FRANOLICH and WESTERN AUSTRALIAN PLANNING COMMISSION
[2006] WASAT 349
•29 NOVEMBER 2006
FRANOLICH and WESTERN AUSTRALIAN PLANNING COMMISSION [2006] WASAT 349
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 349 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:202/2006 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MS M CONNOR (MEMBER) | 29/11/06 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Application for review dismissed The decision of the respondent is affirmed | ||
| B | |||
| PDF Version |
| Parties: | FULVIO FRANOLICH WESTERN AUSTRALIAN PLANNING COMMISSION |
Catchwords: | Town planning – Subdivision refusal – General Rural zone – Subdivision contrary to existing planning framework – Adhoc fragmentation of land Whether planning merits of application support departure from State and local policies – Impact on the rural character of locality – Precedent – Consistency in decisionmaking – Hardship grounds |
Legislation: | City of Swan Town Planning Scheme No 9, cl 8.1.3, cl 8.2.4.1, cl 8.2.4.2, cl 8.3.1, cl 8.3.2.2 Metropolitan Region Scheme Planning and Development Act 2005(WA) s 25, s 135, s 138, s 138(2), s 214(1)(a), s 241(3), s 252(1) State Administrative Tribunal Act 2004 (WA) Town Planning and Development Act 1928 (WA), s 5AA |
Case References: | Aspen Pty Ltd v State Planning Commission (Unreported; Appeal No 13 of 1988, 21 October 1988) Dilatte v MacTiernan [2002] WASCA 100 at 61 Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522 Nil |
Orders | The application for review is dismissed,The decision of the respondent is affirmed |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : FRANOLICH and WESTERN AUSTRALIAN PLANNING COMMISSION [2006] WASAT 349 MEMBER : MS M CONNOR (MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 29 NOVEMBER 2006 FILE NO/S : DR 202 of 2006 BETWEEN : FULVIO FRANOLICH
- Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Town planning – Subdivision refusal – General Rural zone – Subdivision contrary to existing planning framework – Adhoc fragmentation of land - Whether planning merits of application support departure from State and local policies – Impact on the rural character of locality – Precedent – Consistency in decisionmaking – Hardship grounds
Legislation:
City of Swan Town Planning Scheme No 9, cl 8.1.3, cl 8.2.4.1, cl 8.2.4.2, cl 8.3.1, cl 8.3.2.2
(Page 2)
Metropolitan Region Scheme
Planning and Development Act 2005(WA) s 25, s 135, s 138, s 138(2), s 214(1)(a), s 241(3), s 252(1)
State Administrative Tribunal Act 2004 (WA)
Town Planning and Development Act 1928 (WA), s 5AA
Result:
Application for review dismissed
The decision of the respondent is affirmed
Category: B
Representation:
Counsel:
Applicant : Mr S Bain (Acting as Agent)
Respondent : Mr P Smit (Acting as Agent)
Solicitors:
Applicant : SJB Town Planning & Urban Design (Town Planners)
Respondent : Western Australian Planning Commission
Case(s) referred to in decision(s):
Aspen Pty Ltd v State Planning Commission (Unreported; Appeal No 13 of 1988, 21 October 1988)
Dilatte v MacTiernan [2002] WASCA 100 at 61
Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522
Case(s) also cited:
Nil
(Page 3)
Summary of Tribunal's decision
1 Mr Franolich applied to the State Administrative Tribunal for review of the decision of the Western Australian Planning Commission refusing approval to subdivide Lot 46 Copley Road, Upper Swan into two freehold lots in a battleaxe configuration, each 4.23 hectares in area.
2 The principal issue in the proceeding was whether, in light of the existing planning framework which provided the context for decision-making, the proposed two lot subdivision could be justified on the planning merits of the case.
