DELLA-SALE and Western Australian Planning Commission

[2013] WASAT 137

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION:   DELLA-SALE and WESTERN AUSTRALIAN PLANNING COMMISSION [2013] WASAT 137

MEMBER:   MS R MOORE (MEMBER)

HEARD:   28 MAY 2013

DELIVERED          :   26 AUGUST 2013

FILE NO/S:   DR 439 of 2012

BETWEEN:   LAWRENCE DELLA-SALE

CHARLES JOSEPH DELLA-SALE
Applicants

AND

WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Town planning ­ Subdivision of rural land ­ Refusal of two lot subdivision ­ Whether proposal is for an unusual or unanticipated purpose ­ Whether an unusual or unanticipated circumstance ­ Whether necessary in the public interest

Legislation:

Greater Bunbury Region Scheme
Planning and Development Act 2005 (WA), s 252(1)
Shire of Dardanup Town Planning Scheme No 3, cl 2.2

Result:

Application for review dismissed
Decision of respondent affirmed

Summary of Tribunal's decision:

This matter involved an application for review of the refusal of the Western Australian Planning Commission to approve a subdivision of a 63.4 hectare rural lot into two lots of 18.9 hectares and 44.5 hectares.   The lot is located on Boyanup­Picton Road, Crooked Brook in the Shire of Dardanup.

The Commission refused the subdivision application on the basis that it was not consistent with the relevant planning framework and through ad hoc fragmentation would result in the loss of agricultural land and be detrimental to the rural character and amenity of the locality.

The applicant argued that the proposed subdivision was consistent with the relevant planning framework in that it satisfied clause 4.1(f) of the Commission's Development Control Policy 3.4 Subdivision of Rural Land, which referred to unusual and unanticipated purposes that were not in conflict with the Commission's policies and were necessary in the public interest.

The Tribunal found that, notwithstanding the evidence put forward that the property had been physically divided and farming operations run independently by the two applicants since 1974, the proposal was not for an unusual or unanticipated purpose, nor was it considered to be an unusual or unanticipated circumstance.  It was not necessary for the Tribunal to determine whether the proposal was in conflict with the Commission's policies or whether the proposal was in the public interest.

The application for review was therefore dismissed and the Commission's decision to refuse the subdivision application was affirmed.

Category:    B

Representation:

Counsel:

Applicants:     Mr H Dykstra (Acting as Agent)

Respondent:     Mr M Cuthbert (Acting as Agent)

Solicitors:

Applicants:     N/A

Respondent:     Western Australian Planning Commission

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL: 

Introduction

1. These proceedings involve an application brought by Mr Lawrence Della‑Sale and Mr Charles Joseph Della‑Sale (applicants), 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 (Commission or respondent) dated 28 November 2012 to refuse subdivision approval of Lot 1 Boyanup‑Picton Road, Crooked Brook into two lots.

Previous subdivision applications

1. Similar applications have been made for the subdivision of the subject land into two lots in February and October 1994 and February 1998.  All of these applications for subdivision have been refused by the respondent.

Site and locality

1. The site is 63.4 hectare in size and located approximately 5 kilometres south of Dardanup and 4 kilometres north of Boyanup, on the western side of Boyanup‑Picton Road.  The site contains two existing habitable dwellings and currently supports small scale beef cattle grazing and hay production.

2. The Tribunal had the benefit of a view of the site in the company of the parties and their representatives on the morning of the hearing, 28 May 2013.

Proposed subdivision

1. The proposal is to subdivide the subject site into two lots.  Lot A (to the north) will have an area of 18.9 hectares and Lot B (to the south) will have an area of 44.5 hectares.

2. The boundary between Lot A and Lot B generally reflects the line of an existing fence.  One existing habitable dwelling will be located on each of the proposed lots.  Both proposed lots have independent electricity supply, effluent disposal units, water tanks and telecommunications, and Lot A contains irrigation used to increase pasture growth for intensified cattle grazing.

Planning framework

1. The subject site is zoned Rural under the Greater Bunbury Region Scheme and General Farming under the Shire of Dardanup Town Planning Scheme No 3 (TPS 3).

