KIMBER and WESTERN AUSTRALIAN PLANNING COMMISSION
[2006] WASAT 354
•6 DECEMBER 2006
KIMBER and WESTERN AUSTRALIAN PLANNING COMMISSION [2006] WASAT 354
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 354 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:209/2006 | 21 SEPTEMBER 2006 | |
| Coram: | MR L GRAHAM (SESSIONAL MEMBER) | 5/12/06 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | The application for review is dismissed | ||
| B | |||
| PDF Version |
| Parties: | MR GEOFF KIMBER WESTERN AUSTRALIAN PLANNING COMMISSION |
Catchwords: | General locality Precedent Seriously entertained planning proposal Ad hoc subdivision Resource Enhancement Wetland |
Legislation: | City of Wanneroo District Planning Scheme No 2, cl 3.16.1, cl 3.17.1 Planning and Development Act 2005(WA), s 251(1) State Administrative Tribunal Act 2004 (WA), s 31 Town Planning and Development Act 1928 (WA), s 5AA, s 61(1)(a) |
Case References: | Aspen Pty Ltd v State Planning Commission (Unreported, Appeal No 13 of 1988) Maher & Anor and Western Australian Planning Commission [2006] WASAT 129 Strawbridge & Anor and Western Australian Planning Commission [2006] WASAT 96 Nil |
Orders | The application for review is dismissed,The decision under review is affirmed |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : KIMBER and WESTERN AUSTRALIAN PLANNING COMMISSION [2006] WASAT 354 MEMBER : MR L GRAHAM (SESSIONAL MEMBER) HEARD : 21 SEPTEMBER 2006 DELIVERED : 6 DECEMBER 2006 FILE NO/S : DR 209 of 2006 BETWEEN : MR GEOFF KIMBER
- Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
General locality - Precedent - Seriously entertained planning proposal - Ad hoc subdivision - Resource Enhancement Wetland
Legislation:
City of Wanneroo District Planning Scheme No 2, cl 3.16.1, cl 3.17.1
Planning and Development Act 2005(WA), s 251(1)
State Administrative Tribunal Act 2004 (WA), s 31
Town Planning and Development Act 1928 (WA), s 5AA, s 61(1)(a)
(Page 2)
Result:
The application for review is dismissed
Category: B
Representation:
Counsel:
Applicant : Mr G Hajigabriel (Acting as Agent)
Respondent : Mr J Algeri (Acting as Agent)
Solicitors:
Applicant : Greg Rowe & Associates (Planning Consultants)
Respondent : Western Australian Planning Commission
Case(s) referred to in decision(s):
Aspen Pty Ltd v State Planning Commission (Unreported, Appeal No 13 of 1988)
Maher & Anor and Western Australian Planning Commission [2006] WASAT 129
Strawbridge & Anor and Western Australian Planning Commission [2006] WASAT 96
Case(s) also cited:
Nil
(Page 3)
Summary of Tribunal's decision
1 The application for review was lodged against a decision of the Western Australian Planning Commission to not approve the subdivision of an 8.17 hectare rural zoned lot into two smaller lots of 4.027 hectares and 4.1502 hectares in Karoborup Road, Carabooda in the City of Wanneroo.
2 In examining this matter, the Tribunal has had regard to the relevant provisions of State and local rural policy and the City of Wanneroo District Planning Scheme No 2. Such matters as the prevailing lot size in the general locality and the issue of precedent were also examined; particularly the implications of two recent decisions by this Tribunal in rural areas encompassed by the draft East Wanneroo Land Use and Water Management Strategy.
3 In the view of the Tribunal a critical circumstance in this case is that much of the subject land is classified as a Resource Enhancement Wetland which is considered to be environmentally sensitive. It extends well beyond the subject land to the north and south.
4 As the presence of this wetland will be highly likely to influence the final recommendations of the Land Use and Water Management Strategy affecting the subject land and adjacent property, there is no planning argument of sufficient weight at this time to cause the Tribunal to support an ad hoc subdivision that could pre-empt these recommendations.
Introduction
5 The application for review, dated 21 June 2006, was made under the provisions of s 251(1) of the Planning and Development Act 2005 (WA) by Greg Rowe and Associates on behalf of Mr Geoff Kimber (applicant) against a decision of the Western Australian Planning Commission (the Commission or the respondent) on 18 May 2006 to refuse an application for subdivision.
6 The reasons for refusal can be broadly summarised:
(a) The land is zoned ''general rural'' and ''rural resource'' in the town planning scheme and subdivision would create the potential for additional building development and non-rural/special rural activity in conflict with zoning objectives.
