Martin v Western Australian Planning Commission - [2018] WASC 42

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: MARTIN -v- WESTERN AUSTRALIAN PLANNING COMMISSION [2018] WASC 42

CORAM: CHANEY J

HEARD: 16 JANUARY 2018

DELIVERED : 13 FEBRUARY 2018

FILE NO/S: GDA 12 of 2017

BETWEEN: DARREN OWEN MARTIN
First Appellant
LYNETTE DOREEN MARTIN
Second Appellant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

ON APPEAL FROM:
Jurisdiction              :  STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram  :MR M SPILLANE (SENIOR MEMBER)
Citation  :MARTIN and WESTERN AUSTRALIAN PLANNING COMMISSION [2017] WASAT 102
File No  :DR 288 of 2016

Catchwords:

Planning and development - Subdivision - Priority agricultural land - Significant physical division - Rural road - State planning policies - Whether inflexible application of policy

Legislation:

Nil

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

First Appellant              :     Mr P G McGowan & Ms L E Rowley
Second Appellant          :     Mr P G McGowan & Ms L E Rowley
Respondent:     Dr S J Willey & Mr J M Misso

Solicitors:

First Appellant              :     Rowley Legal
Second Appellant          :     Rowley Legal
Respondent:     State Solicitor for Western Australia

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

Bookara Holdings Pty Ltd and Western Australian Planning Commission [2015] WASAT 111
Fewster and Western Australian Planning Commission [2007] WASAT 79
Marshall v Metropolitan Redevelopment Authority [2015] WASC 226
Martin and Western Australian Planning Commission [2017] WASAT 102
Re Romato; Ex parte Mitchell James Holdings Pty Ltd [2001] WASCA 286

CHANEY J: On 15 June 2015, the appellants applied to subdivide Lot 17 (213) Manear Road, Rosa Brook (Lot 17) into two lots. The respondent refused the subdivision application on 26 August 2016. The appellants lodged an application for review with the State Administrative Tribunal (Tribunal) pursuant to s 251(1) of the Planning and Development Act 2005 (WA) (PD Act). On 21 July 2017, the Tribunal, comprised of a senior member, dismissed the application for review and affirmed the respondent's decision to refuse the subdivision application.[1] The appellants then sought leave of this court, pursuant to s 105(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), to appeal against the Tribunal's decision. On 29 September 2017, Martino J ordered that the application for leave to appeal be heard together with the appeal.
[1] Martin and Western Australian Planning Commission [2017] WASAT 102.
Although the appeal notice set out two grounds of appeal, the second proposed ground of appeal was not pursued by the appellants, and after leave to amend the first ground of appeal was given at the hearing of the matter, the sole ground of appeal was that 'the Tribunal erred in law in inflexibly applying Development Control Policy 3.4 resulting in a dismissal of the application for review'.
For the reasons which follow, there is no merit in the proposed ground of appeal, leave to appeal should be refused and the appeal dismissed.

The application for subdivision

The Tribunal described the subject land and the locality as follows:
Lot 17 is within the locality of Rosa BrookRosa Glen in the Shire of AugustaMargaret River and is approximately 13 kilometres east of the Margaret River town centre.
Lot 17 has a total area of 23.8 hectares, and is divided into two portions by Manear Road. There is a 12.3 hectare portion on the northern side of Manear Road and 11.5 hectare portion on the southern side. There are two dwellings and associated outbuildings within each portion.
The locality is rural, with current productive agricultural activity including dairy, sheep grazing, viticulture and tree plantations. The road network from Margaret River is principally via Rosa Brook Road and Rosa Glen Road, which are sealed single lane rural roads. Manear Road is accessed via Low Road. Both Manear Road and Low Road are unsealed rural roads. The area has a variety of lot sizes, with the subject land being amongst the smallest.[2]
[2] Martin and Western Australian Planning Commission [5] ‑ [7].
The appellants' application was to subdivide the land in accordance with the plan of subdivision which is reproduced in Schedule 1 to these reasons. As can be seen, the proposal was to subdivide Lot 17 by creating separate lots in respect of each portion of Lot 17 on either side of Manear Road.
The application to the respondent was accompanied by a report by Halsall & Associates, Town Planning Consultants, dated June 2016 (Halsall Report). In the introduction to that report, it was 'acknowledged that the proposal is generally not in accordance with the planning framework given that the land is zoned "General Agriculture" '. Having made that acknowledgement, the report continued:
However, the land is not considered viable for agricultural land uses with only approximately 16.1 ha of usable farmland that is also divided by Manear Road. Further there are two existing dwellings on either side of Manear Road and as such the proposal is formalising the existing development and use of the land as separate properties.
The Halsall Report described the site and the proposed subdivision. It then discussed the applicable local planning scheme, local planning strategy, and applicable State planning policies, arguing that the proposed subdivision was appropriate notwithstanding some apparent inconsistencies with the relevant policies. The report dealt with a number of other considerations, including the proposition that previous examples where the respondent had supported subdivision of undersized lots provided a precedent for the appellants' proposed subdivision.
The Halsall Report concluded with a proposition that the characteristics of Lot 17 that lend support to the proposed subdivision are as follows:
•The lot is divided by Manear Road with approximately 12.3ha to the north and approximately 11.5ha to the south;
•The land is severed by Manear Road and as such there is a dwelling on both the northern and southern lots and associated outbuildings;
•The two parts of the property on either side of the road operate as two separate properties each serviced by a dwelling and associated services;
•The owner currently runs 24 head of cattle on the property and some of adjoining Lot 16 which is not sufficient for a viable operation;
•It is estimated that there is approximately 16ha of useable farmland; and
•The bend in Manear Road makes it unsafe to cross stock in this location despite it being a rural road.

