GANGEMI and SHIRE OF AUGUSTA-MARGARET RIVER - [2005] WASAT 113

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928

CITATION: GANGEMI and SHIRE OF AUGUSTA-MARGARET RIVER [2005] WASAT 113

MEMBER: JUDGE CHANEY

HEARD: 14, 15 FEBRUARY 2005 & 1, 3 MARCH 2005

DELIVERED : 2 JUNE 2005

FILE NO/S: RD 126 of 2004

BETWEEN: PINO and FRANCES GANGEMI
Applicants
AND
SHIRE OF AUGUSTA-MARGARET RIVER
Respondent

Catchwords:

Town Planning - development approval - caravan park and chalets - rural land - 'SA' use under town planning scheme - relevance of draft district planning scheme - relevance of statements of planning policy - relevance of local policies

Legislation:

Nil

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicants: Mr P McQueen, Mr Etherington
Respondent: Ms P E Cahill

Solicitors:

Applicants: Phillips Fox
Respondent: Ms S Boulter

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

Clive Elliott & Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) WASCA 276
Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117
Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522
Ingram v Western Australian Planning Commission (2003) WASCA 77
Nicholls v Western Australian Planning Commission [2005] WASAT 40
Permanent Trustee Australia Ltd v City of Wanneroo (1994) 11 SR (WA) 1

Case(s) also cited:

Nil

REASONS FOR DECISION
JUDGE CHANEY:

Introduction

The applicants are the owners of Sussex Location 464, a property which is 64 hectares in area and abuts Caves Road to the north west of the Margaret River township. The land consists substantially of cleared pasture with scatterings of clusters of trees. A creek line runs though the lot from east to west.
In May 2003, the applicants submitted an application to the respondent for approval for the development on location 464 of a caravan park, holiday cabins and chalets and ancillary infrastructure including dams, manager's residence, shop and cafe. Those uses are "SA" uses under the Shire of Augusta-Margaret River Town Planning Scheme No. 11 ("TPS 11"), meaning that the respondent could approve the uses at its discretion after certain advertising requirements imposed by TPS 11 had been complied with. On 31 March 2004, the council of the respondent resolved to refuse the proposed development and gave 12 reasons for that refusal. The applicants have appealed against that refusal. Since the appeal was instituted, the applicants have modified their proposal so as to ameliorate some of the concerns of the respondent. The parties have accepted that the changes to the proposals do not affect its substance, and the appeal proceeded as a consideration of the applicants' modified proposal.

The application

Sometime prior to January 2003, Mr and Mrs Gangemi approached the respondent with a request to provide an indication as to whether the respondent would be prepared to consider a caravan and camping facility on their land. No formal development application was made, and all that was sought was preliminary advice as to whether an application might be entertained. The council of the respondent resolved on 28 January 2003 to advise Mr and Mrs Gangemi that it was "prepared to consider a formal development application for a caravan and camping facility on portion of Sussex Location 464 Caves Road that addresses issues in respect to, amongst other things, landscape amenity, environmental improvements including the creek line, visual amenity, access, effluent and waste water disposal". The motion also recorded that "council's preparedness to consider a formal development application does not ensure that a planning consent will be granted as any application will be required to be advertised for public comment and will be assessed on it merits. Council simply accepts that the site chosen may have some merit. Advertising of any development application would also be required".
Accordingly, an application was lodged by the applicants which sought approval of a development of 155 powered caravan and tent sites, 60 to 70 non powered overflow sites for camping, 3 ablution blocks including camp kitchens, recreational facilities, shop café, reception and manager’s unit, screened refuse collection facility, 4 single bedroom studio cabins and 7 two bedroom cabins with a nutrient stripping effluent disposal system. That application was considered by the respondent's council at it's meeting on 31 March 2004 when it resolved to refuse consent. The reasons for refusal include inconsistencies with various provisions of the statement of planning policy 6.1 (Leeuwin-Naturaliste Ridge) ("SPP 6.1"), inconsistencies with council policies, inconsistencies with surrounding land uses or the rural character of the land and inconsistencies with the objectives or provisions of TPS 11.
The modifications to the proposal presented to the Tribunal resulted in the proposed development occupying a substantially reduced area within the lot. The revised proposal involved a reduction to 143 powered caravan bays, no overflow areas, 2 rather than 3 ablution facilities, a manager’s residence and office with a retail area for convenience goods (instead of the shop, café, reception and manager’s unit), a grey water plantation, water storage tanks and 2 gully wall dams, 4 single bedroom studio cabins and 8 two bedroom suites. The original proposal had been assessed as having the capacity to cater for 1000 occupants, but the appellant proposed, under the revised proposal, that the development would have a maximum occupancy of 400 persons, and was prepared to accept a condition on any approval to that effect.
During the course of the hearing, the appellant indicated a degree of flexibility as to the provision of a potable water supply, and as to effluent disposal. In essence the applicants' position was that those matters could be dealt with by suitable conditions, but were not issues which should lead to the rejection of the application.

