Katich and Anor and Western Australian Planning Commission

Case •

[2007] WASAT 72

•

28 MARCH 2007

No judgment structure available for this case.

KATICH & ANOR and WESTERN AUSTRALIAN PLANNING COMMISSION [2007] WASAT 72



STATE ADMINISTRATIVE TRIBUNALCitation No:[2007] WASAT 72
PLANNING AND DEVELOPMENT ACT 2005 (WA)
Case No:DR:348/20069 MARCH 2007
Coram:MR J ADDERLEY (SENIOR SESSIONAL MEMBER)28/03/07
21Judgment Part:1 of 1
Result: Application for review upheld and Minister requested for authority to disregard
recommendation of Swan Valley Planning Committee in order to conditionally
approve the subdivision.
B
PDF Version
Parties:MILENKO KATICH
MILA KATICH
WESTERN AUSTRALIAN PLANNING COMMISSION

Catchwords:
Rural subdivision
Boundary re-alignment
Family succession planning
Swan Valley
Agriculture
Viticulture
Vineyard consolidation
Compatibility of residential lot
Objectives of Swan Valley Planning Act 1995(WA)
Area B
Role of Swan Valley Planning Committee
Viability of vineyard
Water supply
Whether smaller lot constitutes undesirable precedent
Risk to agriculture if vineyard is not consolidated
Relevance of Policy DC3.4
Primacy of Swan Valley Planning Act 1995 (WA)

Legislation:
Planning and Development Act 2005 (WA), s 134(6), s 134(7), s 138(2)
Swan Valley Planning Act 1995 (WA), s 6, s 8
City of Swan Town Planning Scheme No. 9

Case References:
Mirco & Anor and Western Australian Planning Commission [2006] WASAT 165
Notte v Western Australian Planning Commission [2004] WATPAT 167
Nurmi & Ors and Western Australian Planning Commission [2006] WASAT 241

Orders
1. Pursuant to s 134(6) of the Planning and Development Act 2005 (WA), the State Administrative Tribunal requests the Minister for Planning and Infrastructure to approve the State Administrative Tribunal disregarding the advice of the Swan Valley Planning Committee recommending the refusal of the amalgamation and re-subdivision of Lots 3 and 50 West Swan Road, Caversham into two lots of 2000 square metres and 1.2569 hectares in area as depicted on the plan of subdivision Reference No 14137 prepared by Statewest Surveying and Planning dated 30 November 2006 in order that the subdivision may be conditionally allowed.,2 The proceedings are adjourned to a further hearing at 10am on 17 May 2007 in order to enable the Minister for Planning and Infrastructure to make a determination in relation to the request in order 1 and to advise the Tribunal in writing or by a representative at the further hearing of her determination.,3 The Executive Officer shall send a copy of these orders and the Tribunal's reasons for decision to the Minister for Planning and Infrastructure.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : KATICH & ANOR and WESTERN AUSTRALIAN PLANNING COMMISSION [2007] WASAT 72 MEMBER : MR J ADDERLEY (SENIOR SESSIONAL MEMBER) HEARD : 9 MARCH 2007 DELIVERED : 28 MARCH 2007 FILE NO/S : DR 348 of 2006 BETWEEN : MILENKO KATICH
    MILA KATICH
    Applicants

    AND

    WESTERN AUSTRALIAN PLANNING COMMISSION
    Respondent

Catchwords:

Rural subdivision - Boundary re-alignment - Family succession planning - Swan Valley - Agriculture - Viticulture - Vineyard consolidation - Compatibility of residential lot - Objectives of Swan Valley Planning Act 1995(WA) - Area B - Role of Swan Valley Planning Committee - Viability of vineyard - Water supply - Whether smaller lot constitutes undesirable precedent - Risk to agriculture if vineyard is not consolidated - Relevance of Policy DC3.4 - Primacy of Swan Valley Planning Act 1995 (WA)


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Legislation:

Planning and Development Act 2005 (WA), s 134(6), s 134(7), s 138(2)


Swan Valley Planning Act 1995 (WA), s 6, s 8
City of Swan Town Planning Scheme No. 9

Result:

Application for review upheld and Minister requested for authority to disregard recommendation of Swan Valley Planning Committee in order to conditionally approve the subdivision.

Category: B


Representation:

Counsel:


    Applicants : Mr H Dykstra (as agent)
    Respondent : Mr J Algeri (as agent)

Solicitors:

    Applicants : N/A
    Respondent : State Solicitor's Office



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

Mirco & Anor and Western Australian Planning Commission [2006] WASAT 165
Notte v Western Australian Planning Commission [2004] WATPAT 167
Nurmi & Ors and Western Australian Planning Commission [2006] WASAT 241


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REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 This was a review of a decision by the Western Australian Planning Commission on advice of the Swan Valley Planning Committee to refuse amalgamation and re-subdivision of two rural lots in the Swan Valley for the purposes of consolidating a vineyard and excising a smaller lot containing an existing residence.

