| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : COX and SERPENTINE JARRAHDALE SHIRE [2011] WASAT 177 MEMBER : MR L GRAHAM (SENIOR SESSIONAL MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 9 NOVEMBER 2011 FILE NO/S : DR 81 of 2011 BETWEEN : GREGORY COX BRUCE MOORE
Applicants
AND
SERPENTINE JARRAHDALE SHIRE
Respondent
Catchwords: Town planning Development Refusal Rural worker's dwelling Close proximity to existing dwelling Unacceptable development criteria Undesirable precedent Orderly and proper planning Rural use Seriously entertained planning proposal Legislation: Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 241(1)(a), s 252(1)
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Serpentine Jarrahdale Shire Town Planning Scheme No 2, cl 5.10.1, cl 5.10.3, cl 5.10.3(a)(iv), cl 5.10.3(c), cl 9.1.2, cl 9.2, Appendix 1, Table 1
State Administrative Tribunal Act 2004 (WA), s 32(4) Result: Application for review dismissed Category: B
Representation: Counsel:
Applicants : Self-represented
Respondent : Mr J Algeri (Acting as agent)
Solicitors:
Applicants : N/A
Respondent : Algeri Planning & Appeals (Town Planners)
Case(s) referred to in decision(s):
Agnew Clough Ltd v Town Planning Board (WATPAT, No 1 of 1979, 1 May 1980 Unreported)
Architects Haywood and Bakker Pty Ltd v North Sydney Council [2000] NSWLEC 138
Evers & Anor and Shire of SerpentineJarrahdale [2008] WASAT 5
Marford Nominees Pty Ltd v State Planning Commission (WATPAT, No 11 of 1994, 23 February 1995, unreported)
Nicholls and Western Australian Planning Commission [2005] WASAT 40
Pirret and Shire of SerpentineJarrahdale [2009] WASAT 211
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REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision 1 This matter involved an application for review of the refusal by the Serpentine Jarrahdale Shire to grant development approval for a rural worker's dwelling at No 111 (Lot 2) Jarrahdale Road, Jarrahdale. 2 Serpentine Jarrahdale Shire refused the application as it considered that the rural uses described were not of sufficient scale to justify the application, and that the proposed development was inconsistent with relevant planning objectives; specifically that the proposed rural worker's dwelling was not considered to be in close proximity to the existing dwelling. Also, that the proposed development was contrary to the principles of orderly and proper planning and would establish an undesirable precedent. 3 The Tribunal found that in terms of the existing rural use, and work carried out to date and planned for the future to broaden rural activity by way of additional investment and research, a rural worker's dwelling was justified. Also, that these activities were consistent with a number of the broad rural objectives of the relevant planning documents. 4 However, the Tribunal also found that what was not consistent with these objectives, was to establish a rural worker's dwelling some 230 metres from the existing dwelling in an isolated and standalone position that was not in close proximity to the existing dwelling. 5 Again the Tribunal found that to locate the dwelling as planned would not minimise the risk of ad hoc subdivision in the future, and that an approval could give rise to similar applications from other nearby landowners in like circumstances to the detriment of the rural zone. 6 The application for review was therefore dismissed.
