Fairborn and Western Australian Planning Commission
[2012] WASAT 247
•4 DECEMBER 2012
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: FAIRBORN and WESTERN AUSTRALIAN PLANNING COMMISSION [2012] WASAT 247
MEMBER: JUDGE D R PARRY (DEPUTY PRESIDENT)
HEARD: 4 DECEMBER 2012
DELIVERED : 4 DECEMBER 2012
PUBLISHED : 21 DECEMBER 2012
FILE NO/S: DR 336 of 2012
BETWEEN: PUNITO FAIRBORN
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Review by a judicial member of determination of Tribunal upon a matter involving a question of law under s 244 of the Planning and Development Act 2005 (WA) Tribunal affirmed decision to refuse to grant approval for subdivision of land and assessed costs pursuant to a limited costs order Tribunal did not err in law in any of the respects alleged in the grounds for review Tribunal exercised planning discretion Tribunal had regard to applicable planning framework and evidence before it Tribunal assessed costs in accordance with usual practice
Legislation:
City of Albany Town Planning Scheme No 3
Planning and Development Act 2005 (WA), s 244, s 251(1)
Result:
Application for review of Tribunal's determination dismissed
Summary of Tribunal's decision:
Mr Punito Fairborn sought a review by a judicial member under s 244 of the Planning and Development Act 2005 (WA) of a determination of the Tribunal in which it affirmed the decision of the Western Australian Planning Commission to refuse approval for the subdivision of Mr Fairborn's land in Bornholm. Mr Fairborn provided a statement which outlined six grounds of review. The judicial member gave an oral decision in which he considered each of these grounds and decided that they did not disclose any error of law on the part of the Tribunal. The Tribunal exercised planning discretion, and had regard to the applicable planning framework and evidence before it. In assessing costs pursuant to a limited costs order, the Tribunal applied its usual approach and was entitled to have regard to its experience in such matters.
The application for review by a judicial member was dismissed. The Tribunal subsequently published written reasons based on the transcript with some minor edits made for the sake of clarity.
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Mr B Nelson
Solicitors:
Applicant: N/A
Respondent: State Solicitor's Office
Case(s) referred to in decision(s):
Fairborn and Western Australian Planning Commission [2007] WASAT 266
Fairborn and Western Australian Planning Commission [2012] WASAT 181
J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282 (S); (2006) 45 SR (WA) 242
Marvelle Investments Pty Ltd and Argyle Holdings Pty Ltd [2010] WASAT 125 (S)
Perth Central Holdings Pty Ltd and Doric Constructions Pty Ltd [2008] WASAT 302; (2008) 60 SR (WA) 194
Re Carey; Ex parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501
Squires and Western Australian Planning Commission [2006] WASAT 144
Williams and Western Australian Planning Commission [2005] WASAT 10
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
Mr Punito Fairborn has been trying to subdivide his land in Lower Denmark Road, Bornholm since 1995. The land is zoned Rural under the City of Albany Town Planning Scheme No 3 (TPS 3). Mr Fairborn has made four subdivision applications to the Western Australian Planning Commission (Commission) and brought three planning appeals or review applications to the Minister for Planning or this Tribunal. On each occasion, his application was refused.
Most recently in September 2010, Mr Fairborn applied to the Commission to subdivide his property into two 5.8 hectare lots. The proposed subdivision is essentially the same as a subdivision refused by the Commission in 2006 and by the Tribunal on review in 2007: see Fairborn and Western Australian Planning Commission [2007] WASAT 266.
When the most recent subdivision application was refused by the Commission in February 2011, Mr Fairborn sought review of that decision by the Tribunal under s 251(1) of the Planning and Development Act 2005 (WA) (PD Act). The Tribunal, constituted by Member R Moore, conducted the hearing of the review application in Albany over two days in March and April 2012. On 28 August 2012, the Tribunal delivered its decision in which it dismissed the application and affirmed the Commission's refusal of the proposed subdivision: see Fairborn and Western Australian Planning Commission [2012] WASAT 181 (reasons).
