KARRAKUP SPRINGS PTY LTD and SHIRE OF SERPENTINE-JARRAHDALE - [2023] WASAT 31

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION:   KARRAKUP SPRINGS PTY LTD and SHIRE OF SERPENTINE-JARRAHDALE [2023] WASAT 31
MEMBER:   DR S WILLEY, SENIOR MEMBER
MS R LAVERY, MEMBER

HEARD:   24, 25, 26 AND 27 OCTOBER 2022
DELIVERED          :   21 APRIL 2023
FILE NO/S:   DR 48 of 2022
BETWEEN:   KARRAKUP SPRINGS PTY LTD
Applicant
AND
SHIRE OF SERPENTINE-JARRAHDALE
Respondent

Catchwords:

Town planning - Development application - Groundwater extraction - High quality agricultural land - Sustainability

Legislation:

Draft Shire of Serpentine-Jarrahdale Local Planning Scheme No. 3,
Metropolitan Region Scheme
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), reg, 28, Sch 2, cl 67(2)(o)
Planning and Development Act 2005 (WA), Pt 5
Rights in Water and Irrigation Act 1914 (WA)
Shire of Serpentine-Jarrahdale Local Planning Strategy, s 3.3, s 3.3.1, s 5.4.3
Shire of Serpentine-Jarrahdale Town Planning Scheme No. 2, cl 1.6, cl 3.2.2, cl 5.10, cl 5.10.1

Result:

Application for review dismissed
Decision of Respondent affirmed

Category: B

Representation:

Counsel:

Applicant	:	Mr A McGlue
Respondent	:	Mr CA Slarke

Solicitors:

Applicant	:	Lavan
Respondent	:	McLeods

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

Attwell and City of Albany [2009] WASAT 38; (2009) 61 SR (WA) 25
Australian Unity Property Limited as responsible entity for the Australian Unity Diversified Property Fund v City of Busselton [2018] WASCA 38; (2018) 237 LGERA 333
Citta Hobart Pty Ltd v David Cawthorn [2022] HCA 16
GMF Contractors Pty Ltd and Shire of Serpentine-Jarrahdale [2006] WASAT 353; (2006) 48 SR (WA) 1; (2006) 151 LGERA 74
Mt Lawley Pty Ltd and Western Australian Planning Commission [2007] WASAT 59
R v City of Munno Para; Ex parte John Weeks Pty Ltd (1987) 46 SASR 400
Robertson and City of Albany [2019] WASAT 3; (2019) 96 SR (WA) 124
Ursula Frayne Catholic College and Town of Victoria Park [2020] WASAT 17; (2020) 99 SR (WA) 76
Van der Feltz v City of Stirling [2009] WASCA 142; (2009) 167 LGERA 236

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

This is a case about extracting groundwater in the context of agricultural land. Karrakup Springs Pty Ltd (Applicant) seeks approval to extract 50,000 kilolitres per annum of groundwater from No 1201 (Lots 13 and 14) Nettleton Road, Karrakup (Land) to be stored and then taken off-site to be processed, bottled and sold (Proposal).
The Shire of Serpentine-Jarrahdale (Shire or Respondent) refused the Proposal on the basis that the extraction of groundwater would be inconsistent with the applicable planning framework including the relevant zoning objectives as well as a number of State planning policies.
The Applicant seeks a review of the Shire's decision to refuse the Proposal (Review).
For the reasons that follow, in the exercise of discretion, we find that the correct and preferable decision is to refuse the Proposal and to dismiss the Review.

Issues

The parties consider, and we agree, that there is ultimately one issue that arises for determination. That issue is whether the Proposal should be approved in the exercise of discretion. However, to address that ultimate question, the parties consider that two sub-issues arise. Those sub-issues are whether the Proposal is:
(a)an appropriate use of the Land; and
(b)sustainable.
In these reasons, we will first address the following questions before turning to consider the ultimate issue:
(a)the agricultural quality of the land; and
(b)the issue of sustainability.