Introduction 7 The matter involves an application by Mr Gregory Cox and Dr Bruce Moore (applicants) pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) for review of a refusal by the Serpentine Jarrahdale Shire (Council, Shire or respondent) to grant planning approval for the development of a rural worker's dwelling at No 111 (Lot 2) Jarrahdale Road, Jarrahdale (subject site). (Page 4)
Subject site 8 The subject site is owned by BH Moore & Family Investments Pty Ltd. Dr Moore conducts the Warnbro Veterinary Hospital as the sole proprietor and principal veterinarian at No 655 Safety Bay Road, Warnbro. 9 The site is 16.826 hectares in area and is located on the northern side of Jarrahdale Road some 900 metres east from its intersection with the South Western Highway. 10 The property slopes from north to south. There is an existing brick and concrete (subterranean) house positioned towards the northern rear boundary, together with a nearby farm shed and two 100,000 litre concrete water tanks. There is no scheme water or sewerage services. 11 Access to the residence is via an unsealed northsouth driveway from Jarrahdale Road, which crosses a tributary of the Medulla Brook traversing the property in an eastwest direction. 12 An additional unsealed driveway leading east from the main driveway has been constructed to the unfinished rural worker's dwelling, positioned on timber stumps towards the centre of the property. It is this unfinished structure, referred to as the Nurse McKimmieScott Residence that was the subject of an application for approval to commence development dated 23 August 2010. This application was refused by the Shire on 25 January 2011. 13 There are a dozen or more sheep (Suffolk breed) on the property with several horses (Clydesdales) and, in an undated document titled 'Planning Submission for Lot 2 (#111) Jarrahdale Road, Jarrahdale' received by the Shire on 15 June 2011, there is a comprehensive submission on improvements commenced since January 2011 and planned for the future. These improvements include: reestablishing an existing dam, construction of a new dam, construction of new fences and a pasture seeding and tree planting program along with orchard development and a Suffolk stud enterprise.
Proposed development 14 The application for planning approval was for a rural worker's dwelling with the intent being to relocate the Nurse McKimmieScott Residence from Armadale to the subject site and to restore and faithfully renovate the Federation style home. Although the main structure of the relocated dwelling has been positioned some 230 metres from the existing (Page 5)
(subterranean) residence, a considerable amount of work to reinstall roofing, verandas and make good the internals of the building is still required to bring it to a habitable state. 15 The relocated dwelling (built around 1900) was originally located at the corner of Little John Road and Railway Avenue, Armadale, and was listed on the City of Armadale's Municipal Heritage Inventory Review 2008. The City of Armadale acquired the property as a consequence of a road realignment and sought expressions of interest to relocate and preserve the building at no cost to them. 16 Due to strict time constraints, Dr Moore, who successfully bid for the residence, was obliged to relocate the dwelling to the subject site on 7 December 2011. 17 The overall intent of the owner is that a full time farm manager and his wife (Mr and Mrs Cox) will occupy the relocated dwelling.
Planning framework 18 The subject land is zoned Rural in the Metropolitan Region Scheme (MRS) and rural in the Serpentine Jarrahdale Shire Town Planning Scheme No 2 (Scheme or TPS 2). 19 Of relevance is State Planning Policy No 2.5 Agricultural and Rural Land Use Planning (SPP 2.5). The Tribunal must give due regard to SPP 2.5 as required by s 241(1)(a) of the PD Act. 20 Under the 'Policy Objectives' of SPP 2.5, policy objective 1 aims to: 1. Protect agricultural land resources wherever possible by[:] 21 Under TPS 2 a definition of the Rural zone is found at cl 5.10.1. It states: 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. (Page 6)
22 Clause 5.10.3 of the Scheme states: (a) The Council may permit the construction of an additional dwelling on a lot within the rural Zone provided that: (i) the lot has a land area of not less than 4 hectares; and (ii) the total number of dwelling[s] on the lot will not exceed two; and (iii) the additional dwelling is to be used for the purposes of a rural worker's dwelling as defined in Appendix 1 of the Scheme; and (iv) the additional [dwelling] is located within close proximity of the existing dwelling on the lot as determined by the Council and shares all services where practical. … 23 The matter of subdivision is also addressed at cl 5.10.3(c): The existence of more than one dwelling on a lot within the rural Zone shall not be considered as sufficient grounds for subdivision. 24 Under the Scheme at 'Table 1 Zoning Table', a rural worker's dwelling is an 'AA' use within the rural zone, meaning that the Council may, at its discretion, permit the use. 25 A rural worker's dwelling is defined in Appendix 1 of TPS 2 as a dwelling: 26 A rural use is also defined in Appendix 1 of the Scheme as: (Page 7)