2 The Tribunal found that the subdivision should be allowed because evidence was presented to the effect that the proposal was consistent with the objectives of the Swan Valley Planning Act 1995 (WA) which seeks to encourage traditional agriculture and other productive uses that complement the rural character of the Swan Valley.

3 However, most unusually, the application for review can not be upheld unless the Minister for Planning and Infrastructure allows the Tribunal to disregard the advice of the Swan Valley Planning Committee in order to conditionally approve the subdivision. The Tribunal requested the Minister to do so and adjourned the proceedings to enable the Minister to advise the Tribunal of her decision.




Introduction

4 This is an application for the review of a decision of the respondent to refuse amalgamation and re-subdivision of two approximately equal sized rural vineyard lots, being Lots 3 and 50 West Swan Road, Caversham (the land), into two unequal sized lots.

5 The proposed subdivision would, if approved, result in a small lot occupied by an existing residence, and a larger lot comprising the balance land which is intended to sustain the existing vineyard.

6 The purpose of the subdivision is intended to realise the applicants's wish to plan for generational succession which would involve the dispersal of property assets within the family in a way that would be equitable but still allow the continuation of the family's pursuit of commercial viticulture in the Swan Valley area.

7 The application for subdivision was received by the respondent on 17 July 2006.

8 Following referral to relevant agencies, including the City of Swan and the Swan Valley Planning Committee, both of whom opposed the


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    proposed subdivision, the respondent refused the application on 18 September 2006.

9 On 17 October 2006 an application for review of the respondent's decision was lodged with the State Administrative Tribunal (the Tribunal).


The proposal detailed

10 Lots 3 and 50 West Swan Road, Caversham are located within the local government area of the City of Swan.

11 Caversham is a rural locality traversed by the Swan River and constitutes the southern portion of an area described as the Swan Valley otherwise recognised for its vineyards, wineries, scenic rural character and tourist attractions.

12 The locality surrounding the land is characterised by vineyards on a variety of lot sizes ranging from lots smaller than Lots 3 and 50 to considerably larger lots. It is apparent, though that many of the smaller lots are owned and managed collectively as single vineyard entities of two or more hectares.

13 In addition to vineyards, the area is characterised by a number of residential lots fronting West Swan Road which appear to have been excised from larger rural properties at some time in the past.

14 Notwithstanding the mix of dwellings and vineyards, the preponderant use of the locality is clearly viticulture.

15 Lots 3 and 50 are rectangular lots, respectively 7279 square metres and 7290 square metres in area. The lots are each approximately 60 metres in width and 120 metres depth and lie on the south side of West Swan Road.

16 The lots are used for viticultural purposes. Rows of "trellised" vines are planted on the whole of the land, with the exception of an area of about 1200 square metres of land occupied by a dwelling on the north west corner of Lot 50, and a similar area of land used for agricultural sheds, a bore and pumping equipment on the north east corner of Lot 3.

17 The proposed subdivision of the land seeks to amalgamate the two existing lots and thence to excise a small lot of 1148 square metres containing the dwelling located in the north west corner. The balance of


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    the land would thus comprise 1.3421 hectares and contain the vineyard, agricultural sheds, and the bore and pumping equipment.

18 The purpose of the proposed subdivision, as previously described, is to facilitate the applicants' plans for generational succession by dispersal of property assets within the applicants' family in a manner equitable to family members, and practical for the purpose of sustaining a commercial viticulture enterprise on the land.

19 Following lodgement of the review application to the Tribunal, the applicants submitted a revised plan of subdivision illustrating an increase of area assigned to the smaller house lot such that the area would now be 2000 square metres and that the vineyard lot would consequently be reduced to 1.2569 hectares. This modification would assist the application in achieving compliance with the requirements of the Government Sewerage Policy. It was agreed by the parties at the Directions Hearing held by the Tribunal on 23 November 2006 that the revised plan would form the basis of this review.




Statutory and policy instruments

20 Lots 3 and 50 West Swan Road, Caversham are zoned "Rural" and "Other Regional Road" under the Metropolitan Region Scheme.

21 Lots 3 and 50 West Swan Road are zoned "Swan Valley Rural" under the City of Swan Town Planning Scheme No 9 (TPS 9).

22 The objective of the "Swan Valley Rural" zone in accordance with TPS 9 is "to promote the area primarily as a horticultural, recreational, tourism and landscape resource, with areas containing high quality horticultural soils and scarce plastic clays receiving special protection".

