Dungey and Western Australian Planning Commission - [2010] WASAT 89

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: DUNGEY and WESTERN AUSTRALIAN PLANNING COMMISSION [2010] WASAT 89

MEMBER: MR J JORDAN (MEMBER)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 24 JUNE 2010

FILE NO/S: DR 286 of 2009

BETWEEN: BEVERLEY MARK NORTON DUNGEY
ANGELA DUNGEY
Applicants
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Town planning Subdivision application Creation of two rural lots Proposed lots divided by constructed road Two houses on the site One lot zoned intensive farming One lot zoned general farming Minimum lots size requirements in town planning scheme One lot meets minimum lot size standard One lot well below minimum lot size standard Use of resultant lots Non rural zoned land close by Precedent Exception to general presumption against subdivision of rural land Whether road constitutes a significant barrier.

Legislation:

Greater Bunbury Region Scheme, cl 6(s), cl 12(e)
Planning Development Act s 251(1), s 138(2), s 138(3)(a)
Shire of Harvey District Planning Scheme No 1, Table 25, Table 27, Sch 14

Result:

The application for review is dismissed
The decision of the Western Australian Planning Commission to refuse the application for subdivision is affirmed

Category: B

Representation:

Counsel:

Applicants: Mr S Fairfoul (As agent)
Respondent: Mr T Sharp

Solicitors:

Applicants: Greg Rowe & Associates (Town Planners)
Respondent: State Solicitor's Office

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

Halden & Anor and Western Australian Planning Commission [2005] WASAT 323

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

This matter involved an application for review of the refusal by the Western Australian Planning Commission to approve the proposed subdivision of Lot 878 Treendale Road, Roelands into two lots along the alignment of Treendale Road which runs through the land. The proposed northern lot, zoned 'Intensive Farming', of 32.5 hectares with a house and farm buildings was to be used for rural purposes. The proposed southern lot, in the 'General Farming' zone, of 8.1 hectares and also with an existing house was to be used for rural lifestyle living and hobby farming.
The issues that arose in this matter related to whether the proposed subdivision would comply with the objectives and provisions of local and regional planning schemes, strategies and the policies and set an undesirable precedent for subdivision of other rural holdings.
The Tribunal determined that the proposed subdivision would be inconsistent with the Shire of Harvey District Planning Scheme No 1. The proposed Lot 101 would be significantly less than the prescribed minimum lot standard and in respect of the structure plan for the locality, the Tribunal considered that any subdivision should be preceded by appropriate amendments to the zoning of the land.
The Tribunal found that the proposed subdivision would also be in conflict with the general presumption against the subdivision of rural zoned land in the regional plans and strategies and subdivision policies. The Tribunal found that at this stage Treendale Road remains a rural road of the type commonly crossed for rural purposes and so does not provide a basis for subdivision.
The second house on the site no longer used for farming purposes was a relevant consideration, but was not considered by the Tribunal to alone constitute sufficient basis for the subdivision the face of the inconsistency with the Shire of Harvey District Planning Scheme No 1 and the regional schemes and strategies.
The Tribunal also concluded that the proposed subdivision would set an undesirable precedent. This was because the proposal would not be distinguishable from other applications for subdivision in the locality and would result in a subdivision that was objectionable because of the inconsistency with the planning scheme and the regional schemes and strategies.
The Tribunal decided to dismiss the application and affirm the refusal.

Introduction

These proceedings involved an application brought by Mr Beverley Dungey and Mrs Angela Dungey (applicants), pursuant to s 251(1) of the Planning and Development Act 2005 (WA) (PD Act), for review of a decision by the Western Australian Planning Commission (respondent) to refuse to grant approval for the subdivision of Lot 878 Treendale Road, Roelands (the site) into two lots along the alignment of Treendale Road which passes through the site.

Site and Locality

The site is a rectangular lot of 40.649 hectares. The northern boundary of about 583 metres has frontage to Raymond Road and the eastern boundary of 695 metres has frontage to an unmade road reserve. The western boundary is dissected by Treendale Road into a 278 metre southern section and a 421.75 metre northern section. Treendale Road runs at a diagonal from that point to the southeast corner of the site. This results in a triangular shaped southern portion of 8.1 hectares, with the remainder of 32.547 hectares north of Treendale Road.
On the northern portion, adjacent to Treendale Road are farm sheds and a dwelling and, on the southern portion also adjacent to Treendale Road, are further sheds and a second dwelling. The site is generally flat and cleared for grazing except adjacent to the southwest corner where some vegetation remains and the site drops down to the margins of the Collie River.
To the north, south and east, lots have a similar appearance. To the west, south of Treendale Road, between the lot next door to the site and the Australind Bypass is the Meadow Landing 'Special Residential' subdivision. Beyond the Australind Bypass the urban subdivision of Australind and Eaton is taking place.
Raymond Road, which abuts the northern boundary of the site, is a direct link between the Australind Bypass and the South Western Highway near Roelands about 7 kilometres to the east where there is a staggered intersection with Coalfields Road which extends east to the town of Collie.

