Fairborn and Western Australian Planning Commission
[2007] WASAT 266
•15 OCTOBER 2007
FAIRBORN and WESTERN AUSTRALIAN PLANNING COMMISSION [2007] WASAT 266
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 266 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:141/2007 | 22 JUNE 2007 | |
| Coram: | MR J JORDAN (MEMBER) | 15/10/07 | |
| 22 | Judgment Part: | 1 of 1 | |
| Result: | The application for review be dismissed The decision of the respondent be affirmed | ||
| B | |||
| PDF Version |
| Parties: | DEVA PUNITO FAIRBORN WESTERN AUSTRALIAN PLANNING COMMISSION |
Catchwords: | Town planning Subdivision Rural zoned land Application of policy General presumption against subdivision of rural land Local rural strategy Draft local planning strategy Priority agricultural area Exceptions to the policies Nature of lot Lot size pattern Land use in locality Rural residential use Impact on agricultural activity Precedent |
Legislation: | Planning and Development Act 2005 (WA), s 241(1)(a), s 241(3), s 251(1) Town Planning Scheme No 3, cl 3.1.13 |
Case References: | Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433 Knight and Western Australian Planning Commission [2003] WATPAT 6 Nicholls and Western Australian Planning Commission [2005] WASAT 40 |
Orders | 1. The application for review is dismissed.,2. The decision of the respondent is affirmed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : FAIRBORN and WESTERN AUSTRALIAN PLANNING COMMISSION [2007] WASAT 266 MEMBER : MR J JORDAN (MEMBER) HEARD : 22 JUNE 2007 DELIVERED : 15 OCTOBER 2007 FILE NO/S : DR 141 of 2007 BETWEEN : DEVA PUNITO FAIRBORN
- Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Town planning - Subdivision - Rural zoned land - Application of policy - General presumption against subdivision of rural land - Local rural strategy - Draft local planning strategy - Priority agricultural area - Exceptions to the policies - Nature of lot - Lot size pattern - Land use in locality - Rural residential use - Impact on agricultural activity - Precedent
Legislation:
Planning and Development Act 2005 (WA), s 241(1)(a), s 241(3), s 251(1)
Town Planning Scheme No 3, cl 3.1.13
(Page 2)
Result:
The application for review be dismissed
The decision of the respondent be affirmed
Category: B
Representation:
Counsel:
Applicant : Self-represented
Respondent : Mr S Petersen (as agent)
Solicitors:
Applicant : Self-represented
Respondent : Department for Planning and Infrastructure
Case(s) referred to in decision(s):
Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433
Knight and Western Australian Planning Commission [2003] WATPAT 6
Nicholls and Western Australian Planning Commission [2005] WASAT 40
(Page 3)
Summary of Tribunal's decision
1 Mr Deva Punito Fairborn applied to the Tribunal for review of the refusal of the Western Australian Planning Commission to grant approval for the subdivision of Lot 189 Lower Denmark Road, near Youngs Siding, about halfway between Albany and Denmark, into two lots of 5.8 hectares each.
2 The Commission considered that an approval would set a precedent for the subdivision of other rural zoned lots in the locality and increase the potential for the introduction of non-rural activity in conflict with the planning policy objectives of protecting a prime agricultural locality.
3 Mr Fairborn submitted that his proposal should be allowed because his lot had no horticultural potential, was similar in size to lots close by and was sufficiently distant from agricultural properties to have no impact.
4 The Tribunal found that the proposed subdivision would set an undesirable precedent for the creation of lots only suitable for non-rural uses in a prime agricultural locality. This would be in conflict with the strategies and policies in place to guide the planning of the locality. The Tribunal concluded that the subdivision could not be supported as an exception to general presumption against the subdivision of rural land. The Tribunal refused the application.
Introduction
5 This is an application by Mr DP Fairborn (applicant) under s 251(1) of the Planning and Development Act 2005 (WA) (PD Act) for review of the refusal by the Western Australian Planning Commission (respondent or Commission) to grant approval for the subdivision of Torbay Agricultural Area, Lot 189 Lower Denmark Road, Youngs Siding (site or Lot 189) into two lots each of 5.8 hectares.
Background
6 Two previous applications by the applicant to subdivide Lot 189 were refused by the respondent. In 1995 the applicant applied to create two lots, of about 2.5 hectares and 9 hectares. The applicant lodged an appeal against the respondent's refusal with the then Minister for Planning. The Minister dismissed the appeal.