Background

The following facts are agreed or otherwise not in contest. We therefore find as follows.
The Land:
(a)is zoned 'Rural' in both the Shire of Serpentine-Jarrahdale Town Planning Scheme No. 2 (TPS 2) and the Metropolitan Region Scheme;
(b)is located in a small pocket of rural lots on the eastern side of Nettleton Road which have historically been used for orcharding;
(c)has historically been, and is still, used for orcharding;
(d)has been developed with the planting of fruit trees, dams and sheds associated with orcharding;
(e)has three bores with bore pumps, which are or have been, used to irrigate fruit trees both on the Land and on abutting Lot 687 (HN 1201) Nettleton Road;
(f)is identified in Department of Primary Industry and Regional Development (DPIRD) mapping, which is regional mapping and not Shire specific, as being within an area designed as '5070% of the land has high to very high capability' for annual horticulture, and is also considered to have similarly high capability for dryland cropping, grazing, perennial horticulture and vineyards; and
(g)is located in the Karri Groundwater Area which is not proclaimed under the Rights in Water and Irrigation Act 1914 (WA) (RIWI Act).
The other rural lots in the immediate locality to the north and south of the Land are used for rural activities, primarily orcharding.
The Proposal was lodged with the Shire dated 5 October 2021 as an 'application for proposed groundwater extraction' (a use not listed in TPS 2).
The Proposal was described as comprising the following in the application materials:
(a)1 x 250,000 litre Rhino tank;
(b)2 x 50,000 litre stainless steel tanks;
(c)1 x 20-foot sea container to enclose the filtration, piping and pump systems;
(d)15 metre x 5 metre concrete pad;
(e)loading pipes and hose bath installed on concrete pad; and
(f)vehicle crossover and access.
The 'business operations' associated with the Proposal are described as follows:
(a)Water will be extracted from existing bores located at the rear of the Land and pumped to the 250,000-litre Rhino tank.
(b)Water from the Rhino tank will then be pumped through a filtration system (located inside the proposed 20-foot sea container) into the 2 x 50,000 litre stainless steel tanks (all occurring under an automated system).
(c)Water will then be carted from the Land in water tankers. Water tankers will access the Land via an existing access to/from Nettleton Road, travel around the existing road between the shed and house and stop at the loading pad.
(d)Water tankers will then load the water from the stainless steel tanks using the hose and connections housed in the hose bath.
(e)Water tankers will be on the Land for no longer than 30 minutes to load the water. No engines will be running while tanker is being loaded with water.
(f)Once loaded, tankers will then exit the Land via the same vehicle access back onto Nettleton Road. And:
(g)The water will be carted for further off-site processing and bottling. The route to Perth is proposed via Jarrahdale or Karrakup. That is to say, the tankers will only turn left when exiting the Land onto Nettleton Road.
With respect to groundwater, the Applicant:
(a)estimates that the orchard on the Land currently uses approximately 60,000 kilolitres per annum, predominantly extracted in the summer months;
(b)proposes the extraction of up to 50,000 kilolitres per annum, which will be extracted over 12 months of the year. Extraction may take place at any time, on any day of the week; and
(c)proposes that the 50,000 kilolitres extraction for the bottling of water is not in addition to the 60,000 kilolitres which is estimated to be currently extracted for orcharding on the Land. Rather, if the Proposal is implemented, the portion of the Land being used for orcharding will be reduced (by 6 hectares) such that net annual extraction of groundwater from the Land does not exceed 60,000 kilolitres per annum.
During its assessment by the Shire, the Proposal was advertised. A total of 48 submissions were lodged, all of which either objected or raised concerns in relation to the Proposal.
The Proposal was referred to the Department of Water and Environmental Regulation (DWER). The referral response included comments that the Proposal has the potential to impact on water resource values and/or management. The DWER did not object to the Proposal but identified some key issues to be addressed including that the Land is within the Karri Groundwater Area, that it is not proclaimed under the RIWI Act and that the Applicant should be aware that the nature of the groundwater resource is highly variable, thus locating a viable source for a substantial use may be difficult.
On 21 February 2022, the Shire refused the Proposal for the following reasons:
a.The proposed land use is not consistent with the objective of the 'Rural' zone and is therefore not approvable in accordance with clause 3.2.5 (a) of Shire of Serpentine Jarrahdale Town Planning Scheme No.2.
b.The proposed land use is not consistent with the objectives of the 'Rural' zone as contained within draft Local Planning Scheme No.3 and would therefore be a use that is not capable of approval under Local Planning Scheme No.3.
c.The proposed development does not achieve the objectives of the Local Planning Strategy relating to rural land.
d.The proposed development is inconsistent with the objectives of State Planning Policy 2.5 – Rural Planning, in so far as the development is not an agricultural development and is in competition with surrounding agricultural development for essential resources.
e.The proposed development is inconsistent with the objectives of State Planning Policy 2.9 – Water Resources, in so far as the proposal has not conclusively established its level of impact on the groundwater resource.
f.Insufficient information has been provided to adequately address traffic safety issues arising from the proposed development, specifically in relation to the inadequacy of sight lines identified at the intersection of Nettleton Road.'

Applicable planning framework

TPS 2

Clause 1.6 of TPS 2 includes the following general objects and purposes:
…
(b)to zone land for the purposes described in the Scheme so as to promote the orderly development of the land by making suitable provision for land use;
…
(f)to encourage coordinated development of the District in accordance with the guidelines set out in the planning studies adopted by the Council for particular areas or the District as a whole[.]
Clause 5.10 of TPS 2 deals with the Rural Zone. Clause 5.10.1 provides:
The purpose and intent of the Rural Zone is to allocate land to accommodate the full range of rural pursuits and associated activities conducted in the Scheme Area.
Within the Rural Zone, the 'Industry Rural' use class is an 'AA' use, meaning that the use may be approved in the exercise of discretion.[1]

Draft Shire of Serpentine-Jarrahdale Local Planning Scheme No. 3

[1] TPS 2, cl 3.2.2.

The draft Shire of Serpentine-Jarrahdale Local Planning Scheme No. 3 (draft LPS 3) was advertised between 19 September 2019 and 10 January 2020, and the Shire Council considered the submissions made during the advertising period on 22 June 2020. The Shire submitted draft LPS 3 and other documents prescribed by reg 28 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) to the Western Australian Planning Commission (WAPC) on 6 July 2020.
Since this matter was heard, we have been advised that the WAPC considered draft LPS 3 on 14 March 2023. It is therefore possible that the Minister for Planning may soon consider draft LPS 3 for final approval pursuant to Pt 5 of the PD Act.
The Land is zoned 'Rural' pursuant to draft LPS 3. Within the Rural Zone in draft LPS 3, the use classes 'industry' and 'industry - light' are 'X' (prohibited) uses, the use class 'industry - primary production' is a 'P' (permitted) use, and the use class 'rural industry' is a 'D' (discretionary) use.