Planning framework

Under the Shire of Harvey District Planning Scheme No 1 (DPS 1) the portion of the site north of Treendale Road is zoned 'Intensive Farming' while the portion south of Treendale Road is zoned 'General Farming'. The site is located within 'Precinct Area 3 Treendale' of DPS 1.
Under the Greater Bunbury Region Scheme (GBRS) the site is zoned 'Rural'. At the southwest corner the site abuts land adjacent to the Collie River reserved as 'Regional Open Space' under the GBRS. In addition to relevant provisions of DPS 1 and GBRS the parties also made reference to:
•State Planning Policy 2.5 'Agricultural and Rural Land Use Planning' (SPP 2.5);
•the respondent's Development Control Policy DC 3.4 'Subdivision for Rural Land' (2008) (DC 3.4);
•Bunbury Wellington Region Plan and Greater Bunbury Structure Plan (GBSP); and
•South West Rural Subdivision Guidelines (SWR Subdivision Guidelines).
These planning documents are addressed below in the discussion of the issues.

Proposed subdivision

Proposed is the subdivision of the site into two lots along the alignment of Treendale Road. Proposed Lot 101 would be a triangular shaped lot of 8.1 hectares south of Treendale Road and would comprise all of that part of the site zoned 'General Farming' under DPS 1. The applicants identified that proposed Lot 101 includes an existing house and two sheds and is constrained by an environmentally sensitive area in the southwestern corner. The applicants made the comment that this results in an effective area of 6.74 hectares and proposed Lot 101 would most likely be used for rural lifestyle living and hobby farming.
The second lot, North of Treendale Road, would be Lot 102 of 32.5 hectares and would include all of that part of the site zoned Intensive Agriculture under DPS 1. Proposed Lot 102 would also have an existing house and a number of farm sheds. The comment made by the applicants in respect of proposed Lot 102 is that it would continue to be used for rural and grazing purposes.

The refusal

The respondent refused the application for subdivision on 26 November 2008. Following a request for reconsideration the respondent reiterated the reasons for refusal on 26 June 2009. The reasons for refusal were:
1.The proposed subdivision is inconsistent with the 'General Farming' and 'Intensive Agriculture' zoning of the land in Council's Local Planning Scheme. The purpose and intent of these zonings is to protect the economic viability of agriculture in the area. Subdivision in the manner proposed could create the potential for two agriculturally unsustainable lots, which would be in conflict with these zoning objectives.
2.The proposal does not comply with State Planning Policy 2.5, which identifies the subject land as being within a 'Strategic Agricultural Policy Area' whereby a high level of protection is to be afforded to farming uses. The proposal would fragment the land and reduce its potential to accommodate agriculture as intended by SPP 2.5.
3.The proposed subdivision is inconsistent with the objective of Commission policy DC 3.4 'Subdivision of Rural Land' where closer settlement (ruralresidential and rural smallholdings) should be properly planned through the preparation of regional and local planning strategies and provided for by appropriate zoning in local planning schemes prior to subdivision. Further, as Treendale Road is considered to be a rural road, the proposal is not consistent with Section 4.3 of the DC 3.4.
4.Approval to the subdivision would create an undesirable precedent for the further subdivision of other lots of a similar size in the 'General Farming' and 'Intensive Agriculture' zones in this locality.

The issues

The issues that arise in this matter are:
1.whether the proposed subdivision complies with DPS 1;
2.whether the proposed subdivision is consistent with the principle of preservation of agricultural land for rural production and avoidance of adhoc fragmentation of rural land as identified in SPP 2.5, DC 3.4, GBRS, the Greater Bunbury Structure Plan, Bunbury Wellington Region Plan and the SWR Subdivision Guidelines; and
3.whether the proposed subdivision would set an undesirable precedent for further subdivision of surrounding rural lots inconsistent with current zoning and the demonstrated capability of the land in the area.

