| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : JOHNSTON and WESTERN AUSTRALIAN PLANNING COMMISSION [2013] WASAT 94 MEMBER : MR J JORDAN (MEMBER) HEARD : 5 MARCH 2013 DELIVERED : 15 MARCH 2013 PUBLISHED : 21 JUNE 2013 FILE NO/S : DR 283 of 2012 BETWEEN : SHELAH JOHNSTON Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords: Town planning Subdivision Refusal Swan Valley Planning Act 1995 (WA) Area B within Swan Valley Planning objectives for Area B Protection of viticulture Encouragement of tourist facilities consistent with maintaining rural character Original lot less than 4 hectares Subdivision proposed to facilitate tourist development Capacity for viticulture Impact of local environment
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Legislation: City of Swan Local Planning Scheme No 17, cl 4.2.19(d)
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 251(2)
State Administrative Tribunal Act 2004 (WA), s 79
Swan Valley Planning Act 1995 (WA), s 4, s 8 Result: Application dismissed
Summary of Tribunal's decision: The site is located at the eastern margin of Area B within the Swan Valley as defined by the Swan Valley Planning Act 1995 (WA). The site has on it a house and buildings and is used for grazing. Proposed was the creation of a lot of 8,706m2 containing a house and outbuildings and a lot of 1.627 hectares. The purpose of the subdivision was stated to be to facilitate the development of tourist related activities and accommodation. This was because of the marginal suitability of the site for viticulture, the lack of such facilities in the locality, the adverse environmental impacts on residential use because of the nearby quarry and use of local roads by heavy vehicles.
The objectives for Area B within the Swan Valley are directed to protecting viticulture, maintaining the rural character and also to encourage tourist facilities that do not detract from these objectives. The objectives also provide that subdivision into lots of less than 4 hectares is only to be considered where consistent with the Area B objectives.
The Tribunal determined that the protection of viticulture referred not only to not removing sites from viticulture use, but also to the effect other uses that might be allowed would have on existing neighbouring viticulture. The Tribunal found that the proposed subdivision had the potential to impact on local rural character and was not necessary before consideration might be given to what tourist uses might be compatible with viticulture. The application for review was dismissed.
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Category: B
Representation: Counsel:
Applicant : Self-represented
Respondent : Mr H Dykstra (Acting as Agent)
Solicitors:
Applicant : N/A
Respondent : Dykstra Planning (Town Planners)
Case(s) referred to in decision(s):
SinAusBell Pty Ltd v Western Australian Planning Commission [2006] WASAT 266
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REASONS FOR DECISION OF THE TRIBUNAL:
Introduction 1 On 15 March 2013 the Tribunal dismissed an application brought by Ms Shelah Johnston (applicant) against the refusal by the Western Australian Planning Commission (respondent). The Tribunal's reasons, delivered orally and edited from the transcript, were as follows. 2 This was an application pursuant to s 251(2) of the Planning and Development Act 2005 (WA) against the Western Australian Planning Commission's refusal to grant approval for the subdivision of Lot 23 Neuman Road, Herne Hill (Lot 23 or site). 3 The proposal before the Tribunal was to subdivide Lot 23 of 2.498 hectares. Lot 23 was created in 2003 by the subdivision of former Lot 46 which was created on appeal to the then Minister for Planning. The Minister had allowed that subdivision because of a purple title ownership arrangement that was causing difficulty and acceptance by the Minister that the land had limited capability for viticulture. 4 Proposed Lot 201, the southern lot, would be 8706m2 with a 110 metre frontage to Neuman Road and would contain an existing house and various sheds. Proposed Lot 202 would be 1.627 hectares and is currently used only for grazing. A 5 metre wide battleaxe leg adjacent to the eastern boundary to Lot 23 would provide road frontage for Lot 202. 5 The respondent's statement of issues, facts and contentions listed six planning instruments it considers relevant to this matter. The primary planning instrument is the Swan Valley Planning Act 1995 (WA) (SVP Act). Under the SVP Act, the Swan Valley is defined as comprising all the land in Area A, Area B and Area C which are depicted on a map in s 4 of the SVP Act. Lot 23 is within Area B, one lot removed from the eastern boundary of the Swan Valley as defined. 6 This site is also within the Swan Valley Rural zone of the City of Swan Local Planning Scheme No 17 (LPS 17). Clause 4.2.19(d) of LPS 17 lists the objectives for the 'Swan Valley Rural Zone', one of which is to ensure development and land use is consistent with the planning objectives of Area B under the SVP Act. 7 The parties included with their documents various maps depicting zones and reservations under LPS 17 and the Metropolitan Region Scheme, the lot size pattern in the locality, the boundaries between (Page 5)
