James and ORS and Western Australian Planning Commission

Case •

[2006] WASAT 33

•

14 FEBRUARY 2006

No judgment structure available for this case.

JAMES & ORS and WESTERN AUSTRALIAN PLANNING COMMISSION [2006] WASAT 33



STATE ADMINISTRATIVE TRIBUNALCitation No:[2006] WASAT 33
TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)
Case No:DR:478/20059 SEPTEMBER 2005
Coram:MR J JORDAN (MEMBER)14/02/06
18Judgment Part:1 of 1
Result: The application is allowed
B
PDF Version
Parties:LORRAINE JAMES
STEPHEN BEVIS
SHERYL BEVIS
PETER HENDERSON
NINA HENDERSON
WESTERN AUSTRALIAN PLANNING COMMISSION

Catchwords:
Subdivision refusal ­ "General Farming" zone
Coastal location ­ Quindalup dunes ­ Not suitable for farming ­ Application of local strategies ­ Two additional lots ­ Residential use ­ On­site water supply ­ Impact on rural character and appearance

Legislation:
Shire of Greenough Draft Town Planning Scheme No 5
Shire of Greenough Town Planning Scheme No 4
Town Planning and Development Act 1928 (WA)
Transfer of Land Act 1983 (WA), s 90A, s 129BA

Case References:
Westralia Enterprises Pty Ltd v Western Australian Planning Commission (WATPAT 112)
Nil

Orders
The application for approval of the proposed subdivision of Lot 1 Crowther Road is allowed subject to the following conditions:,1. A Fire Management Plan being prepared and implemented to the specifications of the local government and the Fire and Emergency Services Authority. The applicant should refer to the publication Planning for Bush Fire Protection (available from the Western Australian Planning Commission website for fire protection criteria that need to be met (FESA).,2. Arrangements being made with the local government for the upgrading and/or construction of the unformed 1.7 kilometre section of Crowther Road to the east of Lot 1 to a width of 4 metres with 150 millimetre thick gravel standard, to ensure that all created lots possess road frontage to the local constructed road system (Local Government).,3. Fencing along the boundaries of all lots that abut the foreshore reserve, Crowther Road and Phillips Road to be constructed with 1.2 metre high pine pole/picket and ringlock minimum standard fencing (Local Government).,4. All buildings and effluent disposal systems, having the necessary clearance from the new boundaries as required under the relevant legislation (Local Government).,5. A foreshore reserve 100 metres in width from the vegetation line as established by survey, being shown on the deposited plan as a "Reserve for Recreation" and vested in the crown under s 20A of the Town Planning and Development Act 1928 (WA), such land to be ceded free of cost and without any payment of compensation by the Crown.,6. A Foreshore Management Plan is to be prepared and implemented to the specifications of the Department of Environment (Department of Environment).,7. A restrictive covenant pursuant to s 129BA of the Transfer of Land Act 1893 (WA) (as amended) is to be placed on the certificate(s) of title of the proposed lot(s) advising of the existence of a restriction on the use of the land. Notice of this restriction is to be included on the deposited plan. The restrictive covenant is to state as follows:,"No clearing of any remnant native vegetation or altering of contour levels upon the property other than for the purposes of the creation of a firebreak, driveway, or clearing not greater than 2000 square metres in area about the residence and clustered outbuildings is permitted".,8. A restrictive covenant pursuant to 129BA of the Transfer of Land Act 1893 (WA) (as amended) is to be placed on the certificate(s) of title of the proposed lot(s) advising of the existence of a restriction on the use of the land. Notice of this restriction is to be included on the deposited plan. The restrictive covenant is to state as follows:,"No development is to take place on the coastal dunes or outside the defined building envelope(s) unless otherwise approved by the local government".,9. Notification in the form of a Section 70A notification, pursuant to the Transfer of Land Act 1893 (WA) (as amended) is to be placed on the certificate(s) of title of the proposed lot(s) advising that:,"The lodgement of a development application for a residence or outbuilding to be clustered about the residence location must be accompanied by supporting information verifying the stability of the landform for that intended site location prior to the commencement of any siteworks".,10. A restrictive covenant pursuant to s 129BA of the Transfer of Land Act 1893 (WA) (as amended) is to be placed on the certificate(s) of title of the proposed lot(s) advising of the existence of a restriction on the use of the land. Notice of this restriction is to be included on the deposited plan. The restrictive covenant is to state as follows:,"The location of any building upon the site must not be positioned against the skyline and must not be visible from the Brand Highway. The materials used in the construction of the residence and associated outbuildings are to be of a colour that complements the colours of the surrounding area and not utilise reflective materials or order that the buildings do not appear obstructive to the surrounding area".,11. A restrictive covenant pursuant to s 129BA of the Transfer of Land Act 1893 (WA) (as amended) is to be placed on the certificate(s) of title of the proposed lot(s) advising of the existence of a restriction on the use of the land. Notice of this restriction is to be included on the deposited plan. The restrictive covenant is to state as follows:,"No stocking or broad acre farming activities are permitted upon the coastal dune".,12. Notification in the form of a Section 70A notification pursuant to the Transfer of Land Act 1893 (WA) (as amended) is to be placed on the certificate(s) of title of the proposed lot(s) advising that:,"Any soils disturbed or deposited on the site are to be stabilised to the satisfaction of Council".,13. Notification in the form of a Section 70A notification pursuant to the Transfer of Land Act 1893 (WA) (as amended) is to be placed on the certificate(s) of title of the proposed lot(s) advising that:,"Approval must be obtained from the Department of Environment for the location and installation of any bore that may be required".,14. Notification in the form of a Section 70A notification pursuant to the Transfer of Land Act 1893 (WA) (as amended) is to be placed on the certificate(s) of title of the proposed lot(s) advising that:,"All year round access cannot be guaranteed over the Greenough River via either Westbank Road or Phillips Road during periods of flooding".

