Maher & Anor and Western Australian Planning Commission - [2006] WASAT 129

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: MAHER & ANOR and WESTERN AUSTRALIAN PLANNING COMMISSION [2006] WASAT 129

MEMBER: MR J JORDAN (MEMBER)

HEARD: 23 FEBRUARY 2006

DELIVERED : 23 MAY 2006

FILE NO/S: DR 632 of 2005

BETWEEN: HELEN NOELLE MAHER
VINCENT LAWRENCE MAHER
Applicants
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Town planning – Subdivision – General rural zoned land – Rural use and character – Urbanisation pressures – Lot sizes – Strategic planning – Application of policies – Draft strategy – Ad hoc subdivision

Legislation:

City of Wanneroo District Planning Scheme No 2, cl 3.16.1
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 241(3)

Result:

The application for review of the refusal of the proposed subdivision of Lot 15 has been dismissed

Category: B

Representation:

Counsel:

Applicants: Selfrepresented
Respondent: Mr J Algeri

Solicitors:

Applicants: Self-represented
Respondent: As Agent

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

Nil

Case(s) also cited:

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Lot 15 Franklin Road, Jandabup is zoned "general rural" in the City of Wanneroo's District Planning Scheme No 2. The owners, Mr and Mrs Maher, applied to subdivide Lot 15 to create two lots of 4052 square metres each and one lot of 5919 square metres.
The Western Australian Planning Commission refused the application because they considered the subdivision would result in an unplanned breakdown of rural zoned land in conflict with their policies and the zoning objectives.
Mr and Mrs Maher said the locality was subject to pressures for urbanisation and this was shown in the draft planning proposals for the area. They considered they should not have to wait many years for the zoning changes to be finalised before being allowed to subdivide because their proposed lots would maintain the current amenity of the locality and would not conflict with the proposed future use of the area.
The Tribunal found that there was a presumption against subdivision of rural zoned land in the planning controls in place. There had been recognition of the pressures for urbanisation of the locality and planning studies had commenced to address this. The proposed subdivision could not be supported; however, because it had not yet been decided what form of development was appropriate for the locality and there was not in place any statutory controls and structure planning for there to be orderly subdivision.
The Tribunal has therefore dismissed the application.

Introduction

This is an application by Mrs HM Maher and Mr VL Maher (applicants) for review of the decision by the Western Australian Planning Commission (respondent) not to approve the subdivision of Lot 15 Franklin Road, Jandabup (subject land), which they have owned since 1979.
The subject land has an area of 1.6256 hectares and a frontage of 54.76 metres to Franklin Road at the western end. To the east are a battleaxe lot and then the Parks and Recreation Reserve of Lake Jandabup. Following a directions hearing, the applicants filed a revised application sketch which shows three lots, one behind the other. At the Franklin Road frontage would be a 5919 square metre lot, with the existing house, behind which would be a 4052 square metre lot and behind that again, a further lot of 4052 square metres. A "private right‑of‑way" 223 metres long adjacent to the northern boundary would provide access to the two rear lots.

