Goedhart & Anor and Western Australian Planning Commission - [2006] WASAT 237

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: GOEDHART & ANOR and WESTERN AUSTRALIAN PLANNING COMMISSION [2006] WASAT 237

MEMBER: MR J JORDAN (MEMBER)

HEARD: 19 MAY 2006

DELIVERED : 17 AUGUST 2006

FILE NO/S: DR 35 of 2006

BETWEEN: TOBIAS GOEDHART
AGNES GOEDHART
Applicants
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Subdivision refusal Rural zoned land Presumption against rural subdivision in policies Application of policy Lot sizes Use made of lots Hardship not a consideration

Legislation:

Planning and Development Act 2005 (WA), s 241(3)

Shire of Kulin Town Planning Scheme No 2, cl 3.2.7, Sch 2

Result:

The application for review be allowed
Approval be granted to subdivide Lot 11 into two lots of 192 hectares and 202 hectares, respectively, as proposed

Category: B

Representation:

Counsel:

Applicants: Self-represented
Respondent: Mr J Algeri (Acting as Agent)

Solicitors:

Applicants: Self-represented
Respondent: Western Australian Planning Commission

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

Nil

Case(s) also cited:

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Mr Tobias and Mrs Agnes Goedhart applied to subdivide their Lot 11 into a 190 hectare lot and a 202 hectare lot. Lot 11 is on the Kulin‑Dudinin Road, 29 kilometres southwest of Kulin, in the wheat belt.
The Western Australian Planning Commission refused the application because it considered the subdivision to be an unplanned breakdown of rural zoned land. It was considered that Mr and Mrs Goedhart had not demonstrated the capability of the land to sustain more intensive land uses.
The Tribunal determined that the two lots proposed would not prevent the use of the land for rural purposes and that subdivision, although not part of a particular strategy, could be supported in this instance.

Introduction

Lot 11 (subject land) is situated on the south side of the Kulin‑Dudinin Road, 29 kilometres southwest of Kulin and 6.7 kilometres northeast of Dudinin. The subject land has an area of 392.0756 hectares and can be described as roughly triangular in shape.
Mr T and Mrs A Goedhart (applicants) applied to subdivide the subject land into a rectangular 190 hectare western lot and a triangular 202 hectare eastern lot. The western lot would have a 600 metre frontage to the road. Kulin‑Dudinin Road and the eastern lot would have frontage to the Kulin‑Dudinin Road via a 550 metre long, 30 metre wide access leg. Each of the proposed lots would have on it an existing house.

Refusal

The Western Australian Planning Commission (respondent) refused the application because it considered the subdivision to be contrary to its policy DC 3.4 "Subdivision of Rural Land" (DC 3.4) which has a general presumption against the subdivision of rural land unless specifically provided for in an endorsed town planning scheme, an adopted local planning strategy or local rural strategy. The respondent was further concerned at the lack of evidence to demonstrate that the land was capable of subdivision and associated development in the manner proposed, as required by DC 3.4.
In addition, the respondent said that the proposed subdivision would result in an unplanned breakdown of land holdings and set an undesirable precedent for further subdivision of surrounding rural lots.

The issues

The main issues identified in this matter were:
i)whether the application should be granted, having regard to the planning situation in the district; and
ii)would the resultant lots discourage or prevent agricultural uses from locating on agricultural land?