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) CITATION : JAMES & ORS and WESTERN AUSTRALIAN PLANNING COMMISSION [2006] WASAT 33 MEMBER : MR J JORDAN (MEMBER) HEARD : 9 SEPTEMBER 2005 DELIVERED : 14 FEBRUARY 2006 FILE NO/S : DR 478 of 2005 BETWEEN : LORRAINE JAMES
    STEPHEN BEVIS
    SHERYL BEVIS
    PETER HENDERSON
    NINA HENDERSON
    Applicant

    AND

    WESTERN AUSTRALIAN PLANNING COMMISSION
    Respondent

Catchwords:

Subdivision refusal ­ "General Farming" zone - Coastal location ­ Quindalup dunes ­ Not suitable for farming ­ Application of local strategies ­ Two additional lots ­ Residential use ­ On­site water supply ­ Impact on rural character and appearance


(Page 2)



Legislation:

Shire of Greenough Draft Town Planning Scheme No 5


Shire of Greenough Town Planning Scheme No 4
Town Planning and Development Act 1928 (WA)
Transfer of Land Act 1983(WA), s 90A, s 129BA

Result:

The application is allowed

Category: B


Representation:

Counsel:


    Applicant : Mr Richard Pawluck
    Respondent : Ms Lise Semenuik

Solicitors:

    Applicant : As Agent
    Respondent : State Solicitor's Office



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

Westralia Enterprises Pty Ltd v Western Australian Planning Commission (WATPAT 112)

Case(s) also cited:



Nil

(Page 3)
REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 The owners (applicants) of Lot 1 Crowther Road, Greenough (subject land) applied to the Western Australian Planning Commission (respondent) to subdivide their lot into three lots of 63.99 hectares each. Lot 1 is zoned "General Farming", but is in the coastal dunes between the Greenough Flats and the Indian Ocean about 12 kilometres south of the mouth of the Greenough River.

2 The respondent refused the application because of the presumption against rural subdivision in its policies and in the Shire of Greenough's Local Rural Strategy. It said the zoning and strategy should be reviewed and guidelines put in place for the development of the land before any subdivision could be considered. The respondent also said that any additional building development would lead to a loss of the rural character of the area and could affect the stability of the dunes.

