Keywise Pty Ltd and Western Australian Planning Commission - [2012] WASAT 20

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: KEYWISE PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2012] WASAT 20

MEMBER: MR J JORDAN (MEMBER)

HEARD: 7 NOVEMBER 2011

DELIVERED : 2 FEBRUARY 2012

FILE NO/S: DR 275 of 2011

BETWEEN: KEYWISE PTY LTD
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Town planning Subdivision of rural zoned land used for agricultural purposes into two lots Larger lot to comprise a mesa and western foot slopes of the Moresby Range Western foot slopes of mesa adjacent to a rural residential subdivision Use of mesa as 'recreation' lot Smaller lot east of Moresby Range to be used for agricultural purposes Policy for subdivision of rural zoned land Management strategy for Moresby Range Management plan for Moresby Range Absence of statutory provisions for use of Moresby Range for recreation Precedent Vision for future park for Moresby Range

Legislation:

City of Greater Geraldton Local Planning Scheme No 5, cl 1.4, cl 4.2, cl 6.3, cl 6.3.1, cl 6.3.2, cl 6.3.4, cl 6.3.4(c), cl 6.3.4(c)(iii)
Planning and Development Act 2005 (WA), s 138, s 138(3), s 144(1), s 152, s 251(1)

Result:

Application for review dismissed
Decision of Western Australian Planning Commission to refuse subdivision is affirmed

Category: B

Representation:

Counsel:

Applicant: Mr A Turner (Town Planner as agent)
Respondent: Ms V Wood (Town Planner as agent)

Solicitors:

Applicant: Geraldton Independent Planners – Town Planners
Respondent: Department of Planning

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

This matter involved an application for review of the refusal of the proposed subdivision of a rural zoned lot used for agricultural purposes into one lot of 278.45 hectares containing a mesa, or flat topped hill, within the Moresby Range, and a second lot of 115.73 hectares with farm buildings used for sheep breeding and cropping.
The subdivision was proposed to facilitate the applicant negotiating with private businesses and charities to use the lot containing the mesa as a recreation lot. The applicant said this would be consistent with its vision and with the planning strategy for the Moresby Range creating a regional park in the Moresby Range.
The Tribunal found that the proposed subdivision would be inconsistent with the provisions of the local planning scheme, the local planning strategy and the strategic planning objectives for the Moresby Range of having a statutory basis for the creation of a regional park. The applicant's frustration at the lack of decisions to implement the recommendations of the planning strategy was understood, but in the absence of planning mechanisms being in place to ensure the objective of creating a regional park would be achieved, the proposed subdivision could not be supported.
The Tribunal dismissed the application for approval to subdivide the land.

Introduction

These proceedings involve an application brought by Keywise Pty Ltd (applicant), pursuant to s 251(1) of the Planning and Development Act 2005 (WA) (PD Act) for review of the decision of the Western Australian Planning Commission (respondent or Commission) to refuse an application to subdivide Lot 23 Chapman Valley Road, Moresby (site).
The applicant is a family company of Mr Forbes Spillman, which farms the site of 394.18 hectares, together with Lot 3 of 1043 hectares to the north of the site on the opposite side of Chapman Valley Road. These lots comprise the Spillman family farm 'Wynarling'. The site was purchased by Mr Spillman in 1994.
Prior to the hearing the Tribunal viewed the site accompanied by the representatives of the parties and Mr and Mrs Spillman.