The Tribunal came to this decision for essentially two reasons. First, it found that it would not be consistent with orderly and proper planning to allow the creation of an additional smallholding in a Rural zoned area, as this has the potential to introduce land use conflicts in the area between agricultural use of other properties and essentially rural residential or lifestyle use of Mr Fairborn's property. Second, approval of the application would create an undesirable precedent for the subdivision of other Rural zoned properties with limited agricultural potential into smaller landholdings, thereby creating unplanned, ad hoc fragmentation of land.
In the exercise of planning discretion, the Tribunal acknowledged, however, that the site itself is not prime or priority agricultural land and has limited agricultural potential, and that the proposed subdivision would promote environmental and, in particular, conservation objectives and outcomes.
Mr Fairborn has sought review by a judicial member of the Tribunal's decision under s 244 of the PD Act. That section enables a judicial member to review a direction, determination or order of the Tribunal when constituted without a legally qualified member.
Member Moore is not a legally qualified member. However, in my view, none of the six grounds of review advanced by Mr Fairborn disclose any error of law on the part of the Tribunal.
It is to be emphasised that the Tribunal does not have justification under s 244 of the PD Act to entertain any challenge to a finding of fact made by the Tribunal in planning review proceedings.
I will state and address each of Mr Fairborn's grounds for review in turn.
Ground 1
Ground 1 states as follows:
The member failed to properly balance the competing factors at [53]:
a)regarding the objectives of the relevant policies and strategies as equally important, when the nature of her decision necessarily involved determining which factors weighed more importantly than others in the circumstances of the application;
b)not properly characterising the applicant's argument, insofar as neither the applicant [nor] the witness who gave evidence on his behalf suggested the other objectives should be disregarded.
At [53] of the reasons, the member said, referring to the evidence of Ms Delma Baesjou, a consultant town planner who was called to give evidence by Mr Fairborn:
In relation to Ms Baesjou's oral evidence, the Tribunal agrees that the Commission's policies, the City's strategies and even the Department of Water's letter, place great weight on improved environmental outcomes in the locality but that does not translate into a disregard for the other equally important objectives of the relevant policies and strategies.
Paragraph 53 of the reasons is to be read in the context of the Tribunal's reasons as a whole. It is clear from a reading of the Tribunal's reasons as a whole that the member properly identified and balanced competing factors in the exercise of planning discretion. These factors included factors in favour of approval of the application, in particular, the limited agricultural capability of the site and environmental/conservation benefits from the subdivision, and factors against approval of the application, in particular, potential land use conflicts and adverse planning precedent. The Tribunal determined that in the circumstances of the case, the factors against approval outweighed the factors in favour of approval. This was entirely a matter for the Tribunal and no error of law is disclosed.
Furthermore, at [53] of the reasons, the member did not, as alleged in ground 1(a), say that the factors she weighed were of equal importance but, rather, that there were other objectives of the relevant policies and strategies which were equally important to the objectives concerning improved environmental outcomes. It is clear from her reasons that the member considered and weighed all of the important objectives of the planning framework and, indeed, all of the relevant factors in the exercise of planning discretion.
Ground 1(b) is also misconceived. The member did not characterise Mr Fairborn's argument as being to the effect that objectives other than those concerning improved environmental outcomes should be disregarded. As the member observed at [52] of the reasons, and as Mr Fairborn has conceded, 'Ms Baesjou placed great emphasis on the improved environmental outcomes that would result from the approval of the proposal'.
At [53] of the reasons, the member was simply saying that while the planning framework did place great weight on improved environmental outcomes, it does not have the effect that where improved environmental outcomes are achieved or obtained, other objectives of the planning framework are to be disregarded. Rather, all of the competing objectives in the matrix of planning objectives are to be balanced in the exercise of discretion.
Furthermore, it is obvious from the immediately following [54] of the reasons that the member fully understood and properly characterised Mr Fairborn's principal arguments. At [54], the member said:
The applicant argued that approval of the proposed subdivision was warranted because: the land was not productive agricultural land; essential and community services were provided for; the proposed ruralliving land use will meet environmental concerns; and there was no evidence of existing landuse conflict.
