HOGAN and WESTERN AUSTRALIAN PLANNING COMMISSION
[2017] WASAT 129
•2 AUGUST 2017
HOGAN and WESTERN AUSTRALIAN PLANNING COMMISSION [2017] WASAT 129
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2017] WASAT 129 | |
| 03/10/2017 | |||
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:270/2016 | 19 APRIL 2017 FINAL SUBMISSIONS 4 MAY 2017 | |
| Coram: | MR J JORDAN (SENIOR SESSIONAL MEMBER) | 2/08/17 | |
| 21 | Judgment Part: | 1 of 1 | |
| Result: | Application allowed Conditional approval to subdivide granted | ||
| B | |||
| PDF Version |
| Parties: | TERRY HOGAN WESTERN AUSTRALIAN PLANNING COMMISSION |
Catchwords: | Subdivision Refusal Rural zoning Rural lot with an established vineyard and a harvested former Blue gum plantation being returned to agricultural use Documents included in the planning framework Objectives of planning policies for the subdivision of rural land Local planning strategy Local government planning vision Orderly and proper planning Precedent Objectives of local planning scheme |
Legislation: | Planning and Development Act 2005 (WA), s 251(1) Shire of Plantagenet Town Planning Scheme No 3, cl 1.6, cl 7.6 |
Case References: | Fewster and Western Australian Planning Commission [2007] WASAT 79 Hick and Western Australian Planning Commission [2010] WASAT 163 S & L Lenz Pty Ltd v Shire of SerpentineJarrahdale [2017] WASC 191 |
Summary | Proposed was the creation of a 66.85 hectare lot developed as a vineyard and a 151.57 hectare lot formerly a blue gum plantation being returned to general agricultural use. ,The Tribunal formed the view that when the relevant planning framework was considered as a whole, there was a basis for supporting the proposed subdivision. In coming to this conclusion, the Tribunal had close regard to the location and the attributes of the site, particularly lot size, soils, topography, aspect and availability of water. In the light of this finding, the Tribunal concluded that proposal could not simply be dismissed as ad hoc and that the subdivision would be consistent with orderly and proper planning.,The Tribunal did note that other subdivision proposals in the locality might cite any approval as a precedent. The Tribunal, having found that the proposed subdivision was not itself undesirable because of the particular circumstances, was of the opinion, however, that if an approval were to be cited as a precedent, this would have to be established having regard to specific circumstances and so precedent was not of itself a reason for refusing the application.,The Tribunal decided to allow the application and to grant conditional approval for the proposed subdivision. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : HOGAN and WESTERN AUSTRALIAN PLANNING COMMISSION [2017] WASAT 129 MEMBER : MR J JORDAN (SENIOR SESSIONAL MEMBER) HEARD : 19 APRIL 2017
- FINAL SUBMISSIONS 4 MAY 2017
- Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Subdivision - Refusal - Rural zoning - Rural lot with an established vineyard and a harvested former Blue gum plantation being returned to agricultural use - Documents included in the planning framework - Objectives of planning policies for the subdivision of rural land - Local planning strategy - Local government planning vision - Orderly and proper planning - Precedent - Objectives of local planning scheme
Legislation:
Planning and Development Act 2005 (WA), s 251(1)
Shire of Plantagenet Town Planning Scheme No 3, cl 1.6, cl 7.6
Result:
Application allowed
Conditional approval to subdivide granted
Summary of Tribunal's decision:
Proposed was the creation of a 66.85 hectare lot developed as a vineyard and a 151.57 hectare lot formerly a blue gum plantation being returned to general agricultural use.
The Tribunal formed the view that when the relevant planning framework was considered as a whole, there was a basis for supporting the proposed subdivision. In coming to this conclusion, the Tribunal had close regard to the location and the attributes of the site, particularly lot size, soils, topography, aspect and availability of water. In the light of this finding, the Tribunal concluded that proposal could not simply be dismissed as ad hoc and that the subdivision would be consistent with orderly and proper planning.
The Tribunal did note that other subdivision proposals in the locality might cite any approval as a precedent. The Tribunal, having found that the proposed subdivision was not itself undesirable because of the particular circumstances, was of the opinion, however, that if an approval were to be cited as a precedent, this would have to be established having regard to specific circumstances and so precedent was not of itself a reason for refusing the application.