Discussion

Issue 1: Whether the proposed subdivision complies with DPS 1

DPS 1 includes Table 25 'Zoning and Development Standards Intensive Farming' and Table 27 'Zoning and Development Standards General Farming'. Proposed Lot 102 would be 32.5 hectares and would therefore satisfy the minimum lot size standard of 20 hectares for land zoned 'Intensive Farming' under Table 25 of DPS 1.
The respondent emphasised that proposed Lot 101, at 8.1 hectares, would not comply with the minimum lots size standard of 40 hectares for land zoned 'General Farming' under Table 27 of DPS 1. The respondent also referred to the policy statement for land zoned 'General Farming' at Table 27 of DPS 1 which states:
Council intends to encourage these areas to continue to be used for viable large scale farming activity. Council will encourage and promote good farming, animal husbandry and soil conservation. Some limited tourist and recreational activity may be permitted where no adverse effect to the primary agricultural purpose of the zone will result.
The respondent said the subdivision and proposed use of Lot 101 would result in the land not being used for farming activity which is in conflict with the policy statement. The respondent also referred to the policy statement for the 'Intensive Farming' zone at Table 25 of DPS 1 which states:
Council has indentified by zoning and intends to protect from inappropriate use the valuable irrigated farm land in the Scheme area.
The respondent said residential use of Lot 101 would be incompatible with and detract from the continued use of Lot 102 as significant agricultural land in conflict with the objective of DPS 1 at cl 1.6.1(e) which is:
to retain the pre-eminence of agriculture and restrict development that detracts from the potential of significant agricultural land;
The applicants submitted that proposed Lot 101 has soils of limited agricultural capacity and has an effective useable area of 6.74 because of the house and sheds and the remnant vegetation in the southwestern corner. The lot would most likely be used for rural lifestyle living and hobby farming. The applicants said proposed Lot 101 cannot be used for the 'large scale' farming referred to in the objectives for the 'General Farming' zone and would not detract from the agricultural potential of land in this zone.
The Tribunal acknowledges that an 8 hectare general rural lot would have virtually no capacity for viable large scale farming activity. The concern is whether the 8 hectare lot should then be allowed, as proposed. The site is within two different rural zones, but the Tribunal does not consider that this is a basis for subdivision where one lot created would be so inconsistent with DPS 1 standards. It is not unusual for a rural holding to have an area of land within it that would make only a marginal contribution to the productivity of the farming operation. The Tribunal does not consider that a marginal contribution to productivity should provide a basis for excision, particularly where it would create a lot inconsistent with the prevailing lot size and zone requirements. Other factors are also required to be acceptable before subdivision can be contemplated and these are considered below and in the discussion on the other issues.
Schedule 14 of DPS 1 defines 'Precinct Area 3 Treendale, sub area 3B' within which the site is located. DPS 1 provides that for Precinct Area 3 subdivisions for rural residential should be the subject of a structure plan. It was the applicants' contention that the Treendale Structure Plan adopted by the Shire of Harvey (Shire) and endorsed by the respondent on 14 February 1996 remains a structure plan for the area including the site. The Treendale Structure Plan indicates the potential subdivision of the site into four lots on proposed Lot 101 and eight lots on proposed Lot 102.
It was the applicants' submission that the proposed Lot 101 is consistent with the Treendale Structure Plan, but rezoning would not be required. This is because Lot 101 would be larger than the lots in the structure plan and any requirements for servicing, protecting the river and landscape could be imposed as conditions of subdivision. The proposed subdivision would therefore be consistent with the requirement in DC 3.4 that subdivision be allowed where there is an endorsed structure plan.
The applicants also referred to the Shire's proposed amendment number 65 to DPS 1 which was to rezone the land between Treendale Road and the Collie River, including the site, from 'General Farming' to 'Special Residential', that is, for lots of about 4,000 square metres, and Recreation. This was refused by the Minister for Planning in 2008, in part because the proposed zoning was inconsistent with the endorsed structure plan which identified the land for rural residential not 'Special Residential'. The significance of the Minister's decision is seen by the Tribunal to be that, although the Treendale Structure Plan is relevant, rezoning appropriate for the implementation of the structure plan is required before subdivision is considered.
The Tribunal notes that the respondent's endorsement of the Treendale Structure Plan in 1996 required modifications, including reference to the treatment of the foreshore area 'to be determined at the rezoning and subdivision stage'. The Tribunal acknowledges that the Treendale Structure Plan reflects the limited agricultural value of at least the land south of Treendale Road, including that part of the site. The Tribunal does not consider, however, that provisions that allow for subdivision into lots smaller than the proposed Lot 101, but only after rezoning, provides a sound planning basis for the creation, without rezoning, of a larger 'General Farming' zoned lot.
As the respondent has submitted, the strategic planning documents prepared since 1996 all address the distribution of land uses and emphasise retention of rural land unless the planning circumstances allow. The site has not been rezoned from the existing rural zones as required by the Treendale Structure Plan to support subdivision.
The Tribunal has found that the proposed subdivision would not comply with DPS 1, either the DPS 1 provisions relevant to the 'General Farming' zone, or with the requirements for subdivision under 'Precinct Area 3 Treendale' of Schedule 14.
The respondent pointed out that s 138(2) of the PD Act provides that due regard is to be had to the provisions of any local planning scheme that apply to the land and approval is not to be granted to a subdivision that conflicts with the provisions of a local planning scheme, as would occur with this subdivision.
The applicants referred to s 138(3)(a) of the PD Act which provides that subdivision in conflict with provisions of the local planning scheme might be considered if, as occurs in this case, there has been no consolidation of DPS 1 since its gazettal, which was in 1996, and, approval would be consistent with a State Planning Policy 'that deals with substantially the same matter'. The applicants argued that SPP 2.5 in conjunction with DC 3.4 deals with subdivision of 'substantially the same matter' and so subdivision in conflict with DPS 1 can be considered. It was the applicants' argument that the requirements for subdivision under SPP 2.5 and DC 3.4 can be satisfied in certain circumstances and therefore subdivision can be allowed.
It was the respondent's submission that the proposed subdivisions could be in conflict with SPP 2.5 and DC 3.4 and therefore should be refused. The proposed subdivision and SPP 2.5 and DC 3.4 are dealt with under issue 2 below.