Local planning strategy

The Shire of Serpentine-Jarrahdale Local Planning Strategy (Strategy) was endorsed by the WAPC on 18 March 2022.
The Strategy identifies the Land as Rural land and states:
… The Shire considers it is important to maintain rural land in close proximity to Perth to accommodate various rural industries and food production activities for the growing population. It is important that rural land is preserved for this purpose and is not consumed by the encroachment of inappropriate activities or suburban expansion[.][2]
[2] Strategy, section 3.3.
In relation to agricultural land, the Strategy provides as follows:

Objectives

Protect large rural lots to ensure access to well positioned land productive use as possible.

Strengthen agricultural production as a significant economic to the Shire and the broader region, promoting the Shire as a 'food bowl'.

Promote alternative technologies and sustainable practice in agriculture and food production.

Protect land for agricultural enterprises in proximity to Perth and its markets.[3]

Strategies

…

d. Prioritise agricultural land and food production industries within rural areas.

…

f. Preserve land classified as having a high land capability for annual and perennial horticulture and grazing in the regional sublanguage soil-language to enable the protection of productive rural land[.]

[3] Strategy, section 3.3.1.

The Strategy also says the following in relation to water management:

Objectives

…

Ensure water resources are conserved and managed sustainably[.][4]

Strategies

…

b. Ensure that impacts to surface waters and groundwater including excessive nutrients, contaminants, clearing, erosion, changes to water flow and runoff volumes are a primary consideration in the assessment of planning and development applications[.]

[4] Strategy, section 5.4.3.

State Planning Policy No. 2

State Planning Policy No. 2 - Environment and Natural Resources Policy (SPP 2) includes provisions with respect to water resources. Section 5.2(ii) provides that planning decision-makers should 'take account of the availability of water resources to ensure maintenance of water quality and quantity for existing and future environmental and human uses'.
SPP 2 addresses 'agricultural land and rangelands' and provides that 'productive agricultural land is a finite resource that must be managed sustainably for the long term'. Planning should ensure that the State's agricultural base is protected from unplanned loss of high quality productive agricultural land due to permanent changes of land use and maximise the potential of productive farmland which is of high quality and strategic significance in the State, regional and local context'.[5]

State Planning Policy 2.5

[5] SPP 2, cl 5.6.

State Planning Policy 2.5 - Rural Planning (SPP 2.5) applies to rural land and land uses, and to development proposals on rural zoned land.[6]
[6] SPP 2.5, cl 3.3.
SPP 2.5 includes the following policy objectives and measures for protecting rural land use:

Policy Objectives

(a)   support existing, expanded and future primary production through the protection of rural land, particularly priority agricultural land and land required for animal premises and/or the production of food;

(b)   provide investment security for existing, expanded and future primary production and promote economic growth and regional development on rural land for rural land uses;

…

(d)   provide a planning framework that comprehensively considers rural land and land uses, and facilitates consistent and timely decision-making;

…

(g)  protect and sustainably manage environmental, landscape and water resource assets.[7]

Policy measures

The WAPC seeks to protect and preserve rural land for rural purposes including primary production, basic raw materials, regional facilities, and protection of biodiversity and landscape.   Rural land accommodates a diverse range of land uses, primarily associated with primary production. There are also rural areas with suitable soils, climate, water (rain or irrigation) and access to services such that the land is considered to be high quality agricultural land. The intent of this policy is therefore to protect rural land and encourage a diversity of compatible rural land uses[.]

[7] SPP 2.5, cl 4.

State Planning Policy 2.9 - Water Resources (SPP 2.9) applies throughout Western Australia and includes policy measures relevant to development applications. SPP 2.9 includes the following:

Policy objectives

1. protect, conserve and enhance water resources that are identified as having significant economic, social, cultural and / or environmental values;

2. assist in ensuring the availability of suitably water resources to maintain essential requirements for human and all other biological life with attention to maintaining or improving the quality and quantity of water resources; and

3. promote and assist in the management and sustainable use of water resources.[8]

General policy measures

…

(ii) Aim to prevent or, where appropriate, ameliorate the following potential impacts:

· any adverse effects on water quality and quantity and, as a minimum, proposed development should aim to maintain water quality and ensure water quality is compatible with the receiving waters;

[8] SPP 2.9, cl 4.

Draft State Planning Policy 2.9

Draft State Planning Policy 2.9 - Water Resources (draft SPP 2.9) was advertised for public comment in late 2021. Draft SPP 2.9 includes the following:

Policy objectives

…

5.4   Ensure the secure and sustainable supply, use and reuse of water resources.

5.5   Ensure future development is resilient to the water-related impacts of climate change[.]

Policy outcomes

6.1    Planning and development maintains or enhances water quality and hydrological regimes to protect public health and support healthy ecosystems through the:

i.   protection of sensitive water resources;

ii. protection of existing vegetation and / or restoration of cleared or degrade vegetation, preferably with endemic species;

iii. appropriate siting and management of land uses; and

iv. maintenance of natural flows in waterways, groundwater levels and inundation of wetlands to sustain aquatic and terrestrial habitats through the delivery of appropriate stormwater and groundwater management systems.

…

6.4    Planning and development maintains and enhances access to water resources where relevant.

…

6.8    Development has access to, and contributes to secure, sustainable, and climate resilient water supplies. Where practical, this involves recycled water and / or other fit-for-purpose water sources[.]