The Tribunal decided to allow the application and to grant conditional approval for the proposed subdivision.
Category: B
Representation:
Counsel:
Applicant : Ms D Baesjou (as agent)
Respondent : Mr J Algeri
Solicitors:
Applicant : Ayton Baesjou Planning
Respondent : Altus Planning & Appeals
Case(s) referred to in decision(s):
Fewster and Western Australian Planning Commission [2007] WASAT 79
Hick and Western Australian Planning Commission [2010] WASAT 163
S & L Lenz Pty Ltd v Shire of SerpentineJarrahdale [2017] WASC 191
Introduction
1 These proceedings involve an application brought by Mr Terry Hogan (applicant), pursuant to s 251(1) of the Planning and Development Act 2005 (WA) (PD Act), for review of the decision of the Western Australian Planning Commission (respondent or Commission) made on 11 August 2016 to refuse an application for subdivision approval of Lot 6578 Spencer Road, corner Hay River Road, Narrikup (site) into two lots.
2 The Tribunal issued its decision allowing the application for review and granting conditional subdivisional approval on 2 August 2017. Following are the reasons for that decision.
Site and locality
3 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.
4 The site has an area of 218.4 hectares with a southern boundary of about 1590 metres that runs southeast to northwest along the Spencer Road frontage. The eastern and western boundaries run mostly parallel northsouth 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.
5 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 is a cellar sales building granted planning approval under Shire of Plantagenet Town Planning Scheme No 3 (TPS 3 or Scheme) in 2002 and a machinery shed. A dam and associated irrigation infrastructure are also located at the southern end of the site.
6 North of the vineyard, the remainder of the site is a harvested former blue gum plantation where stumps are being removed and the land returned to general agricultural use.
7 In the immediate locality there is a variety of lot sizes, with most close by being either about the same size as the site or larger.
Planning framework
8 The site is zoned 'Rural' under 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.
9 The Commission listed the documents that it said constituted the planning framework and to which it said it referred when considering the proposed subdivision. 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
10 The Shire of Plantagenet (Shire), in its consideration of the proposed subdivision prior to making a recommendation to the Commission, also relied on Shire of Plantagenet PolicyNo 18.1: Planning Vision (Planning Vision). As provided for under cl 7.6 of TPS 3, the Shire prepared, advertised and then adopted this planning policy. The current version, after advertising, was adopted in April 2014. The Planning Vision sets out planning objectives for different localities, including that within which the site is located.
11 In respect to the planning framework, the applicant has referred to and relies upon the Shire's Planning Vision as a relevant policy. Both parties made submissions on what weight they consider the Tribunal should place on the Planning Vision. The Commission said it did not consider the Planning Vision as part of the planning framework and did not refer to it making its decision.
12 As provided for at s 27 of the State Administrative Tribunal Act 2004 (WA) the Tribunal can have regard to matters not before the original decisionmaker and the Tribunal has had regard to the Planning Vision as a planning policy adopted by the Shire as provided for under TPS 3. The respondent and its witness were afforded the opportunity to make submissions on the Planning Vision and what weight it should be given in this matter. The respondent argued it should be afforded little weight because it contradicted the main objectives of policies SPP 2.5 and DC 3.4 and was not endorsed by the Commission.
13 The Tribunal has formed the view that the Planning Vision is to be afforded weight in the determination of this matter. This is because of the background of research and analysis of local circumstances and its relationship to TPS 3. The relevant policies are referred to in the discussion below.
Proposed subdivision
14 Proposed is subdivision to create two lots. Lot A of 66.85 hectares, which would extend across the Spencer Road frontage of the site, would have an irregular northern boundary and would contain the existing vineyard, irrigation infrastructure, cellar sales building, and a small area of remnant vegetation separated from the vines by cleared land.
15 Lot B would front Hay River Road and have an area of 151.57 hectares. It comprises the remainder of the site where the 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's refusal and issues
16 The Commission's reasons for refusal are succinctly reflected in the list of issues it filed. The Commission listed four issues, the first of which was:
Whether the proposed subdivision is consistent with the Respondent's planning framework.
