Madeo and Western Australian Planning Commission - [2008] WASAT 281

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: MADEO and WESTERN AUSTRALIAN PLANNING COMMISSION [2008] WASAT 281

MEMBER: MR J ADDERLEY (SENIOR SESSIONAL MEMBER)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 26 NOVEMBER 2008

FILE NO/S: DR 214 of 2008

BETWEEN: ISOBEL MADEO
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Subdivision - City of Wanneroo District Planning Scheme No 2 - Rural Resource zone - Interim local rural strategy - East Wanneroo strategy - Whether subdivision is in conflict with planning framework - Whether proposed lots will facilitate continued agricultural use or be used for residential purposes in conflict with zone objectives - Whether the proposed subdivision will set an undesirable precedent for further subdivision of the area - Consideration of hardship claim

Legislation:

City of Wanneroo District Planning Scheme No 2, cl 3.17.2
Planning and Development Act 2005 (WA), s 241(3)
Metropolitan Region Scheme

Result:

Application for review dismissed
Decision of respondent affirmed

Category: B

Representation:

Counsel:

Applicant: Mr J Arnold (Representative)
Respondent: Mr T Sharp

Solicitors:

Applicant: Cardno BSD (Town Planners)
Respondent: State Solicitor's Office

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

This is a review of the Western Australian Planning Commission's decision to refuse subdivision approval of a rural lot in the City of Wanneroo.
The respondent submitted that the subdivision should not be allowed because it was inconsistent with the zoning objectives for the area prescribed by the local planning scheme and inconsistent with relevant local, regional and state policies governing the subdivision of rural land.
The respondent argued that the subdivision, if allowed, would be likely to discourage use of the land for agricultural activity and set an undesirable precedent for further subdivision of similar or larger lots in the locality.
The applicant argued that the proposal would facilitate continued use of the land for intensive agriculture consistent with the zoning objectives for the area and that there would be no loss of visual rural amenity as a result of the subdivision. Other lots of similar size have been approved in the locality.
The applicant expressed the view that the proposed subdivision was consistent with longterm strategic planning objectives for possible urban land use identified for the locality.
The applicant cited personal hardship circumstances worthy of regard by the Tribunal in accordance with s 241(3) of the Planning and Development Act 2005 (WA).
The Tribunal was not persuaded by the applicant's argument that there would be a continuity of agricultural activity on the land following subdivision. The small size of the resultant lots and inherently limited capacity for agricultural use would, in the Tribunal's opinion, be more likely to encourage use of the land for rural residential purposes. According to the local planning scheme, such a use would be incompatible with the priority agricultural uses to be protected under the Rural Resource zone of the area.
The Tribunal did not accept that the possible longterm planning objectives for the land warranted exercise of a subdivision approval now. Such an approach would disregard the need for comprehensive planning to allow for changes of land use and closer settlement under the auspices of properly prepared strategies, and appropriate amendments to the local planning scheme.
On the evidence tendered by the respondent to the effect that the proposed subdivision was inconsistent with the relevant planning framework, the Tribunal was satisfied that approval of the subdivision was not in the interest of orderly and proper planning.
The grounds of hardship cited by the applicant were acknowledged by the Tribunal. However, in the circumstances that the proposed subdivision, if allowed, would constitute a departure from sound town planning principles, the Tribunal was not prepared to favourably exercise its discretion as provided for under the Planning and Development Act 2005 (WA).
The Tribunal concluded that there was insufficient justification to approve the subdivision.
The application for review was dismissed and the decision of the respondent to refuse the application for subdivision was affirmed.

Introduction

This is a review of the Western Australian Planning Commission's (respondent) decision to refuse an application for subdivision of Lot 3 Jambanis Road, Wanneroo (Lot 3).
The application for subdivision was lodged with the respondent on behalf of Ms Isobel Madeo (applicant) on 2 October 2007.
Following referral to relevant agencies, including the City of Wanneroo (City), the respondent issued its refusal of the subdivision application on 21 April 2008.
An application for review of the respondent's decision was lodged with the State Administrative Tribunal (Tribunal) on 4 June 2008.

