MADER and WESTERN AUSTRALIAN PLANNING COMMISSION
[2011] WASAT 41
•14 MARCH 2011
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 expected farm activities. In this regard, it was noted that because of the high capabilities of the land for annual and perennial horticulture, there was a range of farming activity being conducted which did not necessarily rely on the more awkward, time and resource consuming road crossings such as stock movements.
The Tribunal was very mindful of the planning framework objectives for the area and that the proposed subdivision did not comply with the recommended lot size requirements designed to foster viable agriculture in the area. At least one of the proposed lots was considered by the Tribunal to be at high risk of loss to agriculture if it was to be developed otherwise for 'lifestyle' rural living.
The fragmentation of highly capable rural land and its potential loss to agriculture was seen by the Tribunal, in this case, as overriding an argument to recognise the division of the land by roads.
Having regard to these circumstances, the Tribunal concluded that the applicant's arguments could not be sustained and therefore the application for review was dismissed.
Introduction
This is an application for review of the decision of the Western Australian Planning Commission (WAPC or respondent) to refuse approval of the subdivision of Lot 8295 and Lot 8296, Cundinup in the Shire of Nannup (Shire). The proposed subdivision is intended to reconfigure the two existing rural properties into three lots of 21 hectares, 63 hectares and 84 hectares.
The application for subdivision was submitted to the respondent on 29 June 2010.
Following consultation with relevant agencies, including the Shire, the respondent issued its refusal of the subdivision application on 8 September 2010.
An application for review of the respondent's decision was lodged with the State Administrative Tribunal on 6 October 2010.
The proposed subdivision and its context
Lot 8295 and Lot 8296 (property) are located about 18 kilometres north of the town of Nannup.
The area is characterised by generally large rural properties, cleared and used for agricultural purposes.
The immediate locality is undulating countryside, traversed by tree-lined watercourses and featuring gentle landform slopes in the vicinity of 1:13.
Lot 8295, the western property, is of a 'u' shape, with short road frontages to the Cundinup Road West and the CundinupKirup Road at each of the northern extremities of its 'u' formation. It is severed at the base of the eastern arm of the 'u' by Cundinup South Road. This road forms a long western boundary of the eastern arm of the 'u', which at its northern tip junctions with the Cundinup-Kirup Road.
The majority of Lot 8295, particularly the areas associated with a watercourse traversing east to west across the lower third of the lot, is cleared for agriculture. Forested areas occupy some of the higher slopes away from the watercourse.
A house and water tank are located on the eastern segment of the 'u' shape, just east of the Cundinup South Road frontage.
The area of Lot 8295 is 87.16 hectares.
Lot 8296 adjoins Lot 8295 immediately to the east. It is configured in two components divided by the Cundinup-Kirup Road.
The northern quarter is of irregular shape, wholly cleared for agriculture but for a tree lined minor watercourse.
South of the Cundinup-Kirup Road, the balance, three-quarters of the lot, is also cleared for agriculture and is featured by another watercourse, dammed on the eastern margin of the property.
The area of Lot 8296 is 83.56 hectares.
The total area of both lots combined is 170.72 hectares.
The proposed subdivision seeks to re-divide a composite of Lot 8295 and Lot 8296 into three new entities reflecting the physical division of the land by the existing roads.
Proposed Lot 1 would comprise the irregular shaped northern quarter of Lot 8296, north of the CundinupKirup Road. It would be 21.761 hectares in area.
Proposed Lot 2 would comprise the portion of Lot 8296 south of the Cundinup-Kirup Road, combined with the eastern segment of Lot 8925 east of the Cundinup South Road. It would contain the house and the dam and be 84.403 hectares in area.
Proposed Lot 3 would comprise the balance of Lot 8925 west of Cundinup South Road and would be 63.563 hectares in area.
Statutory and policy instruments
The Shire of Nannup Local Planning Scheme No 3 (LPS 3) provides that the portion of Lot 8925 west of Cundinup South Road is zoned Agriculture - Priority 2, whilst the remainder of the lot on the eastern side of the road and Lot 8926 is zoned Agriculture.
The objective of both zones, as described in LPS 3, is to conserve the productive potential of the land and generally to support the continued development of extensive farming.
