| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : MALLEE LAND COMPANY PTY LTD and SHIRE OF JERRAMUNGUP [2011] WASAT 111 MEMBER : MR R EASTON (SENIOR SESSIONAL MEMBER) MR B HUNT (SENIOR SESSIONAL MEMBER)
HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 15 JULY 2011 FILE NO/S : DR 335 of 2010 BETWEEN : MALLEE LAND COMPANY PTY LTD Applicant
AND
SHIRE OF JERRAMUNGUP
Respondent
Catchwords: Town planning Development application Carbon sequestration Agroforestry Plantations 'Complementary but ancillary' 'Whole farm' 'Whole lot' 'Local environmental benefits' Salinity Code of Practice Planning Bulletin 56 'Broad-hectare farming' Productive agriculture Whether proposal complies with the respondent's Local Planning Policy No 10 Agroforestry and Plantations Whether proposal is consistent with objective for the 'Rural Zone' as outlined in the Shire of Jerramungup Local Planning Scheme No 2
(Page 2)
Legislation: Code of Practice for Timber Plantations in Western Australia (1997)
Planning and Development Act 2005 (WA), s 252(1)
Shire of Jerramungup Local Planning Scheme No 2, cl 2.4, cl 4.2, cl 5.26, cl 5.26.3, Sch 1(2)
State Administrative Tribunal Act 2004 (WA), s 31 Result: Application for review is dismissed Category: B
Representation: Counsel:
Applicant : Mr V Paparo
Respondent : Mr C Slarke
Solicitors:
Applicant : Freehills
Respondent : McLeods
Case(s) referred to in decision(s):
Nil
(Page 3)
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision 1 The matter involved an application for review of the refusal of planning approval to develop Lot 1581 White Road, Jerramungup for a carbon sequestration plantation. 2 The proposal involves a 931 hectare plantation on Lot 1581 White Road, Jerramungup which has an area of approximately 1,288 hectares and is for 'carbon sink and bioenergy plantings'. 3 The issues were: 4 On the first issue, the Tribunal found that the application did not comply with the respondent's Local Planning Policy No 10 Agroforestry and Plantations, as it proposed a 'whole farm' or 'whole lot' development rather than a 'complementary but ancillary use' as required by the policy. 5 The Tribunal formed the opinion that the second issue was fundamental to the determination of this application and therefore even if the Tribunal had found in favour of the application on the first issue, the application would have failed because the Tribunal had determined that the applicant was not successful on the second issue. 6 On the second issue, the Tribunal found that the proposal for a plantation for the purposes of carbon sequestration was not consistent with the planning framework's underlying theme to protect productive agricultural land. 7 The Tribunal found that the proposal was inconsistent with the objective for the 'Rural Zone', as outlined in Shire of Jerramungup Local Planning Scheme No 2 '[t]o ensure the continuation of broadhectare (Page 4)
farming as the principal land use in the district and encouraging where appropriate the retention and expansion of agricultural activities where the land is capable of such development'. 8 It followed that the application for review should be dismissed and the decision of the Council to refuse the development application should be affirmed.
Introduction 9 These proceedings involve an application brought by Mallee Land Company Pty Ltd, pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), for review of the decision of the Shire of Jerramungup (Shire or Council) made on 21 September 2010 and, pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), reconsidered to again refuse the proposal on 21 December 2010 for the development of a plantation at Lot 1581 White Road, Jerramungup (Lot 1581).
Site and locality 10 The site is located on the eastern side of White Road, approximately 17 kilometres north of the town of Jerramungup. It has an area of approximately 1,288 hectares of which some 300 hectares of remnant native vegetation is protected by a conservation covenant. The balance of the land is cleared and used for cropping and grazing. 11 The property is similar in area to surrounding lots in the locality and there are other broad-hectare farms to the north, east and west. The land to the south is fully vegetated and contains Cobomup Creek. 12 The property receives an average annual rainfall of 453 millimetres and is gently undulating with sand over clay (duplex) soils having generally less than 10 centimetres depth to clay. The property is described as 'well watered' with at least one and sometimes multiple watering points (dams) in each paddock.
Proposed development 13 The proposed development which involves 931 hectares on Lot 1581, comprised in 18 compartments, is described by the applicant as: • The block plantings consist of multiple pairs of rows, with rows 2 metres apart with 4 metres between pairs. Target tree spacing along the row is 2.22 metres, to yield a stocking rate of 1500 stems per hectare. (Page 5)
• All existing vegetation would be retained and plantation species setback a minimum of 20m or the height of boundary trees, whichever is the lesser. • Access is from the western side of the property. No additional road construction is required for the establishment of the plantation and condition of access will be monitored as the property is visited to ensure access is of a sufficient standard for operations to be carried out (planting, monitoring, fire management). • Ripping to a depth of 500mm will be conducted prior to planting and [will] assist with infiltration, absorption and retention of soil moisture. • Seedlings will usually be planted manually and the species used will be Eucalyptus polybractea. • Replanting will be carried out the following season in all areas below 80% stocking (i.e. less than 1200 stems average per hectare). • Weed control will be monitored by CO2 staff and carried out as necessary using various methods such as pre-cultivation, spraying, slashing, grazing etc[.] • Each site will be inspected once a week for the first 3 months and then once a month for the following 3 months. Monitoring will decrease after the first 6 months but will still involve regular inspections.