(Page 4)
- (b) The Commission's ''Rural Land Use Planning Policy'' requires Councils to prepare a Local Rural Strategy to comprehensively plan for change and development in rural/special rural areas. In the absence of such a strategy the Commission is not prepared to approve the subdivision.
(c) The application is inconsistent with the ''Metropolitan Rural Policy'' which aims to maintain the open landscape character of rural/special rural areas in Perth.
(d) The application does not comply with Policy DC 3.4 "Subdivision of Rural Land'' in that it has not been identified for residential development in a town planning scheme, an endorsed local planning strategy or an endorsed local rural strategy.
(e) An approval would create an undesirable precedent for the subdivision of other lots of a similar size in the ''general rural'' zone of this locality.
The subject land and the proposal
7 The subject land can be described as Lot 3 (135) Karoborup Road, Carabooda, on Certificate of Title 1167, Folio 340 on Diagram 11918. It has an area of 8.17 hectares, with a frontage of approximately 161 metres to Karoborup Road, and is currently used for equestrian purposes.
8 The proposal is to subdivide Lot 3, which has an east-west orientation, into two lots of 4.027 hectares and 4.1502 hectares. The existing house is located in the south-east corner close to Karoborup Road and will be retained on proposed Lot 2.
Legislative framework
9 The subject land is zoned ''rural'' in the Metropolitan Region Scheme (MRS) and ''rural resource'' and ''general rural'' in the City of Wanneroo District Planning Scheme No 2 (DPS 2).
10 The matter is also covered under s 5AA of the Town Planning and Development Act 1928 (the TPD Act) which provides for statements of planning policy. The Tribunal is required "to have due regard" to such statements under s 61(1)(a).
(Page 5)
11 Specific policies relevant to the matter under s 5AA of the TPD Act include:
(a) Statement of Planning Policy No 1: State Planning Framework (SPP 1).
(b) Metropolitan Rural Policy (1995) (MRP).
(c) Development Control Policy 3.4: Subdivision of Rural Land (DC 3.4).
(d) Statement of Planning Policy 2.5: Agriculture and Rural Land Use Planning (SPP 2.5).
(e) Statement of Planning Policy No 3: Urban Growth and Settlement (SPP 3)
12 Other relevant documents include:
(a) City of Wanneroo Interim Local Rural Strategy (interim LRS).
(b) Draft East Wanneroo Land Use and Water Management Strategy (draft LUWMS).
(c) Environmental Protection (Swan Coastal Plan Lakes Policy) 1992 (SCPLP).
Respondent's position
13 The respondent's position is contained in the Statement of Issues, Facts and Contentions dated 21 August 2006. It broadly argues:
(a) Whilst it is acknowledged that the subject land has a low capability of being used for productive agriculture, the applicant has not demonstrated that it is not capable of sustaining other rural pursuits, and that the proposed subdivision would not preclude the use of the land for such pursuits.
(b) The proposal would be inconsistent with the prevailing or predominant lot size in the general locality.
(c) The ad hoc nature of the proposal could be to the detriment of a rational settlement pattern and contrary to the objectives of DC 3.4.
(Page 6)
- (d) The City of Wanneroo has adopted an interim LRS which prescribes a minimum lot size of 4 hectares within a general area containing the subject land. However, the Strategy does not specifically provide for the subdivision of land in the "general rural" or "rural resource" zones.
(e) Although the draft LUWMS is a seriously entertained planning proposal, the precise form of the proposals have not been finalised, and the stage has not been reached where the existing planning framework can be set aside.
(f) Approval of the subdivision would create an undesirable precedent and would not be in the interests of orderly and proper planning.
Applicant's position
14 The applicant's position is contained in a Statement of Issues, Facts and Contentions dated 29 August 2006. It broadly argues:
(a) The proposal is consistent with the zoning under the MRS and DPS 2; neither of which preclude subdivision.
(b) The proposed lot sizes are consistent with those prevailing in the immediate area and would not have an adverse impact on the amenity or character of the area.
(c) The area of Carabooda east of Wanneroo Road has been identified in the draft LUWMS as having a low capability for agricultural use. As such the proposed subdivision will not affect the supply of agricultural land.
(d) The interim LRS should be taken into consideration and the proposed subdivision is consistent with its recommendations and the City's Subdivision of Rural Zoned Land Policy which recommends a minimum lot size of 4 hectares.
(e) There is an established pattern of residential dwellings being located close to Karoborup Road and DPS 2 allows for two (2) dwellings on one (1) lot in the General Rural Zone.
