HOGAN and WESTERN AUSTRALIAN PLANNING COMMISSION - [2019] WASAT 35

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION:   HOGAN and WESTERN AUSTRALIAN PLANNING COMMISSION [2019] WASAT 35
MEMBER:   MR J JORDAN, SENIOR SESSIONAL MEMBER
HEARD:   DETERMINED ON THE DOCUMENTS
DELIVERED          :   29 MAY 2019
FILE NO/S:   DR 270 of 2016
BETWEEN:   TERRY HOGAN
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Subdivision - Refusal - Reconsideration after judicial review - Rural zoning - Rural lot with an established vineyard and former blue gum plantation being returned to agricultural use - Documents in the planning framework - Objectives of planning policies for the subdivision of rural land - Objectives of relevant strategies - Objectives of local planning scheme - Local government planning vision not a strategy or scheme for the purpose of the respondent's relevant State planning and development control policies - Lot size and use - Maintaining availability of land for agricultural activity -Soil and site characteristics - Orderly and proper planning - Precedent

Legislation:

Planning and Development Act 2005 (WA), s 244
Shire of Plantagenet Local Planning Scheme No 5
Shire of Plantagenet Town Planning Scheme No 3, cl 1.6
State Administrative Tribunal Act 2004 (WA), s 3(1)

Result:

Application allowed
Approval to subdivide granted subject to conditions

Summary of Tribunal's decision:

On 3 October 2017, the Tribunal published reasons for upholding an application for review and granting an approval to subdivide a rural zoned holding into a 66.85 hectare lot developed as a vineyard, with an approved cellar sales building, and a 151.57 hectare lot formerly a blue gum plantation being returned to general agricultural use.
That decision was set aside on 16 April 2018, on judicial review. The judicial member determined that the Tribunal erred in law by misconstruing the term 'strategy or scheme' in the Western Australian Planning Commission's (Commission) relevant State planning policy and development control policy as including local planning policies. In consequence of this misconstruction, the Tribunal did not apply the Commission's policies but something else. The matter was remitted to the Tribunal (as originally constituted) for redetermination in accordance with the judicial member's reasons.
The Tribunal again considered this matter and formed the view that when the relevant planning framework was considered as a whole, including relevant policies, strategies and schemes, there is a basis for supporting the proposed subdivision. In coming to this conclusion, the Tribunal had regard to the policy and strategy objective of maintaining the availability of agricultural land. Consideration was given to the particular location, use made of and attributes of the site, particularly lot size, soils, topography, aspect and availability of water. In light of its finding, the Tribunal concluded that the subdivision could not simply be dismissed as ad hoc and that it would be consistent with orderly and proper planning.
As found previously, while subdivision proposals elsewhere in the locality might cite any approval of this subdivision as a precedent, the Tribunal was of the opinion that having found that the proposed subdivision was itself unobjectionable because of the particular circumstances, any other application to subdivide would have to establish sufficiently similar circumstances and policy and strategy framework to warrant any favourable consideration. That others might cite any approval as a precedent was not considered of itself to constitute a reason for refusing the application.
The Tribunal decided to allow the application for review and to grant conditional approval for the proposed subdivision.

Category: B

Representation:

Counsel:

Applicant	:	Ms D Baesjou (as agent)
Respondent	:	Mr I Repper

Solicitors:

Applicant	:	Ayton Baesjou Planning Consultants
Respondent	:	State Solicitor's Office

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

Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433
Fewster and Western Australian Planning Commission [2007] WASAT 79
Hogan and Western Australian Planning Commission [2017] WASAT 129
S & L Lenz Pty Ltd v The Shire of Serpentine Jarrahdale [2017] WASC 191
Western Australian Planning Commission and Hogan [2018] WASAT 25