Background 14 The applicant is understood to be a subsidiary company of C02 Australia Limited (CO2) which in a letter with the application is described as: CO2 Australia Limited is an environmental services company specialising in biosequestration of carbon dioxide. The company's core business is the creation of carbon offsets through the establishment and management of revegetation programs dedicated for that as well as bioenergy purposes. CO2 Australia Limited has two offices located in Western Australia, one in Victoria and two in New South Wales. Operational scale plantation establishment commenced in 2005 and by the end of 2010 approximately 16,000 hectares of plantation will have been established in Western Australia, Victoria and New South Wales. CO2 Australia Limited also maintains plantations in Western Australia on behalf of the Oil Mallee Company, which is a wholly owned subsidiary of CO2 Group. 15 The development is described in the applicant's management plan as: (Page 6)
Environmental plantings established by CO2 are dedicated to greenhouse gas abatement processes including the bio-sequestration of carbon dioxide and the future supply of feed stock for bio-fuel production for biodiesel and bioelectricity facilities. Carbon dioxide sequestered by this and other plantations established and managed by CO2 may be certified under the Commonwealth government[']s Greenhouse Friendly™ Scheme as a carbon sink and they may be sustainably harvested to supply bio-energy power stations with fuel feedstock. … The majority of land proposed for carbon sink establishment by CO2 has had a long history of disturbance and deterioration that has, in the main, been attributable to over-clearing of fragile landscapes and successive rotations of broadacre cropping and/or grazing. In the Western Australian context the land being established as environmental plantings by CO2 improves the overall value of neighbouring agricultural land by reducing groundwater levels within and adjacent to the plantation, thus reducing the risk of further land degradation due to dry land salinisation processes. The current environmental value and future agricultural viability of the arable portion of the properties is arguably low and the planting of these properties by CO2 will improve environmental values by enhancing soil conservation, reducing sediment loads in surface run-off, assisting in dry land salinity mitigation and increasing diversification of habitant [sic] for fauna and flora. Since 2008 CO2 has conducted eleven physical site evaluations across the Jerramungup Shire. These site evaluations identified an area of 9,387 hectares that is currently unsuitable for the establishment [of] deep rooted, relatively salt tolerant native tree species. A major proportion of the failed sites were rejected due to high saline soils within two metres of the surface. For these areas of the Shire the future agricultural viability of the landscape is dependent upon establishing consolidated, catchment scale environmental plantings to reduce the impact of encroaching dry land salinity on the current broadacre farming estate. The summary benefits of CO2 plantings are the improved environmental values within the boundaries of the plantations and the improved agricultural value of the land beyond the property boundary at the subcatchment and catchment scale. The added economic activity associated with the establishment, management, measurement and harvesting of the plantations to supply bio-energy power plants with fuel feed stock will contribute to the ongoing economic viability of the Jerramungup Shire's community.
Planning Framework 16 The site is zoned Rural under the Shire of Jerramungup Local Planning Scheme No 2 (LPS 2). The uses of 'Plantation' and (Page 7)
'Agroforestry' are not permitted unless consent is granted by the Council. They are 'D' or 'discretionary' uses in the 'Rural Zone'. 17 The relevant aims of LPS 2 are: … (b) to protect areas of agricultural significance for sustainable production; (c) to encourage economic growth in rural areas by facilitating the more intensive and diversified use of rural land in appropriate areas for high value products which are compatible with surrounding farm practices, encouraging processing and value adding industries and promoting tourism; … (f) to protect the natural environment and biodiversity while ensuring appropriate development opportunities reali[s]ed … And a relevant objective for the 'Rural Zone' is: To ensure the continuation of broad-hectare farming as the principle [sic] land use in the district and encouraging where appropriate the retention and expansion of agricultural activities where the land is capable of such development. 18 In LPS 2, cl 5.26 deals with the 'Rural Zone' and later, at cl 5.26.3, with the 'Development of Agroforestry and Plantations' within the 'Rural Zone' as follows: (a) In addition to those matters listed in clause 10.2, applications for the development of agroforestry and plantations are to be determined by the local government having regard to: (i) The Code of Practice for Timber Plantations in Western Australia 1997 as amended from time to time ('Code of Practice'). (ii) Submission of a plantation management plan in accordance with the protocol in the Code of Practice. (iii) The need to encourage the commercial production of trees which is of significance to the national, regional, and local economy. (iv) The benefits of agroforestry and plantations in addressing land degradation including soil erosion and salinity. (Page 8)