General measures

…

b)    Proposals are to be accompanied by sufficient information to demonstrate appropriate protection and management of water resources relating to relevant policy outcomes. The information provided should be in accordance with the Guidelines, which specify instances where a Water Management Report is required and what it must contain.

…

d)    Proposals should consider water resource related issues associated with climate change[.]

Oral evidence

In this matter, we heard from six expert witnesses as follows:

Applicant's witnesses

(a)Rian Moore - Hydrogeologist;
(b)Bianca Sandri - Town Planner; and
(c)Mark Szabo - Town Planner.

Respondent's witnesses

(a)Vic Semeniuk - Hydrogeologist;
(b)Heather Percy - Land Capability expert; and
(c)Andrew Trosic - Town Planner.

Applicant's case

In short compass, the Applicant's case is that groundwater extraction is a legally permissible use under TPS 2. It submits that such a use is consistent with, and does not undermine, the zoning objectives. The use will also maintain an appropriate level of amenity as aspects of the existing orchard will remain with grazing being undertaken on the balance. The 'change in use' will not be readily discernible to members of the public.
There is nothing in the applicable planning framework that favours or privileges the ongoing retention of orcharding on the Land, as distinct from other agricultural uses (such as grazing).

Under draft LPS 3, the Proposal would properly be classified as a 'use not listed' and be assessed as an innominate (unlisted) use. In any event, the Applicant does not accept that the finalisation of draft LPS 3 could be regarded as certain and imminent.
On the question of sustainability, the level of information on groundwater extraction that has been provided by the Applicant is appropriate in that the volume of water proposed to be extracted is commensurate with the existing orcharding use. There is no apparent basis to assert that the Proposal may give rise to a material adverse impact on neighbouring groundwater users nor on downstream ecosystems. In the circumstances, a more detailed assessment of groundwater is unnecessary.
Given that the Respondent is comfortable with the Land being used for orcharding, it is axiomatic that it is therefore comfortable that the existing orcharding use, including the volumes of groundwater being extracted, are therefore sustainable.
The Proposal is more sustainable than the existing orcharding because it will involve a limit being placed on how much groundwater may be extracted as opposed to the current situation whereby the volume of groundwater which may be extracted is unlimited.

Respondent's case

The Respondent's case is that the Proposal is not an appropriate use of the Land on the basis that:
(a)it is not a rural pursuit nor is it ancillary to, or facilitative of, a rural pursuit. To that extent, it cannot be said that the Proposal is consistent with the purpose and intent of the Rural Zone. To the extent that it could be considered to be an 'associated activity' to rural pursuits merely because it is permissible, it is nevertheless an inappropriate use of rural land, having regard to other considerations;
(b)the Land is mapped as having a high to very high capability for annual horticulture (and has a generally high capability for other productive agricultural activities). This is demonstrated also by historic (and current) use of the Land for orcharding;
(c)the Strategy makes it plain that rural land is intended to facilitate agricultural production, and that rural land for food production should be preserved for that purpose;
(d)SPP 2 emphasises that productive agricultural land is a finite resource that must be managed for the longer term;
(e)SPP 2.5 seeks to protect and preserve land for rural purposes, and provides that the WAPC will seek to protect rural land as a State resource through the land use planning framework; and
(f)SPP 2.5 also provides that 'rural areas with suitable soils, climate, water (rain or irrigation) and access to services such that the land is considered to be high quality agricultural land'. Under SPP 2.5, based on mapping prepared by the DPIRD land capability mapping (which includes the Land), as well as the historic use of the Land for orcharding, the Land should be regarded as being, or likely to be, high quality agricultural land.
The considerations listed at [40(a)] to [40(f)] above indicate a clear policy preference for retaining land for rural purposes, in particular land which has high capability for food production.
The Proposal seeks to facilitate a land use that would:
(a)cause the existing orchard area on the Land to be materially reduced in size; and
(b)prevent the re-establishment of orcharding on the Land by the consumption of groundwater that would otherwise be available for such uses.
The Proposal is therefore contrary to the primary purpose and intent of the Rural Zone, and relevant policy provisions in the Strategy, SPP 2 and SPP 2.5 which are intended to protect and preserve productive agricultural land.
On the question of the sustainability of the Proposal, it is noted that sustainability is a core element of orderly and proper planning.[9] The Applicant has not demonstrated that the Proposal is a sustainable use of the Land.
[9] Robertson and City of Albany [2019] WASAT 3; (2019) 96 SR (WA) 124 [174]; citing Mt Lawley Pty Ltd and Western Australian Planning Commission [2007] WASAT 59 [47].
The concept of sustainability directs attention to whether the water usage can be maintained in the longer term without unacceptable impacts on other users of the environment. This is reflected in cl 67(2)(o) of the deemed provisions[10] which requires consideration to be given to 'the likely effect of the development on the natural environment or water resources and any means that are proposed to protect or to mitigate impacts on the natural environment or the water resource'. Such concerns for the sustainability of groundwater usage are echoed in SPP 2 and SPP 2.9.
[10] Being the provisions contained in Sch 2 to the Planning and Development (Local Planning Schemes) Regulations 2015 (WA).
The Respondent considers that the Proposal should be refused because the information provided by the Applicant is insufficient having regard to:
(a)the existing aquifer system, including long-term groundwater levels, water quality and aquifer properties;
(b)potential impacts on existing or potential groundwater users;
(c)potential detrimental impacts on groundwater dependent ecosystems downstream from the Land; and
(d)climate change considerations.
The Respondent submits that in order to address the question of sustainability, a stratigraphically based study of hydrogeology, a study of water budget complemented by local rainfall data, determination of water movement and an accompanying study of hydrochemistry is required.
Pursuant to draft LPS 3, the Proposal would fall within the use class of 'industry' or, potentially, 'industry light'. Both of these uses will be prohibited in the Rural Zone under draft LPS 3. Furthermore, it would be contrary to orderly and properly planning to approve the Proposal if it is going to be a prohibited use under draft LPS 3.