(Page 4)
7 The applicant's second application in 1999 was to subdivide the site into two lots, of about 5.2 hectares and 6.4 hectares. No appeal was made against the respondent's refusal of this application.
The site and locality
8 The site has an area of 11.6094 hectares. The northern boundary is 603.5 metres and abuts a reserve for recreation which was formerly the reserve of the Albany to Denmark railway. The southern boundary of 598.07 metres fronts Lower Denmark Road, which is a route between Albany and Denmark parallel to and south of South Coast Highway. The site is 218.15 metres deep at the western end and 171.66 metres deep at the eastern end.
9 The site is essentially flat, but does have a winter creek flowing from east to west adjacent to the southern boundary. Aerial photographs show vegetation along the creek widening towards the eastern end, a patch in the north-west corner and scattered elsewhere. The applicant said the site was 50% cleared and the respondent said it was 70% cleared.
10 The Department of Environment and Conservation, in a letter to the Commission in January 2007, described the land as subject to seasonal inundation, except for areas in the north.
11 The site is one of six lots between the old railway reserve and Lower Denmark Road in this locality. To the east, is Lot 190 of 6.59 hectares, which is mostly vegetated with a house and a former studio approved as a chalet in December 2006. To the west, in turn from the site, are Lot 188 of 16.0357 hectares, Lot 187 of 12.1308 hectares divided into two by Tennessee Road North, Lot 2 of 5.22 hectares and Lot 1 of about the same area. The parties, for convenience at the hearing referred to this row of lots as "the wedge".
12 To the south of Lower Denmark Road are lots generally closer to 40 hectares or larger. To the north along the railway reserve are numerous lots of about 20 hectares and further north the lots are again closer to approximately 40 hectares or larger.
13 The site is about 6 kilometres east of Youngs Siding townsite, 2 kilometres west of the Bornholm hall and about 24 kilometres and 29 kilometres respectively from Denmark and Albany.
(Page 5)
Planning framework
14 The respondent weighs subdivision proposals against the objectives of State Planning Policy No 2.5 - "Agricultural and Rural Land Use Planning" (SPP 2.5). Relevant key objectives of SPP 2.5 are to protect agricultural land resources wherever possible and to minimise the potential for land use conflict.
15 The respondent uses the guidelines of its Policy DC 3.4 - "Subdivision of Rural Land" (DC 3.4) to achieve the objectives of SPP 2.5. DC 3.4, at cl 3.1, includes a general presumption against the subdivision of rural land. DC 3.4 does include, however, provisions under which subdivision might be considered. These include:
• Clause 3.2.1(a) - which provides for subdivision where a significant natural or manmade feature already physically divides the land; and
• Clause 4.1.1 - where subdivision for rural residential or rural smallholdings is specifically identified in an endorsed local planning strategy or local rural strategy and is appropriately zoned in a town planning scheme.
16 Clause 6.1.1 of DC 3.4 lists criteria to be considered for establishing the efficacy of a subdivision, once it is established that subdivision might be contemplated.
17 The City of Albany (City) has zoned the site "Rural" under its Town Planning Scheme No 3 (TPS 3). The objectives for the rural zone set out at clause 3.1.13 of TPS 3 include:
"a) to ensure that high quality agricultural land is retained for primary production; and
b) to regulate uses which might conflict with farming interests, and foster uses which are complementary to such interests."
18 The City, then the Shire of Albany, adopted a Local Rural Strategy (LRS) in 1996. General Policy 30 "Criteria for Support of Subdivision of Rural Land" (General Policy 30) of the LRS provides that the City may support the subdivision of rural land where at least one certain listed items is satisfied.
(Page 6)
19 The site is within Wilson Inlet 1 Policy Area of the LRS, which sets out items the City will address in providing for the protection of horticulture and the establishment of small-scale tourist uses.
20 To the south, immediately across Lower Denmark Road, the holdings are in Wilson Inlet 2 Policy Area of the LRS. The strategy for Wilson Inlet 2 Policy Area is for the protection of the area for intensive agriculture.
21 The City, in December 2006, adopted and advertised a draft Albany Local Planning Strategy (draft ALPS). Submissions received are now being considered by the City. The draft ALPS includes the site within the "priority agriculture" area. Clause 8.5.5 of the draft ALPS identifies priority agricultural areas to be retained and protected as a finite resource with small scale tourist activities supported only where they are incidental to primary agricultural use of the land. The potential for conflict between agricultural and non-agricultural uses such as rural residential and tourism developments is identified and the strategy is to minimise conflict through zonings and planning controls.