The proposed subdivision and its context

Lot 3 is located in a rural area. Land uses featured in the locality include market gardens, turf farms, nurseries and rural residential properties.
Lot sizes in the locality generally range from 2 hectares to 8 hectares.
Lot 3 is a 2.044 hectares rectangularshaped lot located on the northern side of Jambanis Road. The lot has a frontage of 67.07 metres and a depth of 301.84 metres.
A brick and tile house and water bore is situated at the higher southwest corner of the property fronting Jambanis Road. Several sheds and two green houses are located on the front portion of the lot. The rear of the property, which slopes downwards to the northeast, is vacant.
The proposed subdivision of Lot 3 would divide the land down the middle into two elongated rectangular lots. The western lot of 0.91 hectares, with a 30.00 metre frontage to Jambanis Road, would contain the existing dwelling, a small shed and the bore. The eastern lot of 1.12 hectares, with a frontage of 37.07 metres to Jambanis Road, would feature one of the greenhouse structures and a large shed. The second greenhouse will be demolished.
The purpose of the subdivision is to allow the applicant to dispose of the larger eastern lot but to continue to reside in the family dwelling and operate a smaller, more manageable plant nursery business on the western lot. The applicant suffers a medical condition which limits her physical ability to maintain the property and plant nursery business at its present scale.

Statutory and policy instruments

Lot 3 is zoned Rural under the Metropolitan Region Scheme and Rural Resource under the City of Wanneroo District Planning Scheme No 2 (DPS 2).
The objectives of the Rural Resource zone under DPS 2 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; and
(b)protect from incompatible uses or subdivision basic raw materials priority areas and basic raw materials key extraction areas.
The term 'intensive agriculture' is defined under DPS 2 to mean:
Any land or buildings used for trade or commercial purposes for the following:
(a)The production of grapes, vegetables, flowers, exotic and native plants, fruit and nuts (including market gardens); or
(b)The establishment and operation of plant and fruit nurseries; or
(c)The development of land for irrigated fodder product and irrigated pasture (including turf farms).
Clause 3.17.2 of DPS 2 relevantly states:
When considering applications for subdivision or for Planning Approval for development which relate to land which is in the Rural Resource zone, Council shall have regard ... to the following matters:
(a)The contents of any Local Rural Strategy adopted by the Council and the Western Australian Planning Commission.
(b)Within the Rural Resource zone the priority uses are intensive agriculture, horticulture and basic raw materials extraction.
(c)The Council shall not support any use or subdivision or zoning that is, or potentially could be, incompatible with the carrying out of the priority uses referred to in sub clause 3.17.2 (b).
(d)Unless proved otherwise to the satisfaction of the Council on a case by case basis, rural residential development is considered an incompatible use ...
The City of Wanneroo has adopted an 'Interim Local Rural Strategy' (ILRS) comprising policies and actions to be implemented by the City in relation to the use of rural land. The ILRS has not been adopted by the respondent.
The ILRS states that:
Potentially incompatible uses, such as rural living, should not be permitted in the Rural Resource zone unless it can be demonstrated to the satisfaction of Council there is no potential for adverse impacts to the carrying out of the priority resource use.
The ILRS policy on the subdivision of rural land provides that in respect to the relevant area of Rural Resource zoned land, the City shall only support subdivision where:
... each lot yielded by the proposed subdivision contains a minimum area of four (4) hectares ...
The City has also prepared a longterm planning framework document titled The Future of East Wanneroo - Land Use and Water Management in the Context of Network City (East Wanneroo strategy).
Certain State policies are relevant to this review. They are:
•Development Control Policy 3.4 - Subdivision of Rural Land (DC 3.4)
•State Planning Policy 2.5 - Agriculture and Rural Land Use Planning (SPP 2.5)
•Metropolitan Rural Policy 1995 (MRP)

