HESTER and WESTERN AUSTRALIAN PLANNING COMMISSION
[2009] WASAT 116
•5 JUNE 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: HESTER and WESTERN AUSTRALIAN PLANNING COMMISSION [2009] WASAT 116
MEMBER: MR M SPILLANE (MEMBER)
HEARD: 6 MARCH 2009
DELIVERED : 5 JUNE 2009
FILE NO/S: DR 383 of 2008
BETWEEN: KIMBERLEY McBRIDE HESTER
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Town planning - Subdivision of rural land - Formation of two lots and subdivision into three lots - Whether subdivision is consistent with planning framework - Fragmentation of rural land - Minimum lot size
Legislation:
Planning and Development Act 2005 (WA), s 25, s 138(2), s 241, s 251(1)
Shire of Busselton Town Planning Scheme No 20
State Administrative Tribunal Act 2004 (WA), s 24
Town Planning and Development Act 1928 (WA), s 5AA
Result:
The application is dismissed
Category: B
Representation:
Counsel:
Applicant: Mr S Bolhuis
Respondent: Mr M Cuthbert
Solicitors:
Applicant: Harley Survey Group
Respondent: Department for Planning and Infrastructure
Case(s) referred to in decision(s):
Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] 122 LGERA 433
Fewster and Western Australian Planning Commission [2007] WASAT 79
Ingram v Western Australian Planning Commission [2003] WASCA 77
Marshall v Town Planning Appeal Tribunal of Western Australia [2004] WASCA 2002
Mitchell and City of Subiaco [2008] WASAT 230
Re Romato; Ex Parte Mitchell James Holdings Pty Ltd [2001] WASCA 286
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Mr Hester applied to the Western Australian Planning Commission to amalgamate two 'Rural' zoned lots and then subdivide the resultant 122 hectare lot into three lots of approximately 40 hectares each.
The Western Australian Planning Commission refused the application for the reason that it did not comply with various State and local planning policies to prevent the fragmentation of rural land.
On application to the Tribunal, the applicant argued that although the proposal did not entirely comply with the relevant policies, it should be approved as the farming currently being undertaken on the land demonstrated the land was being used, and was capable of being used, for farming purposes.
As the Tribunal was not satisfied, on the evidence before it, as to the proposed future use of the subdivided lots and no cogent reason was given to depart from the policies. Consequently, the application for review was refused.
Introduction
Mr Kimberley McBride Hester (applicant) made an application to the Western Australian Planning Commission (Commission or respondent) to amalgamate Lot 103 and Lot 104 Princefield Road, Yoongarillup (subject land) and then subdivide the resultant lot into three lots with areas of 40.9201 hectares, 41.0447 hectares and 40.0165 hectares, respectively.
The respondent refused the application on 9 September 2008 for the following reasons:
1)The proposal does not comply with the objectives and policies of the 'Agriculture' zone of the Shire of Busselton Town Planning Scheme No 20 (TPS 20 or Scheme). A minimum arable area of 40 hectares is required for each new lot proposed, subject to suitable demonstration of grazing potential as well as a sufficient water source being demonstrated for this minimum arable area. Information provided with the application does not confirm compliance with this requirement.
2)The proposal does not comply with the Shire of Busselton's endorsed Rural Strategy in that the proposed arable areas and available water source are not suitable for sustainable agricultural use.
3)The proposal does not comply with the policies and objectives of State Planning Policy 2.5 which seek to prevent the ad hoc fragmentation of rural land.
4)The Commission is not prepared to approve the proposal as there is a risk of the land being lost to primary production, which is considered to be the highest and best use of the land, an outcome which is less likely to occur if the current lot configuration is retained.
5)Approval to the subdivision would create an undesirable precedent for the further subdivision of other lots of a similar size in the Rural Zone of this locality.
6)Based upon the recommendations of the Department of Health, the Commission is of the view that adequate separation between future effluent disposal systems and the water table has not been demonstrated.
On 7 October 2008, the applicant sought a review under s 251(1) of the Planning and Development Act 2005 (WA) (PD Act) to have the decision reviewed.
Proposal
The applicant describes the proposal as an amalgamation of Lot 103 (74.7 hectares) and Lot 104 (67.2 hectares) which together currently make up the subject land and to then subdivide the resultant amalgamated lot into three lots of 40.9201 hectares, 41.0447 hectares and 40.0165 hectares, respectively, as described above.
The subject land is located approximately 12 kilometres south‑east of the Busselton town site and is zoned 'Agriculture' under TPS 20.
