FAIRBORN and WESTERN AUSTRALIAN PLANNING COMMISSION - [2012] WASAT 181

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: FAIRBORN and WESTERN AUSTRALIAN PLANNING COMMISSION [2012] WASAT 181

MEMBER: MS R MOORE (MEMBER)

HEARD: 20 MARCH 2012 AND 18 APRIL 2012

DELIVERED : 28 AUGUST 2012

FILE NO/S: DR 50 of 2011

BETWEEN: PUNITO FAIRBORN
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Town planning Subdivision Rural zoned land General presumption against subdivision of rural land Priority agricultural area Agricultural capability of site Rural living use Impact on agricultural activity in the locality Precedent - Whether potential for land use conflict

Legislation:

City of Albany Town Planning Scheme No 3, cl 3.1.13, Pt III
Planning and Development Act 2005 (WA), s 241(3), s 251(1)
State Administrative Tribunal Act 2004 (WA), s 47(1)(c), s 47(4)

Result:

Application for review dismissed
Decision of the respondent affirmed

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 [2011] WASAT 166
Goldin & Anor v Minister for Transport (2012) 121 LGERA 101
Nicholls and Western Australian Planning Commission [2005] WASAT 40

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

This matter involved an application for review of the refusal of the Western Australian Planning Commission to approve an application for the subdivision of Lot 189 Lower Denmark Road, Bornholm into two 5.8 hectare lots.
The Commission submitted that there were no planning grounds to support the proposed subdivision of the site as an exception to the general presumption against the subdivision of rural land. The Commission considered that an approval would set a precedent for the subdivision of other rural zoned lots as well as increase the potential for land use conflicts and erode the rural character of the area by increasing the density of development in the rural zone by way of an additional dwelling entitlement.
The applicant, Mr Fairborn, argued that this was an unusual situation resulting from the location of the site within what he described as a 'wedge' of six properties primarily used for rural living purposes, combined with the fact that the site was unsuitable for agricultural purposes.
The parties both considered this to be a rural living proposal and the Commission did not dispute the evidence regarding the agricultural capability of the site.
Mr Fairborn contended that the site was unproductive land, had been incorrectly classified as priority agricultural land, and the proposed subdivision should be approved because it would provide an improved environmental outcome by way of conditions of approval.
The Tribunal found that it would not be consistent with orderly and proper planning to allow a subdivision that created an additional small holding in a rural zoned area and that the proposed subdivision would set an undesirable precedent for the subdivision of other rural zoned lots with limited agricultural potential into smaller land holdings thereby creating unplanned, ad hoc fragmentation of land.
The application for review was dismissed and the Commission's decision affirmed.

Introduction

These proceedings involve an application brought by Mr Punito Fairborn (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 (Commission or respondent) dated 13 January 2011 to refuse subdivision approval of Lot 189 Lower Denmark Road, Bornholm (site) into two lots.

Background

There have been previous applications made by the applicant to subdivide the subject site, all of which have been refused by the respondent.
In 1995 the applicant applied to create two lots of approximately 2.5 hectares and 9 hectares in area. This decision was appealed and the then Minister for Planning dismissed the appeal.
In 1999 the applicant applied to create two lots of approximately 5.2 hectares and 6.4 hectares in area. The applicant did not appeal this refusal.
In 2006 the applicant applied to subdivide the subject land into two lots of 5.8 hectares each (2006 application). This application was also refused by the respondent. The applicant then made an application to the Tribunal for review of the decision, the result of which was that the review was dismissed and the decision by the respondent affirmed, see Fairborn and Western Australian Planning Commission [2007] WASAT 266 (2007 decision).
The applicant then lodged with the respondent a new application for essentially the same subdivision of the site into two lots of 5.8 hectares in September 2010 (2010 application). This application was again refused by the respondent and an application for review of this decision was lodged with the Tribunal on 10 February 2011.
On 9 March 2011, the respondent made an application under s 47(4) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) for an order that the review of the 2010 application be struck out as an abuse of process pursuant to s 47(1)(c) of the SAT Act. This application was heard on 25 May 2011.
In Fairborn and Western Australian Planning Commission [2011] WASAT 166 (2011 decision), the Tribunal made its conclusions at [57] to [59], and at [4] held that:
… [A]s no evidence had been led by either party in 2007 in respect of the agricultural capability of the land and as that issue and the relevant State policies dealing with it formed part of the reasons for refusal on both occasions, the matter should not be dismissed as an abuse of process but should be allowed to proceed to a final hearing to enable both parties to present evidence on the issue and allow the Tribunal to come to the correct and preferable decision.
The matter then proceeded to a final hearing held in Albany over two days on 20 March 2012 and 18 April 2012, and incorporating a view of the site in the company of the parties.