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

On 3 October 2017 the Tribunal published the reasons for its decision to allow an application for review by (the now late) Mr Terry Hogan (Hogan or applicant): Hogan and Western Australian Planning Commission [2017] WASAT 129 (Hogan 2017). The applicant, had sought review by the Tribunal of the refusal by the Western Australian Planning Commission (Commission or respondent) to grant approval for the subdivision of Lot 6578 Spencer Road, corner Hay River Road, Narrikup (site) into two lots.
Proposed Lot A of 66.85 hectares would extend across the southern Spencer Road frontage of the site, would have an irregular northern boundary and would contain the existing vineyard, irrigation infrastructure, approved cellar sales building, and a small area of remnant vegetation separated from the vines by cleared land.
Lot B would have frontage to Hay River Road at the west and have an area of 151.57 hectares. It comprises the remainder of the site where a former blue gum plantation is being returned to general farmland. Lot B would also include a small registered Aboriginal heritage site adjacent to the Hay River Road boundary.
The Commission then made an application to the Tribunal under s 244 of the Planning and Development Act 2005 (WA) (PD Act). Section 244 enables a judicial member to review a direction, determination or order of the Tribunal '… upon a matter involving a question of law …' that was made in a proceeding under the PD Act by the Tribunal constituted without a legally qualified member as defined in s 3(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). Senior Sessional Member Jordan is not a legally qualified member as defined in s 3(1) of the SAT Act.
Judge Parry, Deputy President of the Tribunal, handed down his decision on the review under s 244 of the PD Act on 16 April 2018: Western Australian Planning Commission and Hogan [2018] WASAT 25 (WAPC and Hogan 2018). His Honour's orders included the following:
1.The application for review by a judicial member is allowed.
2.The orders made by the Tribunal in proceeding DR 270 of 2016 on 2 August 2017 and the determination by the Tribunal in Hogan and Western Australian Planning Commission [2017] WASAT 129 are revoked.
3.Proceeding DR 270 of 2016 is remitted to the Tribunal (as originally constituted) for redetermination in accordance with the reasons for decision in proceeding DR 359 of 2017 and on the basis of the evidence and submissions presented on 19 April 2017, the final submissions filed on 3 and 4 May 2017 and any further submissions filed by the parties in accordance with the following orders.
…
The orders that followed, 4, 5 and 6 (which were subsequently amended to change dates), provided each of the parties with the opportunity to file a further written submission and comments in reply to the other's submission, should they wish to do so.
His Honour set out comprehensive reasons for his findings in respect to the two grounds for review filed by the Commission.
In respect to the first ground for review, at the risk of being too succinct, at [57]-[76] of WAPC and Hogan 2018 his Honour found that the Tribunal had erred in law by misconstruing the term 'strategy or scheme' in State Planning Policy 2.5 - Rural Planning (SPP 2.5) and in the Commission's Development Control Policy 3.4 - Subdivision of rural land (DC 3.4) as including local planning policies made by local governments, and in particular, the Shire of Plantagenet Policy No. 18.1: Planning Vision (Planning Vision). His Honour found that the applicable definition of 'strategy or scheme' did not include a local planning policy, and in consequence of this misconstruction, the Tribunal was '… not applying the State planning policy or the Commission's Development Control Policy, but something else'.
As to the second ground for review, His Honour determined, at [77][89] of WAPC and Hogan 2018 that the Tribunal did not err in law by having regard to an irrelevant consideration (namely, provisions of the Planning Vision). This was because, although, in Western Australia, subdivision control and assessment falls within the exclusive authority of the Commission (and not local governments), the Commission (and the Tribunal on review) is not prohibited from considering provisions of a local planning policy which are relevant to the proposed subdivision. This, it was said, is so by either the express terms of the PD Act or by implication arising from the subject matter, scope and purpose of the power being exercised, namely assessment of a subdivision application, even if a local planning policy is inconsistent with a State planning policy or a development control policy of the Commission.
Further to the finding in respect to the second ground for review, at [90]-[95] of WAPC and Hogan 2018, his Honour said that in a subdivision assessment, less weight is generally to be given to a local planning policy which is inconsistent with a State planning policy or a development control policy of the Commission, than is given to the State planning policy or the development control policy. This implication arises from the provisions of the PD Act which create a 'split planning system' in this State, under which subdivision control and assessment falls within the exclusive authority of the Commission (and not local governments), whereas development control and assessment is generally undertaken by local governments (and Development Control Panels).
The Tribunal as originally constituted in Hogan 2017 has now had this matter before it. In addition to the evidence and submissions from the original hearing and the parties' final submissions of 2017, the Tribunal has also had the benefit of an 'Agreed Statement of Facts' in relation to draft Shire of Plantagenet Local Planning Scheme No 5 (draft LPS 5), the applicant's further submission dated 20 February 2019 and the respondent's 'Submissions on Remitter' dated 8 March 2019. The respondent chose not to file any submissions in reply. The applicant filed comments in reply on 12 April 2019.
This matter has been determined on the documents. For the sake of a coherent narrative, this judgment includes a restatement of parts of Hogan 2017.