LPS 3 further provides that in both zones, the subdivision of land is generally qualified such that if it is to be used for annual or perennial horticulture then, subject to demonstration of appropriate land capability, a minimum lot size of at least 40 hectares would be required. In the event that the land is to be used for grazing, cropping or other general agricultural practices, then a minimum lot size of 80 hectares would apply.
The Shire's Shire of Nannup Local Strategy (LS) sets out performance criteria for the subdivision of rural land which guide the Shire in its recommendations to the WAPC on matters of rural subdivision applications.
The LS is generally consistent with the respondent's WarrenBlackwood Rural Strategy (WBRS).
Lots 8925 and 8926 are located within Planning Unit BR2 Blackwood and described as 'Priority Agriculture' and 'Agriculture' in the WBRS.
The WBRS provides that there should be a general presumption against further subdivision in Agriculture and Priority Agriculture zones unless it can be demonstrated that subdivision will be beneficial to viable and sustainable agriculture. In this respect, a minimum lot size of 80 hectares would be expected.
The WBRS does further provide that subdivision to a minimum lot size of 40 hectares may be considered, provided additional criteria can be met. These criteria include:
•the presence of at least 30 hectares high capability soils suitable for horticultural production;
•an appropriate water supply and capture and storage capacity;
•sufficient additional area for necessary farm infrastructure; and
•the retention of native vegetation and protection of watercourses.
The respondent's State Planning Policy SPP 2.5 Agricultural and Rural Land Use Planning (SPP 2.5) sets out a policy objective to protect agricultural land resources wherever possible by minimising the ad hoc fragmentation of rural land.
The respondent's Development Control Policy 3.4 Subdivision of Rural Land (Policy DC 3.4) provides at cl 4.1 that:
... [I]n 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.
The respondent's Policy DC 3.4 also provides at cl 4.3 that:
The existing physical division of a lot by a significant natural or constructed feature may be formalised through subdivision. A significant physical division generally does not include rural roads or creeks that are commonly crossed for farm management purposes.
The respondent's decision
The respondent refused the proposed subdivision citing the following reasons:
1.The proposed subdivision is inconsistent with the 'Agriculture' and 'Agriculture - Priority 2' zoning and lot size requirements as set out by the Shire of Nannup Local Planning Scheme No. 3. The purpose and intent of this zoning is to preserve the area's current rural use and density of development. Subdivision in the manner proposed is in conflict with the zoning objectives.
2.Proposed Lots 1 and 3 do not comply with the minimum lot size of 80ha required by Local Planning Scheme No. 3, and no soil capability or water availability information has been provided which may support consideration of lot sizes to a minimum of 40ha.
3.Proposed Lots 1 and 3 do not comply with the lot size requirements of the Warren Blackwood Rural Strategy and the Shire of Nannup Local Planning Strategy. These Strategies set out the requirements in relation to soil and water information, which must be provided to demonstrate the agricultural capability of any proposed lot less than 80ha, to a minimum of 40ha.
4.The proposed subdivision is inconsistent with Commission Policy DC 3.4 which requires that the subdivision of rural and agricultural land for closer settlement and more intensive agricultural uses should be properly planned through the preparation of regional and local planning strategies and provided for in local planning schemes prior to subdivision. The proposal does not comply with the requirements of the Scheme or relevant regional and local strategies.
5.Due to the low traffic volumes that they carry, CundinupKirup Road and Cundinup South Road are considered to be rural roads, and therefore the proposal is not consistent with Section 4.3 of DC 3.4.
6.The proposed subdivision is not consistent with the objectives and policies of Statement of Planning Policy No. 2.5 'Agricultural and Rural Land Use Planning', which seek to prevent the [ad hoc] fragmentation of rural land and require rural smallholding subdivision to be permitted only on land which is appropriately zoned.
7.Approval of the subdivision would set an undesirable precedent for further subdivision of surrounding lots.
The respondent's argument
The respondent's argument presented to the Tribunal was fundamentally consistent with the reasons for refusal of the proposed subdivision as stated above.
Witness for the respondent, Mr F Scibilia, a senior planning officer employed by the Department of Planning, drew attention to the statutory and policy planning framework for the locality, emphasising that the overriding objective of all relevant policies is the protection of agricultural land against fragmentation and non-agricultural use.