22 The applicant also made reference to the draft "Great Southern Rural Strategy", which, as the title suggests, contemplates a strategy for the extensive Great Southern District.
Proposed subdivision
23 Proposed is a subdivision to create two lots each of 5.8 hectares, with a new north-south boundary at about the centre of the site. The two sheds adjacent to the creek near the road frontage would be on the eastern lot.
The refusal
24 The respondent cited 11 reasons for refusing the proposed subdivision. These can be summarised as follows:
1) Subdivision would be ad hoc and result in land uses unrelated to agriculture, contrary to the objectives of SPP 2.5, DC 3.4, TPS 3, the LRS and the draft ALPS.
2) The proposed subdivision would not satisfy any of the criteria to provide an exception to the presumption against subdivision of rural zoned land found in SPP 2.5, DC 3.4 and the LRS.
(Page 7)
- 3) Subdivision would set an undesirable precedent for the subdivision of other rural zoned land contrary to the general presumption against subdivision found in SPP 2.5, DC 3.4, TPS 3, the LRS, the draft ALPS.
The issues
25 The Tribunal considers the issues to be addressed in this matter are:
1) Whether the proposed subdivision can be supported as an exception to the presumption against the subdivision of rural zoned land in this locality; and
2) Whether precedent is a relevant consideration and if so, whether subdivision can be supported.
Whether the proposed subdivision can be supported as an exception to the presumption against the subdivision of rural zoned land in this locality
A presumption against the subdivision of rural land
26 As a preliminary consideration to addressing this issue, the Tribunal considered the respective planning instruments and found that there is a general presumption against the subdivision of rural zoned land in this locality.
27 The objectives of SPP 2.5 are, relevantly:
"1. Protect agricultural land resources wherever possible by:
(a) discouraging land uses unrelated to agriculture from locating on agricultural land;
(b) minimising the ad hoc fragmentation of rural land; and
(c) improving resources and investment security for agricultural and allied industry production.
…
3. Minimise the potential for land use conflict by:
(a) providing adequate separation distance between potential conflicting land uses;
- (b) introducing management requirements that protect existing agricultural land uses;
(c) identify areas that are suitable and capable for intensive agricultural pursuits as agricultural priority areas; and
(d) avoid locating new rural settlements in areas that are likely to create conflict with established or proposed agricultural priority areas."
28 Clause 3.1.1 of DC 3.4 states:
"There is a general presumption against subdivision of rural land unless it is specifically provided for in a town planning scheme, an endorsed local planning strategy or an endorsed local rural strategy."
29 TPS 3 does not specifically refer to rural subdivision but, as set out above, the objectives of the rural zone include ensuring retention of high quality agricultural land for primary production, regulation of uses which might conflict with farming interests and fostering of uses complementary to such interests.
30 Subdivision is referred to in the City's General Policy 30 of the LRS. It provides that the City may support the subdivision of rural land where at least one of the following can be satisfied:
"(a) The subdivision is within a rural residential or environmental protection zone and appropriate land use provisions are in place;
(b) The subdivision is for farm consolidation purposes …;
(c) The purpose of the subdivision is to excise an existing approved intensive agricultural enterprise …; and
(d) The purpose of the subdivision is to excise an approved tourist or industrial development …"
31 For Wilson Inlet 1 Policy Area of the LRS, within which the site is located, the Policy Statement states:
(Page 9)
- "(a) Council will provide for the protection of horticulture in the area (e.g. potatoes, vineyards, orchards, etc.) and the establishment of small-scale rural uses through:
(i) Precluding rural residential development;
(ii) not supporting proposals for non-agricultural purposes;
(iii) supporting proposals which would facilitate agricultural production; and
(iv) restricting tourist development such that small-scale non-accommodation developments (such as tearooms and craft shops) may be approved, but tourist accommodation developments (e.g. chalets) are subject to the following restrictions:
• Lots 20 hectares or larger in area;
• An absolute maximum of three accommodation units per lot;
• Units are to be sited such that they form a compact group and are separated from cleared areas within the policy area used or likely to be used for horticulture by an adequate vegetated buffer; and
• Developments are to be set back at least 250 metres from any land within policy area Wilson Inlet 2."
