Horne and Western Australian Planning Commission
[2007] WASAT 263
•15 OCTOBER 2007
HORNE and WESTERN AUSTRALIAN PLANNING COMMISSION [2007] WASAT 263
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 263 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:465/2006 | 23 AUGUST 2007 | |
| Coram: | MR P DE VILLIERS (SENIOR SESSIONAL MEMBER) | 15/10/07 | |
| 19 | Judgment Part: | 1 of 1 | |
| Result: | The application for review is dismissed The decision of the respondent is affirmed | ||
| B | |||
| PDF Version |
| Parties: | GRAHAM MAX HORNE WESTERN AUSTRALIAN PLANNING COMMISSION |
Catchwords: | Town planning Subdivision Application to divide rural land into two lots "General Agriculture" zone Presumption against rural subdivision in policies WAPC Policy DC 3.4 Significant barrier Precedent Application of policy |
Legislation: | Planning and Development Act 2005 (WA), s 241(3) Shire of Northam Town Planning Scheme No 3 Shire of York Town Planning Scheme No 1 Shire of York Town Planning Scheme No 2, cl 3.1, cl 4.15, cl 8.8 |
Case References: | Fewster and Western Australian Planning Commission [2007] WASAT 79 Goedhart & Anor and Western Australian Planning Commission [2006] WASAT 237 Halden & Anor and Western Australian Planning Commission [2005] WASAT 323 Munckton and Western Australian Planning Commission [2006] WASAT 191 Price and Western Australian Planning Commission [2007] WASAT 26 West & Ors and Western Australian Planning Commission [2005] WASAT 326 Wilson v Western Australian Planning Commission [2004] WATPAT 215 |
Orders | 1. The application for the review is dismissed.,2. The decision of the respondent is affirmed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : HORNE and WESTERN AUSTRALIAN PLANNING COMMISSION [2007] WASAT 263 MEMBER : MR P DE VILLIERS (SENIOR SESSIONAL MEMBER) HEARD : 23 AUGUST 2007 DELIVERED : 15 OCTOBER 2007 FILE NO/S : DR 465 of 2006 BETWEEN : GRAHAM MAX HORNE
- Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Town planning - Subdivision - Application to divide rural land into two lots - "General Agriculture" zone - Presumption against rural subdivision in policies - WAPC Policy DC 3.4 - Significant barrier - Precedent - Application of policy
Legislation:
Planning and Development Act 2005 (WA), s 241(3)
Shire of Northam Town Planning Scheme No 3
Shire of York Town Planning Scheme No 1
(Page 2)
Shire of York Town Planning Scheme No 2, cl 3.1, cl 4.15, cl 8.8
Result:
The application for review is dismissed
The decision of the respondent is affirmed
Category: B
Representation:
Counsel:
Applicant : Self-represented
Respondent : Mr A Shuy
Solicitors:
Applicant : Self-represented
Respondent : State Solicitor's Office
Case(s) referred to in decision(s):
Fewster and Western Australian Planning Commission [2007] WASAT 79
Goedhart & Anor and Western Australian Planning Commission [2006] WASAT 237
Halden & Anor and Western Australian Planning Commission [2005] WASAT 323
Munckton and Western Australian Planning Commission [2006] WASAT 191
Price and Western Australian Planning Commission [2007] WASAT 26
West & Ors and Western Australian Planning Commission [2005] WASAT 326
Wilson v Western Australian Planning Commission [2004] WATPAT 215
(Page 3)
Summary of Tribunal's decision
1 Mr Horne was seeking a review by the State Administrative Tribunal of the decision of the Western Australian Planning Commission to refuse approval to subdivide an existing rural lot of 46.5262 hectares on Berry Brow Road, Inkpen in the Shire of York into two lots.
2 The critical issue to be addressed in the review was the application of cl 3.2.1(a) of the Western Australian Planning Commission's Policy DC 3.4 "Subdivision of Rural Land" which provides that the Commission may approve subdivision of rural land if a significant natural feature already physically divides the proposed lots and an undesirable precedent would not be set.