The respondent's reasons for refusal

The respondent's reasons for refusal were as follows:
1.The proposed subdivision is inconsistent with the 'Priority Agriculture' zoning objectives and lot size requirements as set out by the Shire of Augusta‑Margaret River Local Planning Scheme No. 1. The objective of the Scheme is to retain existing large rural lots for broad‑acre and traditional forms of farming. Subdivision in the manner proposed does not demonstrate that the proposed lots have suitable land and water capability to support subdivision.
2.The proposed subdivision, with respect to the existing approved dwellings, is inconsistent with clause 4.16.2(b) of the Shire of Augusta‑Margaret River Local Planning Scheme No 1. The relevant clause excludes consideration of existing approved dwellings as justification for subdivision of rural land.
3.The proposed subdivision is inconsistent with the rural subdivision policies and lot size requirements as set out by the Shire of Augusta‑Margaret River Local Planning Strategy. The purpose and intent of this policy is to ensure that fragmentation of agricultural land is not supported without a demonstrated rural industry need and justified land capability. Subdivision in the manner proposed would create lots which are not a suitable size to carry out sustainable agriculture.
4.The proposed subdivision, with respect to the proposed 11 and 12ha lots, introduces rural‑residential and rural‑smallholding type development/land use into the locality, which is inconsistent with Development Control Policy 3.4 Subdivision of Rural Land. The policy requires that subdivision of rural and agricultural land for closer settlement be properly planned through the preparation of regional and local planning strategies and provided for in Local Planning Schemes.
5.The proposed subdivision, with respect to the presence of Manear Road, is inconsistent with the 'Significant physical divisions' guidelines contained in Development Control Policy 3.4 Subdivision of Rural Land which would not generally include commonly crossed rural roads or creeks, as a significant physical division.
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 seeks to prevent the adhoc fragmentation of rural land; requires rural residential subdivision to be permitted only on land which is appropriately zoned; and avoid land use conflict from adjoining incompatible rural living uses.
7.Approval to the subdivision would set an undesirable precedent for the further subdivision of surrounding lots.

The application for review by the Tribunal

The grounds of the appellants' application for review by the Tribunal were set out in the Tribunal's reasons. The grounds were:
The land is approximately 23.78 ha and is currently divided by a public road known as Manear Road. There are currently two existing dwellings on the land, which are located on either side of Manear Road. Being comprised of two district parcels of land separated by a public road, with one house on each parcel, no change in the planning outcome will be brought about by the fact of the subdivision. On the merits, the subdivision of the land should be approved regardless of the policies referred to in refusal reasons 1 to 6 (inclusive). As to the refusal reason 7, the subdivision does not give rise to a change to the planning outcome and as such does not set an undesirable precedent.[3]
[3] Martin and Western Australian Planning Commission [3].
For the purposes of the hearing, documents were provided to the Tribunal by the respondent in accordance with s 24 of the SAT Act, being the documents or other material in the respondent's possession or under its control relevant to the Tribunal's review of the decision. Those documents comprised the respondent's decision letter, the Halsall Report with its attachments, the proposed plan of subdivision, and the relevant planning schemes, policies and other planning resource documents.
The appellants submitted two witness statements for the hearing. One was a statement of the first appellant, Mr Darren Owen Martin, and the other was a statement by Mr George Andrew Herwig, an engineering surveyor with experience in providing consultancy to local government in the technical services or engineering fields.
Mr Martin explained that Lot 17 was formerly part of a larger lot and that in the early 2000s he and his wife, the second appellant, subdivided the larger lot to excise a northern portion creating Lot 17 and Lot 13, which also fronts Manear Road. Mr Martin also produced a horticultural report (Horticultural Report) that had been submitted with the subdivision application in respect of the larger lot in the early 2000s, and a number of pages of a water supply report (Water Supply Report) also submitted at that time. The whole Water Supply Report was not submitted apparently because Mr Martin was only able to locate some pages of the report.
Mr Herwig's witness statement dealt with issues concerning the nature, use and safety of Manear Road, being matters relevant to a question arising as to whether Manear Road is a significant physical division of Lot 17, as that expression is used in Development Control Policy 3.4 - Subdivision of Rural Land (DC 3.4).