(iii) the stabling, agistment or training of horses, or other ungulates; … 27 Under cl 9.1.2 of the Scheme: [a]ny Local Planning Policy prepared under this Part shall be consistent with the Scheme and where any inconsistency arises the Scheme shall prevail. 28 The relationship between a local planning policy and the Scheme is explained in cl 9.2: A Local Planning Policy is not part of the Scheme and shall not bind the Council in respect of any application for planning approval but the council shall have due regard to the provisions of any Policy and the objectives which the Policy is designed to achieve before making its decision. 29 Of particular interest to the parties is the relevance, or otherwise, of Serpentine Jarrahdale Shire's Draft Local Planning Policy No 46 Rural Workers['] Dwellings (LPP 46). The objectives of LPP 46 are to: • Support rural enterprises within the Shire; • Provide direction on the establishment of genuine rural workers['] dwellings; • Ensure that rural workers['] dwellings are provided, constructed and located in such a way so as to minimise their impact on the surrounding amenity and landscape; • Ensure rural workers['] dwellings are associated with an existing and approved rural use; • Limit the opportunity for a rural worker[']s dwelling to establish and facilitate land subdivision; and to • Ensure that the rural worker[']s dwelling is incidental to a [predominant] rural use. 30 Part 2.0 'Background' of LPP 46 explains: … Providing a residence for additional farm workers or a manager can be crucial where the scale and nature of the farm enterprise routinely requires additional employees on site. In accordance with state planning policy, the Shire believes the provision for Rural Workers['] Dwellings shall be associated with a genuine approved rural use, provide accommodation for workers employed for agricultural activities on a particular landholding, generally be clustered (Page 8)
together to avoid future subdivision pressure and share services with the primary dwelling where possible. … 31 Part 7.0 'Policy Provisions' of LPP 46 includes: … 7.3 Applications for development approval shall also be assessed against the acceptable, performance based criteria and unacceptable provisions set out in Table 1 and Table 2 of this Policy. … 7.6 Applications for development approval which achieve one or more of the 'Unacceptable Development' criteria will be deemed unacceptable and automatically refused. 7.7 Rural workers['] dwellings shall not be approved except where the dwelling is associated with an approved and genuine rural use. The Shire must be satisfied in each case that the intentions of the landowner are genuine and the need for the dwelling is capable of being maintained for a reasonable period of time. Justification as to why the rural worker[']s dwelling is warranted shall be provided as part of the development application. … 7.11 Rural Workers['] Dwellings are to be constructed to a maximum floor area of 200 [square metres]. 7.12 Additional dwellings should be constructed of a similar material and exterior finish as the primary dwelling on the lot. … 7.16 Rural Workers['] Dwellings should be appropriately screened from public roads and potential conflicting land uses (eg. intensive livestock operations, livestock yards etc) to ensure rural amenity is preserved and dwellings are not prominent from major thoroughfares. 7.17 The landowner shall be directly involved in the primary approved rural use operating on the subject land. … 7.19 Subdivision applications arising from the establishment of rural workers['] dwellings will not be supported by the Shire. (Page 9)
7.20 The occupiers of the existing dwelling and proposed rural worker[']s dwelling are to be principally employed or engaged by the landowner or agent of the approved rural use, on a full time basis. 7.21 Applicants shall place a Section 70A Notification of Title prior to occupancy of the dwelling at the Applicants['] cost. 7.22 Approval for Rural Workers['] Dwellings shall only be granted on the basis that the dwelling is not occupied should the use of the land for the purpose for which the dwelling was constructed [cease] for a period of more than six months. 32 Table 1 'Additional Requirements for Rural Workers['] Dwellings' of LPP 46 includes 'Unacceptable Development' criteria which would lead to an automatic refusal in accordance with Pt 7.0 Policy Provisions cl 7.6 of LPP 46. These include: • A separation distance between the primary dwelling and the rural worker's dwelling greater than 100 metres. • The rural worker's dwelling proposes a new separate road access way. • The location of effluent disposal impacts on surrounding waterways and native vegetation due to the impact of nutrient loads. • Isolated or visually prominent locations. 33 Of relevance is the Serpentine Jarrahdale Shire Rural Strategy (SRS) and the objectives of the Agricultural Protection Policy Area (APPA) into which the subject land falls. 34 The 'Overview' of the APPA includes: … The protection of the capacity of land for agricultural production is the most significant and overriding [sic] objective of the Policy Area. The protection of rural lifestyle and rural character are also significant objectives in the use and development of land … 35 The 'Policy Objectives' of the APPA include: AP1. To retain and maintain the productive capacity of land for agricultural enterprises in proximity to Perth and its markets. (Page 10)
AP2. To ensure that the productive agricultural enterprise remains the primary land use and to maintain the integrity of agricultural infrastructures[.]