3 On the question of a "significant feature", the Tribunal found that while the drainage swale on the lot clearly creates practical difficulties in terms of efficient farm management over the whole of the subject land, it did not constitute a "significant feature" in terms of cl 3.2.1(a) of Policy DC 3.4 "Subdivision of Rural Land".
4 On the question of precedent, the Tribunal found that relevant precedent in the locality did not support the case for subdivision of the subject lot and the approval of the application would create an undesirable precedent.
5 However, the Tribunal also expressed the view that the issue agreed between the parties constituted too narrow a reading of the relevant statutory and policy framework applicable to this review and that the overriding presumption in favour of minimising the ad hoc fragmentation of rural land still dominated the decision to be made.
6 For these reasons the application for review was dismissed.
Background
7 On 21 June 2006, Mr Horne (applicant) lodged an application involving the subdivision of Lot 27766 Berry Brow Road, Inkpen in the Shire of York (subject land) into four lots with the Western Australian Planning Commission (respondent or Commission). This application was refused by the Commission on 22 August 2006. The applicant sought a reconsideration of that decision but this was rejected by the respondent on 23 November 2006.
(Page 4)
8 An application for review was subsequently lodged with the Tribunal on 20 December 2006.
9 On 26 June 2007, the Commission considered a revised plan of the subdivision which involved the creation of two lots rather than the four lots initially proposed. This revised plan was also rejected by the respondent. On 27 June 2007, the Tribunal gave the applicant leave to amend the application for review to incorporate the revised proposal to subdivide the land into two rather than four lots.
10 The revised proposal, involving the subdivision of Lot 27766 into two lots, is therefore the matter currently before the Tribunal for review.
Application, subject land and locality
11 The subject land comprises one 46.5262 hectare lot, being Lot 27766 Berry Brow Road, Inkpen in the Shire of York.
12 Most of the subject land has been cleared and is used primarily for cereal cropping which has included the cultivation of wheat, oats and barley. It has also, from time to time, been used for grazing sheep.
13 The subject land is characterised by a drainage swale which runs east/west through the centre of the subject land. Waterlogging occurs over much of this central area creating perched water tables in winter. The majority of this area is salt affected, and is fenced and subject to revegetation; this excludes an area of approximately 60 metres adjacent to the Berry Brow Road boundary.
14 The improvements to the subject land include a dwelling and large shed in the central south portion of the subject land and a large shed in the north-western corner of the subject land. In addition, there are four agricultural dams on the subject land.
15 The subject land is located approximately 20 kilometres west of the York town site and 40 kilometres south-west of Northam. It is located on the eastern side of Berry Brow Road. This road forms one of the boundaries between the Shire of York (or Shire) and the Shire of Northam. The subject land is triangular in shape with its longest boundary along Berry Brow Road. The proposed subdivision will divide the land through the centre to create two broadly triangular lots. The northern lot (proposed Lot A) will comprise 24.42 hectares while the southern lot (proposed Lot B) will comprise 22.11 hectares. Both lots will gain access from Berry Brow Road, an unsurfaced rural road.
(Page 5)
16 On the western side of Berry Brow Road, opposite the subject land, are two lots of 8.89 hectares and 10.65 hectares respectively. These are both zoned "Water Supply Catchment" in the Shire of Northam Town Planning Scheme No 3 (TPS 3). Each of these lots contains one dwelling and small pockets of vegetation.
17 Other than these two lots and the subject land, the remainder of the lots to the east of Berry Brow Road in the locality are substantially larger and vary from 62.5 hectares to 1016.4 hectares.
18 The majority of the land to the west of Berry Brow Road is unsubdivided and is reserved for "Public Purposes - Water Supply Catchment" in TPS 3. This land is characterised by dense vegetation cover.
Respondent's decision
19 The Commission refused a proposed subdivision to create four lots on the subject land on 22 August 2006.
20 In reiterating its decision to refuse the four lot application on reconsideration of the matter on 23 November 2006, the Commission provided the following advice:
"It is unlikely that an amended plan proposing the creation of less lots would be approved due to the Commission's presumption against the subdivision of rural land. Notwithstanding this the Commission may approve subdivision of rural land for the following specific purposes:
(i) where a significant natural or man-made feature already physically divides the proposed lots and an undesirable precedent would not be set;
(ii) where one or more of the lots is to accommodate an existing or proposed specific non-rural land use such as recreation facilities, public utilities or uses ancillary to the rural use of the land;
(iii) to excise a conservation lot in the wheatbelt area; or
(iv) to facilitate the conservation of a heritage building."