Currently, the two existing lots form a contiguous block of approximately 122 hectares and are partially leased to a neighbouring dairy farmer to graze stock and cut hay. The owners live, train and run horses on the remaining portion. Wellestablished windbreaks of fenced trees exist around many fence lines and some areas have natural vegetation remaining with pasture covering the remainder of the block. The homestead, associated sheds and other infrastructure are currently located on Lot 104.
In a letter to the respondent, dated 18 April 2008, contained at page 302 of the bundle filed by the respondent pursuant to s 24 of the State Administrative Tribunal Act 2004 (WA), a representative of the applicant stated:
A homestead and associated sheds and other infrastructure exist on the current Lot 104 and these will be retained on one of the proposed lots. It is the intention of the landowners that a new lot will continue to be used for the grazing of livestock and the training of horses. The existing horse track will be partially relocated to remain on one of the proposed lots.
However, no evidence supporting those contentions or detailing the applicant's plans for the proposed lots was put in evidence before the Tribunal or referred to by the applicant.
Relevant Planning framework
There are a number of planning policies relevant to the subdivision of rural land which the Tribunal on review is obliged to take into account.
Section 241 of the PD Act states:
(1)In determining an application in accordance with this Part the State Administrative Tribunal is to have due regard to relevant planning considerations including ‑
(a)any State planning policy which may affect the subject matter of the application; …
State planning policies
Statement of Planning Policy No 1 ‑ State Planning Framework Policy (SPP 1)
SPP 1 is an approved statement of planning policy prepared under s 5AA of the Town Planning and Development Act 1928 (WA) and continues in force as a State planning policy under s 25 of the PD Act.
As stated above, under s 241 of the PD Act, the Tribunal is required to have due regard to any State planning policies which may affect the subject matter of an application for review. The plans, policies and strategies that form the State planning framework are listed in Pt B of SPP 1 and the following policies listed in SPP 1 are relevant in the consideration and determination of this matter:
(i)Statement of Planning Policy No 2.5 Agriculture and Rural Land Use Planning (SPP 2.5)
This policy applies to all rural land in Western Australia. The implementation of the four principles embodied in SPP 2.5 is envisaged through the preparation of planning schemes, local planning strategies and policies. This policy, together with Development Control Policy DC 3.4 Subdivision of Rural Land (February 2008) (DC 3.4) forms the basis for determining application for the subdivision of rural land.
(ii)Development Control 3.4 - Subdivision of Rural Land (DC 3.4)
This operational policy guides the subdivision of rural land to achieve the four principles objectives of SPP 2.5.
Local planning scheme
The Tribunal 'standing in the shoes' of the original decisionmaker is also required under s 138(2) of the PD Act to have due regard to the provisions of any local planning schemes that apply to the land under consideration and not to give approval that conflicts with the provisions of a local planning scheme.
The subject land is zoned 'Agriculture' under TPS 20. The objectives of that zone are:
(i)To conserve the productive potential of rural land;
(ii)To provide for new forms of agricultural development (particularly agroforestry), and changing patterns of existing agricultural development;
(iii)To regulate the subdivision of agricultural lands within this zone to ensure that land is not withdrawn from production or that the potential for land to be productive is not diminished;
(iv)To enable the development of land for other purposes where it can be demonstrated by the applicant that suitable land or buildings for the proposed purposes are not available elsewhere and that such purposes will not detrimentally affect the amenity of any existing or proposed nearby development;
(v)To encourage lowkey rural tourism associated with traditional forms of agriculture of rural retreat as a contributor to the overall rural economy of the Shire;
(vi)To exclude urban development. (Any such land adjacent to existing urban areas and identified as generally suitable for urban expansion may be used for urban development after it has been suitably rezoned);
(vii)To make provision for the subdivision of land and encourage the amalgamation of land so as to create allotments for commercial farming;
(viii)To discourage ribbon development along Caves Road and other tourist roads and maintain the rural ambience of transport corridors generally;
(ix)To encourage the development of cluster or communal farming;
(x)To encourage sustainable farming practices; and
(xi)To control the clearing of trees and encourage generally the retention of vegetation and vegetation corridor concomitant with the agricultural use of the land.