(Page 7)
- (f) The provisions of DC 3.4 apply on a statewide basis and do not take into account the individual merits and circumstances of each case.
(g) The proposal is generally consistent with the objectives of SPP 2.5 and the MRP is only intended as a guide to the respondent. Both policies, like DC 3.4, do not take into account the individual merits and circumstances of the case.
(h) Although the draft LUWMS has not been approved by the respondent, it represents the most recent and up-to-date representation of current land use demands and pressures in the East Wanneroo area and has been the subject of comprehensive advertising and public consultation.
(i) The Land Use Concept contained within the draft LUWMS states that the new rural living/landscape protection area is a notional line subject to further investigation. The subject land is well within the notional boundary and there is nothing to suggest that the area of landscape living will be reduced to exclude the subject site.
(j) The applicant believes that the proposal should be considered on its merits and not approved simply because it is consistent with the recommendations of the draft LUWMS.
(k) As the proposal is consistent with the lot size in the immediate locality, an approval would not create a precedent for the area.
(l) For the reasons outlined, the proposal is not contrary to orderly and proper planning.
Planning issues
15 The principal planning issues are:
(a) Does the proposal comply with relevant State and local policy and DPS 2 provisions?
(Page 8)
- (b) If the answer to (a) is in the negative, do the merits and particular circumstances of this case justify an approval?
Assessment of proposal
Background
16 Following the application for review on 21 June 2006, a directions hearing was conducted by Member McNab on 12 July 2006. The respondent was invited to reconsider its decision under review pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA) (the SAT Act).
17 To assist the process the applicant lodged additional information with the respondent on 19 July 2006.
18 On 31 July 2006, the respondent resolved to reiterate its previous decision of approval.
State and local policy and DPS 2
19 The primary intent of DC 3.4 is to provide a framework for the subdivision of rural land. In that sense, cl 3.1.1 of DC 3.4 contains a general presumption against the subdivision of rural land unless it is specifically provided for in a town planning scheme, an endorsed local planning strategy or an endorsed local rural strategy.
20 Despite the provisions of cl 3.1.1, subdivision will be supported by the respondent in certain circumstances, such as to facilitate the conservation of a heritage building or the relocation of boundaries. Those circumstances do not apply in this case, and neither is there an endorsed local planning strategy or local rural strategy in place.
21 One of the key objectives of SPP 2.5 is to minimise the ad hoc fragmentation of rural land. Clause 5.3.1(iii) of SPP 2.5 provides:
"The Commission will only support subdivision for Rural-Residential and Rural Smallholdings where the land has been appropriately zoned within the town planning scheme and the provisions of Development Control Policy No DC 3.4 clause 6 can be complied with."
22 The 1995 MRP differs from DC 3.4 and SPP 2.5 in that it is focussed on the metropolitan region only. An important consideration is set out in P 6.4 which provides that where a minimum lot size is not specified in either an approved town planning scheme or local rural strategy, the
(Page 9)
- respondent will not approve subdivision applications which result in a lot size below those prevailing in the locality.
23 An emphasis in SPP 3 is to regulate or manage the overall increase in rural-residential lots. In that sense it aims to minimise their presence near productive rural uses by giving preference to locations near existing settlements; thereby avoiding demands for costly infrastructure extensions.
24 The interim LRS includes a policy manual at Appendix 2 titled "Subdivision of Rural Zoned Land". It is specifically concerned with the subdivision of land zoned "general rural" or "rural resource" and includes the subject land.
25 Although the interim LRS and its associated policy manual support subdivision down to a minimum of 4 hectares, the document has yet to be adopted or endorsed by the respondent.
26 Under cl 3.16.1 of DPS 2, the objectives of the "general rural" zone are to:
"(a) accommodate agriculture, horticulture and equestrian activities;
(b) maintain and enhance the rural character and amenity of the areas designated for rural use and protect their groundwater and environmental values."
27 Under clause 3.17.1 of DPS 2 the objectives of the "rural resource" zone are to:
"(a) protect from incompatible uses or subdivision, intensive agriculture, horticultural and animal husbandry areas with the best prospects for continued or expanded use;
(b) protect from incompatible uses or subdivision basic raw materials priority areas and basis raw materials key extraction areas."
28 As pointed out in the witness statement dated 11 September 2006 of Mr Damien Giudici, a qualified town planner, for the respondent:
"DPS 2 does not specifically provide for the subdivision of land within either the General Rural or the Rural Resource Zones or recommend minimum lot sizes for either of these zones."