(Page 6)
21 On 26 June 2007, the Commission considered a revised plan of subdivision proposing the creation of two lots and resolved not to support the plan for the following reasons:
"1. The proposed subdivision is inconsistent with the 'Rural' zoning of the land in Council's [Town] Planning Scheme. The purpose and intent of this zoning is to preserve the area's current rural use and density of development. Subdivision in the manner proposed would create the potential for additional building development and the introduction of increased non-rural activity in conflict with the zoning objectives. The subdivision, if permitted, would result in an unplanned breakdown of land holdings.
2. The proposed subdivision is inconsistent with Commission Policy DC 3.4 [cl] 6.1.1(d) as it has not been adequately demonstrated that a sufficient water supply is available for domestic, fire fighting and domestic purposes for each of the proposed lots.
3. Approval to the subdivision would result in the creation of lots of a much smaller size than those prevailing in the locality and therefore set an undesirable precedent for further subdivision of a similar type in the general area.
4. The salt affected land within Lot 27766 is not considered to form a significant physical barrier for the justification of a subdivision contrary to Commission Policy and the Shire of York [Town] Planning Scheme No3."
22 The Commission had received advice from the Shire of York that it did not support subdivision of the subject land.
Statutory and policy provisions
23 The Shire of York Town Planning Scheme No 2 (TPS 2 or the Scheme) under cl 3.1 establishes a number of zones within the scheme area. The subject land is zoned "General Agriculture" and cl 4.15 sets out the provisions pertaining to the "General Agriculture Zone". Clause 4.15.1 establishes the following objectives for this zone:
"(a) To ensure the continuation of broad-hectare agriculture as the principal land use in the district encouraging where
- appropriate the retention and expansion of agricultural activities.
- (b) To consider non-rural uses where they can be shown to be of benefit to the district and not detrimental to the natural resources or the environment.
(c) To allow for facilities for tourists and travellers [sic], and for recreation uses.
(d) To have regard to residential use of adjoining land at the interface of the General Agriculture zone with other zones to avoid adverse effects on local amenities."
24 Clause 8.8 of the Scheme sets out the provisions under which planning policies may be prepared and adopted by the Council.
25 The Shire of York Local Rural Strategy (LRS) was adopted by the Shire on 15 May 2000 and endorsed by the Commission in July 2000.
26 The subject land is depicted as part of the Darling Plateau in the LRS. Clause 7.3 of the LRS establishes land use strategies and cl 7.3.3, which specifically addresses the Darling Plateau, limits its considerations on subdivision to the following:
"[T]here is a general presumption against small lot subdivision for hobby farms or Rural Residential purpose"
27 The Shire of York Draft Local Planning Strategy (LPS) was adopted by the Shire on 17 June 2006. On 21 August 2007, the Shire was advised that the Commission had endorsed the strategy, subject to the incorporation of a number of amendments. None of those amendments are relevant to the matter under review.
28 The subject land is depicted in the LPS as part of the Darling Plateau Precinct (Rural) (1a) for which the following objectives are established:
"• Protect sustainable broad acre agricultural production.
• Preserve and enhance the environment and natural resources."
29 Clause 6.4.1 of the LPS establishes a number of strategies for the Darling Plateau which include:
(Page 8)
- "A general presumption against subdivision of rural zoned land unless it can satisfy the requirements of the Western Australian Planning Commission's State Planning Policy 2.5 Agricultural and Rural Land Use Planning …"
30 Statement of Planning Policy No 2.5 - Agricultural and Land Use Planning (SPP 2.5), in conjunction with the Development Control Policy DC 3.4 - Subdivision of Rural Land (DC 3.4), is used by the Commission on a state-wide basis for determining applications for the subdivision of rural land.
31 Key objectives of SPP 2.5 are:
"1. Protect agricultural land resources wherever possible by:
(a) discouraging land uses unrelated to agriculture from locating on agricultural land;
(b) minimising the ad hoc fragmentation of rural land; and
(c) improving resource and investment security for agricultural and allied industry production.