Area A, Area B and Area C under the SVP Act, and also contours which show the site is located in the undulating area at the foot of the face of the Darling Scarp. Also provided for the Tribunal's benefit were aerial photographs that revealed land use in the locality as recent as 2012. 8 The applicant said that the existing dwelling on Lot 23 was subject to disturbance and environmental pollution, particularly from noise, dust and vibration. This was due to the quarrying operation on the General Rural zoned lot to the northeast of Lot 23, the illegal dumping of rubbish alongside an access road to the quarry on the lot abutting to the east, noise from vehicles, especially trucks accelerating and decelerating on the nearby Toodyay Road hill, and the heavy increase in traffic, especially using Neuman Road, to transport waste and concrete products. 9 The applicant said that buildings on proposed Lot 201 could be used for tourist purposes, perhaps a restaurant, but also might be used for rural living and the keeping of a small number of horses. The main purpose of the proposed subdivision was to enable 1.627 hectare Lot 202 to be developed for a tourist use, which might comprise three chalets. 10 The main issue identified in this matter was whether the proposed subdivision would be consistent with the planning framework that applies to Lot 23. Section 8 of the SVP Act lists 10 planning objectives for Area B, six of which are directly relevant to the proposed subdivision. Planning objective 9 for Area B of the SVP Act states: The subdivision into lots of less than 4 hectares only where this is consistent with the objectives set out in this section. 11 The applicant pointed out that Lot 23 was already less than 4 hectares. 12 It was common ground that the SVP Act did not prescribe a specific minimum lot size for Area B. The Tribunal considers that objective 9 is a starting point for consideration of the merits of this subdivision proposal. The objectives and controls of the SVP Act cannot be ignored simply because an original lot is already less than 4 hectares. 13 A proposal to subdivide an existing lot of less than 4 hectares into yet smaller lots must be given individual consideration to ensure any such subdivision would be in keeping with the objectives of the SVP Act. The application is not for development approval; it is an application to subdivide. However, it is an established planning principle that subdivision can be viewed in the context of being a step towards potential (Page 6)
development: see SinAusBell Pty Ltd v Western Australian Planning Commission [2006] WASAT 266 at [40] and [41]. It is in this context that the proposed subdivision can be weighed against the relevant planning objectives for Area B at s 8 of the SVP Act as required by objective 9. 14 Objective 1 simply states 'The protection of viticulture'. The applicant submitted that Lot 23 was too small, lacked water other than scheme water, and comprised soil unsuitable for viticultural services. A report prepared by planning consultants attached to the application for review included Department of Agriculture and Food information that was interpreted to show that up to 70% of Lot 23 had at least a moderate capability for annual or perennial horticulture, grazing or dryland cropping. Vineyards were not specifically mentioned. 15 The Tribunal noted that, as stated by the applicant, this information was from small scale mapping, not individual site analysis. The applicant subsequently filed a statement by Mr Ian Buchhorn, who is described in his letterhead as an economic geologist and mineral economist. 16 In a one page letter Mr Buchhorn described walking over the land and getting information from the owner. He made the comment that the soil appeared to lack the minerals that were a prerequisite for fertile soil suited to horticulture and viticulture. Mr Buchhorn's assertions were not supported by any evidence and he was not called as a witness. It is known from the agreed background of the subdivision that the northern part of Lot 23 was once planted with vines and these are now gone. The lot immediately to the west, Lot 47, is currently planted with vines. There was an unsupported comment from the applicant that the neighbour was considering removal of these vines. To the west and northwest of Lot 23 are lots as small as 1 hectare cultivated with vines, although the respondent provided evidence that in some instances these lots were farmed together as single family enterprises. 17 The Tribunal noted that the 2012 aerial photography provided by the parties shows lots north of Neuman Road and east of Campersic Road at the foot of the scarp cultivated with vines and horticulture, but these uses do not dominate the landscape. 18 As stated by the applicant, Lot 23 is on the margin of the Swan Valley. Whether vines are grown is the decision of an individual owner, but the Tribunal considers it arguable that a vineyard alone would not be a self supporting rural use for Lot 23. (Page 7)