Site and locality

It is useful to repeat the description of the site and locality. The site is at Narrikup, just over 11 kilometres south of Mount Barker and west of Albany Highway. This is an established rural area with a mixture of uses including tree plantations, grazing, cropping, vineyards and tourism.
The site has an area of 218.4 hectares with a southern boundary of about 1590 metres that runs south-east to north-west along the Spencer Road frontage. The eastern and western boundaries run mostly parallel north-south and are, respectively, about 2430 metres and 1500 metres. The site slopes down from the Spencer Road frontage to the northern boundary with an area of soaks in the north east corner. There are no houses on the site.
At the southern end of the site, on north facing slopes, is a vineyard in two parts said to occupy about 23 hectares that produces wine grapes. Adjacent to the vines are a cellar sales building granted planning approval under Shire of Plantagenet Town Planning Scheme No 3, (TPS 3) in 2002 and a machinery shed. A dam and associated irrigation infrastructure are also located at the southern end of the site as well as stands of remnant vegetation
North of the vineyard, the remainder of the site is having the stumps of a former blue gum plantation removed and being returned to general agricultural use.
In the immediate locality there is a variety of lot sizes, with most close by being about the same size as the site or larger.

Planning framework

The Commission listed the documents that it said constituted the planning framework. These were:
•State Planning Policy 2.5 - Rural Planning (SPP 2.5)
•State Planning Policy 3.7 - Planning in Bushfire Prone Areas (SPP 3.7)
•Development Control Policy 1.1 - Subdivision of land - General Principles (DC 1.1)
•Development Control Policy 3.4 - Subdivision of Rural Land (DC 3.4)
•Lower Great Southern Strategy 2016 (LGSS)
•Shire of Plantagenet Local Planning Strategy (2013) (LP Strategy)
•TPS 3
The site is zoned 'Rural' under the TPS 3. TPS 3 is silent on the subdivision of rural land. The objectives of TPS 3, at cl 1.6 include:
To promote the growth of the grape and wine industry and to encourage and control efficient Animal Husbandry.
On 18 July 2017, the Shire of Plantagenet (Shire) resolved to prepare a new local planning scheme. Draft LPS 5 was prepared, advertised and has been with the respondent with the Shire's recommended schedule of amendments for referral to the Minister for Planning for final approval for some 10 months.
The parties agreed that draft LPS 5 is now a 'seriously entertained planning proposal' and is a relevant consideration for the purposes of this review. The objectives of draft LPS 5 do not refer specifically to the grape and wine industry. The site will be zoned 'Rural' and the objectives for this zone listed in Table 2 include:
1.To provide for the maintenance or enhancement of specific local rural character.
2.To protect broad acre agricultural activities such as cropping and grazing and intensive activities such as horticulture as primary uses, with other rural pursuits and rural industries as secondary uses in circumstances where they demonstrate suitability and compatibility with the primary use[.]
The Shire, in making a recommendation to the Commission to approve the proposed subdivision, relied in part on its Planning Vision. The current version is dated April 2014 and sets out planning objectives for different localities, including that within which the site is located.
In WAPC and Hogan 2018 at [91] as stated above, it would not be an error in law to have regard to the Planning Vision, but that the Tribunal on review:
… is generally to give less weight to a local planning policy which is inconsistent with a State planning policy or a Development Control Policy of the Commission than is given to the State planning policy or the Development Control Policy, because subdivision control and assessment is legislated to be within the exclusive authority of the Commission (and not local governments) in Western Australia.