2. Plan and provide for rural settlement where it can:
(a) benefit and support existing communities; and
(b) have access to appropriate community services and infrastructure.
3. Minimise the potential for land use conflict by:
(a) providing adequate separation distance between potential conflicting land uses;
(b) introducing management requirements that protect existing agricultural land uses;
(c) identify areas that are suitable and capable for intensive agricultural pursuits as agricultural priority areas; and
(d) avoid locating new rural settlements in areas that are likely to create conflict with established or proposed agricultural priority areas.
(Page 9)
- 4. Carefully manage natural resources by:
(a) discouraging development and/or subdivision that may result in land or environmental degradation;
(b) integrating land, catchment and water resource management requirements with and use planning controls;
(c) assisting in the wise use of resources including energy, minerals and basic raw materials;
(d) preventing land and environmental degradation during the extraction of minerals and basic raw materials; and
(e) incorporating land management standards and sequential land use change in the land use planning and development process."
"There is a general presumption against subdivision of rural land unless it is specifically provided for in a town planning scheme, an endorsed local planning strategy or an endorsed local rural strategy."
33 At s 3.2.1, DC 3.4 provides that:
"Notwithstanding section 3.1.1, the Commission may approve subdivision of rural land for the following specific purposes:
(a) A significant natural or man-made feature already physically divides the proposed lots and an undesirable precedent would not be set."
34 At s 6.1.1, DC 3.4 provides that the respondent may also take into account, amongst other matters, the following additional information in respect to considering applications for subdivision of rural land:
"(a) Impact on agriculture ...
(Page 10)
- (b) Size of lots - Lots are of sufficient size to be environmentally and economically sustainable in the long-term as agricultural enterprises.
(c) Land capability - The capacity of the land to accommodate the proposed use. Each lot contains sufficient land of high to very high capability for intensive agriculture.
(d) Servicing - Each lot has a sustainable water supply for domestic, fire management and agricultural purposes ...
(e) Lot boundaries - Subdivision boundaries should be designed to reflect sound planning and land use management.
(f) Fire management - All proposals should comply with the performance criteria and standards specified in the Commission's Fire Planning Policy. Access to the proposed lots including egress in the case of emergency.
(g) Land use - The property in relation to adjacent properties, reserves and roads. Any part of the land currently used for agriculture. Existing and proposed adjoining land uses. Whether the subdivision would prejudice future urban expansion. Significant noise sources or other forms of nuisance to the proposed use. Identification of previous use and any contaminated soils or construction and demolition waste for filled areas.
(h) Rural amenity - Rural character and amenity of area. Views to and from the site. How the proposal will enhance the rural management practices within the zone.
(i) Heritage ...
(j) Environment - Environmental impacts of the proposed development on areas of environmental sensitivity, natural features and existing development.
(k) Land management - That is in accordance with natural resource management plans and existing integrated catchment management plans including:
• stocking controls
- • clearing restrictions
• fencing controls
• water source protection and drainage
• open space requirements
• ...
35 The Avon Arc Sub-Regional Strategy (Sub-Regional Strategy) seeks to provide a regional framework for long-term land use within the Avon Arc. The issues and actions established for Agriculture in the Sub-Regional Strategy addressing subdivision are as follows:
"Apply restrictions on the subdivision of productive agricultural land";
and
"Local Planning strategies to discourage Rural Residential and rural smallholdings within agricultural areas".
The issues
36 It was agreed between the parties that the critical issue to be addressed in this review is the application of s 3.2.1(a) of DC 3.4.
37 While the policy establishes in s 3.1.1 a general presumption against subdivision, this clause addresses subdivision for specific purposes and s 3.2.1 in part reads as follows:
"Notwithstanding s 3.1.1, the Commission may approve subdivision of rural land for the following specific purposes:
(a) A significant natural or man-made feature already physically divides the proposed lots and an undesirable precedent would not be set."
• Whether a significant natural feature already physically divides the proposed lots?
and
(Page 12)
- • Whether an undesirable precedent would be set should this subdivision be approved?