3 The subject land was zoned "Rural" in the Metropolitan Region Scheme and "General Rural" under the City of Swan Town Planning Scheme No 9. One of the underlying principles embodied in the planning instruments was to safeguard against further fragmentation of rural land unless specifically planned for through the use of appropriate planning mechanisms to achieve co-ordinated development. The Tribunal, in considering the particular planning merits of this case, was not convinced that there was sufficient justification to support a departure from the current planning framework. Although the Tribunal was sympathetic towards the emotional and financial issues confronting the applicant, the Tribunal was of the opinion that the proposed subdivision of the subject land was not consistent with the orderly and proper planning of the area and did not accord with the sound planning principles that had been formulated for the locality. The application for review was dismissed and the decision of the respondent was affirmed.
Introduction
4 F and L Franolich (owners) of Lot 46 Copley Road, Upper Swan (subject land) made application to the Western Australian Planning Commission (respondent), on 19 October 2005, for approval to subdivide the subject land to create two freehold lots, each 4.23 hectares in area.
5 The respondent refused the application on 26 May 2006 for the following reasons:
"1. The proposed subdivision does not comply with the Commission's Policy DC 3.4 Subdivision of Rural Land, a provision of State Planning Policy No 1 (State Planning Framework), by reason that it would result in the subdivision of rural land, which is not provided for in the
- current Town Planning Scheme, an endorsed local planning strategy or endorsed local rural strategy.
- 2. The proposed subdivision is inconsistent with the 'Rural' zoning of the land, the principal purpose of which is to preserve its rural use and density of development. The subdivision, if permitted, would result in an unplanned breakdown of land holdings.
3. The land is zoned 'Rural' in the Metropolitan Region Scheme and 'General Rural' in Council's Town Planning Scheme, where the Commission does not favour further fragmentation as this leads to smaller lot sizes and closer development which would conflict with the intent of the rural zoning of both these Schemes.
4. The proposed subdivision has failed to demonstrate that the requirements of the City of Swan Planning Scheme No 9 and the Darling Scarp Rural Strategy have been satisfied and does not comply with the minimum lot size of 20 hectares specified for the 'General Rural' precinct within the Rural Strategy.
5. Approval to the subdivision would create an undesirable precedent for the further subdivision of other lots of a similar size in the Rural Zone of this locality."
6 The applicant, on 15 June 2006, made application under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) to have the decision reviewed.
Subject land
7 The subject land is more particularly described as Lot 46 on Diagram 55933 comprised in Certificate of Title Volume 1528 Folio 171 and is 8.51 hectares in area.
8 Lot 46 is rectangular in shape with a 162.95 metre frontage to Copley Road and a depth of 523 metres. The subject land is relatively flat with a minor depression in the middle of the lot. The land has been parkland cleared and is used for the grazing of sheep. Improvements of the land include a dwelling, two sheds and a small dam.
(Page 5)
The proposal
9 The proposal entails the subdivision of the existing lot to create two freehold lots in a battleaxe configuration. The plan of subdivision identifies the proposed lots as "1" and "2", both of which are 4.23 hectares in area. Lot 1 has a 152.95 metre frontage to Copley Road, while Lot 2 accesses Copley Road via a 10 metre wide battleaxe leg. A building envelope of 2000 square metres has also been identified on Lot 2.
Planning framework
10 The subject land is zoned "Rural" in the Metropolitan Region Scheme (MRS) and "General Rural" under the City of Swan Town Planning Scheme No 9 (TPS 9).
Regional
11 The respondent has prepared a number of planning documents 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.
12 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:
• 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 3.4 – Subdivision of Rural Land (DC 3.4) forms the basis for determining applications for the subdivision of rural land.
• Development Control 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. Furthermore, cl 4.1.1 states that the respondent shall only approve subdivision of rural land for rural residential and rural small holdings where it is identified in an endorsed local planning strategy and zoned in a town planning scheme.
- • North East Corridor Extension Strategy (NECES) – The strategy looks forward to 2029 and provides a context in which planning decisions can be made. One of the specified purposes of NECES is to ensure that subdivision and development proposals do not compromise long-term planning objectives for the area. It is anticipated that the land use strategies will be implemented through town planning scheme reviews and local housing strategies. NECES identifies the subject land as "Proposed Urban", but does not envisage the rezoning of the Upper Swan area would be undertaken until 2020.