Site and locality

The Moresby Range Management Strategy at cl 2.3 includes the following:
Located to the north and east of Geraldton, the Moresby Range rises over 200 metres and is characterised by distinctive flat mesa tops. The range runs roughly parallel to the coast for about 33 kilometres, averaging about 6 kilometres from the coast. The main western portion is about 1.5 kilometres wide, extending from Table Hill in the north to Mt Fairfax in the south.
The mesas of the Moresby Range typically have flat tops, steep side slopes and more gentle foot slopes. To the east of the Moresby Range is the Chapman Valley, which is a fertile area of wheat and sheep farms. West of the Range is poorer farming land extending to the coast, the site of the future Oakajee Port for the export of iron ore and, at the very southern end, the expanding northern suburbs of Geraldton.
Near the southern end of the Moresby Range, Chapman Valley Road extends from North West Coastal Highway at the Geraldton suburb of Waggrakine, northeastward through Waggrakine cutting to Chapman Valley. The Geraldton suburb of Waggrakine extends along the Chapman Valley Road to near the western foot slopes of the Moresby Range.
The suburb of Waggrakine includes residential lots and rural residential sized lots extending to Carnalea Road, the western boundary of the site. West of the Moresby Range and south of the site other rural holdings remain.
The site has a total area of 394.18 hectares and straddles the Moresby Range. It has an irregular boundary, particularly at the western side. At the northern boundary the site has a frontage of nearly 2 kilometres to Chapman Valley Road, and at the eastern boundary a frontage of just under 2 kilometres. The northern and eastern boundaries of the site are the boundary between the Shire of Chapman Valley (Shire) and the City of Greater Geraldton (City).
The site has very distinctive changes in topography. At the northwestern corner is about a 350 metres wide area of the Moresby Range foot slope used for cropping. There is then the sharp side slope of a mesa. The mesa extends from close to Chapman Valley Road southward, dividing the site into two. The flat top of this mesa is sufficiently wide enough to be used for the cropping of cereals. The topography then descends down the steep eastern side slope of the mesa to the eastern portion of the site, which includes foot slopes and northsouth flowing Ego Creek. The area east of the mesa is used for cropping and a sheep stud and includes the farm house and the buildings associated with these rural uses. Vehicular access to the flat top of the mesa is via a track up the eastern side slope. From the top of the mesa are views that extend from south of Geraldton to north past the Oakajee Port site along the Indian Ocean coast, and to the northeast the Chapman Valley.

The proposal

In November 2010 the applicant lodged an application to subdivide the site into two rural lots of approximately 139.9 hectares and 254.3 hectares. The smaller, eastern lot, Lot A, would be east of the Moresby Range and would include the farm buildings and Ego Creek. The larger, western lot, Lot B, would include the mesa that divides the site and the western foot slopes of the mesa. The respondent refused the application in February 2011.
In March 2011 the applicant requested that the respondent reconsider its refusal, pursuant to s 144(1) of the PD Act. Following discussion between the parties the applicant modified the plan reducing Lot A to 115.73 hectares and increasing Lot B to 278.45 hectares to include most of the eastern side slope of the mesa.
At its meeting of 12 July 2011 the respondent reconsidered its decision in light of the modified subdivision plan and additional information submitted by the applicant, but confirmed its refusal restating the original reasons. The applicant then filed the application for review of the respondent's refusal.

Planning framework

The site is zoned Rural under the City of Greater Geraldton Local Planning Scheme No 5 (LPS 5). Clause 4.2 of LPS 5 provides the objective of the rural zone:
To provide for extensive agricultural uses which contribute to the general wellbeing of theregion (sic) and state and which are compatible with the capability of the land.
A majority of the site is also included within the Moresby Range Landscape Special Control Area 2 (SCA 2). Clause 6.3.1 of LPS 5 provides the 'major values' of SCA 2:
The Moresby Range is classified as an important landscape area in the MidWest region. The area comprises foot slopes, steep side slopes and flat tops which are a prominent landscape unit. The area is noted as a significant landscape backdrop to the City and the regional centre of Geraldton.
The purpose of SCA 2 is set out at cl 6.3.2 of LPS 5 as follows:
(a)To conserve the landscape values of the Moresby Range.
(b)To avoid development that would negatively impact on the landscape values and qualities of the area.
(c)To ensure that landscape and aesthetic considerations are taken into account in preparing amendments to the Scheme and in assessing subdivision and development applications.
(d)To ensure that any development takes place in such a manner so as to conserve the visual qualities of the area.
Clause 6.3.4 of LPS 5 provides the following considerations for SCA 2:
In considering any rezoning request, subdivision or development application the Local Government will have regard to the following:
(a)There is a presumption against rezoning of land within the Moresby Range Special Control Area for more intensive land uses;
(b)Subdivision applications for land within the range will generally not be supported by the Local Government to avoid creating the potential for additional development and intensification of land uses;
(c)The Local Government may consider supporting subdivision applications within the Moresby Range Special Control Area where:
(i)The subdivision is for the use of land that will not create the potential for additional development;
(ii)The subdivision is for a boundary realignment, rationalisation of landholdings or lots created for management purposes, that will not create the potential for additional development within the Range; and
(iii)The subdivision is consistent with the policies of the Western Australian Planning Commission.
…
State Planning Policy 2.5 Agricultural and Land Use Planning (SPP 2.5) describes four key objectives at cl 4. The first objective is to:
Protect agricultural land resources wherever possible by
(a)discouraging land uses unrelated to agriculture from locating on agricultural land;
(b)minimising the ad hoc fragmentation of rural land; and
(c)improving resource and investment security for agricultural and allied industry production.
…
The respondent's Development Control Policy 3.4 Subdivision of Rural Land (DC 3.4) guides subdivision to achieve the objectives of SPP 2.5. DC 3.4 includes guidance on the subdivision of rural land and, where relevant, this is included in the discussion below.
Other planning documents referred to by the parties and which are addressed below in the discussion of the issues include:
•Geraldton Region Plan 1999 (which includes Part 3 Greater Geraldton Structure Plan) (1999 Region Plan)
•Greater Geraldton Structure Plan Update 2011 (GGSP 2011 Update).
•City of Geraldton Local Rural Strategy October 2008 (LRS).
•Moresby Range Management Strategy August 2009 (MR Management Strategy).
•Moresby Range Management Plan June 2010 (MR Management Plan).