2. Clause 2.2 of TPS 3 contains the following objectives for land zoned General Farming:

   •To provide for a wide variety of productive farming activities, ranging from broadacre grazing to horticulture, which are compatible with the capability of the land and retain the rural character and amenity of the locality.

   •To protect areas of significant agricultural value, particularly those in irrigation districts, from conflicting land uses.

   •To facilitate low‑key tourist development where it is incidental to the use of the land for farming purposes and where land use conflict can be minimised.

3. The Commission's State Planning Policy 2.5 Agricultural and Rural Land Use Planning (SPP 2.5) was formerly Statement of Planning Policy 11 Agricultural and Rural Land Use Planning.  SPP 2.5 applies to the planning of rural land in Western Australia and clause 4 of SPP 2.5 sets out the objectives of the policy and relevantly includes the following:

   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

   c.improving resource and investment security for agricultural and allied industry production.

1. The Commission also has Development Control Policy 3.4 ‑ Subdivision of Rural Land (DC 3.4) which guides the subdivision of rural land in order to achieve the key objectives of SPP 2.5 which are to protect agricultural land, plan for rural settlement, minimise land use conflicts and manage natural resources.

2. Clause 3.1 of DC 3.4 states the following general policy requirement:

   It its WAPC policy that the subdivision of rural and agricultural land for closer settlement (rural-residential and rural-smallholdings) and more intensive agricultural uses should be properly planned through the preparation of regional and local planning strategies and provided for in local planning schemes prior to subdivision.

3. Clause 4.1 of DC 3.4 is of most relevance to the determination of this matter and is discussed in further detail later in these reasons.

4. The Shire of Dardanup (Shire) has prepared the Dardanup Rural Strategy (Rural Strategy) which was endorsed by the Commission in July 2000. The subject site is located within the area referred to as Crooked Brook Flats.  The Rural Strategy describes this area as predominantly flat non‑irrigated grazing land with minimal remnant vegetation.  Although it is considered to be good grazing land, it does not have a high capability for intensive agriculture, and poorly‑drained sandy duplex soils are predominant.

5. Page 90 of the Rural Strategy sets out the assessment criteria and development standards to be met before the Shire will recommend subdivision approval to the Commission:

   •The proposed uses are consistent with the objectives of the policy area.

   •The proposed lots shall have an area of 40 ha or greater.

   •The site has a land capability suitable for general farming.

   •Proof of an adequate groundwater supply or identification of a suitable dam site capable of fulfilling water supply needs.

   •Council is satisfied that there is a reasonable prospect of the land being used for the purpose stated in the subdivision application.

6. The Commission's South West Rural Subdivision Guidelines (SWRSG) 'provide further guidance where there are currently insufficient criteria in local government planning schemes or local planning strategies, particularly in relation to minimum lot sizes, soil and water requirements, to ensure that proposed rural lots are agriculturally sustainable.  The SWRSG are applied by the Commission in the Shire.

7. The subdivision criteria of the SWRSG state that:

   It is WAPC policy that, in the absence of the planned provision for closer settlement and more intensive agricultural uses, existing large rural lots be retained for broadacre and traditional forms of farming and that the fragmentation of rural land and loss of rural character through piecemeal, unplanned subdivision not be permitted.

   However, the WAPC will consider the creation of lots that achieve a minimum lot size of 80 ha.

   In addition, in the case of subdivisions creating new or additional lots on 'rural zoned land', new lots of less than 80 ha will not be supported, except where the lot is a minimum of 40 ha and all of the following criteria are met:

   •An agronomist's report or similar demonstrates that each new lot will contain a minimum of 30 ha of land with a high‑capability rating (class 1 or 2) for annual or perennial horticultural production.

   •A hydrologist's report or similar demonstrates that each new lot has long‑term, secure access to a supply of water of a sufficient quantity and quality as applicable to the potential agricultural production on that land, and the Department of Water is prepared to agree that the capture of that water is within the limits of an endorsed water allocation management plan or is within the sustainable yield for that sub‑catchment.