The respondent's decision

In determining the application for subdivision, the respondent took into account the recommendation of the City which did not support the proposal for the following reasons:
(a)... because it will create two relatively small, long lots with narrow frontages, contrary to the objectives of the Rural Resource zone; and
(b)the proposed lots are not considered compatible with the priority uses of the Rural Resource zone, namely, basic raw material extraction and intensive agriculture and horticulture.
The respondent's decision to refuse the subdivision of Lot 3 was expressed in the following terms:
1.The land is zoned 'Rural' in the Metropolitan Region Scheme 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 the zoning of this Scheme.
2.The land is zoned Rural Resource in the City of Wanneroo's District Planning Scheme No 2. Subdivision in the manner proposed would create the potential for additional building development and the introduction of nonrural activity in conflict with the zoning objectives.
3.The Commission's Statement of Planning Policy 2.5 - Agricultural and Rural Land Use Planning Policy, a provision of Statement of Planning Policy No 1, Variation No 2, requires Councils to prepare a Local Rural Strategy to comprehensively plan for change and development in rural areas. In the absence of an approved Local Rural Strategy, the Commission is not prepared to approve the subdivision of rural land that would lead to unplanned development and could be to the detriment of other rural uses, proper management of rural land and a rational settlement pattern.
4.The application is inconsistent with the Metropolitan Rural Policy, a provision of Statement of Planning Policy No 1, Variation No 2, which aims to maintain the open landscape character of rural areas and safeguard operations requiring rural locations in Perth. The Commission is not prepared to approve the creation of lots that would adversely impact the open landscape character of rural areas or threaten existing operations requiring a rural location within the Perth Metropolitan Region.
5.The application does not comply with the Commission's Policy DC 3.4 Subdivision of Rural Land, a provision of Statement of Planning Policy No 1, Variation No 2, by reason that the subject land has not been identified for residential development in a town planning scheme, an endorsed local planning strategy and it has not been demonstrated that the site is suitable for closer subdivision.
6.The subject land is located within the study area of The future of east Wanneroo; Land use in water management in the context of Network City, (August 2007) which will guide the planning for the future development of the East Wanneroo area. The proposal, if approved, would result in fragmentation of land which would prejudice the planning of the area.
7.Town Planning practice has established that closer development of rural land and the resulting land use mix increases the likelihood of potential conflict between landowners and hence the need for appropriate land management controls. This fact is recognised in the City of Wanneroo District Planning Scheme No 2 through a separate 'Special Rural' zone to specifically address these issues. Development of the subject land in the manner proposed in this locality is considered inappropriate as adequate controls to address land use conflict and management are not available.
8.Approval to the subdivision would create an undesirable precedent for the further subdivision of other lots of a similar size in the 'Rural Resource' zone of this locality.

The respondent's argument

The respondent argued that the proposed subdivision should not be supported because it is inconsistent with the objectives and requirements of the City's DPS 2, the ILRS and the respondent's policies: DC 3.4, SPP 2.5 and the MRP.
In respect of DPS 2, the respondent contended that the intent of the Rural Resource zone is to preserve current agricultural uses and to preserve the current density of development in the locality. This would ensure maintenance of the rural character of the area and protection of productive agricultural activities from incompatible land uses.
Closer subdivision encourages smaller lots to be used for residential purposes. There is a greater likelihood for residential land uses to conflict with the intended agricultural land uses in the locality. On this basis the proposed subdivision should not be supported.
The respondent argued that the proposed subdivision, which would create lot sizes of 0.91 hectares and 1.12 hectares, is inconsistent with the prevailing lot sizes in the locality which otherwise generally range from 2 hectares to 8 hectares. The small lots, as proposed, would have a diminished capacity for carrying out agricultural use.
The respondent pointed out that where a minimum lot size is not specified in a town planning scheme or a local rural strategy, Pt 6.4 of the MRP indicates that the respondent will not approve subdivision applications which result in a lot size below that prevailing in the locality.
The respondent acknowledged some instances of difficulty in relation to water supply required to sustain agricultural use in the locality. However, it was contended that prior to any subdivision of land for rural residential purposes there was a need for comprehensive structure planning to be undertaken. This was because of the need to control the scale of subdivision, the introduction of suitable land management controls and to avoid subdivision being implemented on a piece-meal basis.
The respondent drew attention to the circumstances that DPS 2 does not specifically provide for subdivision of land in the Rural Resource zone. Additionally there is no endorsed local rural strategy that provides for subdivision of the land.
DC 3.4 contains a general policy requirement that the subdivision of rural and agricultural land for closer settlement and more intensive agricultural uses should be planned through the preparation of regional and local planning strategies, and provided in local planning schemes prior to subdivision.
SPP 2.5 provides that subdivision for rural residential purposes will only be supported where the land has been appropriately zoned within a town planning scheme and the provisions of DC 3.4 can be complied with.
In the circumstances, it is argued that approval of the proposed rural residential subdivision would represent an ad hoc fragmentation of rural land contrary to the objectives of the respondent's DC 3.4 and SPP 2.5.
The respondent argued that intensification of nonrural land uses in rural areas brought about by subdivision has the potential to increase conflict between differing land uses. There is, therefore, a need for appropriate land management controls such as those provided in Special Rural zones in the City's DPS 2.
In the absence of appropriate land management controls for rural residential development in the Rural Resource zoned locality concerned, the proposed subdivision is considered inappropriate.
The respondent also argued that approval of the proposed subdivision would create an undesirable precedent for further subdivision of similar sized or larger lots in the locality.