The respondent's evidence before the Tribunal

The respondent produced evidence from one witness, Ms Katina Joy Marchbank, a senior planning officer at the Department of Planning. After an introductory review of the grounds of review, the subject land, and the locality, Ms Marchbank noted that the statutory framework applying to the subdivision application included the PD Act and the Planning and Development Regulations 2009 (WA) (PD Regulations). She then undertook an analysis of what she considered to be the provisions relevant to the subdivision application in various planning instruments, being:
(a)State Planning Policy No 1 - State Planning Framework Policy (SPP 1);
(b)Draft State Planning Policy No 1 - State Planning Policy (Draft SPP 1);
(c)State Planning Policy 2.5 - Agricultural and Rural Land Use Planning (SPP 2.5);
(d)DC 3.4;
(e)Shire of Augusta‑Margaret River Town Planning Scheme No 1 (TPS 1); and
(f)Shire of Augusta‑Margaret River Local Planning Strategy (LPS).
Ms Marchbank then addressed what she considered to be the planning issues, expressing an opinion that approval of the proposed subdivision would be contrary to orderly and proper planning for reasons which she explained, having regard to various provisions of State planning policies or the TPS 1 and LPS. She expressed an opinion that approval of the proposed subdivision would set an undesirable precedent. She then addressed the proposition found in the appellants' grounds of review that no change in planning outcome would be brought about by the fact of the subdivision. She set out seven reasons why, in her opinion, approval of the subdivision had the potential to change a number of planning outcomes. They were as follows:
111.First, if the subdivision was approved, it would change the planning outcome for the subject land by exacerbating the fragmentation of land. The planning outcomes sought by SPP 2.5, DC 3.4, the LPS and TPS 1 is to retain rural land, and priority agriculture land in particular, in larger land parcels to maintain flexibility and adaptability to industry and market changes, in perpetuity. If the subdivision was approved, the planning outcome of protecting priority agricultural land in large land parcels would change, which potentially undermines future rural industry by reducing the flexibility and opportunity for such industry to be established.
112.Second, if the subdivision was approved, it would change the planning outcome for the subject land by sterilising priority agriculture land. The planning outcome sought by SPP 2.5, DC 3.4, and LPS and TPS 1 is that the productive capability of priority agriculture land is protected and enhanced for the long term. These rural policies seek farm rationalisation as a way to enhance productivity. The more fragmented priority agriculture land is, the more fragmented too is the land ownership, which makes it much more difficult to coordinate farm rationalisation or joint venture agreements. If the subdivision was approved, the planning outcome of enhancing priority agriculture land would change, because it may result in loss of opportunity to utilise priority agriculture land in the future.
113.Third, if the subdivision was approved, it would change the planning outcome for the subject land as proposed land use changes may more readily achieve discretionary approval. The zoning table in TPS 1 allows discretion to approve development of a range of non-rural uses on priority agriculture zoned land, such as tourist accommodation (bed and breakfast, chalets, guest houses and holiday houses), breweries, restaurants, cafes, markets, cottage industry and home business (section 24 bundle pages 83 - 85).
114.The TPS 1 provisions for development on the priority agriculture zoned land require applicants to demonstrate that a proposal would not reduce the area of agriculture uses (clause 4.16.3(d)), or, would not have an adverse effect on rural production activities (clause 4.16.3(e)(i), or, that the primary use of the land will remain for agricultural pursuits (4.16.4(a) (section 24 bundle page 92 ‑ 95B).
115.If the subject land is further fragmented, each lot on its own may not facilitate a particular rural pursuit, and an alternative non‑rural commercial pursuit may be more attractive. In that instance, in my opinion, it is likely that future development proposals for non‑rural pursuits on the subdivided lots would more readily demonstrate that development would not have an adverse impact on an existing rural pursuit on the land (for the purposes of the criteria in clause 4.16.3 of TPS 1). Therefore, approval of the proposed subdivision would change the planning outcome for the subject land because the land use is more likely to change to non‑rural land uses.
116.Fourth, approval of the proposed subdivision would change the planning outcome for the subject land as any proposed land use changes for each lot would be assessed and dealt with separately. This would result in potentially different non‑rural uses achieving discretionary approval on each lot. This might create a cluster of non‑rural uses, which then provides justification for the subdivision of adjoining or adjacent lots.
117.Fifth, if the subdivision was approved, it represents the ad hoc and unplanned introduction (or formalisation through subdivision) of rural living uses in the locality. The planning outcome sought by SPP 2.5 and DC 3.4 is that rural living uses must be designated in a local planning strategy, scheme or structure plan. The existing development is not an existing rural living use, and the subject land is not identified in the LPS or TPS 1 for rural living. The subject land is in a rural zone and is classified as priority agriculture. TPS 1 contemplates the possibility of two dwellings on a priority agriculture zoned lot (section 24 bundle, page 83). The existing development merely comprises two dwellings on priority agriculture zoned land. If the subdivision was approved, the planning outcome of two dwellings on a priority agriculture zoned lot would change to two rural living style lots.
118.Sixth, if the subdivision was approved, it would change the planning outcome for the subject land, as an additional ancillary dwelling may achieve discretionary approval on each new lot under TPS 1 clause 5.28 (section 24 bundle page 126). Clause 4.16.2(a)(ii) of TPS 1 generally excludes ancillary dwellings from the usual 'one dwelling per lot' provision (section 24 bundle page 93). The number of individual dwellings on the subject land may therefore increase from two to four. In my opinion, if the subdivision was approved, the planning outcome of two dwellings on a priority agriculture zoned land may result in cumulative planning outcome changes of four dwellings on the subject land.
119.Seventh, if the subdivision was approved, it has the potential to change the planning outcome for the broader locality. If there is either a change to non‑rural commercial uses or there are additional dwellings on the subject land, it may be detrimental to adjoining or adjacent land being productively used for rural activities. The introduction of non‑rural uses or additional dwellings has the potential to create (sic) for land use conflict. For example, it might not be possible for others to achieve sufficient setback, separation distances or buffers for agricultural land use impacts such as spray‑drift or odour. For these reasons, in my opinion, approval of the proposed subdivision would lead to fundamental changes to the planning outcomes for the subject land and the locality.