Issue (i) - Unplanned subdivision

Mr Malcolm Logan, a planner who appeared as a witness for the respondent, referred to cl 5.3.1(iii) of State Planning Policy 2.5 – Agriculture and Rural Land Use Planning (SPP 2.5) and cl 3.1 of DC 3.4 both of which contain a general presumption against subdivision of rural land unless specifically provided for in a town planning scheme, an endorsed local planning strategy or an endorsed local rural strategy. He said that even if it were properly demonstrated that there was a planning need to provide a rural‑residential or rural small holding zone in the locality, due process should be followed before making changes to the operative scheme. There was nothing to indicate that the subject land had the necessary land capability or that it would be the preferable location for such a zone.
The applicants, who were self‑represented, said the Shire of Kulin (Shire) was preparing a strategy and its support for their proposal should assist the proposed creation of these lots in the absence of a local rural strategy. The applicants put into evidence a letter from the Chief Executive Officer of the Shire, dated 25 February 2006, setting out the Shire's position and its support for the proposed subdivision.
Mr Logan said in response that, notwithstanding the steps taken by the Shire, the subject land was still zoned rural in the Shire of Kulin Town Planning Scheme No 2 (TPS 2). The proposed subdivision would be inconsistent with the objective of minimising the ad hoc fragmentation of rural land, as set out in objective (b) of cl 2.1 of DC 3.4 and cl 4(1)(b) of SPP 2.5, in a locality where broad acre agricultural activities predominate.
The applicants suggested that there were significant natural and man‑made features physically dividing the subject land, but Mr Logan, accurately, identified that the subdivision proposal did not reveal any feature of sufficient significance to support subdivision. Mr Logan argued that the proposed subdivision did not comply with any of the exemptions against the presumption against rural subdivision available in cl 3.2.1 of DC 3.4.
The applicants referred to the respondent's approval of the subdivision of the lot to the west into lots of a similar size to those they propose and pointed out that their proposed lots would be consistent with the prevailing lot sizes in the locality. Therefore, it was argued, their proposal was not ad hoc subdivision and so was consistent with the policy intent of SPP 2.5 and DC 3.4. They again referred to the support for lots of the size proposed by the Shire.
Mr Logan argued that the presence of lots in the locality of similar size to those proposed, did not constitute a reason for approval of the subdivision. These lots, it was said, were created a long time ago before the introduction of SPP 2.5, DC 3.4 and TPS 2. The comment was also made that it appeared that many of the existing lots may not be capable of supporting viable or sustainable agriculture enterprises in their own right and therefore serve as an example of why the proposed subdivision should not be approved. Amalgamation of existing lots would be more consistent with the intent of the rural zone in TPS 2. In Mr Logan's opinion, if the proposed subdivision were approved, it would be difficult to sustain any refusal of similar subdivision proposals and this would be an undesirable precedent for the uncontrolled subdivision of larger lots in the locality.
The applicants argued that because the lots created would be consistent with the lot size/pattern, approval would not create a precedent. If there were other lots of similar characteristics and area they would have potential for the same rural uses that they had carried out on the subject land for the past ten years. This would be, in their opinion, orderly and proper planning for the locality.
The applicants emphasised cl 4.3.1 of policy DC 3.4, which is entitled "Subdivision for Homestead Lots" and relevantly provides:
"Homestead lots can be considered in rural areas where:
(a)there has been a declining population over two intercensal periods;
(b)the local planning strategy – settlement strategy and the town planning scheme provide guidance on acceptable minimum lot sizes and servicing requirements; and
(c)the creation of homestead lots will not generate any additional needs for the provision of government and community services."
The applicants provided evidence of the declining population in the district and again referred to the Shire's steps to prepare a planning strategy. They pointed out that cl 4.3.1 does not specify any minimum lot size and as both houses on the land are already serviced by power and road frontage and had water, no additional services were required to be provided by the community.
In response the respondent said that while the population may have declined, TPS 2 does not provide any necessary guidance on subdivision and servicing and so the clause does not support the proposed subdivision.