   •The total lot area incorporates the minimum area of 30 ha of high‑capability land, plus the water capture and/or storage area (as necessary), plus an area for farm infrastructure and buildings with sufficient setback from adjoining properties so as not to restrict potential agricultural productivity on those properties, setbacks from watercourses and wetlands, plus the retention of any remnant vegetation that should be protected from clearing.

Respondent's decision

1. The respondent refused the proposed subdivision on 28 November 2012 for the following reasons:

   1.The proposed subdivision is inconsistent with the 'General Farming' zoning objectives as set out by the Shire of Dardanup Town Planning Scheme No. 3 which requires the protection of areas of significant agricultural value as well as the rural character and amenity of the locality.

   2.The proposed subdivision is inconsistent with the Shire of Dardanup Rural Strategy.  The purpose and intent of this strategy is to ensure agricultural lots can be used for productive enterprise.  Subdivision in the manner proposed would create a lot which is not of a suitable size to allow for the carrying out of sustainable agriculture.

   3.The proposed subdivision is not consistent with the objectives and policies of Statement of Planning Policy No. 2.5 'Agricultural and Rural Land Use Planning' which seek to prevent the ad hoc fragmentation of rural land and require rural residential subdivision to be permitted only on land which is appropriately zoned.

   4.The proposal does not comply with the Commission's South West Rural Subdivision Guidelines which require a minimum lot size of40ha which is to contain a minimum of 30ha of high quality soils (class I and II) per lot (exclusive of headlands, firebreaks, waterways, setbacks, buffers, dams and land required for road widening) and the provision of suitable water for irrigation.

   5.The proposal is inconsistent with Development Control Policy 3.4 Subdivision of Rural Land, which requires that subdivision of rural and agricultural land for closer settlement be properly planned for through the preparation of regional and local planning strategies and provided for in Town Planning Schemes.

   6.Approval to the subdivision would set an undesirable precedent for the further subdivision of rural lots in the manner proposed.

The issues

1. The respondent identified two issues for consideration in this review, the first being whether the proposed subdivision is consistent with the relevant legislative and planning framework, and the second being whether approval would create an undesirable precedent for subdivision in the locality.

2. Mr Mathew Cuthbert, a town planner representing the respondent, contended that the proposed subdivision was not consistent with the planning framework which has a general presumption against subdivision and the ad hoc fragmentation of rural land.

3. Mr Henry Dykstra, a town planner representing the applicants, argued that the proposed subdivision was consistent with the planning framework, specifically clause 4.1(f) of DC 3.4, because it arose from unique and genuine circumstances and its ultimate purpose was to protect the ongoing agricultural use of the subject land.  Mr Dykstra also gave evidence as a planning expert for the applicants.

4. The relevant planning framework was addressed by both parties in their respective statements of issues, facts and contentions, as well as by the expert planning witnesses in their witness statements.  Mr Dykstra and the respondent's planning expert, Mr David Stapleton, prepared a joint statement which concentrated on the specific elements of clause 4.1(f) of DC 3.4.

5. In this statement, Mr Dykstra confirmed that the proposed subdivision was put forward primarily on the basis that it is consistent with clause 4.1(f) of DC 3.4.  It was Mr Stapleton's view that given the relevant planning framework, consistency with this clause was the only basis on which an approval could be granted.

6. This approach was discussed at the hearing by the parties and the Tribunal, and agreed as an appropriate way forward.  The hearing proceeded, and evidence was adduced and submissions made primarily in relation to whether the proposed subdivision satisfied clause 4.1(f) of DC 3.4.

Does the proposed subdivision satisfy clause 4.1(f) of DC 3.4?

1. As discussed earlier, DC 3.4 guides the subdivision of rural land to achieve the key objectives of SPP 2.5, which are to protect agricultural land, plan for rural settlement, minimise land use conflicts and manage natural resources.

2. Clause 4 of DC 3.4 states the policy measures for rural lots for farming and conservation, and clause 4.1 of DC 3.4 refers specifically to the retention of rural character and agricultural landholdings, and states that:

   It is WAPC policy that, in the absence of the planned provision for closer settlement and more intensive agricultural uses, existing large rural lots be retained for broadacre and traditional forms of farming and that the fragmentation of rural land and loss of rural character through piecemeal, unplanned subdivision not be permitted.