TPS 20 also includes policy statements for each individual zone. The policy statements for the 'Agricultural' zone are:
(a)To permit land included within the zone and shown by close investigation in consultation with Agriculture Western Australia not to be prime agricultural land to be utilised for other purposes not incompatible with adjacent uses;
(b)To permit tourist facilities where these will not conflict or detrimentally impact established farming pursuits and/or associated with rural activities;
(c)To apply restrictions whereby an allotment proposed to be created by subdivision for an agricultural purpose shall contain a minimum area of land that actually is useable for commercial farming. Depending upon the circumstances, the area of an allotment may be greater than the area necessary for the farm due to terrain, creeks, protection zoning, etc. As a general guide, the total allotment size for a commercial farm that will be recommended by Council to the WA Planning Commission is 30ha for viticultural pursuits and 20ha for horticultural pursuits. Any proposed agricultural activity shall be subject to assessment by the Council in consultation with the Agriculture Western Australia to establish the minimum area necessary;
(d)To otherwise, where environmental conditions allow, positively consider subdivision of rural land into allotments comprising a minimum of 40 hectares;
(e)To facilitate the creation of allotments for purely agricultural use and not to hinder the adjustment of boundaries between allotments; and
(f)To implement and adhere to the adopted recommendations and outcomes of the Shire of Busselton Rural Strategy, as endorsed by the WA Planning Commission.
The Shire of Busselton (Shire) has also prepared and adopted a Local Rural Planning Strategy (2006) (LRP Strategy). This Strategy was endorsed by the respondent as a framework for future land use, zoning, subdivision and development on 16 November 2007.
The subject land falls within Precinct 1 Primary Rural, of the LRP Strategy where, under the heading 'Subdivision Criteria' at para 7.1.8, the LRP Strategy states:
•General presumption against subdivision except where demonstrated as being required for agricultural land rationalisation to build up farm holdings, where lots are created without a dwelling entitlement, or are part of a subdivision/amalgamation proposal.
•Horticulture and viticulture subdivision:- …
•Broadacre agriculture subdivision:- minimum of 40ha of soils with high to very high (Class I and II) capability for grazing where detailed agronomy and hydrology reports indicate agricultural and environmental sustainability as well as achievement of minimum water requirements as prescribed in 7.9.3 and Appendix 2. The minimum lot area shall exclude areas that are not useable for agriculture e.g. remnant and riparian vegetation considered valuable for conservation (and which should not be cleared or grazed); streams, dams, wetlands and foreshores; steep terrain and rocky outcrops; setbacks to the above and any environmental buffers within which development or agriculture is not permitted; and existing tourist development.
Respondent's evidence
The respondent called three witnesses, two of whom dealt in some detail with the policies as outlined above. They were Mr Peter Malavisi, a planner with the Shire of Busselton, and Mr Peter Gianatti, a planner with the Department for Planning and Infrastructure (Department).
Both witnesses made the point that there would not be 40 hectares of Class 1 or Class 2 soils available on any of the proposed lots as required by para 7.1.8 of the Subdivision Criteria of the LRP Strategy and that the proposal was therefore inconsistent with the policy and should be refused.
Mr Gianatti explained that the comprehensive planning framework in place to guide rural subdivision had the objective to conserve the land's productive potential for agriculture and that an unplanned fragmentation of rural land is likely to create rural lifestyle lots which may well remove productive agricultural land.
Both witnesses stated that the applicant put forward no convincing reasons which, in their opinion, would justify departure from the relevant planning policy.
Mr Gianatti, in particular, stated that the applicant had not put forward any details regarding the ability to maintain a sustainable and productive agricultural operation on each lot in its own right into the future.
The respondent also called Ms Heather Percy, an officer of the Department of Agriculture, whose evidence is referred to below.
Applicant's evidence
The applicant relied solely upon the evidence of Mr John Wise, a Land Use consultant, who had prepared an agricultural assessment of the subject land, dated December 2007, a copy of which was before the Tribunal.
Mr Wise also gave oral evidence and provided, together with Ms Percy, a conferral statement dated 24 February 2009.
No other witnesses were called on behalf of the applicant. However, counsel, who represented the applicant, submitted that the applicant would like the hearing to be based mainly on the agricultural issues rather than the planning framework.
When explaining why only Mr Wise's report was being relied on, and why the applicant had not filed any other evidence or submissions, counsel stated:
… the most important thing to us is that the land actually has an ability to be farmed and to be used for farming purposes, which is the whole intent of the agricultural area. …
… the reason why we haven't filed is because we see no use in filing something here that talks about planning legislation or - because we agree that it doesn't quite meet the policy.