Issues

The parties identified issues in the matter, mostly reflecting the respondent's reasons for refusal. The first issue agreed by the parties was expressed in the following terms:
1)Whether regard ought to be had to the likelihood of whether proposed Lot B has potential as a future park.

The other issues identified can be stated as:

2)Whether the proposed subdivision would be inconsistent with the objectives and requirements of LPS 5.
3)Whether the proposed subdivision would be inconsistent with the objectives and requirements of SPP 2.5 and DC 3.4.
4)Whether the proposed subdivision would be inconsistent with the intent and objectives of the LRS.
5)Whether the proposed subdivision would be in accordance with the intent of the MR Management Strategy and the MR Management Plan.
6)Whether approval of the proposed subdivision would create an undesirable precedent for the subdivision of surrounding lots.

Issue 1 whether regard ought to be had to the likelihood of whether proposed Lot B has potential as a future park

The 1999 Region Plan includes the following:
9.9.5Moresby Range
The Moresby Range was identified in both the 1976 and 1989 region plans for Geraldton. As a result of these recommendations, the Moresby Range Management Committee was formed early in 1996 to examine the land management requirements for the range. The committee is currently preparing a land management strategy for the range which has the following aims:
•To determine the extent and regional significance of the range.
•To define a system of land management for the range.
The 1976 plan identified approximately 5,000 hectares of the Moresby Range as future open space while the 1989 plan identified the range as a landscape protection area with recommendations that areas with recreation and tourism potential be acquired.
… [T]he Moresby Range Management Committee has reduced the study area to exclude some of the outlying areas.
The committee is currently investigating methods of protecting the special characteristics of the range. The area shown on the plan does not imply future zoning or acquisition. (Emphasis added)
The 1999 Region Plan includes Figure 25 'Greater Geraldton Structure Plan' which depicts the site as rural with a Moresby Range overlay. The site, and in fact most of the Moresby Range, is not included in the 'Open Space and Recreation Reserves (Existing and Future)' category. The GGSP 2011 Update makes no change to this designation.
The City's LPS 5, gazetted in 1998, recognised the importance of the Moresby Range as a 'significant backdrop to the City' and included the range in SCA2. LPS 5 was concerned to ensure development and subdivision would not negatively impact on the visual qualities that characterise the range. LPS 5 does not, however, make reference to facilitating the reservation of any land in the Moresby Range for public open space.
The City's LRS, released in 2008, makes no reference to reserving and acquiring land critical to the creation of a Moresby Range park. The objectives for the LRS, at cl 4.9.4, include preserving existing agricultural practices, keeping development from high landscape value areas and encouraging revegetation. The LRS at cl 4.9.7 has the heading 'Subdivision and Development Guidelines'. These include the statement that '[s]ubdivision and development to generally be in accordance with the Moresby Range Management Strategy'.
In 2009 the respondent published the MR Management Strategy. Recommendation No 24 of the MR Management Strategy reads:
Identify potential areas for land acquisition, such as the strategic area adjacent to where Chapman Valley Road passes through the range. Engage with and consult landowners in this process. Seek opportunities to obtain government funding to purchase portions of the range for the benefit of the Geraldton region.
The applicant owns the mesas on both sides of Chapman Valley Road as it passes through the Waggrakine cutting of the Moresby Range. The site is on the south side of the road. Map 6 and Map 8 of the MR Management Strategy identify the northern boundary of the site as a point 'where [the] public could gain access to the range'. Map 8 identifies the mesa on the site as 'priority for public recreation'.
Recommendation 42 of the MR Management Strategy states:
Develop a management plan to maintain a consistent planning approach across local government boundaries in the detailed investigation area by ensuring that the objectives and recommendations of this strategy as they relate to the detailed investigation area are interpreted and implemented uniformly. Ensure the manag[e]ment plan is endorsed by the Shire of Chapman Valley, the City of GeraldtonGreenough and the WAPC[.]
The site is within the detailed investigation area identified in the MR Management Strategy.
The MR Management Plan was completed in 2010 by private consultants for the City and the Shire. There was no evidence the two local governments have formally adopted the plan; rather that they have regard to its contents when considering development and subdivision proposals. The Commission has not endorsed the MR Management Plan.
Part 13 of the MR Management Plan is concerned with 'Implementation and Governance'. It is stated that creation of the park will be 'a complex process occurring over a long time frame'. The 'establishment phase' would include 'modifying Planning Schemes and Strategies'. Recommended was that the local governments oversee the setting up of a supervisory committee for the establishment of the park, and there be put in place a legislative framework for an independent authority to oversee the management of the park. The MR Management Plan at Part 13 recommends early involvement of 'not for profit' groups in the management of the natural resources, and encourages private landowners to participate and, where willing, to allow acquisition of land for the park.
The MR Management Strategy provides a basis for concluding that a desirable planning outcome would be to give consideration to public ownership of particular mesas adjacent to the main travel corridors through the Moresby Range, and this includes the mesa on the site.
There is no evidence of the City, Shire or any State government department initiating changes to statutory documents, or indeed taking any steps to further any of the recommendations to advance the concept of a park or public use of mesas in the Moresby Range, since the release of the MR Management Strategy in 2009. The only evidence before the Tribunal was of Mr Spillman attempting to encourage local and State politicians to act. With no concrete result, Mr Spillman has proceeded to engage directly with a consultant who liaises with bodies in the not for profit sector. This is discussed further below.
In respect of Issue 1 the Tribunal considers that the mesa on the site has significant potential as a future park. The Tribunal has noted that in the 1970s and 1980s various planning documents referred to reservation and acquisition of land for a park in the Moresby Range. Also significant, however, is that, since that time, while there is reference in the MR Management Strategy to 'seeking opportunities' to obtain government funds to identify and acquire suitable sites for a park, the emphasis in statutory documents and directly applicable subdivision policies has been only on preserving existing rural holdings and subdivision and development control of private land to achieve the objective of preserving the existing landscape and character of the mesas and their side slopes. An absence of the planning authorities' initiating statutory support for the creation of lots to include in a regional park is a relevant consideration in this matter.