Proposed subdivision

The proposal the subject of this review is essentially the same plan of the subdivision proposed in the 2006 application which is the subdivision of the site into two lots each with an area of 5.8 hectares.

Site and locality

A description of the site and locality is set out in the 2007 decision at [8] to [13].

Planning framework

The 2007 decision sets out the planning framework relevant to the consideration of the proposal at [14] to [22]. The planning framework has remained relatively static with the following exceptions.
The respondent has prepared a draft State Planning Policy 2.5 Land Use Planning in Rural Areas (draft SPP 2.5) which it intends to replace the existing State Planning Policy No 2.5 Agricultural and Rural Land Use Planning (SPP 2.5). The draft SPP 2.5 is considered to be a seriously entertained planning instrument by the parties and the Tribunal.
In conjunction with the revision of SPP 2.5, Development Control Policy 3.4 Subdivision of rural land (DC 3.4), which was adopted in 2008, has also been revised and the 2012 version is considered by the respondent to be operational.
The site's zoning of 'Rural' under the City of Albany Town Planning Scheme No 3 (TPS 3) is unchanged. Clause 3.1.13 of TPS 3 provides the objectives for the rural zone as follows:
To ensure that high quality agricultural land is retained for primary production. To regulate uses which might conflict with farming interests, and foster uses which are complementary to such interests. To preserve rural land within easy reach of urban areas.
The zoning table in Pt III of TPS 3 provides that rural residential lots are an X use in rural zoned areas. An X use is a use that is not permitted.
The 2007 decision refers to the City of Albany Local Rural Strategy (LRS) and General Policy 30. The LRS has been superseded by the City of Albany Local Planning Strategy (ALPS) which was endorsed by the respondent on 15 June 2010. At the time of the 2007 decision the City had adopted and advertised a draft ALPS. General Policy 30 has been superseded by Local Planning Policy 5 Rural and Environmental Policy (LPP 5).
The subject site is located within a designated priority agricultural area identified in the ALPS. Clause 5.5.1 of the ALPS states that:
Priority Agricultural areas are those with State, regional and local significance and must be protected as finite resources containing land suitable for traditional agricultural activities and irrigated annual and perennial (three seasons or more) horticulture and other irrigated crops and pasture.
The ALPS contains strategic objectives for rural living areas at cl 8.3.5 as follows:
•Discourage the creation of additional rural townsites for living purposes.
•Avoid the development of Rural Living areas on productive agricultural land, other important natural resource areas and areas of high bushfire risk, flooding and environmental sensitivity.
•Avoid the development of Rural Living areas on future and potential long-term urban areas.
•Provide for compact growth of selected existing rural townsites in accordance with Table 5, based on land capability and available services and facilities.
•Minimise potential for generating land-use conflicts.
The parties also referred to the following documents:
1)Lower Great Southern Strategy (LGSS)
2)Statement of Planning Policy No 1 State Planning Framework Policy (SPP 1)
3)State Planning Policy 3 Urban Growth and Settlement (SPP 3)
4)Development Control Policy 1.1 Subdivision of Land (General Principles) (DC 1.1)
5)State Planning Policy No 2 Environment and Natural Resources Policy (SPP 2)