The applicant's argument

The applicant argued that the proposed subdivision of Lot 3 will not have an adverse impact on the rural landscape character of the area.
It does not conflict with DPS 2 which sets no minimum lot size for the Rural Resource zone and the City has not prepared an endorsed local rural strategy for the area.
The intended use of the locality is 'future urban deferred' and as such, the proposed subdivision does not undermine longterm strategic objectives for the area.
The applicant also argued that the respondent has been inconsistent in the administration of policies cited in the refusal of this application.
Personal hardship as a consequence of the applicant's medical condition was also raised as a ground for support of the proposed subdivision.
Mr J Arnold, a qualified and experienced town planner, gave evidence on behalf of the applicant.
Mr Arnold emphasised the circumstance that DPS 2 made no reference to any requirement for minimum lot sizes in the Rural Resource zone. He also highlighted that the objective for the zone included reference to an expectation of 'the best prospects for continued and expanded use'.
Given the limited availability of water and the anticipated use of the land as 'future urban' under the auspices of the East Wanneroo strategy, Mr Arnold suggested that the land cannot reasonably be described as having 'the best prospects for continued and expanded use'.
The City has therefore not made the protection of this land an objective under DPS 2.
Mr Arnold challenged the respondent's assertion that the proposed subdivision would create the potential for the introduction of nonrural activity in conflict with zoning objectives. He described the intention of the applicant to establish a small scale plant nursery on the house lot, alongside the existing nursery on the lot to be disposed of following subdivision.
According to Mr Arnold, plant nurseries are appropriately defined as intensive agricultural uses and are consistent with the objectives of the zone.
The proposed subdivision is not intended for rural residential purposes, but in any case, Mr Arnold noted that the City would control the nature of land use in accordance with DPS 2 provisions.
Mr Arnold drew attention to a number of recent subdivisions in the East Wanneroo locality. Four subdivisions, dating from 1998, were identified in proximity to Lot 3, including the creation in 2002 of Lot 30 (1.1 hectares) and Lot 31 (1.4 hectares) Jambanis Road. The remaining subdivisions created lots ranging from 1.99 hectares to 2.18 hectares.
On the evidence of these subdivisions, which all occur in the Rural Resource zone, Mr Arnold concluded that the respondent has been inconsistent in the application of its subdivision control policies.