The issues

The Tribunal would comment that it considers it necessary to have regard to the planning framework as a whole. This includes all of the documents listed by the respondent. As to the Planning Vision, the Tribunal notes that less weight is generally to be given to a local planning policy than a State planning policy or a development control policy of the Commission in a subdivision assessment.
The Tribunal still considers, as in Hogan 2017, the first issue is best expressed as:
a)whether the proposed subdivision is consistent with the planning framework.
The remaining three issues, as listed by the respondent, were:
b)whether the proposed subdivision would set an undesirable precedent;
c)whether the proposed subdivision represents the ad hoc fragmentation of rural land; and;
d)whether the proposed subdivision is consistent with the principles of orderly and proper planning.
In addressing each issue the Tribunal has noted that there is some overlap and that the findings on one issue influence deliberations on another issue. This includes, as set out below in the discussion on orderly and proper planning, keeping in mind any applicable legislation, subsidiary legislation, planning schemes, and policy instruments. There is also to be an objective consideration of the facts and the circumstances of the case. And what is '… suitable, appropriate, apt or correct in each case'.

Discussion

As stated in Hogan 2017, the evidence of Mr Wayne Pluske, an agricultural scientist who specialises in agronomy and soils, was that 'the proposed lot configuration responds to soil types and land uses'. The better soils of proposed Lot A are suitable for intensive agriculture, as evidenced by the vines, and proposed Lot B was better suited to broad acre pasture and grazing because of poorer soils. This evidence was not contradicted.
Mr Hogan also appeared as a witness and said the vineyard had been established in 1996 and produced quality wine. While Mr Hogan said that the ownership of the proposed lots would remain the same after subdivision, the Tribunal has approached this matter on the basis that the proposed lots may be disposed of and in the future be independently used by unrelated owners.
The respondent's concern, was that the productive capacity of the site did not provide a sound basis for the subdivision of this rural property in the face of the objectives of the respondent's policies that guide rural subdivision.

Whether the proposed subdivision is consistent with the planning framework

The respondent had cited Fewster and Western Australian Planning Commission [2007] WASAT 79 (Fewster) at [36], where it states:
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.
The respondent acknowledged that the phrase 'general presumption' is not used in SPP 2.5 and DC 3.4, but there was no dispute that the instruments could be interpreted to this effect.
The respondent, in its further submission, at paragraph 13, said:
The Tribunal on this remitter is not to inflexibly apply SPP 2.5 and DC 3.4. Further, it will not err in law if it elects to give Planning Vision some weight. However, departure from SPP 2.5 and DC 3.4 must be justified on the facts of the case - there must be reasons, consistent with orderly and proper planning, why the application of the State policies is not the correct and preferable decision in this case.
This is an accurate and succinct summary of the correct approach to the application of planning policy in planning assessment and review as stated by Barker J in Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433 at [24].

SPP 2.5 and DC 3.4

The respondent cited from cl 2 of SPP 2.5:
The purpose of this policy is to protect and preserve Western Australia's rural land assets due to the importance of their economic, natural resource, food production, environmental and landscape values. Ensuring broad compatibility between land uses is essential to delivering this outcome.
SPP 2.5, as provided at cl 3.3(b) is to be used in tandem with DC 3.4 in decisionmaking on subdivision proposals for rural zoned land. The respondent referred to SPP 2.5 cl 6.5 'Subdivision', which states:
It is the view of the WAPC that there are sufficient, suitably sized and located rural lots to cater for intensive and emerging primary production land uses. Creation of new rural lots through ad hoc, unplanned subdivision will not be permitted.
In contemplating subdivision proposals on rural land, WAPC policy is:
(a)the creation of new or smaller rural lots will be by exception and in accordance with Development Control Policy 3.4: Subdivision of rural land;
(b)the creation of new or smaller rural lots by exception may be provided for in other State Planning Policies and/or a local planning strategy or scheme;
(c)no other planning instruments besides those listed at (a) or (b) can provide for the subdivision of rural land; and
(d)the introduction of new dwelling entitlements or other sensitive land uses should not limit or prevent primary production from occurring.