The respondent's decision

The respondent received this subdivision application on 10 September 2010 and on 13 January 2011 resolved to refuse it for the following reasons:
1.The proposal is contrary to Commission Policy DC 3.4 'Subdivision of Rural Land', by reason that DC 3.4 contains a general presumption against subdivision of Rural Land and the proposal does not meet any of the exceptions to this general presumption as set out in the policy. Specifically:
a)There is no significant natural or man-made feature dividing the subject land;
b)Neither lot is to accommodate an existing non-rural land use or other use ancillary to the rural use of the land;
c)The proposal will not facilitate excision of a conservation lot;
d)The proposal will not facilitate the conservation of a heritage building or place;
e)The proposal will not excise a homestead lot and does not meet criteria for homestead lot subdivision; and
f)The subject land is not identified in an endorsed local planning strategy or local rural strategy, or appropriately zoned, for rural residential subdivision.
2.Approval of the proposal would set an undesirable precedent for subdivision of other Rural zoned land where it does not meet any of the exceptions to the general presumption against subdivision contained in Commission [P]olicy DC 3.4 'Subdivision of Rural Land'.
3.The proposal is contrary to Section 4.1(a) and (b) of State Planning Policy 2.5 'Agriculture and Rural Land Use Planning', by reason that the proposed subdivision represents unplanned, ad hoc fragmentation of rural land and would result in land uses unrelated to agriculture being located on agriculture land.
4.The proposal is contrary to Section 4.3 of State Planning Policy 2.5 'Agriculture and Rural Land Use Planning', by reason that the proposed lot sizes increase the risk of the land being used for a primarily residential purpose. This increases the potential for conflicts of land use with existing agricultural enterprises in the area.
5.Approval of the proposal would set an undesirable precedent for subdivision of other Rural zoned land where it is contrary to the objectives of State Planning Policy 2.5 'Agriculture and Rural Land Use Planning'.
6.The proposal is contrary to the Albany Local Rural Strategy (LRS), by reason that the proposal does not meet any of the criteria under General Policy 30 (Criteria for Support for Subdivision of Rural Land) of the LRS to warrant support.
7.Approval of the proposal would set an undesirable precedent for subdivision of other Rural land in the City of Albany where it does not meet criteria under General Policy 30 of the Albany Local Rural Strategy.
8.The proposed subdivision is inconsistent with the Albany Local Planning Strategy (ALPS). ALPS identifies the subject land and surrounding land as agricultural land. Subdivision as proposed will increase the risk of a noncompatible, primarily residential land use being introduced to the area with the potential to adversely impact on existing agricultural enterprises through land use conflicts.
9.The proposal is contrary to the objectives of the City of Albany Town Planning Scheme No 3 relating to Rural zoned land, which aim to regulate uses which might conflict with farming interests.

The issues

The parties discussed the issues to be considered for determination at the commencement of the hearing on 20 March 2012. Initially, the issue of whether the proposal would lead to land use conflict was identified as a separate issue but the Tribunal is of the view that it should be incorporated into the first issue, as potential land use conflict is a consideration in a number of the planning instruments referred to in issue 1. Therefore the Tribunal considers the issues to be addressed in this matter are as follows:
1)Whether the proposed subdivision should be approved having regard to the relevant planning framework, in particular:
a)City of Albany Town Planning Scheme No 3 (TPS 3);
b)Albany Local Planning Strategy (ALPS);
c)Local Planning Policy 5 Rural and Environmental Policy (LPP 5);
d)Lower Great Southern Strategy (LGSS);
e)Statement of Planning Policy No 1 State Planning Framework Policy (SPP 1);
f)Statement of Planning Policy No 11 Agricultural and Rural Land Use Planning (2002) (known as State Planning Policy 2.5);
g)State Planning Policy 3 Urban Growth and Settlement (SPP 3);
h)Development Control Policy 1.1 Subdivision of Land (General Principles) (DC 1.1);
i)Development Control Policy 3.4 Subdivision of Rural Land (DC 3.4) (2012 version is now operational);
j)Draft State Planning Policy 2.5 Land Use Planning in Rural Areas (draft SPP 2.5); and
k)State Planning Policy No 2 Environment and Natural Resources Policy (SPP 2).
2.Whether the proposed subdivision will set an undesirable precedent.
The Tribunal will address each issue in turn.