Issue 2 whether the proposed subdivision would be inconsistent with the objectives and requirements of LPS 5

The respondent said the resultant lots would be inconsistent with the objectives for the rural zone at cl 4.2 of LPS 5. This is because the lots would be too small to be economically viable and so would not provide for extensive agricultural uses that contribute to the region as required by the objectives. The respondent said that cl 1.4 of LPS 5 states that the LPS 5 is to be read in conjunction with the LRS, and the LRS identifies 400 hectares as the minimum lot size for extensive agriculture. The site is already less than 400 hectares.

The applicant noted the objectives for the rural zone under LPS 5, but said that this should not be the only consideration. The applicant pointed out that the MR Management Strategy and the MR Management Plan both advocate proposed Lot B be used for a park with development to enhance public enjoyment at the eastern side of the mesa. Proposed Lot A would remain a viable sheep stud.
Mr Tony Turner, a planner who appeared for the applicant, and Mr Justin Breeze, a planner called by the respondent, agreed that the inclusion of the site in SCA 2 under cl 6.3 of LPS 5 requires consideration of the landscape and aesthetic qualities of the area in determining subdivisional proposals.
The respondent's position was that the proposal would be in conflict with the purpose of SCA 2 at cl 6.3.2 of LPS 5, and would be inconsistent with the matters to be considered within SCA 2 at cl 6.3.4 of LPS 5 because the proposed subdivision would create an entitlement for an additional dwelling and associated development that would have a negative impact on the landscape values of the Moresby Range.
At the hearing the respondent made a further submission to the effect that there was no discretion available to approve the subdivision because the proposed subdivision would allow additional development and so would be in conflict with the requirements of cl 6.3.4(c) of LPS 5. The respondent argued that circumstances did not exist to satisfy the requirements of s 138(3) of the PD Act necessary for a subdivision decision to be given that would be in conflict with the provisions of LPS 5. This argument from the respondent was not identified in its reasons for refusal or listed as an issue in its statement of issues, facts and contentions. The applicant was given no notice of this issue and was not in a position to provide a considered opinion on the respondent's submission in respect of s 138 of the PD Act.
The Tribunal is of the view that cl 6.3.4 of LPS 5 does not prevent it from considering whether subdivision of the site might be allowed. Clause 6.3.4 of LPS 5 sets out that there is a general presumption against subdivision to avoid the potential for additional development, but goes on to set out circumstances where the City might exercise discretion and support subdivision. The Tribunal considers that the guide for the City to exercise its discretion on whether to recommend support for a subdivision is not couched in terms preventing the Commission, or the Tribunal on review, from exercising discretion on whether to allow a subdivision. The development that occurs on the site where an additional lot might be created is a separate matter for consideration as a development application, either before or after subdivision occurs.
The Tribunal notes that the local government controls development, including in SCA 2. Clause 6.3.2 of LPS 5 provides that development not have any negative impact on environmental and visual landscape qualities. To the west of Carnalea Road, at the western edge of Lot B, are houses on rural residential lots created within SCA 2. The Tribunal is of the opinion that it is arguable that a house on Lot B at the Carnalea Road frontage would have an impact on visual amenity of the range no different from the impact of the houses opposite. This could be the subject of consideration as part of a development application. In this respect a development proposal might not be inconsistent with the objectives and requirements of LPS 5.
The difficulty faced by the applicant is that LPS 5 and SCA 2 do not explicitly support subdivision into smaller rural lots used for extensive agriculture. In this regard the proposal is inconsistent with LPS 5. The Tribunal is of the view that more is required before subdivision of a rural lot, such as proposed for the site, might be considered. More particularly, that there be put in place statutory or procedural steps that would ensure that a lot such as Lot B would become part of a regional park, and not simply a smaller extensive agricultural lot, even where future discussion might be held in the future with third parties on the potential use of the new lot for recreation purposes.
Clause 6.3.4(c)(iii) of LPS 5 requires subdivision to be consistent with the policies of the Commission. The Commission's policies SPP 2.5 and DC 3.4 start from the presumption against subdivision of extensive agricultural land. Exceptions where subdivision might be considered are set out in the policies and these are discussed in the next issue.