(Page 10)
29 Conversely it should be pointed out that DPS 2 does not preclude subdivision within either of these zones.
30 Of importance in the consideration of this matter is the draft LUWMS which has been prepared by and is being progressed by the respondent.
31 The draft LUWMS recognises that, under the current water allocation and licence system that further development of horticulture and agriculture in East Wanneroo is not sustainable and that the final strategy will be to provide a long-term framework for managing the land and water resources east of Wanneroo Road.
32 Within the draft LUWMS there is a draft Land Use Concept which identifies the subject land within a potential new "rural living/landscape protection area" in which rural subdivision and additional tourism-related rural uses may be allowed.
33 The relationship between the draft LUWMS to DPS 2 was explained in a press statement dated 8 August 2006 by Mr Jeremy Dawkins, Chairman of the WAPC. The statement, included as annexure DRG 6 to the witness statement of Mr Giudici, explains:
"The draft strategy does not supersede the statutory framework that currently applies in the area and should only be used as a preliminary document.
A considerable amount of work is required before the land use and water management strategy will be finalised and until this time the WAPC will continue to consider applications based on current planning policy."
34 According to the SCPLP some 6.8 hectares of the subject land to the west is categorised as "wetland" and would qualify as an "environmentally sensitive area".
35 The matter was explained in a letter from the Department of Environment dated 6 January 2006 to the respondent:
"Portions of the lot are classified as a Resource Enhancement Wetland (REW). The management objective ... is for management, restoration and protection towards improving their conservation value. These wetlands have the potential to be restored to conservation category … There is a presumption
(Page 11)
- against approving any activity likely to impact a priority management wetlands, including developments that are likely to require, cause, or result in the filling, clearing, mining, drainage into or out of, effluent discharge into, pollution of, and degradation to the wetland."
36 In the view of the Tribunal the applicant can take little comfort from the various provisions of State policy as they relate to rural land although SPP 2.5 does mention the minimisation of the ad hoc fragmentation of rural land. In that sense the door is not closed absolutely on subdivision.
37 On the question of local policy, Mr Hajigabriel for the applicant argued at the hearing that the interim LRS had been the subject of community workshops on nine separate occasions between 1988 and 1999, had been adopted by the City and updated from time to time. Also, the interim LRS supports subdivision down to 4 hectares.
38 Mr Hajigabriel also argued that the draft LUWMS originally showed the subject land as "rural" but that the current version, which was advertised for public comment in November 2005, shows the land as "rural living/landscape protection".
39 The clear impression being given here by the applicant is that the planning process is inexorably moving the focus away from the current zoning to one which will allow the breakdown of the existing lot size.
40 The respondent, on the other hand, argues that the interim LRS has yet to be accepted as a finalised document and that the notional line in the draft LUWMS showing the "rural living/landscape protection" boundary, which encompasses the subject land, could revert back to "rural" or some other zoning in the final document.
41 What is clear is that the critical planning document at the local level is the draft LUWMS under the auspices of the respondent, and to date it has yet to be finalised.
42 Also of importance is the important wetland which encompasses much of the subject land to the west and the need to protect its integrity in the decision making process.
The general locality and lot size
43 In her witness statement Ms Richards, for the applicant, argues:
(Page 12)
- "The area around Karoborup Road is characterised by a number of lots measuring 4 hectares and less in area. Of the 29 lots maintaining direct frontage to Karoborup Road (excluding the subject site) 24 or 61.5% are less than 5 hectares in area. Of these 39 lots, the most frequently occurring lot size is 4 hectares."
44 The general locality is depicted by Ms Richards in her site plan attached to her witness statement at Attachment 11.
45 In his witness statement, Mr Giudici, at attachment DRF 4, broadens the boundary of the so-called general locality and concludes:
" … I note that amongst the 90 lots in the general locality, the average lot size is 7.90 hectares and the majority of lots are greater than 4 hectares. Even if only those lots falling within the 'inner core' as depicted in DRG 4 are included, the average lot size is 6 hectares and the majority of lots are greater than 4 hectares."
46 What is clear to the Tribunal is that there is a wide variety of lot sizes, no matter what the definition of general locality is, but that there are a greater number of lots less than 5.0 hectares to the east of and fronting Karoborup Road than to the west of and fronting Karoborup Road.
47 Having said that the subject land, which is to the west of Karoborup Road, is adjacent to six lots; two of which are 4.4 hectares and 4.9 hectares whilst the others are 31.2 hectares, 7.2 hectares, 9.0 hectares and 6.0 hectares.