Planning framework

The subject land is zoned "Rural" under the Metropolitan Region Scheme (MRS) and is in the "General Rural" zone of the City of Wanneroo District Planning Scheme No 2 (DPS 2). DPS 2 does not make any specific provision for rural subdivision or recommend a minimum lot size for the general rural zone. The objectives of the general rural zone, at cl 3.16.1, are to:
"(a) accommodate agricultural, horticultural and equestrian activities;
(b)maintain and enhance the rural character and amenity of the areas designated for rural use and to protect their ground water and environmental values."
The City of Wanneroo (City) has an interim Local Rural Strategy, adopted in 2000, (interim LRS) and Appendix 2 "Policy on Subdivision of Rural Zoned Land" provides that the City shall only support subdivision of rural zoned land where "each lot yielded by the proposed subdivision contains a minimum of 4 hectares". Section 13 of the interim LRS "Landscape Enhancements – Scenic Drives" at policy 13.2, recognises Franklin Road as a "scenic drive".
The respondent has adopted Policy DC 3.4 – "Subdivision of Rural Land" (DC 3.4). DC 3.4 includes at cl 2.1(a) the policy objective of discouraging land uses unrelated to agricultural land and at cl 2.1(b) minimising ad hoc subdivision as a means of protecting rural resources.
Clause 3.1 of DC 3.4 contains a general presumption against subdivision of rural land unless specifically provided for in a town planning scheme, an endorsed local planning strategy or an endorsed local rural strategy. At cl 3.2.1(a) to (e) are listed purposes for which the respondent might approve subdivision as an exemption from this general presumption. The circumstances of the subject land do not include any of the purposes listed.
Clause 6.1.1(g) of DC 3.4 provides that the respondent may take into account when considering rural subdivision the relationship of the subject land to adjacent properties, reserves and roads.
The respondent has adopted Statement of Planning Policy 4.1 (SPP 4.1), which is a draft "State Industrial Buffer" policy. Section 5 of SPP 4.1 identifies that where a technical analysis has not been undertaken, the respondent will have regard to the buffer distances in Table 2.2 of the Environmental Protection Authority's "Guidance for the Assessment of Environmental Factors – Separation Distances Between Industrial and Sensitive Land Uses No 3, June 2005". Table 2.2 sets out that mushroom and turf farms require a buffer distance of between 500 metres – 1000 metres and 500 metres respectively.
Both parties have referred to the "draft East Wanneroo Land Use and Water Management Strategy" of November 2005 (draft LUWMS and LUWMS). The purpose of the LUWMS, when adopted, will be to provide a long–term framework for managing the land and water resources east of Wanneroo Road. The draft LUWMS identifies the subject land as being "possible future urban deferred". The period for public submissions on the draft LUWMS closed in February 2006 and the respondent advised that an analysis of the submissions received will commence shortly.

The positions of the parties

The applicants provided comprehensive submissions in support of their proposed subdivision, arguing that it would be consistent with the existing character of the locality and would not conflict with the planning proposals for the locality.
The respondent expressed concern that the proposal would result in an unplanned breakdown of land holdings and would therefore conflict with the objective of preserving rural land use and density of development in the zone. It was also concerned that the proposed lots were smaller than the prevailing lot size in the locality and approval would set an undesirable precedent for other nearby and surrounding subdivisions. A further concern raised by the respondent was that the proposed lots were within the buffer areas for a mushroom and a turf farm. The positions of the two parties are considered under the headings as follows.

Rural land use

It was the respondent's contention that the proposed lots were of a size that could only be used for purposes that did not accord with the objectives of the general rural zoning of DPS 2. The respondent pointed out that the subject land was used mostly as part of a turf farm and, while this may not on its own be a viable rural use, it did demonstrate that the subject land as it currently existed could be put to a use consistent with the first of the two objectives for the general rural zone, that is, the accommodation of agricultural and horticultural activities. The respondent also emphasised that the purpose of DC 3.4 was to protect agricultural land resources.
In response, the applicants said that the subject land was leased to the neighbour and planted to turf in the 1980's when it was proposed that a four lane highway be constructed through the locality. There was minimal return, but at the time it was believed necessary to demonstrate that the property was put to rural use and the ground water allocation, which would have otherwise been lost, was being used. The applicants argued that, in recent years no new agricultural endeavours had occurred in the locality because existing lot sizes were too small and ground water for rural uses was just not available. It was the applicants' submission that the land between Franklin Road and Lake Jandabup was better used as rural‑residential lots replanted with native vegetation, to act as a buffer between what will become suburban lots to the west and the lake.
The Tribunal was not provided with an analysis of the use made of existing lots in the locality, particularly east of Franklin Road. An aerial photograph of the locality showed the mushroom farm on the corner of Franklin Road and Belgrade Road less than 500 metres away and the turf on the subject land and the lot adjoining to the north. East of Franklin Road was a mixture of cleared and uncleared lots and it appeared that rural living without agricultural activity was common in the locality. Lots of the size proposed might well reduce the potential use of the subject land to that of rural‑residential, making it much more difficult to accommodate rural activity consistent with the objectives of the zone. The respondent did, however, make the significant point that whatever the lot size, the lack of ground water for allocation was a most significant factor in constraining the agricultural use of the rural zoned lots in East Wanneroo.