Whilst acknowledging that Policy DC 3.4 supports subdivision of rural land by excision of land parcels severed by a significant physical division such as a rural road, Mr Scibilia expressed the opinion that traffic volumes on a road would need to be in the vicinity of 2,500 vehicles per day to warrant classification as a significant physical division. This is because of advice from Main Roads Western Australia (MRWA) that stock crossing on a road with that volume of traffic would likely cause an unreasonable level of delay.
Mr Scibilia was of the opinion that generally all roads in rural areas, with the exception of highways, are rural roads and that they can be expected to be crossed for farm management purposes.
The form of roads is a factor but only manifests as a significant physical division where the road is a dual carriageway or has additional lanes for fast traffic.
Mr Scibilia pointed out the farmer's right to stop traffic to cross rural roads is provided for in the State Traffic Regulations.
Mr Scibilia described the Cundinup-Kirup Road and Cundinup South Road as local distributor roads. They can accommodate heavy vehicles transporting agricultural produce, timber, cattle, basic raw materials and the like. Whilst they are classified as 'Restricted Access Vehicle (RAV) Network 3' roads, all roads in rural areas are classified as part of the RAV Network. Numerous other roads in the South West Region are classified as RAV Network 3 roads to cater for heavy freight haulage. It is a normally expected function of rural roads.
With respect to a matter concerning the review by the Tribunal of a case involving physical division of rural land referred to by the applicant, Price and Western Australian Planning Commission [2007] WASAT 26 (Price), Mr Scibilia suggested that the matter was distinguishable and not relevant because, amongst other reasons, the severed lot in Price was only 5 hectares and not capable of agricultural production. This is not the case in the current review.
On the question of rationalising the lot boundary of Lot 8295 to follow the zoning boundary coincident with the road alignment, Mr Scibilia reaffirmed the need to comply with the planning framework in respect of subdivision criteria. There was no weight in the argument that the circumstance of a split zoning in this instance should override the policy framework.
Mr A McDonald, Traffic Services Manager for the South West Region employed by MRWA, provided evidence on traffic and road safety matters on behalf of the respondent.
Mr McDonald advised that although listed as local distributors in the Roads 2025 Regional Road Development Strategy, the Cundinup roads in question are nevertheless rural roads under the care and management of the local government.
Traffic volumes on the Cundinup-Kirup Road in April 2008 were 168 vehicles per day (vpd) of which 15.6% were heavy vehicles. In May 2009, there were 112 vpd of which 25.2% were heavy vehicles. In May 2010, the count was 100 vpd of which 15.3% were heavy vehicles. Cundinup South Road has slightly less traffic volumes recording 81 vpd in April 2008 and 74 vpd in November 2010.
Mr McDonald observed that the overall traffic volumes on the Cundinup roads were in fact declining. He further advised that MRWA has concerns as to the estimate that 200,000 tonnes of timber per annum will be transported on CundinupKirup Road. Recorded traffic volumes do not back up these estimates.
On the question of road safety, Mr McDonald advised that available crash data from 2005 until December 2009 indicates that there have been no recorded crashes on the road sections relevant to this review.
Mr McDonald was of the view that the relevant crossings across the Cundinup roads were typical of a number in the area. Taking account of the measured available sight lines at both crossings, the low traffic volumes and the regulated requirements for warning signage when crossings are undertaken, these access points generally afford sufficient and acceptable sight lines, and braking distances for the movement of stock and machinery across the roads.
Mr McDonald accepted, however, that minor vegetation removal should be undertaken to bring the CundinupKirup Road access up to standard. He also agreed that the Cundinup South Road access (western side) approached from the south did not meet sight distance requirements, but was not in any case a direct road crossing. The eastern side access is 50 metres north of the western gate.
Mr McDonald acknowledged that it was likely the case that stock crossings would be more cumbersome and less easily managed than a farm machinery crossing and may therefore constitute more of a road safety risk.
The respondent's third witness, Ms H Percy, a research officer employed by the Department of Agriculture and Food Western Australia, gave evidence relating to the agricultural capability of the land in question.
Ms Percy referred to the local planning framework, emphasising that the policies require that land, to be used for annual or perennial horticulture, needs a minimum of 30 hectares of high capability land to be available on each lot.
Ms Percy assessed that proposed Lot 1 (north of the CundinupKirup Road) had about 10.7 hectares of high capability land suited for perennial agriculture. While it could be used for horticulture, it is only likely to generate a supplementary income rather than operate as a fully independent farming enterprise. For this reason, it is much more likely to be developed as a lifestyle property than a commercial farming enterprise.