Issue 3 whether the proposed subdivision would be inconsistent with the objectives and requirements of SPP 2.5 and DC 3.4

As noted above, the objectives at cl 1.4 of SPP 2.5 include minimising ad hoc fragmentation of rural land and discouraging non-agricultural uses of agricultural land. Part 4 of DC 3.4 is headed 'Policy measures for rural lots for farming and conservation'. Clause 4.1 of DC 3.4 is headed 'Retention of rural character and agricultural holdings' and states:
… in the absence of the planned provision for closer settlement and more intensive agricultural uses, existing large rural lots be retained for broadacre and traditional forms of farming and that the fragmentation of rural land and loss of rural character through piecemeal, unplanned subdivision not be permitted.
Part 4 of DC 3.4 goes on to set out circumstances where subdivision might be considered. It was the respondent's submission that none of the exceptions to the presumption against rural subdivision were relevant to the site. The applicant said that cl 4.1(f) of DC 3.4 provided a basis for consideration of the proposed subdivision as an exception to the presumption against rural subdivision. Clause 4.1(f) of DC 3.4 states:
For other unusual or unanticipated purposes which, in the opinion of the WAPC, do not conflict with policy and are necessary in the public interest.
The applicant argued that the creation of Lot B for the purposes of the Moresby Range regional park was a special purpose, and the creation of the lot would be in accordance with adopted planning documents, namely, the MR Management Strategy and the MR Management Plan.
The applicant also argued that SPP 2.5, under 'Background', said that subdivision might be considered as an exception where the purpose was for 'uses of State significance'. In the applicant's submission a Moresby Range regional park was of State significance and this was recognised by the Commission in adopting the MR Management Strategy. The applicant said that the situation was unique, as nowhere else in the State has a regional park of this scale been advocated with its future creation dependent on landowner cooperation.
Mr Breeze said that in the absence of Lot B being ceded for the purposes of recreation by the subdivider, the proposed subdivision simply created two rural lots which would be inconsistent with DC 3.4 and SPP 2.5 because it was fragmentation of rural land and Lot B would not be viable. The subdivision would not achieve any objective in the public interest in these circumstances.
The Tribunal agrees with the applicant that cl 4.1(f) of DC 3.4 does provide a basis for consideration of a rural subdivision. A Moresby Range regional park would be in the public interest, as identified in the MR Management Strategy. The concern of the Tribunal, however, was that before subdivision could be considered it has to be established that the proposed subdivision would result in the objective of a regional park being achieved. The applicant provided evidence of discussions continuing with private bodies toward ultimate use of Lot B as a conservation lot. The Tribunal has concluded, however, that there is not yet in place any procedure whereby the public interest of creating a regional park would, in fact, be satisfied.