DC 3.4 at cl 2 says that it is an operational policy to guide subdivision of rural land to achieve key objectives of SPP 2.5. At cl 5, DC 3.4 states that when determining subdivision proposals on rural land, the following measures apply:
(a)the creation of new or smaller lots will be by exception;
(b)proposals will be considered against strategies and schemes;
(c)adequate buffer distances for sensitive and/or incompatible land uses can be achieved; and
(d)proposals will be assessed against any relevant State planning policies and/or operational policies.
Clause 6 of DC 3.4 sets out the exceptional circumstances under which subdivision of rural land can be considered and these include:
(a)to realign lot boundaries with no increase in the number of lots, where the resultant lots will not adversely affect rural land uses;
(b)to protect and actively conserve places of cultural and natural heritage;
(c)to allow for the efficient provision of utilities and infrastructure and/or for access to natural resources;
(d)in the Homestead lot policy area (Appendix 2), to allow for the continued occupation of existing homesteads when they are no longer used as part of a farming operation; and
(e)for other unusual or unanticipated purposes which, in the opinion of the WAPC, do not conflict with this and other relevant policies and are necessary to the public interest.
Although the WAPC seeks to minimise the creation of new or smaller rural lots, there are some circumstances where subdivision may be appropriate in order to promote better land management and achieve environmental, cultural and/or social benefits[.]
Circumstances under which rural subdivision may be considered are expanded upon through to cl 6.5 of DC 3.4. At the hearing the planning witnesses were taken through the subsections and they agreed that when considered individually none, on its own, was either relevant or would provide cause for the subdivision to be considered for approval.
SPP 2.5 at cl 5.1(f) states that the Commission will seek to protect rural land as a State resource by:
Preventing the creation of new or smaller rural lots on an unplanned or ad-hoc basis, particularly for intensive or emerging primary production land uses[.]
The Tribunal is conscious that DC 3.4 and SPP 2.5 are applicable State wide and the statement in cl 4 of DC 3.4 that '… there is an existing supply of suitably sized and located rural lots to cater for intensive and emerging primary production land uses' is viewed by the Tribunal in this context. If subsections of cl 6 to cl 6.5 of DC 3.4 and cl 5.1(f) of SPP 2.5 were the only planning considerations, then any rural subdivision would be rare, constrained to the exceptions set out above. However, cl 4 of DC 3.4 goes on to state:
Where local conditions require subdivision or creation of land parcels for this purpose, it should be provided for in a strategy or scheme and supported by evidence from an agency responsible for agriculture and food[.]
The LP Strategy and the LGSS require that subdivision be in accordance with DC 3.4 and SPP 2.5. As referred to above, however, the Tribunal is not to inflexibly apply policies and in this matter the consideration of the merits of the proposal are to include whether the strategies would exclude consideration of the proposed subdivision.

