainfall.
(Page 16)
67 The applicant engaged a hydrologist, Mr Davies, to prepare a hydrological report for the subject land. Mr Davies reported that he had no expertise in whether sandalwood would require irrigation. Mr Davies assessed the dam catchment areas and runoff for each of the proposed 20 lots and concluded that natural rainfall was adequate for cropping and grazing.
68 Mr Wells, an environmental consultant and qualified agricultural scientist, also appeared for the applicant. Mr Wells prepared the land capability report for the applicant. Mr Wells stated the subdivision design was considered in the context of surface drainage, and each lot had access either to its own dam or a suitable site for future dams.
69 Mr Jones, a forestry consultant, appeared for the applicant to provide evidence related to sandalwood. Mr Jones stated that "[T]he Beverley location is well suited to Santalum spicatum [sandalwood] establishment and growth. Rainfall will provide sufficient soil moisture for establishment and growth in this locality. There is no requirement for Santalum spicatum established on the subject land to be irrigated from either surface or groundwater sources."
70 The respondent's arguments with reference to the applicant's failure to demonstrate access to a sustainable water supply for domestic and fire fighting purposes were not convincing.
71 The application did not detail the provision of domestic water. This requirement of Policy DC 3.4 is under the general heading of servicing and the applicant reasonably focussed on water as a resource for agriculture. During the hearing, Mr Taylforth expanded on the evidence in his witness statement that rainwater tanks collecting runoff water from the roofs of dwellings and sheds was the standard method of providing domestic water supply in this locality. When this matter was raised during the hearing, Mr Bouwhuis did not dispute the opinion of Mr Taylforth. The Tribunal agrees with the evidence of Mr Taylforth and does not see how the subdivision proposal could have any effect on the ability of individual lots to collect rainwater to meet domestic needs. The Tribunal finds that the applicant has demonstrated that access to a sustainable water supply for domestic purposes is available for each of the proposed lots.
72 The respondent's arguments were even less convincing on the matter of available water for fire fighting purposes. The application included adequate information on fire management. Furthermore, the respondent
(Page 17)
- had the benefit of an opinion from FESA on the proposal. FESA's letter to the respondent stated: "Thank you for seeking advice from FESA on the [subdivision proposal for the subject land]".
73 It is FESA's recommendation that the development complies with the document Planning for Bush Fires Protection 2001 which provides performance criteria and acceptable solutions to assist in determining the suitability of proposed development and/or establishing adequate fire fighting measures."
74 Water is only part of the issue in fire management. Based on the evidence, and especially the evidence that FESA has no objection to the subdivision proposal, the Tribunal finds that the applicant has demonstrated that there are adequate means to meet fire fighting measures, and that to the extent that water may be needed, the proposal contains access to a sustainable water supply for fire fighting purposes.
75 The most important aspect of this issue is whether the applicant has demonstrated that access to a sustainable water supply for agricultural purposes is available for each of the proposed lots.
76 The planning framework requirements relating to water for the proposed agricultural purposes and subdivision of the subject land are not onerous. When considering subdivision proposals, cl 3.5 of TPS 2 requires the applicant to demonstrate the provision of water. Clause 3.6.2(i) requires information on the availability and provision of a suitable water supply. Clause 6.1.1 of DC 3.4 states that the WAPC may take into consideration matters relating to servicing: each lot having a sustainable water supply. Planning Bulletin 26 states a hydrological report may be required. However, Planning Bulletin 26 relates to subdivision applications for intensive agriculture in the south-west region, although there is provision for the requirements of the planning bulletin to apply to other regions. The requirements described above in this paragraph relate to State, regional or shire requirements. The most specific requirement is the DRS requirement for Policy Area Be6, which includes the subject land. Clause 6.2.7(i) of the DRS provides that in considering subdivision applications for intensive agriculture, advice may be sought with regard to water supply.
77 Most of these requirements relate to advice or information. Although it is not clear whether a hydrological report is required, the applicant provided a hydrological report which concluded that rainwater is all that is required for a continuation of broadacre uses. The report contained detailed information on rainfall for the Beverley townsite 15 kilometres from the subject land.
(Page 18)
- The rainfall for the last 100 years ranged from 216 millimetres to 617 millimetres with a mean of 426 millimetres. The rainfall for the last 31 years ranged from 269 millimetres to 554 millimetres with a mean of 417 millimetres.