Whether the proposed subdivision should be approved having regard to the relevant planning framework

In the 2007 decision the Tribunal considered the relevant planning framework and found that there was a general presumption against the subdivision of rural zoned land in the locality of the subject site.
In this case, having considered the current relevant planning framework, which now includes draft SPP 2.5, DC 3.4 and the ALPS, the Tribunal finds that there is still a general presumption against the subdivision of rural zoned land in the locality.
Draft SPP 2.5 is relevantly for this review a seriously entertained planning instrument with the following objectives:
a)to protect rural land from incompatible uses by:
i.requiring comprehensive planning for rural areas;
ii.making land-use decisions for rural land that support existing and future primary production and protection of priority agricultural land, particularly for the production of food;
iii.providing investment security for the existing and future primary production sector;
b)to promote regional development through provision of ongoing economic opportunities on rural land;
c)to promote sustainable settlement in, and adjacent to, existing urban areas;
d)to protect and improve environmental, landscape and cultural assets; and
3)to minimise land use conflicts.
These objectives do not conflict with the general presumption against the subdivision of rural land and further, cl 5.1 of draft SPP 2.5 states that the creation of new rural lots, through ad hoc, unplanned subdivision is considered to be inconsistent with, or contrary to, the objectives of the policy.
The policy requirements in cl 5.1 of draft SPP 2.5 are as follows:
a)Land use change from rural to all other uses is to be planned and provided for in a planning strategy or scheme;
b)Land identified as priority agricultural land in a planning strategy or scheme is to be retained for that purpose;
c)Beyond its principle function for primary production, rural land is also required for public purposes, natural resource management, biodiversity conservation and protection of landscapes and views;
d)The use of rural land for intensive or emerging primary production land uses does not warrant creation of new or smaller rural lots on an unplanned, ad-hoc basis; and
e)Creation of new rural lots will be by exception and in accordance with Development Control Policy 3.4 subdivision of rural land, or planned in a strategy or scheme.
Draft DC 3.4 states that:
… the subdivision of rural land for rural living must be properly planned through the preparation and endorsement of strategies and schemes and be accordingly zoned in local planning schemes prior to subdivision.
Rural living is considered a residential land use and not a rural land use. Therefore this policy does not apply to rural living proposals or subdivision. Rural living policy is outlined in clause 5.6 of State Planning Policy 2.5 Land use planning in rural areas.
Both the applicant and the respondent consider this to be a rural living proposal. Rural living is defined in draft SPP 2.5 as:
A land use that is residential in nature, generally characterised by a grouping of lots generally in the order of 1 to 40 hectares. Although primary production may occur on some rural living properties it is usually for hobby farming, lifestyle activities or incidental income purposes. In terms of land use zones this includes, but is not limited to, special residential, rural living, rural retreat, rural residential, special rural, rural smallholdings, and landscape protection zones. This also includes subdivision of rural land into smaller landholdings e.g. a boundary realignment which results in lots of a size where residential is the predominant land use. Rural living is not considered a rural or agricultural land use, as defined by the Planning and Development Act 2005 [WA].
Clause 5.6(b) of draft SPP 2.5 provides a number of criteria to be satisfied in order for the Commission to identify rural living precincts or support rural living proposals.
Mr Brendon Nelson, from the State Solicitor's Office, represented the respondent at the hearing and submitted that, as in the earlier 2007 case, there were no planning grounds to support the proposed subdivision of the site as an exception to the general presumption against the subdivision of rural land.
The applicant submitted that this proposal was, in effect, a proposal for infill to an established rural residential enclave. Mr Fairborn contended that this was an unusual situation resulting from the location of the subject land within what he described as a 'wedge' of six properties primarily used for rural living purposes, combined with the fact that the site was unsuitable for agricultural purposes.