23 Development of land in the "Swan Valley Rural" zone is to be in accordance with the objectives of the Swan Valley Planning Act 1995 (WA) (SVPA).

24 The SVPA identifies the subject land within a precinct described as "Area B" wherein the planning objectives for any development are as follows:


    1. The protection of viticulture.

    2. The provision of water for viticulture and horticulture and the discouragement of other activities that have high water demands.


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    3. The encouragement of tourist facilities provided that they do not detract from the rural character of the area.

    4. The encouragement of traditional activities of the Swan Valley and industries associated with viticulture, horticulture and cottage industry provided they are compatible with the rural character of the area.

    5. The encouragement of the consolidation of retail and community facilities at Herne Hill, Caversham and West Swan.


      5A. The limited expansion of existing retail and community facilities at Herne Hill, Caversham and West Swan where such facilities are required to service the local community and will not detract from the rural character of the area.

    6. The compatibility of design, siting and landscaping with the character of the area.

    7. The discouragement of uses that are incompatible with the rural character and traditional agricultural activities of the area.

    8. The extraction of basic raw materials so far as it is compatible with the character and amenity of the area and subject to the rehabilitation of the affected land.

    9. The subdivision into lots of less than 4 hectares only where this is consistent with the objectives set out in this section.

    10. The avoidance of overstocking, of activities causing pollution or degradation of the environment and of any other land management practices detrimental to the amenity of the area.


25 The Western Australian Planning Commission's Policy DC3.4 – Subdivision of Rural Land has relevance. The policy makes a general presumption against subdivision other than in particular circumstances described in clauses 3.1 and 3.2 of the policy.

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The respondent's decision

26 Prior to issuing its decision, the respondent referred the proposal to relevant agencies for advice. Agency responses of particular note included the City of Swan, the Swan Valley Planning Committee, the Water Corporation and the Department of Health, all of whom opposed the proposed subdivision.

27 The City of Swan advised that "the proposed subdivision if approved would result in lots that do not meet the minimum lot size as specified under the Planning Objectives for Area B of the Swan Valley Planning Act".

28 The Swan Valley Planning Committee resolved "to not support the proposed 1148 square metres lot as it is inconsistent with the objectives of the Swan Valley Planning Act and is significantly below the minimum lot size of 4 hectares specified for Area B of the Swan Valley Planning Act".

29 The Department of Health and the Water Corporation advised that the subdivision should be refused as the proposed 1148 square metre lot did not meet the criteria to warrant exemption from the mandatory sewer condition requirement of the Government Sewerage Policy and because the land is remote from reticulated sewerage infrastructure.

30 The respondent's decision to refuse the application for subdivision of the land, as it was originally presented, was made on the following grounds:


    1 The Commission considers that the proposed subdivision is contrary to the government's objective to conserve and enhance the Swan valley's unique resources, particularly its rural character and amenity, as outlined in the SVPA.

    2 The subject land is located in Area B of the SVPA, the main objectives of which are to protect viticultural uses, water for viticulture and horticultural pursuits, and to permit subdivision of land below 4 hectares only where the proposed lots are consistent with the objectives of the Act. The Commission is not willing to support the proposed subdivision as it is considered that it does not achieve these objectives.

    3 The land is zoned "Rural" in the Metropolitan Region Scheme and "Swan Valley Rural" in the Local

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    Government's TPS 9 where the Commission does not favour further fragmentation as this leads to smaller lot sizes and closer development which would conflict with the intent of both these zonings.
    4 The proposed subdivision does not comply with the Commission Policy DC3.4 – Subdivision of Rural Land, a provision of State Planning Policy No 1 (State Planning Framework), by reason that it would result in the subdivision of rural land, which is not provided for in the current Town Planning Scheme, an endorsed local planning strategy or an endorsed local rural strategy.

    5 The proposed subdivision would create lot(s) below the minimum lot size specified in an area where the Commission is not satisfied that on site effluent disposal would be satisfactory in the long term and where the lots are not capable of being serviced by reticulated sewerage. This would be contrary to the Government Sewerage Policy for the Perth Metropolitan Region.

    6 Approval to the subdivision would set an undesirable precedent for the further subdivision of surrounding lots.


31 Section 134(7) of the Planning and Development Act 2005 (WA) (PD Act) provides that, subject to s 134(6), the respondent is required to determine the subdivision application in accordance with the advice of the Swan Valley Planning Committee, which it did.

