Downs*Stoney and Western Australian Planning Commission
[2008] WASAT 178
•11 AUGUST 2008
DOWNSSTONEY and WESTERN AUSTRALIAN PLANNING COMMISSION [2008] WASAT 178
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 178 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:316/2007 | 20 MAY 2008 AND 21 MAY 2008 | |
| Coram: | MR J JORDAN (MEMBER) | 11/08/08 | |
| 21 | Judgment Part: | 1 of 1 | |
| Result: | The application for review is dismissed The refusal of the proposed subdivision of No 1 (Lot 39) Coast Road, West Swan, is affirmed | ||
| B | |||
| PDF Version |
| Parties: | DIANA DOWNSSTONEY WESTERN AUSTRALIAN PLANNING COMMISSION |
Catchwords: | Town planning Subdivision Refusal Land in "Area B" of Swan Valley Planning Act 1995 (WA) Swan Valley Rural zoning in local planning scheme Subdivision to lots of less than 4 hectares if consistent with planning objectives Five lots of 4,020 square metres Lot size pattern Preservation of viticulture and agricultural land Precedent Application of policy Planning objectives Impact on rural character and landscape Servicing of land |
Legislation: | City of Swan Local Planning Scheme No 17, cl 4.2.19, cl 4.2.20, cl 10.2(e) Metropolitan Region Scheme Planning and Development Act 1995 (WA), s 134, s 241, s 251(1) Residential Design Codes of Western Australia (2008), Table 1 Swan Valley Planning Act 1995 (WA), s 4, s 6, s 8, Pt 4 Swan Valley Planning Act 2005 (WA) |
Case References: | Katich & Anor v Western Australian Planning Commission [2007] WASAT 72 Mirco and Western Australian Planning Commission [2006] WASAT 165 Nicholls and Western Australian Planning Commission [2005] WASAT 40 Nurmi and Western Australian Planning Commission [2006] WASAT 241 Squires and Western Australian Planning Commission [2006] WASAT 144 |
Orders | 1. The application for review is dismissed.,2. The refusal of the proposed subdivision of No 1 (Lot 39) Coast Road, West Swan is affirmed. |
Summary | 1 Mrs Diana DownsStoney applied to the Tribunal for review of the Western Australian Planning Commission's refusal to approve the subdivision of No 1 (Lot 39) Coast Road, West Swan. Proposed was the creation of five lots each of about 4,020 square metres fronting Pow Street which abuts the southern boundary. The remainder of the site would be a 4.7 hectare lot with stables and a house.,2 The Western Australian Planning Commission considered that the proposal would be inconsistent with the general presumption in its policies against the subdivision of rural zoned land. It also considered the subdivision would be inconsistent with the objectives of Area B of the Swan Valley Planning Act 1995 (WA) and the Swan Valley Rural zone of the City of Swan's local planning scheme because the lots created would not help maintain the rural character, amenity and land uses of the Swan Valley.,3 The applicant said the proposal was consistent with local planning objectives because the land had limited viticultural potential, the local rural character and amenity would not be adversely affected, uses allowed in the zone could still proceed and the lots would 'round off' the streetscape because of the similar sized lots existing on the southern side of Pow Street.,4 The Tribunal weighed the proposed subdivision against the objectives for Area B and the Swan Valley Rural zone. The conclusion reached was that the proposed subdivision would not be sufficiently consistent with the planning objectives to support creation of the proposed lots.,5 The Tribunal dismissed the application for review and affirmed the Commission's refusal of the subdivision. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : DOWNSSTONEY and WESTERN AUSTRALIAN PLANNING COMMISSION [2008] WASAT 178 MEMBER : MR J JORDAN (MEMBER) HEARD : 20 MAY 2008 AND 21 MAY 2008 DELIVERED : 11 AUGUST 2008 FILE NO/S : DR 316 of 2007 BETWEEN : DIANA DOWNSSTONEY
- Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Town planning - Subdivision - Refusal - Land in "Area B" of Swan Valley Planning Act 1995 (WA) - Swan Valley Rural zoning in local planning scheme - Subdivision to lots of less than 4 hectares if consistent with planning objectives - Five lots of 4,020 square metres - Lot size pattern - Preservation of viticulture and agricultural land - Precedent - Application of policy - Planning objectives - Impact on rural character and landscape - Servicing of land
Legislation:
City of Swan Local Planning Scheme No 17, cl 4.2.19, cl 4.2.20, cl 10.2(e)
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Metropolitan Region Scheme
Planning and Development Act 1995 (WA), s 134, s 241, s 251(1)
Residential Design Codes of Western Australia (2008), Table 1
Swan Valley Planning Act 1995 (WA), s 4, s 6, s 8, Pt 4
Swan Valley Planning Act 2005 (WA)
Result:
The application for review is dismissed
The refusal of the proposed subdivision of No 1 (Lot 39) Coast Road, West Swan, is affirmed
Category: B
Representation:
Counsel:
Applicant : Mr C Slarke
Respondent : Ms R King
Solicitors:
Applicant : McLeods
Respondent : State Solicitor's Office
Case(s) referred to in decision(s):
Katich & Anor v Western Australian Planning Commission [2007] WASAT 72
Mirco and Western Australian Planning Commission [2006] WASAT 165
Nicholls and Western Australian Planning Commission [2005] WASAT 40
Nurmi and Western Australian Planning Commission [2006] WASAT 241
Squires and Western Australian Planning Commission [2006] WASAT 144
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Summary of Tribunal's decision
1 Mrs Diana DownsStoney applied to the Tribunal for review of the Western Australian Planning Commission's refusal to approve the subdivision of No 1 (Lot 39) Coast Road, West Swan. Proposed was the creation of five lots each of about 4,020 square metres fronting Pow Street which abuts the southern boundary. The remainder of the site would be a 4.7 hectare lot with stables and a house.