On the question of properly planning for subdivision of rural land as required by DC 3.4, Mr Arnold argued that in the absence of an endorsed local rural strategy, the most relevant planning instrument guiding closer rural settlement is the East Wanneroo strategy.
The strategy has had a high level of community involvement, an acknowledged political impetus and is a seriously entertained planning proposal.
The East Wanneroo strategy identifies Lot 3 within an area identified as 'future urban deferred'. In this regard, then, the proposed subdivision is consistent with the relevant planning strategy for the area.
Mr Arnold addressed the matter of maintaining the landscape character of the rural area as required by the MRP. In this respect, he submitted a series of photographs illustrating the landscape character of the small rural lots resultant from the four subdivisions mentioned previously in his evidence. The photographs demonstrate that rural landscape amenity is not compromised through closer rural subdivision.
Mr Arnold submitted certification of the medical condition of the applicant identifying the need for surgery and extensive rehabilitation. The circumstances confronting the applicant mean that she is unable to continue to manage the activities of running the plant nursery business at Lot 3 at the present scale. This is a ground of hardship which the Tribunal may take into account in accordance with s 241 (3) of the Planning and Development Act 2005 (WA) (PD Act).

Analysis

The key issue arising from the evidence tendered to this review is the question as to whether the proposed subdivision is consistent with the objectives and requirements of the relevant planning instruments and policies applicable to the area.
DPS 2 is the relevant local statutory planning instrument and sets out a clear objective for the Rural Resource zone.
The applicant has argued that the proposed subdivision meets the relevant objective of DPS 2 because the intent is to continue use of the land for intensive agricultural purposes.
The Tribunal acknowledges the applicant's intent to establish a smaller scale plant nursery on the 'house' lot and for the disposed lot to be continued to be used for nursery purposes. Nurseries fall within the definition of 'intensive agriculture' under DPS 2.
The respondent has argued, however, that the creation of smaller lots in rural areas tends to encourage rural residential use and that small lots have a diminished capacity to accommodate agricultural use.
Based on the evidence, the Tribunal is reluctant to accept that there is a practical long term certainty in the applicant's intent for both proposed lots to continue to be used for agricultural purposes. There would indeed seem to be a greater likelihood for one or both lots to eventually be used for residential purposes given the relatively small lot sizes involved and the limited scale and scope for agricultural use.
The applicant's present medical circumstances could also be viewed as a potential impediment to the practicality of pursuing an active involvement in any agricultural pursuit.
It is therefore conceivable that the interests of the likely rural residential uses resultant from the proposed subdivision could conflict with the agricultural interests identified for the Rural Resource zone under DPS 2.
While several local policy instruments have been identified as relevant to consideration of the proposed subdivision, two, in particular, have been given some weight by the parties in advancing their respective arguments.
The respondent has referred to the City's ILRS and indicated that, while it is not a strategy endorsed by the Commission, the strategy nevertheless provides insight and guidance to the responsible authorities.
The ILRS, according to the respondent, makes a number of relevant points. It advocates discouragement of rural living in the Rural Resource zone and it incorporates a rural subdivision policy generally precluding subdivision of land creating lots below 4 hectares. The ILRS acknowledges constraints on agriculture in areas where water supply is limited and the need to consider alternative land use in the context of a proper planning framework. Such a proper framework is provided through the use of Special Rural and Rural Community zones.
The applicant has tended to dismiss the ILRS as irrelevant because it is not an endorsed local rural strategy. The applicant has sought to give weight to the East Wanneroo strategy which signals that the locality in question would be suitable for closer settlement by virtue of its identification as 'future urban deferred'. In such circumstances, the proposed subdivision would, if approved, be quite consistent with the ultimate intention under the strategy for closer settlement.
The Tribunal accepts that both strategies are useful in their application. In the context of this review, however, the East Wanneroo strategy should be seen as a longterm planning framework designed to be implemented through a comprehensive process involving structure planning, outline development plans, and regional and local town planning scheme amendments. It is not reasonable for the applicant to presume that the possible closer settlement inferred from the strategy can immediately, even if only partly, be implemented by the subdivision of Lot 3 without otherwise compromising a cautious and properly structured planning process.