Rural density and character

The lot sizes proposed, according to the respondent, would increase residential density and would therefore undermine the rural character and amenity of the area. This, it said, was contrary to the second of the objectives of the general rural zone under DPS 2, the recommended 4 hectare minimum lot size in the interim LRS and the presumption against rural subdivision in DC 3.4, all of which were directed to the preservation of the rural character and amenity.
The applicants pointed out that the character of the area had changed considerably in the years they had been there. This was because of subdivision of land to the west, the reduction of properties to less than 4 hectares due to the resumption for parks and recreation around Lake Jandabup, increased development, including substantial rural industry buildings, and the use of the majority of neighbouring properties as rural‑residential, particularly because ground water allocations were no longer available for rural pursuits.
The applicants said the rural‑residential sized lots proposed would maintain the existing rural character. There would be only two additional houses that would not be readily visible from the road because of the lower contours and the proposed replanting of native vegetation.
The Tribunal notes that two additional houses would have a marginal impact on the local character and amenity. Of concern, however, is the incremental change that would result from a series of ad hoc subdivisions in circumstances where it had not yet been finalised what was to be the future character for the locality and what planning controls were necessary to achieve this.
On local character the respondent made reference to the designation of Franklin Road as a "scenic drive" in the interim LRS. The applicant said that this designation should not be a reason for refusing the application, because the scenic qualities of the road had been affected by a narrow carriageway, barrier fences, large sheds, the mushroom farm and existing housing development.