32 In the event that the respondent wished to disregard the advice of the Swan Valley Planning Committee, it would have been obliged to request the approval of the Minister to do so before making its determination as required by s 134(6) of the PD Act.




The respondent's argument

33 The respondent's argument opposing the proposed subdivision centred substantially on the perceived inconsistency of the size and nature of the resultant smaller lot with the planning intent for the Swan Valley and the undesirable precedent that a lot of that size would create if approved.

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34 Mr M Logan, a senior town planner employed by the Department for Planning and Infrastructure, which body services and advises the respondent, gave evidence on behalf of the respondent.

35 Mr Logan was of the opinion that the proposed subdivision was inconsistent with the objectives for Area B under s 8 of the SVPA because the smaller lot, which is residential in nature, is incompatible with the rural character and traditional agricultural activities of the area, contrary to Objective 7 for Area B.

36 Mr Logan advised that the smaller lot was unlikely to be used for economically viable and sustainable viticulture or agriculture and therefore would not accord with certain of the objectives of Area B of the SVPA.

37 Objective 9 for Area B provides that subdivision into lots of less than 4 hectares is only permitted where the subdivision is otherwise consistent with all the other objectives of Area B. Because the proposed subdivision would not create lots consistent with any of the objectives, the proposal is inconsistent with Objective 9.

38 Because the proposed subdivision is inconsistent with the SVPA, it is also inconsistent with the City of Swan TPS 9 Swan Valley Rural zone, which requires that development of land within the zone should be in accordance with the SVPA.

39 Mr Logan drew the Tribunal's attention to s 138(2) of the PD Act requiring the respondent to have regard to the provisions of the local town planning scheme and to not grant an approval that conflicts with the scheme.

40 Mr Logan further noted that because the land in question is not identified as suitable for subdivision in an operational town planning scheme or local planning strategy as required in cl 3.1.1 of Policy DC3.4 and because the proposal does not satisfy relevant criteria for approval of subdivision for specific purposes as provided in cl 3.2.1 of the Policy, then it is evident that the proposed subdivision is inconsistent with Policy DC3.4.

41 In his witness statement, Mr Logan emphasised the primacy of the SVPA as the instrument against which to measure applications for development in the Swan Valley.

(Page 10)



42 Mr Logan expressed the view that the SVPA gives a very clear intention towards conserving and managing the Swan Valley as an agricultural land unit with aims to protect the viticultural interests of the area and to discourage uses that are incompatible with the rural character and traditional agricultural activities of the area.

43 In regard to the proposed smaller lot, Mr Logan was of the opinion that such a lot was expressly tailored for residential purposes with no capacity for agricultural use. It therefore followed, according to Mr Logan, that the use of the small lot would be discordant with land use on the larger, vineyard lot. Potential conflict could arise in regard to matters of amenity and health of residents associated with disturbance occasioned by noise, dust and smell. Objective 7 for Area B specifically identifies the need to discourage uses that are incompatible with agricultural activities of the area.

44 Mr Logan acknowledged that the land at present was being productively used for viticulture in conformity with the planning intent for the locality. He further conceded that operation as a single agricultural enterprise on the land may have increased the financial return by virtue of the economy of scale.

45 Amalgamation of the two existing lots may best serve agricultural interests, but not at the expense of creating the smaller, incompatible lot.

46 Mr Logan observed that in the event of the subdivision being approved to excise the existing dwelling and create the larger vineyard lot, then there may well be a desire to construct an additional homestead dwelling on the vineyard lot. Such an event may result in the sacrifice of agricultural land which would be at variance with the planning intent for the area.

47 On the issue of viability of the individual lots as they are presently configured, Mr Logan said that no expert opinion or supporting information demonstrated that viticulture would be curtailed if they were separately owned. The lots could still operate as part of a larger dispersed vineyard involving other lots in the Swan Valley. Alternatively, other uses compatible with the planning intent of the area could be investigated such as horticulture or tourism related activities.

48 Mr Logan characterised the creation of an independent residential lot without consistency with the provisions and intent of the SVPA as constituting unplanned and ad hoc fragmentation of land. As such, the


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    proposed subdivision would create an undesirable precedent which, if replicated, would compromise the intent of the SVPA.

49 The approval of residential lots in a commercial agricultural area, for no apparent reason, may give rise to speculation that the land may be developed for residential purposes, inflating land values and resulting in less investment in agricultural operations, contrary to the intent of the SVPA.

