Hancock and Western Australian Planning Commission
[2010] WASAT 145
•4 OCTOBER 2010
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: HANCOCK and WESTERN AUSTRALIAN PLANNING COMMISSION [2010] WASAT 145
MEMBER: MR J JORDAN (MEMBER)
HEARD: 28 JUNE 2010
DELIVERED : 4 OCTOBER 2010
FILE NO/S: DR 116 of 2010
BETWEEN: MALCOLM ERNEST HANCOCK
TANYA NICOLE HANCOCK
ApplicantsAND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Town planning Subdivision Refusal General farming zoning 15.1 hectare lot Land bisected by a creek General policy presumption against subdivision of rural zoned land Exception to policy where land divided by 'significant physical division' Horse breeding and agistment use of the land Effect of creek on land use Resultant lot sizes Subdivision pattern in locality
Legislation:
Planning and Development Act 2005 (WA), s 251(1)
Shire of Dardanup Town Planning Scheme No 3, cl 2.2, cl 3.13.1, cl 3.13.1(a)
Result:
The application for review is dismissed
The decision of the Western Australian Planning Commission to refuse the application for subdivision made on 16 March 2010 is affirmed
Category: B
Representation:
Counsel:
Applicants: Self-represented
Respondent: Mr M Cuthbert (Representative)
Solicitors:
Applicants: Self-represented
Respondent: Western Australian Planning Commission
Case(s) referred to in decision(s):
Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 (2002) 121 LGERA 101
Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
This matter involved an application for review of the refusal by the Western Australian Planning Commission of an application to subdivide a rural zoned lot along the line of a perennial creek across the land to create a 9.7 hectare lot with house and horse yards, and a 5.4 hectare remainder. The applicant said the creek formed a significant physical barrier sufficient to support subdivision and the subdivision would result in more productive use of the land.
The Tribunal found that the subdivision would create agriculturally unsustainable lots in conflict with zoning objectives and would be contrary to the general policy presumption against subdivision of rural zoned land. The Tribunal did find that the creek running through the land made inconvenient management of the site as a whole, but the difficulty in management was not sufficient to overcome the inconsistency of the proposed lots with the planning objectives of maintaining agricultural use and character in this rural zone. The Tribunal decided to dismiss the application.
Introduction
These proceedings involve an application by Mr ME Hancock and Mrs TN Hancock (applicants) pursuant to s 251(1) of the Planning and Development Act 2005 (WA) (PD Act) for review of the decision by the Western Australian Planning Commission (respondent or Commission), to refuse an application for approval to subdivide into two lots Lot 14, Rose Road, Burekup (site).
Site and locality
The site has an area of 15.117 hectares and is rectangular in shape, oriented southwest to northeast. The shorter boundaries are the northeastern boundary of 291.87 metres and the southwestern boundary of 248.95 metres. The longer boundaries are the southeastern boundary of 588.22 metres and the northwestern boundary of 592.24 metres. Henty Brook is a perennial creek with an incised course that runs across the site from southeast to northwest, dividing the site into a onethird portion to the northeast and twothirds portion to the southwest. The site slopes gently down from the southwestern boundary until it reaches a flat area about 40 metres wide along Henty Brook. The site has a flat area adjacent to the north-eastern boundary with a sharp slope down a flat area about 70 metres side on the northeastern side of Henty Brook. The wide flat areas each side of the creek have the appearance of being poorly drained and subject to inundation if the stream were to overflow.
On the larger, southwestern portion of the site on the elevated area are a house and sheds and paddocks used for the breeding and agistment of horses. The northeastern third of the site is pasture with the only improvement a disused brick silo.
Rose Road road reserve runs along the southwestern and the northwestern boundaries of the site. The road is constructed to a gravel standard along the southwestern boundary and for about 100 metres of the northwestern boundary to the gate providing access to the house. Rose Road then becomes a track till near Henty Brook. Across Henty Brook is the remains of a timber pile and deck bridge which is impassable to vehicles and appears unsafe for pedestrians. The evidence of Mr Hancock was that the bridge was closed in about 1969.