The ILRS, on the other hand, represents a considered approach by the City to establish some guidance to its decisionmaking processes in administering its DPS 2. In the absence of any argument to the contrary, the relevant statements and policies of the ILRS, appear to be of sound planning logic and generally consistent with the over-arching policies of the respondent. Although the ILRS is not a fullfledged local rural strategy endorsed by the respondent, it can still be accepted as a practical and functional planning tool if its logic is sound and reasonable. The Tribunal finds that the ILRS, insofar as it has been invoked by the City and the respondent, is just such a sound and reasonable planning tool.
Based on the provisions of the ILRS designed to guide the responsible authority on subdivision of rural areas, it can be concluded that the proposed subdivision would not comply with expectations that use of land for rural living should not be permitted in the Rural Resource zone, or that lot sizes should be approved below 4 hectares.
The respondent drew the attention of the Tribunal to DC 3.4 and SPP 2.5 both of which presume against subdivision of rural land for rural residential in the absence of local planning strategies and town planning scheme zoning provisions designed to accommodate subdivision for rural residential or rural smallholdings.
The applicant's argument again returns to the preference to see the East Wanneroo strategy as the most current and appropriate guide for decision making in the context of DC 3.4 and SPP 2.5 for reasons already outlined.
Nothing in the applicant's argument, however, overcomes the essentially sensible approach to planning for closer settlement prescribed in DC 3.4, SPP 2.5 and the ILRS all of which suggest the need for a comprehensive structured approach which would avoid the incidence of piecemeal subdivision. It is notable that the East Wanneroo strategy, at cl 5.1, also suggests such an orderly approach.
The applicant drew attention to a number of subdivisions resulting in lots smaller than the generally prevailing lot sizes in the locality. This indicated a lack of consistency by the respondent in administering the control of subdivision in the area.
The Tribunal notes this circumstance with some concern because apparent inconsistencies can undermine confidence in the planning process.
The examples tendered to the Tribunal can, however, be categorised in terms of immediate relevance to this review. Three of the four subdivisions result in lots roughly twice the size of the lots proposed in the subdivision of Lot 3. Only one subdivision, creating Lot 30 and Lot 31 Jambanis Road, is comparable in resultant lot sizes to the subdivision under review.
No contextual information or reasoning has been provided to the Tribunal to examine these examples and draw considered conclusions. The Tribunal was made aware that the respondent had in fact refused one of the applications which had subsequently been allowed, upon appeal, by the Minister for Planning and Infrastructure.
In the circumstances, the Tribunal can only take into account that there may be one comparable subdivision in the locality. That example should be weighed against the broader context of the prevailing character of the area which is dominated by lot sizes larger than 2 hectares.
Given the relatively larger lots otherwise prevailing in the locality, and the ample evidence of planning objectives to protect agricultural activity and the rural character of the area, the Tribunal is inclined to view the incidence of the one comparable small lot subdivision in the locality as anomalous.
The applicant sought to illustrate that the rural character of the locality would not be compromised by the proposed subdivision. Photographs of some of the lots resultant from the previously mentioned subdivisions demonstrate maintenance of a spacious rural quality. The Tribunal notes, however, that one of the lots seems not to have been built upon, and at least one other offers a rather doubtful quality of visual amenity. It is difficult to persuade the Tribunal as to the certainty of maintaining an acceptable rural visual amenity based on evidence, which is substantially derived from photographs of lots twice the size of those proposed in this subdivision.
Lastly the applicant raised the issue of personal hardship. The Tribunal acknowledges the medical condition the applicant is confronting and the intent behind undertaking the subdivision in order to scale down the agricultural business to a manageable level.
Under s 241(3) of the PD Act, the Tribunal may take a matter of hardship into account, but only if such a regard will not affect the application of sound planning principles.
In this case, the Tribunal is heavily influenced by the weight of the preceding arguments that have shown that the proposed subdivision would not be in the interest of orderly and proper planning for the area. Approval of the subdivision would therefore not demonstrate the application of sound planning principles. Accordingly, the Tribunal would not be prepared to have favourable regard to the claim of hardship cited by the applicant.

Conclusion

Based on the preceding analysis, the Tribunal concludes that the application for review of the respondent's decision to refuse subdivision approval of Lot 3 Jambanis Road, Wanneroo should be dismissed.

Order

1.The application for review is dismissed.
2.The decision of the respondent made on 21 April 2008 to refuse subdivision of Lot 3 Jambanis Road, Wanneroo into two lots is affirmed.

I certify that this and the preceding [94] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J ADDERLEY, SENIOR SESSIONAL MEMBER