- Local
13 Relevant documents that have been produced by the City of Swan that guide subdivision within the municipality include: TPS 9, draft City of Swan Town Planning Scheme No 17 (draft TPS 17 or draft Scheme) and the Darling Scarp Rural Strategy (Rural Strategy).
14 The following provisions of TPS 9 are relevant to the consideration and determination of this matter:
• Clause 8.1.3 – specifies that the Council shall not recommend or support subdivision of land within a Rural zone except in accordance with the provisions under Part VIII – Rural Development Provisions and any other relevant Clause 2.4A Policy and in any event, the minimum lot sizes prescribed in or under the Scheme shall prevail.
(Page 7)
- • Clause 8.2.4.1 – sets out the purpose and intent of the "General Rural" zone, which is to retain the rural character of the area, encourage a range of rural pursuits and ensure that land uses are sustainable and compatible with the capability of land, and the interests of orderly and proper planning and preservation of amenity.
• Pursuant to cl 8.2.4.2, regard is to be given to the purpose and intent of the zone, and the following criteria applied when exercising discretion on applications for development approval and other related matters (which would include subdivision):
"a) Retention of lots in sizes which are considered to be viable for horticultural and agricultural uses.
b) Development of land uses to be based on land capability and viability of lot size for the proposed use, water availability and other site constraints.
c) Land use and appropriate management practices to be compatible with existing and/or proposed water supply catchment areas.
d) Protection of water quality and watercourses within existing and proposed water catchment areas.
e) Conservation and, where possible, enhancement of the rural landscape.
f) Site sensitive development to ensure that development does not detrimentally affect the landscape quality of the area.
g) Retention of remnant vegetation wherever possible."
• Clause 8.3.1 – requires that the Council, in making recommendations to the Commission on any proposal for subdivision of rural land, shall have regard to any relevant adopted cl 2.4A Policy and the requirements set out in subclause 8.3.2.2. The Tribunal notes that the
- City of Swan (City) recommended refusal of the subdivision application stating the following reasons:
- "1. The proposed subdivision conflicts with the proposed objective of the adopted Rural Strategy for the area.
2. The proposed subdivision is inconsistent with the 'Rural' zoning of the land, the principal purpose of which is to preserve its rural use and intensity of development. The subdivision, if permitted, would result in a fragmentation of land holdings.
3. The proposed subdivision is premature in the context of the general area as it relates to the development strategy proposed in the North East Corridor Report."
15 According to the respondent, draft TPS 17 "is to be presented to the Minister for approval shortly". The subject land is identified in the draft Scheme as "General Rural". The respondent asserted that the draft Scheme was a "seriously entertained proposal" and that the retention of the subject land within the "General Rural" zone showed that the intent of the rural zoning is current and remains applicable. The Tribunal is not able to establish from the documents the degree of likelihood of the draft Scheme being finally adopted, however, it is clear that the City has not, at this stage, incorporated the NECES land use designation for the subject land.
16 The Darling Scarp Rural Strategy has been adopted by both the City and the respondent. One of its functions is to provide a guide for future land use, zoning, subdivision and development. The Strategy identifies the subject land within the "General Rural" precinct. The principal objective of this precinct is to "[t]o protect the general rural character of the area by not alienating the land through inappropriate land use and lot fragmentation". The minimum lot size specified for this precinct is 20 hectares.
17 The Rural Strategy identified the subject land as:
• part high and part medium capability rating for grazing;
• part medium and part low capability for perennial agriculture;
(Page 9)
- • part high and part medium capability for irrigation water supply; and
• adjacent to priority resource area.
Respondent's position
18 The respondent contended that there was a comprehensive planning framework that had been developed, both at the State and local level to guide decision-making in respect to the subdivision of rural land and that there was no proper planning justification to depart from these policies.
19 Mr Patrick Smit, a Senior Project Planner employed by the Department for Planning and Infrastructure, gave evidence on behalf of the respondent. Mr Smit addressed the relevant policies of the respondent, namely SPP 2.5 and DC 3.4, as well as considering the local planning framework. Mr Smit contended the following:
1. The proposed subdivision does not accord with the following key objectives of SSP 2.5:
• the protection of agricultural land resources wherever possible by minimising the ad hoc fragmentation of rural land.