39 The Tribunal will deal with each issue in turn.
Whether a significant natural feature already physically divides the proposed lots?
40 The respondent argued that "the subject land is not physically divided by a significant natural or man-made feature - the salt affected area does not sever or remove any portion of the subject land" and that it "can be effectively used as a single agricultural unit".
41 The applicant submitted that the land is physically divided by a significant feature and that "[t]his feature consists of a central drainage swale that is subject to water logging in the wetter months, thus preventing the traffic of heavy agricultural equipment and trucks in the cropping season".
42 The Land Capability and Geotechnical Assessment undertaken by Lindsay Stephens, a geologist and botanist, on behalf of the applicant states that "[t]he Sand/Clay soils through the centre of the site bisect the arable land. These soils are saline and have very low agricultural and development capacity". The assessment of geology and geomorphology in the report states that "[t]he central area [of the site] is occupied by a drainage swale that divides the property in two" and elsewhere in the report this is described as a "central drainage line which bisects Lot 27766".
43 The Tribunal has, on a number of occasions, considered the issue of a "significant feature" in dealing with proposals to subdivide rural land.
44 In Munckton and Western Australian Planning Commission [2006] WASAT 191 at [109] the Tribunal:
"... was most persuaded by the evidence of Mr Munckton in relation to the practical difficulty of farm management over the whole of the subject land when the Avon River is flowing. The Tribunal was mindful of the significance of the Avon River within the region, its physical characteristics and its substantial dimensions which led to the conclusion that the river is a demonstrably substantial feature that practically divides the land".
(Page 13)
45 In Price and Western Australian Planning Commission [2007] WASAT 26 at [32] the Tribunal found that:
"If reasonable contiguous use of the severed lot with the larger lot is not possible because of the circumstances associated with the severance caused by Deep Creek Road, it is arguable that the road is a significant barrier irrespective of its construction standard. The Tribunal accepts in this instance that this is the case and that it is a reasonable interpretation of cl 3.2.1(a) that a road is a significant barrier if it does not reasonably enable the use of the severed lot in conjunction with the larger lot".
46 In this case, the Tribunal noted at [32] that:
"(i) The recent substantial upgrading has changed the characteristics of the road and reflects its importance as a haulage through road in the City." and
"(vi) The size and physical features of the severed lot contributes to the Tribunal's conclusion that Deep Creek Road in this instance is a 'significant' man-made barrier. Were the severed lot larger and less physically constrained for agricultural use, it could potentially be used in conjunction with the larger lot."
47 In this case, the Tribunal accepted "that the severed lot is not, and is unlikely to ever be, used in conjunction with the agricultural activities on the larger lot".
48 In West & Ors and Western Australian Planning Commission [2005] WASAT 326 at [43], however, the Tribunal drew on Halden & Anor and Western Australian Planning Commission [2005] WASAT 323 where:
"[I]t is clear that, ordinarily, a rural gravel road, such as Jennacubbine East Road, is not a 'significant man-made feature' within the meaning of cl 3.2.1, DC 3.4. Thus the whole subdivision project which is here sought to be approved cannot be achieved as one significant aspect of the proposal fails at the threshold".
49 These Tribunal findings suggest that in assessing a "significant feature" the ability to practically use the "divided" parts of the land in conjunction for agricultural purposes is the relevant test.
(Page 14)
50 The applicant in the current review argued that the drainage swale "prevents heavy vehicle traffic", "prevents the effective pursuit of agriculture as one lot" and all-year vehicular access was only possible with a "four wheel motorbike or farm ute".
51 Mr Horne gave further evidence that "[t]rucks full of superphosphate and seed, and a tractor with something like six or seven hundred litres of water and boom spray for spraying" needed to traverse the central drainage swale as "part of the normal cropping process which happens to coincide with the wettest part of the year". This is an issue encountered on an annual basis although "[i]t's not as pronounced in drier years". Mr Horne's evidence was that in seeking to overcome this issue "we take trucks and vehicles down Berry Brow Road, as much as I don't like doing it" because he considered it "dangerous", "time consuming" and "impractical".