The Tribunal did not err in law in terms of ground 1.
Ground 2
Ground 2 states as follows:
The member failed to properly resolve the competing evidence regarding the land use conflict issue identified at [29], because:
(a)the member failed to make reference to the evidence provided in the Prout [R]eport, despite it containing relevant evidence in favour of the applicant about the issue and it having been put before the Tribunal;
(b)the member failed to explain why she preferred the respondent's witness' evidence generally, including by reference to the questioning of the witnesses at the hearing and the respondent's witness' answers about his lack of local knowledge or consultation with local authorities;
(c)the member failed to:
(i)explain why she did not consider the Wilson Inlet No 1 policy relevant to her decisionmaking; and
(ii)take [into] account the Wilson Inlet No 1 policy;
(d)the member failed to take into account or properly consider the admissions made by the respondent's witness that the southern boundary presented an adequate buffer zone;
(e)the member failed to take into account or consider the evidence or submissions made by or on behalf of the applicant regarding land-use conflict arising from the approval of a tourist chalet at lot 190 which is an adjoining lot;
(f)at [55] the member simply made a general assertion about not being 'convinced' by the applicant's argument, rather than assess the evidence and arguments in a reasoned way.
Mr Fairborn submitted that the member placed undue weight on the land use conflict issue. However, the weight to be given to an issue or evidence involves a question of fact, not a question of law: see Williams and Western Australian Planning Commission [2005] WASAT 10 at [17].
The allegation in ground 2(a) is factually incorrect. The member made considerable reference to the evidence provided in the Prout Report at [42], [43], [48] and [74] of the reasons. Having quoted from the Prout Report at [42], the member said at [43] that the Commission 'did not dispute the findings in the Prout Report regarding land capability and agreed that the site was unlikely to be used for priority agricultural purposes'. At [48], the Tribunal expressly acknowledged the evidence in the Prout Report and found that 'it is unlikely that the site will be used for agricultural purposes in the future'.
In his oral submissions, Mr Fairborn contended that the member erroneously preferred the evidence of Mr Jason Gordon, a town planner called to give evidence by the Commission, over evidence in the Prout Report on land use conflict. Mr Fairborn emphasised that Mr Gordon conceded that he lacked local knowledge, being a town planner based in Perth.
As noted, the Tribunal accepted the Prout Report in relation to agricultural potential of the land. However, the author of the Prout Report is not a qualified town planner. In contrast, Mr Gordon is a planner.
Furthermore, while the Prout Report was to the effect that the site has limited agricultural potential, the land use conflict found by the member arose not because of the agricultural potential of the site, but because of the agricultural use of other properties in the area.
As to ground 2(b), the member clearly explained, at [55] [58] of the reasons, why she preferred the Commission's planning argument over Mr Fairborn's planning argument. Each party's planning argument was based on its planning expert evidence. It is correct that the member did not refer to answers given by Mr Gordon about his lack of local knowledge or consultation with local authorities. While Mr Fairborn regarded this as 'an important admission', it was up to the member to consider the totality of Mr Gordon's evidence. Clearly, the member was ultimately satisfied on the basis of the totality of that evidence that the concern expressed by Mr Gordon and set out at [47] of the reasons that 'an approval would increase the potential for land use conflicts and erode the rural character of the area by increasing the density of development in a rural zone by way of an additional dwelling' was well founded. This decision was reasonably open on the planning evidence presented to the Tribunal.
In relation to ground 2(c), it is correct that the member did not refer to the Wilson Inlet No 1 policy in her reasons. However, it appears that this policy was simply a strategy prepared by a community group known as the 'Wilson Inlet Catchment Group'. It therefore did not have any statutory status or even status as a policy forming part of the strategic policy framework in the context of which the application was to be assessed. As it did not form part of the statutory or strategic policy framework in the context of which the application was to be addressed, the member did not err in law in failing to refer to it in the reasons.