78 Mr Jones provided evidence on the water requirements for sandalwood. He stated that within the area of natural distribution for sandalwood, the mean rainfall varied from less than 200 millimetres to over 500 millimetres per annum and noted that sandalwood is "extremely drought tolerant". He concluded that:
"The subject land in question has an annual mean rainfall that is well above the lower limit of rainfall required for the species. The establishment of Santalum spicatum is viable and requires no additional water other than annual rainfall."
79 Mr Davies provided evidence on the availability of water for stock, after commenting on soil permeability and analysing the catchment areas and runoff volumes for each lot and for each of the existing and proposed dams, and concluded that each lot had available water to support the applicant's proposed stocking rate of 5.4 sheep per hectare or 216 sheep per 40 hectares.
80 This evidence was consistent with the evidence of Mr Wells who reported that based on Department of Agriculture guidelines relating to stock drinking rates and feed availability, a 40 hectare lot in this locality within the Shire could carry 200 sheep.
81 The Tribunal notes that the term "proposed dam sites" refers to potential, and that the "proposed" dams are not part of the application. The evidence showed a total of 18 existing and 13 proposed dams with at least one existing or proposed dam on each lot and with six of the lots not having existing dams.
82 The respondent did not provide any expert evidence to contest the evidence of Mr Jones, Mr Wells or Mr Davies in terms of availability of water or the suitability of water for the proposed agricultural uses.
83 Despite all the information provided to the respondent and presented to the Tribunal as evidence, the respondent maintained the opinion that the applicant had not demonstrated a sustainable water supply. The respondent referred to the Burridge case and expressed the opinion that it was relevant to this current review. The application in theBurridge
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- case was 15 kilometres to the south-west of the Beverley townsite and located in Policy Area Be3. The Tribunal does not agree that the findings in the Burridge case as they related to water have applicability to this current review.
84 The subdivision application in Burridge proposed a range of intensive agricultural pursuits and required the use of groundwater resources. The proposed uses in the current review do not require groundwater. Furthermore, the standards for water are much higher in Policy Area Be3 (Burridge) than they are in Policy Area Be6, which contains the subject land of this review. Clause 6.2.3 of the DRS for Policy Area Be3 opens with the following words:
"That the subdivision and development of the low quality privately owned agricultural land within Policy Area will be conditionally recommended by Council in the interests of water course protection, revegetation, remnant vegetation protection/rehabilitation, landcare and Greening principles implementation and where ground water supplies are proven which encourage projects of an intensive agricultural nature."
85 In Burridge at 68, the Tribunal found after an analysis of available groundwater that:
"… the Tribunal is not convinced … that there will be an adequate water [supply] to each of the proposed lots … to sustain long-term intensive agricultural use on the lots."
86 In Policy Area Be3, it is necessary for an applicant to prove groundwater sources for intensive agriculture. However, in Policy Area Be6, the corresponding provision is that the Council may seek advice with regards to water supply.
87 The planning framework in this review does not require the applicant to prove groundwater sources. Indeed, all that is required is either information, or at most, that the applicant demonstrate a sustainable water supply for agricultural purposes. The applicant has provided a hydrological report and the Tribunal had the benefit of expert evidence from Mr Davies, Mr Jones and Mr Wells. The Tribunal accepts the evidence that natural rainfall is a sustainable water supply for the proposed use of sandalwood plantations. The Tribunal also accepts the evidence that rainwater combined with existing and proposed dam sites is a sustainable water supply for the proposed uses of broadacre cropping and grazing.
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88 Nevertheless, if the remaining issues are found in favour of the applicant, the Tribunal is concerned that some of the proposed lots will not have a suitable water source if they are used for stock carrying purposes. If the review is found in favour of the applicant, an appropriate condition will be added concerning the provision of dams.
89 The Tribunal finds that the applicant has demonstrated that there will be a sustainable water supply for domestic, fire fighting and agricultural purposes.
Whether the applicant has demonstrated that the proposed lots will be economically viable for intensive agricultural use
90 This issue is critical to the outcome of this review. If the proposed subdivision results in lot sizes where agriculture is not economically viable, then the lots may be lost as an agricultural resource. Although the description of the issue and the planning framework make reference to "economic", the Tribunal does not consider that the framing of this issue requires proof of profitability. The test on this issue is whether rural land which has productive capacity for agricultural production may be lost as a resource.
91 The respondent contends that neither the proposed new use - sandalwood plantations - nor a continuation of the existing broadacre use will be economically viable on the proposed lots. The respondent referred to various planning framework requirements that require the proposed lots be economically viable.