Issue 2: Whether the proposed subdivision is consistent with the principle of preservation of agricultural land for rural production and avoidance of ad hoc fragmentation of rural land as identified in SPP 2.5, DC 3.4, GBRS, BunburyWellington Region Plan, Greater Bunbury Structure Plan and the South West Rural Subdivision Guidelines

SPP 2.5

The respondent said the proposed subdivision would be contrary to SPP 2.5 which is concerned with agricultural and rural land use planning. Clause 4 of SPP 2.5 lists the policy objectives which include, at cl 4.1, discouraging land uses unrelated to agriculture locating on agricultural land and minimising ad hoc fragmentation of rural land and, at cl 4.3, minimising the potential for land use conflict by providing adequate separation distances between conflicting land uses. The respondent also referred to cl 5.3.1(iii) of SPP 2.5 which states:
The Commission will only support subdivision for rural residential and rural small holdings where the land has been appropriately zoned in the town planning scheme and the provisions of policy DC 3.4 (2001) clause 6 can be complied with.
The respondent said Lot 101 was not appropriately zoned and would not be used for farming purposes, which would give rise to potential conflict with the use of Lot 102 for 'Intensive Farming'. Even with separation by Treendale Road, the respondent was of the opinion that Lot 101 could be utilised as part of the agricultural use of the site as a whole.
It was the applicants' submission that the land south of Treendale Road was not identified as a valuable agricultural resource and the proposal not to use Lot 101 for agricultural purposes related to Lot 102 would not detract from the agricultural use of Lot 102. Vegetated buffers could be a condition of approval if required. This had been demonstrated by the Meadow Landing Special Residential Subdivision 300 metres to the west.

The applicants referred to cl 3 of SPP 2.5 which states:
The Commission will use this policy and Policy No DC 3.4 … as the basis for determining applications for the subdivision of rural land.
The applicants said SPP 2.5 provides a strategic State level planning imperative to protect agricultural resources and DC 3.4 provides the operational policy for assessment of subdivision applications. It was the applicants' submission that the proposal satisfies the requirements of the relevant clauses of DC 3.4 and so would not result in fragmentation of agricultural land or reduced potential for agricultural land use. The proposal would therefore be consistent with the objectives of SPP 2.5. This leads then to consideration of the relevant provisions of DC 3.4.