To the northeast of the bridge, Rose Road becomes a minor gravel road which extends further to Orchard Road and the local road system. The only road access between the applicants' house and the north eastern portion of the site is via Rose Road, South Western Highway, Orchard Road and then the minor section of Rose Road. This is a distance of 3 kilometres.
The site abuts a further rural lot to the southeast of about the same area and which also is divided at its northeastern end by Henty Brook. That lot has vehicle access to Rose Road and also frontage along its southeastern boundary to South Western Highway. Surrounding the site on the same side of South Western Highway are rural lots of varying sizes. To the southeast across South Western Highway are the South Western Railway and then the Burekup town site, around which are lots similar in size to those on the northwestern side of the Highway. The Tribunal had no evidence that the site, and surrounding lots, if used for an agricultural purpose were used for other than pasture and grazing.
Prior to the hearing, the Tribunal, accompanied by Mr Hancock and representatives of the respondent, visited the site and locality.
Planning framework
The site is zoned 'General Farming' under the Shire of Dardanup Town Planning Scheme No 3 (TPS 3) and 'Rural' under the Greater Bunbury Region Scheme. The objectives for the General Farming zone at cl 2.2 of TPS 3 and the matters to have regard to when considering subdivision in a nonurban zone at cl 3.13.1 are addressed below in the discussion of the issues.
In 2009, the Shire of Dardanup (Shire) adopted its 'Dardanup Rural Strategy' (Rural Strategy). The Rural Strategy makes reference to lot sizes required for productive land in rural zones.
In March 2010, the Shire's Burekup Townsite Expansion Strategy was approved. The respondent said that the subject land was not identified in that strategy for closer settlement.
The respondent made reference to State Planning Policy 2.5 'Agricultural and Rural Land Use Planning' (SPP 2.5). A 'key objective' of SPP 2.5 at cl 4.1(b) is 'minimising the ad hoc fragmentation of rural land'. Clause 5.3.1(iii) of SPP 2.5 states:
The Commission will only support subdivision for Rural-Residential and Rural Smallholdings where the land has been appropriately zoned within the town planning scheme and the provisions of Policy No. DC 3.4 (2001) Clause 6 can be complied with.
The respondent's Development Control Policy 3.4 (Subdivision of Rural Land) (DC 3.4) was reissued in February 2008. The now relevant clause is cl 3.1 of DC 3.4 which states:
… the subdivision of rural and agricultural land for closer settlement (ruralresidential and ruralsmallholdings) and more intensive agricultural uses should be properly planned through the preparation of regional and local planning strategies and provided for in local planning schemes prior to subdivision.
Clause 4.3 of DC 3.4 is significant in the consideration of this matter. It concerns subdivision and 'Significant physical division' and is the subject of discussion below under issue 4.
The respondent also made reference to the 'South West Rural Subdivision Guidelines' (SWRSG). The respondent adopted the SWRSG to provide further guidance where it considered there was insufficient criteria in local planning schemes or local planning strategies, particularly in relation to minimum lot sizes, soil and water requirements to ensure that proposed rural lots were 'agriculturally sustainable'. In reference to subdivision, the SWRSG states:
It is WAPC policy that, in the absence of the planned provision for closer settlement and more intensive agricultural uses, existing large rural lots be retained for broad acre and traditional forms of farming and that the fragmentation of rural land and loss of rural character through piecemeal, unplanned subdivision not be permitted.
The SWRSG also makes reference to lot sizes preferred for productive rural agriculture, which is the subject of discussion in the issues below.
Proposed subdivision
Mr Hancock said they purchased the site about five years ago. He then developed his horse breeding use. He did not know at that time the difficulties the creek would cause in managing and maintaining the north-eastern part of the land as part of this use.
