MADER and WESTERN AUSTRALIAN PLANNING COMMISSION - [2011] WASAT 41

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: MADER and WESTERN AUSTRALIAN PLANNING COMMISSION [2011] WASAT 41

MEMBER: MR J ADDERLEY (SENIOR SESSIONAL MEMBER)

HEARD: 23 FEBRUARY 2011

DELIVERED : 14 MARCH 2011

FILE NO/S: DR 308 of 2010

BETWEEN: GREGORY ROSS MADER
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Town planning - Subdivision application - Rural subdivision - Property severed by roads - Whether roads constitute a significant physical division to warrant subdivision - Consideration of road formation and function, traffic volume, heavy haulage, sight distances and safety of road crossings - Whether proposed subdivision complies with planning framework - Consideration of policies in relation to lot sizes, land capability, range of farming activities - Whether division of land by roads overrides objective of planning framework to prevent fragmentation of agricultural land

Legislation:

Planning and Development Act 2005 (WA)
Shire of Nannup Local Planning Scheme No 3

Result:

Application for review dismissed
Decision of respondent affirmed

Category: B

Representation:

Counsel:

Applicant: Mr G Smith (Representative
Respondent: Mr M Cuthbert

Solicitors:

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

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

Price and Western Australian Planning Commission [2007] WASAT 26
Wilson v Western Australian Planning Commission [2004] WATPAT 215

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 of two rural lots in Cundinup (near Nannup in the State's southwest) into three new lots reflecting the division of the land into three parcels by existing roads.
The respondent argued that the subdivision should not be allowed because it would create lots too small for sustainable agriculture contrary to the planning policies for the area. The roads in question were not significant physical divisions of a kind to inhibit farming of the property and warrant departure from the local planning framework.
The applicant argued that the roads constituted significant division of the property because of traffic volumes, the particular composition of traffic, including a substantial proportion of heavy haulage and because the safety of farm access points and road crossings was compromised by poor sight lines and inadequate stopping distances. The roads were sealed and white lined, and constituted more than rural roads because of their function connecting with Vasse Highway and South Western Highway.
As such, the applicant argued that the subdivision should be allowed because it met the requirements of the respondent's policy which provides that 'the physical division of a lot by a significant natural or constructed feature may be formalised through subdivision'.
The applicant also argued that the proposed new lots comprised sufficient highcapability land to accommodate intensive agriculture and that there would be no loss of agricultural land if the subdivision was allowed.
In the course of the review, the Tribunal accepted that the roads constituted a division of the property but not so substantial that it unacceptably inhibited the conduct of road crossings in the normal course of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] WASAT 41
Decision Date: 14 MARCH 2011

CaseChat Overview and Summary

The case involved Mader and the Western Australian Planning Commission. The dispute centred on the approval of a subdivision application concerning rural land. The land in question was effectively severed by existing roads, raising questions about whether these roads constituted a significant physical division warranting the subdivision. The case was heard in the Supreme Court of Western Australia.

The central legal issue was whether the proposed subdivision complied with the planning framework, particularly considering the roads' formation, function, traffic volume, heavy haulage, sight distances, safety of road crossings, and the planning framework's objective to prevent fragmentation of agricultural land. The court had to balance these considerations against the policies regarding lot sizes, land capability, and the range of farming activities permissible under the planning scheme.

The court found that the roads did not constitute a significant physical division to warrant subdivision approval. The analysis focused on the roads' characteristics and their impact on the proposed subdivision. The court emphasised that the primary objective of the planning framework was to prevent fragmentation of agricultural land. It concluded that the division of the land by roads did not align with this objective, thus denying the subdivision application.

The Supreme Court ordered that the subdivision application be refused. The decision underscored the importance of maintaining the integrity of agricultural land and preventing unnecessary fragmentation through subdivision. The court's ruling reinforced the planning framework's objectives and highlighted the need for careful consideration of the roads' role in determining subdivision applications.

Orders