Planning policies on rural subdivision

Mr Malcolm Logan, the planner who appeared as a witness for the respondent, emphasised that the proposal would be in conflict with the general presumption against subdivision of rural land in DC 3.4. He said the exception to this where subdivision was specifically provided for in a town planning scheme, endorsed local planning strategy or endorsed local rural strategy did not arise in this instance because there were no documents with such a provision.
Mr Logan noted that DPS 2 did not specify a minimum lot size for the general rural zone, but he pointed out that 4 hectares had been the recommended minimum lot size in the "Rural Small Holdings Policy Study 1977" and this minimum had been repeated in the City's interim LRS. It was the respondent's submission that the proposed lots were already significantly less than this minimum and so no further subdivision should occur.
Mr Logan drew attention to the requirement of the Metropolitan Rural Policy (MRP) of 1995 that there be protection of metropolitan rural land for its primary purpose. He noted that the MRP required that closer subdivision and ad hoc development be restricted and that rural land not be seen as a resource for continued subdivision. Reference was made to Part 6.4 of the MRP which advises that subdivision would be supported only when specified in a local rural strategy or when a minimum lot size was specified in a town planning scheme. This policy approach, he pointed out, was now restated in DC 3.4.
It was the applicants' position that the planning documents referred to by the respondent did not prevent the proposed subdivision being considered on its merits. They said the lots east of Franklin Road were less than 4 hectares because of land resumed for parks and recreation around the lake. These lots were disadvantaged as they had been reduced below what the policy set out as the minimum lot size for rural activities. The use they proposed should therefore be considered. In the applicants' opinion, while the documents referred to did include a presumption against subdivision, because of the rapid increase in urbanisation of the district and, particularly, the restrictions now placed on ground water, the objectives of these documents were now out of date and the locality had been overtaken by development pressures. This, they said, had led to the publishing of the draft LUWMS which should be referred to.
The applicants emphasised that the draft LUWMS designated the subject land as "possible future urban deferred" and this clearly indicted the planning future for the locality. Mr and Mrs Maher were both of the opinion that it was inevitable that this land would in fact become urban deferred because of the increasing urbanisation of the district and the lack of water licences. There was, they said, a definite desire among landowners for, and a real need for, smaller rural‑residential lots in the area. As indicated above, they were of the view that the land between Franklin Road and Lake Jandabup would most likely be rural‑residential in the future to provide a buffer between the lake and residential areas that would inevitably develop to the west. The 4000 square metre and 5000 square metre rural‑residential lots they were proposing would not affect the rural character and amenity and would reduce the draw on ground water.
Mr and Mrs Maher acknowledged that future urban use of the subject land and neighbouring lots might not occur for up to the 25 years mentioned in the LUWMS, but said the proposal was consistent with the draft LUWMS and would not prevent its implementation. The proposed subdivision would be a transition between the existing rural and the future urban. They said subdivision in the manner proposed was a sensible use of the land and would maintain rural character. They believed it was not unreasonable that they be allowed to subdivide now and benefit now from a rural‑residential lifestyle.
The respondent acknowledged that the draft LUWMS identified the locality as possible "future urban deferred", but emphasised that the LUWMS was yet to be adopted and there is no guarantee that it will ultimately be in the form set out in the advertised draft. To support the proposed subdivision on the basis of the draft document would, in the submission of the respondent, be contrary to proper planning procedure and practice. It was necessary, Mr Logan said, that the LUWMS be finalised, that it then be determined what appropriate amendments were required to the MRS and DPS 2 and when it would be appropriate for these the statutory changes to be enacted. This, he said, was likely to be a long‑term matter, if it occurred at all, and even then necessary local structure planning would have to be completed before any urban subdivisions could properly be approved.
The respondent said that approving now the subdivision of a lot that was essentially of the same character as neighbouring lots, would set an undesirable precedent for the further subdivision of those other lots in the same manner. In the absence of a structure plan, this would lead to ad hoc development and would not be consistent with orderly and proper planning.
The applicants acknowledged that they were not town planners, but it appeared obvious to them that there was capacity in the existing lot size pattern to fit any future subdivision around their proposal. The access leg to the rear lots, when combined with the adjoining battleaxe access leg, could provide a basis for a future road and this could be extended to serve the future subdivision of other lots in the locality.
The Tribunal does not consider there to be any planning circumstances to distinguish the subject land from the neighbouring lots. To support the form of subdivision proposed and so have the future subdivision of surrounding lots be constrained according to the lot layout and access arrangements proposed in this instance, is not considered by the Tribunal to be consistent with orderly and proper planning. The proper course is to have in place a planning framework that would provide for, and guide the subdivision and development of the locality. The draft LUWMS does not appear to address the specific form of subdivision proposed as the lot sizes applied for are consistent with designation "possible rural living" in the LUWMS whereas the subject land is designated "possible future urban deferred" which has connotations of residential subdivision. The draft LUMWS does not identify a transition lot size between rural and urban deferred and to have the subject land placed in the "possible rural living" category would require the document to be amended. These are matters that more properly should be addressed as the LUWMS is finalised and adopted.
As indicated above, the adoption of the LUWMS cannot be described as imminent. To get from an advertised draft to amendments to statutory instruments and guidance for subdivision and land use will take a considerable period of time. This could take up to 25 years for the locality of the subject land as noted by the applicants.

Buffers

The respondent was concerned that the subject land was within 500 metres of a mushroom farm and next to a turf farm, both inside the buffer distances required under Table 2.2 of SPP 4.1. This, Mr Logan submitted, raised concerns about health and amenity issues, particularly in regard to future residents.
The applicants pointed out that the turf farm on the lot next door was the same rural producer who leased their property for growing turf. That use on their land would cease with the subdivision, and the turf farm, as they understood, was looking to relocate to Gingin. As to the mushroom farm, the respondent pointed out that under the draft LUWMS the buffer zone for rural‑residential, as opposed to residential, was suggested as 300 metres and so the proposed lots would be beyond this buffer. They also proffered anecdotal evidence of the mushroom farm enclosing its composting works, which would assist in the reduction of this buffer. There were also said to be local stories that the mushroom farm may be considering relocating. The main point made by the applicants in relation to these two rural uses, was that there were already some 35 homes within the buffer area and, in fact, both uses commenced after many of those homes were in existence. In their view, the additional two houses that would result would not change that situation to any great degree.

The Tribunal agrees with the submission of the respondent that, notwithstanding how many houses might be within the buffer, it is not appropriate to create additional house lots. Additional house sites could be considered if changes to those uses that require a buffer are completed or there are studies done that show a reduced buffer is warranted in the circumstances.