33 The starting point is the general presumption against subdivision of rural land, but the instruments provide exceptions providing an opportunity for subdivision where circumstances can be justified on planning grounds.
(Page 10)
Respondent's position
34 The respondent argued that the proposed subdivision did not come within any of the exceptions provided for in the policies relevant to this matter. Mr Petersen, for the respondent, pointed out that there was no significant dividing feature and submitted that the proposed subdivision would be contrary to cl 4.1.1 of DC 3.4 as it was not supported by a local planning strategy, a local rural strategy or a town planning scheme.
35 Mr McBride, a planner employed by the City called as a witness by the respondent, said the proposed subdivision was not consistent with the objectives for the "Rural" zone in TPS 3. He considered the new lots would not assist in regulating uses that might conflict with the zoning objectives.
36 Mr McBride said that none of the General Policy 30 circumstances for supporting rural subdivision were satisfied. He was of the opinion that subdivision was not necessary to achieve the development of non-agricultural uses found in rural areas, such as art studios or chalets.
37 Mr McBride and Ms Georgina Folvig, a planner who appeared as a witness for the respondent, were both of the opinion that the proposed subdivision was in conflict with the policy statement for the Wilson Inlet 1 policy area of the LRS. They considered the lots created would not protect horticulture in the area because they would provide for rural-residential development and non-agricultural uses and would not facilitate agricultural production. Ms Folvig was of the opinion that the availability of water was the critical element and referred to lots elsewhere of similar size and soil being successfully utilised as small horticultural holdings.
38 Mr McBride's evidence was that the proposed lots were more consistent in size with special rural lots, which were normally supported in localities selected and rezoned for the purpose. Under the draft ALPS, the City had identified locations on the fringe of the Albany urban area for rural small holdings and for this reason the proposal was in conflict with the draft ALPS.
39 He said also that the locality had been designated priority agriculture, a "finite resource", under the draft ALPS. The proposed subdivision would be in conflict with cl 8.5.5 of the draft LPS because it would not be consistent with preserving priority agriculture. The evidence of Ms Folvig and Mr McBride was that the lots would mostly likely be used as rural residential or "lifestyle" lots. Their opinion was that this would
(Page 11)
- likely lead to conflict with the adjoining agricultural uses because of the impact of the hours of operation, dust, noise and chemical drift from farming operations.
40 Ms Folvig put into evidence a copy of a letter from the Department of Food and Agriculture, dated 5 June 2007, that advised of a dispute about dust and pesticide contamination between a non-agricultural land holder and the important seed potato growing lots to the south. The dispute went to arbitration but the complainant sold his land before the matter was resolved.
41 Ms Folvig said that there was little vegetation in the Lower Denmark Road reserve and because of the prevailing winds this was an insufficient buffer between the rural and non-rural land uses. This would, in her view, increase the risk of potential conflicts between the two different land uses.
42 The proposed lot sizes relative to the exiting lot size pattern was raised by both parties. Ms Folvig produced a plan showing 18 lots of less than 10 hectares in the locality, including Lot 190 next door to the site, Lot 1 and Lot 2 in the wedge. She also produced a schedule to illustrate that the small lots were mostly either original Crown grants, approved prior to adoption of the policies, or rearrangement of exiting boundaries. The cadastral plans showed another approximately 20 lots of up to 20 hectares to the north parallel to the old railway. The submission was that all proposals for subdivision into rural small holdings in this locality were refused by the respondent in consistent application of its policies and the strategies of the City. An application to subdivide Lot 187 in February 2002 was refused because the Commission considered that Tennessee North Road did not provide sufficient barrier to the continued operation of the lot as a single holding.
43 Ms Folvig referred to a plan that showed a number of the 20 hectare lots were formed together. It was submitted that most rural holdings have areas of unproductive land and it was considered approval would be viewed as a precedent for the ad hoc excision of such areas of land from holdings for non-agricultural use. Approval of the proposed subdivision would create an undesirable precedent for the subdivision of other lots in the immediate locality.
44 The respondent's submission was that the proposal was in conflict with SPP 2.5, DC 3.4 and the City's planning instruments. 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.
(Page 12)
Applicant's position
45 It was the applicant's submission that there were good grounds for the proposed subdivision being approved as an exception to the general presumption against the subdivision of rural land.
46 Mr Fairborn argued that it was a planning mistake to designate the site as, and include it within, a priority agriculture area. The site should not be shown as such in the LRS, draft ALPS or draft Great Southern Rural Strategy.