The location of the site

As mentioned, the site lies approximately 5km northwest of the Margaret River town site. It is approximately 7km from the town site by road. It is approximately 7 to 8km from the Gnarabup swimming beach and the mouth of the Margaret River. To the north, via Caves Road and Cowaranup Bay Road, the land is approximately 10km from the Gracetown swimming beach. Various surfing, fishing and swimming locations lie within 4 to 6km of the site, although some are accessible only by four‑wheel drive vehicles. The surrounding area is principally used for agricultural purposes or comprises national park. A number of vineyards, some with wineries, are located within 3km of the site. Within a few kilometres both north and south of the site there are relatively small-scale tourist developments comprising cottages, bed and breakfast establishments and chalets.
On the land immediately to the north of the subject site is the Sunflower Animal Farm, a small tourist development.

TPS 11

The subject site is zoned rural under TPS 11. It is also included within Policy Area A - Area Landscape Beauty. Clause 4.3 of TPS 11 recites that the scheme is directed towards the preservation and proper planning of the rural areas of the district. It identifies specific zoning objectives including the opposition to development and subdivisional proposals which would operate in conflict with the retention of land for productive rural pursuits.
In relation to areas of landscape beauty identified as Policy Area A under the scheme, the scheme provides (at cl 4.6.2) that the council shall as a matter policy, amongst other things, prevent any proposal which would be likely to adversely affect the amenity, rural character and landscape of the area concerned. In relation to the rural zone, cl 4.9.3 provides that no development shall be permitted that would, in the council's opinion, adversely affect the rural landscape or be contrary to the agricultural use of the land.
Under the zoning table in TPS 11, a caravan park is listed as an "SA" use which means that council may, at its discretion, permit the use after notice of the application has been given in accordance with cl 4.4.3. The applicants’ application for approval was advertised in accordance with cl 4.4.3.

Shire of Augusta-Margaret River Draft District Town Planning Scheme No 1 ("DDTPS 1")

On 24 February 2003, the respondents' council resolved to adopt DDTPS 1 which would replace TPS 11 and Interim Development Order No 16 ("IDO 16"). IDO 16 was gazetted on 14 November 2004 for the purpose of regulating development within the shire, in conjunction with existing town planning schemes, pending final approval of DDTPS 1. The provisions of IDO 16 do not significantly bear upon the issues in this matter.
On 17 November 2004, the Minister for Planning and Infrastructure granted consent to advertise DDTPS 1 for public submissions. The period for making submissions expired after much of the evidence in this hearing had been given, and only days before it was finally concluded. Ms Mersina Robinson, the manager of Strategic Planning and Environment of the respondent, was unable, when she gave evidence after the close of submissions, to specify the number of submissions that had been received. She accepted that amendments to DDTPS 1 may be made and the final gazettal of the scheme may be as much as one year away.
Under the advertised provisions of DDTPS 1, the subject site is zoned "Rural - Priority Agriculture", and a caravan park and camping ground use would be prohibited. Reliance was placed by the respondent on DDTPS 1 as a seriously entertained planning proposal and it was submitted that approval of a use which would be prohibited under that scheme, as advertised, would not be consistent with sound planning principles and would not represent orderly and proper planning. That argument is based upon what is often referred to as the "Coty principle" (see Coty (England) Pty Ltd v Sydney City Council(1957) 2 LGRA 117), the original and wide acceptance of which was usefully analysed in a recent decision of Senior Member Parry in this Tribunal in Nicholls v Western Australian Planning Commission [2005] WASAT 40 at [39 ‑ 47]. It is not necessary for me to repeat that analysis, although it is helpful to set out the four stages of enquiry identified by Mr Parry which a planning consent authority or appeal tribunal must undertake. Mr Parry concluded, and I respectfully agree, that:
"(1)In jurisdictions where there is no statutory requirement to take into consideration a draft planning instrument or policy or a draft amendment to a planning instrument or policy once it has reached a certain specified stage, the authority or tribunal must consider whether the draft constitutes a seriously-entertained planning proposal. If it determines that it is a seriously‑entertained planning proposal, it is a relevant matter for consideration in relation to the planning assessment.
(2)If the draft is a relevant matter for consideration, the authority or tribunal must consider the extent to which the application before it is consistent with the planning objective or planning approach embodied or reflected in the draft. In particular, the authority or tribunal must consider whether the approval of the application is likely to impair the effective achievement of the planning objective or planning approach embodied or reflected in the draft or is likely to render more difficult the ultimate decision as to whether the draft should be made or its ultimate form.
(3)The authority or tribunal must consider the weight to be accorded to the consistency or otherwise between the application and the draft.
(4)The authority or tribunal must weigh its conclusions in relation to the foregoing matters in the balance along with all other relevant considerations relating to the application, and determine whether, in light of all relevant considerations, it is appropriate in the exercise of planning discretion to grant approval to the application and, if so, subject to what conditions."
The applicants contend that, whilst it was accepted that DDTPS 1 is a seriously entertained planning proposal, its provisions in relation to this particular land should be given little weight because of the uncertainty as to its final terms. Mr Gleed, a planner called by the applicant, said that he had been involved in the preparation of 41 submissions on behalf of clients, not one of which was a positive submission in respective of DDTPS 1. He said he knew of two landowners in the proximity of this site seeking a change to the applicable provisions for the area. The applicant also submitted that the planning approach embodied or reflected in DDTPS 1 as advertised would not be significantly impaired if this application were granted. The use would simply be non‑conforming, or alternatively the zoning table could be amended to permit the caravan park use on this site without any significant damage to the planning objective for the area.
The purpose of the "Priority Agriculture" zone in DDTPS1 is set out in cl 4.2.14.1, and is:
"(a)to identify and protect land within the scheme area having high production capability for all agricultural (sic; activities) in the shire with such other incidental, compatible and complementary non-rural activities in accordance with the provisions of the Statement of Planning Policy No. 2.5 – Agricultural and Rural Land Use Planning;
(b)Notwithstanding the zoning of land having higher production capability as priority agricultural land, to provide for the retention and protection of portions of land within that zone that are not cleared and that are valuable to the high landscape values and ecological systems of the district; and
(c)to provide that sub-division and development activities generate alternative and incompatible land use proposals are not permitted."
The aims of DDTPS1 are set out in cl 1.6. The aims include, in relation to agriculture and rural land use, the following:
" To provide for the sustainable use of rural land for diverse agricultural production, which encourages and promotes best practice agriculture and sustainable land use change, and which accommodates ancillary and complementary rural activities.
To provide effective mechanisms;
(i)to implement the provisions and policy of the Agricultural and Rural Land Use Statement of Planning Policy No 2.5 relevant for the use and development of rural land and the recognition of settlement pattern within the rural areas of the Shire; and
(ii)to ensure the protection of priority and general agricultural land as identified within the scheme by discouraging any land uses and developments which would detract from the principal function of the land for productive agriculture purposes and ad hoc fragmentation of rural land which could lead to the establishment of non-rural uses and developments".
The focus of DDTPS1 on the retention of agricultural uses, to the extent of the weight given to the draft scheme, militates against an approval of the proposed use of this land for a caravan park. In answer to that, apart from their argument that little if any weight should be given to DDTPS1, the applicants’ contend that the land does not have high production capability, or at least that part where it is proposed to locate the caravan park does not have that capability. That is a matter to which I will return in due course.