Issue 4 whether the proposed subdivision would be inconsistent with the objectives and requirements of the LRS

Clause 4.9 of the LRS is concerned with the Moresby Range. At cl 4.9.7 of the LRS there is set out subdivision and development guidelines which commence with the statement:
Subdivision and development to generally be in accordance with the Moresby Range Management Strategy.
The guidelines in this clause of the LRS include the following:
Subdivision may be considered for broadacre lots a minimum of 400ha.
Mr Breeze said the LRS had 'been through a rigorous statutory process that was completed relatively recently' and provides strategic planning for rural land in the City. In his opinion, because proposed Lot B containing the mesa would be 278 hectares, it would be 'unlikely that it could be utilised for sustainable, economically viable agriculture'. The subdivision would be fragmentation of the site to the point that it would 'potentially undermine the use of the land for extensive agricultural purposes'.
Mr Turner said the 400 hectare minimum lot size was included when the LRS was being prepared prior to 2007. He questioned the blanket 400 hectare minimum lot size, saying that it should now be reconsidered in light of the MR Management Strategy of 2009 which advocated the establishment of the regional park. A variation to minimum lot sizes should be considered rather than rigidly adhering to the 400 hectare minimum to allow the initiation of the park concept. Mr Turner said it was not intended Lot B be used for rural pursuits but simply as a park. The use of the lot for grazing was suggested as a means to managing fire hazard.
Mr Spillman's evidence, which was not disputed, was that the 115 hectare Lot A east of the mesa, and which contained the farm infrastructure and his family home, was operated, and would continue to operate, as a viable Merino stud. The applicant produced a letter dated 3 October 2011 from the City commenting that the City supported Lot A with the stud activity. Mr Turner said that Lot A would be consistent with the objectives of the LRS.
The Tribunal has accepted that Mr Spillman's Merino stud on Lot A can be considered as a sustainable rural activity. Of concern to the Tribunal are the planning consequences of the creation of Lot B. Lot B has areas suitable for broadacre cropping on the western foot slopes and on the top of the mesa, and for grazing. The evidence was that the farm water supply is on Lot A so Lot B would have to gain access to the reticulated water main near Carnalea Road at the western boundary of the site serving the neighbouring rural residential subdivision. No argument was advanced that Lot B would be economically viable as a stand alone rural lot, although the Tribunal accepted that it might be sustainable as an agricultural holding which was worked as part of a larger enterprise. This is not remarkable in a locality where even lots of 400 hectares are best sustained as part of a larger broadacre cropping and grazing farm.
The planning evidence was that for Lot B, the foot slopes to the west of the mesa currently cropped had future potential as rural residential lots, but the Tribunal was unable to find that this future potential would assist in ensuring the sustainability of the agricultural use of Lot B.
If Lot B were removed from the rural zone the LRS provisions would no longer be a consideration. Before any scheme amendment might occur, however, it would be necessary for appropriate structure planning to occur and for rezoning to commence. The Tribunal was told that this process has been initiated for two currently rural lots to the southwest of the site, but there has been no initiation of such a process for the western foot slopes of the site.
The Tribunal has formed the view that, consistent with the respondent's submission, the proposed subdivision would, in essence, be the creation of two rural zoned lots. Without more being in place to ensure the future use of Lot B as part of a regional park, the proposed subdivision at this stage of the planning of the locality would be inconsistent with the LRS.

Issue 5 whether the proposed subdivision would be in accordance with the intent of the MR Management Strategy and the MR Management Plan