Proposed Lot 3 contains about 17.8 hectares of high capability land. Whilst the applicant's expert witness has calculated about 31.1 hectares high capability land, this includes a gravel extraction area (0.5 hectares), an area of remnant vegetation (5.0 hectares) and a seasonally waterlogged area (7.8 hectares).
Because of the deficiencies of high capability land on proposed Lot 1 and Lot 3, Ms Percy concluded that the probability of horticulture being established on the lots was very low.
Ms Percy disagreed with the proposition that roads represent a significant impediment to agricultural production on the land. There are many commercial properties requiring stock and machinery to be moved across roads and it is considered to be a routine farm function.
The applicant's argument
The applicant's argument relies, primarily, on the circumstance that the Cundinup roads, by their presence and function, create significant physical division of the property and therefore the proposed subdivision should be allowed as provided for by the respondent's Policy DC 3.4.
It is also argued, on a secondary basis, that the proposed Lot 2 and Lot 3 comply with the relevant planning framework policies for the area in so far as lot size and land capability requirements are concerned, and that proposed Lot 1, although not compliant with the policy framework, has sufficient capability to be a productive intensive agricultural enterprise similar to existing enterprises nearby.
The applicant, Mr G Mader, gave evidence in respect of his familiarity with farming of the area, the local road system and the rationale for subdividing the property.
Mr Mader described that Cundinup South Road and CundinupKirup Road have become significant traffic movers accommodating heavy vehicles involved in the logging industry as well as an ever increasing volume of district transport, tourist and local traffic.
The movement of stock, produce, machinery and equipment across the roads is hazardous because of heavy vehicles, particularly log trucks, using the roads on a regular basis. The prospect of an accident occurring is considerable because of limited sight distances occasioned by bends and crests in the roads.
Mr Mader was of the opinion that management and use of the property divided by two roads was unsafe and inconvenient. Safety was only capable of being achieved with resources not normally available to a single farm operator. Up to five or six persons may be needed to safely effect a stock crossing.
Mr Mader described that if 'cell' grazing was practised, movement of stock across roads would be a frequent event.
Mr Mader concluded that subdivision of the property will allow each parcel to have a house built on it and each could be managed without the need to cross the roads.
Expert planning evidence was provided on behalf of the applicant by Mr G Smith, a qualified and experienced town planner and chartered surveyor.
Mr Smith referred to Policy DC 3.4, drawing attention to the sentence under cl 4.3 'the existing physical division of a lot by a significant natural or constructed feature may be formalised through subdivision'. In effect, this should be interpreted to mean that subdivision should be a foregone conclusion if the land is subject to physical division of a significant natural or constructed feature.
Mr Smith also drew attention that under cl 4.3 'a significant physical division generally does not include rural roads or creeks that are commonly crossed for farm management purposes'. In this context, rural roads are therefore equated with creeks which suggests a relatively low order of obstruction between separated portions of land.
Mr Smith was of the opinion that rural roads should have an exclusive service function to rural properties. They should not serve other higher order functions such as heavy haulage connections to major highways.
CundinupKirup Road and Cundinup South Road connect Vasse Highway with South Western Highway. They are designated heavy transport routes carrying horticultural produce, timber, cattle and viticultural products. They are also used as a school bus route and there is an anticipation of increased tourist traffic on the roads. Mr Smith observed that these characteristics led to the conclusion that the roads constitute significant physical barriers.
Mr Smith suggested that the significance of the physical division by a road in the context of cl 4.3 should be measured against a number of factors including traffic volumes, speed restrictions, the nature of traffic, volumes of material, the form and alignment of the road, crossing safety and the inconvenience to land-owners and road users.
Traffic volumes counted in November 2010 were 145 vpd on CundinupKirup Road and 84 vpd on Cundinup South Road. Vehicle movements can peak at one per 3.5 minutes.
Mr Smith advised that the speed limit for the roads is 110 kilometres per hour.
The roads in question carry a full range of vehicles from motor cycles to heavy haulage trucks.
Mr Smith referred to correspondence with forest and plantation operators and with MRWA, that indicated that a quantity in excess of 200,000 tonnes of timber will be carried annually on the Cundinup roads. In this regard, Mr Smith drew attention to the matter Price wherein similar considerations arose. In that case, a volume of 40,000 tonnes of timber was transported along the dividing road and it was concluded in that review that the road therefore represented a physical barrier sufficient to justify subdivision.