• Clause 3.5 of TPS 2 states that Council will support land use and subdivision proposals which are consistent with the continued viability of agricultural production.
• Clause 3.6.2(i)(d) of TPS 2 requires information on the "economic feasibility of the project" where the proposal involves subdivision for intensive or other agricultural purposes.
• Clause 6.2.7(i) of the DRS provides that subdivision approval will be recommended where detailed study shows that intensive-specialist agricultural development is genuinely viable in a particular locality. To assist in assessment, the clause provides that Council may seek advice with regard to economic viability.
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- • Clause 6.1.1 of DC 3.4 sets out matters which the WAPC may take into consideration when assessing a subdivision proposal. The matters include:
"…
(b) Size of lots - Lots are of sufficient size to be environmentally and economically sustainable in the long term as agricultural enterprises."
93 The respondent argued that the impact of drought or low rainfall years would reduce economic viability.
94 The respondent also referred to information from the FPC, a Western Australian Government trading enterprise, and from AvonGro Wheatbelt Tree Cropping Incorporated (AvonGro), a private industry development committee for the Avon wheatbelt region which aims to increase tree crop planting in the Avon River Basin. The information from these organisations on sandalwood production was entered into evidence by the respondent.
95 The respondent's analysis of the information from the FPC and AvonGro identified areas of difference when compared to the applicant's feasibility study. The differences identified by the respondent are summarised in the following table.
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96 The respondent concluded that the applicant's feasibility study was optimistic and based on figures that were inconsistent with figures used by organisations with expertise in sandalwood plantations. Therefore, the respondent argued, there was a reasonable possibility that the sandalwood plantations would not be economically viable, especially considering the DFA's comments that the smaller lots in the proposed subdivision may not be large enough to be commercially viable. If the proposed sandalwood plantations were not viable, then there was a risk that high quality agricultural land (Policy Area Be6) would cease to be used for productive agriculture.
97 The respondent also argued that if the proposed lots were not used for sandalwood production, they were too small to be economically viable as broadacre lots, and again concluded that there was a genuine risk that the subdivision would result in the loss of productive agricultural land.
98 The respondent stated in closing that with reference to broadacre farming, the applicant has assumed "that because the proposed lots meet the 40 hectare minimum size therefore they must be economically viable to continue in their current land use because why else would the 40 hectare size be chosen [as the minimum lot size.]"
99 The respondent argued that although 40 hectares is identified as the minimum lot size for the Be6 policy area, approval for subdivision at that size is still subject to various scheme and policy tests such as economic viability. It is the respondent's position that the applicant has failed to provide information on the economic viability of broadacre farming on the proposed lot sizes.
100 It was the respondent's summary in closing that:
"The concern from the respondent's perspective in relation to economic viability is that if the proposed lots cannot
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- economically support agricultural pursuits, there is a greater chance that those agricultural pursuits will cease and therefore the land will be lost as an agricultural [re]source."
101 The applicant argues that the various policy and scheme tests for economic viability have been met and that detailed analysis was provided in both the feasibility study (for sandalwood) and the land capability assessment report (for both sandalwood and broadacre uses).
102 With reference to the DFA's comments, the applicant notes that the differences in methodology merely demonstrate the challenges inherent in the economic analysis of the sandalwood industry, and further notes that policy and scheme requirements do not require certainty or proof of profitability; all that is required is the demonstration of economic viability.
103 Mr Wells stated that the site specific capability analysis for sheep grazing and wheat cropping confirmed earlier broad-scale assessment by the Department of Agriculture that the subject land is located within an area of predominantly good quality agricultural land.
104 The land capability assessment report also found that the subject land was equally if not better suited to sandalwood production.
105 Mr Wells confirmed during the hearing that he was not asked to prepare a feasibility analysis of broadacre farming for the subdivision proposal. However, he argued that it was not necessary because broadacre farming was an approved use and the established use in the locality. Furthermore, he argued that broadacre farming was carried out across a wide range of lot sizes in the locality of the subject land which were generally in the 40 hectare to 70 hectare range. He indicated that the proposed lot sizes are typical tradeable parcels of land, and the proposed lots may be purchased by adjacent farmers as runoff lots. Mr Wells argued that the important consideration was that the proposed lots were larger than the minimum lot size of 40 hectares, which the Shire had determined, after exhaustive analysis, was the appropriate minimum sizes for lots in this specific locality. He stated that farms in the locality did not consist of one lot, but rather, they were comprised of many lots. He confirmed that his opinion, that lots of the size proposed could continue to be used for productive broadacre farming, was based on his knowledge of the area, visits to the locality and studies of aerial photographs.
