FEWSTER and WESTERN AUSTRALIAN PLANNING COMMISSION

[2007] WASAT 79

FEWSTER and WESTERN AUSTRALIAN PLANNING COMMISSION [2007] WASAT 79

Last Update :16/04/2007

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2007] WASAT 79
Published:
Act:	PLANNING AND DEVELOPMENT ACT 2005 (WA)
Case No:	DR:296/2006	Heard:	30 JANUARY 2007 (FURTHER WRITTEN SUBMISSIONS RECEIVED 2 FEBRUARY 2007 AND 7 FEBRUARY 2007)
Coram:	MS M CONNOR (MEMBER)	Delivered:	04/04/2007
No Pages:	16	Judgment Part:	1 of 1
Result:	Application for review is dismissed The decision of the respondent is affirmed
Category:	B

Parties & CatchwordsOrders


Judgment

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : FEWSTER and WESTERN AUSTRALIAN PLANNING COMMISSION [2007] WASAT 79 MEMBER : MS M CONNOR (MEMBER) HEARD : 30 JANUARY 2007 (FURTHER WRITTEN SUBMISSIONS RECEIVED 2 FEBRUARY 2007 AND 7 FEBRUARY 2007) DELIVERED : 4 APRIL 2007 FILE NO/S : DR 296 of 2006 BETWEEN : KIMBERLY JAMES FEWSTER

Applicant

AND

WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Town planning – Subdivision refusal – Rural land – Agricultural Resource zone – Subdivision contrary to existing planning framework – Ad hoc fragmentation of land – Land capability – Water availability – Whether proposed lots are of sufficient size to be sustainable in the long term for grazing purposes – Whether the subdivision would result in the maintenance or loss of land having productive capacity for agricultural production

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Legislation:

Planning and Development Act 2005 (WA), s 25, s 135, s 138, s 138(2), s 214(1)(a), s 251(1)
Shire of Chittering Local Planning Strategy 2001 – 2015, cl 6.4.2, cl 8.8, cl 9.6, Pt 9
Shire of Chittering Rural Strategy 1995
Shire of Chittering Town Planning Scheme No 6, cl 2.1, cl 4.2.3.1, cl 6.3.2(b), cl 6.3.2(c)
Town Planning and Development Act 1928 (WA), s 5AA

Result:

Application for review is dismissed
The decision of the respondent is affirmed

Category: B

Representation:

Counsel:

Applicant : Mr B Hunt (Acting as Agent)
Respondent : Ms R Watts (Acting as Agent)

Solicitors:

Applicant : Statewest Surveying & Planning
Respondent : Western Australian Planning Commission

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

Fewster and Anor v Western Australian Planning Commission [2004] WATPAT 184

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REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 Mr Fewster applied to the State Administrative Tribunal for review of the decision of the Western Australian Planning Commission refusing approval to subdivide Lot M1378 Brand Highway, Chittering into three freehold lots of 36.7658 hectares, 54.5055 hectares and 126.1054 hectares in area.

2 A land capability assessment of the subject land found the most likely and most environmental suitable land use scenario following subdivision to be a continuation of the current form of agricultural land use; that is for grazing of livestock.

3 The overarching objective embodied in all of the planning instruments relevant to this matter underlines the protection of agricultural land by ensuring the continued use of rural land for productive agricultural purposes. The capability of the proposed lots to sustain grazing as a land use was critical to ensuring the continued use of this land for productive agriculture purposes.

4 The Tribunal was not convinced that proposed lots would be capable of sustaining grazing as a viable land use particularly given the size of the lots and the land capability rating (fair, fair – low, low and very low) of the land. The Tribunal was cognisant that the existing land configuration provided a supplementary income and formed part of a larger farming operation, which only reinforced the concern that the proposed subdivision would further reduce the viability of the land for grazing purposes. Furthermore, the evidence did not clearly demonstrate with any certainty that each of the proposed lots was guaranteed an adequate water supply for domestic, fire management and agricultural purposes.

5 The Tribunal in considering the particular planning merits of this case did not consider there was sufficient justification to support a departure from the current planning framework. The Tribunal considered that the proposed subdivision represented ad hoc subdivision of rural land which is contrary to the orderly and proper planning of the area and does not accord with the sound planning principles that have been formulated to provide a context for decision-making for the subdivision of rural. The application for review was dismissed and the decision of the respondent was affirmed.