Mr Smith described the roads as constructed to a 6 metre wide bitumen surfaced carriageway with gravel shoulders.
CundinupKirup Road has recently been widened to 6.6 metres. It is featured by three bends along the frontage of Lot 8296 which limit visibility of the crossing location.
The crossing point on Cundinup South Road is located near the top of a crest and on a bend in the road.
Mr Smith expressed the view that the form and alignment of the roads and the poor visibility in the vicinity of crossing points was not conducive to safe crossing. The roads were therefore a significant barrier to effective use of the property.
Mr Smith referred to Mr Mader's evidence as to the resources required to conduct a stock crossing. These resources are not normally available to the average landowner and it may thus be presumed that a road crossing would constitute a considerable inconvenience. Again, this reinforces the notion that the roads are a significant barrier to farm management.
It also follows that road crossings will frustrate vehicle drivers, particularly heavy haulage drivers expected to meet prescribed delivery schedules.
Measured against the preceding criteria, Mr Smith concluded that the Cundinup roads should be determined as being significant constructed features not commonly crossed for farm management purposes. Accordingly, subdivision would be justified in the context of cl 4.3 of Policy DC 3.4.
Mr Smith addressed lot size and land capability issues. He conceded that proposed Lot 1, north of CundinupKirup Road did not satisfy the requirements of the planning framework in terms of lot size and soil capability requirements. The lot would not, however, be lost to agriculture as it was still capable of use for intensive horticultural purposes.
Proposed Lot 2 and Lot 3 can comply with the lot size and land capability requirements of the planning framework as evidenced by the applicant's expert witness regarding agricultural capability. Lot 2 will exceed 80 hectares. Lot 3, at 63.5 hectares will exceed the 40 hectares minimum lot size requirement associated with an area of 30 hectares high capability soils.
Mr Smith responded to the question of precedent by noting that the present wording of cl 4.3 of Policy DC 3.4 had been modified such that previous reference to the matter of precedent as a consideration to proposals under this clause had been deleted by the respondent. As such, it could be interpreted that the issue is not now relevant to determinations under cl 4.3 of Policy DC 3.4.
There are only two other lots in the locality divided by the Cundinup roads. Lot 4 CundinupKirup Road is divided by the road in such a manner that division could be justified on grounds of compliance with the planning framework regardless of a precedent issue reliant on determination under cl 3.4 of Policy DC 3.4.
Lot 8294 Cundinup Road may have some comparabilities, but certain road characteristics are different such that direct comparison may not be relevant. In any case each situation must be determined on its individual circumstances and merits rather than stand or fall on the argument of precedent.
Mr Smith drew attention to the circumstance that Lot 8295 is split into two separate zones. The portion west of Cundinup South Road is zoned Agriculture Priority 2 Zone. The balance of the property east of the road is zoned Agriculture. The proposed division of the land will thus be consistent with the separate zonings.
Mr Smith drew attention to and gave weight to the unanimous support of the Shire for this subdivision application.
Mr M McAuley, a consulting civil engineer, provided expert evidence in relation to traffic management on behalf of the applicant.
Mr McAuley described Cundinup-Kirup Road and Cundinup South Road as being used extensively by traffic connecting between Vasse Highway and South Western Highway, particularly the transit of logging vehicles transporting timber to destinations in the Bunbury region.
The Cundinup roads are included in the Roads 2025 Regional Road Strategy (2007) (Strategy) which is a list of strategic distributor roads in the South West Region. The Strategy assigns significance to the roads and signals an increase in traffic associated with tourism.
The Cundinup roads, together, constitute a Local Distributor which is recognised as a Restricted Vehicle Access Route allowing vehicles up to Bdouble and two trailer truck configurations to use the route.
Mr McAuley noted that a section of CundinupKirup Road adjoining the Lot 8295 and Lot 8296 has been widened in the last 12 months indicating the importance of the road and the traffic it carries.
The Cundinup roads are double white lined adjoining the property indicating poor visibility characteristics.
On the question of the safety of existing farm access gates, Mr McAuley advised that the stopping distance requirements for RAVs to the access on CundinupKirup Road were not satisfactory. However, subsequent to conferral with the respondent's expert witness, he agreed that if certain vegetation is removed from the inside curve of the road, the relevant criteria could be met.