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106 The evidence of Mr Jones indicated that not only was he aware of the differences between his information and that of the DFA, the FPC and AvonGro, but also that he was not troubled by the differences. He observed that some differences arose from varying approaches to analysis and the evolving nature of the industry. He also indicated that some differences arose from old information and an earlier, different approach to sandalwood production when plantations were still a developing industry in Western Australia. For example, some of the information was based solely on the production of heartwood, which needed mature trees. Mr Jones stated that his analysis was based on the current approach, which was not to dispose of the sapwood but rather to use it. Mr Jones concluded that although the available data on yields is still subject to different interpretations due to the lack of long-term research trials, the margins between expected costs and revenues is large enough to counterbalance any expected variability in yield predictions.
107 Mr Jones provided extensive evidence and was a credible witness with a detailed knowledge of the sandalwood industry. He noted that there are extensive new and proposed plantings, both by small landholders and larger plantation companies. He also provided evidence of the ongoing investment by the State Government in the sandalwood industry, and that the FPC has indicated it will continue to establish sandalwood plantations as part of its share farming scheme.
108 When questioned on whether the proposed lots were too small, Mr Jones confirmed that the proposed minimum lot size of 40 hectares would not limit the commercial viability of individual plantations. He stated that his opinion was verified by the FPC, which set a minimum lot size of 20 hectares for the establishment of commercial sandalwood plantations on farmland in the wheatbelt region under the State Government endorsed share farming scheme.
109 Mr Jones concluded that "the proposal to establish commercial sandalwood plantations on lot sizes indicated in the … subdivision proposal … is economically viable."
110 Most of the planning framework identified by the respondent on this issue requires the applicant to provide information on the economic viability of the proposal. The applicant has provided the information. None of the planning framework requires proof of profitability. The test on this issue was established by the Supreme Court of Western Australia in Ingram & Anor v Western Australian Planning Commission [2003] WASCA 77 where, at 84, the test was framed as "whether the subdivision
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- proposal would result in land in the Rural Policy Area which has productive capacity for agricultural production being lost as a resource".
111 Both parties agree that the subject land is generally high quality agricultural land which is currently being used for agricultural production in the form of broadacre farming. The disagreement is whether the proposed subdivision will result in the loss of some or all of the proposed lots as an agricultural resource.
112 The respondent argues that the applicant has failed to demonstrate that the proposed use of sandalwood farming will be economically viable and has also failed to demonstrate that the reduced lot sizes will be economically viable for broadacre farming. The respondent concludes that when this is combined with the failure to demonstrate an adequate supply of water, then there is a real risk that the subject land that has productive capacity for agriculture will be lost as an agricultural resource.
113 The Tribunal finds that the respondent's case collapses under the weight of evidence and the quality of evidence provided by the applicant.
114 On the matter of sandalwood, whereas the respondent had a submission from the DFA and had also referred to information from the FPC and AvonGro, the applicant relied upon the expertise of Mr Jones. The respondent did not provide experts to counter the opinions of Mr Jones and his comments on the information provided by the respondent. During the hearing, the respondent questioned Mr Jones on his statements and opinions but was unable to credibly challenge his conclusions that sandalwood plantations would be economically viable on the subject land. Similarly, the respondent did not successfully challenge the conclusion of Mr Jones that there is "ongoing expansion of commercial sandalwood plantations in the wheatbelt region of Western Australia, including significant investment by the State Government through the FPC's sandalwood share farming projects and the high level private investment by commercial plantation companies and individual farmers."
115 The respondent did not challenge the basic premise that sandalwood plantations were an agricultural resource. There is no reason to believe that the subject land cannot be used for sandalwood plantations. The evidence of Mr Jones indicates that sandalwood plantations on the subject land will be economically viable, that the lot sizes are suitable, and that there is increasing demand for land in the wheatbelt region and in the Shire land for the purpose of sandalwood plantations.
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116 The Tribunal finds that the applicant has met planning requirements to demonstrate that sandalwood plantations will be viable on the subject land after the proposed subdivision. This finding, combined with the finding that the applicant has demonstrated that rainfall is a suitable water supply, leads the Tribunal to conclude that the land will not be lost as an agricultural resource.