Ground water

The respondent raised as an issue, the protection of ground water, specifically as the subject land was located within Priority 1 protection area of the Gnangara Water Protection Policy. The applicants provided a letter from the Department of Water dated 27 January 2006 which advised the boundary of the Gnangara Ground Water Protection Policy Area was to be located to the east side of Lake Jandabup. This would leave the subject land well outside Priority 1 and Priority 2 protection areas.
DPS 2 also has the objective of providing protection of ground water in the general rural zone. The applicants pointed out that, were the subdivision to be allowed, the turf farm use would cease and the ground water licence would be relinquished. This would change the ground water consumption from 21 000 kilolitres per annum to 1500 kilolitres per annum per dwelling for use for domestic purposes.

Conclusion

The applicants pointed out that land resumption for parks and recreation reserve purposes associated with Lake Jandabup has reduced most lots between Franklin Road and Lake Jandabup to less than 4 hectares. The minimum lot size of the interim LRS cannot therefore be achieved. It does not follow, of course, that because existing lots are less than the desired minimum then further subdivision should be allowed to occur as a matter of course.
Also as pointed out by the applicants, this locality is subject to increasing pressures for changes to the rural zoning as the development pressures on East Wanneroo increase. Lot sizes are now generally too small for any more than incidental agricultural and horticultural activity and there is the significant limiting factor of not all landowners having a ground water allocation. Opportunities for intensification or commencement of new horticultural or agricultural uses are severely limited. The applicants believe subdivision now would enable owners to take reasonable advantage of their properties and this would not stop the planning process continuing.
It has taken a long time to investigate what planning changes might be required to best address the changes occurring in this locality and indeed in East Wanneroo. This has resulted in the draft LUWMS. While the applicants' frustration at the time taken to get just to the draft stage for this strategy can be understood, the Tribunal does not accept that the ultimate form of the LUWMS should be pre‑empted by premature support for ad hoc subdivision. There might be cases elsewhere where particular circumstances support subdivision of a rural lot occurring now, but this is not considered to be one of those cases.
Examination of the lot size pattern east of Franklin Road and north of Trichet Road, reveals that the subject land is about equal in area to the smallest lots and less in area than the majority of lots. The proposed subdivision would result in lots which are clearly smaller than any other lots in the immediate vicinity between Franklin Road and Lake Jandabup. In the absence of any particular characteristics that distinguish the subject land, a subdivision approval would be viewed by other owners as a precedent they might be allowed to follow. Such subdivision, if allowed, would not be orderly and proper planning because of the absence of necessary structure planning.
In addition to particular planning characteristics that might distinguish a proposal, s 241(3) of the Planning and Development Act 2005 (WA) provides that the Tribunal may have regard to claims of hardship raised by the applicant and proven to the satisfaction of the Tribunal, if the Tribunal is of the opinion that such regard will not affect the application of sound planning principles. The applicants set out their personal reasons for seeking subdivision. The mother of Mrs Maher lives on the lot to the rear and the subdivision would enable four generations of the family to live close by and assist each other to overcome the hardships of age, ill health of some members and child care. It was the applicants' submission that the proposed subdivision would help overcome their difficulties, but would not, for the reasons given in their submissions, affect the application of sound planning principles.
The Tribunal appreciates the applicants' desire to have members of the family mutually assist each other, but has formed the view that, in this instance, the proposed subdivision would not be consistent with the application of sound planning principles.
The Tribunal, as stated above, considers that the ultimate form of the LUWMS is not certain and so the proposed subdivision is premature. Unless there are particular circumstances that distinguish a particular proposal, subdivision should occur in an orderly and proper manner consistent with the planning controls in place for the locality. As emphasised by the respondent, there is not yet in place any adopted strategy or a town planning scheme which provides for subdivision of the locality in which the subject land is situated. The planning changes being considered for this locality have not reached the stage where the existing planning controls can simply be put aside.
The Tribunal has therefore determined that the proposed subdivision cannot be supported.

Orders

1.The application for review of the refusal of the proposed subdivision of Lot 15 is dismissed.

I certify that this and the preceding [48] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J JORDAN, MEMBER