The stopping distance to the Cundinup South Road access (western side) travelling from the south is unsatisfactory. There is, however, no alternative location available.
Mr McAuley expressed the view that CundinupKirup Road and Cundinup South Road are significant barriers by reason of traffic volume, the incidence of heavy vehicles and the lack of safety occasioned by vehicle speed, bends in the roads and changes of gradient.
Mr F Slade, an agricultural and hydrological consultant, provided evidence on behalf of the applicant.
Mr Slade advised that proposed Lot 1 contained 11.4 hectares of class 12 soils suitable for intensive agriculture. Lot 3 contained 31.1 hectares of class 12 soils. Lot 2, which would comprise 84.4 hectares, otherwise satisfied the minimum lot size criteria for general farming activity.
Mr Slade noted that prior to adoption of the WBRS, intensive agricultural lots were acceptable with areas ranging from 20 - 30 hectares with 10 hectares 30 hectares of class 1-2 soils. An example in the locality of a lot of 28 hectares with a 7 hectares avocado orchard providing a substantial income demonstrates that smaller lots can be farmed with success.
Acknowledging that clearing about 5 hectares of remnant vegetation on proposed Lot 3 would be required to reach the 30 hectare high capability criteria under the planning framework, Mr Slade expressed the view that while this was not necessary for farm viability, if required it could be undertaken.
Mr Slade concluded that the realignment of lot boundaries to reflect the road severances would be a sensible and safe decision. These lots will not be lost to agriculture because they have the land capability for sustainable annual or perennial crop development.
Analysis
The issues arising from this review are:
1)Whether the proposed subdivision is consistent with the statutory and policy planning framework for the area and should therefore be approved; and
2)If not otherwise consistent with the planning framework, whether there is justification that the proposal should be allowed on the basis that the Cundinup Roads are a significant physical division of the land to warrant formalisation by subdivision.
Addressing the first issue, it is worth recalling the relevant objectives and requirements of the local planning scheme, the local strategy and the WBRS.
LPS 3 includes in the objectives for the Agriculture zone, the expression, 'to conserve the productive potential of agricultural land and support the continued development of extensive farming'. In order to effect this objective, LPS 3 requires maintenance of a minimum lot size of 40 hectares associated with at least 30 hectares of high capability land suitable for annual or perennial horticulture. In the case of grazing, cropping or other agriculture, a minimum lot size of 80 hectares is appropriate.
In general, these objectives and standards are reflected in the LS and the WBRS.
The SPP 2.5 seeks to protect agricultural resources by discouraging the ad hoc fragmentation of rural land.
In the course of this review, there has been no substantial challenge to the rationality, objectives and standards of the planning framework.
The applicant has sought to demonstrate that proposed Lot 2 and Lot 3 conform with the relevant planning framework subdivisional standards.
In the case of proposed Lot 1, however, it is acknowledged that there is a clear deficiency in terms of lot size (21 hectares) and high capability soils (11 hectares). The applicant relies on an expert opinion supported by an anecdotal example of a small, apparently successful, local avocado farm, to show that Lot 1 would be a sustainable agricultural enterprise if separated by subdivision. As such it would not compromise the intent of the prevailing planning framework.
The respondent's agricultural expert witness was unconvinced of the cited small farm example and was firmly of the opinion that a horticultural enterprise on proposed Lot 1 could only be of a supplementary nature rather than commercially sustainable. It was much more likely that the lot would be used as a rural residential 'lifestyle' property rather than for agriculture.
On balance, the Tribunal takes the view that there is a substantial risk that proposed Lot 1 will not be utilised effectively for agriculture. The lot size and land capability characteristics fall far short of the standards expected of the area. Apart from one untested example cited by the applicant's expert witness, there is no evidence of substance to permit confidence in the assertion that the lot will not be lost to agricultural production.
On this test, it is apparent that the proposed subdivision is not consistent with the planning framework for the area and should therefore not be allowed on these grounds.
Whilst there remains a debate on the compliance of proposed Lot 3 with the planning framework standards, it appears unnecessary for the Tribunal to pursue this argument in the light of the considerations pertaining to proposed Lot 1.
Turning to the question of severance of the land by the Cundinup roads, the Tribunal must firstly be satisfied that the roads are a 'significant physical division'. Secondly, the Tribunal must be satisfied that, in the event that the roads are a significant barrier, there is sufficient justification to override the objectives and standards of the planning framework to allow the subdivision.