50 Mr Logan brought to the Tribunal's attention several recent appeal decisions that have a relevance to this matter. They are:


    • Mirco & Anor and Western Australian Planning Commission [2006] WASAT 165

    • Nurmi & Ors and Western Australian Planning Commission [2006] WASAT 241


51 On examination of his evidence, Mr Logan acknowledged that he had had no expertise on the question of economic sustainability of agriculture and was not in a position to challenge the applicants' expert witness on the viability of viticulture enterprises.

52 On the question of amalgamating the existing lots to create a more economically sustainable vineyard, Mr Logan agreed as to the desirability of such a proposition, but was unable to identify measures or mechanisms under the SVPA or the respondent's policies that would practically encourage the landowner to undertake such a step.

53 When asked whether retention of the existing lot configuration and the potential for separate disposal of the lots constituted a greater or lesser risk to the viability of agriculture on the land than the proposed subdivision, Mr Logan confined himself to reiterating his concern in relation to the threat posed by the creation of the small residential lot.

54 Mr Logan acknowledged that if an additional dwelling needed to be established on the proposed vineyard lot then it could be accommodated in the presently cleared north east corner of the land without loss of any existing vines.




The applicants's argument

55 The applicants sought to concentrate on arguments that demonstrated that the proposed subdivision would secure economically sustainable viticulture on the land, would remain in character with the agricultural


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    activities of the area and would therefore be consistent with the aims of the SVPA.

56 Mr M Katich, a son of the applicants and an experienced grape grower, informed the Tribunal that in partnership with his brother and father, he manages the land, along with other properties in the Swan Valley, for the purpose of commercial production of table grapes.

57 The proposed amalgamation and re-subdivision of the land is to allow his parents to plan for division of their estate amongst their three children. The viticultural component of the estate would be consolidated and preserved for the two sons, who are active grape growers, in order to continue commercial production. The excised dwelling lot would be assigned to the applicants' daughter, who resides in New York, in the knowledge that she has no interest or involvement in grape growing.

58 Mr Katich informed the Tribunal that the bore on Lot 3 provides sufficient water for grape growing on both lots but that no bore exists on Lot 50. The local aquifer is already fully allocated and without licence trading there is little prospect for Lot 50 to establish an adequate water supply for a separate service. The costs of establishing such a water supply, estimated at over $35 000, would be uneconomic.

59 Mr Katich explained that management of the land as a single commercial unit was practical because of the efficient use of water and the use of one set of machinery across all the family's grape growing properties. If the two existing lots were separately owned, they would not be individually viable because of the cost of a new water supply and because of the loss of vines on each lot to accommodate row "headlands" for practical machinery operation.

60 According to Mr Katich no problems were experienced by residents of houses in the area in relation to nuisance caused by vineyard management activities.

61 The applicants's second witness, Mr J Campbell-Clause, an agricultural scientist and viticultural development and management consultant, provided evidence that the vineyard on the land is expertly managed, very productive and produces the highest standard of table grapes found anywhere in the world.

62 Soil capability is fair to high for table grape production and water supply and water quality are not a limitation to the vineyard if managed as a single entity.

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63 The vineyard size is viable, at present, according to indicative data from the Department of Agriculture. It is estimated that a 1 hectare block of table grapes should generate an income of $88 800 against costs of $52 045, realising a return of $36 755.

64 Maintaining the current lot configuration, and assuming the disposal of the lots into separate ownership, would be likely to result in the loss of at least half of the vineyard due to water unavailability (on Lot 50) and reduced viability. It will also result in the loss of vines to accommodate row "headlands" at the lot boundary.

65 A particular concern associated with the possible disposal of one or both of the existing lots to small or hobby type vineyard operators, is the loss to this parcel of land of technical and practical skills accumulated over many years by the present owners and managers.

66 The presence of dwellings in close proximity to vineyards is commonplace in the Swan Valley, according to Mr Campbell-Clause. Minimisation of nuisance is maintained by adherence of vineyard operators to sensible management protocols to avoid unnecessary noise, dust and spray drift.

67 Mr S O'Hara, a qualified and experienced town planner, gave evidence on behalf of the applicants.

68 Mr O'Hara highlighted that the proposed subdivision was fully consistent with the general planning objective of the SVPA, which reads, in part, in s 6 of the Act, as "the encouragement of the traditional agricultural and other productive uses of the area that complement its rural character".

69 Regarding the planning objectives for Area B at s 8 of the SVPA, Mr O'Hara explained that the consolidation and continuation of viticultural activity proposed through the subdivision application achieved the objectives associated with the protection of viticulture (objective 1), provision of water (objective 2), and the encouragement of traditional activities (objective 4).

70 Responding to objective 7, which refers to "the discouragement of uses that are incompatible with the rural character and traditional agricultural activities of the area", Mr O'Hara noted that the proposed smaller lot does not create any additional development potential and does not of itself cause discouragement to the traditional agricultural activities of the area.