47 This was because the site was too small, and the soil too poor and waterlogged to have any potential as a viable agricultural lot. To his knowledge, the site had not previously been used for productive agriculture and any attempt by him had been unsuccessful despite his experience with horticulture. He referred to the comment in the Department of Environment and Conservation letter of 4 January 2007 that remnant vegetation needs to be protected by clearing restrictions and submitted that the only activity which had marginal success was the harvesting of some native plants, for which he had a licence.
48 Mr Fairborn was of the opinion that the proposed subdivision would make no difference to the agricultural potential of the site. The existing lots to the east and west in the wedge were similar to the site and were mostly put to non-rural uses. The applicant provided a letter from the owner of Lot 188 who said he derived some income from a small horticultural activity, but had to earn an income from mending electrical fences because his land was too wet in winter, the groundwater was too saline and there was a lack of water in summer.
49 Mr Fairborn referred to a Landgate document titled "Reserve 17510: Crown Allotments/Historic Tiles" (page 369 of s 24 bundle) that had, in a list of items, a reference to Torbay AA Lot 187, two lots to the west of the site and to a "townsite" lot, both with the date 13 August 1920. The document was obtained by the applicant in November 2006 as still current.
50 Mr Fairborn argued that, as Lot 187 was originally created as a townsite lot it was never intended to be an agricultural lot and so lies outside the intent of the policies. He identified his site as close by and of similar size and character.
51 Mr Fairborn also referred to the non-agricultural chalet use on adjoining Lot 190 and the rural residential use of other lots in the wedge.
(Page 13)
- He went on to argue that, because of the presence of the townsite lot, neighbouring uses and the lot size pattern, the site should be treated the same as the lot the subject of Knightand Western Australian Planning Commission [2003] WATPAT 6 (Knight). In that matter, a lot zoned rural, which was in the vicinity of rural zoned small rural holding sized lots and lots clearly of non-agricultural use, was deemed suitable for subdivision into lots of about 2.5 hectares by the then Town Planning Appeal Tribunal (TPAT). Mr Fairborn submitted that, consistent with the principles set out in Knight, considering the site as agricultural and insisting on strict adherence to the general objectives of the policies would be unreasonable in the planning circumstances of the locality.
52 In respect of the consideration under cl 6 of DC 3.4, Mr Fairborn said the proposed subdivision could be supported because the lots would have no impact on agriculture, were suitable for potential rural residential and tourism uses and were adequately served by roads, electricity, telephone and school bus.
53 On the issue of conflict with operating farms in the vicinity, Mr Fairborn said the person who raised concerns about the impact of proposed farming operations was Mr Len McKenna, the previous owner of Lot 190 who operated a gallery. He produced a copy of a letter from Mr McKenna who said that when potato growing was to commence he asked for agreed operating guidelines so that disputes would be avoided. Before this was resolved he sold the property moved to Albany to be near employment and facilities for his family. Mr Fairborn said local residents had not voiced any desire to leave because of local farming operations, to his knowledge. New residents would be aware of activities being carried out on farms nearby at the time of purchase.
54 Mr Fairborn submitted that the road reserve to the south and the old railway reserve and a recreation reserve to the north provided a sufficient buffer. This would prevent lots used for agricultural activity and lots used for non-rural purposes in the wedge, including his proposed lots, having an adverse impact on each other. To his knowledge there had been no conflict between any of his neighbours and the nearby farms and the respondent's comments were simply conjecture.
55 Mr Fairborn says he plans to live on one lot and have a studio to practice and display his ceramic craft. He referred to the recently approved chalet on Lot 190 and to other non-rural uses more distant from the locality. Despite the site and neighbouring lots not being 20 hectares, he was of the view that development of them would be consistent with the
(Page 14)
- policy statement of Wilson Inlet 1 because tourist related uses and related activity would result and the use of horticultural lots would not be affected. Mr Fairborn pointed out that Lower Denmark Road was a designated tourist route and other tourist related uses had been approved, mostly near the south coast, in rural localities and on lots of less than 20 hectares.
56 The proposed lots, it was said, would allow compliance with the objectives of the draft Great Southern Rural Strategy of balancing tourist development with the use of agricultural land and providing a range of residential environments that conserve the distinctive landscape of the Lower Great Southern. He submitted that, in any event, development of the additional lot proposed and any other small lot in the rural zone was under the control of the City, which could refuse unsatisfactory developments.