In relation to ground 2(d), Mr Gordon made a concession at paragraph 94 of his witness statement (Exhibit 4 before the member) that '[there is a] large area of vegetation located along the watercourse which I consider to block impacts to the building locations from intensive agricultural activities occurring to the south'. However, this concession was made in the context of his written evidence that 'the probable building envelopes are more likely to be exposed to impacts from agricultural activities from the north rather than from the south' (at paragraph 94 of his witness statement).
At paragraphs 95 and 96 of his witness statement, Mr Gordon gave evidence that although the prevailing wind in the locality is from the southwest, 'winds from other directions are not uncommon, particularly during the summer months' and that 'in my experience, residential land uses are one of the most sensitive land uses to noise, dust, and odour, and a northeasterly wind would carry these from farming operations to the north to the dwelling locations'.
The member did not err in failing to refer to Mr Gordon's concession about vegetation to the south of the site, because she clearly accepted his evidence that notwithstanding that factor, given the site's exposure to the north, approval of the subdivision would give rise to potential land use conflicts between agricultural uses to the north and nonagricultural use of the site.
Contrary to the allegation in ground 2(e), it is clear that the member did take into account Mr Fairborn's argument about land use conflict arising from approval of the tourist chalet at Lot 190. She expressly referred to that argument in the last sentence of [41] of the reasons, and implicitly in referring to Mr Fairborn's arguments in [54] of the decision that 'there was no evidence of existing land use conflict'.
In relation to ground 2(f), it is clear, when the Tribunal's reasons are read as a whole, that it assessed the evidence and arguments in a reasoned way. The focus of ground 2(f) is the use of the word 'convince' in [55] and, in particular, in the last sentence of that paragraph of the reasons. That sentence is as follows:
The argument from the applicant that the road and the disused railway land along with the adjacent properties within the 'wedge' provide a sufficient buffer to other agricultural properties does not convince the Tribunal that there will be no land use conflict in the future.
As Martin CJ recognised in Re Carey; Ex parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501 at [77], the reasons of the Tribunal are not properly or fairly to be read 'minutely and finely with an eye keenly attuned to the perception of error'; see the authorities collected by his Honour at [77]. Read in context, the Tribunal used the word 'convince', in my view, in the sense of 'satisfy'. It acknowledged the applicant's argument but was not satisfied or convinced by it that there will be no land use conflict in the circumstances of the case.
The Tribunal did not err in law in terms of ground 2.
Ground 3
Ground 3 states as follows:
The member failed to resolve the issue identified at [46] as to:
(a)whether despite its zoning the land should be considered as 'agricultural land';
(b)the relevance and weight to be according to DC 3.4[,]
and thereby accorded inappropriate weight to the zoning of the land.
At [46] of the reasons, the Tribunal said the following:
Ms Baesjou argued that the classification of this land as priority agricultural land was an anomaly, that the LGSS was a broadbrush strategy and that the subject land sits outside DC 3.4 because of the nature of the land and the use of the neighbouring properties. It was Ms Baesjou's opinion that the proposal should be approved because there would be beneficial environmental and conservation outcomes by way of conditions of approval.
As I observed earlier, the weight to be given to a relevant consideration such as the zoning of land or other relevant planning provisions does not involve a question of law. The member clearly did not consider that the Tribunal was bound by the zoning of the land to refuse the subdivision application, as she considered the merits of the application in the context of the planning framework and weighed factors in favour of approval of the application against factors militating against approval.
The member also addressed the issue of whether the land was, in fact, 'agricultural land', despite its designation as 'priority agricultural' in the City of Albany Local Planning Strategy in the reasons at [41] [43], [46] and [48]. At [48] of the reasons, the Tribunal accepted on the basis of the Prout Report that 'it is unlikely that this site will be used for agricultural purposes in the future'.
The Tribunal referred to relevant provisions of Development Control Policy 3.4 Subdivision of Rural Land (DC 3.4) at [36] and [37] of the reasons. As the Tribunal said at [37], both parties considered the proposed subdivision to be a rural living proposal. The extract from DC 3.4 at [36] of the reasons states that DC 3.4 does not apply to rural living proposals or subdivision.
Mr Fairborn submitted that the member failed to take into consideration the evidence that the site has acid sulphate soils. However, the Prout Report addressed that issue in forming the conclusion that the site is not productive agricultural land. The member found that the site should not properly be considered as productive agricultural land on the basis of the Prout Report.