• the discouragement of land uses such as rural living, not related to the range of activities associated with land in the rural zone so as to minimise the potential for land use conflict; and
• the establishment of rural settlements where access is available to appropriate community services and infrastructure.
2. The proposed subdivision is contrary to the policy objectives of DC 3.4. Mr Smit argued that DC 3.4 advocates a general presumption against subdivision of rural land and that there was no justification to depart from the policy in this instance, particularly as there is no support for the proposed subdivision into rural residential or rural small holding under TPS 9, the Rural Strategy or draft TPS 17.
3. The proposed subdivision is inconsistent with the purpose and intent of the "General Rural" zone of TPS 9, in that it does not encourage a range of rural pursuits or ensure that
- land uses are sustainable and compatible with the capability of the land. He argued that the creation of 4 hectare lots would limit the type of rural pursuits that could be undertaken and created a potential for conflict with land uses in the surrounding areas.
- 4. The proposed subdivision does not accord with draft TPS 17. Mr Smit asserted that the retention of the subject land within the "General Rural" zone showed that the intent of the rural zoning is current and remains applicable.
5. The creation of lots less than 20 hectares in area was contrary to the provisions of the Rural Strategy. He considered that the approval to the proposed subdivision would significantly undermine the intent of the Strategy. He maintained that the Strategy had been based on an analysis of development parameters and that there was no indication that the Strategy required revision or reconsideration.
6. The identification of the subject land as "Proposed Urban" in NECES does not provide any basis to treat the subject land as "Urban" at present. Mr Smit argued that subdivision of the subject land prior to a planned and co-ordinated approach may undermine the efficacy and efficiency of future planning for the area. Further fragmentation of land would make a co-ordinated approach to urban planning more difficult as the number of landholdings and land owners to be co-ordinated would be increased.
20 Mr Smit argued that the subdivision would further fragment rural zoned land and reduce the range of viable rural pursuits capable of being undertaken on the land. He contended that other than the physical capability of the land to accommodate subdivision, there is no compelling justification to depart from the guidance provided in the State and local policies.
21 Mr Smit also detailed the history relating to previous subdivision approvals for the subject land and other land in the immediate area, which were approved by a number of Ministerial appeal decisions in 1993. Mr Smit asserted that the previous decisions did not provide any precedent as these approvals were granted prior to the approval and endorsement of the Rural Strategy and any subsequent appeals, made under the Ministerial system, were dismissed.
(Page 11)
Applicant's position
22 The applicant contended that TPS 9 had no provisions that prevented the proposed subdivision and drew the Tribunal's attention to the fact that previously, in November 1993, the then Hon Minister for Planning granted approval to a similar subdivision proposal.
23 The applicant asserted that the proposed subdivision should be considered on its merits and in terms of the amenity impact and not solely on the zoning of the subject land. On this point, the applicant referred the Tribunal to Falc Pty Ltd v State Planning Commission(1991) 5 WAR 522 which established that zoning is not the absolute arbiter of an application for subdivision and that it is the Tribunal's statutory duty to apply sound town planning principles to the substantial merits of each particular case.
24 The applicant asserted that the respondent's policies were general policies concerning subdivision that did not specifically relate to the circumstances of the subject lot. He asserted that the subject land, like the other properties in the street, is not viable for agriculture and therefore the respondent's argument that the land needed to be preserved for agriculture was misguided. Furthermore, he contended that the various recommendations contained in the Rural Strategy were irrelevant and inappropriate as the subject lot, like all others in the street, is below the 20 hectare minimum specified in the strategy. Although he considered the zoning of the subject land as "General Rural" to be inappropriate, he submitted that the proposed subdivision met the purpose and intent of that zone as it would not result in a change in the rural character of the area.
25 The applicant further argued that the proposed subdivision was consistent with the amenity of the area, given that the surrounding properties were used for rural-residential and rural purposes, with lot sizes ranging from 2 hectares to 4 hectares. He also contended that the proposed subdivision conformed with NECES and would not prevent further subdivision to create residential sized lots in the future.