Classification of the Proposal

The parties agreed that the Proposal is properly classified as 'Industry Rural' for the purposes of TPS 2.[11] As we have stated, Industry Rural is defined as follows in TPS 2:
an industry handling, treating, processing or packing primary products and a workshop servicing and selling plant or equipment used for rural purposes.
[11] Ms Sandri considered it was an innominate use under TPS 2: ts 196, 26 October 2022.
The Industry Rural use is an AA use in the Rural Zone. Perforce of cl 3.2.2, an AA use is a discretionary use. A discretionary use is, in planning terms, a use that may be approved in the exercise of discretion.[12]
[12] Ursula Frayne Catholic College and Town of Victoria Park [2020] WASAT 17; (2020) 99 SR (WA) 76 [165].
Regardless of the position of the parties, the classification of a land use is a question that may go to jurisdiction. It is, as an administrative tribunal, incumbent on us to satisfy ourselves that we have jurisdiction to hear and determine the dispute before us.[13]
[13] Citta Hobart Pty Ltd v David Cawthorn [2022] HCA 16 [17] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ).
TPS 2 is a written law and the ordinary canons of construction apply. In addition, a planning scheme should be construed broadly rather than pedantically, and with a sensible practical approach.[14]
[14] Australian Unity Property Limited as responsible entity for the Australian Unity Diversified Property Fund v City of Busselton [2018] WASCA 38; (2018) 237 LGERA 333 [84] (Buss P, Murphy JA, Mitchell JA).
Reading and applying TPS 2 in a broad and common-sense fashion, and in a manner which achieves its evident town planning purpose, we are satisfied that the Proposal is properly classified as Industry Rural and thus is capable of approval. That is to say, we are satisfied that groundwater is a primary product that is proposed to be processed.

Issue 1: the agricultural quality of the Land

On any view, the Land cannot be regarded as mere broadacre farming land. It sits in the Perth Hills and has access to a proven supply of groundwater. The land capability mapping that has been undertaken by DPIRD indicates that the Land sits within a locality that has a high capability for horticultural production.
This is the opinion of Ms Heather Percy, an expert witness called by the Respondent. Ms Percy's evidence is based on her professional judgment as well as peer reviewed, published mapping and interpretation regarding land capability sourced from DPIRD's online portal, NRInfo and dated 8 September 2022.
Ms Percy concedes the mapping is broadscale generalised for each map unit, each of which represents a grouping of soils and landforms. Ms Percy notes that such mapping assists, but does not replace, an onsite assessment for a specific property. Ms Percy also conceded she has not undertaken a site inspection of the Land.
Ms Percy's evidence explains the evolution of the land capability mapping for the Darling Range initially published in 1990,[15] which identified the Land contained three soil-landscape units (Dwellingup 2 (255DpDW2), Yarragil 1 (255DpYG1) and Yarragil 4 (255DpYG4)).
[15] King and Wells 1990.
In south-west Western Australia, land capability is assessed using established land evaluation standards[16] adopting a five-class system. These five classes are often used to develop land capability mapping so as to reduce the categories to three. The result map units are:
(a)Category A land is where there is 50% or more high capability zone land units (A1 if there is 70-100% high capability and A2 if there is 50-69%).
(b)Category B land if there is less than 50% high capability zone land units but 50% or more moderate or high capability zone land units (B1 if there is 70-100% moderate capability and B2 is there is 50-69%).
(c)Category C land if there is 50% or more low capability zone land units (C1 if there is 50-69% low capability and C2 if there is 70100%).
[16] Van Gool, Tille & Moore 2005.
Ms Percy explains that the highest capability for perennial horticulture on the Land is in Yarragil 1, mapped as being with the A1 category, as 88% of the unit is rated as Class 1 or Class 2. The Yarragil 4 and Dwellingup 2 units are mapped as category A2, with 67% and 66% of the units rated Class 1 or Class 2 for perennial horticulture.
Ms Percy considers that the 'relevant agricultural uses are annual horticulture and vines'. Ms Percy is of the view that the capability of the Land is high for viticulture (category A1 or A2), similar to perennial horticulture and slightly lower capability for annual horticulture on Yarragil 1 and 4 (category A2).[17]
[17] Exhibit 16, para 23 and para 24.
Ms Percy's opinion is that the Land is high quality agricultural land:
[b]ased on the high capability for perennial and annual horticulture and viticulture, water availability for irrigated cropping, and the current use of [the Land] and neighbouring properties.[18]
[18] Exhibit 16, para 30; see also ts 311, 27 October 2022.
Although Ms Percy was cross-examined by Mr McGlue, counsel for the Applicant, we accept her evidence. Her evidence was considered, compelling and was not contradicted by any expert evidence proffered by the Applicant. Her evidence is also consistent with what was observable on the site view attended with the parties at the commencement of the final hearing. That is to say, on any view, it is apparent that the Land - together with the surrounding locality - has long been used for orcharding purposes.
The Land's undulating topography and its location in the Perth Hills - as opposed to the Swan Coastal Plain - is also immediately apparent.
In so far as Mr McGlue attempted to unpick, challenge or cast doubt upon Ms Percy's interpretation of the regional land capability mapping that informed her assessment of the Land's agricultural qualities, we are not persuaded.[19]
[19] See, for example, ts 288 to 307, 27 October 2022.
We accept that the mapping that informs Ms Percy's opinion was undertaken at a regional level and cannot, of itself, be taken as conclusive evidence that the Land is high quality agricultural land as against a sitespecific assessment suggesting otherwise. However, that mapping together with Ms Percy's interpretation thereof, together with her views on the site history all suggest that the land is high quality agricultural land. The Applicant could have, but did not, undertake its own investigations as to the agricultural capacity of the Land (and locality) or otherwise.
We therefore find, on the evidence, that the Land is high quality agricultural land. We will address the question of the appropriateness of the Proposal when we turn to the ultimate issue later in these reasons.