19 The Tribunal does not believe, however, that this provides a basis for allowing subdivision. Lot 201 would be too small for vines and the potential for Lot 202 to support vines would be reduced because of the reduced area and the need to replicate any required buildings now to be located on Lot 201. 20 The Tribunal has concluded that the subdivision would have an adverse impact on the limited potential of Lot 23 to be used for viticulture, so, in this respect, the application would be inconsistent with objective 1 for Area B. 21 The respondent also argued, and the Tribunal agrees, that objective 1 also requires consideration of the impact of the proposed subdivision on existing nearby viticultural operations. Viticulture can cause disturbance to neighbours through overspray, night operations, noise and dust. There are vineyards within 500 metres to the southwest and northwest of Lot 23. Orderly and proper planning demands that there not be introduced into Area B uses that might be in conflict with the objective of preserving viticulture. 22 If subdivision is approved, it does not follow that a tourist use would be allowed in Area B as a matter of course. The specific tourist use and the impact it might have on vineyard operations in the vicinity would be an important consideration. 23 A potentially sensitive use should not be permitted when a consequence might be for that use to object to what are usually standard viticultural practices on other lots in the locality. The Tribunal considers that to allow subdivision in support of a nonagricultural use before the nonagricultural use is identified and assessed for compatibility with operating vineyards would not be consistent with orderly and proper planning. 24 In addition to objective 1 for Area B, certain other objectives are relevant to considering the consequences of allowing subdivision to create an additional lot for potential development purposes. These are: (Page 8)
25 Common to these objectives is maintaining the rural character of the area. Objective 3 for Area B is concerned with encouraging the provision of tourist facilities. The applicant said that that consideration was being given to using proposed 1.627 hectare Lot 202 for the development of up to three chalets. 26 The applicant referred to her personal experience of finding it difficult to find residential accommodation for a wedding party in the Swan Valley and for visitors to the Tibetan Buddhist Society in Campersic Road. The applicant saw chalet development as being consistent with objective 3. 27 The parties made reference to a copy of LPS 17 provided to the Tribunal in the respondent's bundle of documents. It was the applicant's submission that it would not be possible under LPS 17 to obtain approval for chalet development without subdivision. This was because it was said that under LPS 17 there could not be approved, in this zone, any further development of separate accommodation on a lot contain an existing house. 28 The Tribunal considers that the applicant might be misguided in this assumption. The 'Zoning Table' in LPS 17 reveals that in the Swan Valley Rural zone grouped dwellings, cabin or chalet development and tourist facilities, which could include short stay accommodation, are all uses that might be allowed subject to the discretion of the Council. LPS 17 is silent on whether a dwelling can be associated with these uses. 29 The applicant made a comment that the existing dwelling might well be used for a nonresidential use such as a restaurant because of the unacceptable environmental impacts on any residents from surrounding uses. 30 It is again not apparent from the comments made about LPS 17 that a restaurant could not be part of a tourist use that included accommodation. (Page 9)