The hearing before the Tribunal

At the Tribunal hearing, the appellants were represented by an agent, Mr McKellar. The matter had proceeded to hearing without any formal identification of the issues to be dealt with at the hearing other than the grounds of appeal. Neither party made opening submissions. Mr McKellar, however, said at the outset:
Well the primary case for the applicant is that if it's approved the planning situation doesn't alter to the extent where a refusal is warranted. In addition there is an exception in the policy regarding dividing roads. So we're relying on that as well.[4]
[4] ts 5.

Each of Ms Marchbank, Mr Martin and Mr Herwig were then called and cross‑examined.
The senior member sought clarification from Mr Martin as to the circumstances of the earlier subdivision application and his present farming activity. Mr Martin agreed with the senior member that the only reason he was seeking subdivision was 'the boundary or the crossing between' the two proposed lots. In cross‑examination he agreed that the land comprising Lot 17 was, contrary to what was said in the Halsall Report, viable in relation to intensive agricultural use.[5]
[5] ts 80.

The Tribunal's decision

After setting out the background and the respondent's reasons for refusing the subdivision application, the Tribunal noted that no statement of issues, facts and contentions had been prepared in the matter and neither party made any opening statement. The Tribunal referred to Mr McKellar's identification of the case for the appellants set out above. Based on that explanation, and the submissions and evidence at the hearing, the Tribunal identified two issues to be determined, namely:
Issue No 1
Should Manear Road, which divides the applicant's current holding and which is an unsealed rural road, be considered a significant physical division, as described in the Development Control Policy 3.4 – Subdivision of Rural Land (DC 3.4), such as to be considered an exceptional circumstance?
Issue No 2
Should the proposed subdivision be approved in any event regardless of the policies referred to in the respondent's reasons for refusal 1 to 6 (inclusive)?[6]
[6] Martin and Western Australian Planning Commission [11].
The Tribunal then set out pars 19 to 44 of Ms Marchbank's statement of evidence which summarised the relevant policies. In relation to DC 3.4, Ms Marchbank's evidence was set out in pars 33 to 38 of her statement as follows:
33.The general policy measures of DC 3.4 when determining subdivision proposals on rural land provide as follows:
(a)the creation of new or smaller lots will be by exception;
(b)proposals will be considered against strategies and schemes;
(c)adequate buffer distances for sensitive and/or incompatible land uses can be achieved; and
(d)proposals will be assessed against any relevant State planning policies and/or operational policies.
34.The exceptional circumstances for rural subdivision, set out in section 6 are:
(a)to realign lot boundaries with no increase in the number of lots, where the resultant lots will not adversely affect rural land uses;
(b)to protect and actively conserve places of cultural and natural heritage;
(c)to allow for the efficient provision of utilities and infrastructure and/or for access to natural resources;
(d)in the Homestead lot policy area (Appendix 2), to allow for the continued occupation of existing homesteads when they are no longer used as part of a farming operation; and
(e)for other unusual or unanticipated purposes which, in the opinion of the WAPC, do not conflict with this and other relevant policies and are necessary to the public interest.
35.Section 6 says that 'although the WAPC seeks to minimise the creation of new or smaller lots, there are some circumstances where subdivision may be appropriate ...', and identifies six policy standards:
(i)significant physical divisions;
(ii)subdivision for other purposes;
(iii)property rationalisation to improve land management;
(iv)conservation of heritage buildings and places;
(v)conversation of biodiversity and natural heritage; and
(vi)homestead lots.
36.Of these standards, I consider the only two with potential relevance for the proposed subdivision are significant physical divisions and subdivision for other purposes.
37.In relation to significant physical divisions, section 6.1 of DC 3.4 states:
The existing physical division of a lot by a significant natural or constructed feature may be formalised through subdivision. The physical division in itself however, does not warrant the creation of additional or smaller lots. A significant physical division would include, but not be limited to, a controlled access highway or a river but would not generally include minor barriers such as rural roads or creeks that are commonly crossed for farm management purposes.
The WAPC may support boundary realignment where a rural property comprises multiple small titles and there is scope to resolve the physical division by rationalising multiple lots in one ownership through boundary realignments, without creating additional lots.
Lot boundaries that result in encroachments may be corrected through minor boundary realignments, provided the realignments do not adversely affect environmentally sensitive areas or create additional or smaller lots.
38.In relation to subdivision for other purposes, section 6.2 states:
New lots for existing or proposed land uses such as recreation facilities, public utilities, rehabilitation of degraded land, extractive industries, or uses necessary to the rural use of the land, such as abattoirs and processing works (including buffers), may be created through subdivision. The WAPC may approve subdivision for these purposes if a development approval has been granted, or where development of the intended land use has substantially commenced. Where appropriate the WAPC may preclude sensitive land uses on the new lot(s).
The existence or approval of an ancillary dwelling, aged persons' dwelling or farm workers' dwelling is not a satisfactory justification for subdivision, except as provided for in clause 6.6.