17 The Tribunal would comment that it considers it necessary to have regard to the planning framework as a whole and not to be artificially constrained by just what the respondent considers as the Commission's planning framework. The Tribunal considers the first issue to be:
a) whether the proposed subdivision is consistent with the planning framework.
18 The remaining three issues listed 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.
19 The Tribunal will address each issue in turn noting that there is some overlap and that the findings on one issue will influence deliberations on another issue.
Discussion
20 The applicant called as a witness Mr Wayne Pluske, an agricultural scientist who specialises in agronomy and soils. The applicant filed a copy of the Mr Pluske's report of a detailed assessment and testing of the site. Mr Pluske said that that 'the proposed lot configuration responds to soil types and land uses'. His evidence, which was not contradicted, was that the better soils of proposed Lot A were suitable for intensive agriculture, as evidenced by the vines, and proposed Lot B had poorer soils better suited to broad acre pasture and grazing.
21 The applicant appeared as a witness. Mr Hogan said the vineyard had been established in 1996. He explained how the topography, soils, water and climate had influenced the development of the vineyard and how it produced quality wine. Mr Hogan said that the ownership of the proposed lots would remain the same after subdivision. The Tribunal has noted the applicant's statements about plans for maintaining an interest and involvement in future investment strategies for both lots.
22 As pointed out by the respondent, there is no legal impediment to the individual lots being owned by different individuals or entities in the future. The Tribunal has approached this matter on the basis that the proposed lots may be disposed of in the future and be independently used by unrelated owners.
23 Mr Algeri said the respondent did not dispute the evidence on soils or that the vineyard was established and the grapes were used for the production of wine. The respondent's concern, as it went on to argue, 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 policies that guide rural subdivision.
24 To assist the Tribunal the parties each called an expert planning witness. Mr Peter Duncan, who is also the Manager of Development Services at the Shire was called by the applicant, and the respondent called Mr Peter Wright, who is employed in the appeals section of the, now, Department of Planning, Lands and Heritage.
Whether the proposed subdivision is consistent with the planning framework
25 Mr Algeri, for the respondent, cited Fewster and Western Australian Planning Commission[2007]WASAT 79 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.
26 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. As stated above the Tribunal also considers the Planning Vision is also to be considered as part of the planning framework.
Lower Great Southern Strategy
27 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[.]
28 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 s 2.8.1 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.
29 In the opinion of Mr Wright, 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.
30 The Tribunal has formed the view that the proposed subdivision would not compromise the future agricultural use of the land. This is because the proposed lot sizes together with the soil and climate attributes upon which the subdivision is based would result in holdings that are suitable for more than just conversion to a rural living lot.
31 The Tribunal has accepted that 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 available for primary production 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 in the future.
32 The applicant cited in support of the application the findings in Hick and Western Australian Planning Commission [2010] WASAT 163, which was concerned with amalgamation and re-subdivision in the Narrikup locality. The respondent pointed out that in that matter there was no increase in the number of lots, with a poorly located 10 hectare house lot being replaced with a larger lot. The Tribunal would comment that in that matter, there was also the important conclusion that the new 34 hectare lot proposed had the potential to be a productive agricultural holding. It was more than simply replacing a small rural residential lot with a larger rural residential lot. The productive capacity of the lots created in the locality is considered to be a relevant consideration.
33 The Tribunal has concluded that because of the locality of the site, the particular soil and climate characteristics and the demonstrated agricultural capacity of the land, the proposed subdivision into the lots of the size proposed would not be directly at odds with the intent of the LGSS.
34 The LGSS also says, however, that fragmentation of rural land should only be contemplated where provided for by the relevant policies of the Commission.
SPP 2.5 and DC 3.4
35 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.
36 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.
37 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.
38 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, D 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.
39 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[.]
40 Circumstances under which rural subdivision may be considered are expanded upon through to cl 6.5.
41 Mr Algeri took the planning witnesses through DC 3.4 subsections cl 6 to cl 6.5. The planning witnesses agreed that when considered individually none of these subsections were either relevant or would provide cause for the subdivision to be considered for approval.
42 SPP 2.5 at cl 5.1(f) says the Commission will seek to protect rural land by:
preventing the creation of new or smaller rural lots on an unplanned or adhoc basis, particularly for intensive or emerging primary production land uses[.]
43 However, 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 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. 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 the agency responsible for agriculture and food[.]