57 The applicant argued that consideration of the locality should be confined to the lots of the wedge. The proposed lots would be consistent in size with Lots 1 and 2 to the west, Lot 190 adjoining to the east. Approval would not have any bearing on the subdivision potential of Lot 187 because, in his opinion, Tennessee North Road, which divides the lot into two, provided the exceptional circumstances of cl 3.2.1(a) of DC 3.4 and the Commission's earlier refusal was never tested by review. Precedent, it was asserted, was not therefore a concern.
58 The rural policies were argued to be not relevant to the lots of the wedge because of size and lack of horticultural potential. These lots were sufficiently buffered from agricultural properties for there to have been no record of any conflict. The subdivision of Lot 189 should therefore be allowed as an exception to the general presumption against the subdivision of rural land.
Comment
59 Commenting first on the designation of Lot 187 as townsite lot over 80 years ago, the Tribunal is of the view that this should be treated with caution. Why only one lot of just 12 hectares in the immediate locality was so classified is not apparent. If the townsite designation is to be afforded significance then it could be argued that the identification of surrounding lots on the cadastral plan is also informative. If so, this does not assist the applicant.
60 At page 374 of the s 24 bundle is an A4 copy of part of a Landgate Cadastral map centred on the site. To note is that this cadastral map does
(Page 15)
- not show Lot 187 with the boundary designation for a townsite. The site and many neighbouring lots in the locality along the old railway reserve, including Lot 187 are within a locality bordered by the designation for an "Agricultural Area". The site is properly described as "Torbay Agricultural Area Lot 189". On the argument advanced by the applicant in respect of Lot 187, this would indicate these other lots were identified as having an agricultural future and so not outside the intent of the policies adopted for the locality. Clearly some lots, and in the applicant's submission, his and the neighbouring lots have no such contribution to make.
61 The Tribunal is of the view that historical designations, which might still be shown on cadastral maps, while indicating a potential land use envisaged by the map makers at that time, are not in this instance to displace the zoning in TPS 3 or to be afforded weight in determining whether the current planning controls and strategic objectives are to be set aside and subdivision allowed.
62 Next, it is necessary to comment on the applicant's emphasis on the findings of the TPAT in Knight to support arguments advanced in favour of the subdivision of the site.
63 In Knight, the TPAT approved the subdivision of a rural zoned lot, Lot 15 Frenchman Bay Road, Little Grove, into four lots of between 2.4 hectares and 2.6 hectares. Earlier attempts to rezone and subdivide Lot 15 had been unsuccessful because the land was situated within a priority 1 ground water protection area of the South Coast Water Reserve. The water reserve was remapped and two-thirds of Lot 15 was taken outside the reserve and the remainder was down-graded to priority 2.
64 The evidence in Knight was that with the remapping the Shire of Albany placed Lot 15 into a new precinct 10 in which development was to be restricted until a local planning strategy could be finalised. A draft local planning strategy considered at that time, designated Lot 15 as "longer term residential".
65 In the LRS, Lot 15 was in precinct 6 where the City would consider development to Special Rural at a density of one lot per 2 hectares if the land was first rezoned. Lot 15 was still zoned "Rural" and therefore, in the submission of the respondent, subject to the Shire's General Policy 30 and DC 3.4 which also required a scheme amendment before subdivision could be considered. The TPAT looked at the circumstances and said at [12]:
(Page 16)
- "The requirement of a rezoning prior to subdivision approval also fails because the appropriate question to be asked in each case is whether the particular subdivision under consideration is appropriate at the time it is considered. It is often the case that scheme amendments lag behind the appropriate planning for a locality. To say that a subdivision of rural land into smaller lots is otherwise acceptable but must await a process of formalized rezoning makes no sense. The criteria for subdivision of rural land has much to do with land capability, adequate servicing, fire and land management, the size of lots, the impact on agricultural uses, the relationship of the subdivision to surrounding uses, and other factors such as rural amenity and environmental issues. The list of criteria in paragraph 6.1.1 of DC 3.4, that enumerates these considerations, is the appropriate basis for establishing the efficacy of a subdivision."