The applicant made particular reference to cl 5.4 of the MR Management Strategy, which states:
This strategy has not set out specific mechanisms for land acquisition or the management of conservation and recreation areas; rather, it encourages local and state planning authorities, as well as corporate organisations, landowners and community groups, to use this strategy to support future funding options for land acquisition and management of conservation and recreation areas where the opportunities arise. …
Clause 5.2.2 of the MR Regional Strategy requires due regard be had to the objectives and recommendations of the MR Management Strategy when considering subdivision. The Tribunal notes that Recommendation 24 of the MR Management Strategy, cited under Issue 1 above, refers to the acquisition of strategic areas of the Moresby Range, which include the site, but only recommends:
Seek opportunities to obtain government funding to purchase portions of the range for the benefit of the Geraldton region.
The applicant's submission was that the proposed subdivision would create Lot A to protect the applicant's home and sheep stud, while facilitating negotiations for the disposal of Lot B to establish the Moresby Range park. Mr Spillman said that when he was informed by the respondent that the State government would not be purchasing the equivalent of Lot B, he commenced negotiations with a business named Carbon Neutral to develop an ownership arrangement and development program that would result in Lot B becoming a conservation lot that could be used consistent with the objectives outlined in the MR Management Strategy.
The applicant said the MR Management Plan, prepared by private consultants, was adopted by the City and the Shire consistent with the recommendations of the MR Management Strategy to provide for the implementation of the MR Management Strategy. The preparation of the MR Management plan included consultation with private landowners, unlike the MR Management Strategy, and consultation with officers of both State and local governments.
Mr Turner said the MR Management Strategy and the MR Management Plan provided flexibility for the applicant to negotiate with bodies other than the government for the use of Lot B consistent with the objective of creating a Moresby Range regional park. The applicant seeks a solution to achieving the park objective without merely handing over Lot B to the State. Mr Spillman said that if the State would not cooperate in acquiring Lot B, then he should be provided with the opportunity to pursue negotiations with private bodies and charities for the acquisition of Lot B to achieve the MR Management Strategy objective of creating a regional park.
In support of his position, Mr Spillman put into evidence an email dated 3 November 2011 from Mr Ray Wilson of Carbon Neutral (Exhibit 12). The Carbon Neutral email refers to: assessment to be made of the carbon carrying capacity of 'the property'; the organisation 'Men of the Trees' having won a tender for community engagement with the City on a tree planting program; discussions with an Aboriginal group on heritage matters; and discussions with several mid west iron ore companies said to have indicated they would be 'happy to explore opportunities for mutually beneficial outcomes to be achieved'.
Mr Wilson outlines in the email steps to be taken which include: seeking formal commitments from the iron ore companies and 'other companies' regarding carbon credits; gaining 'inprinciple' council approval for a planting program; these steps being part of 'key due diligence'. Mr Wilson said when the matters mentioned were completed he would then be in a position to present a proposal to yet another body, the 'Australian Children's Trust for the Environment' as a prospective purchaser of the land.
The Tribunal accepted the email as evidence of an exchange between Mr Spillman and Mr Wilson, but expressed concern at the lack of evidence to support the assertions within the email and the absence of Mr Wilson for examination on the comments made.
The respondent dismissed involvement of Carbon Neutral, saying that any future owner may pursue rezoning and development potential contrary to both the MR Management Strategy and the MR Management Plan.
The respondent dismissed the MR Management Plan as being of minimal relevance to the statutory planning process. This was because the MR Management Plan has not been endorsed by the Commission. Mr Breeze considered the MR Management Plan to be a local planning policy. He said the MR Management Plan was inconsistent with the provisions of LPS 5, and pointed out that the City had recommended refusal of the subdivision. In Mr Breeze's opinion, the only way to gain certainty that Lot B would be used as a 'park' would be to impose a condition of subdivision that required Lot B to be vested as a 'reserve for recreation' pursuant to s 152 of the PD Act.
The Tribunal notes the inconsistency in the MR Management Strategy in that, at cl 5.4, it encourages bodies other than government to use the strategy to support funding for land acquisition, but at Recommendation 24 refers only to government funding.
As stated under Issue 1 above, the Tribunal finds the recommendations of the MR Management Plan do not clearly provide a basis for achieving the objectives of the plan in the absence of specific statutory and policy provisions first being adopted. Unfortunately, the MR Management Strategy requires an MR Management Plan for its implementation and there appears to be no common purpose to finalise a plan acceptable to all decisionmakers that can achieve the desired outcome.
The Tribunal accepts that Mr Spillman believes Carbon Neutral is being sincere and conscientious in its endeavours to find a body to purchase Lot B, and eventually to have agreement with the purchaser to use Lot B consistent with the objectives for a Moresby Range regional park. The Tribunal, however, does not believe the endeavours of these third parties have reached a stage where they are specific, enforceable commitments to achieve the objectives discussed.
Mr Spillman's objective is to create a Moresby Range regional park and in this regard his objective is consistent with both the MR Management Strategy and the MR Management Plan. However, the objectives of both the plan and strategy refer to relevant statutory provisions being enacted to underpin achieving this objective, even where third parties might be engaged to participate. The absence of this statutory underpinning leads to a conclusion that the proposed subdivision would not be in accordance with the MR Management Strategy and the MR Management Plan.

Issue 6 whether approval of the proposed subdivision would create an undesirable precedent for the subdivision of surrounding lots

It was common ground that the proposed subdivision would result in the creation of two rural lots smaller than the lot size stated in the LRS.
The respondent said that the proposed subdivision was ad hoc, piecemeal subdivision of rural zoned land that would be inconsistent with the local and State planning framework. Approval would set an undesirable precedent for the subdivision of neighbouring rural lots.
The applicant said that if a precedent was created by approving the two lots it would be a positive precedent. The creation of Lot A would not be undesirable because it supported a viable sheep stud.
The applicant said that, with respect to Lot B, the MR Management Strategy identified land adjacent to the main transport corridors through the Moresby Range for use as a park, and the proposed subdivision to create Lot B facilitated this objective. If the subdivision helped achieve the inclusion of other lots identified adjacent to transport corridors in the regional park, then the precedent created would, ultimately, lead to achieving the objectives of the MR Regional Strategy.