3 The applicants argued that the lot sizes proposed were consistent with the lot size pattern in the locality and also consistent with the Shire of Greenough's current approach to the planning and development of the locality. They pointed out that this coastal land is not suitable for agriculture and they would accept restrictions on development to ensure that the stability of the dunes was not affected.

4 The Tribunal has approved the application. The subject land is not farming land and, while the three lots will only be used for residential purposes, the lots will be of a size that is consistent with the rural lot size pattern in the coastal dunes and so will be consistent with local character and appearance.




Introduction

5 Lot 1 Crowther Road (subject land) is owned as tenants in common by Lorraine James with one undivided third share, Stephen Bevis and Sheryl Bevis with one undivided third share, and Peter Henderson and Nina Henderson with one undivided third share (applicants).

6 The subject land is located about 1.8 kilometres west of Brand Highway between Crowther Road and the foreshore reserve of the Indian Ocean. Access to the subject land from Brand Highway is along Phillips Road. This road is formed to a gravel standard to a ford of the Greenough River. It then becomes a track to the northeast corner of the subject land and is unmade along the north western boundary of the


(Page 4)
    subject land to the coast. Crowther Road is formed to a gravel standard north of Phillips Road but is unmade along the north­eastern boundary of the subject land. The subject land is 191.9699 hectares with frontage of 1160.58 metres to the Phillips Road reserve and frontage to both Crowther Road and the coastal reserve of 1690 metres.

7 Mr Martin Wells, an environmental scientist called by the applicants, provided a full explanation of the land forms that comprise the subject land. These might be summarised as a strip adjacent to the eastern boundary of approximately 35 hectares, being part of the Spearwood system, cleared in the past and used for grazing. The ruin of Delower's cottage, a heritage listed property, is in this section. A central strip, parallel with the coast of approximately 75 hectares, is described as a belt of parabolic dunes of the Quindalup system in which there has been little, if any, agricultural use due to the inherent infertility and highly variable topography which includes steep slopes and swales. The vegetation cover has the potential to become unstable if cleared or disturbed. The western section adjacent to the foreshore reserve along the south­western boundary is identified as less stable coastal dunes with some evidence of blow­out areas and potential for degradation if further disturbed.

8 In 2001, the Western Australian Planning Commission (respondent) refused an application to subdivide the subject land into lots of the same area as now proposed. The Shire of Greenough (Shire) recommended conditional approval. The respondent refused that application.

9 The applicants then lodged with the respondent in 2005 the current proposal to subdivide the subject land into three lots of 63.99 hectares, each with equal frontage to Crowther Road in the north­east and the coastal reserve in the south­west.




The refusal

10 The respondent refused the application for the following reasons.


    "1. The proposed subdivision is inconsistent with the 'Rural' zoning of the land, the principal purpose of which is to preserve its rural character and appearance. The subdivision, if permitted, would result in an unplanned breakdown of landholdings.

    2. The proposed subdivision is inconsistent with the objectives and contrary to the recommendations in the

(Page 5)
    Shire's current Local Rural Strategy which aims to maintain the existing level of development and rural use of land, and not support any further subdivision in the locality.
    3. Due to the open nature of the landscape the Commission considers that any building development likely to follow subdivision would, in terms of its appearance and siting, lead to loss of the rural character of the area.

    4. Approval to the subdivision would create an undesirable precedent for the further subdivision of other lots of similar size in the Rural Zone of this locality."


11 In its letter to the applicants' consultant dated 20 May 2005 advising of its decision, the respondent also said:

    "1. While the Commission is at present unable to approve this application, it could be considered acceptable once the Shire's proposed Local Rural Strategy has been endorsed and supersedes the current strategy. In this event, should you wish to make another application, the following management issues will need to be addressed:

      (a) Provision of reticulated water supply

      (b) Foreshore management plan and possible widening of the Foreshore Reserve

      (c) Retention of remnant vegetation

      (d) Building envelopes to be sited only on stable landforms and to minimise erosion and visual impacts

      (e) Effluent disposal to be managed in an environmentally sound manner

      (f) Fire management."




Planning framework

12 The subject land is zoned "General Farming" in the Shire's Town Planning Scheme No 4 (TPS 4), which was adopted in 1983.