2 The Western Australian Planning Commission considered that the proposal would be inconsistent with the general presumption in its policies against the subdivision of rural zoned land. It also considered the subdivision would be inconsistent with the objectives of Area B of the Swan Valley Planning Act 1995 (WA) and the Swan Valley Rural zone of the City of Swan's local planning scheme because the lots created would not help maintain the rural character, amenity and land uses of the Swan Valley.
3 The applicant said the proposal was consistent with local planning objectives because the land had limited viticultural potential, the local rural character and amenity would not be adversely affected, uses allowed in the zone could still proceed and the lots would 'round off' the streetscape because of the similar sized lots existing on the southern side of Pow Street.
4 The Tribunal weighed the proposed subdivision against the objectives for Area B and the Swan Valley Rural zone. The conclusion reached was that the proposed subdivision would not be sufficiently consistent with the planning objectives to support creation of the proposed lots.
5 The Tribunal dismissed the application for review and affirmed the Commission's refusal of the subdivision.
Introduction
6 These proceedings involve an application brought by Mrs Diana DownsStoney (applicant) 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 (respondent or Commission) to refuse an application for approval to subdivide No 1 (Lot 39) Coast Road, West Swan (site).
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The site and location
7 The site is located in the Swan Valley. It is some 500 metres to the north of Middle Swan Road (an important eastwest road that carries significant volumes of traffic between Reid Highway to the west and the Whiteman Bridge over the Swan River at Middle Swan which connects to the Roe Highway), some 400 metres to the east of West Swan Road (a major northsouth road through the Swan Valley) and about 250 metres to the west of the Swan River which flows essentially from north to south in this locality.
8 The site has an area of 6.71 hectares. Access to the house in the northwest corner of the site is gained from West Swan Road via Coast Road which terminates at the northwest corner. In addition to the house, the site has horse stables and yards in the northern half and a shed in the southwest corner. Pow Street abuts the western twothirds of the southern boundary and terminates in a culdesac head just beyond the western boundary. Between the site and Middle Swan Road to the south are three parallel streets, including Pow Street, which service 52 lots of about 4,000 square metres each. To the southeast of the site is the Bandyup Women's Prison. To the west and north of the site are lots varying in size but generally about the same area as the site.
9 The site is approximately rectangular in shape, measuring some 200 metres northsouth and about 300 metres eastwest. The highest area of the site is in the southwestern corner. From there, the land falls in an easterly and northeasterly direction by some 10 metres to what is essentially a low lying strip from northwest to southeast across the centre of the site. From this central lower lying area, the land rises about 8 metres to the northeast and east. To the east of the site, the land generally falls away to the Swan River.
10 The site is located in a major viticultural area. Lots immediately adjoining to the north and east are used for equestrian activities. Generally to the west, northwest, further to the north, south and southwest, are substantial areas given over to the cultivation of vines.
Subdivision proposal
11 The subdivision proposal before the Tribunal is set out on the 'Amended Plan of Proposed Subdivision, Lot 39 Coast Road, West Swan, City of Swan' dated 22 October 2007. This depicts the excision of five lots of about 4,020 square metres from the south west corner of the site fronting Pow Street. Proposed Lot 2 adjacent to the western boundary,
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- with an existing shed, would be 4,040 square metres, then, eastward, Lot 3 of 4,020 square metres, Lot 4 of 4,017 square metres, Lot 5 of 4,020 square metres and Lot 6 of 4,026 square metres. The lots would have frontages of about 40 metres and depths of about 100 metres. The application sketch shows indicative building envelopes on each lot. The remainder of the site, containing the existing house, sheds and stables, would be Lot 1 of 4.7 hectares in an L shape to the north and east of the proposed smaller lots.
