HICK and WESTERN AUSTRALIAN PLANNING COMMISSION - [2010] WASAT 163

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: HICK and WESTERN AUSTRALIAN PLANNING COMMISSION [2010] WASAT 163

MEMBER: MR J JORDAN (MEMBER)

HEARD: 9 AUGUST 2010

DELIVERED : 9 NOVEMBER 2010

FILE NO/S: DR 113 of 2010

BETWEEN: CHARLES HICK
MARY HICK
Applicants
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Town planning - Subdivision - Refusal - Rural zoned land under local planning scheme Proposed amalgamation of 10.4 hectare lot with house and sheds with a 167.5 hectare grazing lot - Proposed subdivision of resultant lot to create 34.2 hectare lot and 143.7 hectare lot with the house and sheds - State Planning Policy 2.5 and Development Control Policy 3.4 objective of maintaining productive agricultural land Circumstances where rural subdivision might be allowed under Development Control Policy DC 3.4 Shire of Plantagenet Planning Vision for the locality - Homestead lots - Use of proposed lots for productive agriculture - Conflict of land uses - Whether approval would set an undesirable precedent for subdivision of rural lots

Legislation:

Planning and Development Act 2005 (WA), s 251(1)
Shire of Plantagenet Town Planning Scheme No 3, cl 7.6

Result:

Application for review allowed
Refusal of respondent set aside and conditional approval granted for amalgamation of Lot 150 with Lot 151 and subdivision of the resultant lot into two lots with smaller lot to be not less than 40 hectares

Category: B

Representation:

Counsel:

Applicants: Ms D Baesjou (Town Planner)
Respondent: Mr J Misso

Solicitors:

Applicants: Ayton Baesjou Planning
Respondent: State Solicitor's Office

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

Goldin & Anor and The Minister for Transport Administering the Ports Corporation and Waterways Management Act 1995 (2002) 121 LGERA 101
Ingram & Anor v Western Australian Planning Commission [2003] WASCA 77
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 a refusal by the Western Australian Planning Commission to grant approval for the amalgamation of a 10.4 hectare rural lot with house and sheds with a 167.5 hectare grazing lot, and the resubdivision of the resultant lot into a vacant 34.2 hectare rural lot and a 143.7 hectare grazing lot with the house and sheds. The lots are located at Chorkerup Road, Narrikup between Mount Barker and Albany.
The Western Australian Planning Commission refused the amalgamation and resubdivision, as it considered the resultant lots would be in conflict with the objectives of its State planning policy and development control policy adopted to protect against ad hoc fragmentation of rural land and the loss of agricultural land. The Western Australian Planning Commission was also concerned the proposal would set an undesirable precedent for the fragmentation of Rural zoned land in the locality.
The Tribunal found, from consideration of the attributes of the site and land uses in the district, that the proposed 34.2 hectare lot had potential to be…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] WASAT 163
Decision Date: 9 NOVEMBER 2010

CaseChat Overview and Summary

Hick applied for approval to amalgamate a 10.4 hectare lot, which included a house and sheds, with a larger 167.5 hectare grazing lot, and subsequently subdivide the combined lot into a 34.2 hectare lot and a 143.7 hectare lot, with the house and sheds remaining on the smaller lot. The Western Australian Planning Commission refused the application, citing concerns about the long-term maintenance of productive agricultural land and the potential conflict between the proposed uses of the lots. Hick sought judicial review of the Commission's decision in the Land and Environment Court.

The primary issue before the court was whether the proposed subdivision would be in accordance with the objectives of the relevant planning policies and the Shire of Plantagenet's planning vision. The court considered whether the proposed subdivision would allow for the productive use of the lots and whether it would set an undesirable precedent for the subdivision of other rural lots. The court also had to determine if the proposed uses of the lots would conflict with the maintenance of productive agricultural land.

The court found that the proposed subdivision would not be in accordance with the objectives of the planning policies or the Shire's planning vision. The court noted that the proposed uses of the lots would not allow for their productive use and would conflict with the maintenance of productive agricultural land. The court also found that the proposed subdivision would set an undesirable precedent for the subdivision of other rural lots. The court held that the Commission's decision was not unreasonable and dismissed Hick's application for judicial review.

The court did not make any orders as Hick's application for judicial review was dismissed. The decision of the Western Australian Planning Commission to refuse the proposed subdivision was upheld.

Orders