The application sketch shows the subdivision of the site into two lots generally along the alignment of Henty Brook. Proposed Lot 100 would be 5.376 hectares at the northeastern end of the site and would include most of Henty Brook. Proposed Lot 101 would be 9.74 hectares at the southwestern end of the site. Proposed Lot 101 would include the house, sheds and fenced paddocks. About 40 metres from Rose Road, Henty Brook deviates southwest to cross the boundary then flow under the old bridge. At the same point the proposed boundary deviates northwest. This would result in a triangular area of about 800 square metres separated from the remainder of proposed Lot 101 by the creek. Mr Nicholson said the boundary alignment was chosen to have some creek available to both lots. He would amend the boundary if required to include the creek on the smaller lot because there was good bore water available on the proposed larger lot.
The refusal
The Commission refused the application because it considered that the subdivision would create two agriculturally unsustainable lots in conflict with the objectives of the General Farming zone under TPS 3. The subdivision would also be in conflict with the Rural Strategy and the SWRSG because of the lots sizes proposed.
Further reasons for refusal referred to the proposed subdivision not being in compliance with SPP 2.5 and DC 3.4, which seek to prevent the ad hoc fragmentation of rural land, and Henty Brook not constituting a 'significant physical division' as required for subdivision under DC 3.4. The Commission's refusal said subdivision would create an undesirable precedent 'for further subdivision of other lots with similar circumstances to this proposal in the "Intensive Farming" and "General Farming" zones of this locality'.
Issues
Identified as issues to be determined in this matter were:
1)whether the proposed subdivision complies with TPS 3;
2)whether the proposed subdivision complies with the Rural Strategy and the SWRSG;
3)whether the proposed subdivision is consistent with the objectives of preservation of agricultural land for rural production and avoidance of ad hoc fragmentation of rural land found in SPP 2.5 and DC 3.4 and the SWRSG;
4)whether the creek line that runs through the site meets the 'significant physical division' requirement of DC 3.4;
5)whether the proposed lots would be in keeping with the character and size of lots which prevail in the locality; and
6)whether the proposed subdivision would set an undesirable precent for further subdivision of surrounding rural lots inconsistent with current zoning.
Discussion
Issue 1: whether the proposed subdivision complies with TPS 3
The objectives for the General Farming zone at cl 2.2 of TPS 3 include:
•To provide for a wide variety of productive farming activities, ranging from broad acre grazing to horticulture, which are compatible with the capability of the land and retain the rural character and amenity of the locality.
•To protect areas of significant agricultural value, particularly those in irrigation districts, from conflicting land uses.
•To facilitate lowkey tourist development where it is incidental to the use of the land for farming purposes and where land use conflict can be minimised.
Also relevant is cl 3.13.1 of TPS 3 which states:
In considering applications for planning consent to commence development, subdivision and rezoning of land in a Non Urban Zone the Council shall have regard to:
(a)the need to protect the economic viability of the rural land use generally;
(b)the need to preserve the rural character and a rural appearance of the area;
(c)the need to ensure that the existing standard of roads, water and electricity supply and other services is sufficient for the additional demands that the proposed development would create; and
(d)the need to ensure that in general all buildings are at least 20 metres from any lot boundary adjoining a street and the Council may require an additional setback in order to preserve the rural character of the area.
Mr Hancock's evidence was that the site had a capacity of about one horse or head of cattle per hectare. He had been able to achieve a higher capacity than this, about 17 horses, on the 60% of the site southwest of the creek because he hand fed his horses.
Mr Hancock said that, because of the difficulty in properly supervising and managing animals, he could not make full productive use of the 30% of the site to the northeast of the creek. Mr Hancock was of the opinion that subdivision would introduce a new owner and instead of being under utilised as present because of access and management problems, the 30% of the site that would become Lot 100 would have increased productivity.