DC 3.4

DC 3.4 is critical to this matter. It includes provisions for determining whether there might be, in the particular circumstances, a basis for departing from the general presumption against the subdivision of rural land found in the overarching regional schemes, policies and strategies.
DC 3.4 commences by restating under the heading 'Section 2 Policy Objectives':
This operational policy guides the subdivision of rural land to achieve the four key objectives of … (SPP 2.5) to protect agricultural land, plan for rural settlement, minimise land use conflict and manage natural resources …
Clause 3.1 of DC 3.4 is concerned with policy for closer settlement and more intensive agricultural uses and states:
… the subdivision of rural and agricultural land for closer settlement (ruralresidential and ruralsmallholdings) 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.
Part 4 of DC 3 is concerned with policy measures for rural lots for farming and conservation and at cl 4.1 provides:
… 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, Part 4 of DC 3.4 also includes cl 4.3 'Significant physical division', which states:
The existing physical division of a lot by a significant natural or constructed feature may be formalised through subdivision. A significant physical division generally does not include rural roads or creeks that are commonly crossed for farm management purposes.
This exception is reflected in the Shire of Harvey Policy 15.2 'Subdivision of Rural Land' which provides at cl 3:
… subdivision of land which has already been physically separated by significant topographical or man-made features, will be favourably considered by Council where the minimum lot size under the zoning is still achieved. It is noted that standard rural roads are not considered by Council to be suitable grounds for subdivision based on physical separation.
The Shire recommended to the respondent the subdivision be refused because it did not consider the requirements of cl 4.3, or cl 4.1(e), of DC 3.4 were satisfied.
Mr Aaron Lohman, a planner who gave evidence on behalf of the applicants described Treendale Road, through the site, as a single lane width of bitumen construction with wide shoulders to allow vehicles to pass. There is no speed limit on this section of the road. Mr Lohman said Treendale Road needs to be considered on its merits in the context of the surrounding environment and in relation to the current and likely future development of the locality to determine whether it is a 'significant physical division'.
The applicants referred to the comment of the Tribunal in Halden & Anor and Western Australian Planning Commission [2005] WASAT 323 in reference to the March 2002 version of DC 3.4 where it was stated at [59] in relation to a significant manmade feature:
In the Tribunal's view, the composition of the road surface (whether it is sealed or not), its size, maintenance and traffic movements all contribute to answering the question whether a road is relevantly 'significant'; namely whether it is 'not unimportant or trivial' or 'sufficiently large to be important'.
The applicants said that Treendale Road would have become busier since the development of the Meadow Landing 'Special Residential' subdivision to the west and when this is fully developed there will be a significant increase in traffic from people travelling east to the South Western Highway. As a result of increased traffic volumes Treendale Road will constitute a 'significant physical division'. Movement of stock across Treendale Road is likely to become unsafe.
Mr Frank Scibilia, the planner who provided expert evidence for the respondent, said that available data should be considered in deciding whether or not a road constitutes a significant physical division for the purpose of cl 4.3 of DC 3.4. He referred to a traffic survey conducted by the Shire and included in the respondent's supplementary bundle of documents, which showed that Treendale Road carries between one and five vehicles per hour during daylight hours and less than this at night. These low traffic volumes, he said, verify that Treendale Road is a rural road for the purposes of cl 4.3 of DC 3.4. Mr Scibilia also offered the opinion that Lot 101 could be used for the purposes incidental to the use of Lot 102 or for other agricultural pursuits without requiring the movement of livestock across the road.
The Tribunal has formed the view that Treendale Road by its form of construction and traffic volumes is currently a rural road of the type that might be 'commonly crossed for farm management purposes'. That is, Treendale Road does not constitute a physical division of sufficient significance to form a basis for departure from the general presumption against subdivision of this rural zoned land.
It might be that traffic volumes on Treendale Road will increase if Meadow Landing grows or rezoning and subdivision occurs nearby to create other rural small holding or rural residential subdivisions that make use of Treendale Road, but the Tribunal has formed the view that this point has not yet been reached or is within reasonable prospect.
The applicants also referred to cl 4.1 of DC 3.4 which lists forms of subdivision that ' … are not fragmentation, do not result in loss of rural character and may be permitted'. This list includes, at cl 4.1(e), subdivision:
To allow for the continued occupation of existing houses when they are no longer used in a farming operation.
The applicants submitted that the land that would become proposed Lot 101 is no longer used for commercial agricultural purposes and is not required for the farming operations on proposed Lot 102, on which there is a separate house and sheds. Subdivision would enable the occupation of the second dwelling no longer used for the farming operation on proposed Lot 101 as provided for at cl 4.1(e) of DC 3.4.
The respondent asserted that cl 4.1(e) must be read in the context of cl 4.9 'homestead lots' of DC 3.4 which provides for the creation of 'homestead lots' to enable an existing house on a farm to continue to be occupied subject to meeting certain criteria. The proposal does not satisfy the first two criteria which are that:
(a)the land is in the Wheatbelt agricultural policy area … ;
(b)the population in the locality is declining or relatively static;
The applicants submitted that there was discretion under DC 3.4 to allow homestead lots to be created which do not comply with all of the criteria listed at cl 4.9, provided that the policy intent and objectives of DC 3.4 were not compromised. In this instance, the applicants said the policy objectives of DC 3.4 would not be comprised by the proposed subdivision.
The Tribunal considers that the list of criteria in cl 4.9, by its construction, is inclusive and not a list of alternatives to choose between, as asserted by the applicants. In respect of the respondent's submission, while cl 4.9 and cl 4.1(e) of DC 3.4 both refer to subdivision to allow continued occupation of existing houses on farmland, the Tribunal is of the view that if cl 4.1(e) is to serve any purpose in DC 3.4 it can be applied to rural land not in the wheatbelt.
If subdivision to separate the two houses were the only consideration there might in certain circumstances be support for a form of subdivision. However, factors other than the two houses are relevant in this matter, including the provisions of DPS 1 and whether the site is considered as one rural lot, despite being severed by Treendale Road. Both of these were discussed above and the Tribunal found that they did not assist the applicants. Also raised for consideration by the respondent were the relevant provisions of the GBRS, Bunbury Wellington Region Plan, Greater Bunbury Structure Plan and the SWR Subdivision Guidelines. These are addressed below.