   The following forms of subdivision are not fragmentation, do not result in loss of rural character and may be permitted:

   (a)To realign lot boundaries for farming purposes and/or for access to landlocked lots, with no increase in the number of lots.

   (b)To reduce the area of large land parcels which are two or more times the area of typical lots used in the district for farming.

   (c)To protect and actively conserve places of cultural and natural heritage.

   (d)To allow for the efficient provision of utilities and infrastructure and/or for access to natural resources.

   (e)To allow for the continued occupation of existing houses when they are no longer used in a farming operation.

   (f)For other unusual or unanticipated purposes which, in the opinion of the WAPC, do not conflict with policy and are necessary in the public interest.

   The WAPC will exercise its judgement and discretion in applying criteria 4.2‑4.9 when assessing the merits of an application for the subdivision of rural and agricultural land.

3. Clauses 4.2 ‑ 4.9 of DC 3.4 refer to the following: prevailing lot sizes; significant physical division; public utilities and ancillary uses; boundary realignments; farm rationalisation; conservation of heritage buildings and places; conservation of biodiversity and natural heritage; and homestead lots.

4. The planning experts addressed clause 4.1(f) of DC 3.4 in their joint statement as three separate elements as follows:

   •Is the purpose/circumstance of the proposal unusual or unanticipated?

   •Does the proposal conflict with (other) policies?

   •Is the proposal in the public interest?

5. As discussed below, Mr Cuthbert questioned the experts' interpretation of clause 4.1(f) of DC 3.4, particularly in relation to the interchange of the word 'purpose' with the word 'circumstance'.

Is the proposal for an unusual or unanticipated purpose?

1. Mr Dykstra was of the opinion that the subdivision proposal was an unusual and unanticipated circumstance because:

   •the share title arrangement was established in 1974, at a time when issues associated with this title arrangement could have been more easily resolved;

   •each share of the share title has been farmed and managed for many years as an independent farming operation;

   •each of the current share title holders has owned the land since 1974, with each owner having established their own separate farming unit since that time;

   •there are issues associated with passing on the share title that creates a risk to both farming operations; and

   •the share title arrangement is not at all common, particularly in this local area.

2. Mr Stapleton disagreed with Mr Dykstra and asserted that the proposed use is a 'rural smallholding' lot which is a common land use in the area and a land use that has been anticipated by the respondent and planned for in the Dardanup Small Holdings Structure Plan area.

3. Mr Cuthbert submitted that the applicants have misinterpreted clause 4.1(f) of DC 3.4, as it refers to 'an unusual or unanticipated purpose', not an unusual or unanticipated circumstance.  He argued that the purpose of the proposed subdivision is the land use of agriculture, which is neither unusual nor unanticipated.  Mr Cuthbert also submitted that if the Tribunal found that 'purpose' could be extended to include 'circumstance', this was not an uncommon form of land tenure.

4. Clearly the policy does use the word 'purpose' and even if this was extended to include the word 'circumstance' as implied by Mr Dykstra's evidence and submissions, the Tribunal would not consider the proposed subdivision to be unusual or unanticipated for the following reasons.

5. The Tribunal has been provided with copies of two 'Records of Certificate of Title' which indicate that the two applicants each have undivided shares of Lot 1 on Deposited Plan 232768.  According to these documents, 'Mr Charles Joseph Della Sale' is the sole proprietor of 2/6 undivided shares as registered on 21 January 1974; and Mr Lawrence Della‑Sale is the sole proprietor of 4/6 undivided shares as registered on 1 July 2010.

6. It was Mr Dykstra's evidence that the two proprietors have farmed two separate parcels of land, as reflected by their respective undivided shares, for over 35 years and that the proposed subdivision is intended to formalise the current arrangement between the two proprietors in regard to these undivided shares.

7. Notwithstanding the evidence put forward that the property has been divided physically, and farming operations have run independently by the two applicants since 1974, the Tribunal does not consider the private arrangements made between the two proprietors of one lot to share the land in a certain way as being an unusual or unanticipated circumstance or purpose.  The Tribunal agrees with Mr Cuthbert that a title with undivided shares allocated to more than one proprietor is not an uncommon form of land tenure.