Mr Fairborn was of the view that the 2007 Tribunal hearing was seriously compromised with flawed evidence and selected omissions arising from what was originally a 'nonplanned and incorrectly classified lot'. It was his submission that new evidence, which included a letter from the Department of Agriculture dated 17 February 2011 and a land capability report prepared in July 2008, identified his land as unproductive and not suitable for agricultural purposes. This meant that his land had been incorrectly classified as 'priority agricultural' land for the purposes of the City's strategies and the Commission's policies and therefore the policies that refer to it as 'priority agricultural' land should not be given much weight. He also argued that the City disregarded its own policies by approving a chalet development at Lot 190, Lower Denmark Road, immediately adjacent to the site.
The Land Capability of Lot 189 Lower Denmark Road, Albany Report (Prout Report) prepared by agriculture and land use consultants, Ashley Prout & Associates, dated July 2008, states that the subject site:
… is approximately only 60% cleared with a main power line further restricting land use. The remaining land approximately 5.8 hectares is too small to be considered viable for any type of agricultural enterprise.
The property can not be drained, approval to clear more land would be vigorously opposed and the existing land is flooded for much of the year. There are no irrigation or drainage schemes that he can use, the property is too small to consider excavating large dams to irrigate summer crops and too cold and wet in winter for any winter production of pasture or horticultural crops.
The line drawn to include Mr. Fairborn's property has been mistakenly placed to include his property. By definition his land can not be considered as prime or as priority agricultural land.
The respondent 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 but argued that the proposed subdivision will create two rural residential lots 'amongst priority agricultural land' as the site is surrounded by land also identified as agriculturally significant in both the ALPS and the LGSS.
The respondent contended that the proposal was for two rural residential lots and that the LGSS provides that rural residential development should be consolidated and located close to existing settlements, not randomly dispersed throughout rural areas, and that the ALPS supported this by containing rural living subdivision to within designated townsites where the townsites have been identified for growth, avoiding areas of productive agricultural land.
Ms Delma Baesjou, a planner, gave evidence on behalf of the applicant and assisted Mr Fairborn during the hearing. It was her opinion that because of the nature of the existing land uses within the 'wedge' of properties and in the surrounding area, and the characteristics of the subject site, the creation of one additional landholding would be both reasonable and acceptable in this case.
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.
It was the opinion of Mr Jason Gordon, a planner appearing on behalf of the respondent, that land does not need to be agriculturally productive to be subject to a rural zoning and that draft SPP 2.5, does not make a distinction between agriculturally capable rural land and noncapable rural land. Mr Gordon was concerned 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 entitlement.
The Tribunal acknowledges the evidence provided by the applicant regarding the agricultural capability of the site contained in the Prout Report and accepts that it is unlikely that this site will be used for agricultural purposes in the future. Interestingly, the 2007 decision addressed this at [70] where the Member stated:
No expert land capability information for the site was put into evidence. The aerial photograph showed that the clearing and dams indicate some earlier attempt at farming, perhaps grazing. The Tribunal is inclined to favour the applicant's position on the horticultural potential of the site. If the site had any horticultural potential there would be more evidence of it, especially in a locality where there was a history of intense agricultural activity, such as potato growing. In this regard, the Tribunal accepts that the proposed subdivision would have little impact on the horticultural viability of the site. Of more significance is the potential impact of the use of the proposed lots on the agricultural activity of this rural zoned locality.
The applicant submitted that 'once the situation of land capability is resolved, the remaining applicable policies, including objectives such as environmental and rural community planning, take on greater weight'.
In her oral evidence, Ms Baesjou stated that the proposal satisfied the intent of draft SPP 2.5, particularly in relation to the environmental conservation objectives. Ms Baesjou argued that as this was an existing rural living enclave, not a new one, then cl 5.6 of draft SPP 2.5 was not particularly relevant and she considered the environmental conservation objectives in cl 5.7 to be of more relevance in the consideration of this matter.
The respondent submitted that the proposal does not satisfy the objectives of draft SPP 2.5 or the measures in cl 5.6(b) and that cl 5.7(e) limits the weight to be placed on conservation issues as follows:
e)supporting rural living proposals with a conservation theme that result in improved environmental outcomes, where that land is identified as suitable for future rural living subdivision in a strategy or scheme in accordance with the criteria listed at 5.6(b)[.]
Ms Baesjou placed great emphasis on the improved environmental outcomes that would result from the approval of this proposal. She gave evidence that the rural use of land in the locality would be protected by conditions being applied to the subdivision approval requiring the retention and protection of the remnant vegetation on the site and this would lead to improved water quality in the area. Ms Baesjou stated that:
… formally recognising the land use, which is predominantly for conservation and biodiversity, locking in place through the subdivision conditions and the proposed notifications has direct ecological and environmental benefit … and economic benefit.
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.
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 rural living land use will meet environmental concerns; and there was no evidence of existing land use conflict.
The Tribunal is not persuaded that allowing the subdivision of the site into two lots, each with the ability to build a dwelling, is an effective method of providing an improved environmental outcome to either the site or the locality, even with the imposition of conditions. In fact, the Tribunal agrees with the respondent and is of the view that the introduction of an extra dwelling entitlement has the potential to create land use conflict within the locality in the future. 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.
The definition of rural living in draft SPP 2.5 includes the subdivision of rural land into smaller landholdings where residential is the primary land use. In this case the site is not adjacent to an existing urban area nor is it located within an area planned for rural living. The site is located within an area identified as priority agricultural land, notwithstanding the land capability of this particular site and the characteristics of the other properties in the 'wedge'. The small townsite of Youngs Siding is located approximately 5 to 6 kilometres away but has not been identified by the planning framework as suitable for growth. The Tribunal is of the view that the proposal does not satisfy the criteria set out in draft SPP 2.5 for rural living proposals.
It is also the view of the Tribunal that the objectives of draft SPP 2.5 will not be met by the subdivision of this rural zoned lot into two smaller landholdings, as the potential for land use conflict will be increased by the introduction of an additional dwelling entitlement and the site is not located in a area which has been planned for growth.
The Tribunal therefore finds that having regard to the relevant planning framework and the particular circumstances of the site, the proposed subdivision should not be approved as an exception to the general presumption against the subdivision of rural land.