44 In this matter an application for subdivision has been made, based in part on the site characteristics, for a purpose that includes an intensive agricultural use. To consider further if there is any support for the proposed subdivision, it is necessary to have regard to the local planning 'strategy or scheme'.
LP Strategy
45 The Tribunal notes that at the LP Strategy which is on the Shire of Plantagenet's website, commences with the following statement:
NOTE IN RESPECT TO THIS LOCAL PLANNING STRATEGY AUGUST 2013
This Local Planning Strategy (LPS) was adopted by the Council on 30 July 2013 and was endorsed by the Western Australian Planning Commission (WAPC) on 13 August 2013.
This LPS has been prepared to suit the requirements of the WAPC and the Department of Planning (DOP) and differs from those editions prepared by the Council in 2008 and 2009 following and building upon extensive community and stakeholder input. This version was advertised for public comment in 2011.
This LPS does not reflect the focus and purpose of the WAPC 'Local Planning Manual' in respect to the Shire of Plantagenet's aims and objectives with respect to the development of the local area.
Readers wishing to view the detail and the background information which lead to this LPS should read the 2009 edition of the draft LPS.
There are some areas of this LPS that are outdated largely due to the time taken to progress the document through the DOP and WAPC since June 2008. The Council will commence a review of this LPS in July 2016.
In order to plan for its wishes for the growth of the district, the Council in March 2010 adopted its long term Planning Vision as Town Planning Scheme Policy No. 18. That Planning Vision will be reviewed from time to time over its 20 year timeframe. There are instances where this LPS and the Planning Vision differ and this is largely due to the longer expected life of the Planning Vision. The Council will continue to support the initiatives contained within the Planning Vision, however, there may be instances where the WAPC on the advice of the DOP will not.
46 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 Tribunal would comment, however, that a significant consideration in the contemplation of a subdivision is site attributes. 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 accommodating a range of rural pursuits compatible with the capability of the land.
47 The LP strategy goes on to say at cl 6.1.3.2, however, that subdivision 'is to be in accordance with WAPC policy'.
48 In this matter DC 3.4 requires reference to be had to the local strategy when considering subdivision of rural land. The LP strategy requires consideration of the capability of the land, but the LP strategy also requires that subdivision be in accordance with DC 3.4 and SPP 2.5. To move beyond this circular interrelationship between the LP Strategy and the Commission's policies the Tribunal considers it necessary to also have regard to TPS 3 and the policies created pursuant to it.
Planning Vision
49 In the course of the hearing, Mr Wright was examined on the Planning Vision and his opinion of its application in this matter. Mr Wright pointed out that much of the Planning Vision was first put forward by the Shire as a draft local planning strategy. This was rejected by the Commission and the Commission endorsed the now extant LP Strategy. The Planning Vision was then adapted by the Shire, adopted under the provisions of TPS 3, and became LPP 18.1 Planning Vision.
50 The respondent and Mr Wright said the Shire was not the decisionmaker in this matter and the content of the Planning Vision was not reflected elsewhere in the planning framework. The respondent said the Planning Vision should be considered irrelevant to decisionmaking and that little weight should be placed on it.
51 Under the Planning Vision the site is within Planning Unit P8 and, at cl 3.1.4.1(1), it provides that there is a presumption against subdivision unless the Council is satisfied:
…
(vii) that the subdivision is necessary to enable the carrying out of an intensive agricultural pursuit and is in accordance with this Planning Vision; and
(viii) the balance of title also meets agreed objectives, standards and development controls.
52 Clause 3.1.4.1(5) of the Planning Vision refers to Council support for a minimum lot size of 50 hectares for intensive agriculture, with size justified by soil and water analysis, and signed off by the, now, Department of Primary Industries and Regional Development and the Department of Water and Environmental Regulation. 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.
53 The Shire has continued to support the initiatives contained within the Planning Vision, but the Commission has not and has based its decision to oppose subdivision essentially on the criteria for assessing subdivision found in DC 3.4. As foreshadowed in the opening statement of the LP Strategy, this is an instance where the Commission and the Shire differ, with the Commission relying on its policies and the Shire, in its recommendation to the Commission, and the applicant, in its support for the subdivision, relying on the Planning Vision and, it must be said, the LGSS.