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Introduction

6 Mr Fewster (owner) of Lot M1378 Brand Highway, Muchea (subject land) made application to the Western Australian Planning Commission (respondent or Commission), on 10 April 2006, for approval to subdivide the subject land to create three freehold lots of 36.7658 hectares, 54.5055 hectares and 126.1054 hectares, referred to as proposed Lots A, B and C respectively (see Attachment 1 to this decision). Access to Brand Highway for proposed Lots A and B is via the southern railway crossing, whereas access to proposed Lot C is via Yalyal Road.

7 The respondent refused the application on 8 August 2006 for the following reasons:

"1. The proposal does not comply with the criteria for subdivision contained in the Commission's Policy DC 3.4 – Subdivision of Rural Land, Statement of Planning Policy No 2.5 – Agricultural and Rural Land Use Planning, a provision of Statement of Planning Policy No 1 – State Planning Framework, as the Commission is not satisfied that the proposal would facilitate the ongoing agricultural usage on all of the lots.

2. The proposed subdivision is inconsistent with the 'Agricultural Resource' zoning of the land in Council's Town Planning Scheme and the Local Planning Strategy. The purpose and intent of this zoning is to preserve the area's current rural use and density of development. Subdivision in the manner proposed would create the potential for additional non-rural activity in conflict with the zoning objectives.

3. It has not been demonstrated to the satisfaction of the Commission that the proposed lots are capable of sustaining agricultural use.

4. Approval to the proposed subdivision would set an undesirable precedent for similar proposals in the area."

8 The applicant, on 3 August 2006, made application under s 251(1) of the Planning and Development Act 2005 (WA) (PD Act) to have the decision reviewed.

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Subject land

9 The subject land is more particularly described as being part of Lot M1378 on Diagram 6027 comprised in Certificate of Title Volume 1533 Folio 143. The site has a total area of 215.1781 hectares and is generally rectangular in shape with a width of 1060 metres and depth of 2072 metres.

10 The subject land is located approximately 9 kilometres north of Muchea town site in the Shire of Chittering (Shire). Lake Chandala Nature Reserve (LCNR) abuts the northern boundary of the subject land. This reserve is classified as a Conservation Category Wetland and subject to the Environmental Protection (Swan Coastal Plain Wetlands) Policy 1992. Furthermore, an intermittent stream (Chandala Brook) and two vegetated areas traverse the lot generally in a north-south direction.

11 The western boundary of the subject land abuts an unsurfaced railway road that runs parallel to an existing operational railway line. To the west, running parallel to this railway line is the Brand Highway.

12 The subject land is currently used for grazing cattle and there is an existing dwelling located in the south-west sector of the lot, which is accessed via a private railway crossing to the Brand Highway.

Planning framework

Regional

13 The respondent has prepared a number of planning documents relating to the subdivision of rural land for the purpose of exercising the power of the Commission under s 135 and s 138 of the PD Act to approve a plan of subdivision. These are as follows:

14 State Planning Policy No 1 – State Planning FrameworkPolicy (SPP 1) unites existing State and regional policies, strategies and guidelines within a central framework to provide a context for decision-making on land use, subdivision and development in Western Australia. It informs decision-makers in the planning process on those aspects of State level planning policy which are to be taken into consideration, and given effect to, in order to ensure integrated decision-making across all spheres of planning. The plans, policies and strategies that form the State Planning Framework are listed in Part B of SPP 1. The following policies and strategies listed in SPP 1 are relevant in the consideration and determination of this matter:

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• Statement of Planning Policy No 2.5 – Agriculture and Rural Land Use Planning (SPP 2.5) – This policy applies to all rural land in Western Australia. The implementation of the four key principles embodied in SPP 2.5 is envisaged through the preparation of planning schemes, local planning strategies and policies. This policy together with Development Control Policy DC 3.4 – Subdivision of Rural Land (DC 3.4) forms the basis for determining applications for the subdivision of rural land.