Planning framework
12 The site is zoned 'Rural' under the Metropolitan Region Scheme and 'Swan Valley Rural' under the City of SwanLocal Planning Scheme No 17 (LPS 17). Clause 4.2.19 of the LPS 17 refers specifically to this zone stating:
The objectives of the Swan Valley Rural Zone are to -
(a) promote the core area of the Swan Valley primarily as a horticultural, recreation, tourism and landscape resource;
(b) provide for limited rural living within the Swan Valley, subject to locational, design and landscaping requirements to enhance the character and amenity of the valley and to ensure the compatibility with productive rural activities;
(c) recognise the occurrence of high quality horticultural soils and scarce plastic clays and to protect these resources from development which would jeopardise their current and future use; and
(d) ensure that the development and use of land accords with the planning objectives for Area B as specified in the Swan Valley Planning Act (2005).
13 The Swan Valley Planning Act 1995 (WA) (SVP Act), at s 6, states:
The general planning objectives for the Swan Valley are the encouragement of the traditional agricultural and other productive uses of the area that complement its rural character, the protection of the environment and the character of the area, the reduction of nutrient levels in the Swan River and the promotion of tourism that complements the rural character of the Swan Valley.
14 Section 4 of the SVP Act divides the Swan Valley into planning areas Area A, Area B and Area C. The site is located within Area B. Section 8 of the SVP Act sets out 10 planning objectives for any proposed development in Area B. Discussed by the parties were the following objectives:
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- 1. The protection of the viticulture.
...
3. Encouragement of tourist facilities provided that they do not detract from the rural character of the area.
4. Encouragement of traditional activities of the Swan Valley and industries associated with viticulture, horticulture and cottage industry provided that they are compatible with the rural character of the area.
5. The encouragement of the consolidation of retail and community facilities at Herne Hill, Caversham and West Swan.
5a. Limited expansion of existing retail and community facilities at Herne Hill, Caversham and West Swan where such facilities are required to service the local community and will not detract from the rural character of the area.
6. The compatibility of design, siting and landscaping with the character of the area.
7. The discouragement of uses that are incompatible with the rural character and traditional agricultural activities of the area.
...
9. The subdivision into lots of less than 4 hectares only where this is consistent with the objectives set out in this section.
...
15 The PD Act, at s 134 requires that subdivision applications for land in the Swan Valley be referred to the Swan Valley Planning Committee (SVP Committee), created under Pt 4 of the SVP Act, for a recommendation before the Commission makes a decision on the application. The Tribunal must have regard to the recommendation of the SVP Committee.
16 Section 241 of the PD Act requires that the Tribunal have due regard for any state planning policies and cl 10.2(e) of LPS 17 requires regard be had to policies of the Commission. Mostly referred to in this matter were the State Planning Policy 2.5 - Agriculture and Rural Land Use Planning (SPP 2.5) and Development Control Policy 3.4 - Subdivision of Rural Land (DC 3.4).
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17 SPP 2.5 policy objectives include the protection of the agricultural land resource by discouraging land uses unrelated to agriculture from locating on agricultural land; minimising ad hoc fragmentation of rural land; minimising the potential for land use conflict by adequate separation of potential conflicting uses; and identifying agricultural priority areas and avoiding new rural settlements in areas likely to create conflict with agricultural priority areas.
18 Clause 5.3.1(iii) of SPP 2.5 provides:
The Commission will only support subdivision for Rural-Residential and Rural Smallholdings where the land has been appropriately zoned within the town planning scheme and the provisions of Policy No DC 3.4 (2001) Clause 6 can be complied with.
19 Clause 2 of DC 3.4 provides that the policy objectives of DC 3.4 are to achieve the objectives of SPP 2.5. Clause 4.1 of SPP 2.5 provides:
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.
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.
21 Clause 4.1.1 of DC 3.4 provides:
The Commission shall only approve subdivision of rural land for rural residential and rural smallholdings where it is identified in an endorsed local planning strategy or local rural strategy and zoned in a town planning scheme.
22 The respondent generally referred to the proposed lots as low density residential while the applicant used the term rural living lots. Both parties also used the term rural residential. Table 1 of the Residential Design Codes of Western Australia (2008) identifies 4,000 square metres as low density residential. LPS 17 at cl 4.2.20 includes a Rural Living zone. This coincides with Area C of the SVP Act and development is required to be consistent with the planning objectives of Area C. In Area C subdivision into lots less than 4 hectares would only be allowed if consistent with the objectives for Area C.
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23 Clause 3.2 of DC 3.4 refers to ruralresidential development as being 1 hectare to 4 hectares. A ruralresidential zone is defined as:
Land used for residential purposes in a rural setting which provides for alternative residential lifestyles and which seeks to preserve the rural and/or landscape amenity of such areas and control land use impacts.
24 Mr Sean Fairfoul, the planning consultant called as a witness by the applicant, referred to rural living as lots essentially used for residential living in a rural area, such as the lots to the south of Pow Street. He emphasised, however, that these lots had a rural zoning and some were used for rural related uses such as small scale cultivation of fruit or vegetables, truck parking or keeping of animals. In his opinion, the proposed lots might be developed and used in much the same way.