26 On the issue of precedent, the applicant submitted that there were already similar sized lots adjoining and within close proximity to the subject land and that considerable weight should be given to this fact. Further, he relied on Aspen Pty Ltd v State Planning Commission (Unreported; Appeal No 13 of 1988, 21 October 1988) where Anderson QC found that:
(Page 12)
- "The precedent argument is not usually treated by this tribunal as a 'stand alone' argument. It is a consideration, but if there is no other reason why a development should not occur, the fact that it may tend to result in other applications being made for similar kinds of developments, should not be a reason why the appeal should be dismissed."
27 The applicant submitted evidence relating to the suitability of the subject land for rural-residential and argued that provided careful planning and site specific management measures were put in place, to ensure conservation of soil and water resources, the subject land was capable of supporting this land use. A number of management measures were identified to ensure that these objectives could be met.
28 The applicant made submissions on hardship grounds concerning medical and financial difficulties experienced due to caring for their son who suffers from Parkinson's disease. The subdivision of the land is intended to fund the future requirements and needs of their son. It was claimed that if the subdivision did not eventuate it would have a major effect on the whole family and may result in the property being sold and family being forced to move away from where they have lived for the last 26 years.
29 In matters of hardship the Tribunal is bound by s 241(3) of the PD Act, which states:
"In determining an application for the review of the determination 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."
30 The fundamental premise of s 241(3) is that such regard to claims of hardship will not affect the application of sound planning principles.
The principal issue
31 The principal issue in this proceeding is whether in light of the existing planning framework that provides the context for decision-making, the proposed two lot subdivision can be justified on the planning merits of the case.
(Page 13)
32 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 an approval that conflicts with the provisions of a local planning scheme.
33 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. One of the underlying principles embodied in the planning instruments is to safeguard against further fragmentation of rural land unless specifically planned for through the use of appropriate planning mechanisms to achieve co-ordinated development. Although NECES indicates that in the long term the Upper Swan area may eventually be subdivided and developed for residential purposes, in the short to medium term the strategies for this area provide for the protection of the general rural character of the area by not alienating land through inappropriate land use and lot fragmentation. The proposed subdivision represents a significant departure from the current planning principles and objectives advocated for the area.
34 The Tribunal accepts that most of the lots in the immediate vicinity of the subject land are smaller than the 20 hectare minimum specified in the Rural Strategy. However, the existing lot size of the subject land is consistent with the prevailing lot size in the area. The fact that the lot sizes within this area are smaller than the minimum lot size specified in the Rural Strategy does not negate the intent of the zoning of the area or the desired objective of the General Rural precinct as contained in the Rural Strategy. Further, the fact that there are already a number of similar sized lots, as those proposed, is not viewed as a reason to support further subdivision in this instance, particularly as approval to subdivide the subject land would undoubtedly lead to further incremental subdivision of surrounding land which would be contrary to orderly and proper planning.
35 It is important in these proceedings to also consider the issue of consistency in decision-making as approval has previously being granted
(Page 14)
- (in 1993) to a similar subdivision of the subject land. As Malcolm CJ observed in Dilatte v MacTiernan [2002] WASCA 100 at 61:
"Inconsistency has a potential to bring the decision-making process into disrepute because it suggests that the decision is arbitrary rather than one made in accordance with a disciplined approach reflecting the application of sound town planning principles and consistent with commonly accepted notion of justice."
37 The respondent submitted that there had been a change in the planning framework, by the adoption and endorsement of the Rural Strategy, since the original decision approving the subdivision and that subsequent decisions in relation to this lot and others in the locality were consistent with the current planning framework. Against this background, the Tribunal is satisfied that there has been sufficient change in the circumstances surrounding the case to justify a different conclusion and a contrary decision to that previously made by the Minister.
38 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. Although the Tribunal is sympathetic towards the emotional and financial issues confronting the applicant, the Tribunal is of the opinion that the proposed subdivision of the subject land is not consistent with the orderly and proper planning of the area and does not accord with the sound planning principles that have been formulated for the locality.
Orders
39 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.
(Page 15)
I certify that this and the preceding [39] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS M CONNOR, MEMBER