54 In this matter there is nothing to prevent the current use made of the site continuing as it has done for the past 20 years. The applicant, however, is seeking to subdivide the holding, so the question is whether this can be accommodated within the planning framework.
55 There is no dispute that policy should inform the decisionmaker. In this matter the Tribunal has noted that the Shire has planning objectives for its district as expressed in its Planning Vision. In this matter there is a tension between overarching policies of the Commission on subdivision of rural land in general and land use and lot size objectives identified at a local level. It is arguable that it becomes pointless having local policies if there are not any circumstances where a subdivision might be considered consistent with the objectives of SPP 2.5 and DC 3.4.
56 The Tribunal considers one step is to determine if a site has particular characteristics such that a subdivision proposal warrants more than a simple dismissal as just another rural subdivision. There is a principle in statutory interpretation that requires that texts be construed so far as is possible to operate in harmony and not in conflict. Clearly, in this matter, it is not statutory texts being considered, but rather a series of policies. The Tribunal considers relevant, however, the principle of the various documents not being intended to contradict each other.
57 The Tribunal is of the view that all of the documents of the planning framework adopted by the authorities relevant to this matter are to be considered and not just those policies that between themselves reinforce a particular outcome. The Planning Vision has been adopted by the local authority for its district. The Tribunal is of the view that the Planning Vision should be included when weighing the proposed subdivision against the planning framework.
58 In this matter, DC 3.4 refers to a requirement to have regard to the local planning scheme. The Tribunal has interpreted this as referring also to policies adopted under TPS 3. The Planning Vision does not support subdivision unless certain criteria are satisfied. If not satisfied, the assessment under DC 3.4 is appropriate. In this respect, the Tribunal considers that the Planning Vision and SPP 2.5 and DC 3.4 are not repugnant to each other. In the circumstances of this particular matter, the Tribunal is satisfied that the Planning Vision can be interpreted to complement rather than contradict the other documents in the planning framework in the intent to limit and otherwise regulate rural subdivision.
59 The Tribunal accepts that because of the significance of SPP 2.5 and DC 3.4, the test for merit of this subdivision proposal should not be taken lightly. The Tribunal believes, however, that this matter is one that provides an opportunity for the flexible application of planning policy which the law requires.
60 In this matter, the Tribunal is conscious of the important objectives of the rural subdivision policies in ensuring the valuable resource of rural land is not lost by subdivision that will result in uses antithetical to agricultural production. The Tribunal is also conscious that the Shire should be able to reasonably expect that, over time, its properly arrived at planning objectives for its district might be achieved, even in circumstances where this might involve subdivision having regard to the particular site specific attributes.
61 The Tribunal has worked through the various documents of the planning framework. Having regard to the site specific attributes, the Tribunal has concluded that this subdivision will not lead to permanent land use changes and loss of agricultural land as is the concern of the LGSS. When this is kept in mind and the objectives of the Planning Vision are contemplated, the objective in SPP 2.5 of preserving rural land assets is satisfied. The Tribunal has found that the proposed subdivision is consistent with the planning framework.
Whether the proposed subdivision would set an undesirable precedent
62 Mr Wright was of the opinion that grape growing, plantation and general agriculture are typical land uses on mixed use farms in this area. He considered that proposed Lot A would not be an intensive agriculture lot, that the subdivision would create two mixed farming lots and therefore did not warrant special consideration. The respondent also submitted that the lot size pattern is mixed and although there are lots sizes similar to those proposed, and some smaller, in the locality, there is nothing in the policy documents to support subdivision on the basis of the lot size pattern. This view of lot sizes is also within the Planning Vision. The Tribunal agrees, especially for this locality, that just lot size alone does not provide sufficient basis for the consideration of a subdivision application.
63 The Tribunal would add that it does not agree with the applicant that, on the evidence, the operation of this vineyard sets it apart from other vineyards, or that soil type, aspect and water supply as found on the site would be unique to proposed Lot A as argued. The Lower Great Southern is a significant area for grape growing and wine production, as indicated in the LGSS, the LP Strategy and the Planning Vision. Further, the rehabilitation of a former blue gum plantation as in this instance does not appear unique.