Draft Local Planning Strategy

A draft local planning strategy has been prepared by the respondent in conjunction with DDTPS1. It draws upon planning strategies, and in particular the Statements of Planning Policy No 2.5 (Agricultural and Land Use Policy) ("SPP 2.5") and No 6.1 (Leeuwin Naturaliste Ridge Policy) ("SPP 6.1"). The strategy of the policy is expressed as "reflecting the view that the preservation and enhancement of the rural areas of the shire is paramount to all other considerations". The draft policy recites:
"By adopting SPP 6.1, recognition is given to the agricultural/horticultural value of land between the ridge and Bussell Highway, which is the eastern boundary of the policy area. For all practical purposes, the soil types and general capacity for agricultural/horticultural production of land east of Bussell Highway across to the state forest are very similar to those within SPP 6.1. This LPS therefore, has been prepared on the basis that agricultural land is of prime importance to the background of the land use and economy of the shire district and should be preserved from any activity, which would detract from its preservation and development for those purposes. Accordingly, the sub-division of rural land is generally viewed as being inconsistent with these objectives as are major development proposals, which are not related to the horticultural/horticultural function."
In relation to agriculture, the strategy reflects what is set out in the DDTPS1 and expresses the strategy of providing for sustainable use and development of rural land that is compatible and complementary to agricultural activities to be achieved by preventing the development of uses which are incompatible with the primary use of agriculture.
In accordance with the Draft Local Planning Strategy, cl 1.9 and 1.10 of DDTPS1 specifically adopt SPP 6.1 and SPP 2.5 into the draft scheme.
Whatever may be the final form of DDTPS1, it is clear that future planning for the area involves the application of, or at least consistency with, the relevant provisions of SPP 2.5 and SPP 6.1. Those policies are relevant for that reason, but in any event regard must be had to them by the Tribunal as required by s 61(1) of the Town Planning and Development Act.

SPP 6.1 – Leeuwin Naturaliste Ridge Policy

The respondent's position is that the proposed development is inconsistent with SPP 6.1.
The subject site is located within the Principal Agriculture (viticulture and grazing) policy area under SPP 6.1. Policy Statement LUS 4.1 states that the predominant use of the land within the Principal Agriculture (viticulture and grazing) policy area will be agriculture, but recognises that "other uses including uses of interspersed lands with lesser agricultural potential, will be compatible with and not jeopardise, agricultural use of adjoining prime agricultural land." LUS 4.2 provides that "agriculture (including viticulture) is to remain the predominant economic land use, within the constraints of protecting remnant vegetation and landscape values".
The parties each called planners who disagreed as to whether the proposed development was contrary to the policies in relation to agriculture contained within SPP 6.1. The applicant argued that, by reason of the limited agricultural potential of that portion of the land upon on which the caravan park was proposed, and because the use as a caravan park would not interfere with adjoining agricultural uses, the objectives of SPP 6.1 were met, or at least not defeated. The respondent accepted that the proposed caravan park area was itself of limited agricultural value, but argued that the fragmentation of the lot, which would result from the development, the fact that if approved the caravan park use would be the dominant economic use, and incompatibility of the development with agricultural use on adjoining lands, were all contrary to the policy.