Issue 2: the question of sustainability

The Tribunal had the benefit of two hydrology experts. Dr Vic Semeniuk prepared a witness statement for the Respondent. The Applicant called Mr Robert (Rian) Moore.
The hydrology experts focused on the question of the sustainability of groundwater extraction.
Mr Moore prepared the hydrological assessment which was lodged as part of the development application. That report considered regional hydrogeology as well as the hydrogeology of the Land. The main source of groundwater of the Land is a saprolite aquifer that yields up to 130 kilolitres per day via bores. The main source of recharge for the aquifer is rainwater (where the 10-year average for Jarrahdale is still 1,000 millimetres per year).
Reflecting on the historic use of land in this locality for fruit trees, Mr Moore estimates that in 2003 there was 26 hectares of land consuming approximately 208,000 kilolitres of water. In 2018, that had reduced to 14 hectares using approximately 112,000 kilolitres. Mr Moore considers that the reduction in fruit trees across the locality means that a minimum of 96,000 kilolitres is no longer being consumed. He notes that a further 6 hectares is proposed as part of the Proposal.
Mr Moore considers that the Proposal will not cause excessive or unreasonable impacts on neighbours.
Dr Semeniuk undertook a peer-review of Mr Moore's hydrogeology assessment prepared for the Applicant. His overall opinion is that the hydrology assessment 'is insufficient to provide adequate and reliable hydrological information to warrant sustainable and environmentally acceptable extraction of groundwater'.[20]
[20] Exhibit 5, VS 3, page 2.
Dr Semeniuk is of the view that in order to understand where 'water is coming from and where is it going to' there needs to be a stratigraphically based study of hydrogeology, a study of water budget complemented by local rainfall data, determination of water movement, and an accompanying study of hydrochemistry.[21]
[21] Exhibit 5, VS 3, Section 4.
Because of the decision we have ultimately reached in relation to the acceptability of the Proposal in the context of the applicable planning framework, it is unnecessary for us to resolve, in any determinative sense, the question of the sustainability (or otherwise) of the availability of groundwater for the purposes of extracting groundwater for use in a commercial water-bottling operation.
However, what we would say is that Dr Semeniuk's recommendations as to what further studies should be undertaken so as to inform the hydrological picture of the Land and the locality seems somewhat unrealistic. While no doubt such studies would provide the Applicant and the Respondent with a much more informed picture of the hydrological context in which the Land sits, it seems to us that Dr Semeniuk's approach is somewhat disproportionate to the development for which approval is being sought.
If this were a regional study on the hydrological profile of the Perth Hills, which would then inform land use planning decisions at a larger scale, Dr Semeniuk's approach seems quite reasonable.
However, in the context of an application to extract no more than 50,000 kilolitres per annum of groundwater to produce saleable drinking water, it seems to be somewhat excessive, even unrealistic. In saying that, we mean no criticism of Dr Semeniuk whose long experience seems focused on regional studies, often with an academic context. Dr Semeniuk's experience is not in preparing hydrological assessments in the context of lodging development applications.
We consider that it is not necessary for us to make a final determination on the sustainability or otherwise of the Proposal. However, in saying that, in our view, it is not without significance that the Karri Groundwater Area is in an area that is not licensed, and is not required to be licensed, under the RIWI Act.
If there was a concern about the sustainability of the extraction of groundwater in this locality, given its historic uses which rely on groundwater, one might expect it to, at least, be licensed by the DWER.