The refusal 36 The application for approval to commence development was refused by the Shire on 27 August 2010 for the following reasons: 1. The proposed development is inconsistent with the objectives of the 'Agricultural Protection Policy Area' of the Shire of Serpentine Jarrahdale Rural Strategy. 2. The proposed development is inconsistent with the requirements of clause 5.10.3(a)(iv) of Shire of Serpentine[]Jarrahdale Town Planning Scheme No 2 [insofar] as the proposed dwelling is not considered to be in close proximity to the existing dwelling. 3. The rural use of the land described in the application is not of sufficient scale to justify the establishment of a rural worker[']s dwelling. 4. The proposed development has the potential to establish an undesirable precedent. 5. The proposed development is contrary to the principles of orderly and proper planning.
Planning issues 37 The principal planning issues are: 1) Is the proposed development and associated rural use (existing and proposed) consistent with the relevant objectives of SPP 2.5, the SRS and TPS 2? 2) What weight should be placed on draft LPP 46 and its planning objectives? 3) Is the location of the relocated dwelling within close proximity to the existing dwelling for the purposes of cl 5.10.3(a)(iv) of TPS 2? 4) Is the rural use described in the application of sufficient scale to justify the establishment of a rural worker's dwelling? (Page 11)
Assessment of proposal
The matter of state and local policy objectives (rural and agricultural zones) 38 The relevant prime objectives of SPP 2.2, the SRS and TPS 2 can be linked and summarised as: • To protect the capacity of the land for agricultural production. • To improve resource and investment security for agricultural land and allied industry production. • To protect the rural lifestyle and rural character. • Minimise the ad hoc fragmentation of rural land. 39 At the present time it could be argued that the property, with a small number of sheep and horses, is little more than a hobby farm but based on a planning submission received by the Tribunal from the owner on 15 June 2011, the following is relevant: • There has been no soil improvement or pasture establishment for over 25 years, with the property having been in a state of disrepair. • An existing dam (4,500 cubic metres) is being reestablished and approval has been given for a new dam (32,500 cubic metres) which will allow water to be pumped to the highest point on the property with gravity reticulation to the whole farm. • Original internal fencing and metal and timber rubbish have been removed and new fencing begun. • A Suffolk stud breeding program has commenced. • A 'fodder system' unit to produce 340 kilograms of fodder per day is planned for 2011 to eliminate the need for (Page 12)
40 In the view of the Tribunal, although the work program for the subject land is in its early stages, various approvals have been given and purchases have already been made to protect the long term rural use and productive capacity of the property.