Greater Bunbury Region Scheme

One aim of the GBRS, at cl 6(g), is to:
protect strategic agricultural land considered to be of State or regional importance.
Clause 12(e) of the GBRS states that land is classified as part of the Rural zone for the following purpose:
… to provide for the sustainable use of land for agriculture, assist in the conservation and wise use of natural resources including water, flora, fauna and minerals, provide a distinctive rural landscape setting for the urban areas and accommodate carefully planned rural living developments.
It was the applicants' contention that the proposed Lot 102 was the only portion of the site of any strategic State or regional importance, given that it was identified within the Strategic Agricultural Resource Policy area under the GBRS. The applicants said that it would be unlikely the strategic agricultural significance of Lot 102 would be affected by the excision of the relatively small area of Lot 101.
The applicants also submitted that the Strategic Agricultural Resource Policy under the GBRS is to be read in conjunction with SPP 2.5 and DC 3.4 and each has similar objectives of protecting the agricultural base and minimising land use conflicts in the GBRS area. Under cl 5.7 of the Strategic Agricultural Resource Policy, subdivision can be considered where it can be demonstrated that current or potential agricultural activities in production would not be prejudiced. The applicants consider the objectives of the GBRS Strategic Agricultural Resource Policy would not be comprised because the subdivision will not introduce new sensitive land uses that may prejudice current or potential agricultural activities.
The Tribunal has noted that while proposed Lot 101 with its second house might not contribute significantly to the agricultural production of the site, if Lot 101 is created and disposed of, any new owner of Lot 101 would occupy the land with their own aspirations for a particular lifestyle and it might be these aspirations which come in conflict with rural production on Lot 102. In this regard, the proposed subdivision might be inconsistent with the objectives of the GBRS.