The Tribunal then turned to Issue No 1. The senior member reviewed the evidence of Mr Herwig, which went to that issue, and the opinions expressed by Ms Marchbank as to whether Manear Road could be considered a significant physical division. The senior member examined a number of previous decisions of the Tribunal in relation to that provision of DC 3.4 which dealt with the question of whether rural roads could be considered significant physical divisions for the purpose of the policy. The thrust of those decisions was to the effect that such roads did not constitute significant physical divisions. At [38] of its reasons, the Tribunal concluded:
Based on the evidence before it, the Tribunal is not in any way satisfied that Manear Road is a 'significant physical division' as referred to in DC 3.4 such that it would create exceptional circumstances where the normal policies guiding subdivision of rural land should not apply.
Having done so, the Tribunal turned to Issue No 2. It noted that, despite the large number of statutory planning instruments relevant to the application, the appellants had called no planning evidence. It referred to the Halsall Report, noting that 'little or no reference was made to the Halsall Report and nobody was called to introduce, support, talk to or be tested on that report'. In those circumstances, the Tribunal indicated that it was not willing to give any weight to the Halsall Report. The Tribunal made reference to the Horticultural Report and the Water Supply Report which it took to be designed to support Mr Martin's evidence that both the northern and southern portions were viable for horticultural use. The Tribunal noted, however, that both the Horticultural Report and the Water Supply Report were nearly 16 years old and were prepared for the purpose of an earlier subdivision, and that neither of the authors of the reports were called to speak to those reports. It noted that there was no update or expert evidence as to what may or may not have changed in the intervening 16 years. In the circumstances, the Tribunal was not willing to give either of those reports any weight.
The Tribunal then observed that the only planning evidence before the Tribunal in respect to Issue No 2 was that of Ms Marchbank. It referred to the seven reasons proffered by Ms Marchbank as to why there would be a change in planning outcomes if the application were approved.
Having referred to that evidence, the Tribunal addressed the role of the planning instruments and established planning policies in the decision‑making process on a subdivision application. No challenge is made to the statements of principle as explained by the Tribunal. At [51] to [56] of its reasons, the Tribunal said:
51In Niroda Holdings Pty Ltd and Western Australian Planning Commission [2017] WASAT 57 at [40] the Tribunal confirmed that the respondent 'has the central role in managing the process by which individuals can subdivide land and acquire new titles' and as outlined earlier there are a large number of detailed, longstanding and wellestablished policies and planning instruments to guide both the respondent and this Tribunal when considering subdivision applications.
52As stated by the Tribunal in Fewster and Western Australian Planning Commission [2007] WASAT 79 (Fewster) at [36]:
'The planning framework that has been formulated in regards to the subdivision of rural land both at State and local level is soundly based on key principles and objectives to establish future planning direction which provides the context for decision-making. The overarching objective embodied in all of the planning instruments relevant to this matter underlines the protection of agricultural land by ensuring the continued use of rural land for productive agricultural purposes. The State planning policies advocate a general presumption against subdivision of rural land to safeguard against further fragmentation of rural land unless specifically planned for through the use of appropriate planning mechanisms to achieve co-ordinated development.'
53Also, bearing in mind the test articulated by his honour Barker J in Ingram & Anor v Western Australian Planning Commission [2003] WASCA 77 (Ingram), an important question in rural subdivision applications is whether the subject land which has productive capacity for agricultural production would be lost as a resource.
54Furthermore, an inflexible approach to the application of policy without considering site specific factors would involve an error of law: Re Romato; Ex parte Mitchell James Holdings Pty Ltd [2001] WASCA 286 at [26] to [28]; Marshall v Town Planning Appeal Tribunal of Western Australia [2004] WASCA 202 at [41].
55In Mitchell and City of Subiaco [2008] WASAT 230; (2008) 59 SR (WA) 198 the Tribunal stated at [34]:
'… an adopted policy is expected to guide the exercise of discretion not replace discretion. Policy is not to be inflexibly applied. The relevant consideration is why the policy should not be applied: Clive Elliott Jennings and Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433 at [24].'
56In Bookara Holdings Pty Ltd and Western Australian Planning Commission [2015] WASAT 111 (Bookara) a matter also dealing with a small rural subdivision similar to the present matter, addressed the issue of planning policies and the weight to be afforded to them and at [29] stated:
'… the Tribunal is required to have due regard to relevant planning considerations including any State planning policy which may affect the subject matter of the application: s 241 of the PD Act. The weight that is given to any particular policy provision will depend on a number of factors as identified by the Tribunal in Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100; (2005) 39 SR (WA) 119 at [51]. It is also necessary to remember that, subject to matters of weight, the State planning policies and the respondent's policies must not be inflexibly applied. Policies are expected to guide decisionmaking and will generally be applied, but consideration must be given to whether there is some exceptional reason why a policy should not be applied in a particular case: Clive Elliot Jennings[.]'