Lower Great Southern Strategy and the Local Planning Strategy

In this matter an application for subdivision has been made, based in part on the site characteristics, for purposes that includes an intensive agricultural use.
The LGSS says at cl 1.2 that it is intended to guide land use planning and strategic direction for the Lower Great Southern over the next 20 years. From the LGSS the respondent referred to the second paragraph in cl 2.8.1, which states:
Agricultural land is a finite resource that is often sought for a variety of competing purposes, and must be managed sustainably for the long term. Given that agriculture is the cornerstone of the economy in the Lower Great Southern, planning should ensure that its agricultural base is protected from loss of agricultural land due to unplanned subdivision and permanent land use changes. Fragmentation of rural land should only be contemplated where provided for by the WAPC's relevant policies.
The Tribunal would add that this paragraph is preceded by comment to the effect that over the last 20 years there has been in the Lower Great Southern an intensification of the conversion of agricultural land from primary production to other uses. Specifically referred to is the demand for rural living lots leading to the ad hoc subdivision and development of regionally important agricultural land. Subsequent paragraphs in cl 2.8.1 of the LGSS say that a local government should consider its priority agricultural areas and identify them in the local planning scheme, with, generally, food production being favoured. Reference is also made to intensive agricultural opportunities, which includes viticulture, on sites of suitable climate, soil and water availability.
The site is zoned 'Rural' under TPS 3, but the LP Strategy identifies the site as being within a General Agriculture zone. The Tribunal notes that at cl 5 of the LP Strategy it is said there is a range of lot sizes in the zone and that of itself is not a basis for subdivision.
The LP Strategy at cl 6.1.3.1 states that purpose of the General Agricultural zone is:
… to provide for the sustainable use of rural land which primarily accommodates a range of rural pursuits compatible with the capability of the land and which retains the rural character and amenity of the locality.
In the opinion of Mr Wright, a planner called as witness by the respondent, the proposed subdivision would not be consistent with the intention of the LGSS which requires land to be managed to prevent future rural land uses being compromised. Mr Wright was of the opinion that the subdivision would create two mixed farming lots and mixed use farming did not warrant special consideration. He considered grape growing, a plantation and general agriculture were typical land uses on mixed use farms in this area.
The Tribunal has formed the view, particularly having regard to the evidence of Mr Pluske and Mr Hogan, that the proposed 66.85 hectare Lot A is more appropriately characterised as a vineyard lot, a form of intensive agriculture under draft LPS 5. The fact that Lot A would have some remnant vegetation and areas of cleared land is not seen to disturb this finding. Any use made of the cleared area would be incidental to the main use. Proposed Lot B at 151.7 hectares has the soils and area typical of general agriculture lots in the locality.
Both proposed lots are historically and currently used for rural purposes. As required by Fewster, the Tribunal has considered whether the effect of the subdivision would be the loss of land having productive capacity for agricultural production. There is no compulsion on an owner that a lot be put to a productive agricultural use, such as the existing vineyard. Rural land can be left fallow. Any potential alternative use, however, would be considered by the Shire as the responsible authority and the planning framework is antipathetic to uses that would not allow continuing rural use. Mr Peter Duncan, a planner called by the applicant, also pointed out the Planning Vision is also directed to the ongoing rural use of lots in this locality.
The Tribunal has formed the view that the proposed subdivision would not compromise the future agricultural use of the land. This is because the viticultural activity on proposed Lot A demonstrates that this lot, of 66.85 hectares, has attributes that will ensure that it will continue to be suitable for productive rural use in the future. The Tribunal has further accepted that proposed Lot B will remain available for general agricultural purposes, consistent with the common land use in the locality. Even if a farm house were to be built on each lot, the Tribunal does not believe agricultural production would be compromised. The Tribunal has accepted that the proposed lot sizes, together with the soil and climate attributes and the demonstrated agricultural capacity of the land, would result in holdings not directly at odds with the planning objectives of the LGSS.
The LP Strategy requires consideration of the capability of the land and that has been addressed in the paragraphs above.

TPS 3 and Draft LPS 5

TPS 3 and draft LPS 5 do not refer to subdivision. Both include objectives, as set out above. The Tribunal has formed the view that the particular characteristics of and the use made of the site would not result in the proposed lot sizes being in direct conflict with the objective of promoting the grape and wine industry, found in TPS 3 or the objectives in draft LPS 5 of the maintenance or enhancement of specific local rural character and protecting broad acre agricultural activities such as cropping and grazing and intensive activities such as horticulture as primary uses.

Local Planning Policy 18.1 Planning Vision

Under the Shire's Planning Vision the site is within Planning Unit P8. At cl 3.1.4.1 there is a presumption against subdivision unless the Shire is satisfied there would be a minimum lot size of 50 hectares for intensive agriculture, with size justified by soil and water analysis. Where analysis supports the creation of such an intensive agricultural lot cl l 3.1.4.2(2)(iv) says that the remaining land must be a minimum of 80 hectares and suitable for continued agricultural production. The Tribunal notes that these minimum lot sizes are achieved and the evidence of Mr Pluske is not contradicted.
The Tribunal would comment that, while this is not sufficient of itself to result in a favourable outcome, if the subdivision were to be approved it would also be consistent with the Planning Vision.