Both parties agree that the two principal characteristics of a road that influence the determination of a 'significant physical division' are traffic volumes and the form of the road.
The traffic volumes on the CundinupKirup Road are in the vicinity of 100 160 vpd. The traffic on Cundinup South Road is between 75 85 vpd. Between 15% 25% of the traffic on the roads is constituted by heavy vehicles.
Mr Smith assessed that at peak times there could be an expectation of one vehicle every 3.5 minutes.
The Tribunal heard evidence in respect of the status and function of the Cundinup roads connecting with Vasse Highway and South Western Highway and the usage of the roads by timber industry log trucks. In essence, that evidence is reflected in the traffic volume statistics mentioned above.
It was described in evidence that the roads were local distributors, certified as a Restricted Access Vehicle route.
The Tribunal has initial reservations that these traffic volumes and their composition could be particularly problematic to farm vehicles occasionally crossing the CundinupKirup Road or conducting a 'dog-leg' movement across Cundinup South Road (where the access points are 50 metres apart).
In this regard, the Tribunal is mindful that it could reasonably be expected that heavy farm machinery will from time to time be moving to and fro on these roads to provide contracted services and in so doing gain access to and egress from the farm gates. The movement of farm machinery on country roads is a matter of expected occurrence irrespective of movements generated by farm severance.
A gate to gate crossing of Cundinup South Road may typically be a cumbersome tractor/trailer movement, as described by Mr Mader in his evidence, but at the frequency anticipated by the traffic volume counts (a vehicle at 3.5 minute intervals on average at peak times) and the presumably much lower frequency of such farm vehicle crossings, it seems that the likelihood of any conflict is relatively low. When considering that for the most part the average interval between vehicles will actually be much longer than 3.5 minutes and bearing in mind again the lower traffic volume on Cundinup South Road, the potential frequency of conflict begins to look very modest.
These tractor/trailer access/egress and crossing events are apparently typical of farm traffic movements on the property.
It is noted, however, that there have been no accidents recorded by MRWA for this section of the Cundinup roads. The Tribunal further notes the respondent's advice that there is no evidence of inherent safety issues associated with the roads and their present usage.
Evidence was submitted that there were some shortcomings in respect of sight distances to the access points on CundinupKirup Road and Cundinup South Road.
The CundinupKirup Road crossing point access does not comply with the sight distance requirements for a heavy haulage vehicle, but can be modified to meet the requirements with some removal of verge vegetation to improve visibility. The Tribunal acknowledges that the removal of roadside vegetation should not be embarked on lightly, but recognises that there appears to be a reasonable prospect for this to occur in order to meet a safety requirement based on any significant prospect of traffic conflict.
The Cundinup South Road access point approached from the south is, according to the applicant's expert witness, Mr McAuley, not compliant with sight distance for a car, although it is just compliant for a heavy vehicle because of a truck's usually higher driver elevation and anticipated lower speed, travelling up gradient.
The Tribunal accepts that there are sighting problems with the Cundinup South access gates that are unsatisfactory, but notes Mr McDonald's observation in evidence that this is not a direct crossing because the accesses associated with a service access road, are in fact 50 metres apart. To some extent, therefore, access and egress movements from either side of the road by farm vehicles or heavy contractor machinery will be left turn or right turn regardless of whether the land is divided by subdivision or not. The hazard of crossing the road is acknowledged but it is not clear that subdivision of the land will result in any safer function of these access points assuming they will continue to be used.
The Tribunal heard evidence in respect of the difficulty of undertaking a stock crossing of the Cundinup roads.
Mr Mader described the logistics and resources necessary to effect a stock crossing and described the practice of 'cell' grazing necessitating frequent movement of cattle from paddock to paddock.
However, it was not made evident to the Tribunal that cell grazing actually took place on the property, or that there was in fact a comprehensive regular pattern of grazing and stock crossing of the local roads. Mr Mader advised that portions of the property were operated under separate leases and part of the property had been developed for intensive horticulture rather than used for grazing.
It was not, therefore, substantiated that stock crossings of the Cundinup roads were a regular farming practice pursued in the day to day activities of the farm or that stock crossings were key to the viability of the property.
