HESTER and WESTERN AUSTRALIAN PLANNING COMMISSION

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

1. 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.

2. 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.

3. 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.

4. 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

1. 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.

2. 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…