13 The policy statement for the "General Farming" zone states:


(Page 6)
    "This zone embraces the broad acre farming areas of the Shire. It is intended to protect the economic viability of those areas generally and to preserve the rural character and appearance of the area. The lot sizes shall be at the discretion of Council based on what is locally accepted as a viable farm unit, or where a non-farming use is proposed, on the amount of land required for that purpose."

14 There is no minimum lot area under the zoning and development table of TPS 4 for the "General Farming" zone, but rather, lot sizes are to be at the discretion of the Shire as set out in the policy statement.

15 The subject land is located within Precinct 2A ­ Coastal Area of the Shire's Rural Strategy 1993 (1993 Rural Strategy). Of the objectives and recommendations, the respondent highlighted cl 5.2.4.3 which states:


    "In order to assist in the preservation of the dunal system and alleviate foreshadowed development pressure on this precinct, no further subdivision of lots will be permitted and encouragement will be given to the amalgamation of smaller lots into surrounding or adjoining lots, particularly those with no legal road access."

16 The 1993 Rural Strategy also recommended Precinct 2A be rezoned to recreation or dune preservation and controls be included in TPS 4. This has not happened.

17 In 2005, the Shire adopted a draft Local Rural Strategy (2005 draft Rural Strategy). The respondent has required certain modifications to be made and it is to be advertised in conjunction with a draft Local Planning Strategy that the Shire is preparing.

18 The subject land is included within the Quindalup Dunes Precinct of the 2005 draft Rural Strategy. The major values of the Quindalup Dunes Precinct are proximity to coast, conservation, need for more detailed consideration, potential for tourism and mariculture, and little potential for agriculture due to infertile soils and the high risk of soil erosion. Clause 4.8.6 of the 2005 draft Rural Strategy identifies management guidelines for the Quindalup Precinct which include:


    • vegetation cover needs to be protected so as to prevent coastal sands becoming mobile;

    • building development needs to be planned and managed in such a way as to minimise soil and dune erosion;


(Page 7)
    • licensing of bores should control water extraction;

    • effluent needs to be disposed of in an environmentally sound manner … septics are generally suitable on larger lots.


19 Clause 4.8.7 of the 2005 draft Rural Strategy recommends the creation of landscape protection lots to a minimum of 60 hectares where potable reticulated water is provided. The clause also recommended that foreshore management plans and possible widening of the foreshore reserve be required as part of coastal subdivisions.

20 In addition to the above documents, the parties also referred to:


    • Statements of Planning Policy (SPP) adopted by the respondent:

      SPP 1 State Planning Framework Policy (Variation No.1) 2000 (SPP 1)

      SPP 2 Environmental and Natural Resources Policy 2003 (SPP 2);

      SPP 2.6 State Coastal Planning Policy 2003 (SPP 2.6);

      SPP 2.5 Agriculture and Rural Land Use Planning 2002 (SPP 2.5);


    • Policy DC3.4 ­ Subdivision of Rural Land (DC 3.4);

    • Geraldton Region Plan: WAPC 1999;

    • Guidelines for Rural Development South of the Greenough River Mouth 1995;

    • Batavia Coast Strategy 2001;

    • Greenough Flats and Walkaway Land Use Strategy: Shire 2001 (Greenough Flats Strategy);

    • Draft Local Planning Strategy 2005;

    • Draft Town Planning Scheme No 5 (TPS 5) March 2005.



Discussion

21 The witness called by the respondent was Mr Jerom Hurley, a town planner employed in its Geraldton office. Mr Hurley emphasised that the hierarchy of policies and strategies the respondent has in place, starting with the SPP, do not as a general principle support subdivision of rural land. DC 3.4, which has status as a policy adopted under SPP 1 referred to above, provides a general presumption against the subdivision of rural


(Page 8)
    land unless such subdivision is specifically provided for in a town planning scheme, a local planning strategy endorsed by the respondent, or a local rural strategy endorsed by the respondent. Identifying land for subdivision in this way ensures that there is no unplanned breakdown of landholdings.

22 Mr Hurley said the proposed subdivision was inconsistent with DC 3.4 because the subject land was not identified for subdivision within a scheme or strategy adopted by the respondent and there are no applicable management provisions in place. This was significant for the subject land because it is of unstable coastal landforms.