If circumstances prevailed that the only viable use of the property was for grazing purposes, and this involved 'cell' grazing as a desirable practice, necessitating regular stock crossing of the Cundinup roads, it would be a stronger argument that the roads were a significant physical division inhibiting farm management and commercial viability.
As it appears, however, the present mixed farm use, coupled with the evidence submitted to the Tribunal of the higher intensity use potential of the land, indicates a flexibility of farming use and practices.
Some of the higher capability soils have already been turned to horticulture and the applicant has been able to demonstrate that there is significantly more high capability land associated with good water supplies. The viability of the property does not, therefore, appear to rely on grazing.
Stock crossings associated with grazing therefore appear not to be such a key factor to the determination of whether the roads constitute a significant physical division to the effective farming of the land.
The applicant drew attention to Price, citing the circumstance that that review allowed a subdivision by determining that a gravel formation road with a much lower traffic volume constituted a significant physical division in the context of cl 4.3 of Policy DC 3.4.
The respondent drew a distinction between Price and the current review suggesting that in Price there was no question of a loss of land to agriculture because the land severed was only 5 hectares and had in itself no agricultural capability.
The Tribunal recognises the low traffic volume threshold set in Price, and acknowledges the anomaly.
The Tribunal is also aware that the current proposal may be seen in a more favourable light than other recently considered reviews because the Cundinup roads are of a sealed construction and line marked. For this reason the roads might be seen as more substantial barriers than the gravel formation roads subject of recent Tribunal reviews.
On this ground, the applicant's argument is strengthened and it could reasonably be accepted that the incidence of sealed roads traversed by some heavy haulage and higher traffic volumes could well constitute a substantial physical division of the land.
The Tribunal is also mindful, however, that cl 4.3 of DC 3.4 is couched in terms that the significant natural or constructed feature 'may' be formalised through subdivision. The word 'may' does not imply that the subdivision should automatically follow.
The Tribunal draws attention to the decision Wilson v Western Australian Planning Commission [2004] WATPAT 215 where it was observed that 'the overriding presumption in favour of minimising the ad hoc fragmentation of land still dominates the decision to be made'.
In this case, the Tribunal acknowledges the substantial physical status of the Cundinup roads, particularly in relation to comparative decisions such as Price.
Ultimately, though, it is persuaded that the level of hindrance to farm management occasioned by the presence of the roads, as investigated in the course of this review, does not outweigh or compensate for the potential loss of high capability agricultural land which is risked if the subdivision is allowed.
It is frustrating to this application that proposed Lot 1, north of CundinupKirup Road, is probably too small to be agriculturally viable as a separate entity, but is otherwise too large and too highly capable to be lost to agriculture by subdivision. Possibly the same argument applies to proposed Lot 3 although the Tribunal draws no conclusion in that respect.
The Tribunal nevertheless concludes that, in this case, the presumption in favour of minimising rural land fragmentation as set out in the planning framework should override the discretion to allow subdivision based on the severance of the land by a significant constructed feature.
In this regard, the Tribunal was very mindful of the respondent's agricultural expert witness, Ms Percy, who expressed concern that the proposed subdivision would increase the fragmentation of cleared agricultural land in the Shire of Nannup and compound the difficulty of maintaining properties of sufficient size and capability for viable farming.
Conclusion
Based on the preceding analysis, the Tribunal concludes that, although there is an argument of some substance that CundinupKirup Road and Cundinup South Road constitute a substantial physical division of Lot 8295 and Lot 8296, Cundinup, the argument is not so persuasive as to demonstrate that the roads cannot be crossed for at least some of the farm management purposes practised and expected in the area. While having regard to the division of the land by the roads, the Tribunal places more weight on the circumstance that if the subdivision were to be allowed then there would be a high risk that a substantial proportion of the land may be lost to agriculture. For this reason, the Tribunal considers that the overriding objectives of the State, regional and local planning framework, designed to prevent the fragmentation of valued rural land resources should prevail and accordingly the subdivision should not be allowed.
The application for review of the respondent's decision to refuse subdivision of Lot 8295 and Lot 8296, Cundinup should therefore be dismissed.
Order
1.The application for review is dismissed.
2.The decision of the respondent made on 8 September 2010 to refuse the subdivision approval of Lot 8295 and Lot 8296, Cundinup into three lots is affirmed.
I certify that this and the preceding [159] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J ADDERLEY, SENIOR SESSIONAL MEMBER
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