25 The proposed lots to be excised would be rural living lots consistent with Mr Fairfoul's comment, but might also be considered as low density residential lots. The Tribunal does not consider that the interchange of labels for the proposed lots by the parties without reference to a specific definition affects the deliberations in this matter. The Tribunal has considered the proposed five additional lots in the light of the planning framework and relative to the subdivision pattern and land uses immediately north of Pow Street and south of Pow Street and, more generally, in Area B.
The refusal
26 The Commission refused the application to subdivide the site because it was seen to be contrary to (summarised):
• The objective of conserving and enhancing the Swan Valley's unique resources, particularly its rural character and amenity;
• The objectives of Area B of the SVP Act;
• The intent of the rural zone under the MRS and the Swan Valley Rural zone of LPS 17 which do not favour further fragmentation which leads to smaller lot sizes and closer development;
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- • The objectives of DC 3.4 which favour subdivision of rural land only where provided for in a current town planning scheme, an endorsed local planning strategy or an endorsed local rural strategy; and
• Avoiding the setting of an undesirable precedent for the further subdivision of surrounding lots.
Issues
27 The issues identified by the parties for determination in this matter were:
1) Whether the proposal is in accordance with the various statutory and policy requirements.
2) Whether the proposal is likely to impact on the rural character and landscape of the area.
3) Whether the proposal would compromise the potential for agricultural and other uses.
4) Whether the proposal will result in an undesirable precedent.
5) What weight should be given to the recommendations of the referral agencies and other previous subdivision decisions and Tribunal rulings.
6) Whether the proposal can be adequately serviced.
Whether the proposal is in accordance with the various statutory and policy requirements
28 It was common ground between the parties that established policy was not to permit subdivision of rural and agricultural land where there was a need to protect agricultural resources, avoid ad hoc fragmentation of rural land and avoid land use conflicts: cl 4 of SPP 2.5; cl 2 of DC 3.4. Subdivision might be considered if provided for in appropriate regional and local planning strategies and in provisions in local planning schemes: cl 5.3.1(3) of SPP 2.5 and cl 3.1 of DC 3.4.
29 It was the applicant's submission that statements of planning policy and development control policies were not to be used to override more 'finely tuned' instruments of planning control that are directly applicable to a site and locality, such as a planning scheme or an Act of Parliament:Katich & Anor v Western Australian Planning Commission [2007] WASAT 72 (Katich) at [103].
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30 The parties identified LPS 17 and the SVP Act as instruments directly applicable to the site. If there was a prohibition on subdivision of this rural land in either [instrument] that would be the end of the matter. However, SVP Act s 8 objective 9 provides for subdivision into lots of less than 4 hectares if consistent with other relevant objectives found in s 8 of the SVP Act. In addition cl 4.2.19(b) of LPS 17 provides for limited rural living subject to the objectives for the Swan Valley Rural zone in cl 4.2.19, which include at cl 4.2.19(d) development being in accordance with the objectives for Area B of the SVP Act.
31 The applicant argued that the relevant planning objectives in LPS 17 and SVP Act were met and so the subdivision should be allowed. The respondent said that the planning objectives in those instruments were not satisfied and so the general presumption against subdivision of rural zoned land, particularly into lots of less than 4 hectares, should prevail.
32 The proposed subdivision has been considered under the headings below to determine whether it is sufficiently consistent with the planning objectives in the respective instruments to overcome the policy presumption against rural subdivision and support the creation of lots of less than 4 hectares.
Whether the proposal is likely to impact on the rural character and landscape of the area
33 Maintaining rural character is emphasised in the SVP Act. Section 8 objective 7 discourages uses that are incompatible with rural character. Objective 3 and objective 4, respectively encourage tourist uses and traditional Swan Valley activities, cottage industry and industries associated with viticulture and horticulture, provided that they do not detract from the rural character.
34 Clause 4.2.19(a) of LPS 17 promotes the Swan Valley as a horticultural, recreational, tourism and landscape resource. Under cl 4.2.19(b) limited rural living can be provided subject to requirements to enhance the character and amenity of the valley.
35 Mr Fairfoul was of the opinion that the character and amenity of the locality was set by the existence and use of the 4,000 square metre rural living lots south of Pow Street. He considered it inappropriate, and even undesirable because of potential conflict, for the amenity, character and use on one side of Pow Street to be different from that on
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- the opposite side of the road. He argued that the proposed subdivision and resulting development would 'round off' the streetscape.