No error of law is disclosed.
Ground 4
Ground 4 states as follows:
At [62], the member made an error, when considering the question of precedent, by not giving sufficient regard to the 'wedge' position of the land when considering [the] chance or possibility of it being distinguishable from later applications, including the 16 lots referred to by the respondent.
At [62] of the reasons, the Tribunal referred to the Commission's evidence and argument that there were at least 16 lots in the immediate vicinity of the site which are zoned Rural but have limited potential for productive agricultural use. Mr Fairborn said that considerable time was spent in evidence and in submissions at the hearing regarding the distinguishability of the 16 lots referred to by the Commission. He submitted that the other lots in the area referred to as the 'wedge' should not have been considered as part of the assessment of precedent because they are distinguishable from the site.
Mr Fairborn referred to a number of differences between the site and the other properties referred to by the Commission, and emphasised in particular that whereas the site is subject to acid sulphate soils, the other properties do not have that characteristic. Mr Fairborn submitted, therefore, that the other properties are distinguishable from the site and that consequently precedent is not a relevant planning consideration in the circumstances of the case. However, the determination of whether other properties are distinguishable from the site involves findings of fact which are not open for review in this proceeding.
It was for the member to determine whether there were other indistinguishable properties. The member found at [63] that there is more than a mere chance of possibility that there may be later indistinguishable applications and therefore that precedent is a relevant consideration, because she accepted the Commission's evidence that there were 'other rural zoned lots, with limited agricultural potential' which could be subdivided, thereby creating unplanned, ad hoc fragmentation. While the other lots that were referred to may not have acid sulphate soils, it was sufficient that they had, like the site, limited agricultural potential.
This ground does not involve any question of law.
Ground 5
Ground 5 states as follows:
The member failed to pay due [regard] to the decision in Squires and Anor v Western Australian Planning Commission [2006] WASAT 144, or at the very least be satisfied that it was clearly in error or distinguishable, given the reliance placed on it by the applicant at the hearing.
Mr Fairborn submitted that while the Tribunal is not bound by precedent, it should generally follow an earlier decision of the Tribunal that is on point, unless it is satisfied that the earlier decision was clearly in error. Mr Fairborn submitted that Squires and Western Australian Planning Commission [2006] WASAT 144 (Squires) is a decision that is on point and that the member erred in not referring to it in her decision.
It is clear that the member did not refer to this decision in her reasons. However, Squires is not a case that is relevantly on point. It was a planning merit assessment of a different subdivision application in an entirely different context to the site. In particular, the property in Squires, while apparently located within 13 kilometres of the site, was located in a townsite comprising 36 lots, with predominant lot sizes ranging from 0.98 hectare to 2.3 hectares. The Tribunal found in that case that the townsite was characterised as more consistent with a 'special rural' or 'rural residential' area than the Rural zoning.
Given the fundamental differences between the circumstances of Squires and the present case, the failure to refer to that decision in the Tribunal's determination in this case does not involve any error of law.
Ground 6
Ground 6 states as follows:
In relation to the costs order referred to at [68] [73], the member failed to properly consider the costs claimed by the applicant, by failing to consider the statement of costs referred to at [70] and determine an appropriate hourly rate and appropriate number of hours.
As the member observed at [68] of the reasons, on 16 March 2012, the Tribunal had made a costs order in the following terms:
The respondent is to pay the applicant the proportion of the fees charged by the applicant's consultant town planning witness that relate to DC 3.4 and SPP 2.5 as determined and in the amount assessed by the member conducting the hearing on 20 March 2012.
As the member pointed out at [69] of the reasons, the costs order was made together with other orders requiring the Commission to provide copies of two draft policies, namely, draft State Planning Policy 2.5 Land Use Planning in Rural Areas (SPP 2.5) and draft DC 3.4, to Mr Fairborn and allowing Ms Baesjou to respond orally to the evidence relating to the draft documents.