64 The Tribunal does agree with the applicant, however, that proposed is one intensive agricultural lot developed as a vineyard, and one general agricultural lot. The Tribunal accepts that it is not necessary for an intensive agricultural lot to be completely developed for a particular crop. Even intensive agricultural lots will have some part of them used for, for example, general agriculture on a small scale, remnant vegetation, complimentary buildings and water supply. There is 23 hectares of vines on Lot A, and the Tribunal considers that is a sufficient proportion to identify Lot A as an intensive agriculture lot.
65 This characterisation of the uses removes the general concern that just any general agricultural lot must therefore be considered for subdivision if this proposal were to be allowed.
66 The Tribunal would comment that a precedent is not, of itself, undesirable simply because it is a precedent. As found in the discussion on the planning framework above, the Tribunal has formed the opinion that, in the particular circumstances of this site, there is a case in support of the proposed subdivision. For that reason, the Tribunal has formed the view that the proposed subdivision is not objectionable.
67 There may be more than a mere chance of there being in this area other properties that include an established intensive agricultural use, with particular soils, aspect, water supply and lot size similar to that of the site. Any proposal to subdivide such a property would have to be assessed on its inherent merit. The Tribunal is of the opinion that if an argument that the current proposal was a precedent for such an application was to be found to have substance, then this of itself need not compromise the planning of the locality. This is because, as commented above, the particular circumstances of the current proposal are not considered objectionable
Whether the proposed subdivision represents the ad hoc fragmentation of rural land
68 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. In a sense an ad hoc subdivision must by definition be unplanned. The site is not in a locality zoned for subdivision and the application has been made solely for the purpose of subdividing the site. The site is, however, in a locality where the LGSS and the Planning Vision 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.
69 The Tribunal considers that this particular application is not truly ad hoc. This is because the application was made in the context of these relevant planning documents being in existence and against which it can be assessed to determine if it has any merit. It is not simply just a subdivision application made in the absence of any local or district planning framework.
70 The respondent also considered that the application was unplanned and because of vineyard practices the future agricultural 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.
71 The Tribunal noted the comment about the proximity of the existing vines from the proposed boundary and the various potential uses for Lot B. The Tribunal considers that the location of the vineyard on proposed Lot A is not such as to prevent useful agricultural use to be made of Lot B in the future and at the time of implementation the relationship between the uses made of the neighbouring lots can be accommodated.
Whether the proposed subdivision is consistent with the principles of orderly and proper planning
72 The Tribunal refers to the summary of the meaning of orderly and proper planning as found in S & L Lenz Pty Ltd v Shire of SerpentineJarrahdale[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 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 decisionmaker 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.
73 On this issue, the Tribunal would look to the conclusions reached above. That is, the Tribunal has found in the planning instruments that include not just SPP 2.5 and DC 3.4, that together might be described as self-referential, but in addition the LGSS and the Planning Vision that expand upon planning considerations in this locality and the wider area. To this can be added the inherent attributes of the site and the actual use made of it. Having regard to all of these factors the Tribunal has made the judgment that the proposed subdivision would be consistent with orderly and proper planning.
Conclusion
74 Directly relevant to the consideration of a subdivision is the potential use to which the lots created can be used. The respondent argued that the applicant does not have to subdivide to continue the current use made of the site. The Tribunal has noted this, however, and application to subdivide was made and has to be determined. Proposed was the creation of a 66.85 hectare viticulture lot and a 151.57 hectare general agricultural lot.
75 The Tribunal has formed the view that when the relevant planning framework is considered as a whole, there is to be found a basis for supporting the proposed subdivision. In the light of this finding, the Tribunal did not consider the proposal to be ad hoc in that there was a planning basis for considering the subdivision and the use made of the lots, which in turn informed the conclusion that the subdivision would be consistent with orderly and proper planning.
76 The Tribunal has noted that there might be other subdivision proposals in the locality that cite any approval as a precedent. The Tribunal is of the opinion that before any approval could be cited as a precedent by others the merits of the 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.
77 Following its examination of the matter, as set out above, the Tribunal 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:
On the application determined by Senior Sessional Member J Jordan, it is ordered that:
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 the 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 section 129BA of the Transfer of Land Act 1893, 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.
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 this and the preceding [77] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J JORDAN, SENIOR SESSIONAL MEMBER
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