Further, at [34] in Bookara, in dealing with the two principal policies under consideration in this matter, although it is noted that it was the 2012 iteration of Policy DC 3.4 (which for the purposes of this matter is of no moment) the Tribunal stated:
'The clear policy position as specified in SPP 2.5 and DC 3.4 - 2012 is that as a general rule, the subdivision of rural land in an unplanned, ad hoc way, should not be allowed: see clause 3.2, 4 and clause 5.1 of SPP 2.5; clause 1, clause 2, and clause 5 of DC 3.4 2012. There is a presumption against subdivision of rural land identified in the policies and the specific exceptions to that presumption identified in the policies have narrowed in their most recent iterations; clause 5 and clause 6 of DC 3.4 2012. The proper approach to considering the applicant's subdivision proposal is to apply these policies and determine whether any of the specific circumstances identified by the policies as providing a basis for subdivision apply. If they do not, it is then necessary to consider whether there are any reasons why the general policy position should not be applied in this case.'
This Tribunal agrees with and adopts that approach in this matter.
Counsel for the appellants accepted as correct the passage at [34] in Bookara Holdings Pty Ltd and Western Australian Planning Commission[7] which is set out above. That passage includes the proposition that the proper approach was to apply the relevant policies and determine whether any of the specific circumstances identified by the policies as providing a basis for subdivision applied. If not, it was then necessary to consider whether there are any reasons why the general policy position should not be applied in the case at hand. That was the approach which the Tribunal accepted and indicated that it adopted, and in my view, reflects the correct approach to the task with which the Tribunal was confronted.
[7] Bookara Holdings Pty Ltd and Western Australian Planning Commission [2015] WASAT 111 (Bookara Holdings).
After completing that analysis, the Tribunal said:
Based on the Tribunal's findings in respect of Issue 1 namely that Manear Road is not a significant physical division so as to create exceptional circumstances under DC 3.4, the Tribunal must now look at whether the proposed subdivision should be approved in any event and whether there is any other reason why the general policy position should not be applied in this case. This is despite the fact outlined earlier that in answer to the question 'what are the reasons for subdivision?', Mr Martin confirmed, 'just the division of the property access from one to the other' (T:76; 22.02.17).[8]
[8] Martin and Western Australian Planning Commission [57].
The Tribunal then referred to Mr McKellar's statement in opening that the primary case for the appellants was that if the subdivision application was approved, 'the planning situation doesn't alter to the extent where a refusal is warranted'. That statement reflected the reference in the grounds of review to there being 'no change in the planning outcome' being 'brought about by the act of the subdivision'. The Tribunal examined the evidence in relation to that proposition, noting that Mr Herwig's evidence related only to Issue No 1. The Tribunal referred to Mr Martin's evidence as to the fact that the northern portion of the land had been leased for use for hay production and his references to the Horticultural Report and the Water Supply Report which, for reasons previously given, the Tribunal placed no weight. The Tribunal contrasted Ms Marchbank's evidence which expressly addressed the potential for changes in planning outcomes in the event that the subdivision was approved. Having earlier accepted Ms Marchbank's evidence and noting that 'there was no evidence from the applicant, planning or otherwise, to support an application that appears to be a clear departure from long established policies' the Tribunal concluded that there was no reason why the general policy position should not be applied, having regard to the approach stipulated in Fewster and Western Australian Planning Commission[9] and Bookara Holdings, and to the statement of Pritchard J in Marshall v Metropolitan Redevelopment Authority.[10] The Tribunal said:
Further, as stated by Pritchard J in Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 at [182]
' ... If the exercise of discretion is to be an orderly one, the planning principles identified as relevant to an application should not be lightly departed from without the demonstration of a sound basis for doing so, which basis is itself grounded in planning law or principle.'
and by the Tribunal in Fewster at [36]:
' ... The State planning policies advocate a general presumption against subdivision of rural land to safeguard against further fragmentation of rural land unless specifically planned for through the use of appropriate planning mechanisms to achieve co‑ordinated development.'
And again in Bookara at [29]:
'Policies are expected to guide decision‑making and will generally he applied, but consideration must be given to whether there is some exceptional reason why a policy should not be applied in a particular case.'[11]
[9] Fewster and Western Australian Planning Commission [2007] WASAT 79.
[10] Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 [182].
[11] Martin and Western Australian Planning Commission [72].
The Tribunal concluded by saying:
Therefore, where there is an overriding presumption in favour of minimising ad hoc fragmentation of rural land the Tribunal is not prepared to approve the proposed subdivision which is, in the Tribunal's view, on the evidence before it, a clear divergence from well‑established and longstanding policies.[12]
[12] Martin and Western Australian Planning Commission [75].