36 Mr Fairfoul said the character of the area would remain rural because the new 4,000 square metre lots would include landscaping and some might include the same rural related uses found on lots south of the street. Section 8 objective 6 of the SVP Act required the design, sighting and landscaping of the buildings on the proposed lots to be consistent with the character of the area and this was established by the 4,000 square metre lots and development on the southern side of Pow Street. Direct access to Pow Street was via the north-south Tomlin Street also containing 4,000 square metre lots and so any purchasers of the proposed lots would know the local character. Mr Fairfoul was also of the opinion that houses built on the proposed five lots would not have any more impact than a tourist development, which the respondent had conceded might be allowed on the north side of Pow Street under the planning instruments.
37 It was the submission of the applicant that the impact on the wider Swan Valley locality would be minimal because the site was not on a tourist route and any development fronting Pow Street would not be seen by general and tourist traffic.
38 Mr Malcolm Logan, a planner of the Department for Planning and Infrastructure who gave evidence on behalf of the respondent, was of the opinion that the proposed 4,000 square metre lots would have an adverse impact on the local rural character and amenity. In his submission there was an expectation that lots would be a minimum of 4 hectares in Area B and therefore approval would result in a different landscape. He considered it appropriate that there be a different landscape on the north side of Pow Street. The amenity for the houses on the south side of Pow Street included the rural landscape and aspect to the north.
39 Mr Logan accepted that a house or a tourist development might be allowed on the site fronting Pow Street in certain circumstances but, critically, five additional house lots were proposed. The density of the houses and any landscaping would obscure the parklike view now available and there would be an impact from the increase in the number of driveways, letterboxes and areas of paving. Mr Logan said the intention in LPS 17 to protect the Swan Valley landscape resource would not be achieved by extending what was essentially a rural townsite into the existing rural landscape.
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40 The Tribunal has formed the view that the Pow Street road reserve is the appropriate boundary between the low density residential character to the south and the rural character of the lots to the north. At some line the low density residential use must give way to the larger rural lots. The road reserve is a readily discernible break between the two different subdivision patterns and their resultant landscapes. It reduces the potential for future land use conflicts that might otherwise arise if the two types of use were separated only by a simple fence line.
41 The proposed subdivision extends a discrete area of 4,000 square metre lots into a rural landscape where this is not planned. The applicant has pointed out that the indicative building envelopes ensure that any buildings would be slightly below road level, but the Tribunal considers that the proposed lots would be more residential than rural in character, which would be clearly apparent from Pow Street, and this impact would be in conflict with the objective of maintaining rural character found in the planning controls.
Whether the proposal would compromise the potential for agricultural and other uses
42 Section 8 objective 1 of the SVP Act for Area B is the protection of viticulture. Objective 7 is to discourage uses that are incompatible with traditional agricultural activities for the area. Significant to the discussion between the parties on the objectives was the evidence of Mr Martin Wells, an environmental consultant with expertise to undertake soil and land resource surveys. Mr Wells produced a report Agricultural Land Capability Assessment Lot 39 Coast Road Report No 0733 dated December 2007 (exhibit 4) (Wells report).
43 The Wells report revealed at Figure 4a that about 48% of the site, in two separate triangular shaped areas, was 'capable' of supporting vines. One area was about 5,000 square metres in the southwest corner where much of Lot 2 and part of Lot 3 would be created. The second was 2.7 hectares comprising the whole of the land between the depression through the land and the north-east corner of the site. This section would be 99% within what would become Lot 1. Mr Wells said the areas with capability for viticulture would have potential water logging, would require the clearing of some significant trees and, more significantly, were dependent upon there being obtained a ground water well licence with an appropriate water allocation. In his opinion these small areas were impracticable for viticulture because of the size, shape and low probability of obtaining a ground water licence.
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44 Mr Wells concluded that the existing low intensity grazing was the most likely use for the land. His assessment was that the subdivision would not result in any land having significant productive viticultural capacity being lost as an agricultural resource within the Swan Valley.
45 Mr Logan was of the opinion that while the site might not be suitable for viticulture, it was suitable for rural use and the excision of the equivalent of about 2 hectares would have the effect of reducing its usefulness as an agricultural lot.
46 It was the evidence of the applicant that low intensity grazing in conjunction with horse activity was the best use that could be made of the site. Inquiries had found that previous owners had only made similar use of the site.
47 The applicant also said the proposed subdivision would not prevent the continued use of proposed Lot 1 and the neighbouring lots for the agricultural and rural uses to which they are now being put, including viticulture. There are small lots scattered throughout the Swan Valley adjacent to agricultural uses. Those residents have an expectation of neighbouring rural activity and so there is no conflict. The situation would be the same if the proposed subdivision were to proceed. In addition, it was said the agricultural use of neighbouring lots and proposed Lot 1 would not impact on the residential use of the proposed lots. There was no history of the applicant's horses having any impact on neighbours. The applicant referred to Katichinwhich at [66] an expert Mr Campbell-Clause is cited as saying that sensible management protocols for vineyards avoid unnecessary noise, dust and spray drift and therefore impact on the neighbours.