• DC 3.4 sets out the principles that are to be used by the respondent in its determination of applications for the subdivision of rural land. Clause 3.1.1 of the policy states that there is a general presumption against the 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. Exceptions are provided for in cl 3.2, however, none of the exceptions specified are relevant to this application.

Local

15 The subject land is zoned "Agricultural Resource" in the Shire of Chittering Town Planning Scheme No 6 (TPS 6 or Scheme). The objectives of this zone are as follows:

"• To preserve productive land suitable for grazing, cropping and intensive horticulture and other compatible productive rural uses in a sustainable manner;

• To protect the landform and landscape values of the district against despoliation and land degradation;

• To encourage intensive agriculture and associated tourist facilities, where appropriate; [and]

• To allow for the extraction of basic raw materials where it is environmentally and socially acceptable." (cl 4.2.3.1)

16 The subject land also falls within a "Special Control Area" of the Scheme, being "Water Prone Area – Ellen Brook Palusplain". The relevant stated purposes of this special control area are:

"• To preclude development and the use of land which may increase the amount of nutrients from entering the surface and/or sub-surface water systems." (cl 6.3.2(b))

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"• To ensure that wetland environmental values and ecological integrity are preserved and mentioned [sic]." (cl 6.3.2(c))

17 The Shire has prepared and adopted the Shire of Chittering Local Planning Strategy 2001 – 2015 (LP Strategy). This strategy has also been endorsed by the respondent. Clause 2.1 of the Scheme requires that determinations of the Local Government are to be consistent with the LP Strategy. One of the aims of the LP Strategy is to provide a guide to development for the next 15 to 20 years. The relevant sections of the LP Strategy relating to this application are:

• Part 6 – Local Geographical Units: cl 6.4.2 – Aims for the Ellen Brook Palusplain, in particular – to retain the productive land for broad area farming but accommodate conversion to intensive horticulture where the landform, soils and water supplies permit and to protect and enhance the Chandala Wetlands from further degradation.

• Part 8 – Development Areas and Strategies: cl 8.8 – Aims for the Agricultural Resource Area, in particular – to maintain agricultural lands from primary productive purposes; to facilitate the conversion of suitable land to intensive agriculture based upon appropriate soils and irrigable water supplies; and to prevent the loss of productive land to non-agricultural purposes.

• Part 9 – Strategies for Progressive Development: cl 9.6 – Agriculture Resource Areas – Horticulture & Viticulture – Strategies and Actions.

Subdivision of land will only be supported where:

i) the usable or tillable land area is 25 hectares or more;

ii) the land is appropriately zoned prior to the Shire supporting subdivision and development for more intensive agriculture;

iii) it must be demonstrated that the proposed lots are of a sufficient size to be environmentally and economically sustainable in the long term as an agricultural enterprise;

iv) each lot contains sufficient usable/tillable land of "High" to "Very High" capability for intensive agriculture and is suited to the intended intensive agricultural purpose; and

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v) each lot has a proven sustainable water supply (in terms of both quality and quantity) for domestic, fire management, agricultural/irrigation purposes and environmental uses.

Issues

18 The respondent identified the following four principal issues for consideration in this review:

1) Having regard to the applicant's Land Capability Assessment, and the features of the subject land, to what degree is the proposed subdivision consistent with the "Agricultural Resource" provisions of the TPS 6.

2) Whether the proposed subdivision is consistent with the LP Strategy.

3) Whether the proposed subdivision meets any of the criteria for rural subdivision set out in cl 6.1.1 of the respondent's Policy DC 3.4 "Subdivision of Rural Land" with regard to rebutting the general presumption against subdivision of rural land.

4) What regard ought to be had to the decision of Fewster and Anor v Western Australian Planning Commission[2004] WATPAT 184 in considering this application.

19 The applicant considered that the only issue that needs to be addressed in these proceedings is whether the subdivision conflicts with the objectives of the Shire of Chittering's "Agricultural Resource" zone or the LP Strategy.

20 The identified issues isolate the planning instruments when in fact they form a comprehensive planning framework, which together provides a context for decision-making for the subdivision of rural land. The Tribunal's reasons consider the identified planning instruments but not as separate issues as the determination of this matter needs to be considered in the context of the broader planning framework and in light of the particular merits of this application.