52 The applicant also provided evidence that neither the existing lot, or in fact the proposed two lots, could be regarded as economically sustainable and the existing lot was only environmentally sustainable because he managed the farm well. Mr Horne expressed the view that the proposed two lots would not be any more or less economically viable than the current lot. In this regard, the Tribunal finds that the issue of long term environmental and economic sustainability is not central to the matters under review in this case.
53 On the question of a "significant feature", the Tribunal finds in this case that while the drainage swale clearly creates practical difficulties in terms of efficient farm management over the whole of the subject land it does not constitute a "significant feature" for the following reasons:
1. In spite of the presence of the drainage swale the whole of the land has, in spite of this constraint, historically been farmed as a single agricultural unit.
2. The impact of the drainage swale varies both with the season and over more extended periods where it has diminished in drier years.
3. While access may be restricted at times during the winter to four wheeled motorbikes and farm utes, access between the two sections of the land is always possible across the drainage swale in the area near the Berry Brow Road boundary.
(Page 15)
- 4. In the event that waterlogging prevents direct access between the two sections of the land access is still possible between the two sections of the land utilizing Berry Brow Road.
Whether an undesirable precedent would be set should this subdivision be approved?
54 In the hearing, evidence was provided on two previous subdivision approvals within the broader locality which dealt with lot sizes comparable with those proposed in the subdivision the subject of this review.
55 The Boyercutty Road subdivision application of 1994 involved the creation of 10 lots ranging in size between 29.4 hectares and 601 hectares within the "General; Farming" zone under the then applicable Shire of York Town Planning Scheme No 1.
56 Six of the lots created varied between 28.78 hectares and 46.36 hectares. The subdivision proposed to provide public road access to three existing lots which were effectively "landlocked". The subdivision was rejected by the Commission and upheld by the Minister on appeal. However, in upholding the appeal, the Minister noted that no additional lots were being created, that the subdivision consolidated productive farming land and enabled the retention of remnant vegetation.
57 The Cut Hill Road subdivision of 2004 involved a proposal to establish nine lots ranging in size from 27.13 hectares to 38.78 hectares located in an area approximately five kilometres south-west of the York townsite. The Commission initially refused the subdivision, but following the submission of a land capability assessment and an amendment to TPS 2 to rezone the land from "Rural" to "Rural Smallholding" the subdivision was approved.
58 In addition, evidence was provided on two lots immediately across Berry Brow Road from the subject land. Of these, Lot 27699 comprises 8.89 hectares and Lot 27765 10.65 hectares. In regard to these lots, the Tribunal finds that the fact that they were created prior to the respondent's current policies and are not zoned for rural use, means that they do not provide a relevant precedent in terms of the matters before the Tribunal in the current review.
59 The applicant advised that he was not relying on the Cut Hill Road subdivision as a precedent as the land had been rezoned. He did however
(Page 16)
- argue at the hearing that "there is certainly a relevance and a relationship between the two-lot proposal and Boyercutty Road in regard to the size of lots in Boyercutty Road being similar to the proposal, and also that the Boyercutty Road subdivision is actually accommodated within the general rural zoning". Mr Horne also suggested that based on a review of the original lot layout of the locality based on an older Department of Conservation plan he was of the view that the Boyercutty Road subdivision may well have created additional lots.
60 The respondent's contention was that the proposed two lots constituted rural small holdings or lifestyle lots. This contention was actively contested by the applicant who argued that the agricultural pursuits on the land at the moment constitute broadacre agriculture, albeit at a small scale, and that this would not change should the subject land be divided into two lots. The Tribunal finds that in this case, while the size of the lots proposed is relevant to the matters under review, any attempt to establish a definitive characterisation will not have any substantive bearing on the matters under consideration.
61 On the matter of existing precedent in the locality, the Tribunal finds that there are a number of grounds on which Boyercutty Road subdivision can be distinguished from the application the subject of this review. While there appears to be a question over whether the Boyercutty Road subdivision involved the creation of additional lots, there is no question that it provided public road access to lots which were previously "landlocked". More importantly, approval of the Boyercutty Road subdivision predated the Sub-Regional Strategy, the LRS and the more recent LPS.