(v) The role of agroforestry and plantations in protecting water quality and preventing adverse effects on groundwater recharge. (vi) The location of the land in relation to land zoned for residential, industrial, commercial uses. (vii) The suitability of the current and future road systems. (b) In determining applications for agroforestry and plantations the local government may impose conditions relating to inter alia: 19 The use class 'Plantation' is defined in Sch 1(2) of LPS 2 in the following terms: 'Plantation' has the same meaning as in the Code of Practice for Timber Plantations in Western Australia (1997) published by the Department of Conservation and Land Management and the Australian Forest Growers. 20 The Code of Practice for Timber Plantations in Western Australia (1997) (Code of Practice) defines 'plantation' as: [A] stand of trees of ten hectares, or larger, that has been established by sowing or planting of either native or exotic tree species selected and managed intensively for their commercial and/or environmental value.A plantation includes roads, tracks, firebreaks and small areas of native vegetation surrounded by plantations. Implicit in this definition is the recognition that plantations will be harvested. 21 The Shire of Jerramungup Local Planning Policy No 10 (LPP 10) has been adopted by the respondent in accordance with cl 2.4 of LPS 2. The policy objectives are: (Page 9)
• To support applications that actively integrate agroforestry or plantations with farms in recognition of the economic, environmental and social benefits. • To encourage planting areas with linkages to existing remnant vegetation on the same lot or adjacent lots. Where appropriate[,] encourage linkages with vegetation on adjacent reserves[,] however consult with the relevant reserve authority or manager. • To protect and enhance native vegetation, wetlands and water courses and assist in the reduction of salinity, waterlogging and erosion. • To support continuing broad acre agriculture and production as the primary and priority landuse in the Rural zone. • To generally discourage the use of whole farms for plantations (particularly where it contains a dwelling) unless the applicant has clearly demonstrated extenuating circumstances or provided significant justification warranting support for a variation to any aspect of the Policy. • To achieve agroforestry and plantation designs which do not compromise the fire safety of the local community or of biodiversity conservation and management of reserves. • To minimise the potential for any loss of population or agricultural land through the use of whole farms for plantations and encourage agroforestry or plantations that provide a supplementary income to farmers. • To achieve agroforestry and plantation designs which do not compromise the fire safety of the local community or of biodiversity conservation and management of reserves. • To achieve high quality fire management plans which are independent and self sufficient unless the relevant authority managing land outside of the application has endorsed a FMP which relies on external fire management methods (such as major protective burning of adjacent reserves). • To encourage the selection of tree species that are complimentary [sic] to native remnant vegetation will assist in maintaining landscape function. 22 The 'Policy Requirements' of cl 10.1 of LPP 10 provide: (Page 10)
with agroforestry or plantations as an ancillary and complementary use. This Policy does not attempt to introduce maximum planting areas by means of a percentage of the lot area, simply because some flexibility needs to be afforded. As a general rule the Shire will assess if a plantation area is 'ancillary' having regard for[:] 1. The area of each lot; 2. The proportion or percentage of the plantation area on a lot by lot basis. Generally a 3035% maximum planting area is encouraged, although each application will be assessed on its merits on a 'case by case' basis; 3. The extent of existing remnant vegetation areas[;] and 4. Whether a significant portion of each lot can continue to be used for agriculture. Council will be able to clearly identify whether agriculture remains as the primary use, simply because detailed site plans are lodged for all applications and show the extent of planting areas. This Policy aims to actively encourage the integration of tree planting with agricultural farms. Whilst there are other factors contributing towards reductions of rural population, the Shire wishes to ensure that new landuses do not exacerbate an existing ongoing problem. Council will not generally support the planting of whole lots or farms for tree planting due to the potential for the displacement of agricultural pursuits and loss of agricultural land. 23 LPP 10 provides for a variation to the requirements of cl 10.1 in the following terms: (Page 11)
• Farm Management Plan[.] • Soil or water test results demonstrating areas not suitable for agriculture[.] • Photographs showing shallow soils or rocky areas which visually demonstrate that the land is not suitable for agriculture. • Demonstration that planting areas will have local environmental benefits for the specific location (refer 10.3). For example, larger planting areas may be warranted as block planting adjacent to a creekline, or for salinity prone areas. More detailed information would be required to be submitted to justify such an application.
State Planning Policy 2.5 Agricultural and Rural Land Use Planning 24 This policy relates to agricultural and land use planning and informs the LPP 10. 25 The relevant key objectives of the policy are: 1. Protect agricultural land resources wherever possible by: 2. Plan and provide for rural settlement where it can: 3. Minimise the potential for land use conflict by: (a) providing adequate separation distance between potential conflicting land uses; (b) introducing management requirements that protect existing agricultural land uses; (c) identify areas that are suitable and capable for intensive agricultural pursuits as agricultural priority areas; and (Page 12)
(d) avoid locating new rural settlements in areas that are likely to create conflict with established or proposed agricultural priority areas. 4. Carefully manage natural resources by: (a) discouraging development and/or subdivision that may result in land or environmental degradation; (b) integrating land, catchment and water resource management requirements with land use planning controls; (c) assisting in the wise use of resources including energy, minerals and basic raw materials; (d) preventing land and environmental degradation during the extraction of minerals and basic raw materials; and (e) incorporating land management standards and sequential land use change in the land use planning and development process.