The effect of the caravan park on agriculture use.

At the hearing much attention was given to the question of whether this land should be treated as productive agricultural land. Each party produced a report of an agricultural consultant dealing with that question. The consultant engaged by the applicant was Mr Francis Slade, and the consultant engaged by the respondent was Mr Stephen Hossen. In a procedure which, so far as I am aware, was novel in planning appeals in this state, but which is likely (with some refinement) to become a regular procedure in this Tribunal, those experts did not give their evidence in the traditional way. Rather, during the course of the hearing, they were requested to confer with each other to determine the extent to which they agreed as to matters of land capability, and to identify the issues in respect of which they disagreed. They were then called together, and gave concurrent evidence. As it happened, the process of consultation ultimately gave rise to agreement of all issues of land capability, and Mr Hossen and Mr Slade together prepared a plan depicting the different areas of productive agricultural land within the lot. Counsel for both sides were extremely co-operative in this process and can take much credit for its success. The process led to a far more effective resolution of the matter the subject of the witness's expertise than might have been expected by the traditional process of tender of reports and cross examination of each of the witnesses at length of those reports. The process not only facilitated my task in reaching conclusions on the issue of land capability, but also saved hearing time and enhanced the quality of the decision-making process.

Mr Hossen and Mr Slade's evidence established that the area of the proposed caravan park is 22.38 hectares. They then assessed the soil classifications within that area. Of the 22.38 hectares, 13.78 hectares has a high capability for grazing with the remaining 8.6 hectares having a low capability for grazing. For viticulture, 5.6 hectares within the site area has medium capacity and the balance of 16.78 hectares has low capacity. On the balance of the lot, ground soils were said to have high capability for grazing on 36.5 hectares and 1.32 hectares of medium capability. That area had soils with high capability for viticulture on 3 hectares, and medium capability on 18.02 hectares.
The effect of that analysis is that, were the development to proceed, there would be a loss of 13.7 hectares of high capability grazing land, and 5.6 hectares of medium capability of viticulture. There would remain 37.82 hectares of land with high or medium capability for grazing, and 21.02 hectares of land with medium or high capability for viticulture. Both experts agreed that whether or not the development site was available for grazing, the lot by itself would never provide a viable stand-alone grazing property. They also agreed that the minimum area required for a viable viticultural operation was 20 hectares. Thus, if the development were to proceed, there would remain enough land of at least medium capability for viticulture, namely 21.02 hectares, to support a viable viticultural operation.
On that basis the applicant argued that development would not result in a significant loss of potentially productive agricultural land, and would leave the majority of the balance of the land still available for rural use, namely viticulture.
The development of a vineyard on the land was not any part of the application. At the commencement of the hearing, the proposal was to have an olive grove established on a relatively small area of the site between the proposed development site and Caves Road. That aspect of the proposal seemed to fall away in light of the evidence as to the agricultural viability being based essentially on the establishment of a vineyard. The olive grove proposal was presumably principally designed to achieve a degree of screening of the development site from the road. That was a matter referred to by Mr John Cleary, a consultant in visual assessment in his statement tendered by the applicant. No doubt the original proposal to establish an olive grove would have involved some potential to derive an income from that activity, but although the matter was not ultimately pursued in the evidence, there is no suggestion that production of olives would have been the predominate economic use of the land. According to Mr Slade, and based upon information apparently given to him by the appellants, the caravan park development would be likely to yield approximately $690,000 per annum. The experts agree that 20 hectares of vineyard would produce somewhere between $300,000 and $400,000 per annum gross income. It is clear that, were the development to be established, the predominant use of the land, in an economic sense, would be the caravan park.
In peak season, it is proposed that the caravan park would house up to 400 people. Differing views were expressed at the hearing as to the impact of that level of occupation, and the movement of that number of people through the site, on the effective operation of agricultural activity on the balance of the land, and on adjoining land. Although not thoroughly examined during the course of the hearing, in my view it is likely that the establishment of a viticulture enterprise on the balance of the land would be less attractive given the proximity of the caravan park. Another observation that might be made about the prospect of the establishment of a viable viticultural operation is that the areas of land identified as having soil types suitable for viticulture appear to be located within 4 separate areas, separated by the proposed dams and the existing wetland area. For viability as a viticultural enterprise, it would appear that all available pockets of suitable soil would need to be utilised.
From a practical point of view, given
(i)the financial dominance of the caravan park use;
(ii)the potential conflict between an agricultural use and the presence on site of up to 400 people,
(iii) the necessity, if the viticultural use is to be viable, to utilise virtually every area where the soil type is at least moderately suitable for viticulture,
The prospect of the establishment of a viticultural operation on the land is more theoretical than real. There also may be issues as to the competition between the caravan park use and a viticultural use for available water supplies, although that was a matter not examined in detail in the course of the hearing.
It follows that I am of the view that the policy in LUS 4.1 of SPP 6.1, namely that in "areas designated Principal Agriculture (viticulture and grazing), the predominate use of land will be agriculture" will not be met if this development is approved. Similarly, the policy in LUS 4.2, namely that "agriculture (including viticulture) is to remain the predominate economic land use…" will also not be met by the approval of this proposed development. The practical effect of the approval being granted would be effectively to divide the land into two areas, one used for the caravan park, and the other potentially usable for viticulture. That defacto division would be likely, in my view, to diminish the prospect of agricultural tourist under SPP 6.1 use of the balance of the land.