Whether the proposed subdivision will set an undesirable precedent

The Tribunal, in Nicholls and Western Australian Planning Commission [2005] WASAT 40 (Nicholls), adopted the following criteria from Goldin & Anor v Minister for Transport (2012) 121 LGERA 101 as to the circumstances in which precedent is a relevant consideration in a planning assessment. These are:
(1)That the proposed development or subdivision is not in itself unobjectionable; and
(2)That there is more than a mere chance or possibility that there may be later undistinguishable applications.
The applicant argued that no precedent would be set by the approval of this proposal because this site was an unusual situation due to its land capability and its location within a discrete 'wedge' of similar properties. He argued that any precedent set would be limited to those properties within the 'wedge' and referred to the 2007 decision where the Member stated at [81] that '…[i]f the subdivision pattern is restricted to the wedge between the recreation reserve and Lower Denmark Road, then the precedent concerns are limited'.
The Member, at [81] to [82] of the 2007 decision, went on to say:
… It is the concern of the Tribunal, however, that the boundaries of this wedge are indefensible as identifying a discrete land area and that other holdings, particularly the 20 or so lots of about 20 hectares to the north, of similar characteristics and use potential could look to any approval as precedent for them to follow. The respondent also pointed out that it is not uncommon for applications to be made to have an area of land not contributing to the income of a farm to be the subject of a subdivision application.
The Tribunal has therefore formed the view that precedent is a relevant consideration, that it extends beyond the lots in the so called wedge, that such applications would be indistinguishable from the proposed subdivision and the excision of lots similar in size and character to those proposed would not contribute to maintaining the intent of the rural zoning of the locality.
The respondent argued that there are at least 16 lots in the immediate vicinity of the site which have a rural zoning and a limited potential for productive agricultural use, as well as other lots in rural areas of the State which cannot be put to agricultural use. Therefore, there is more than a mere chance or possibility that there would be applications to subdivide other lots in the immediate vicinity, including other lots in the 'wedge'.
In this case, the Tribunal considers that precedent is a relevant consideration as each of the criteria set out in Nicholls has been met. The proposed subdivision, for the reasons expressed in considering issue 1 above, is 'not unobjectionable' and the Tribunal agrees with the respondent that there is more than a mere chance or possibility that there may be other undistinguishable applications for the subdivision of other rural zoned lots, with limited agricultural potential, into smaller land holdings thereby creating unplanned, ad hoc fragmentation of land.