The ground of appeal

As earlier noted, the sole ground of appeal was that the Tribunal erred in law in inflexibly applying DC 3.4, which resulted in the dismissal of the application for review.
It is well‑established that an inflexible approach to the application of policy, which treats policy as determinative of the outcome of the exercise of discretion to approve or refuse a development application, would amount to an error of law. The Tribunal made express reference to that proposition at [54] of its reasons, citing as authority Re Romato; Ex parte Mitchell James Holdings Pty Ltd.[13] In that case, McLure J, after stating that a policy which fetters all or part of as discretion is unlawful, continued:
However, where a decision‑maker adopts a policy, it is entitled to apply that policy provided applicants are given an opportunity to show that there are exceptional reasons why it should not be applied in their case.[14]
[13] Re Romato; Ex parte Mitchell James Holdings Pty Ltd [2001] WASCA 286.
[14] Re Romato; Ex parte Mitchell James Holdings Pty Ltd[28].
As earlier noted, the appellants do not contend that the statements of applicable principle by the Tribunal were in any way wrong. As I apprehend the appellants' contention, it is that having stated the correct principles, the Tribunal then erred in their application by taking an inflexible approach to DC 3.4. That contention is advanced notwithstanding that the Tribunal identified Issue No 2 as being whether the proposed subdivision should be approved regardless of the policies referred to in the respondent's reasons for refusal (1) to (6), which included references to the provisions of DC 3.4. It is also advanced notwithstanding that after its analysis of the applicable principles contained in [51] ‑ [56] of its reasons set out above, the Tribunal said that, having regard to its finding in respect of Issue No 1:
[T]he Tribunal must now look at whether the proposed subdivision should be approved in any event and whether there is any other reason why the general policy position should not be applied in this case.[15]
[15] Martin and Western Australian Planning Commission [57].