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71 Noting the conformity of the proposed subdivision with the objectives thus far discussed, and because the other objectives of Area B are not applicable to the circumstances arising in this subdivision, Mr O'Hara was of the opinion that objective 9, which contemplates "subdivision into lots of less than 4 hectares only where this is consistent with the objectives set out in this section", would be complied with.

72 Mr O'Hara emphasised that the proposed subdivision does not constitute a fragmentation of rural land, but is, rather, a boundary realignment. No additional lots are being created. The respondent has in the past supported boundary alignments in the Swan Valley. Examples are:


    • Application 104235 – 1997 – 2 lots 4.9 hectares and 1.22 hectares into 2 lots 5.79 hectares and 0.35 hectares

    • Application 110613 – 1999 – 2 lots 2.8 hectares and 0.76 hectares into 2 lots 2.5 hectares and 1 hectares

    • Application 117244 – 2002 – 2 lots 4.2 hectares and 0.1 hectares into 2.7 hectares and 1.6 hectares.


73 The Minister has also granted approval (reference 118604 – 2002) within Area B, of a subdivision creating two lots of 3 hectares and 0.8 hectares.

74 Mr O'Hara referred to Policy DC 3.4 and noted that, in his opinion, the proposed subdivision largely complied with the criteria to allow relocation of boundaries listed at clause 3.2.1(e) because the new subdivisional boundaries reflected good environmental and land management practice, no additional dwelling entitlements are being created and the proposal is intended to facilitate the agricultural usage of the land. Whilst not achieving the goal of facilitating agricultural use on the proposed smaller lot, Mr O'Hara contended that this requirement was not significant when compared with the measure of overall compliance of the proposal with the objectives for Area B under the SVPA. The SVPA should, because it is specifically enacted by parliament to establish planning objectives for the Swan Valley, be the principal and overriding instrument determining this application.

75 Mr O'Hara reminded the Tribunal that the respondent's reason for refusal of the application, because of non compliance with the Government Sewerage Policy, had been addressed by modification of the


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    proposed lot sizes such that the smaller lot now complied with the 2000 square metre minimum lot area required under the Policy.

76 The question that the proposed subdivision would set an undesirable precedent was challenged by Mr O'Hara by referring to subdivision application 104235 (referred to earlier in his evidence). The subdivision, also located in Area B, involved a boundary realignment creating a small house lot whilst the balance land was amalgamated with an adjoining vineyard lot to extend vine plantings. The result of that approval has seen the continuation and flourishing of the vineyard. As the current application is very similar in purpose and configuration, it is apparent that the precedent has already occurred and has, in reality, resulted in a positive outcome for the continuation of traditional agriculture in the area.

77 Under examination, Mr O'Hara accepted that the proposed smaller lot would not be used for agriculture. He drew attention to other similar size residential lots adjoining the land and observed that there would be no change of use of the land as a result of the proposed subdivision and that the agricultural character of the area would not be altered.




Analysis

78 The respondent's argument relies heavily on the proposition that the proposed smaller residential lot is a threat to the planning objectives of the area because it constitutes a use of land that is incompatible with the rural character and traditional agricultural activities of the area as required by objective 7 for Area B.

79 The residential lot will not itself be utilised for agriculture of any kind.

80 The presence of residents on the lot poses a threat to the maintenance of agriculture on adjoining lands because of the potential for complaints associated with nuisance and health risk occasioned by vineyard management practices involving noise, dust and chemical spray.

81 The creation of the residential lot will set an undesirable precedent and give cause for speculation as to further residential potential of the area. There may be undesirable affects on land values and consequent disinvestment in agriculture.

82 For these reasons the respondent argues that the proposed subdivision fails the test of objective 7 for Area B. As a consequence the proposal also fails the test of objective 9 which precludes subdivision


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    below a lot size of 4 hectares other than in circumstances where the proposal satisfies all the other applicable objectives.

83 The Tribunal would have little difficulty with the respondent's concern as to the issue of precedent if the residential lot constituted an additional lot on the land. As it is, the proposal does not seek to create any additional title or to create any potential for an additional dwelling on the land.

84 The precedent of creating a residential lot in the Swan Valley by boundary realignment apparently occurred some time ago as detailed in the applicants' argument referring to subdivision 104235. To the understanding of the Tribunal, this subdivision approval in 1997 has proved to be of benefit to the preservation and improvement of viticulture on the property in question.