66 Also necessary to understand the decision of the TPAT in Knight, is the statement made at [23]:
"As to the ground of refusal on the basis of precedent, Mr Ayton states that land to the north-west is subdivided into lot sizes ranging from 1.3762 [hectares] to 3.1957 [hectares], Lots 11 and 12 are zoned 'Special Rural', Lots 13 and 14 are zoned 'Motel' and Lot Pt 2 is zoned 'Tavern'. He indicates that land to the south is being used for rural retreat and hobby farm purposes with lot sizes ranging from 1 [hectares] to 10 [hectares] and that land to the north, east and south-east are also being used for rural retreat and hobby farm purposes. He concludes, and the Tribunal accepts, that the existing rural zoning is not relevant in terms of the current land uses."
67 The site, like Lot 15, is zoned Rural and subject to General Policy 30. Unlike Lot 15, however, the proposed future for the locality of the site is to remain rural, not longer term residential and shorter term special rural. The draft ALPS states at 8.5.5 that rural-residential and small holding zones will not be supported in the locality of the site. It is clear to the Tribunal that amendments to TPS 3 are only lagging behind the planning proposals for the locality as expressed in the City's proposed future zoning under the LRS and the draft ALPS in that the zoning has not yet been changed from rural to priority agriculture. Any subdivision considered for the locality cannot be considered as being in advance of contemplated TPS 3 changes to non-rural uses, but must be considered as contrary to planned future rural use of the locality.
(Page 17)
68 The Tribunal believes Knight can be distinguished from the matter before the Tribunal on the facts and that the principles enunciated by the TPAT in making its decision do not assist the applicant.
69 Clause 4.1.1 of DC 3.4 provides for subdivision of rural land into rural smallholdings where it is identified in an endorsed local planning strategy or local rural strategy and zoned in a town planning scheme. The Tribunal notes that the site is zoned rural and the site and neighbouring lots are not designated for rural small holdings in the LRS or the draft ALPS. The draft ALPS identifies the locality as "priority agriculture".
70 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.
71 Key objectives of SPP 2.5 include minimising the potential for land use conflict by providing adequate separation distance between potential conflicting land uses and avoiding locating new rural settlements in areas that are likely to create conflict with established or proposed agricultural priority areas.
72 For Wilson Inlet 1, within which the site is located, the Policy Statement provides for the protection of horticulture in the area through precluding rural residential development, not supporting proposals for non-agricultural purposes and restricting tourist development to small-scale non-accommodation developments such as tearooms and craft shops. The site is less than 20 hectares and within 250 metres of Wilson Inlet 2 area, so chalets would be inconsistent with the LRS, but noting that the City has approved the change of use from studio to chalet on Lot 190 next door.
73 On the example of conflict provided by the respondent, neither the Department of Agriculture and Food nor Mr McKenna was called to examine the different versions of events. Two other neighbours, both owners of small lots, provided the applicant with letters of support. The
(Page 18)
- reasons to move to, remain in or shift from a small rural holding are for individuals to determine.
74 The Tribunal has noted Mr McBride's submission that subdivision is not necessary to develop the tourist related uses referred to in the LRS. The Tribunal also notes that should additional lots be created, even for such uses it would inevitably be the result that a new residence would be built. While the applicant has argued that there is no evidence of conflict between current local residents and agricultural use, the Tribunal is inclined to the view that additional small lots increase the potential for conflict between non-rural use, particularly residential, and commercial agricultural uses.
75 Clause 6 of DC 3.4 includes a range of considerations for rural subdivision, most related to maintaining and managing long-term agricultural use and reducing the introduction of incompatible uses. The Tribunal is of the view that cl 6 considerations do not assist, even were the general presumption against the subdivision of rural land overcome.
76 The Tribunal is also persuaded that, while the effect of one additional lot might not be readily discernible, each additional lot increases the potential for an unplanned demand for services in conflict with the policies. The policy of selecting localities for rural small holdings and planning for increased density so that there can be an orderly planning of services is consistent with orderly and proper planning. The draft ALPS at Table 7 provides that no growth is planned for Youngs Siding with infrastructure and facilities to remain as per existing. The table shows the City has selected other locations for growth. The incremental growth of small holdings in Youngs Siding and Bornholm, whether the 5.8 hectares as proposed or 10 hectares or some other area selected by the landowner, would therefore be in conflict with that planning objective.
77 An email from the Department of Planning and Infrastructure to Mr Fairborn, dated 19 May 2006 (page 371 of the s 24 bundle), describes the draft Great Southern Rural Strategy as addressing broad regional issues and not local planning. The proposed subdivision of the site was considered to be a local planning issue and would not be addressed in a document as broad as the draft Great Southern Rural Strategy. The Tribunal accepts the submissions of the respondent, also made in the email, that the proposed subdivision is a matter more appropriately dealt with through the local planning controls.