Mr Andrew Blee, a town planner who appeared as a witness for the respondent, was of the opinion that subdivision would reduce the agricultural capacity of the site. This was because the larger portion of the site would no longer be able to make use of the pasture of the 5.7 hectare portion and so its productivity would be reduced. He expressed the opinion that proposed Lot 100 would have a productive capacity of less than 5 hectares because of the creek and its fringing vegetation, which had to be protected, and the space required for a new house, shed and accessway. It was the respondent's submission that subdivision would not protect economic viability and therefore would be inconsistent with the objective of maintaining the primacy of agriculture for the General Farming zone under TPS 3.
Mr Blee also expressed the view that proposed Lot 100, with limited capacity for agricultural production, would attract purchasers seeking a 'lifestyle' rather than a productive farm. This, he said, would give rise to the potential for land use conflicts, in conflict with the objectives for the zone under TPS 3.
The Tribunal only had evidence that the site was suitable for grazing and pasture. The Tribunal has formed the view proposed Lot 100 would have reduced productive capacity for grazing following subdivision because of the development and land use controls that are likely to result. The Tribunal appreciates that the applicants are able to only make limited use of land on the northeast side of the creek, but considers that the capacity for agricultural use of the land northeast of the creek is unlikely to be increased following subdivision and also might be less, given the investment otherwise likely to be required to overcome the limited carrying capacity.
As a comment, the Tribunal would add that it is not unusual for agricultural holdings to have areas of lesser productive capacity than the main part of the holding. This is not of itself a basis for subdivision as areas of apparently with lesser productive capacity are often more useful when part of a larger holding than as a separate smaller lot.
The Tribunal has formed the view that the proposed subdivision is not likely to be consistent with the objectives for the General Farming zone at cl 2.2 of TPS 3 having regard to the matters required to be considered at cl 3.13.1.
TPS 3 does not include reference to lot sizes. The Rural Strategy and the SWRSG do include reference to minimum lot sizes and they are the subject of the next issue to be addressed.
Issue 2: whether the proposed subdivision complies with the Rural Strategy and the SWRSG
The discussion in respect to this issue was about the size of the proposed lots, which would be 5.376 hectares and 9.7406 hectares respectively. The respondent's refusal was based on the proposed lots not achieving the lot sizes referred to in the Rural Strategy and the SWRSG.
Under cl 3.4.1 under the heading 'General Farming', the Rural Strategy states:
Council has adopted a minimum lot size of 40 ha for rural subdivision based on general farming pursuits. It is believed that lots of this size are still likely to be used for agricultural purposes and have a realistic capacity to contribute to agricultural production in the Shire. Subdivision into lots below this size will not be supported as the resulting lot sizes tend to encourage non productive land uses and are less likely to contribute to the agricultural productivity of the Shire.
The Rural Strategy states at cl 3.4.2 that for areas that can be identified as 'suitable for the activities of horticulture and viticulture' a minimum lot area of 20 hectares for horticulture and 30 hectares for viticulture would be supported.
Under the SWRSG, subdivision of rural zoned land into lots less than 80 hectares will not be supported by the respondent, except where the lot is a minimum of 40 hectares and there has been provided appropriate reports from an agronomist and a hydrologist to demonstrate that there is available for agricultural production a minimum of 30 hectares of high capability land with water available.
Mr Hancock pointed out that between the South Western Highway and Rose Road, and on nearby Orchard Road, no property is larger than 15 hectares. He said that many lots were between 5 hectares and 8 hectares, and were put to productive agricultural use. In respect of this issue Mr Hancock restated his view that a new owner would put the 30% of the site to the northeast of the creek to more productive use than he is able to because the creek would cause the new owner no access and management difficulties.
The Tribunal has noted the lot size pattern in the locality and, although the actual use of other lots was not the subject of evidence, accepts that there might be circumstances where lots smaller than those stipulated in the Rural Strategy and SWRSG could be put to productive agricultural use. The Tribunal also did not have evidence that the proposed 5.4 hectare lot might be any more productive as a separate lot than it would be if remaining part of the site. There was no submission that the lot would be capable of any intense form of agriculture. The Tribunal does not consider it would be proper planning to allow a subdivision simply on lot size alone when in the general farming zone a proper consideration is the productive use to which a proposed lot might be put.