Hardship

The applicant raised the issue of hardship towards the end of the hearing by presenting the Tribunal with a written statement that he requested the respondent not see. The respondent agreed the Tribunal could accept the statement and was content to provide a written submission on the use of the statement and claims for hardship generally.
The applicant's written statement referred to his difficult financial and emotional circumstances and the effect of his past on his current situation.
Section 241(3) of the PD Act states:
In determining an application for the review of the determination of, or conditions imposed in respect of, an application for approval to subdivide a lot into not more than 3 lots, the State Administrative Tribunal may have regard to claims of hardship raised by the applicant and proved to the satisfaction of the State Administrative Tribunal, if the State Administrative Tribunal is of the opinion that such regard will not affect the application of sound planning principles.
In this case, the Tribunal has found that the proposal does not warrant approval when having regard to the relevant planning framework. The Tribunal is therefore of the opinion that it would not be consistent with the application of sound planning principles to approve the proposed subdivision, notwithstanding the difficult personal circumstances of the applicant.

Costs order

On 16 March 2012, the Tribunal made the following order:
…
4.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.
This order was made with other orders requiring the respondent to provide copies of two draft policies (draft SPP 2.5 and draft DC 3.4) to the applicant and allowing the applicant's expert planning witness to respond orally to the evidence relating to the draft documents.
The applicant submitted a tax invoice from Ayton Baesjou Planning addressed to the Western Australian Planning Commission and containing a statement of costs which totalled $6,167.76. The respondent disputed the extent of the costs claimed.
The Tribunal finds that it is appropriate, as ordered on 16 March 2012, for a proportion of the fees charged by the applicant's consultant town planner to be paid by the respondent. This is because of the limited time available for the applicant to adequately prepare for the hearing with regard to the two draft documents, draft SPP 2.5 and draft DC 3.4.
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.

Conclusion

This matter involves essentially the same subdivision proposal as that considered by the Tribunal in the 2007 decision. Since 2007, there have been some changes to the planning framework in terms of the revision of the Commission's policy SPP 2.5 and DC 3.4, and the adoption by the City of the ALPS and the LGSS. The applicant's planner has placed great weight on the environmental and conservation objectives contained within these documents. The applicant submitted that these objectives, together with the findings in the Prout Report, provide sufficient justification for the proposed subdivision to be approved.
The Tribunal has found that the environmental and conservation objectives do not outweigh the other objectives contained within the planning policies and the strategies that make up the current planning framework. The Tribunal has also found that the criteria for rural living proposals are not satisfied by this proposal and has not been convinced that the application of conditions on an approval would necessarily provide an improved environmental outcome to either the site or the locality. The introduction of an additional dwelling entitlement, in a rural zoned area, has the potential to introduce land use conflicts in an area identified as 'priority agricultural', notwithstanding the land capability of this particular site.
Having weighed the evidence provided and the submissions made by the parties in the light of the planning framework, the Tribunal has determined that it would not be consistent with orderly and proper planning to allow a subdivision which creates an additional small holding in this rural zoned area. It follows that the application for review should be dismissed and the decision of the respondent affirmed.

Orders

For the above reasons, the Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision of the respondent is affirmed.
3.The respondent is to pay to the applicant the sum of $1,000 in respect of his costs within 21 days of the date of these orders.

I certify that this and the preceding [77] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS R MOORE, MEMBER