The respondent also contends that the proposed development is not consistent with the provisions SPP 6.1 relating to tourist uses.
SPP 6.1 contains a statement of intent in relation to tourism which is "to create a diverse and sustainable tourist base which complements the existing character and lifestyle of the policy area" facilitated by:
•encouraging nature base and cultural tourism opportunities;
•focussing coastal tourism in designated nodes;
•integrating large scale tourism development into principal centres and other settlements;
•promoting low scale tourist development that is consistent with local characteristics;
•encouraging innovative tourism development that responds to the local natural and cultural environment;
•assessing land use proposals for their impact on tourism; and
•conserving those landscape, cultural and environmental values that offer future tourism.
The relevant policies under the "tourism” heading in SPP 6.1 are as follows:
"PS 5.2 coastal tourist nodes will provide for a range of tourist accommodation options, including campsites, hostels/backpacker accommodation, chalets, lodges and other low impact tourist developments.
PS 5.3 tourist development which is inappropriate in rural locations, will focus on or be adjacent to existing principal centres. Where tourist development is proposed in other areas, the proposal will comply with the settlement hierarchy, policy statements for the area and the use category under the Land Use Strategy.
PS 5.2 low impact tourist development will be considered in rural locations where the development – will not adversely affect the character of the surrounding areas;
•comprises only buildings or structures which are small in scale and unobtrusive;
•is consistent with the transport and the environment policy of the LNRSPP; and
•in the case of an agricultural area, is incidental or complementary to the agricultural use".
The parties disagreed to as to whether the proposed development was "low impact tourist development" for the purpose of PS 5.4. Mr Gleed, expressed a view that the proposed caravan park should be considered "low impact" because only a small number of buildings is proposed and occupancy will fluctuate throughout the year. He suggested that "high impact" meant permanency, bulky buildings and large scale built form. Ms Robinson expressed a view that the proposed development should not be considered low impact, because of the impact of having up to 400 people on the site during peak periods. Mr Dykstra, another planner called by the respondent expressed a similar opinion that the proposed development is not low impact.
SPP 6.1 defines low impact development as meaning:
"the use and development of land in such manner that does not detract from the rural and natural amenity of the locality, and includes the following criteria –
(i)development being located so as to avoid ridge lines, escarpments or visually exposed sites and situated where screening vegetation or land form be utilised;
(ii)use and development being sensitively located and designed to minimise impact on vegetation, water courses, soil quality and existing land uses;
(iii)development being of a scale and nature so as to be self-sustaining on the lot, or demonstrating the ability to provide servicing without significant modifications to existing infrastructure;
(iv)development that by the nature of its scale, design, colour, materials, landscaping and use, has minimal impact on its site and surrounding areas; and
(v)where the land use and any development has a minimal off-site consequence".
In my view, the proposed development is not "low impact development". It is a development which, if completed, would occupy in excess of 22 hectares of land. Whilst the development would not consist of large buildings, some dozen accommodation units, ablution facilities and a manager's residence would be constructed. Depending upon which form of water supply was adopted, there may be a large hardstand run-off area occupying some 1.8 hectares constructed or alternatively dams occupying these hectacres. The further alternative of scheme water supply would require siginificant off site and on site infrastructure modifications. Roadways into the caravan park site and within it would be constructed. At certain times of the year there would be a movement of up to 400 people in and out and around the site. The infrastructure which would need to be developed within the lot to support the number of people to be accommodated should be described as "significant". The scale of the development, including the infrastructure requirements, and the scale of the proposed use could not be regarded as having "a minimal impact on its site".
Even if the development is considered a low impact development, the policy contained in PS 5.4 would not be met because the proposed use could not be said to be "incidental or complementary to the agricultural use".
Not being "low impact development" policy PSS 5.3 applies to the proposed development. The requirement of PS 5.3 that tourist development should focus on or be adjacent to existing principal centres is not met in this case. Although the site is a distance of only some 7 kilometres by road from the Margaret River town site, it cannot be described as adjacent to Margaret River nor does it "focus on" Margaret River.
The parties were also at odds to whether other provisions of SPP 6.1 relating to tourism should provide a basis for rejecting the application. SPP 6.1 contains a statement of intent to provide a diverse and sustainable tourism base which complements the existing character and lifestyle of the policy area that intent is to be facilitated by, among other things, "focussing coastal tourism in designated nodes", and "integrating large scale tourists development into principal centres and other settlements". It was common ground that the proposed site is not within a designated tourist node. The respondent contends that the proposed development would not comply with the settlement hierarchy set out in Table 1 of SPP 6.1. as required by PS 5.3. Mr Gleed argued that the settlement hierarchy was concerned only with permanent population and thus was not relevant to the applicant’s response. If that were so, it is difficult to see why PS 5.3 would require compliance with the settlement hierarchy in relation to tourist development, which inevitably, involves non permanent population.
Mr Gleed also noted that SPP 6.1 expresses the intention of encouraging innovative tourist development that responds to the local environment and accordingly requires flexibility to accommodate proposals in areas remote from existing centres provided they meet appropriate criteria. It may well be that SPP 6.1 does contemplate limited departure from the general blueprint for tourism development within the policy area. SPP 6.1 does, however, represent a relatively detailed consideration of broad planning objectives for the area, and in my view a development of a tourist facility of the size proposed is inconsistent with the intent of the policy of focussing coastal tourism in designated nodes and integrating large scale development into principal centres or other settlements.