117 However, the applicant did not prove that all of the subject land would be used for the proposed use of sandalwood plantations. Indeed, the applicant stated that this may not occur and that if the land was not used for sandalwood plantations, it would continue to be used for broadacre cropping and grazing.
118 The respondent argued that if the land was used for broadacre farming, that the applicant had failed to demonstrate that broadacre farming would be viable on the newly created smaller lots as part of the proposed subdivision. From that, they argued that if the smaller lots were not viable, the land would be lost as an agricultural resource.
119 On this matter, the Tribunal had the benefit of the expertise of Mr Wells. The Tribunal accepted that based on his local knowledge through site visits and analysis of aerial photographs, the subject land (after subdivision) could continue to be used for broadacre farming, the basic argument being that the proposed lots are located on good to high quality agricultural land and that proposed lot sizes are consistent with the typical lot sizes in the locality which are currently being used for broadacre farming.
120 The Tribunal finds that the applicant has demonstrated, through the evidence of two experts who appeared before the Tribunal, that the proposed lots will be economically viable for the proposed intensive agricultural use and the continuation of broadacre farming, and further finds that the land will not be lost as an agricultural resource.
Whether the applicant has demonstrated that the proposed subdivision will not adversely affect the use of land for agricultural purposes in the area
121 This issue appears to arise from cl 3.6.2(i)(d) of TPS 2 where the Council will recommend subdivision if "[i]t is proposed to create lots for intensive agricultural purposes and it can be demonstrated that the proposal will not adversely affect the use of land for agricultural purposes in the area".
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122 The question of whether the proposal would result in the loss of land for agricultural purposes is dealt with in issues relating to viability and conflict with the planning framework.
123 The respondent was not particularly clear on this issue. Mr Bouwhuis, in his witness statement, stated on a couple of occasions that the applicant had not demonstrated that the proposal would not adversely affect the use of land for agricultural purposes, but the matter was not specifically developed in relationship to the issue. In [65] of his witness statement, he refers to the limitation of detrimental impacts on other farms in the area.
124 When explaining the respondent's position on this issue during the hearing, Mr Bouwhuis related this issue to possible conflicts if the new subdivided lots were to be used for lifestyle purposes. The issue of the risk of creating lifestyle lots is discussed later in these reasons. Mr Bouwhuis argued that if the lots became lifestyle lots, there was the potential for conflict between residential/lifestyle uses on new subdivided lots and agricultural uses on adjoining lots, the rationale being that the conflict may adversely affect agricultural operations on adjoining lots.
125 During the hearing, the Tribunal asked Mr Bouwhuis whether he considered there would be "a possible conflict between the proposed sandalwood operations and adjoining broadacre farm use, including broadacre farm use within the subdivision".
126 Mr Bouwhuis answered: "No, I can't see there being a conflict". Mr Bouwhuis then confirmed that the adverse effect on the use of land for agricultural purposes would arise out of the potential creation of lifestyle lots.
(vii) The transfer of land as a Crown Reserve, free of cost to the Western Power Corporation for the provision of electricity supply infrastructure. The specific location and area of land required is to be to the satisfaction of the Western Australian Planning Commission (Western Power).
(viii) Each lot is to be provided with at least one dam to the requirements and satisfaction of the Western Australian Planning Commission.
(ix) The subdivider of the land shall make arrangements to ensure that prospective purchasers of the proposed lots
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- are advised in writing that provision of a reticulated sewerage service swill not be available to the lots and that all future dwellings on the lots will need to be connected to on-site effluent disposal system(s) (Local Government).
- (x) Prior to the commencement of any siteworks and development activity a subdivision works management plan demonstrating that siteworks will not interfere, alter or pollute any wetland, watercourse, surface water expression or groundwater in the area, or alter the water quality of such waters is to be submitted. This subdivision works management plan is to be submitted prior to the commencement of works and is to be to the specifications of the Department of Water. All development activity on the subject land is to comply with that plan (Department of Water).
(xi) Measures being taken to ensure the identification and protection of any vegetation on the site worthy of retention prior to the commencement of siteworks (Local Government).
(xii) The subdivider of the land shall make arrangements to ensure that prospective purchasers of the proposed lots are advised in writing that provision of a reticulated water service will not be available to the lots and prospective purchasers will be obliged to make their own arrangements to obtain a satisfactory supply of water for domestic, fire fighting and agricultural purposes (Local Government).
- I certify that this and the preceding [164] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR R EASTON, SENIOR SESSIONAL MEMBER
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