85 The Tribunal is mindful, having regard to the cadastral plans of the area and aerial photography illustrating the prevailing lot configuration and land use of properties in the vicinity, that there is a relatively common incidence of residential lots among the vineyards of the area. In such circumstances, and bearing in mind that the proposed smaller lot associated with this application already sustains a dwelling on the land, it is difficult to conclude that creation of the lot would constitute a provocative precedent or be out of character with the surrounding rural landscape in any way.

86 The existing house associated with the proposed smaller lot is unlikely to generate any different degree of incompatibility with the surrounding agricultural activities than if it remained in its presently tenanted situation on Lot 50. It is also hard to contemplate that the house associated with the new lot would have any different land use relationship with surrounding agriculture than that experienced by the residents of the other small lots fronting West Swan Road either side of Lots 3 and 50. This view is supported by the applicants' advice that there is no record of nuisance complaint in the area and that the management of the vineyards is well conducted in accordance with protocols to avoid such nuisance.

87 In the circumstances the Tribunal is not satisfied that the respondent's argument in relation to incompatibility of the proposed smaller lot with the rural character and agricultural activities of the area is sustainable. The Tribunal is also unconvinced that the proposal represents an undesirable precedent.

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88 On turning to the applicants' argument that excision of the small lot is a necessary by-product of a proposal that represents a positive step towards the protection and encouragement of agriculture by consolidating the vineyard presently straddling two lots, the Tribunal is confronted by a question of relative risks to the future of the area.

89 If the proposed subdivision is denied, the applicants' succession plans may otherwise be progressed by the disposal of one or both of the existing lots with, according to expert evidence, a very likely consequence of reduced vineyard efficiency and productivity.

90 If the proposed subdivision is implemented, excising the small residential lot, there is a potential as advised by the respondent, for land use conflict and a perception of encouragement of residential land use in the area. Against this, however, is a reasonably founded confidence that the larger vineyard parcel will be protected against fragmentation and will continue as an efficient agricultural production unit.

91 As already discussed, there is reasonable evidence that the potential for increased land use conflict in the area is minimal. The perception of any encouragement of residential land use does not seem reasonable having regard to the history of the area, wherein the respondent has previously allowed subdivision for a purpose similar to this application. The facts of this case demonstrate that no additional lots would be created beyond the two that already exist and therefore there is no potential for any additional residential development beyond that which would be possible at present.

92 It seems that the primary benefit of the proposal is in securing the bulk of the land for a certain future as an agricultural enterprise. If the application is not allowed then the future of the land as an agricultural enterprise is at real risk.

93 On balance, therefore, the Tribunal is persuaded that the proposed subdivision achieves the general planning objectives for the encouragement of agriculture in the Swan Valley.

94 By the same logic, the Tribunal is of the opinion that the existing lot configuration, with its inherent risk that viable agriculture on the land may be compromised by disposal of one or both of the lots, does not of itself satisfactorily fulfil the general planning objectives of the Swan Valley.

95 The Tribunal is mindful of the respondent's advice that a simple amalgamation of the lots would achieve the same objective. It seems,


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    though, that such a course of action is unlikely to be taken by a landowner in the absence of any inducement to sacrifice otherwise disposable property assets. Accordingly, the Tribunal considers this option an unrealistic expectation.

96 Referring to the SVPA Area B planning objectives, and based on the preceding analysis, the Tribunal is confident that the key objectives, 1, 2 and 4, respectively relating to protection of viticulture, provision of water for viticulture and encouragement of traditional activities of the Swan Valley are well satisfied by the proposal.

97 The Tribunal is not satisfied that a sound case has been made to demonstrate that objective 7, requiring the discouragement of incompatible uses, is offended by creation of the proposed smaller lot in the context of the subdivision.

98 The Tribunal is of the view that the remaining objectives, other than objective 9, are not relevant to the consideration of the proposed subdivision.

99 It follows therefore that the qualified preclusion of lot sizes below 4 hectares prescribed by objective 9 can be set aside in order to allow the proposal that is otherwise consistent with the applicable objectives of Area B.

100 It also follows that because the proposal is consistent with the requirements of the SVPA, then there would be no inconsistency with the objectives of the Swan Valley Rural zone under TPS 9.

101 The respondent advised the Tribunal that the proposal was inconsistent with Policy DC 3.4.

102 In this respect, the Tribunal takes the view that Policy DC 3.4 is a "broad brush" instrument against which to measure rural subdivision but should not be used in a manner that overrides more finely tuned instruments of planning control such as local town planning schemes, local strategies, or, as in the case of regulating land development in the Swan Valley, an Act of Parliament.