SPP 2.5 – Agricultural and Rural Land Use Planning

The respondent also contends that the approval of this development would be contrary to the Statement of Planning Policy No. 2.5 – Agricultural and Rural Land Use Planning ("SPP 2.5").
SPP 2.5 has as one of its four key objectives the objective to:
"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 resource and investment security for agricultural and allied industry production".
As already observed, under DDTPS1, the land is zoned "Priority Agriculture". SPP 2.5 provides, in cl 5.2.1, that a town planning scheme should make provision to minimise the impact of adjoining uses on the "Priority Agriculture" zone that may restrict or conflict with the continued use for agriculture. It provides that town planning scheme provisions may be appropriate within that zone to allow small scale tourist activities, including farm stay, chalets and bed and breakfast, where these uses are incidental to the primary agricultural use of the land.
Whether the land remains zoned "Priority Agriculture" when the new town planning scheme is ultimately adopted may not be certain, but the relevant provisions for development of the general agriculture zone found in cl 5.2.2 of the SPP 2.5 are relevantly identical. The proposed development is not a "small scale tourist activity" as contemplated in cl 5.2.1, and in my view the proposed development would conflict with that provision of SPP 2.5. Furthermore, the key objective of discouraging land uses unrelated to agriculture and minimising the ad hoc fragmentation of rural land are in conflict with the proposed development.
On that basis, the provisions of SPP 2.5 militate against approval of the proposed development.

The respondent local planning policies

The respondent has adopted a number of local planning policies, which are applicable to the proposed development. Those policies have not been made pursuant to TPS 11 which has no express provision relating to the adoption of policies by the shire. Rather they have been adopted by the respondent to guide planning decisions within the municipality. The applicants argued that, given their lack of legal status, the policies should carry little weight in consideration of this application. Whilst it is clear that such policies, by themselves, can never preclude approval or refusal of an application (see Permanent Trustee Australia Ltd v City of Wanneroo (1994) 11 SR (WA) 1 at 17) the proper approach to such policies was identified by Barker J in Ingram v Western Australian Planning Commission (2003) WASCA 77 at [14] when he said:
"there is no good reason in law why planning documents of this type, even though they have no legal status under the Act, should not be published by a decision-maker for the purpose of guiding the future exercise of discretion. Indeed, there is every reason why this should be done in the interests of good public administration. The publication and use of "policies" in these circumstances serves to promote consistent and rational decision-making. The only qualification to this statement is that policies should not be applied inflexibly so that the circumstances of a case which suggest that a variance from a policy may be appropriate on a particular occasion are not ignored; see Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522 and discussion in Clive Elliott & Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) WASCA 276 at [25] and [26]."

Policy PE 33 – tourism

Policy PE 33 provides:
"tourism development will not interfere with current or potential agricultural use, but may complement agricultural land use where it serves to increase viability of an established agricultural activity. On cleared agricultural land agriculture will be presumed to be the best use of that land. Tourism development will not compromise the landscape. Interpretation of agricultural activity for visitors will be encouraged."
In my view, as discussed above, the proposed use does not complement agricultural land use and will not serve to increase the viability of any established agricultural activity, or indeed any agricultural activity likely to be established on the site.
The policy also provides that tourism development should result in a positive environmental impact on any particular site in the area in general. Developers of tourism product must demonstrate that their product will enhance the environment and will not impact on it. The applicant’s proposal does contemplate some environmental repair program being undertaken on the creek line and the site generally. In its original form, the planting of an olive grove might be seen to be an enhancement of the environment. In that sense, it may be said that a positive environmental impact might result to the site. On the other hand, while the provisions in relation to waste water management, if properly developed and managed may prevent environmental degradation, in particular to the water course, intensification of the land use must at least pose risks of environmental degradation if those management requirements are not strictly adhered to.
The provisions PE 33 relating to agriculture are not met by this proposal. While it may be said that there may be support from the policy derived from its provisions relating to environmental impact, that position is far from clear cut.