23 Mr Hurley recognised the current "General Farming" zoning of the subject land as inappropriate, as much of the land is not suitable for broad acre farming. He referred to recommendations in the 1993 Rural Strategy that: the entire dunal system be rezoned to either a recreation or dune preservation zone to retain the natural vegetation and landscape qualities; that a coastal management plan be implemented; that there be no further subdivision; and that amalgamation of smaller lots be encouraged to preserve the dunal system and alleviate development pressures.

24 Mr Hurley referred to the Batavia Coast Strategy, which includes the land within sector C. For this sector, minimum subdivision of the entire dune ridge is recommended to reflect the fragile nature of the land. Development and subdivision should only occur within sector C in special circumstances and locations where impact on the coastal environment can be minimised. Mr Hurley submitted that there were no special circumstances or anything unique about the subject land to justify a departure from the general presumption against subdivision.

25 Mr Hurley said that the proposed subdivision was also inconsistent with the objective of Guidelines for Development South of the Greenough River Mouth, which was also to not allow subdivision and to encourage the amalgamation of smaller lots. Appendix 3.2 of these guidelines characterised the bulk of the subject land as being of poor development potential due to sand movement from the coast with unstable sands predominating.

26 In response to the inclusion of the subject land within Precinct 5 of the Greenough Flats Strategy, which provides for subdivision into lots of a minimum of 40 hectares, Mr Hurley pointed out that subdivision may only be supported if there is addressed:


(Page 9)
    • legal agreements for the retention, conservation and rehabilitation of remnant vegetation;

    • repair of the dune system;

    • detrimental impacts on the natural ecology;

    • stability of landform;

    • infrastructure and servicing requirements;

    • coastal foreshore protection and management;

    • clustering provisions for development.


27 Mr Hurley said that, as the respondent had not endorsed the Greenough Flats Strategy as required by DC 3.4, the 1993 Rural Strategy, which has been endorsed, remains the local planning policy that should be used in determining subdivision applications.

28 In respect of the 2005 draft Rural Strategy, Mr Hurley drew attention to the statement that subdivision into rural smallholdings of between 4 hectares and 40 hectares was undesirable and a minimum lot size of 250 hectares was recommended for landscape protection lots. Subdivision to 60 hectare minimum lots could be considered provided the majority of land was included in a recreation or dune preservation zone and was serviced by reticulated water. He pointed out the subject land is not within such a zone and is not serviced with reticulated water. Mr Hurley said that the 2005 draft Rural Strategy and the 2005 Planning Strategy have not yet been advertised in their latest form, and certainly have not been endorsed by the respondent. It might well be that changes will result before the documents are considered for final approval. Further, the land has not been rezoned and so appropriate planning and management controls to protect the dunes have not been put in place.

29 Mr Hurley referred to the decision in Westralia Enterprises Pty Ltd v Western Australian Planning Commission [2004] WATPAT 112, which resulted in a proposal to create a lot of 163.4 hectares and two lots of 22.5 hectares adjacent to the coast at Flat Rocks to the south of the subject land being refused in the absence of an endorsed subdivisional guide plan.

30 The respondent noted the Shire's support for the proposed subdivision but maintained that the proposed subdivision was against the intention of the endorsed planning framework. The restrictive covenants


(Page 10)
    recommended by the Shire were, in the respondent's view, better addressed through rezoning of the land and appropriate provisions within the town planning scheme rather than as conditions of subdivision. The subdivision was considered by the respondent to be premature because an appropriate policy framework for the subject land is not in place. It considered that no sound town planning reasons had been advanced to show why policy should be departed from and the proposed subdivision approved.

31 The applicants called as a witness Mr Simon Lancaster, a planning officer with the Shire of Greenough. Mr Lancaster argued that it was not correct that the subdivision would be an unplanned breakdown of land holdings. He referred to the Greenough Flats Strategy, which he said was adopted by the Shire after consultation with local landowners and relevant government agencies. It was his evidence that, although the respondent had not endorsed it, the Shire had used the Greenough Flats Strategy to guide development in the region. The subject land was within Precinct 5 of this strategy, for which the statement of intent referred to the protection of landscape values and landform attributes of the coastal dune system. Mr Lancaster said the report identified this as best being achieved through low­key "lifestyle" residential development of a single house and associated clustered outbuildings.