1. Mr Dykstra submitted that the land use of the proposed subdivision will remain agricultural and, in fact, this agricultural use will be protected by giving certainty to the current owners and enabling the two new lots to be passed on to future generations.  Mr Cuthbert also submitted that the purpose of the proposal was for agricultural land use albeit on smaller lots.  This was in contrast to the evidence of Mr Stapleton who argued that smaller lots would lead to the loss of agricultural land by becoming 'rural smallholdings'.  Whether or not reduced lot sizes would result in a change of land use in this case, the Tribunal finds that the proposed subdivision is not for an unusual or unanticipated purpose as both agricultural and rural smallholdings are common forms of land use.

Does the proposal conflict with policy?

1. As discussed above, Mr Dykstra contended that the proposal will recognise the longstanding use of this property as two individual farms and that this will 'facilitate the continued productive agricultural use on the land'.  He was of the opinion that the proposal is not unplanned or ad hoc subdivision, but rather, an orderly recognition of a longstanding division between two separate farming operations reflecting a longstanding share title arrangement.

2. He did not believe the proposal represented a 'rural smallholding', as the rural use was the primary use capable of supporting an independent productive agricultural operation.  The proposal will not change the land use or the character of the land as broadacre grazing land.

3. Mr Stapleton was of the opinion that the proposal would conflict with the policy that promotes the protection of agricultural land use by limiting unplanned and ad hoc subdivision.  It was his view that the policy intends to prevent further fragmentation of larger lots in favour of their larger scale efficiencies to meet industry needs.  The proposed lots would be primarily residential, due to their size, albeit with an associated rural pursuit (lifestyle/hobby farm) which may cause conflict with future landowners in relation to emissions.

4. The Tribunal has found, for the reasons given above, that the proposed subdivision is not for an unusual or unanticipated purpose (or circumstance) and therefore the Tribunal does not need to address whether the proposal is in conflict with policy in this context.  It should be noted that there are difficulties with the issue of whether the proposed subdivision would conflict with policy, particularly as clause 4.1 of DC 3.4 specifically states that the forms of subdivision listed 'are not fragmentation, do not result in loss of rural character and may be permitted'.

Is the proposal necessary in the public interest?

1. Mr Dykstra asserted that the purpose of the proposed subdivision was to remove uncertainty and the threat of future interference with ongoing management and use of each farm unit on the land.  He argued that the current situation carries a threat to each landowner's use of the land, due to two farms to be passed on to the next generation, and that, while there are two farms on one lot, the future of each farm in terms of ownership, management, viability and certainty will always be under the influence of the other farm unit.

2. Mr Stapleton was of the view that the proposal is not necessary in the public interest.  He stated that this provision is reserved for proposals that retain rural land for agricultural purposes which are essential for food production and employment generation.

3. As stated earlier, the Tribunal has found, for the reasons given above, that the proposed subdivision is not for an unusual or unanticipated purpose (or circumstance) and therefore there is no need to address whether the proposal is necessary in the public interest.  Having said that, the Tribunal can understand that the proposed subdivision may be in the private interests of the families involved and that subdivision may help in terms of future inheritance issues, but the Tribunal does not agree with Mr Dykstra's arguments that the public interest is served by the proposed subdivision.

Conclusion

1. The Tribunal has determined that the proposed subdivision is not for an unusual or unanticipated purpose (nor is it considered to be an unusual or unanticipated circumstance) and therefore does not satisfy clause 4.1(f) of DC 3.4.  As proposed by the planning experts and agreed by the parties, this was the basis upon which the matter was to be determined by the Tribunal.  The Tribunal therefore finds that the proposed subdivision is not consistent with the relevant planning framework, and the application for review should be dismissed and the respondent's decision to refuse the subdivision application be affirmed.

Orders

1. The Tribunal makes the following orders:

   1.The application for review is dismissed.

   2.The decision of the respondent made on 28 November 2012 to refuse subdivision approval of Lot 1 Boyanup‑Picton Road, Crooked Brook into two lots is affirmed.

I certify that this and the preceding [45] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MS R MOORE, MEMBER