103 The planning objectives for the Swan Valley are plainly set out by the SVPA on an area by area basis. The SVPA addresses development and subdivisional criteria to an extent that could be expected of a town planning scheme or a local strategy. In that regard, Policy DC 3.4's


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    presumption against subdivision unless it is provided for in a town planning scheme or local strategy, can be set aside in favour of the SVPA.

104 The Tribunal gave consideration to the two decisions mentioned in the respondent's witness statement;

    • Mirco & Anor and Western Australian Planning Commission [2006], WASAT 165; and

    • Nurmi & Ors and Western Australian Planning Commission [2006] WASAT 241

    but found that neither example was of great assistance as they both involved subdivision of one lot into two rather than constituting an amalgamation and re-subdivision of land without creating additional lots as is this case in question.


105 Consideration was also given to Notte v Western Australian Planning Commission [2004]WATPAT 167, a decision raised by the applicants as having some relevance, involving an amalgamation and re-subdivision of land in the Swan Valley. The Tribunal noted the positive outcome of this decision but regarded the circumstances as somewhat different to this application because the land was located in Area C and was subject to differing planning objectives.


Conclusion

106 Based on the preceding analysis it is the conclusion of the Tribunal that the application for review of the respondent's decision to refuse amalgamation and re-subdivision of Lots 3 and 50 West Swan Road Caversham should be upheld. Accordingly the respondent's decision should be set aside and a decision should be substituted approving the amalgamation and proposed re-subdivision of Lots 3 and 50 West Swan Road, Caversham into two lots of 2000 square metres and 1.2569 hectares in area as depicted on the plan of subdivision Reference No 14137 prepared by Statewest Surveying and Planning dated 30 November 2006 subject to the following conditions:


    1. Suitable arrangements being made with Western Power for the provision of an electricity supply service to the lots shown on the approved plan of subdivision. (Western Power)

    2. Suitable arrangements being made with Main Roads WA for the provision of vehicular crossovers to service the

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    lots shown on the approved plan of subdivision. (Main Roads WA)
    3. The land required for the widening of West Swan Road as shown on the attached extracts of the Department for Planning and Infrastructure Land Requirements Plan for Benara Road to Reid Highway Other Regional Roads (Plan No 1.3807/1) is to be set aside as a separate lot for acquisition pending future road widening purposes. An easement is to be provided over all of the lot to be set aside for the benefit of the remaining lots for the purpose of providing a vehicular access, right of footway, water, sewer, drainage, gas, electricity, television, telecommunications and other necessary service infrastructure. The easement is to provide that the benefit of the easement is to automatically be extinguished upon dedication of the road widening lot as a public road.

    4. Suitable arrangements being made with the Water Corporation so that provision of a suitable water supply service will be available to the lots shown on the approved plan of subdivision. (Water Corporation)

    5. This approval is valid for three years from the date of the Tribunal's decision. Within this period the Diagram or Plan of Survey in accordance with the approved plan of subdivision must be submitted for approval of the Western Australian Planning Commission when the conditions set out above have been fulfilled.


107 In accordance with s 134(6) of the PD Act and for the reasons set out above, the Minister for Planning and Infrastructure is requested to approve the Tribunal disregarding the advice of the Swan Valley Planning Committee recommending refusal of the proposed subdivision, in order that the subdivision may be conditionally allowed.

Order


108 The Tribunal makes the following orders:

    1 Pursuant to s 134(6) of the Planning and Development Act 2005 (WA), the State Administrative Tribunal requests the Minister for Planning and Infrastructure to approve the State Administrative Tribunal disregarding the advice of the Swan Valley Planning Committee
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    recommending the refusal of the amalgamation and re-subdivision of Lots 3 and 50 West Swan Road, Caversham into two lots of 2000 square metres and 1.2569 hectares in area as depicted on the plan of subdivision Reference No 14137 prepared by Statewest Surveying and Planning dated 30 November 2006 in order that the subdivision may be conditionally allowed.
    2 The proceedings are adjourned to a further hearing at 10am on 17 May 2007 in order to enable the Minister for Planning and Infrastructure to make a determination in relation to the request in order 1 and to advise the Tribunal in writing or by a representative at the further hearing of her determination.

    3 The Executive Officer shall send a copy of these orders and the Tribunal's reasons for decision to the Minister for Planning and Infrastructure.



    I certify that this and the preceding [108]paragraphs comprise the reasons for decision of the State Administrative Tribunal.

    ___________________________________

    MR J ADDERLEY, SENIOR SESSIONAL MEMBER


Citations

Katich and Anor and Western Australian Planning Commission [2007] WASAT 72

Citations to this Decision

0

Cases Cited

0

Statutory Material Cited

3