Council's decision 26 The Council of the respondent resolved on 21 September 2010 to refuse to grant planning approval for the following reasons: a) The proposed plantation is contrary to the objective of the 'Rural' zone to 'ensure the continuation of broad hectare farming as the principal landuse in the district and encouraging where appropriate the retention and expansion of agricultural activities where the land is capable of such development'. b) The proposed plantation proposes to plant the whole of Lot 1581 White Road, Jerramungup in a manner that is contrary to Council's Local Planning Policy No 10 and will create an undesirable precedent for other similar applications. c) The conversion of the entire farm to plantation would result in the loss of viable agricultural land from the immediate area. d) 'Special circumstances' have not been provided to warrant a departure from Council's adopted policy position of retaining traditional agriculture as the predominant use of the land. e) There are no demonstrated site specific environmental benefits that justify converting the use of the entire site to 'Plantation'. (Page 13)
27 Council was invited, pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA), to reconsider its decision, and at its meeting of 21 December 2010 again refused to approve the proposal for the following reasons which are similar, in essence: That Council;
Refuse the application lodged by Mallee Land Company Pty Ltd for a plantation on Lot 1581 White Road, Jerramungup for the following reasons: a) The proposed plantation is contrary to the objective of the 'Rural' zone to 'ensure the continuation of broad hectare farming as the principal land use in the district and encouraging where appropriate the retention and expansion of agricultural activities where the land is capable of such development'. b) The proposed plantation proposes to plant the whole of the cleared area of Lot 1581 White Road, Jerramungup in a manner that is contrary to Council’s Local Planning Policy No 10 and will create an undesirable precedent for other similar applications. c) The conversion of the entire farm location to plantation would result in the loss of viable agricultural land from the immediate area. d) 'Special circumstances' have not been provided to warrant a departure from Council's adopted policy position of retaining traditional agriculture as the predominant use of the land. e) There are no demonstrated local environmental benefits for the specific location that justify converting the use of the entire site to 'Plantation'; even in conjunction with the neighbouring remnant vegetation areas.
The issues 28 The following issues arise for determination in this review: (Page 14)
To ensure the continuation of broad-hectare farming as the principal land use in the district and encouraging where appropriate the retention and expansion of agricultural activities where the land is capable of such development. 29 The Tribunal will address each issue in turn.
Issue 1: Does the proposal comply with the respondent's Local Planning Policy No 10 Agroforestry and Plantations? 30 The applicant contends that the proposal is consistent with LPP 10 as it is not a 'whole farm' plantation but rather it is part of a 'Farming Operation' of four properties which Mr Gary Spinks owns: in aggregate, a total of 4,735 hectares. 31 Lot 1581 has an area of 1,288 hectares which is 27% of the Spinks' lands; of which 931 hectares is proposed for plantation. The proposed plantation area represents 19.7% of the total area of the 'Farming Operation' which is within the LPP 10 nominated maximum planting area of 30% 35% of the 'whole farm' or 'whole lot'. 32 Mr Craig Thomas Lees Brown, Director, Synergy Consulting (WA) Pty Ltd, a witness for the applicant, stated that Lot 1581 could never be considered a 'whole farm' as it is not a sustainable unit in its own right and it should be considered as an 'addon' block only. On this basis and the arrangement of Lot 1581 within a larger 'Farming Operation', the applicant submits that: The application is consistent with LPP 10 in that the plantation proposed on Lot 1581 is not a plantation of a 'whole farm' but is a proposal to plant approximately [19.7%] of the Farming Operation owned by Mr Spinks. 33 The applicant further advises that '… there is no residential dwelling or any farming infrastructure situated on Lot 1581…' and that in cl 5 of LPP 10 an objective of the policy is to '… generally discourage the use of whole farms for plantations (particularly where it contains a dwelling) … '. 34 Mr Spinks, in his witness statement, confirms that there is no residence on Lot 1581; rather, it is on Lot 1580, and that there will be no population loss and, in fact, the proceeds from the sale of Lot 1581 may strengthen the viability of the other Spinks' farming operations. This view leads the applicant to assert that classifying Lot 1581 as a 'whole farm' is inconsistent with contemporary farming arrangements and that: (Page 15)