Respondent's position

21 The respondent contended that the proposal represents ad hoc subdivision of rural land in the context of State planning policies and is inconsistent with the requirements TPS 6, the LP Strategy and the respondent's policies. In particular, the respondent argued that the applicant has not demonstrated that the proposed lots are of a suitable

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size, contain suitable soils or have a sustainable water supply to support stand alone intensive or broad acre agriculture. The respondent submitted that given the limited capability of the subject land to support agricultural purposes and the assumption about water availability, the subject land is better managed as one undivided parcel of land under its current agriculture use. Furthermore, the respondent asserted that the proposed subdivision may result in increased nutrient runoff and pollution entering LCNR, given that Chandala Brook passes through the property.

22 Mr Jason Bouwhuis, a senior planning officer employed by the Department for Planning and Infrastructure, argued that the proposed subdivision erodes the economic viability of the subject land to support continued agricultural use as the proposed lots are unsuitable for intensive agricultural use and if used for grazing purposes would at best only be capable of providing a supplementary income. He considered that these factors make the subdivision of the subject land susceptible to other non-agricultural uses such as rural residential or rural small holdings.

23 Mr Bouwhuis referred to the relevant planning instruments and policies, namely SPP 1, SPP 2.5 and DC 3.4, TPS 6 and LP Strategy and contended the following:

• The proposed subdivision does not accord with the key objectives of SPP 2.5, which seeks the protection of agricultural land resources wherever possible by:

i) discouraging land uses unrelated to agricultural from locating on agricultural land; and

ii) minimising ad hoc fragmentation of rural land.

He considered that the proposed lots are less likely to be used for agricultural purposes due to their ability to provide only a supplementary income and would be susceptible to other non-agricultural uses such as rural residential or rural small holdings. He submitted that the proposed subdivision represents the ad hoc fragmentation of rural land.
• DC 3.4 advocates 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 rural strategy. He asserted that the proposed subdivisions did not comply with the criteria for supporting subdivision as set out in the LP Strategy and therefore the presumption against subdivision prevailed. In considering the

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other matters that may be taken into consideration under cl 6.1 of DC 3.4, Mr Bouwhuis argued that:

i) the proposed lots were not of sufficient size to be environmentally or economically sustainable in the long-term for grazing as only a supplementary income could be generated from lots of the size proposed;

ii) no evidence has been produced to demonstrate that there is a sustainable water supply capable for domestic, fire management and agricultural purposes for each of the three proposed lots. The land capability assessment assumes the availability of water and the continued implementation of various management practices to support economically and environmentally sustainable grazing on the subject land; and

(iii) the proposed subdivision may result in increased nutrient runoff and pollution entering LCNR, given that Chanadala Brook passes through the property.

• The proposed subdivision is inconsistent with the objective of the "Agriculture Resource" zone of TPS 6 "to preserve productive land suitable for grazing … and intensive horticulture … in a sustainable manner" as subdivision of the subject land will not ensure continued agricultural use of the land in parcels of a productive sustainable size.

• The proposed subdivision was inconsistent with the aim for the Ellen Brook palusplain area which is to retain productive land for broad acre farming or intensive agriculture and does not meet the criteria for subdivision under the LP Strategy.

24 The respondent also referred to a decision by the former Town Planning Appeal Tribunal which determined an appeal relating to the amalgamation/subdivision of the subject land: Fewster and Anor v Western Australian Planning Commission. The respondent considered this decision to be relevant as it considered the need to meet certain criteria specified in the LP Strategy in order to support subdivision of land zoned "Agricultural Resource". Similarly, the subject application fails to meet the specified criteria and likewise should be dismissed.

Applicant's position

25 Mr Fewster explained that the subject land was part of a larger farming operation involving several lots within the area. The land has been used for the grazing of cattle and sheep, vegetable production and

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the growing of melon crops since the 1900's as well as beekeeping from 1920.

26 According to Mr Fewster, the subdivision application was instigated to enable an adjoining land owner to purchase proposed Lot B, which has been designed to meet their requirements for an additional but separate land parcel to be used for grazing cattle and horses.

27 The applicant commissioned Mr Martin Wells to prepare a land capability assessment report for the subject land. Mr Wells holds a Bachelor of Agricultural Science and has accreditation as a professional soil scientist with the Australian Society of Soil Science Inc. He has considerable experience in land capability assessment and soil analysis.