Bunbury - Wellington Region Plan and Greater Bunbury Structure Plan

The respondent stated that the Bunbury - Wellington Region Plan identifies the site as within the 'Rural Irrigation' area and does not provide for future rural-residential development. The Tribunal notes the area of the Bunbury - Wellington Region Plan stretches from Lake Preston in the north to Peppermint Beach in the south and extends eastwards beyond the Darling Scarp. The plan identifies broad categories of land use at a regional scale. While this document helps establish a region wide planning framework, it is to other planning documents that reference must be made to identify the site and whether there is a basis for departing from the presumption against rural subdivision found in most regional scale plans and policies.
The respondent said that the Greater Bunbury Structure Plan (October 1995) (GBSP) forms part of the Bunbury Wellington Region Plan but does not include the site. A review of the GBSP is being undertaken and this will extend to encompass the site. It was the respondent's submission that any subdivision prior to the review being completed would be premature. This is because there is pressure for settlement expansion and fragmentation of rural land in the vicinity of Australind, the Collie River and the Australind Bypass. These factors must be considered in determining which areas of rural land may be suitable for subdivision as part of the review process.
The applicants disagreed with the respondent, saying that it could not reasonably be concluded that a two lot subdivision as proposed would impede coherent future planning in the area and the review of the GBSP. It was the applicants' submission that the GBSP had not reached the stage where it is a seriously entertained planning proposal. The proposed subdivision must therefore be considered on the planning circumstances as they now exist. This includes the existing Treendale Structure Plan which shows the site has potential for subdivision.
Document 24 of the respondent's bundle of documents is a press release from September 2008 concerning the GBSP. The release says a study will extend the GBSP to cover most of the Bunbury Wellington Region Plan area and will be concerned with the retention of important agricultural areas. The press release states that, during the study, plans for new residential areas in land zoned Rural will not be supported.
The respondent produced no evidence on the status of the review other than it had been commenced. The Tribunal might be persuaded that in certain circumstances a substantial greenfield residential or rural small holdings proposal in a rural zone might compromise a regional structure plan. The Tribunal in this instance, however, is inclined to the applicants' view. That is, this two lot rural subdivision, even though it is at the margin of the Australind residential area, will not confound the review of the GBSP. It is more appropriate to consider the merits of this proposal in the light of the planning controls in place. The ongoing GBSP review is not considered sufficient to impose a moratorium on all rural subdivision proposals in the study area. Consideration of the merit of the proposal as discussed above is required. Regard must be had to the impact there might be if there is allowed the excision of parcels of less productive rural zoned land from larger productive holdings in the rural zones.

South West Rural Subdivision Guidelines

The respondent's submission was that the SWR Subdivision Guidelines properly form part of the planning framework because they were formulated under cl 6.2.1 of SPP 2.5 to develop policy to protect the sustainable use of agricultural land. The respondent said that the introduction in the SWR Subdivision Guidelines indicates the guidelines are to be read with SPP 2.5 and DC 3.4 but are intended to provide further guidance in the assessment of subdivision applications where there are insufficient criteria and local government schemes or local planning strategies.
The respondent says that the SWR Subdivision Guidelines do not support subdivisions creating new lots of less than 80 hectares except where there is a minimum of 40 hectares and various land capability information is provided. The proposed Lot 102 would be less than 80 hectares and no additional supporting information is provided. Proposed Lot 101 cannot comply with a minimum requirement of 40 hectares and therefore approval of the subdivision would be inconsistent with the SWR Subdivision Guidelines.
It was the applicants' submission that the SWR Subdivision Guidelines have limited application to the review site. This was because the SWR Subdivision Guidelines are an internal policy of the respondent without the weight of DC 3.4 or SPP 2.5. The applicants said cl 4.1(e) or cl 4.3 of DC 3.4 is satisfied, and so the other grounds of potential noncompliance identified by the respondent fall away. The proposal is not to utilise proposed Lot 101 for agricultural purposes and proposed Lot 102 complies with the minimum lot size requirement of the DPS 1 for the intensive agricultural zone.
The Tribunal considers the SWR Subdivision Guidelines do not have a determinative effect in this matter. DPS 1 has policy statements for the respective rural zones and lot size standards. The adoption of a policy by the respondent cannot render the standards of DPS 1 irrelevant. In addition, the Tribunal notes that the site is already about 40 hectares. The Tribunal is of the view that a 32 hectare intensive rural subdivision lot can be supported. The concern is, however, that the proposal also includes the creation of an 8 hectare 'General Farming' lot which would be inconsistent with DPS 1. The consideration of the issues above has led the Tribunal to conclude that there is no planning support for the creation of the 8 hectare lot. Approval of such a lot might be viewed by other land owners as a precedent they might seek to follow.

Issue 3: Whether the proposed subdivision would set an undesirable precedent for further subdivision of surrounding rural lots inconsistent with current zoning and the demonstrated capability of the land in the area