… the key issue for maintaining traditional agricultural activities is not what happens on the various individual lots, but what activities occur across the 'whole of farm' business unit. 35 The respondent contends that the words of LPP 10 provide for the policy to be applied on a 'lot by lot' basis, and whilst LPP 10 does not define the term 'whole farm', there are several instances in the policy utilising the term 'lot'. 36 The respondent refers to other considerations where the functions of LPP 10 require it to be considered on a 'lot by lot' basis, including the considerations of the Council in the policy development. 37 Mr Martin Wells, Principal Consultant, Land Assessment Pty Ltd, in his expert witness statement for the respondent, agrees with the assessment of Mr Brown that Lot 1581 is 'a potentially profitable "addon" block to an existing farm' and that it is not necessarily a whole farm. 38 However, the respondent does not see this as a problem. The answer to whether Lot 1581 is a 'whole farm' (for the purpose of LPP 10) is not to be determined on its productive capacity … and Whether a lot is a 'whole farm' for the purpose of LPP 10 cannot be determined by reference to how many other lots are owned by the same landowner. A lot which is today a whole farm and is tomorrow purchased by Mr Spinks, thus becoming part of his wider farming operation, does not cease to be a whole farm because of that fact. 39 In considering the various arguments associated with the 'whole of farm' issue, the Tribunal finds that the matter of potential population loss is a component of LPP 10 and that in current circumstances this application may not have an adverse effect. It does, however, note that this is a lower order consideration and that the main tenor of the policy objective (cl 5 of LPP 10) is for integration of '… plantations with existing agricultural uses over the Shire as a complementary but ancillary use' and, further, '… [t]o facilitate retention of traditional agriculture as the predominant use on the land'. 40 The Tribunal accepts that the policy objectives consistently refer to 'whole of farm' and that the policy lacks a definition of 'whole of farm'. However, it is clear from reading the policy as a whole that the intended (Page 16)
meaning is 'farm lots'. For example, in cl 10.1 of LPP 10, one of the policy requirements for continuing agricultural activities is that: Council will not generally support the planting of whole lots or farms for tree planting due to the potential for the displacement of agricultural pursuits and loss of agricultural land. (Tribunal emphasis) 41 The policy requirement clearly states that traditional agricultural activities should remain the predominant land use 'with agroforestry or plantations as an ancillary and complementary use'. The policy then states it 'does not attempt to introduce maximum planting areas as a percentage of the lot area … ' (Tribunal emphasis). But the policy does provide some general rules to assess if a plantation area is 'ancillary' by having regard to: 1. The area of each lot; 2. The proportion or percentage of the plantation area on a lot by lot basis. Generally a 3035% maximum planting area is encouraged, although each application will be assessed on its merits on a 'case by case' basis; 3. The extent of existing remnant vegetation areas[;] and 4. Whether a significant portion of each lot can continue to be used for agriculture. (Tribunal emphasis) 42 The Tribunal finds that the actual operation of the policy in terms of assessing whether a plantation area is ancillary is intended to apply on a lot by lot basis. It is clear that the proposal to plant 931 hectares of plantation on Lot 1581 is well in excess of 30 35% and, more significantly, it will not enable a significant portion of Lot 1581 to continue to be used for agriculture. 43 The Tribunal has determined that LPP 10 is intended to be applied on a 'lot' basis and not on a 'Farming Operation' basis and in that regard the proposal involves a variation to LPP 10 which must now be assessed pursuant to cl 10.1.1 and cl 10.4 of LPP 10. 44 The considerations under cl 10.1 of LPP 10 are listed earlier in these reasons and the parties agree that it is the dot point that relates to 'local environmental benefits' that needs assessment. That is further expanded in cl 10.4 where Council is to have regard: … for any specific environmental benefits to the development land and any application that: (Page 17)
(Page 18)
45 The applicant contends there are specific local environmental benefits as expressed in the expert witness statement of Mr Daniel Repton Andrew Huxtable, an environmental expert for the applicant, and, in particular: (a) provision of additional fauna habitat; (b) reduced distance between substandard blocks of vegetation in the context of ecological linkage or connectivity; (c) reduction in groundwater recharge and surface runoff affecting downstream areas; and (d) increase to the vegetation cover within the upper portion of the Cobomup Creek catchment. 46 The respondent acknowledges that there are environmental benefits from the plantation proposal but disputes the extent to which these outcomes provide specific local environmental benefit. 47 The applicant relies primarily on the witness statement of Mr Huxtable in regard to specific environmental benefits to the site but also on the witness statements of: which all support the applicant's position that there are salinity issues in the area, and the parties also appear to agree on that. 48 The Tribunal, in considering a variation to LPP 10, needed to be persuaded that 'the planting areas will have local environmental benefits for the specific location'. The evidence of Mr Brown, who appears to (Page 19)