As the member observed at [70] of the reasons, Mr Fairborn submitted a tax invoice from Ms Baesjou's firm addressed to the Commission and containing a statement of costs in the amount of $6,167.76. As the member also observed at [70] of the reasons, the Commission disputed the extent of the costs claimed.
At [72] and [73] of the reasons, the Tribunal found as follows:
The Tribunal is of the view that the amount sought by the applicant is excessive and does not reflect the intention of the order made by the Tribunal on 16 March 2012. In this case, the Tribunal is of the view that the time spent by the consultant planner that directly related to the two draft documents would be less than one working day, particularly as Ms Baesjou had some working knowledge of the documents from a previous matter.
In the exercise of discretion and based on its experience of such matters, the Tribunal will fix the amount of costs payable to the applicant by the respondent at $1,000. This amount is considered to be an appropriate proportion of the fees charged by Ms Baesjou which can be directly related to the two draft documents, including printing costs.
Mr Fairborn submitted:
The only rational basis upon which the member could have considered the costs claimed by the applicant was by determining an appropriate hourly rate and appropriate number of hours and by paying scrutiny to the statement of costs referred to at paragraph 70.
Mr Fairborn submitted that the decision of the member on the costs assessment was 'arbitrary' and 'not with reference to a logical basis'.
In my view, the member did not err in law in the assessment of costs. The member clearly had regard to Ms Baesjou's statement of costs referred to at [70] of the reasons, but regarded the amount claimed as excessive and inconsistent with the costs order.
The Tribunal fixed the amount of costs at $1,000, as it considered that 'the time spent by the consultant planner that directly related to the two draft documents would be less than one working day' (at [72] of the reasons), and $1,000 reflects 'an appropriate proportion of the fees charged by Ms Baesjou which can be directly related to the two draft documents, including printing costs' (at [73] of the reasons).
The member therefore had regard to Ms Baesjou's tax invoice and had regard to the time Ms Baesjou properly spent on the documents. The member awarded a consequent proportion of the costs charged by Ms Baesjou in the tax invoice.
As stated in Guide to Proceedings in the Western Australian State Administrative Tribunal (Lawbook Co Thomson Reuters, 2012) by DR Parry and B De Villiers at paragraph 1714:
The Tribunal assesses costs 'in a relatively robust fashion', consistently with its objectives set out in s 9 of the SAT Act, in particular, to act with as little formality and technicality as is practicable, and to minimise the costs to the parties. Generally speaking, 'any award should be approached in a broad fashion and should not have to descend into [an] inquiry into small items of expenditure'.
The first quotation in the extract is from Marvelle Investments Pty Ltd and Argyle Holdings Pty Ltd [2010] WASAT 125 (S) at [49] and the second quotation in the extract is from Perth Central Holdings Pty Ltd and Doric Constructions Pty Ltd [2008] WASAT 302; (2008) 60 SR (WA) 194 at [67].
The member assessed costs in this case in accordance with the Tribunal's usual practice for costs assessment. It was not arbitrary and had a logical basis, namely, the member's assessment of what proportion of Ms Baesjou's bill directly related to the two draft documents. The member was entitled to have regard to experience in such matters in determining a reasonable amount for work involved, given that she was undertaking a costs assessment in accordance with the Tribunal's objective which, as noted in the extract earlier, includes minimising the costs to the parties. The Tribunal has, in the past, significantly reduced costs assessed from costs claimed. For example, in J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282 (S); (2006) 45 SR (WA) 242 at [39], the Tribunal assessed costs in planning review proceedings determined on the papers at approximately $10,000, whereas the party which was awarded costs claimed approximately $85,000.
Conclusion
The Tribunal did not err in law in any of the six respects alleged in the grounds for review. The Tribunal exercised planning discretion, having regard to the applicable planning framework and the evidence before it.
Ultimately, Mr Fairborn seeks a different merits decision to that of the member. However, that is beyond the scope of this proceeding to deliver.
Orders
For these reasons the Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision of the Tribunal in DR 336 of 2011 made on 28 August 2012 is affirmed.
I certify that this and the preceding [64] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE D R PARRY, DEPUTY PRESIDENT
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