Consideration of the ultimate issue

Overview of the planning evidence

We turn, now, to what we consider to be the issue which lies at the heart of this proceeding. That issue is whether the Proposal is an appropriate use of the Land in the context of the applicable planning framework.
We heard from three experienced town planners: Ms Sandri, Mr Szabo and Mr Trosic.
Mr Szabo is of the view that the activities that comprise the Proposal are generally already occurring on the Land. That is to say that groundwater is already being extracted and stored in a dam (rather than in the proposed tanks), there are fruit trees being grown and products are packaged and distributed from the Land.
Mr Szabo also notes that, 'from a land use and development perspective', the only new 'development' that is proposed to be introduced on the Land is the construction of an additional concrete pad, the placement of three water storage tanks and one 20-foot sea container that will enclose the relevant pumping and filtration equipment. Mr Szabo considers that each of these elements would not appear out of place on the Land.
Mr Szabo considers that the Proposal will not result in the Land being removed from agricultural production. What is happening, he suggests, is that the landowner has made a decision to, in effect, downsize their horticultural operation by removing the fruit trees that require the most water. The land from which the fruit trees are removed will be grazed. Thus, the Land is not being removed from agricultural production.
Mr Szabo ultimately considers that:[22]
… the proposed groundwater extraction land use can be established on the [Land] without undue impacts on the amenity and character of its rural locale. The proposed use is capable of being considered and approved under [TPS 2]. Furthermore, the [Proposal] will not unduly affect the current or future productive capability of the [Land] given it has a very small development footprint and the balance of the site will continue to be used for agricultural uses, albeit less intensive than the most recent uses.
[22] Statement of Mark Szabo dated 16 September 2022, para 62.
Ms Sandri, like Mr Szabo, considers that the Proposal warrants approval. She considers that the Proposal would not unduly impact the locality and should be approved subject to appropriate conditions. In reaching her ultimate view, Ms Sandri's statement steps through each of the relevant considerations that inform the exercise of planning discretion. As stated, it is her view that the Proposal warrants approval.
Mr Trosic was called by the Respondent. He considers that the strategic context of the Land is significant. This is because the Land forms part of a narrow band of rural land which is located in the Perth Hills, north of Jarrahdale. That is to say that the Land is somewhat 'rarer' than the majority of rural land which is located on the Swan Coastal Plain.
Mr Trosic observes that in the evolution of the strategic planning framework for the Shire, the Land has always been designated for rural uses. In the 2013 Strategy, the Land was included in an Agricultural Protection Policy Area which was to provide an 'extra level of protection for productive agricultural land and the agricultural use to which it is or may be put'.

As stated, the Strategy was endorsed by the WAPC on 18 March 2022, replacing the 2013 Strategy. The Strategy, inter alia, 'prioritises agricultural and food production industries within rural areas' and to 'preserve land classified as having a high land capability for annual and perennial horticulture and grazing in the regional soil-landscape to enable the protection of productive rural land'.
Mr Trosic also refers to the following water management strategy identified in the Strategy:[23]
… Ensure that impacts to surface waters and groundwater including excessive nutrients, contaminants, clearing, erosion, changes to water flow and runoff volumes are a primary consideration in the assessment of planning and development applications[.]
[23] Strategy, section 5.4.3.
Mr Trosic, like Ms Sandri and Mr Szabo also reviewed and considered relevant State planning policies including SPP 2.5 and SPP 2.9. These regional policies set out broad, overarching planning objectives.
Mr Trosic considers that, properly construed, the strategic planning framework prioritises the protection of agricultural land that has been identified as having high capability for food production.
Mr Trosic considers that uses that result in groundwater being used for different purposes, such as with the Proposal, detracts from productive agricultural uses and is thus inconsistent with the applicable planning framework.