have been the only expert to have internally inspected the land (Mr Wells having observed the property from the adjacent White Road), is that: I am not concerned about salinity levels of this farm and they would not impede any of the proposed or current agricultural practices in the future. 49 The applicant considers that salinity, which the Tribunal considers to be the most significant environmental matter, should be addressed on a broad scale, namely a landscape, catchment or regional scale, and that the 'test' in LPP 10 for a specific environmental benefit is not consistent with this position. 50 The environmental experts agree that there are generic benefits from a plantation (they differ as to the degree) and the applicant's position that LPP 10 without any threshold values makes assessment subjective, is a relevant consideration. 51 The joint statement of evidence of Mr Wells and Mr Huxtable acknowledges the aspects of environmental benefit, then details the following aspects of disagreement: (a) Additional fauna habitat; (b) Reduced distance between substantial blocks of vegetation; (c) Reduced groundwater recharge and surface runoff; (d) Increase in upper catchment vegetation cover. 52 The experts agree that LPP 10 does not provide criteria and threshold values on which assessments of which sufficiency of biodiversity and salinity outcomes can be assessed. 53 The applicant considers that in the absence of criteria, the fact that the proposal will 'assist in the reduction of salinity' is sufficient. 54 The Tribunal does not take this view and considers that a significant level of 'local environmental benefits for the specific location' is required to justify a variation to policy. 55 In particular, the Tribunal considers that with regard to all of the aspects that the experts disagreed on, the matter was one of degree, and while there was a generic environmental benefit, it was not site specific to a significant extent. (Page 20)
56 The potential for additional fauna habitat is limited by the monoculture of the proposed plantation and further by the expressed concerns of the Department of Environment and Conservation (DEC) in its submission during the advertising of LPP 10, where they recommended a change to: Encourage use of endemic local species instead of just referring to local natives and expand on Policy to encourage local species along plantation edges adjoining conservation reserves and other Crown land. 57 LPP 10 was subsequently amended by the respondent. 58 The reduced distance between substantial blocks of vegetation is an aspect that again needs to be weighted, as the experts do not agree as to the extent of any benefit. Mr Wells considers that a plantation more centrally located between the subject land and Lake Magenta Reserve would be more beneficial, and that may well be so. However, the question is whether an extension to the area of vegetation when the proposed plantation is 'added' to the existing Lot 1 White Road, Jerramungup, will produce significant benefit. Mr Huxtable says that the distance to Lake Magenta Reserve will be reduced by approximately 1.5 kilometres but acknowledges that the plantation would not fully emulate the habitat of the remnant vegetation. 59 The Tribunal considers that, again, the environmental value of this aspect of the plantation is limited. 60 The reduced groundwater recharge and surface runoff is an aspect where the experts appear to take differing views. The view of Mr Wells is: … that the soil and topographic conditions suggest that the subject land is not an area within the catchment where groundwater recharge is the dominant process. He also considers: … whether or not the property is a significant recharge area or not, is relevant to the effect that tree planting has on mitigation of salinity, with the greatest effect occurring when trees are planted in recharge areas. 61 The question, therefore, as to whether Lot 1581 is a likely net recharge or a net discharge area is important to the salinity mitigation benefits that may eventuate from a plantation. The evidence of Mr Wells suggests that most of the subject land is a net discharge area and the benefit for salinity control is limited. Mr Huxtable considers that the (Page 21)
plantation will reduce recharge and runoff and the downstream land will benefit environmentally as a consequence. 62 The Tribunal accepts Mr Wells' evidence on this matter, particularly where there is little evidence of salinity on Lot 1581 and the adjacent Lot 1 is reportedly in 'excellent condition'. 63 The increase in upper catchment vegetation cover again brings some benefit; however, again the extent is probably limited. 64 The Tribunal considers that there has not been demonstrated local environmental benefits to a degree that justify a variation from LPP 10.