As Mr Blee pointed out, any new owner would have to develop infrastructure for living and agricultural production purposes which, together with the topography, would limit the capacity of the site for the traditional form of agriculture in the locality. To create a new lot of the size proposed in the absence of evidence of the resultant productive capacity would be in conflict with both the Rural Strategy and the SWRSG.
Issue 3: whether the proposed subdivision is consistent with the objectives of preservation of agricultural land for rural production and avoidance of ad hoc fragmentation of rural land found in SPP 2.5, DC 3.4 and the SWRSG
A 'key objective' of SPP 2.5 at cl 4.1(b) is 'minimising the ad hoc fragmentation of rural land'. As set out above, each of SPP 2.5, DC 3.4 and the SWRSG provide that subdivision of rural and agricultural land into smaller lots, whether for rural residential or rural small holding purposes should only occur if there has been prepared an appropriate rural planning strategy and provisions included in the town planning scheme.
Mr Blee pointed out that the site was not within an area identified for closer settlement and more intensive agriculture either under TPS 3 or the Rural Strategy and his was that the subdivision would be ad hoc.
As discussed under issues 1 and 2 above, the applicants acknowledged that the site was not identified in a strategy or within TPS 3 for subdivision into small holdings for intensive agricultural use. Mr Hancock submitted, however, that there are at least 16 lots in the general farming zone in the locality which were of a size similar to the site and the proposed lots. He did not consider that the subdivision would be ad hoc. The proposed lots and the neighbouring lots would continue to be used for the current productive agricultural purposes.
The Tribunal is of the view that this would be an ad hoc subdivision. That is, it is proposed simply for the creation of the two lots the applicants are seeking, not to fulfil the planning objectives of a local strategy or town planning scheme requirement. As concluded under the discussion on issue 1 above, the Tribunal is also of the view that the smaller lot created has the potential to be in conflict with the scheme and policy objectives of retaining rural zoned land for agricultural production.
The subdivision being ad hoc is not of itself necessarily fatal to a subdivision proposal, but is of concern to the Tribunal when the resultant lot sizes would be in conflict with the zoning objectives.
Issue 4: whether the creek line that runs through the site meets the 'significant physical division' requirement of DC 3.4
DC 3.4 under cl 4 states:
The WAPC will exercise its judgement and discretion in applying criteria 4.2-4.9 when assessing the merits of an application for the subdivision of rural and agricultural land.
...
4.3Significant physical division
The existing physical division of a lot by a significant natural or constructed feature may be formalised through subdivision. A significant physical division generally does not include rural roads or creeks that are commonly crossed for farm management purposes.
Mr Hancock said that Henty Brook flowed all year round and is prone to flooding in the winter months and so was a major physical division of the site. There was no vehicular access over the creek and because the Shire had allowed the bridge on Rose Road to fall into disrepair, the only access to the part of the site on the northeastern side of the creek was the 3 kilometre drive via the South Western Highway. Mr Hancock said that because he was not able to cross Henty Brook for farm management purposes and to easily supervise the animals, the northeastern side of the creek could only be used for grazing well below the capacity of the land. In summer, if a bush fire threatened, he would have great difficulty gaining access to them.
The respondent's submissions were that there was no evidence to suggest the creek flooded and the dampness in the flood plain of the creek could be due to runoff from land higher on the site. The respondent noted that the Department of Minerals and Petroleum had informed the respondent in March 2010 that the site 'lies partly within the flood plain of Henty Brook and as such may be prone to flooding'. The respondent's response was that the appropriate body to comment on the flooding was the Department of Water which in an email to the respondent in March 2010, did not mention flooding but did mention a crossing. The Department of Water said:
The matter of access to the proposed Lot 100 is unclear, however, should it result in the need for a crossover on Henry [sic] Brook a permit will be required from the DoW.