The applicant said the circumstances were unique because no other regional parks of the scale of the Moresby Range regional park were being established within Western Australia at this time. The circumstances of this matter were also unique in that creation of the regional park had the support of a willing landowner, who was negotiating with a corporate organisation as provided for in the MR Regional Strategy and MR Regional Plan.
The Tribunal agrees that, in part, this proposal can be distinguished because part of the site is identified in the MR Regional Strategy as suitable for consideration as part of a regional park, and the owner supports this objective. Absent, however, is the planning mechanism to ensure the outcome achieved by approving the subdivision at this time would be the creation of a park. Until there is in place enforceable requirements that would cause Lot B to be used as a regional park, then the proposed subdivision is, in essence, the creation of two rural zoned lots smaller than the recommended size. For this reason the proposed subdivision is objectionable and would be undistinguishable from other later applications by neighbours. The proposed subdivision at this stage in the planning of the locality would create an undesirable precedent.

Conclusion

Mr Spillman began publicly expressing a vision for a Moresby Range regional park from the time he acquired the site in 1994. Mr Spillman's enthusiasm for such a park is significant. This is because the site is one part of his holding which straddles Chapman Valley Road, one of the main movement corridors through the Moresby Range to the Chapman Valley, and includes mesas among the closest to the Geraldton urban area.
The evidence reveals Mr Spillman has promoted his vision to relevant local governments, Ministers of the State government, local members of Parliament, government departments, the press and the general public. Mr Spillman likened his vision for a Moresby Range regional park with the vision that resulted in the creation of Kings Park, adjacent to the Perth city centre, over a hundred years ago.
Mr Spillman's vision is consistent with that in the structure plans of 1976 and 1989 that referred to acquiring mesas in the Moresby Range for a regional park. Since 1994, as discussed under Issue 1 above, while subsequent planning strategies have referred to examining the suitability of lots adjacent to transport corridors for use as public recreation, there has been an absence of the planning authorities initiating statutory support for the reservation of lots to include in a regional park.
As discussed under Issue 2, the Tribunal has found that the proposed subdivision would be inconsistent with LPS 5.
Under Issue 3, the Tribunal found that subdivision might be considered under cl 4.1(f) of DC 3.4, but there were not yet in place any planning controls that would ensure that the public interest objective of creating a regional park would, in fact, be accomplished.
In respect of Issue 4, the Tribunal found that the proposed subdivision, particularly Lot B would be in conflict with the LRS.
In respect to Issue 5, the Tribunal found it understandable that the applicant would be encouraged to negotiate with third parties for the use of Lot B for recreation purposes because such a course is directly referred to in both the MR Management Strategy and the MR Management Plan. These documents also refer, however, to statutory provisions being in place to ensure the objective of creating a regional park is achieved. In this regard, given the recent status of discussions held with third parties for use of Lot B as a conservation lot, the proposed subdivision would not be in accordance with the intent of the MR Management Strategy and the MR Management Plan.
In Issue 6, the Tribunal concluded that in the current planning circumstances the proposed subdivision would create an undesirable precedent.
At the hearing, Mr Spillman was clearly frustrated that his enthusiasm to participate in having part of his landholding acquired for inclusion in a Moresby Range regional park was not being reciprocated by any responsible authority initiating changes to statutory documents that would facilitate the creation of the park.
It was not made apparent to the Tribunal in evidence and submissions why steps were not being taken by the responsible authorities to enable the recommendation in the MR Management Strategy to be implemented. The Tribunal found, however, that, while Mr Spillman had a vision for a Moresby Range regional park, the proposed subdivision could not be supported because it would be in conflict with the current provisions of LPS 5, the LRS and the specific recommendations of the MR Management Strategy and the MR Management Plan in respect to necessary planning controls being in place to ensure Lot B would become part of a regional park.
The Tribunal has therefore decided to dismiss the application for approval to subdivide the site.

Orders

1.The application for review is dismissed.
2.The decision of the Western Australian Planning Commission to refuse the subdivision of Lot 23 Chapman Valley Road, Moresby is affirmed.

I certify that this and the preceding [92] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J JORDAN, MEMBER