Whether the proposed subdivision would set an undesirable precedent

The Tribunal agrees with the respondent that, consistent with its policies and especially for this locality, lot size alone does not provide sufficient basis for the consideration of the subdivision application.
The Tribunal is of the opinion, however, as set out above, that the particular circumstances of this site are such that the subdivision applied for has merit. The Tribunal does not agree with the respondent's planning witness that proposed is simply two undistinguished mixed farming agricultural lots. The Tribunal has formed the view that proposed is one intensive agricultural lot developed as a vineyard, and one general agricultural lot. On Lot A the 23 hectares of vines, with associated irrigation infrastructure and approved subsidiary cellar sales development, are together considered to be sufficient to identify Lot A as an intensive agriculture lot. It might be that some part of that lot is used for, for example, complimentary general rural activity on a small scale, remnant vegetation and complimentary buildings, but this is not considered to make Lot A is just another mixed farming agriculture lot.
It is considered there is a case for creating the proposed lots because of, in short, elements of the planning framework, location, soils, aspect, established development and land use and lot sizes. That is, the Tribunal has concluded that the proposed subdivision is unobjectionable.
As to whether there is more than a mere chance or possibility that there may be later undistinguishable applications to subdivide, the Tribunal has noted that the LGSS and the LP Strategy indicate, as does the Planning Vision, the site is in a district where lots are used for grape growing and wine production. Rehabilitation of a former blue gum plantation, as in this instance, does not appear unique to the site. There was not sufficient evidence to identify specific such lots. It is concluded however, that there might be other applications that cite any approval as a precedent.
As previously found, the Tribunal considers its characterisation of the uses makes most unlikely the possibility that just any mixed farming general agricultural lot in the locality might therefore be considered for similar subdivision if this proposal were to be allowed.
Precedent is not, of itself, undesirable simply because it is a precedent. There may be more than a mere chance of there being in this area other properties of similar size to that of the site with an established intensive agricultural use and the same soils, aspect and water supply. The circumstances of such a proposal would have to be assessed to determine if they had merit and part of which would be an assessment of whether in fact the unobjectionable subdivision of the site could be argued to be a relevant precedent.
The Tribunal has formed the view that, in this matter, any potential precedent is not of itself a basis for refusing the application.

Whether the proposed subdivision represents the ad hoc fragmentation of rural land

An overarching policy objective, especially as expressed in SPP 2.5 and DC 3.4, is to guard against 'ad hoc, unplanned' subdivision, particularly in circumstances where there is concern about land being removed from potential agricultural production. The Tribunal has formed the view that this particular application is not ad hoc in the sense that it was a not a proposal to simply subdivide in the absence of anything in the planning framework that would provide a basis for contemplating subdivision.
The site is in a locality not specifically zoned for the creation of smaller lot sizes. The respondent had commented that, because of vineyard practices, the future use of proposed Lot B might be compromised. Also, the potential for sand mining on Lot B might be compromised because it could be incompatible with the use of Lot A.
The site is, however, in a locality where the LGSS and the LP Strategy recognise that there is potential for lots to have an appropriate combination of soil, topography and climate to warrant consideration of greater intensity of agricultural use. As set out above, the proposal has been assessed in the context of these relevant planning documents.
The Tribunal considers that the location of the vineyard on proposed Lot A and the area of the proposed lots is such as to not prevent future useful agricultural use to be made of Lot B. At the time of implementation the relationship between future uses made of the neighbouring lots can be accommodated.

Whether the proposed subdivision is consistent with the principles of orderly and proper planning

Cited in Hogan 2017 was the summary of the meaning of orderly and proper planning as found in S & L Lenz Pty Ltd v The Shire of Serpentine Jarrahdale [2017] WASC 191 at [137] in which Pritchard J said:
Of particular significance is the fact that under cl 6.4.2 the Council 'shall have regard to' the 'orderly and proper planning of the locality'. In Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 at [178]-[183] I discussed the meaning of the phrase 'orderly and proper planning'. I will not repeat the entirety of that discussion here. I concluded that the phrase 'orderly and proper planning' conveys that the exercise of discretion within the planning context should be conducted in an orderly way - that is, in a way which is disciplined, methodical, logical and systematic, and which is not haphazard or capricious. The exercise of discretion in the planning context should also be directed to identifying the 'proper' use of land - that is, the suitable, appropriate, or apt or correct use of land. In order to do so, the decision-maker will need to have regard to any applicable legislation, subsidiary legislation and planning schemes, and policy instruments. However, there is no reason in principle why planning legislation and instruments would be the only matters warranting consideration in determining what would constitute an 'orderly and proper' planning decision. The matters which warrant consideration in each case will be a question of fact to be determined having regard to the circumstances of the case. Furthermore, identifying what would constitute orderly planning will involve the exercise of a judgment about what is suitable, appropriate, apt or correct in each case. Such a judgment is an objective one.
Again, the Tribunal looks to the conclusions reached above. The planning instruments include not just SPP 2.5 and DC 3.4, but also the LGSS and the LP Strategy that expand upon planning considerations in this locality and the wider area. Having regard to the inherent attributes of the site and the actual use made of it relative to the overarching objectives of the planning instruments, the Tribunal has formed the opinion that the proposed subdivision would be consistent with orderly and proper planning. To this can be added that the Tribunal has noted that if it were to proceed, the subdivision would be consistent with provisions of the Planning Vision.