48 Mr Logan said that, in his experience, it was not sound planning to place additional residential lots adjacent to existing agricultural uses because of the potential for conflict between incompatible activities.
49 Other potential uses for Area B identified at s 8 objective 3 and objective 4 of the SVP Act are tourism, 'traditional activities of the Swan Valley' and industries associated with viticulture, horticulture and cottage industry provided they did not detract from and are compatible with the rural character. Clause 4.2.19(a) of LPS 17 adds recreational use.
50 The applicant argued that the proposed subdivision would not prevent these uses, either on the 4,000 square metre lots or on the remaining large lot. The applicant described her house as historic and suitable for bed and breakfast or other tourist use. Mr Logan was of the opinion that it would be more difficult to develop individual
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- smaller lots for tourist facilities or cottage industries. He also said the excision of the five lots would make more difficult the development of such uses on the remainder of the site because of both the reduced area and there being a common boundary with what are likely to be residential uses.
51 The Tribunal has accepted, on the evidence of Mr Wells, that the proposed subdivision would not greatly compromise the use of the site as a viticulture lot because it was unlikely to be developed for this use. The Tribunal does not consider, however, that it then follows that it is appropriate that lots for low density residential use be excised from the site. The Tribunal has noted the existence of small lots with a house in the Swan Valley adjacent to rural and viticulture lots. There was no evidence as to whether there was any conflict between the different uses once a small lot was not occupied by a person associated with the adjacent agricultural use. The Tribunal considers, however, there is merit in the planning principle of separating uses that have the potential to be in conflict. The Tribunal is inclined to the view that lots larger than proposed provide greater potential for the uses actively encouraged by LPS 17 and the SVP Act and it is better planning if these do not have a common boundary with rural living lots.
Whether the proposal will result in an undesirable precedent
52 Counsel for the applicant summarised from Nicholls and Western Australian Planning Commission [2005] WASAT 40 at [74], criteria adopted by the Tribunal as to the circumstances in which precedent is a relevant consideration in a planning assessment. These are:
a) The proposed development or subdivision is not in itself unobjectionable; and
b) There is more than a mere chance or possibility that there may be later undistinguishable applications.
53 It was the applicant's submission that the proposed subdivision was unobjectionable. This, it was said, was because no significant potential viticulture holding would be lost, continued agricultural use nearby would not be prevented and use of the lots for tourist and local land use related industries encouraged within Area B would not be prevented. The applicant also said the proposal was unobjectionable because it completed the existing subdivision pattern in the locality and so added to the character and amenity established by the existing rural living lots south of Pow Street.
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54 The applicant said there could be no later undistinguishable applications. Many lots to the west and north were suitable for agriculture and so not suitable for subdivision and no other lots were similarly located adjacent to an existing concentration of 4,000 square metre lots in a relatively isolated culdesac.
55 Mr Logan was of the opinion that the low density residential lots to the south of Pow Street were historical and so did not provide a basis for the creation of the proposed lots. He said there were numerous other lots in Area B similar in size to the site from which rural living sized lots could be excised. He made particular reference to Lots 27, 29 and 36 to the west, Lot 51 to the northwest and Lot 40 to the north and northeast.
56 The Tribunal agrees that the proximity of the site to the 4,000 square metre lots south of Pow Street differentiates this site from most others in Area B. However, as set out above, the Tribunal has formed the view that the proposal does not 'round off' the subdivision pattern in the locality. The subdivision is an extension of low density residential lots into rural zoned land beyond what is considered the most appropriate local boundary between larger rural lots and the smaller low density residential sized lots. For this reason the subdivision is considered objectionable.
57 The applicant referred to two other groups of residential sized lots in Area B and the Tribunal has noted on the locality sketch other examples of pairs of residential sized lots. The Tribunal has formed the view that there might be more than a mere possibility of other undistinguishable applications for the creation of similar sized lots from rural sized lots of similar soil type in proximity to existing smaller residential sized lots. That is, an approval of the proposed lots might be viewed by other land owners as a precedent to follow.
58 The creation of unplanned low density residential lots and development in the Swan Valley Rural zone in conflict with the planning framework would be an undesirable precedent because if replicated it would compromise the SVP Act and LPS 17 objectives of protecting the rural character and traditional rural activities of Area B.
What weight should be given to the recommendations of the referral agencies and other previous subdivision decisions and Tribunal rulings
59 The City and the SVP Committee both recommended refusal of the proposed subdivision. The respondent referred to s 134 of the PD Act which requires that regard be had to the recommendation of the SVP Committee. The applicant pointed out that this opposition is not determinative of the matter.
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60 The Tribunal notes that the SVP Committee's recommendation is informed by the objectives of the SVP Act but, as pointed out by the applicant, the SVP committee had a subdivision proposal before it for a greater number of smaller lots. The Tribunal is inclined to the view of the respondent that the SVP Committee would also oppose 4,000 square metre lots.