Issue 2: Whether the proposal is consistent with the objective for the 'Rural Zone', as outlined in the Shire of Jerramungup Local Planning Scheme No 2 65 The objective for the 'Rural Zone', as outlined in LPS 2 states: To ensure the continuation of broad-hectare farming as the principal land use in the district and encouraging where appropriate the retention and expansion of agricultural activities where the land is capable of such development. 66 It is agreed by the parties that plantations are a land use that is able to be approved in the 'Rural Zone' and that it is a 'D' or 'discretionary' land use in that zone. 67 The proposal would cause an area of some 930 hectares changing in land use from the current cropping and grazing to plantation. The property is considered by Mr Brown to be 'above average for an "addon" block, economically not feasible as a single entity, but more than economic as an addition to a current enterprise' and Mr Wells, for the respondent, agrees with that assessment. 68 The issue for consideration is whether this proposed change in land use is consistent with the relevant objective of the 'Rural Zone'. 69 The respondent formed the view that it was not and the evidence of its planner, Mr Craig Pursey, the Planning Officer at the Shire of Jerramungup, asserts that the plantation on capable agricultural land makes it inconsistent with LPS 2. 70 The respondent considers that use of a 'whole farm' and/or 'whole lot' as a plantation discourages traditional broad-hectare farming whilst a plantation of 'incidental' scale would not. (Page 22)
71 The respondent's argument is summarised as follows: While the development of plantations is a land use appropriate in the Rural zone, to allow the development of whole farm lots with carbon sequestration plantations which may not be harvested except in the long term, or at all, is inconsistent with the Rural zone objective of ensuring that broad hectare farming continues to be the principal land use in the district as: (a) To the extent the plantation is not harvested the use does not involve farming at all; (b) The concept of broad hectare farming primarily contemplates the continuation of traditional productive agricultural activities; and (c) The use of an entire farm lot for a carbon sequestration plantation to the exclusion of traditional productive agricultural activities does not involve an appropriate integration of rural land uses, but instead runs the risk that the entire farm lot will never be returned to productive use, and at the very least involves a diminution of the productive capacity of the land. The proposed whole farm lot plantation discourages the continuation of broad hectare farming in a way the development of a plantation at a smaller scale would not. Integrated ancillary plantings consistent with the LPP 10 serve to encourage the retention of productive agricultural activities whereas whole farm lot plantings have the opposite effect. 72 The applicant considers that the application: … is not inconsistent with the intention of the 'Rural Zone' and further consider that some nonrural uses can be considered if they are … of benefit to the district and not detrimental to the natural resources or the environment. (cl 4.2 of LPS 2) 73 The applicant, in the statement above, referred to the second objective in the 'Rural Zone' which is: … to consider non-rural uses where they can be shown to be of benefit to the district and not detrimental to the natural resources or the environment. 74 The applicant argued that if nonrural uses may be considered in the rural zone then it is logical that contemporary rural uses such as tree plantations must be considered more favourably than non-rural uses in the rural zone. The applicant then argued that the Shire of Jerramungup Local Planning Scheme No 2 Local Planning Strategy (LPS 2 Strategy) unequivocally encourages the use of contemporary rural uses such as plantations in the Shire by referring to cl 7.2 of the LPS 2 Strategy which states: (Page 23)
Rural activities currently include sheep and beef cattle grazing, and cropping. In more recent times there has been a diversity of new ventures, including … tree plantations … These contemporary rural uses, and the more traditional activities, should be encouraged throughout the shire and located according to land capability, and location and servicing needs. An overriding consideration is that there should be no adverse impacts on the surrounding land and rural activities. (Emphasis added by applicant) 75 The applicant then referred to previous arguments relating to the environmental benefits of the proposed plantation and concluded that the proposal is consistent with the objective for the 'Rural Zone' because it is a contemporary rural use with a positive environmental outcome that must be considered more favourably than a nonrural use which meets the rural objective if it has a benefit to the district and is not detrimental to the environment. 76 Related to this issue was the applicant's argument that the respondent was wrong when stating that the proposal would result in the loss of viable agricultural land. The applicant's position is that Lot 1581 is not a viable agricultural production unit unless it is considered to be part of the conglomerate of properties that forms the farming unit. The applicant proposed that it was foreseeable that if the plantation did not proceed, Lot 1581, which is currently in average condition, could deteriorate to grassy pastures with a resultant negative impact on salinity. 77 Furthermore, the applicant argued, the issue of compliance with the rural objective of LPS 2 needs to be considered with related requirements of the Scheme, such as matters to be considered under cl 10.2 of LPP 10 which includes any relevant policy or strategy of the Western Australian Planning Commission (WAPC) and matters to be considered under cl 5.26.3 of LPS 2 when considering planning approval for plantations. 78 The applicant argued that the WAPC's Planning Bulletin 56 entitled 'Farm Forestry Policy' (Bulletin 56) specifically refers to the benefits of plantations, such as increased farm incomes, community development, employment opportunities and environmental benefits. The applicant specifically referred to Bulletin 56's recommendation that local planning schemes should provide for plantations and agroforestry to be listed as discretionary uses '… with indication that the use is "asofright", subject to the submission and approval by the local government of a transport strategy … '. (Page 24)