Policy PE 43 – Low impact tourist development (including shallows)

Policy PE 43 is a policy adopted by the respondent to promote orderly and proper planning for, and in, rural localities. PE 43 identifies planning considerations which affect its policy content. Those considerations include the following:
"Land within the rural area generally as prime agricultural value worthy of conservation for agricultural purposes. Compared to other parts of Western Australia, most of the land within the shire is part of the State’s most productive agricultural land. Land uses and developments, including tourism development, which detracts from its agricultural productivity, must be resisted.
…
In terms of economic, social and environmental sustainability, it is vital that the overall qualities, amenity and character of the shire district be preserved. The risk for sustainable development from approving numerous low impact tourist developments (above the maximum of two chalets set out in this policy) are that there will not only be an incremental diminution in the rural character and amenity of the areas of which they are to be established but also a reduction in the primary agricultural production capability of the land."
The policy provides that:
"Low impact tourist development as defined in this policy represents the maximum scale of development that can be accommodated on lots within the rural zones. Larger scaled developments and land uses will not be approved under this policy and will require, if found to be justified, an amendment to the relevant scheme to incorporate a site specific zoning for the development proposed."

The proposed development does not fit the definition of "low impact tourist development".
PE 43 cannot, of course, override DPS 11 so as to remove the discretion to approve a caravan park in a rural zone, subject to advertising requirements. Its objectives are, however, relevant considerations in the determination of the proper exercise of that discretion. It is clear that the objectives of the policy would not be met by approval of the proposed development.

Policy PE 6 – visual management

Policy PE 6 – visual management has been adopted by the respondent to provide guidelines for the development in visually sensitive areas of the shire. The policy recognises three visual management zones to which it applies. The subject land is in visual management zone B. The Policy provides, in relation to that zone that "developments or changes of use may be visually apparent but should nevertheless be subordinate to establish landscape patterns. Introduced visual elements may be apparent in the landscape but should not be visually prominent."
At the hearing, a witness statement of Mr John Cleary was tendered. The respondent did not seek to cross-examine Mr Cleary. Mr Cleary assessed the subject site from a visual perspective and considered the proposed development in the context of various policies relevant to landscape values that apply to the land. He concluded that the development would not be seen from Caves Road once proposed planting is established along the drainage line on the land and in the development area. He was of the opinion that it may take a few years for the proposed planting to reach a height and crown size to effectively screen the development by which time the landscape character of the land would be unaffected. He was of the opinion that the development complies with all of the objectives that the policies related to the land relevant to landscape values.
The evidence of Mr Cleary was unchallenged, and is based upon a sound and careful analysis of the proposal and its visual impact, although it does not appear to directly assess policy PE 6. Nevertheless, the requirement in relation to visual management zone B are met by the proposal. The visual impact of the proposed development is not a reason for refusal of the development application.