(Page 19)
Whether precedent is a relevant consideration and if so, whether subdivision can be supported
78 Whether a subdivision will result in an undesirable precedent is a valid consideration and has been applied by the Tribunal: Nicholls and Western Australian Planning Commission [2005] WASAT 40 (Nicholls). The Tribunal has accepted that, where there is a subdivision of merit, that it might create a precedent is not of itself a reason for refusal. However, where there is a strong planning framework and no compelling reason why subdivision should proceed, precedent argument provides a further rationale for refusing subdivision.
79 The Tribunal in Nicholls examined the authorities on precedent and adopted at [74] the relevant consideration in a planning assessment as:
"(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."
80 The questions that then arise are: whether the proposed subdivision is objectionable; and, whether there is a chance other land owners, citing any approval as a precedent, would propose a subdivision that is indistinguishable from the subdivision proposal in this instance.
81 If the subdivision pattern is restricted to the wedge between the recreation reserve and Lower Denmark Road, then the precedent concerns are limited. 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.
82 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 undistinguishable 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.
(Page 20)
Hardship
83 The applicant outlined to the Tribunal his straitened circumstances and how the subdivision presented an opportunity for a degree of independence. He believed that the subdivision would enable him to build a house and establish a centre for him to practice and make a living from his ceramic craft skills.
84 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."
85 In this instance, the Tribunal has considered the proposal in the light of the planning controls in place and has formed the view that it would not be consistent with the application of sound planning principles to support the subdivision of rural zoned land in this locality. While the Tribunal understands the personal circumstances of the applicant, the conclusion drawn is that they are not themselves sufficient to be determinative of the matter.
Conclusion
86 The Commission has adopted policies which include the planning principles relevant to subdivision applications. SPP 2.5 is a State policy to which the Tribunal is to have due regard under s 241(1)(a) of the PD Act. DC 3.4 is not a "policy" given force by the PD Act, but, nonetheless, it may be relevant to the exercise of its discretion to approve or reject a particular plan of subdivision. Such policies are not intended to replace the discretion of the Commission (or the Tribunal on review) in the sense that it is to be inflexibly applied regardless of the merits of the particular case before it. Notwithstanding this understanding, the relevant consideration in many applications will be why the "policy" should not be applied; why the planning principles that find expression in the "policy" are not relevant to the particular application. Departures from government policy are to be "cautious and sparing", occurring only where there were "cogent reasons": Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433 at [24] – [26].
(Page 21)
87 Strategic planning has identified that this locality is a priority agricultural area. The planning objectives arising from that identification include protection of horticultural activity by resisting the creation of rural-residential use and small rural holdings. To achieve the adopted strategies, the policy is to resist subdivision that creates lots suitable only for such uses and to resist development of lots for non-rural uses that have the potential to conflict with commercial agricultural practices. This includes the subdivision and development of lots within the rural zone that are not or unlikely to be significant horticultural holdings, such as the site. The creation and development of additional such lots in an agricultural area has the potential to create land use conflicts that make more difficult achieving the planning objective of preserving agricultural productivity.
88 Individual examples of residential and other non-rural uses that currently have not given rise to conflict in such localities can be found. The Tribunal, however, is properly cautious about allowing subdivision that creates additional small holdings in such a rural area, whether lots of 5.8 hectares as proposed or some other size selected by a landowner. This is particularly so where there is a strong underpinning of strategic planning to resist such subdivision. In circumstances where there is nothing to distinguish a lot which is the subject of subdivision application from other lots or parts of lots of similar character, the Tribunal is of the view that precedent is a consideration and in this instance it would be an undesirable precedent.
89 It is consistent with orderly and proper planning that, when considering subdivision applications, regard be had to the established policy objectives and of the planning instruments of the local government which identify future planning direction. The Tribunal has weighed the submissions made and found that it would not be sound planning practice to support the proposed subdivision as an exception to the general presumption against subdivision in this rural area.
90 The Tribunal has therefore decided to dismiss the application for the proposed subdivision and to affirm the respondent's refusal.
Orders
1. The application for revue is dismissed.
2. The decision of the respondent is affirmed.
(Page 22)
I certify that this and the preceding [90] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J JORDAN, MEMBER
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