79 By reference to cl 5.26.3 of LPS 2, the applicant argued that the proposal meets the requirements of the Code of Practice by referring specifically to the environmental benefits of the proposal. The applicant stated: Significantly, clause 2.2.2 [of the Code of Practice] notes that 'it is important to recognise the multiple benefits that plantations can provide in relation to environmental and commercial objectives, through the integration of plantations with other agricultural systems.' 80 The applicant also argued that the proposal is consistent with the part of cl 5.26.3 of LPS 2 which requires Council to have regard to the need to encourage the commercial production of trees which is of significance to the national, regional and local economy. 81 There is a fundamental flaw with the applicant's argument and the proposal. The flaw is related to the nature of the proposal: carbon sequestration and the lack of harvesting. 82 LPS 2 and Bulletin 56 both refer to the Code of Practice for the definition of 'plantation'. 83 The Code of Practice defines 'plantation' as: A stand of trees of 10 hectares, or larger, that has been established by [the] sowing or planting of either native or exotic tree species selected and managed intensively for their commercial and environmental value. A plantation includes roads, tracks, firebreaks and small areas of native vegetation surrounded by plantations. Implicit in this definition is the recognition that plantations will be harvested. (Tribunal emphasis) 84 The proposal submitted by the applicant cannot reasonably be described as being managed intensively. More significantly is that the proposal is for carbon sequestration which by its very nature discourages harvesting. 85 The planning framework is quite comprehensive on the matter of plantations but the lack of a harvesting plan indicates that some of the benefits associated with plantations that are regularly harvested may not be available for a plantation for carbon sequestration. 86 Bulletin 56 reported on the initial planning concerns associated with the widespread introduction of farm forestry and how those concerns had been addressed. However, the applicant has not been able to demonstrate how this proposal for carbon sequestration benefits issues such as increased farm incomes, community development and employment (Page 25)
opportunities and overcoming the issue of loss of productive agricultural land. 87 The applicant has failed to demonstrate how locking up land for at least 70 years for growing Mallee trees is not loss of productive agricultural land and is not contrary to the objective of the 'Rural Zone' to ensure the continuation of broadhectare farming as the principal land use in the district. 88 The Tribunal does not accept the applicant's argument that if the land is not used for the proposed plantation it will be lost to productive agriculture anyway because the lot, as it exists, is not a viable farm unit and it may be left to pasture. The lot has potential as productive agricultural land as an 'addon' lot or part of a large farm unit. That potential will be lost if the land is locked up for carbon sequestration. 89 A substantial part of the applicant's case has rested on the environmental benefits associated with the proposal and demonstrating how those environmental benefits are consistent with the planning framework. 90 However, to follow the applicant's argument to its logical extension is to argue that the best environmental benefits for agricultural land are obtained when the land use is for plantations. The Tribunal agrees that the proposal has associated positive environmental outcomes. However, the environmental benefits need to be balanced with the need for productive agriculture and broadhectare farming. The environmental benefits of the applicant's proposal are not of sufficient scale to overcome the loss of productive agricultural land. 91 The respondent argued that plantings for carbon sequestration should not be defined as 'plantations' and were therefore a 'use not listed'. Given the Tribunal's findings on the application for review, it is unnecessary to explore this matter further. 92 Upon reviewing the entire planning framework (both local and State) associated with this application, there is an underlying theme to protect productive agricultural land. The extent and consistency of this framework has led the Tribunal to form the opinion that this second issue is fundamental to the outcome of this review. Even if the applicant had been successful on the first issue, the application would still fail on the second issue. The planning framework recognises the benefits of farm forestry but to the extent that it involves harvesting and/or is integrated (Page 26)
with established productive agricultural activities and, in the case of the respondent, integrated as a complementary or ancillary use. 93 A proposal for a plantation for the purposes of carbon sequestration is not consistent with the planning framework's underlying theme to protect productive agricultural land. 94 The Tribunal finds that the proposal is inconsistent with the objective for the 'Rural Zone', as outlined in LPS 2, to ensure the continuation of broadhectare farming as the principal land use in the district and encouraging, where appropriate, the retention and expansion of agricultural activities where the land is capable of such development.
Conclusion 95 The Tribunal found that the application did not comply with the respondent's LPP 10, as it proposed a 'whole farm' or 'whole lot' development rather than a 'complementary but ancillary use' as required by the policy. 96 The applicant's position that Lot 1581 is part of a larger 'farming operation' is considered to be an unworkable interpretation of policy and does not provide a response to the broader issue of responsible integration of plantations with broadhectare farming. 97 The Tribunal's determination that the application be considered as a 'whole farm' then requires consideration as a variation to LPP 10 on the basis of a specific environmental benefit. 98 The Tribunal was assisted by the joint statement of evidence of Mr Huxtable and Mr Wells, and whilst noting that there were broad environmental benefits, the specific considerations were not evident. The evidence of Mr Wells, that the area by virtue of its soils may be in fact a net discharge area and of limited salinity control benefit, was persuasive. 99 The Tribunal therefore determined that there was not a 'specific environmental benefit' to warrant a variation to LPP 10. 100 The Tribunal formed the opinion that the second issue is fundamental to the determination of this application and therefore, even if the Tribunal had found in favour of the application on the first issue, the application would still fail because the Tribunal has determined that the applicant was not successful on the second issue. (Page 27)
101 On the second issue, the Tribunal found that the proposal for a plantation for the purposes of carbon sequestration is not consistent with the planning framework's underlying theme to protect productive agricultural land. 102 The Tribunal finds that the proposal is inconsistent with the objective for the 'Rural Zone', as outlined in LPS 2, to ensure the continuation of broadhectare farming as the principal land use in the district and encouraging, where appropriate, the retention and expansion of agricultural activities where the land is capable of such development. 103 It follows that the application for review should be dismissed and the decision of the Council to refuse the development application should be affirmed.
Orders 104 The Tribunal makes the following orders: |