The matter of the weight to be given to draft LPP 46 41 The matter of whether a planning proposal should be 'seriously entertained' is addressed in Nicholls and Western Australian Planning Commission [2005] WASAT 40 (Nicholls). At [42] of that decision the Tribunal notes an earlier decision in Agnew Clough Ltd v Town Planning Board (WATPAT, No 1 of 1979, 1 May 1980 unreported) which states: A planning proposal 'seriously entertained' is one that has a real likelihood of being adopted, although, in Western Australia, where planning proceeds upon the more flexible instruments of policy, it is not necessary that the policy be given legal operation unless inconsistent with the provisions of an operative town planning scheme. 42 At [59] of Nicholls, Senior Member (now Judge) Parry expressed an opinion based on the Town Planning Appeal Tribunal in Marford Nominees Pty Ltd v State Planning Commission (WATPAT, No 11 of 1994, 23 February 1995, unreported) and Pearlman J in Architects Haywood and Bakker Pty Ltd v North Sydney Council [2000] NSWLEC 138 in which he identified four principal criteria which should be utilised to determine the weight to be given to a draft planning instrument or policy. These are: (Page 13)
43 In the respondent's submissions of 19 September 2011, it is argued by Mr J Algeri of Algeri Planning & Appeals that as the draft policy has been publically advertised, and only three letters of nonobjection from government agencies were received, draft LPP 46 should be regarded as a seriously entertained planning proposal. 44 In a submission dated 27 September 2011 in response to the respondent's submission, Mr J Hussey, Senior Planner Dykstra Planning, for the applicant, argues that the weight given to draft LPP 46 should be assessed in the context that: (a) the 'draft' policy had not been advertised at the time of the Shire's refusal; (b) the 'draft' has still not been adopted; and (c) it is not consistent with TPS objectives, is overly restrictive and will limit incentives to undertake rural uses in the rural zone. 45 In the view of the Tribunal, it is the case that draft LPP 46 does address the specific application and is based on the sound town planning principles of supporting rural enterprises within the Shire and limiting the opportunity for a rural worker's dwelling to establish and facilitate land subdivision. What is not so clear is whether the advertised draft is imminent or certain, or will proceed in its original or modified form. 46 Nevertheless, what is clear is that draft LPP 46, through the advertising process, is being seriously entertained by the Shire and that its provisions relating to separation distance between dwellings, services and siting and design are of assistance to the Tribunal in this matter in understanding the respondent's planning rationale. Also, under s 32(4) of the State Administrative Tribunal Act 2004 (WA): The Tribunal may inform itself on any matter as it sees fit. 47 Accordingly, the Tribunal will consider the provisions of draft LPP 46 as an important guide, but will not attach determinative weight to its provisions in the absence of a finalised policy. (Page 14)
Is the location of the relocated rural worker's dwelling in close proximity to the existing dwelling for the purposes of cl 5.10.3(a)(iv) of TPS 2? 48 The Tribunal is assisted in Evers & Anor and Shire of SerpentineJarrahdale [2008] WASAT 5 (Evers) and Pirret and Shire of SerpentineJarrahdale [2009] WASAT 211 (Pirret). 49 In Evers a rural worker's dwelling was sought 120 metres west of an existing dwelling on a 40.10 hectare property zoned Rural in TPS 2. 50 In his reasons, Senior Sessional Member Easton dismissed the application for review and found: … the proposal fails to meet the requirements of 'close proximity' because the services and access road are not shared and because the 120 metre separation distance (which includes a significant eastwest separation) may create potential for future subdivision pressure. 51 A number of relevant points were made in the reasons, including: 1) Prior to the inclusion of cl 5.10.3 into the Scheme, the respondent had an informal policy of requiring a rural worker's dwelling to be located within 30 metres of an existing dwelling. 2) The respondent continued to apply the maximum separation distance of 30 metres after cl 5.10.3 was incorporated into the Scheme in order to avoid pressure for subsequent subdivision. 3) That 'close proximity' is a relative term and only has meaning in the context of the locality and the size of the subject land. Also, that the 30 metre limit was an arbitrary distance. 52 In Pirret a rural worker's dwelling was sought 270 metres from an existing dwelling on a 44.6 hectare property zoned Rural in TPS 2. 53 In his reasons Member Jordan allowed the application for review subject to conditions. 54 A number of relevant points were made in the reasons, including at [36]: (Page 15)