Mr Blee said he had no knowledge of the creek ever flooding and considered there to be at least two points where the creek was easily crossed. Mr Blee's suggestion was that the applicants consider a bridge or culverts to assist in gaining access across the creek. Mr Hancock put to Mr Blee that the cost of the bridge or culverts would not be economically viable because it would take many years of returns to pay for the possible cost of $100,000. Mr Blee said he would be happy to acknowledge they would not be economically viable if this was demonstrated to him. In any event, he considered the road access available to be reasonable and that he had seen animals on the site crossing the creek.
The Tribunal noted at the viewing of the site in June 2010 that the creek was generally about 2 to 3 metres wide and slightly wider in some locations. Except for the one location toward the northeastern boundary, the creek could be described as incised with banks too steep to be readily crossed by animals or vehicles. At one point identified by Mr Blee as a crossing point, animals appear to have gone down, and then up, banks about a metre high. The banks at a crossing point toward the northeastern boundary had a much gentler slopes and the flowing water was shallow.
The Tribunal noted at the viewing of the site that the flat areas extending back from the banks of the creek, which were about 70 metres wide on proposed Lot 100 and up to about 40 metres wide on proposed Lot 101, had the characteristics of land that was damp, at least in winter, and difficult to traverse in a vehicle. These expanses had the appearance of floodplain associated with the creek.
The Tribunal has formed the view that the creek does form a barrier for most of its length. There is, however, a location that would provide a crossing for animals and certain forms of all-terrain vehicles for all but the times when the creek was in flood. The Tribunal accepts that the construction of a bridge or culverts, even though suggested by the Department of Water, would be a significant engineering exercise if the crossing was to be usable for most of the year and not to impede the flow of the creek.
DC 3.4 provides that when assessing the merits of a rural subdivision there be an exercise of discretion and judgement when applying cl .3. The Tribunal considers that in exercising this discretion it is necessary to have regard to the objectives of the general farming zone under TPS 3 and the relevant planning policies and strategies.
The Tribunal has formed the view that the creek makes management of the site inconvenient, even difficult at times, but it does offer some access for much of the year for the agricultural purpose for which the site is suited, that is, grazing. The extent to which the creek is a barrier is also not the only planning consideration. Regard must also be had to the other planning objectives and controls. The Tribunal has concluded that the creek is not therefore a sufficient barrier under cl 4.3 of DC 3.4 to set aside the planning considerations and allow subdivision.
The conclusion in this regard might be different if proposed Lot 100 was developed for or demonstrated as being capable for use for intensive agriculture and it was necessary to cross the creek several times a day in vehicles associated with that use.
Issue 5: whether the proposed lots would be in keeping with the character and size of lots which prevail in the locality
The applicants produced a map on which had been coloured 20 general farming zoned lots of between 15 hectares and 5 hectares in the vicinity of the site. About five of the lots were similar in size to the proposed 5.7 hectare lot.
Mr Blee concentrated on the six lots between of 12.3 hectares and 59 hectares adjacent to the site pointing out that the two proposed lots would not be consistent with the size of these abutting lots. Mr Blee also referred to seven lots, one adjoining the site to the southeast and six on the other side of South Western Highway which were all divided by Henty Brook.
The Tribunal notes that there is a range of lot sizes in the locality with some similar in size to the proposed 5.7 hectare lot and some larger. If this were the only consideration there might be some support for the subdivision. There are, however, other lots divided by Henty Brook and, as stated above the planning objectives of the general farming zone under TPS 3. The concern therefore arises as to whether the proposed subdivision, if approved, would be cited by other land owners as a precedent for them to follow and whether this would be a desirable precedent.