28 The methodology used by Mr Wells in the land capability assessment involved the use of land use rating tables to compare the physical requirement of proposed activities with the existing attributes and qualities of land. The land quality values for each of the land units identified were derived from field observations and by reference to Department of Agriculture publications. These values were then compared to those within the Department of Agriculture's land use rating table to determine the capability rating. The types of agricultural uses considered included grazing, annual horticulture and perennial horticulture.

29 His findings in respect to each of the uses are as follows:

• Grazing – excluding land of low or very low capability, proposed Lots A, B and C enabled approximately 25, 24 and 100 hectares of land respectively to be used for grazing purposes. The current stocking rate for the subject land is about one cow and a calf per 5 acres which is equivalent to 10 dry sheep equivalents per 2 hectares. Subject to any future land holders maintaining similar stocking rates, fencing and fertiliser management practices there would be no significant risk of land degradation arising from subdivision. Fresh groundwater occurs at relatively shallow depth and hence pasture growth is sustained for a significant period of the year. This land use activity would be a source of supplementary rather than the primary source of income for future landholders.

• Intensive agriculture (annual or perennial horticulture) – excluding land of low or very low capability, proposed Lots A, B and C enabled approximately 31, 53 and 50 hectares of land

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respectively to be used for annual horticulture or 30, 49 and 48 hectares for perennial horticulture. However, the productive use of these areas is dependent on water for irrigation and appropriate "best management practices". Intensive irrigated agriculture is an unlikely, but not impossible, land use scenario within each of the three lots. This land use activity would be a source of supplementary rather than the primary source of income for future landholders.

30 From his analysis, Mr Wells considered the most likely and most environmentally suitable land use scenario following subdivision to be a continuation of the current form of agricultural land use; that is for grazing of livestock. The respondent did not produce any expert evidence to dispute the land capability findings of Mr Wells.

31 Mr Wells was also called by the applicant to give evidence to the Tribunal. His general observation of the current land use was that "[it] was a physically sustainable, environmentally sustainable form of land use for the soil types and land conditions". He submitted that given the sandy nature of the soils, their susceptibility to waterlogging and location within the environmentally sensitive Ellen Brook Palusplain Special Control Area, intensive agriculture was not an appropriate use to encourage in this area. Whereas, he considered that if future owners of the proposed lots managed the land in a similar manner to Mr Fewster, in terms of stocking rates and fertiliser usage, the productivity of the land for grazing could be expected to continue in a sustainable manner following subdivision and should not result in any significant increase in the amount of nutrients entering the surface and/or sub-surface water systems within the Ellen Brook catchment.

32 Mr Wells argued that lot size was not a significant factor in determining the viability of the use of land for grazing purposes, particularly given that the vast majority of farms within Western Australia consisted of multiple titles, as individual lots are not large enough in most areas to support a single economic farming property. He submitted that this was further evidenced by the fact that the current lot size (215 hectares), which is well below the Department of Agriculture's average farm size in the Shire (371 hectares) and also below the 400 hectare minimum viable property size for grazing cited by Taylor Burrell in the 1995 Shire of Chittering Rural Strategy, is farmed in conjunction with other lots, for the grazing of livestock. From the land capability assessment he concluded that "productive land suitable for

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grazing could continue to be used for that purpose whether the land remains as one holding or is subdivided into three titles as proposed".

33 As to the issue of water, Mr Wells explained that the availability of water was not raised as a potential issue in earlier negotiations and as such detailed investigations were not undertaken. He indicated that each of the three proposed lots was provided with a shallow soakage dam and based on his understanding of the geology of the subject land and the regional nature of the area, he considered there to be an abundant water supply within each of the lots to support the use of the land for grazing purposes. He had not sought clarification on licensing requirements and potential to obtain a groundwater licence for more intensive horticultural uses. Mr Fewster also provided anecdotal evidence about the quality of the water and the approximate water depth of bores on the subject land.