Issue (ii) - future use of the proposed lots

Mr Logan pointed out that the rural zone column in the zoning table at Sch 2 of TPS 2 did not include the rural lifestyle or homestead uses referred to by the applicants. In this respect the proposal would be inconsistent with objective (e) in cl 3.2.7 of TPS 2 which refers to providing non rural uses only in accord with the provisions of TPS 2.
Mr Logan referred to the objectives set out in cl 4(1) of SPP 2.5, noting how they were mirrored in policy objectives of cl 2.1 of DC 3.4 and objectives (b) and (d) of cl 3.2.7 of TPS 2, which are directed to discouraging land uses unrelated to agriculture locating on agricultural land. Mr Logan argued that the use of the proposed lots for rural lifestyle or rural homestead purposes was in conflict with these objectives as future use of the land for uses compatible with the rural zoning would be discouraged.
The applicants disagreed with the respondent's submissions and argued that the proposed subdivision would be consistent with the objectives in cl 3.2.7 of TPS 2 and the policies. In their opinion, new owners would be able to take advantage of both the agriculture and conservation value of the proposed lots. Their own use of the subject land over the past 10 years had demonstrated that the property can be effectively used in a sustainable manner. As the land was not first grade agricultural land, they said they could not agree with the respondent's assertions that the proposed subdivision would be inconsistent with the objectives of ensuring that valuable agricultural land is not lost through subdivision. They admitted, however, prospective buyers had indicated they would want the lots for lifestyle purposes and referred to the Shire's support for the subdivision, which was based on a recognition that this type of lot was necessary for people seeking a rural lifestyle in the district.
It was the respondent's submission that if the subdivision were granted, it would result in the creation of lots that are considerably larger than would normally be created to cater for lifestyle or rural homestead purposes. This was considered not to be a particularly efficient and economic use of the land and would be likely to result in pressure for future subdivision into yet smaller lots in conflict with the rural zoning of TPS 2.
The respondent commented on the applicant's reliance on cl 6.1.1 of DC 3.4, which lists additional information on use which might be provided to help support subdivision of rural land. The respondent submitted that the information provided by the applicants did not adequately demonstrate that the proposed lots have the necessary land capability or would be of sufficient size to support long‑term environmentally and economically sustainable agricultural enterprises.
The applicants pointed out that the existing lot size, the topography and soils did not support the use of the machinery common with broad acre agriculture. They had used the land consistent with the soils and topography and having two lots did not mean that this would not continue. They ran a small flock of sheep, had cropped cereals as sheep fodder in the past and grew tagasaste as a fodder crop and to stabilise soils. The applicants provided a hand drawn sketch to illustrate patches of retained native vegetation, planting to tagasaste, different soil types and contour banks.
The applicants rejected the respondent's submissions on viability and sustainability saying that no person or instrumentality could guarantee land would continue to be used in such a way as to ensure these outcomes. It depends, in their view, upon the skills of the owners and the activities undertaken. Even broad acre farms in the district had gone bankrupt because of poor practices. They referred to the suggestion made by the Development Officer (Farming Systems) of the Department of Agriculture, Narrogin, in a letter of 10 March 2006, that lots of the sizes proposed might be successfully used for semi‑intensive agriculture such as semi‑intensive feed lots, free range pigs or vines. This would depend upon the skills of any future owner and considerable capital inputs.
The applicants said they had successfully planted Acacia acuminata and Santalum spicatum and believe that other bush foods would have potential. Pinus pinasta they believed would also grow and could be used in conjunction with grazing. These rural uses, however, would be the choice of the owner and so it was difficult to provide advice on what future owners might do. The lots were, however, in their experience, of sufficient size to be sustainable for agriculture of the types suggested.
Mr Logan said that there had not been provided any expert evidence that bush foods production and Pinus pinasta were sustainable agricultural activities when combined with grazing. He also mentioned particularly that there was no evidence these activities could be conducted in an environmentally and economically sustainable manner. As to the comments from the officer of the Department of Agriculture, Mr Logan said the applicants had not provided any detailed information to substantiate that the proposed lots were suitable for the purposes suggested.
It was Mr Logan's submission that, while the existing holding might not be suitable for broad acre farming and might be capable of sustaining an economically viable agriculture enterprise, this, of itself, was not a reason for further subdivision, rather that the subject land could itself be used for these purposes in its present configuration.
Mr Logan also referred to cl 6.1.1(h) of DC 3.4 which refers to considerations of rural character and amenity and rural management practices in the zone. He said that the lifestyle and homestead lots suggested by the applicants would likely, over time, contrast with the present rural character and amenity and there was nothing to suggest that any approval would enhance rural management practices within the zone. In his view, fragmentation may in fact hinder management practices in the area which seem to favour amalgamation and/or combined use of individual lots.