32 Mr Lancaster said much of the direction in the Greenough Flats Strategy had been incorporated into the 2005 draft Rural Strategy. The 2005 draft Rural Strategy identified 60 hectare lots as being appropriate in this locality. In his opinion, the best means of conserving and managing the fragile coastal strip is through subdivision, such as the proposed 63 hectare lots, with restrictive covenants upon the title to allow only clearing for a house, firebreaks and a driveway, conditions to prevent development being visible on the skyline or from Brand Highway, and formal agreements for foreshore management and rehabilitation.

33 Mr Lancaster said this approach had been successfully used in the approval of residences at such coastal locations as Lot 2804 and Lot 13 and would be appropriate in this instance. The Shire had recommended approval of the proposed subdivision with such conditions when consulted by the respondent at the application stage.

34 As to the possible subdivision of the four other large lots identified in the 28 kilometre coastal strip between the Greenough River mouth and the Shire of Irwin boundary, it was Mr Lancaster's view that appropriate subdivision could be considered if consistent with the relevant sections of


(Page 11)
    the 2005 draft Rural Strategy, the Batavia Coast Strategy and the Greenough Flats Strategy.

35 Mr Wells, the environmental consultant, reproduced a map, prepared by the Department of Agriculture and included in Guidelines for Rural Development South of the Greenough River Mouth 1995, which identified stable landforms, semi­stable landforms, and unstable landforms, and he superimposed the proposed subdivision boundaries.

36 Mr Wells used a combination of the geomorphic analysis and aerial photography to identify for each of the proposed lots:


    "• Sufficient areas of high capability (stable) landforms within which it is considered that a house site could be located in an area of low wind exposure and low erosion hazard, and hence mineral land degradation constraints.

    • Significant other areas of 'fair' capability (semi­stable) landforms within which it is considered that a house site could be located subject to common management measures such as minimising the extent and period of exposure for soils bared of vegetation cover during the construction process, and subsequent re­vegetation of unused areas.

    • Sufficient access possibilities into the coastal dune portions through areas of 'fair' capability land … avoiding any disturbance to the unstable steep high parabolic dunes … .

    • Nil or only very minimal areas of the coastal foredune … that is commonly the focus of coastal management initiatives to protect against the development of blowouts arising from vegetation disturbance."


37 Mr Wells offered the opinion that the risk of land degradation within the coastal dune system arising from the proposed subdivision is minimal because:

    "• limited area impact for single house and access route per lot

    • ability to locate all impacts outside of unstable areas


(Page 12)
    • ability to impose, as a condition of subdivision, measures to prevent any clearing or disturbance to areas outside of building envelopes and access routes and to incorporate majority of each lot within a 'dune preservation zone'

    • ability to waiver the need for fencing (with inherent associated risk of vegetation disturbance) between lots and to contain fire management measures within building areas

    • areas of sensitive primary foredune (land unit Qf) which might logically be incorporated in formal coastal foreshore reserve are predominantly outside the subject land."


38 Mr Wells pointed out that stable landform areas of the Quindalup dunes on Victoria Location 3003 approximately 1.5 kilometres to the north­west of the subject land had been subdivided into approximately 16 lots of about 4 hectares. Mr Hurley said this former grazing land had been rezoned to "Restricted Use" with supporting guidelines and he did not consider it provided a precedent for subdivision of land in the "General Farming" zone within Precinct 2A of the 1993 Rural Strategy.


Conclusion

39 In the submissions on this three lot subdivision proposal, the parties referred to at least 15 different policies, strategies and schemes. These ranged in age from 1983 to matters still to be finalised. The documents also ranged from those that underpinned established policies used as a general guide to planning in Western Australia to those more particularly directed to the locality. Some were endorsed by the respondent and others, though not so endorsed, were used by the Shire for planning control in its locality. The range of documents provided scope for the parties to quote selected clauses in various documents to support an argument being advanced.