61 The Tribunal has also noted that the City of Swan, in adopting LPS 17 in 2007, retained the Swan Valley Rural zoning of the 4,000 square metre lots to the south of Pow Street. The Tribunal is of the view that if any locality is to be identified as suitable for subdivision into a number of lots of the size proposed then this would have to be done as a separate planning exercise to identify necessary services and locational requirements and an appropriate zoning.
62 Consistency in decision making is an important planning principle and even with the recent gazettal of LPS 17 there has been no material change in the planning controls applicable in this part of the Swan Valley since the gazettal of the SVP Act in 1995.
63 The evidence before the Tribunal was that in Area B, at least, the decisions of the respondent on subdivision applications for lots below about 4 hectares, including that on an application to excise a house lot from Lot 29 adjoining to the west, have mostly been refusals consistent with the underlying presumption against rural subdivision in the planning instruments. An exception cited was the creation of Lots 200 and 201 south of Pow Street at the western end, but this was an amalgamation and resubdivision that resulted in lots consistent in size with the adjoining 4,000 square metres lots. The applicant referred to small lot subdivisions further to the south and to the southwest in Caversham as examples of Swan Valley rural land being subdivided into residential lots. There was no evidence presented, however as to why it would be sound planning to support additional subdivision on the margins of those existing small lot subdivisions.
64 Decisions of the Commission have resulted in reviews by the Tribunal. The respondent cited Mirco and Western Australian Planning Commission [2006] WASAT 165 and Nurmi and Western Australian Planning Commission [2006] WASAT 241 as examples to be followed. These had been refused because the proposed subdivisions of one lot into two in each instance were considered to be in conflict with the objectives of the zoning,
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- the objectives of SVP Act, Area B and DC 3.4 as well as being inconsistent with the prevailing lot size. The Tribunal dismissed the applications.
65 The applicant referred specifically to Katich in which the Tribunal supported the amalgamation of two viticulture lots and the excision of a house lot for a family member in Area B. Also cited was Squires and Western Australian Planning Commission [2006] WASAT 144, at Torbay near Albany, as an example of the Tribunal allowing subdivision of a rural zoned lot into two low density residential lots consistent with neighbouring lot sizes.
66 While the Tribunal considers that the decisions cited are instructive in explaining the approach of each of the parties in this matter, it is inclined to the observation of Mr Fairfoul that they are distinguishable from the proposed subdivision on the facts and so are not to be given determinative weight in the deliberations. The decisions assist in identifying planning principles, but importantly it is the particular circumstances of each that determined the outcome.
Whether the proposal can be adequately serviced
67 Reticulated scheme water, electricity and telecommunications are available in Pow Street. The locality is not connected to a reticulated sewerage system and so on-site effluent disposal was raised as an issue.
68 Mr Logan was of the opinion that lots of the size proposed were best served by reticulated sewerage. He pointed out the proximity of the site to the Swan River, the potential for a one in 25 year flood affecting the central part of the site and the lack of a late winter geotechnical report on the suitability of the proposed lots for on-site effluent disposal.
69 The Wells report provided the only expert evidence on onsite effluent disposal. Mr Wells identified that conventional septic systems would operate in the type A soil of proposed Lot 2. Proposed Lot 3 and Lot 4 had type B soil better suited to inverted leach drains with imported fill or alternative treatment units. Proposed Lot 5 and Lot6 were lower lying but a septic system could be incorporated within the fill required for the house site.
70 The Tribunal formed the view that on-site effluent disposal for the proposed 4,000 square metre lots could be adequately addressed by conditions if it were determined to allow the proposed lots.
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Summary of findings
71 On issue 1, it was common ground that established policy, found in SPP 2.5 and DC 3.4, is generally against the subdivision of rural and agricultural land. There was no dispute that the policies provide that subdivision can be contemplated if provided for in local planning schemes and strategies. There was also no dispute that the SVP Act and LPS 17 provide for consideration of subdivision and development of lots of less than 4 hectares in Area B of the Swan Valley if consistent with certain objectives.
72 The applicant said the relevant planning objectives in LPS 17 and SVP Act were met and so subdivision into the proposed lots of less than 4 hectares should be allowed. The respondent said that the respective planning objectives in those instruments were not satisfied and so the general presumption against subdivision of rural zoned land should prevail.
73 The parties addressed the objectives in the SVP Act and LPS 17, as summarised within issues 2 to 6 below.
74 Issue 2 was concerned with the impact of the proposal on the rural character and landscape of the area. This is explicitly identified as a consideration in objectives 3, 4 and 7 of s 8 of the SVP Act and cl 2.4.19(a) and (b) of LPS 17. The Tribunal found that the excision of five lots of 4,000 square metres from the site on the north of Pow Street could not be supported. This was because the proposal would be an unplanned extension of essentially low density residential lots into what is and what reasonably is expected to be a landscape of larger rural lots. The new lots would change the outlook north from Pow Street and would result in lots with essentially a residential character having a common boundary with a larger rural lot rather than being separated by a road reserve with a resultant potential for future land use conflicts.