It was the respondent's submission that approximately 40 hectares is the prevailing size of rural lots in the locality of the site. The proposed subdivision may therefore set a precedent for subdivision of lots with 'General Farming' and 'Intensive Farming' zoning in the surrounding locality, reducing the amount of land available for commercial agricultural production.
The respondent said that the applicants had not established cogent reasons for departure from DPS 1 under the provisions of DC 3.4, SPP 2.5 or the SWR Subdivision Guidelines. The subdivision would therefore set an undesirable precedent for subdivision outside the intent of the planning framework. The encroaching rural lifestyle use of rural zoned land would constrain agricultural activity and increase the risk that arable land will be lost from commercial agricultural production. The respondent said this would be inconsistent with the primary land uses intended under DPS 1 and contrary to orderly and proper planning.
The applicants said that the proposed subdivision would not establish an undesirable precedent for the subdivision of rural lots in the locality because the circumstances of the site were 'not readily repeatable'. Proposed Lot 102 at 32.5 hectares would be generally consistent in size with rural lots in the locality and meet the minimum lot size for the 'Intensive Farming' zone under DPS 1. The site adjoined the Urban zone under the GBRS and proposed Lot 101 of 8 hectares would not have greater impact on other land uses than does the 'Special Residential' subdivision of 4,000 square metre lots at nearby Meadow Landing.
The applicants said the reference to the refusal of the proposed subdivision applications for Lot 5 and Lot 6 to the east along the alignment of Treendale Road is not reflective of the circumstances for the site. This was because in those instances the resultant lots each side of Treendale Road would have been about 20 hectares. Lot 101, however, is 8 hectares, constrained by a conservation category wetland and contains the second dwelling on the site adjacent to an existing Urban zone under the GBRS.
The applicants also said that the subdivision would not undermine the zoning of the site under DPS 1. This was because DC 3.4, at cl 4.1(e) and cl 4.3, established clear direction for when subdivision of rural land can be permitted. The applicants were of the opinion that because of increasing traffic volumes, Treendale Road was a 'significant physical division' as provided for under cl 4.3 of DC 3.4 and, consistent with cl 4.1(e) of DC 3.4, the dwelling on Lot 101 was no longer used in farming operations. The applicants submitted that it was readily demonstrable that the proposal would not compromise the overall objective of protection of rural land for productive agricultural purposes under DPS 1 and was consistent with SPP 2.5 by virtue of compliance with DC 3.4. The applicants said the subdivision would be consistent with DC 3.4 and therefore would be consistent with orderly and proper planning.

The Tribunal is concerned that the proposed subdivision would establish a precedent. It is not agreed with the respondent that the 8 hectares of proposed Lot 101 would be in itself a significant loss to the area of land available for commercial agricultural production, but the concern is that the site is not distinguishable as the only lot on the margin of the nonrural zoned land in the district.
It is not uncommon for rural zoned lots to have areas within them that make only a marginal contribution to the productivity of the overall holding. In this, the site is indistinguishable from other rural holdings. The applicants have identified the area of the site south of Treendale Road to be of this type. The Tribunal does not consider that identifying such areas within a larger property is a sound planning basis for the subdivision of the property. The applicants have also singled out the alignment of Treendale Road through the site but, as addressed above, the Tribunal has formed the view that the alignment of Treendale Road through the land is not at this time a basis for subdivision.
The Tribunal considers that allowing the subdivision of this rural zoned lot on the margin of non rural areas without there first being an appropriate amendment to the zoning under DPS 1 would establish an undesirable precedent and would be inconsistent with the orderly and proper planning of the locality.

Conclusion

The Tribunal has determined that, in respect of issue 1, the proposed subdivision would be inconsistent with DPS 1. This is because the proposed Lot 101 would be significantly less than the minimum lot standard for the General Farming zone and in respect of the Treendale Structure Plan, the Tribunal considers that any subdivision should be preceded by appropriate amendments to the zoning of the land.
In respect of issue 2, the general presumption in the relevant regional plans and strategies is against the subdivision of rural zoned land. DC 3.4 provides circumstances in which subdivision might be considered in the face of this general presumption. The first of these is whether Treendale Road, which runs through the land, is a significant physical division. The Tribunal has found that at this stage Treendale Road remains a rural road of the type commonly crossed for rural purposes and so does not provide a basis for subdivision. The other consideration under DC 3.4 is the existence on proposed Lot 101 of a second house no longer used for farming purposes. The presence of this house is not considered by the Tribunal to constitute sufficient basis for the subdivision of the site in the face of the inconsistency with DPS 1 and the orderly planning of the locality consistent with the regional schemes and strategies.
Finally, in respect of issue 3, the Tribunal has concluded that the proposed subdivision would not be distinguishable from other applications for subdivision in the locality and that because of the conflict with the relevant planning instruments as outlined in the discussion on issues 1 and 2, the proposed subdivision is objectionable. The Tribunal has therefore found that the proposed subdivision would set an undesirable precedent and approval would be inconsistent with orderly and proper planning.
The Tribunal has therefore determined to dismiss the application and affirm the respondent's refusal.

Orders

1.The application for review is dismissed.
2.The decision dated 26 June 2009 to refuse the application for subdivision issued by the Western Australian Planning Commission after reconsideration of the application is affirmed.

I certify that this and the preceding [84] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J JORDAN, MEMBER