… Unlike in Evers, it is proposed that the second house on the site use existing amenities, specifically the crossover and driveway, electricity points and a water tank. And at [37]: A significant point is that the proposed house would be in line with the existing house, perpendicular to Manning Road. There would be no lateral separation parallel to Manning Road. Notwithstanding cl 5.10.3(c), there would not be available a separation distance between the dwellings relative to constructed road frontage that might be used to support a future subdivision application. And at [44]: Absent any other characteristics particular to this proposal the proposed separation between the houses of about 270 metres would not be 'close proximity' for the purposes of TPS 2 cl 5.10.3(a)(iv). If the proposed rural worker[']s dwelling site were to be moved north or south parallel to Manning Road then it would be difficult to distinguish this matter from Evers. 55 In documents before the Tribunal it appears that prior to December 2004 no parameters existed for dwelling separation distances in the rural zone. However, at that time, Amendment 127 to TPS 2 came into force and introduced cl 5.10.3. The amendment was designed to bring TPS 2 into line with SPP 2.5, in particular cl 5.2.2(iv) of that policy which states: Provisions in the town planning scheme to allow more than one dwelling on a lot in the 'General Agriculture' zone will not be supported unless the additional dwelling(s) provides – (a) accommodation for workers employed for agricultural and intensive agricultural activities on that holding; and (b) the dwellings should generally be clustered in one location, to avoid future subdivision pressure and minimise constraints on adjoining uses; and (c) all services to the dwellings from the lot boundary (including access roads) are shared where practicable. 56 In the matter before the Tribunal the planning framework now includes draft LPP 46. This document did not exist at the time of Evers or Pirret and appears designed to reduce the arbitrary nature of the decisionmaking process relating to separation distances between dwellings on rural land. (Page 16)
57 For instance, in draft LPP 46, a separation distance greater than 100 metres between dwellings is unacceptable, as is a new separate road access way to the rural worker's dwelling, or that dwelling being isolated or in a visually prominent location. 58 What is important in the decisionmaking process, is to understand that both state and local policy is designed to support a secondary dwelling on a rural property for a genuine full time worker on that property providing the secondary dwelling is in close proximity to the primary dwelling and sufficiently close to utilise common services where practical and, above all else, to minimise the risk of ad hoc subdivision. In Pirret, where the separation distance between dwellings was 270 metres, the risk of subdivision was still minimised. 59 On the question of the separation distance between dwellings, the Tribunal accepts the argument in Evers and Pirret that the term 'close proximity' is a relative concept, and very much relates to the size of the land. That is to say, a separation distance between dwellings of 200 metres on a 50 hectare property may be interpreted as the dwellings being in close proximity to one another, but not so on a 20 hectare lot or a 16.8 hectare lot, as is the case in this matter. 60 In the case before the Tribunal, although both dwellings would utilise the same crossover from Jarrahdale Road and internal access road, the distance of 230 metres between the existing primary dwelling and the proposed secondary rural worker's dwelling cannot reasonably be interpreted as the dwellings being in close proximity to one another. 61 Also, it is clear to the Tribunal that the original decision to locate the primary (subterranean) dwelling in the far northwest corner of the property and the proposed rural worker's dwelling toward the centre of the property would be conducive to future subdivision pressure; possibly in the form of a battle axe lot, as evidenced one lot removed to the west of the subject land. 62 The Tribunal also believes that a 'faithfully restored' Nurse McKimmieScott Residence with heritage value in an attractive garden setting, and located towards the centre of the subject land as proposed, would only add to subdivision pressure in the long term. (Page 17)
Is the rural use proposed of sufficient scale to justify a rural worker's dwelling? 63 In the respondent's submissions of 19 September 2011, the legitimate question was raised as to whether the role of the rural worker is to be more that of a caretaker only, in the absence of the landowner working on the property on a full time basis. The question was raised in the context of cl 7.20 of draft LPP 46 which states: The occupiers of the existing dwelling and proposed rural worker[']s dwelling are to be principally employed or engaged by the landowner or agent of the approved rural use, on a fulltime basis. 64 In the applicants' submission of 28 September 2011 in response to the respondent's submissions of 19 September 2011, it states: 6. … it is not considered a reasonable or sensible approach to suggest that rural workers['] dwellings should only be permitted if the owner/occupant of the original dwelling is fully engaged in work on the land. In many instances a property owner may be able to provide capital and expertise but may still need assistance from a rural worker to result in a successful rural enterprise. … 8. … It is suggested that if the Shire makes it difficult for landowners to undertake such rural pursuits and/or engage others to undertake such pursuits then the overall objective of the rural zone will not be met and much of the land within the rural zone will remain degraded, underutilised or unproductive as the subject land was prior to purchase by the current owners. 