40 The respondent's cautious approach to rural subdivision is soundly based on its well established policies and in the local strategies it has endorsed. The respondent argued that subdivision should only occur in this coastal strip if the particular locality has been identified, rezoned and had guidelines put in place for subdivision and development. This approach is consistent with Policy DC 3.4 and particular strategic documents. This has occurred with the creation of the 4 hectare lots to the


(Page 13)
    north of the subject land. To the south at Flat Rocks, the Tribunal determined that creation of 22.5 hectare lots to be used for residential purposes should not be created until these steps are taken.

41 The applicants supported their submission in favour of the proposed subdivision by emphasising that established policies should not be determinative of the matter, highlighting the revision of the older strategies now under way, drawing attention to the approach the Shire is now taking to planning of the locality, and illustrating the particular characteristics of the subject land.

42 From the wealth of documents submitted and the comprehensive arguments advanced, the Tribunal has formed the view that this subdivision can be supported.

43 There was no dispute that the subject land, other than about 30 hectares at the eastern edge, is not suitable for agriculture. The objectives of the "General Farming" zone in TPS 4 directed at preserving farming land are not applicable. That part of the objectives which refers to lots being an appropriate size for the use proposed is more relevant. The proposed lots are to be used only for residential purposes, but the Tribunal is of the view that they remain rural lots.

44 It is not appropriate to select a standard threshold at which the size and number of lots would cease to maintain the local rural character and appearance. This would depend upon the particular circumstances of each case. In this case, proposed is the subdivision of a rural lot into three rural lots of 63.9 hectares each. The lots have been shown to have sufficient area of stable land such that a house and associated outbuildings can be located so as not to affect the stability of the dunes and to largely be hidden from view. The lots proposed would not result in a significant change in the rural character and appearance of this coastal locality because they will be of a size and character similar to most of the rural lots in the coastal strip of Quindalup dunes between the mouth of the Greenough River and the southern boundary of the Shire.




Conditions

45 As instructed by the Tribunal, the respondent provided a schedule of draft conditions, without prejudice to its position, for consideration should the Tribunal be minded to uphold the application. The applicant objected to draft condition 5, which reads:


(Page 14)
    "The subdivision is close to the Water Corporation's water supply mains that supply the Greenough Flats area. Suitable arrangements being made with the Water Corporation so that provision of a suitable water supply service will be available to lot(s) shown on the approved plan of subdivision. This may involve the provision of land (for plant or works), easements and/or the payment of contributions towards infrastructure … ".

46 As directed by the Tribunal, the parties provided further submissions on the provision of water. The applicants pointed out that the water main was 1.5 kilometres distant from the corner of the subject land and said the cost of providing water was prohibitive for this 3 lot rural subdivision. They commissioned KH Morgan Geological Consultants Pty Ltd to report on the provision of on­site water. The report concluded that, with an appropriate area of rainwater catchment and use of tanks together with tapping less saline groundwater, an adequate supply of water for the proposed use could be achieved. The applicants also pointed out that the Shire, which controls development approvals, had recommend approval without a condition requiring reticulated water.

47 The respondent contended that the quantity of potable water available was not certain, the quality of suitable groundwater not demonstrated and the cost of providing on­site water not stated.

48 The Tribunal has formed the view that condition 5 is not required. It has been noted that the expert consultant advises there are sources of water available and conditions of approval can be imposed to ensure the Shire is involved in any development of the new lots. The Shire is experienced in development control in this locality and the provision of water can be addressed at the development stage.




Orders

49 The application for approval of the proposed subdivision of Lot 1 Crowther Road is allowed subject to the following conditions:


    1. A Fire Management Plan being prepared and implemented to the specifications of the local government and the Fire and Emergency Services Authority. The applicant should refer to the publication Planning for Bush Fire Protection (available from the Western Australian Planning Commission website for fire protection criteria that need to be met (FESA).

(Page 15)
    2. Arrangements being made with the local government for the upgrading and/or construction of the unformed 1.7 kilometre section of Crowther Road to the east of Lot 1 to a width of 4 metres with 150 millimetre thick gravel standard, to ensure that all created lots possess road frontage to the local constructed road system (Local Government).