Issue 6: whether the proposed subdivision would set an undesirable precedent for further subdivision of surrounding rural lots inconsistent with current zoning
Mr Hancock said the proposed subdivision would not set an undesirable precedent because his circumstances included a combination of unique factors. These were that the creek created a significant barrier across his land, it was necessary to travel some 3 kilometres via South Western Highway to gain vehicular access to the northeastern portion of his land because the Shire no longer maintained the bridge across Henty Brook adjacent to the site, the proposed lot sizes would be consistent with the lot size pattern in the locality and the proposed lots would be useful for agricultural purposes.
The respondent referred to the seven other lots divided by Henty Brook and said that the circumstances of those lots were no different from those of the applicants' lot. The creek was not considered by the respondent to be a sufficient barrier and therefore approval for the subdivision would establish a precedent that others would seek to follow. The respondent considered that the resultant lot sizes would be too small to be viable agricultural holdings and were likely to be used for rural residential purposes. This would be contrary to the objectives of the zoning of the land.
The Tribunal has formed the view that approval of the proposed subdivision would set an undesirable precedent. In Nicholls and Western Australian Planning Commission [2005] WASAT 40 at [71] - [75]; (2005) 149 LGERA 117 at [71] - [75], the Tribunal adopted the following criteria, from Goldin & Anor v Minister for TransportAdministering the Ports Corporatisation and Waterways Management Act 1995 (2002) 121 LGERA 101, as the circumstances in which precedent is a relevant consideration in a planning assessment. These are:
(1)That the proposed development or subdivision is not in itself unobjectionable; and
(2)That there is more than a mere chance or possibility that there may be later undistinguishable applications.
In respect to the first question, the Tribunal has formed the view that the proposed subdivision would not be unobjectionable. To put it another way, the proposed subdivision would be objectionable. This is because, notwithstanding that there are other lots in the locality of about 5.7 hectares, there was not sufficient evidence that a 5.7 hectare lot created today would be of sufficient area to be a basis for a reasonably sustainable agricultural holding. The Tribunal accepts that most lots in the locality are of a size that is unlikely ever to be the basis for a sole income. Proposed Lot 100, however, because of the topography and grazing being the only apparent agricultural use to which it could be put, is considered, without further evidence, to be unsustainable as a rural holding on its own. Creation of a lot of this character is considered by the Tribunal to be objectionable because the location has not been identified for further subdivision into rural residential lots in TPS 3, the Rural Strategy or the Burekup Townsite Expansion Strategy.
This then leads to the second question. From examination of the plans of the locality it is clear that there are some seven other lots also divided by Henty Brook. It is not considered that the circumstances of the site are so unique that it may be distinguished from any subsequent applications to subdivide those other lots. The applicants may have a longer distance to travel by road to the smaller portion of the site at certain times of the year, but there are five other lots where owners also have to travel by road to get to a severed portion. While the management of the severed portion of the site may be difficult, it is not considered to be so difficult as to cause to be set aside the other planning concerns arising from the proposed subdivision. The Tribunal is of the view that the planning objective of maintaining the productivity of the land would be better served by the site remaining as one single property.
Establishing a new lot size in the locality on the basis of the presence of Henty Brook would not be consistent with the planning objectives of the zone and therefore the precedent set would be undesirable.
Conclusion
On the basis of the findings under each issue, the Tribunal has formed the view that the creek does make inconvenient the management of the site as a whole, but the site can still be managed. The difficulty in management is not considered to be sufficient to overcome the planning consequences that would arise from setting an undesirable precedent for the subdivision of lots in the locality. The lot sizes proposed for the site are considered by the Tribunal to be inconsistent with the planning objectives for maintaining rural use and character in this locality.
The Tribunal has decided therefore to dismiss the application.
Orders
1.The application for review is dismissed.
2.The decision of the Western Australian Planning Commission to refuse the application for subdivision made on 16 March 2010 is affirmed.
I certify that this and the preceding [65] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J JORDAN, MEMBER
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