65 The Tribunal accepts the argument of the applicants in this case and, despite the relatively small size of the subject land, the approvals given to date for a new dam and work and research undertaken and planned for the future, accepts that a rural worker's dwelling is justified in this instance. 66 However, what is particularly unfortunate in this case is that the Nurse McKimmieScott Residence required removal from its site in Armadale by a specific date and was then transported and positioned on the subject land without the necessary planning approval. (Page 18)
Would an approval for the proposed development establish an undesirable precedent? 67 In Nicholls the Tribunal discussed the concept of adverse planning precedent and advised that for precedent to be a relevant planning consideration, each of the following two tests must be satisfied: 68 In the respondent's submissions of 19 September 2011 it is advised that: 69 In the applicants' submission of 28 September 2011, in response to the respondent's submission, it is advised that: 70 The Tribunal's view is that the principal issue before it is not the admirable restoration of the Nurse McKimmieScott Residence but its proposed location on the subject land relative to the existing dwelling, and the risk that this creates for a future subdivision application on this and nearby land. 71 In the terms of [67] above, the proposed development would establish an undesirable precedent.
Is the proposed development contrary to the principles of orderly and proper planning? 72 This question is best addressed by assessing the proposal against the relevant provisions of both the statutory and policy instruments. (Page 19)
73 In that respect, there is no issue regarding the existing and proposed rural uses on the property in the context of SPP 2.5 and TPS 2 or the relocation and restoration of a residence with heritage value. What is an issue is the proposed location of the rural worker's dwelling and the risk that an approval would pose to the ad hoc fragmentation of nearby rural land and the principles of orderly and proper planning. 74 However, if the proposed development had been proposed somewhere within a 100 metre arc from the existing residence in line with the intent of draft LPP 46, the Tribunal would, in all probability, not have refused the development. The risk to a future ad hoc subdivision would have been significantly minimised.
Conclusion 75 The Tribunal has assessed this matter in the context of the relevant objectives of the statutory and policy documents, as well as the draft LPP 46, along with the question as to whether a rural worker's dwelling is justified in this instance and whether an approval would be contrary to orderly and proper planning and/or establish an undesirable precedent. 76 The Tribunal believes that, in terms of work done to date to establish the existing rural activity and to broaden that activity in the future by way of additional investment and research, a rural worker's dwelling is justified at least into the foreseeable future. The Tribunal also believes that these activities are entirely consistent with a number of the broad rural objectives of the relevant planning documents. 77 What is not consistent with these objectives is to establish a rural worker's dwelling some 230 metres from the existing dwelling and in a 'standalone' position that is not in close proximity to the existing dwelling in terms of a relatively small 16.8 hectare rural lot. 78 Also what is not consistent with these objectives is to locate the rural worker's dwelling in such a position that could give rise to a future subdivision application. An approval now would not minimise the risk of ad hoc subdivision into the future, and could give rise to similar applications from other nearby landowners in like circumstances. 79 The Tribunal also concludes that it is particularly unfortunate that the owner was required to move the Nurse McKimmieScott Residence from Armadale to the subject land before a decision on the application had been made by Council. However, only the basic structure has been positioned and, if relocated in close proximity to the existing residence, could then be (Page 20)
completed with roofing, verandas and all internal fittings and without risk to the owner's long term plans for the property. 80 The Tribunal does not accept the argument of the applicants that the two buildings in close proximity would architecturally clash as the existing building has been designed as an inconspicuous subterranean dwelling and, in the event of a future separation distance in the order of 100 metres maximum, should the owner proceed with a new application, any perceived issue would fall away. 81 The Tribunal determines that the proposed development of a rural worker's dwelling on the subject land be not allowed.
Order 82 The Tribunal makes the following order: 1. The application for review is dismissed. |