Additional issue raised

It was the applicants' submission that the refusal was creating hardship for them. Their age and health meant they were unable to maintain the property which required fit and energetic younger owners. They were reliant on pensions and subdivision and sale would provide them with the opportunity to realise on their asset and move to a location closer to the health facilities they now require. Local demand was only for lots of the size proposed.
Section 241(3) of the Planning and Development Act 2005 (WA) provides that the Tribunal may have regard to claims of hardship raised by an applicant and proven to the satisfaction of the Tribunal, if the Tribunal is of the opinion that such regard will not affect the application of sound planning principles.
The Tribunal appreciates the applicants' personal circumstances, but has formed the view that these are not of themselves sufficiently unique to establish a sound argument based on hardship. The Tribunal is of the view that this matter is one that it is necessary to determine on its planning merits.

Comment and conclusion

The use "homestead lots", while referred to in DC 3.4, is not defined and neither is "rural lifestyle" lots, as referred to by the applicants. The submission by Mr Logan that he envisaged a homestead lot to be for residential use in a rural setting, perhaps of the order of 2 hectare to 4 hectare, makes this use difficult to distinguish from rural small holdings and rural residential which are referred to separately in DC 3.4. The applicants considered the size of a homestead lot should be dependent on rainfall and soils.
The proposed lots in this instance are 190 hectare and 202 hectare. The Tribunal is of the view that the labels given to lots of this size by the parties, and the guesses they make as to how prospective purchasers might view the lots, does not detract from this simply being a subdivision to create two rural lots in a rural zone. As submitted by the applicants, they have put the existing lot to activities that can be characterised as rural but, while a future owner might have the opportunity to use the lots for rural purposes, it cannot be established just how the lots will be used in the future. To be considered is whether the creation of these two rural lots in this locality can be supported.
No expert in the actual or potential agricultural use of the subject land appeared at the hearing. The applicants, however, have lived on and worked the land as owners for ten years and as conditional purchasers for longer than that. The Tribunal found them to be creditable witnesses and has accepted that there was potential for at least some of the rural uses they discussed. In this regard, it was accepted that the subdivision would not prevent the lots being used for uses compatible with the rural zoning and would provide for a range of activities predominantly rural in nature (objectives 3.2.7 (b) and (a) respectively of TPS 2). The Tribunal is also of the view that lots of this size are unlikely to result in closer development that will have a discernible impact on the rural amenity of the locality. The proposal is therefore seen to be consistent with objective (c) of cl 2.3.7 directed to this end.
The Tribunal does accept that it is most unlikely that the proposed lots would be economically viable in their own right, but in this regard, it is apparent that very extensive holdings are required for viability in this district of the wheat belt. It is significant that the proposed lots are similar in size to majority of lots in the locality as it would appear that land owners make use of varying numbers of lots depending upon the soils, topography and the use they wish to undertake. The lots proposed would be consistent with that pattern.
The policies of the respondent are soundly based, well established and consistently applied. The policies include a general presumption against rural subdivision unless the land has been identified for subdivision in a town planning scheme or an adopted local planning strategy or local rural strategy. There are no such strategies in place in this instance and TPS 2 does not provide particular provisions against which to assess rural subdivision. TPS 2 does, however, have objectives for the use to be made of rural land. In this instance, the Tribunal has accepted that the lots created would be of a size to accommodate and have potential for rural use consistent with the objectives for use in the rural zone set out in TPS 2.
The Tribunal is satisfied that, having regard to the planning situation in the district, this particular subdivision can be supported and if created, the lots would not discourage the continued use of the land for agricultural purposes. The Tribunal notes that in the submission to the respondent from the reporting officer at the application stage (pages 1 to 3 of the "Section 24" bundle of documents), it is stated that the Shire supported the subdivision and requested no conditions and the Department of Environment, Western Power and Water Corporation had no objection and did not request any conditions. This is not considered unusual considering there are already two houses on the land, the comparatively remote rural location and the size of the lots proposed.

Orders

Having considered the matter, the Tribunal orders as follows:
1.The application for review be allowed.
2.Approval be granted to subdivide Lot 11 into two lots of 192 hectares and 202 hectares, respectively, as proposed.

I certify that this and the preceding [39] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J JORDAN, MEMBER