In answer to a question from the Tribunal as to why planning policies should not be applied in this particular case, counsel for the respondent replied:
The actual farming that has been undertaken on the property proves that this land is capable, if not above. It's very capable for the prominent use of that area, which is cattle and hay.
He further stated:
The second one is I think it needs to be made very clear that we are not removing agricultural land. The boundaries that make up the new titles don't remove any agricultural land.
Consideration
At the outset of the hearing, the respondent confirmed that there was now no issue in respect of sufficient water potential as referred to in the reasons for refusal and that its opposition to the application for review was driven primarily by an application of the various policies.
In summing up, counsel representing the respondent stated:
We say the planning framework is in place to ensure that agricultural land is not broken down into parcels which on their own could not be used for sustainable agricultural purposes. Approving such lots creates the risk that they will be withdrawn from agriculture and used for lifestyle purposes.
The application of policy has been an issue that has been discussed many times in the Tribunal. An inflexible approach to the application of a policy without considering site‑specific factors would involve an error of law: see Re Romato; Ex Parte Mitchell James Holdings Pty Ltd [2001] WASCA 286 at [26] ‑ [28]; Marshall v Town Planning Appeal Tribunal of Western Australia [2004] WASCA 2002 at [41].
In Mitchell and City of Subiaco [2008] WASAT 230, the Tribunal stated at [34]:
… an adopted policy is expected to guide the exercise of discretion not replace discretion. Policy is not to be inflexibly applied. The relevant consideration is why the policy should not be applied: Clive Elliott Jennings and Co Pty Ltd v Western Australian Planning Commission … (2002) 122 LGERA 433 at [24].
In Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] 122 LGERA 433 at [24], Justice Barker held:
The existence of a policy cannot replace the discretion of the decision‑maker in the sense that it is to be inflexibly applied regardless of the merits of the particular case. However, 'the relevant consideration in many applications will be why the "policy" should not be applied; why the planning principles that find expression in the "policy" are not relevant to the particular application.
Mr Gianatti, when discussing the applicable statutory and strategic planning instruments, stated:
Section 3.1 of DC 3.4 outlines that subdivision for a more intensive agricultural use of rural land should only be allowed on the basis that it is consistent with a suitably justified and endorsed regional and/or local planning strategy and the local planning scheme. …
The Shire's local rural strategy was prepared to further assist relevant decision‑makers in determining what are the minimum requirements of subdivision to achieve the above objective.
In respect of the Shire's Local Rural Strategy referred to by Mr Gianatti, this is the LRP Strategy defined earlier. Mr Gianatti explained that during its preparation, the Department had consulted widely with stakeholders and that the comprehensive and complete nature of the LRP Strategy meant that its findings and recommendations are given a high level of importance by the respondent when determining any subdivision.
The subject land is zoned 'Agricultural'. The principal objective of the various policies is to conserve the productive potential of the land to be used for agriculture. Furthermore, the policies in respect of the 'Agricultural' zone in TPS 20 provide guidance as to minimum lot sizes in respect of broadacre farming.
As outlined earlier, the Selection Criteria in cl 7.1.8 of the LRP Strategy begins with a general presumption against subdivision.
In respect of broadacre agricultural subdivision, the criteria sets a minimum of 40 hectares containing Class 1 or Class 2 soils with a high capability for grazing. Furthermore, the minimum lot area is to exclude areas that are not usable for agriculture.
Both experts agreed that the proposed subdivided lots would not meet the minimum requirement of 40 hectares of high to very high Class 1 or Class 2 soils.
Mr Wise confirmed in his report that 40 hectares of Class 1 or Class 2 grazing land does not exist on the proposed lots and that there is probably between 70% to 80% of Class 1 or Class 2 land on each of the three lots.
In evidence, Mr Wise stated:
When I was engaged in December 2007 to look at the property, he [Mr Hester] wished to explore the possibility of amalgamating two locations and subdividing them to make three 40 hectare, or slightly above 40 hectare properties. I said I was prepared to look at the property. I said, '40 hectare lot size satisfied the criteria that was laid down in the Leeuwin Naturaliste regional stages 1 and 2, where 40 hectares for grazing, 30 hectares for viticulture, 20 for horticulture were established. …'
I said to Mr Hester at that stage, "In my opinion, before I have even looked at the site, we will not get 40 hectares of class 1 or class 2, however, the stocking rates that were being achieved on the property at that stage were certainly equivalent to district best practice". …
Yes, I advised Mr Hester. I said, "It's right on the line and if it's to be 40 hectares of class 1 or class 2 soil, I doubt that I can find this on the property, or support that["].