Policy PE 31 – dams and water courses

Policy PE 31 – dams and watercourses is directed to the criteria for the assessment of development applications for the construction of dams and clearing of land affecting watercourses within the shire. Policy 1.3 provides:
"The construction of dams will normally only be approved where it is required to service an identified agricultural purpose or where it can be demonstrated that an environmental benefit will result."
The proposal as originally presented to the Tribunal involved the construction of two dams to service the water requirements of the proposed development. The question of potable water supply was the subject of experts’ reports filed by each party. That issue, and the question of waste water management was dealt with at the hearing by a similar process to that adopted by the land capability experts. There were four experts involved, and they spent some time conferring outside the hearing with a view to narrowing the issues between them. They agreed on some issues, but not on all. They were able, in the hearing, to identify their differences and, explain why they differed from the other experts and comment upon other expert's opinion. As with the land capability experts, the witnesses concerned applied themselves diligently and constructively to their task and their combined evidence was of great assistance to the proper resolution of the issues before me.
The witnesses called by the applicant on these issues were Mr Adriaan Hendrik (Hank) Van Der Wiele, an environmental consultant who principally deals with land management, pollution and environmental quality issues and Mr Francis Slade, an agricultural consultant who had already given evidence in relation to land capability, but who also has expertise in water supply assessment for agricultural activities. The respondent called Mr Neville James Welsh, a senior natural resources management officer from the Department of the Environment who is involved in the statutory licensing of ground water and surface water. It also called Mr Gregory John Simpson the manager of environmental health services with the respondent.
The experts together identified three possible options for the supply of potable water. The first, not being foreshadowed as part of the applicants’ original application, was the supply of scheme water. The second was the installation of a deep bore for the supply of ground water, an option that would require further testing both as to quality and quantity of water that might be available and capable of suitable treatment for domestic purposes. If the appropriate quality and quantity of water were available, a treatment system would then be installed to ensure the water met the appropriate Australian standards. The third option was for the development of a hardstand area that would allow sufficient rainwater to be collected. The hardstand area would be approximately 1.7 hectares, which would either be bitumised or consist of a plastic polymer lining. The area would have a bund around it so to avoid contamination from storm water outside the hard stand area. The water would then be stored within a hillside dam and would be treated prior to distribution to its consumers. The hardstand area would also require fencing, which Mr Van De Wiele suggested would be a 2m fence to keep fauna off the water collection area. It was suggested that the fencing could be screened by vegetation. Mr Walsh had concerns about the location of the hardstand area, and in particular its proximity to the waste water disposal area, and also as to management issues associated with keeping caravan park users away from the catchment in the long term. The hardstand collection area was not an option favoured by Mr Welsh. Mr Simpson also had concerns in relation to potential contamination of the water and long term maintenance of the collection area. He did not support the option.
At the commencement of the hearing the applicants proposed that potable water would be supplied by a combination of run off from roof areas in the development and water drawn from the dams to be constructed in the creek line. When the experts conferred, the use of water from the dams was not put forward as an option, but the hardstand collection area was substituted as a proposal on the basis that it would produce better quality water and interfere with the creek flow.
The applicant’s position in essence was that it would be prepared to accept a condition of approval requiring a potable water supply by whatever option the Tribunal might think appropriate. The viability of the deep bore solution is entirely dependent upon further testing to "prove up" the quality and quantity of water. A condition directed to requiring water supplied by that method would be undesirable given the uncertainty as to whether or not deep bore supply is a viable option. The hardstand proposal, which emerged as a result of the conferral of experts during the course of the hearing, raised some issues of concern. The first is as to the precise location of the area, which may have implications as to the visual impact of 1.7 hectares of concrete or plastic, as well as proximity to the waste water disposal areas, and potentially other agricultural uses on the balance of the lot. Reservations were expressed by the respondents' witnesses concerning management issues for the hardstand. In the circumstances I would not be prepared, if approval were granted, to impose a condition directing the water to be supplied by that method.
That leaves the option of a reticulated scheme water supply. That option also emerged as a result of the conference of the experts, and there was very little known as to the cost of extending the main supply to the site, and then reticulating the water from the main supply to the development area. Presumably, because the experts propounded this method of water supply as an option, they did not think that the cost would be likely to be so much as to render the proposed development unviable. If I were to approve the development, the condition which I would impose would be that the approval is subject to the connection of the development to the main scheme water supply.
It follows that the construction of dams, if the development were approved, would not be necessary and presumably would cease to be part of the application. Accordingly, policy PE 31 would cease to be relevant to the appeal. To the extent that dams remained part of the application, the application would be inconsistent with policy PE 31 since the dams are not being constructed to service identified agricultural purposes.

Draft policy PE 47 – sub division and development of rural land

Draft policy PE 47 – sub division and development of rural land is a draft local policy that was adopted by council for advertising on 24 November 2004. It was publicly advertised and the closing date for submissions was 26 January 2005. At the time of hearing, no further information was given as to the progress to final adoption of the draft policy.
The objective of the draft policy is to provide guidance to land owners and proponents of sub divisional development of land within the rural zones. Its objectives seek to prevent rural land from fragmentation, to promote continued use for agricultural production and the promotion of best practice agriculture and sustainable land use change. The policy has a presumption against sub-division of rural land and states that agricultural activity must be protected wherever possible.
The applicants’ argue that the draft policy should be given little weight because it is merely a draft. Furthermore, they argue that the land, particularly the land on which the development is to be sited, has low capability for agricultural purposes, and thus is not land of a type to which policy PE 47 is directed.
I have already identified concerns in relation to the continued use, for agricultural purposes, of the balance of the lot in the context of the provision of SPP 6.1 and SPP 2.5. The Policy PE 47 defines "priority agricultural land" as "all land zoned rural" under Town Planning Scheme 11. By definition, this land is priority agricultural land for purposes of the policy, regardless of the soil capability of sections of it.
It is apparent that the proposed development is inconsistent with policy PE 47 which requires development proposals to be consistent with the on-going sustainability of agricultural or horticultural practices on the land. Having said that, the policy being in draft, and given its substantial focus on issues of sub-division, I would not be inclined to place great weight on policy PE 47 for the purpose of determination of this application.

Conclusion

Having considered all the foregoing matters, I have reached the conclusion that the appeal should be dismissed. In summary that is because the proposed development is inconsistent with the rural character of the site. In that sense, cl 4.6.2 and 4.9.3 of TPS 11 suggests that the application should be refused. Some weight should be given to the fact that DDTPS1, a seriously entertained planning proposal, would prohibit the proposed use. The objective of DDTPS1, namely its intention to reflect the provisions of SPP 2.5 and SPP 6.1, is likely to remain the cornerstone of the scheme when ultimately adopted. That planning approach is reflected in the draft local planning strategy. For reasons discussed above, the proposed development is inconsistent with LUS 4.1 and 4.2 and PS 5.3 and 5.4 of SPP 6.1. It is inconsistent with the objectives of SPP 2.5. Local policies PE 43 and PE 33 are not consistent with the proposed development. All of those policies weigh against the exercise of the discretion in favour of the application, and on that basis it should be refused.
I certify that this and the preceding 24 pages comprise the reasons for decision of the State Administrative Tribunal.
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Judge J Chaney