62 In regard to the Cut Hill Road subdivision the Tribunal finds that this is a relevant precedent. This more recent subdivision created lots of a size similar to those proposed in the application the subject of this review. This subdivision was, however, only supported by the respondent following the rezoning of the land from "Rural" to "Rural Smallholding" under the Shire of York Town Planning Scheme No 2.
63 In reviewing an application for the subdivision of rural land in Goedhart & Anor and Western Australian Planning Commission [2006] WASAT 237 at [37] the Tribunal reached the conclusion that:
"The policies of the respondent are soundly based, well established and consistently applied. The policies include a general presumption against rural subdivision unless the land
(Page 17)
- has been identified for subdivision in a town planning scheme or an adopted local planning strategy or local rural strategy."
64 In a more recent review in Fewster and Western Australian Planning Commission [2007] WASAT 79 at [36] the Tribunal argued that:
"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."
65 The Tribunal, should it consider the approval of the current application, would be undermining such "soundly based, well established and consistently applied" policies and create an undesirable precedent for future applications to subdivide rural land.
66 Thus on the question of precedent the Tribunal finds in this case that the relevant precedent does not support the case for subdivision of the subject lot and the approval of the current application would create an undesirable precedent for the following reasons:
1. There are a number of grounds on which Boyercutty Road subdivision can be distinguished from the application the subject of this review.
2. The Cut Hill Road subdivision is more relevant in that it is more recent and involved the creation of lots similar in size to those proposed in the application under review. However, this subdivision was only supported following rezoning of the land. The applicant has, in the current case, not sought to rezone the land and on the face of it such a proposal would be unlikely to receive support in the context of the current statutory and policy framework.
(Page 18)
- 3. The Tribunal has in the past recognized the veracity of the planning framework that has been formulated in regards to the subdivision of rural land both at State and local level and it would require exceptional circumstances to challenge this precedent. No such exceptional circumstances apply in the current case.
Conclusion
67 In this review, it was agreed between the parties that the critical issue to be addressed was the application of cl 3.2.1(a) of DC 3.4.
68 However, the Tribunal is of the view that this constitutes too narrow a reading of the relevant statutory and policy framework applicable to this review.
69 The Tribunal shares the view expressed by the President of the former Tribunal in Wilson v Western Australian Planning Commission [2004] WATPAT 215 at where the President argued:
"12. There was an attempt during the course of the hearing on the part of the Appellant to argue that provided they could identify what was involved was a significant feature andthat it physically divide [sic] the proposed lots, and that an undesirable precedent would not be set, that subdivision as of right would follow.
13. That patently is not the way in which the policy reads or is to be understood.
14. The starting point necessarily in such a significant policy is to have regard to the policy objectives. Those policy objectives include:
'Protect agricultural land resources wherever possible by ...
(b) minimising the ad hoc fragmentation of rural land'.
15. There is then under general policy measures an indication of a general presumption against subdivision.
16. The Appellants at one stage attempted to suggest that what was contained in clause 3.2.1 was in some way an
- exception. Again that is not the way in which I would have construed this particular part of the policy. Rather it is a matter, which if satisfied, at best may go some way to either neutralising or minimising the general presumption [against subdivision] appearing in clause 3.1.1.
- 17. The application for subdivision will ultimately fall to be determined on the basis of a consideration of the policy objectives in Policy DC 3.4 as well as the [Shire's local rural strategy]".
70 In this context it would be difficult not to support the view expressed by the Tribunal in West &Ors and Western Australia Planning Commission [2005] (WASAT 326) at [44] that:
"[T]he former Tribunal's decision in Wilson v Western Australia Planning Commission [2004] WATPAT 215 suggests, correctly with respect, that the overriding presumption in favour of minimising the ad hoc fragmentation of rural land still dominates the decision to be made".
71 Given the failure of the application to meet the requirements of s 3.1.1(a) of DC 3.4 and the consistency of State, Sub-Regional and local planning policies establishing a general presumption against subdivision of rural land the application for review is dismissed.
Orders
72 For the above reasons, the Tribunal makes the following orders:
1. The application for review is dismissed.
2. The decision of the respondent is affirmed.
I certify that this and the preceding [72] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR P DE VILLIERS, SENIOR SESSIONAL MEMBER
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