34 Mr Brian Hunt, who is an experienced land surveyor and town planner, also gave evidence on behalf of the applicant. Mr Hunt contended that the subdivision of the subject land did not conflict with State or local planning policies as "[p]roductive agricultural land suitable for grazing will be preserved and may in more localised care be better maintained". Mr Hunt also referred to the support given to the subdivision application by the Shire as evidence of the application's consistency with the local planning framework. In relation to the decision by the former Town Planning Appeal Tribunal in Fewster and Anor v Western Australian Planning Commission, Mr Hunt argued that the circumstances and issues relating to the subdivision applications were different and therefore the previous decision was distinguishable and that this application should be considered on its planning merits.

Tribunal's consideration

35 Pursuant to s 214(1)(a) of the PD Act the Tribunal, in determining an application for review, is required to have due regard to any State planning policy which may affect the subject matter of the application. SPP 1 and SPP 2.5 are Statements of Planning Policy made under s 5AA of the Town Planning and Development Act 1928 (WA) and have continued force and effect under the PD Act (s 25). Further, the Tribunal "standing in the shoes" of the original decision-maker is required under s 138(2) of the PD Act to have due regard to the provisions of any local planning scheme that applies to the land under consideration and is not to give approval that conflicts with the provisions of a local planning scheme.

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36 The planning framework that has been formulated in regards to the subdivision of rural land both at State and local level is soundly based on key principles and objectives to establish future planning direction which provides the context for decision-making. The overarching objective embodied in all of the planning instruments relevant to this matter underlines the protection of agricultural land by ensuring the continued use of rural land for productive agricultural purposes. The State planning policies advocate a general presumption against subdivision of rural land to safeguard against further fragmentation of rural land unless specifically planned for through the use of appropriate planning mechanisms to achieve co-ordinated development.

37 The LP Strategy pursues the protection of broad acre farming (grazing and cropping) but recognises the need within the "Agriculture Resource" area to facilitate the conversion of suitable land for intensive agriculture purposes, particularly for horticulture and viticulture (cl 6.4.2 and cl 8.8). Part 9 of the LP Strategy details strategies for progressive development within the Agriculture Resource Area, specifically relating to horticulture and viticulture. This section reflects the intent to facilitate the conversion of suitable land for intensive agricultural purposes and provides for the subdivision of land zoned "Agriculture Resources" where specific criteria are satisfied. The proposed subdivision is not intended to facilitate intensive agriculture but rather the continuation of grazing on substantially smaller parcels of land. Therefore, the Tribunal does not consider this section of the LP Strategy to be relevant to the subject application.

38 Given the above, the Tribunal must consider, as a most relevant factor, whether, in effect, the subdivision of the land proposed by the applicant would result in the maintenance or loss of land having productive capacity for agricultural production. The capability of the proposed lots to sustain grazing as a land use is critical to ensuring the continued use of the land for productive agriculture purposes.

39 To ensure the protection of productive agriculture rural land the State planning policies advocate minimising ad hoc fragmentation of rural land. Mr Wells speculated that the newly created lots would continue to be used for grazing purposes. He did not view lot sizes as a constraint to the viability of such a use. On the evidence, the Tribunal is not convinced that proposed lots will be capable of sustaining grazing as a viable land use particularly given the size of the lots and the land capability rating (fair, fair – low, low and very low) of the land. The Tribunal is cognisant that the existing land configuration provides a supplementary income and

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forms part of a larger farming operation, which only reinforces the concern that the proposed subdivision will further reduce the viability of the land to continue to be used for grazing purposes. Furthermore, the need to establish that there is an adequate water supply to all of the proposed lots is paramount to ensure that the subdivision of the subject lands does not result in the loss of land as a productive agriculture resource. The evidence does not clearly demonstrate with any certainty that each of the proposed lots will be guaranteed an adequate water supply for domestic, fire management and agricultural purposes.

40 The Tribunal in considering the particular planning merits of this case does not consider there is sufficient justification to support a departure from the current planning framework. The proposed subdivision represent ad hoc subdivision of rural land which is contrary to the orderly and proper planning of the area and does not accord with the sound planning principles that have been formulated to provide a context for decision-making for the subdivision of rural. It follows that the application for review should be dismissed and the decision of the Commission to refuse subdivision approval affirmed.

Orders

41 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.

I certify that this and the preceding [41] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MS M CONNOR, MEMBER

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Attachment 1