    3. Fencing along the boundaries of all lots that abut the foreshore reserve, Crowther Road and Phillips Road to be constructed with 1.2 metre high pine pole/picket and ringlock minimum standard fencing (Local Government).

    4. All buildings and effluent disposal systems, having the necessary clearance from the new boundaries as required under the relevant legislation (Local Government).

    5. A foreshore reserve 100 metres in width from the vegetation line as established by survey, being shown on the deposited plan as a "Reserve for Recreation" and vested in the crown under s 20A of the Town Planning and Development Act 1928 (WA), such land to be ceded free of cost and without any payment of compensation by the Crown.

    6. A Foreshore Management Plan is to be prepared and implemented to the specifications of the Department of Environment (Department of Environment).

    7. A restrictive covenant pursuant to s 129BA of the Transfer of Land Act 1893 (WA) (as amended) is to be placed on the certificate(s) of title of the proposed lot(s) advising of the existence of a restriction on the use of the land. Notice of this restriction is to be included on the deposited plan. The restrictive covenant is to state as follows:


      "No clearing of any remnant native vegetation or altering of contour levels upon the property other than for the purposes of the creation of a firebreak, driveway, or clearing not greater than 2000 square metres in area about the residence and clustered outbuildings is permitted".


(Page 16)
    8. A restrictive covenant pursuant to 129BA of the Transfer of Land Act 1893 (WA) (as amended) is to be placed on the certificate(s) of title of the proposed lot(s) advising of the existence of a restriction on the use of the land. Notice of this restriction is to be included on the deposited plan. The restrictive covenant is to state as follows:

      "No development is to take place on the coastal dunes or outside the defined building envelope(s) unless otherwise approved by the local government".

    9. Notification in the form of a Section 70A notification, pursuant to the Transfer of Land Act 1893 (WA) (as amended) is to be placed on the certificate(s) of title of the proposed lot(s) advising that:

      "The lodgement of a development application for a residence or outbuilding to be clustered about the residence location must be accompanied by supporting information verifying the stability of the landform for that intended site location prior to the commencement of any siteworks".

    10. A restrictive covenant pursuant to s 129BA of the Transfer of Land Act 1893 (WA) (as amended) is to be placed on the certificate(s) of title of the proposed lot(s) advising of the existence of a restriction on the use of the land. Notice of this restriction is to be included on the deposited plan. The restrictive covenant is to state as follows:

      "The location of any building upon the site must not be positioned against the skyline and must not be visible from the Brand Highway. The materials used in the construction of the residence and associated outbuildings are to be of a colour that complements the colours of the surrounding area and not utilise reflective materials or order that the buildings do not appear obstructive to the surrounding area".

    11. A restrictive covenant pursuant to s 129BA of the Transfer of Land Act 1893 (WA) (as amended) is to be placed on the certificate(s) of title of the proposed lot(s)
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    advising of the existence of a restriction on the use of the land. Notice of this restriction is to be included on the deposited plan. The restrictive covenant is to state as follows:

    "No stocking or broad acre farming activities are permitted upon the coastal dune".

    12. Notification in the form of a Section 70A notification pursuant to the Transfer of Land Act 1893 (WA) (as amended) is to be placed on the certificate(s) of title of the proposed lot(s) advising that:

      "Any soils disturbed or deposited on the site are to be stabilised to the satisfaction of Council".

    13. Notification in the form of a Section 70A notification pursuant to the Transfer of Land Act 1893 (WA) (as amended) is to be placed on the certificate(s) of title of the proposed lot(s) advising that:

      "Approval must be obtained from the Department of Environment for the location and installation of any bore that may be required".

    14. Notification in the form of a Section 70A notification pursuant to the Transfer of Land Act 1893 (WA) (as amended) is to be placed on the certificate(s) of title of the proposed lot(s) advising that:

      "All year round access cannot be guaranteed over the Greenough River via either Westbank Road or Phillips Road during periods of flooding".

    I certify that this and the preceding [49] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

    ___________________________________


    MR J JORDAN, MEMBER

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