Despite me saying that before I did the physical inspection of the property, Mr Hester said, "I take what you have said onboard but would you still proceed and do a property report?"
Ms Percy, who gave evidence on behalf of the respondent, stated:
Our view is subdividing small areas of Class 1 or Class 2 land into small lots is actually a perverse outcome for agriculture because there is growing small areas of the best land into smaller and smaller lots. We think there should be as large lots as possible.
As to what was proposed for the future of the subdivided lots, the evidence of Mr Wise is all that was put before the Tribunal by the applicant. It was accepted by Mr Wise that currently there was no infrastructure on the lots to run a dairy. He stated:
If you were going to try and farm this in its own right it will be very hard to justify.
The Tribunal was therefore left with an application in respect of land that is currently good grazing land and is being used as such, but if subdivided, there was no evidence submitted of what was actually proposed for the future of the new lots which would enable the Tribunal to properly judge whether the productive capacity for agricultural production would be lost as a resource.
In the conclusion to his report of December 2007, Mr Wise stated:
Currently I would consider approximately 60% of both lots be class 1 or 2 as regards grazing and to be representative of the AB1 and ABw land units and I believe with appropriate management 70 to 80% of the lots could be brought to class 1 or 2 for grazing.
If three lots were created as proposed I am of the opinion based on my investigation and the information provided by the lessee that each lot could be reasonably expected (with appropriate management) to support on a year in year out basis 40 to 50 breeding cattle with 70 to 80% of each lot being class 1 or 2 for grazing.
In the conferral statement signed by both experts at point 9, they agreed with the proposition that:
Subdivision not linked to an adequate area of productive agricultural land with dwelling entitlement, is highly likely to facilitate the spread of rural lifestyle/residential type (hobby) farms at the expense of larger more productive agricultural enterprises.
In the circumstances, the Tribunal was left to consider the matter based on the limited evidence put forward by the applicant, and with the applicant's expert confirming that if three lots were created, only 70% to 80% of each lot would contain soils with high to very high (Class 1 or Class 2) capability for grazing. Given this, none of the lots would satisfy the soils requirement specified in the LRP Strategy. Further, no evidence as to the proposed use or infrastructure planned on the lots was submitted.
The Tribunal is satisfied that at present the lots in their current configuration are well managed, but on the evidence submitted by the applicant, the Tribunal is not in a position to consider the future use of the lots and whether they might be lost to agriculture.
As outlined above, both experts agreed that subdivision not linked to an adequate area of productive agricultural land with a dwelling entitlement is very likely to facilitate the spread of rural lifestyle/residential‑type (hobby) farms at the expense of larger, more productive agricultural enterprises.
In Fewster and Western Australian Planning Commission [2007] WASAT 79, the Tribunal observed at [30]:
The planning framework that has been formulated in regards to the subdivision of rural land both at State and local level is soundly based on key principles and objectives to establish future planning direction which provides the context for decision-making. The overarching objective embodied in all of the planning instruments relevant to this matter underlines the protection of agricultural land by ensuring the continued use of rural land for productive agricultural purposes. The State planning policies advocate a general presumption against subdivision of rural land to safeguard against further fragmentation of rural land unless specifically planned for through the use of appropriate planning mechanisms to achieve co-ordinated development.
Further, in determining rural subdivision, the Tribunal must also bear in mind the test articulated by his Honour, Barker J in Ingram v Western Australian Planning Commission [2003] WASCA 77, being whether, if subdivided, the subject land which has productive capacity for agricultural production would be lost as a resource.
In the present case, there is no evidence that the proposed lot size is capable of supporting an independent, full‑time commercial agricultural pursuit.
Clear evidence as to what rural pursuits and their extent are proposed to be carried out on the land after it is subdivided would assist the Tribunal in determining whether the land would be lost as such a resource and is therefore relevant.
As it is, it is clear that the proposed subdivision is not consistent with the relevant policies currently in place and no cogent reason has been given as to why the policies should not be applied in the present case.
Conclusion
On the evidence before it, the Tribunal is not able to form a view as to whether there would be a loss of land with productive capacity for agricultural production. In those circumstances it would not be consistent with orderly or proper planning to allow a departure from a well‑formulated set of policies.
The application for review is therefore dismissed and the decision under review is affirmed.
Orders
1.The application for review is dismissed.
2.The decision under review is affirmed.
I certify that this and the preceding [61] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR M SPILLANE, MEMBER
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