Conclusion

The orders of Judge Parry in WAPC and Hogan 2018 required the Tribunal, as previously constituted, to again consider the planning merits of the proposed subdivision. This has now been done.
Proposed is the subdivision of the site into one lot of 66.85 hectares with an established vineyard and an approved cellar sales use and a second general agricultural lot of 151.57 hectares. The first issue was whether this might be accommodated within the planning framework.
It is well-established that a policy should not be inflexibly applied but is to inform the decision-maker. However, as stated above, there must be reasons consistent with orderly and proper planning as to why the application of the State policies is not the correct and preferable decision in this case. The Tribunal has considered the various documents of the planning framework and has concluded that the particular circumstances of this proposal provide an opportunity for the flexible application of planning policy.
Having regard to the specific attributes of the site, the Tribunal has concluded that this subdivision will not result in land use changes that lead to permanent loss of agricultural land, as is the concern of the LGSS and the LP Strategy. When this is kept in mind, the conclusion can be drawn that the general objective in SPP 2.5 and DC 3.4 of preserving rural land assets is satisfied and that there is a basis for stepping beyond the specific subdivision constraints of those two policies. The proposal is also seen as not being inconsistent with the general objectives for TPS 3 and draft LPS 5 as they relate to rural land use. The Tribunal has found that the proposed subdivision is consistent with the planning framework.
In the light of this finding, as discussed above, the Tribunal does not consider the proposal to be ad hoc in the sense that there is a planning basis for considering the subdivision. Further to this conclusion, together with the use made of the proposed lots, the Tribunal has concluded that the subdivision would be consistent with orderly and proper planning.
The Tribunal has noted that there is a chance that other subdivision proposals in the locality might cite any approval as a precedent. The Tribunal is of the opinion that the fact and circumstances of any other application would have to be examined to establish if there was any basis for such a claim. Having found that the proposed subdivision is not itself objectionable because of the particular circumstances, the Tribunal does not consider the possibility of the outcome being cited as a precedent is of itself a reason for refusing the application.
Following its examination of the matter, as set out above, the Tribunal has decided to allow the application. The Commission's decision to refuse the application has been set aside and conditional approval granted for the proposed subdivision.

Orders

The Tribunal makes the following orders:
1.The application for review is allowed.
2.The refusal of the respondent to grant subdivisional approval for Lot 6578 Spencer Road, Narrikup on 11 August 2016 is set aside and subdivision is approved, subject to the following conditions:
(i)Subdivision is to be in accordance with Plan of Subdivision Lot 6578 Spencer Road Narrikup Prepared by Ayton Baesjou and date stamped 16/05/2016 by the Department of Planning.
(ii)A restrictive covenant to the benefit of the local government, pursuant to s 129BA of the Transfer of Land Act 1893 (WA), is to be placed on the certificates of title of the proposed lots advising of the existence of a restriction on the use of the land within areas that have been assessed as Bushfire Prone. Notice of this restriction is to be included on the diagram or plan of survey (deposited plan). The restrictive covenant is to state as follows:
In the absence of an approved Bushfire Management Plan, habitable buildings shall only be constructed outside of areas identified as Bushfire Prone.

(iii)A notification, pursuant to s 165 of the Planning and Development Act 2005 (WA) is to be placed on the certificates of title of the proposed lots advising of the existence of a hazard or other factor. Notice of this notification is to be included on the diagram or plan of survey (deposited plan). The notification is to state as follows:
This lot is situated 500 metres north of a silica sand deposit. Mining of the deposit may occur in the future and this may affect rural amenity.

(iv)All buildings and effluent disposal systems having the necessary clearance from the new boundaries as required under the relevant legislation including the Local Planning Scheme and Building Regulations of Australia.
(v)Suitable arrangements being made with the local government for the provision of vehicle crossovers to service the lots shown on the approved plan of subdivision.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR J Jordan, SENIOR SESSIONAL MEMBER
29 MAY 2019