How any chalet development would have an impact on the rural character is not known in the absence of any concept plan. 31 As stated above, the applicant was of the opinion that Lot 23 was subject to adverse environmental factors. The applicant said the proposed 8,707m2 lot was required to provide a buffer between the impact of vehicles, especially trucks on Toodyay Road and Neuman Road and any chalet or tourist development on the larger Lot 202. 32 The Tribunal would comment that an essential element of a buffer is distance. The distance required might be varied because of topography and vegetation type. However, subdivision does not, of itself, result in the creation of a buffer that would reduce existing environmental impacts. 33 The Tribunal has concluded that it is not necessary for Lot 23 to be subdivided as a precondition to there being designed and lodged with the City of Swan, an application for planning approval for a tourist related development. 34 Objective 4 is concerned with encouraging traditional activities of the Swan Valley; perennial crops and pasture are traditional activities. The Tribunal considers that subdivision would likely reduce the potential for these activities to a token use associated with a tourist type use or, for the smaller lot, a rural residential use. Accommodation and restaurants might be consistent with traditional activities of the Swan Valley such as wine tasting and cellar sales. It is clear to the Tribunal, as discussed above under other objectives, that subdivision is not necessary prior to the preparation of such development proposals. Creation of an additional lot would result in development additional to that which might be approved for a single lot and this may be in conflict with maintaining rural character and amenity. 35 As stated above, objective 6 states 'The compatibility of design, siting and landscaping with the character of the area'. The Tribunal considers that creating an additional development site, and any development that would follow, may have the consequence of changing the appearance of what is the predominant rural character of this locality. Achieving objective 6 would depend greatly on the skill of the designer of any development proposal. The comment can be made that the increased density of development from two lots that are smaller than most in the locality would make this task difficult. As stated above, the Tribunal is of the view that subdivision is not required for an application to commence development. (Page 10)
36 Objective 7 requires discouraging uses incompatible with the rural character and traditional agricultural activities of the area. The applicant argued that Lot 23 does not support the traditional agricultural activity of viticulture. The Tribunal does not accept, however, that subdivision should therefore follow. As discussed above, the impact of any proposed use of the new smaller lots would have the potential to be in conflict with objectives for Area B, particularly in relation to the local rural character. 37 Undesirable precedent for the ad hoc subdivision of lots in Area B was also raised as a concern by the respondent. The applicant submitted that the proposal could not be viewed as a general precedent because of the existing size of Lot 23, being less than 4 hectares, the nature of the soil, and the proximity of Lot 23 to the eastern side of Area B. Also submitted was that this lot could be distinguished by heavy traffic roads and the nearby hard rock quarry. 38 The concern of the Tribunal in respect to the setting of a precedent is that the lot sizes applied for, which are distinctly less than the prevailing lot size of Area B, are proposed as a precondition to exploring what might be allowed as compatible tourist developments. 39 The Tribunal considers that in circumstances where subdivision is not required to explore what uses might be allowed, the new, smaller lots would have the potential to have an adverse impact on the rural character of the locality and would set a precedent inconsistent with the objectives of Area B of the Swan Valley. 40 In conclusion, under the SVP Act, Lot 23 has been included within Area B. The Tribunal considers that the comparisons made with subdivision and related development in localities beyond the Swan Valley serve little purpose. 41 In respect to subdivision proposals in Area B and elsewhere in the Swan Valley, the principle that emerges is that specific information is required on land capability and any proposed use before consideration can be given to subdivision, particularly if into lots of less than 4 hectares. 42 It has been submitted that the subdivision has been proposed to create sites for potential future tourist use including accommodation. It might be that a specific development proposal consistent with Area B objectives might be prepared and lodged with the City of Swan for assessment, but the Tribunal has concluded that subdivision is not necessary for this to occur. (Page 11)
43 The Tribunal has found that endorsing the creation of the two proposed lots in the absence of properly sourced land capability information and specific information on the location design and impact of any nonrural use that would follow would be in conflict with the objectives for Area B of the Swan Valley. 44 The Tribunal has decided to dismiss the application for review and the orders are as follows.
Orders |