The matter of precedent
48 In order to support their individual arguments the parties referred to two recent decisions of the Tribunal.
49 The applicant quoted Strawbridge & Anor and Western Australian Planning Commission [2006] WASAT 96 where Member Connor considered the draft LUWMS a "seriously entertained planning proposal" and, given the high degree of community involvement and political impetus, there was a strong likelihood that change would be forthcoming. The proposed subdivision of a 4.7 hectare rural lot into two lots of 2.02 hectares and 2.7 hectares was approved.
50 On the other hand, the respondent quoted Maher & Anor and Western Australian Planning Commission [2006] WASAT 129 where
(Page 13)
- Member Jordan concluded that as the ultimate form of the draft LUWMS had not been finalised, and there were no statutory controls or structure planning in place, that it should not be pre-empted by ad hoc subdivision. In that case the proposal to subdivide a single rural lot into two lots of 4052 square metres and 5919 square metres was not approved.
51 The point to be made here is that there were particular circumstances in each case and even if the draft LUWMS is a "seriously entertained planning proposal" that does not elevate it to some sacrosanct status above the respondent's other policies, or the provisions of DPS 2.
52 The Tribunal is required to take all factors into account, including precedent, and determine the matter on the particular merits of the case. As explained in Aspen Pty Ltd v State Planning Commission (Unreported, Appeal No 13 of 1988):
"The precedent argument is not usually treated by this tribunal as a 'stand alone' argument."
53 In this case the Tribunal will have regard to both Maher and Strawbridge but determine the matter according to the circumstances and weight of argument.
Conclusions
54 The application for review has been lodged against a decision of the respondent to not approve the subdivision of an 8.17 hectare rural zoned lot into two lots of 4.027 hectares and 4.1502 hectares in Karoborup Road in the City of Wanneroo. There are equestrian activities on the subject land which are expected to continue on one of the new lots, with the other lot to be sold.
55 The respondent was invited to reconsider its decision under review and although doing so resolved to reiterate its original decision.
56 In examining this matter, the Tribunal has had regard to the respective arguments of the parties with the respondent arguing that the proposal is ad hoc, is not consistent with the prevailing lot size in the locality and would be contrary to the broad objectives of State rural policy.
57 They also argue that although the interim LRS prescribes a minimum lot size of 4 hectares within a general area containing the subject land, it does not specifically provide for subdivision in the "general rural" or "rural resource" zones.
(Page 14)
58 A prime argument of the respondent is that although the draft LUWMS is a "seriously entertained planning proposal", its precise form has yet to be finalised.
59 The applicant argues that the proposal should be considered on its merits and is generally consistent with the broad objectives of the respondent's State-wide rural policies. The argument is put that the proposed lot sizes are consistent with those prevailing in the immediate area and the provisions of the interim LRS should be taken into account. These include a minimum lot size of 4 hectares in the "general rural" and "rural resource" zones as specified in the policy manual at appendix 2.
60 The applicant also argues that the draft LUWMS with its Land Use Concept places the subject land well within a notional line for rural living/landscape protection with implications for subdivision, and there is nothing to suggest a change to this proposal to exclude the subject land.
61 In examining this matter the Tribunal has had regard to its background, the relevant provisions of State and local rural policy and DPS 2 as well as the prevailing lot size in the general locality and the issue of precedent.
62 In the view of the Tribunal, a critical circumstance in this case is that much of the western portion of the subject land is classified as a Resource Enhancement Wetland and, in the view of the Department of Environment, has the potential to be restored to conservation category. Also, there is a presumption against any activity that is likely to degrade a wetland that is considered an environmentally sensitive area.
63 It must be acknowledged though that in its advice to the respondent of 6 January 2006, the Department of Environment did not object to the subdivision; presumably on the basis that such activities as filling, clearing of vegetation or development proposals affecting the wetland could be controlled by the City of Wanneroo.
64 However, from the perspective of the Tribunal, and from photographic evidence available to it, the extent of the wetland and associated vegetation affects other adjacent lots and beyond, to the north and south of the subject lands. Its presence is highly likely to influence the final recommendations in the LUWMS and there is no planning argument of sufficient weight at this time to support an ad hoc subdivision that could pre-empt these proposals.
(Page 15)
Orders
65 For the foregoing reasons, the orders of the Tribunal are as follows:
1. The application for review is dismissed.
2. The decision under review is affirmed.
I certify that this and the preceding [65] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR L GRAHAM, SESSIONAL MEMBER
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