75 The third issue was whether the proposal would compromise the potential for agricultural and other uses. Objective 1 of the SVP Act for Area B is the protection of viticultural land and objective 7 is to discourage uses that would be incompatible with traditional agricultural activities.
76 The Tribunal accepted the evidence of Mr Wells that the site had limited potential for viticulture and the most likely agricultural use of the land was a continuation of grazing.
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77 The applicant said the horse activities currently carried out on the site could continue on the larger lot if the proposed lots were excised. The Tribunal noted that, while overall the area of the proposed lots would not be greatly productive, there would be a reduction of about 2 hectares in land available for agricultural use. The Tribunal considers the use of the 4,000 square metre lots would most likely be for little more than minor keeping of animals or agricultural activity incidental to residential use. There would therefore be some compromise in the use of the site for agricultural purposes.
78 Evidence was presented that with proper management there was a low possibility of neighbouring vineyards and horse activity adversely affecting the residential use of proposed lots. The Tribunal was, however, concerned that residential use extending onto this rural land so that there was a common boundary with a grazing property would increase the potential for new residents to be in conflict with and therefore compromise neighbouring rural activity. Lots of the number and size proposed extending into rural land has specifically not been planned for in TPS 17 and so it is a consideration that if no subdivision were allowed then the possibility of conflict and adverse impact on future agricultural activity would not arise.
79 The applicant submitted that uses that could be contemplated in Area B such as tourism, recreation and industries associated with viticulture and horticulture could still occur on the proposed 4,000 square metre lots. There was little evidence as to the area best provided for different uses, but the Tribunal is inclined to the opinion that, while some uses might be accommodated on 4,000 square metres, the potential for the range of uses within these categories would increase, as suggested by the respondent, with an increase in the area of the land available.
80 The fourth issue was whether the proposal would result in an undesirable precedent. The Tribunal agreed with the applicant that the proximity of the site to the 4,000 square metre lots south of Pow Street differentiate this site from many others in Area B. However, the subdivision was considered objectionable because it would be an ad hoc extension of low density residential lots into rural zoned land beyond the most appropriate local boundary between larger rural lots and the smaller low density residential sized lots.
81 The Tribunal formed the view that there was more than a mere possibility of later undistinguishable applications for the excision of similar sized lots from rural holdings of similar soil type adjacent to other groupings of residential
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- sized rural lots in Area B. An approval of the proposed lots might be viewed by others as a precedent to follow and this would be undesirable as it would be in conflict with the objectives for Area B of the SVP Act and under the LPS 17 zoning.
82 The fifth issue was concerned with what weight should be given to the recommendations of the referral agencies, previous subdivision decisions and Tribunal rulings. The Tribunal noted that both the City and the SVP Committee recommended refusal but, while this opposition rather than support was a consideration, as the applicant pointed out, this opposition is not determinative of the matter.
83 Consistency in decision making is an important planning principle and the evidence before the Tribunal was that in Area B, at least, the decisions of the respondent on subdivision applications for lots below about 4 hectares have mostly been refusals consistent with the starting presumption against rural subdivision in the planning instruments.
84 The decisions of the Commission have resulted in reviews by the Tribunal. Each party was able to cite Tribunal decisions that assisted its position. The Tribunal was inclined to the view that the decisions cited assisted in identifying planning principles, but importantly it was the particular circumstances of each that determined the outcome. The decisions were distinguishable from the proposed subdivision on the facts and so were not to be given determinative weight in the deliberations.
85 On the sixth issue, the Tribunal had regard to the evidence of Mr Wells and concluded that on site effluent disposal could be addressed by conditions if the lots were to be allowed.
Conclusion
86 Section 8 objective 9 of the SVP Act, for Area B provides for subdivision into lots of less than 4 hectares only where there this is consistent with the objectives set out in s 8. Clause 4.2.19 of LPS 17 sets out objectives for the Swan Valley Rural Zone of which (d) requires that development and use of land accord with the objectives of Area B of the SVP Act.
87 The Tribunal has weighed the proposed subdivision against the objectives for Area B and the Swan Valley Rural zone, as set out above. The conclusion reached was that the proposed subdivision would not be sufficiently consistent with the planning objectives to support creation of the proposed 4,000 square metre lots.
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88 The Tribunal has therefore dismissed the application for review and affirmed the respondent's refusal.
Orders
89 The Tribunal makes the following orders:
1. The application for review is dismissed.
2. The refusal of the proposed subdivision of No 1 (Lot 39) Coast Road, West Swan is affirmed.
I certify that this and the preceding [89] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J JORDAN, MEMBER
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