The ultimate issue: disposition

For the reasons that follow, we are not satisfied that the Proposal represents an appropriate use of the Land.
Our primary concern is that the applicable planning framework, TPS 2 and the Strategy, prioritises rural and agricultural land uses in this locality. The Proposal seeks to, in effect, largely remove the Land from agricultural production so as to allow the groundwater to be bottled for commercial sale.
We have carefully considered the Proposal having regard to the Land's attributes in the context of the applicable planning framework. At some level, the Proposal may have some merit. If there is capacity for groundwater to support a new economic activity in this area then that, of itself, is not necessarily a planning outcome that is to be avoided.
However, the issue here is whether that 'new' activity comes at the expense of agricultural land uses. We say this because the preservation of high quality agricultural land, or whatever label is assigned to it (such as 'priority agricultural land' in the context of SPP 2.5) is, and indeed must be, a fundamental objective of land use planning.
That is made plain by the State planning framework read as a whole and finds expression in SPP 2.5 which has the intent of 'protecting and preserving Western Australia's rural land assets'. Likewise, SPP 2 provides that 'productive agricultural land is a finite resource that must be managed sustainably for the longer term'. While these State planning policies are plainly regional in focus, they do inform statutory decisionmaking that involves agricultural and rural lands, in particular in areas of high quality agricultural land.
We also note that the stated purposes of the PD Act include 'providing for an efficient and effective land use planning system' and also to 'promote the sustainable use and development of land'.
There is, in our view, plainly a public interest in ensuring that high quality agricultural land is not eroded or diminished by ad hoc and illconsidered land use planning decisions. That public interest is reflected in the strategic planning instruments to which we have referred.
It is convenient here to discuss, briefly, the purpose and intent of the Rural zone. In this instance, unlike in GMF Contractors Pty Ltd and Shire of Serpentine-Jarrahdale (GMF),[24] we find cl 5.10.1 of TPS 2 to be of some assistance. While we agree with the Tribunal's observations in GMF that the purpose and intent of '[allocating] land to accommodate the full range of rural pursuits and associated activities conducted in the Scheme Area' is hardly of assistance as it 'simply confirms that the range of land uses which are capable of approval under the zoning table can take place within the Rural zone', in this instance we are not satisfied that the Proposal involves a rural pursuit.[25]
[24] GMF Contractors Pty Ltd and Shire of Serpentine-Jarrahdale [2006] WASAT 353; (2006) 48 SR (WA) 1; (2006) 151 LGERA 74 [50].
[25] GMF [50].
The expression 'rural pursuit' is not a defined term in TPS 2 and therefore the words carry their ordinary and common meaning.[26]
[26] Van der Feltz v City of Stirling [2009] WASCA 142; (2009) 167 LGERA 236 [90] (Murphy J).
As the Tribunal observed in Attwell and City of Albany,[27] the adjective 'rural' is defined in the Macquarie Online Dictionary to mean:
1. of, relating to, or characteristic of the country (as distinguished from towns or cities), country life, or country people; rustic. 2. Living in the country. 3. of or relating to agriculture: rural economy.
[27] Attwell and City of Albany [2009] WASAT 38; (2009) 61 SR (WA) 25 [25].
Likewise, 'pursuit' is relevantly defined in the Macquarie Online Dictionary to mean:
3. any occupation, pastime, or the like, regularly or customarily pursued: literary pursuits.
We find that the extraction of groundwater is not an activity that is peculiar to rural areas such that it can be said to characteristic of the country. Groundwater is extracted in many urban and suburban contexts. For this reason, we are of the view that the Proposal is not consistent with the purpose and intent of the Rural zone because it does not involve a rural pursuit. Furthermore, we also do not consider that groundwater extraction for commercial bottling is an associated activity of a rural pursuit.
Now, of course, we accept that the owners of land which is identified as being high quality agricultural land cannot be compelled to farm their land for productive purposes. That is the point made by Mr Szabo. However, it is no argument, in our view, for a lack of desire on the part of the landowner to continue farming their land, to drive a land use decision to allow such land to, in effect, be converted to other uses. Planning decisions are ultimately about ensuring the public interest is adequately protected in the land use planning process.[28]
[28] R v City of Munno Para; Ex parte John Weeks Pty Ltd (1987) 46 SASR 400, 406 (King CJ).
We find that the applicable planning framework evinces an intention to manage finite resources - such as high quality agricultural land - carefully for the longer term. That intention is not displaced nor diminished just because, as is the case here, a particular landowner has 'had enough' of farming and wishes to downsize or abandon their farming operations. Put another way, the quality of the Land for agricultural uses is a separate matter than the current and future intentions of a particular landowner.
As we have stated, we accept Ms Percy's evidence and find that the Land is high quality agricultural land. Taking account of the definition of 'priority agricultural land' in SPP 2.5, on the evidence we have, we find it is Land that is of, at least, local significance as it enjoys comparative advantages over other agricultural land in terms of its soil, climate, groundwater and its location close to the Perth and Peel conurbation.
We make this finding notwithstanding that there may not yet be the mapping of High-Quality Agricultural Land for the Perth metropolitan region, as is referred to in SPP 2.5, in order for the Land to be formally recognised as 'priority agricultural land' under that policy.[29]
[29] ts 310, 27 October 2022.
As we have explained, on the evidence provided by Ms Percy, coupled with the observations made plain at the site view, we are satisfied that the Land is high quality agricultural land that warrants protection under the planning framework. Whether or not at some future point it is found to be 'priority agricultural land' for the purposes of SPP 2.5 does not alter the result.
While we have carefully considered the evidence of each of the planning witnesses, we prefer and accept the evidence of Mr Trosic. We find his evidence constituted a sensible and balanced interpretation of the applicable planning framework.
The Proposal will have the direct effect of removing up to 50,000 kilolitres of groundwater a year from being available to be used for agricultural land uses on the Land. It will also result in land being converted from orcharding to a more idle (or less intensive) agricultural use of grazing (which is, in reality, only being undertaken for land management purposes).
While it is true that the planning framework does not expressly 'privilege' orcharding or horticultural uses on the Land it does not follow, in our view, that a decision to divert available groundwater to 'other' uses, that has the effect of leaving the Land only able to be used for grazing, in order to accommodate that 'other' use, is consistent with orderly and proper planning having regard to the finite nature of such resources.
We find that this is a planning outcome, if granted on an enduring basis, would be contrary to the applicable planning framework as well as the public interest.
In our view, there is no cogent planning reason to support the Proposal in the terms in which has been put forward.
Because of the decision we have reached, there is also no need to enter into an analysis of whether the Proposal could be approved under draft LPS 3, which we understand may be on the cusp of being considered for final approval by the Minister for Planning.
As we have stated, in some contexts the Proposal may not be objectionable in planning terms. For that reason, we did raise with the parties, in particular the Applicant, as to whether a time limited approval may be appropriate so as to allow the water extraction operation to commence and for further studies on groundwater to be undertaken so that the actual impacts of the Proposal on the availability of groundwater in the locality could be evaluated.
It may be that, based on the outcome of such studies, the Proposal and ongoing orcharding (or other similar uses) on the Land could, in effect, co-exist.
The invitation for the parties to consider and discuss a time limited approval was declined as it created difficulties for the Applicant and its commercial arrangements.[30] Likewise, it was not immediately attractive to Mr Trosic, at least, having regard to the planning framework.[31] While the Applicant did leave open that we may nevertheless grant a timelimited approval of our own volition, we decline that invitation given the position of the parties and the fact that we have insufficient information as to how such an arrangement would work, including what further studies should be completed.
[30] ts 180, 26 October 2022; ts 370-371, 27 October 2022.
[31] ts 370-371, 27 October 2022.
As we have stated, there is nothing, of itself, that makes groundwater extraction for commercial purposes an outcome that is to be regarded in all instances as unacceptable. However, in the context of the Land, its history and attributes, in the light of the applicable planning framework, that is an outcome which if granted on an enduring basis, would be unacceptable.
Therefore, in the exercise of discretion, the correct and preferable decision is to affirm the Respondent's decision and dismiss the application for review.

Orders

The Tribunal orders:
1.The Respondent's decision is affirmed.
2.The application for review is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR S WILLEY, SENIOR MEMBER
21 APRIL 2023