The appellants note, correctly, that the discretion to approve or refuse subdivision arises under s 135 of the PD Act. The discretion is unfettered save that it must be exercised having regard to the scope and purpose of the PD Act. Regulation 21 of the PD Regulations identifies matters to be considered on an application for subdivision. That regulation provides:
Matters to be considered on application for subdivision
When considering a section 135 application, the Commission must have regard to all relevant matters including but not limited to these ‑
(a)the size, shape and dimensions of each lot;
(b)the services available to each lot;
(c)drainage of the land;
(d)access to each lot;
(e)the amount of public open space to be provided;
(f)any relevant planning scheme;
(g)any relevant regulations made by the Minister under the Act;
(h)any relevant local laws relating to town planning.
As I understand the appellants' argument, it is that by identifying and dealing first with Issue No 1, the Tribunal was treating DC 3.4 as determinative of the application. Rather, the appellants argue, the Tribunal should have simply had regard to all relevant factors to determine whether the subdivision should be approved. The appellants accept, as they must, that the Tribunal was required, by s 241 of the PD Act, to have due regard to relevant planning considerations, including any State planning policy that may affect the subject‑matter of the application. They accept, therefore, that amongst the relevant considerations to be considered were the relevant State planning policies, including DC 3.4. They also accept that the effect of SPP 2.5 and DC3.4 is that, as a general rule, the subdivision of rural land in an unplanned, ad hoc way, should not be allowed. That policy position emerges from cl 5 of SPP 2.5 and cl 5(d) of DC 3.4, which specify that proposals for subdivision will be assessed against relevant State planning policies.
Nor do the appellants dispute that both SPP 2.5 and DC 3.4 have a clear presumption against subdivision of rural land except in certain specified circumstances. While the appellants submitted that the Tribunal ought to have had regard to all relevant circumstances rather than focusing on the application of policy, it is not a ground of appeal that the Tribunal failed to have regard to any relevant matter that it was obliged to take into account. When pressed on what were the relevant matters which should have been the subject of consideration along with the policies, counsel for the appellants referred to a section of his written outline of submissions under the heading 'Relevant Factors'.[16] Some of those paragraphs are in the nature of submission rather than identifying any factor to which the Tribunal should have regard. In essence, the relevant factors are said to be:
(i)The land had been previously subdivided on two occasions so that the area of Lot 17 was 23.8 ha, which is considerably below the 40 ha figure referred to in TPS 1.
(ii)There were two dwellings and associated out buildings within each of the portions on either side of Manear Road.
(iii)The only evidence as to the use to which the land could be put was Mr Martin's evidence that the proposed lots could be used for horticulture.
[16] Outline of first and second appellants' submissions [29] ‑ [38].
In relation to those matters, it can be noted that the Tribunal made reference to the earlier subdivisions of the land in the context of its consideration of Issue No 1.[17] Although in her evidence Ms Marchbank referred to the stipulation in cl 4.16.5(c) of TPS 1 that subdivisions in priority agriculture and general agriculture zones proposing lots of less than 80 ha would not be supported except where the lot is a minimum of 40 ha and a number of specified criteria are met, the Tribunal did not expressly rely on that provision as a basis to refuse the subdivision. Rather, in context, TPS 1 was relevant merely as being consistent with the relevant statements of planning policy.
[17] Martin and Western Australian Planning Commission [31] ‑ [33].
With respect to the second matter, the Tribunal expressly acknowledged that there were two dwellings and associated buildings, each a portion of the proposed subdivision.[18]
[18] Martin and Western Australian Planning Commission [6].
As to the third matter, the Tribunal referred to Mr Martin's evidence that the land was viable for intensive horticultural use. It can be noted that the Horticultural Report prepared in relation to the subdivision which created Lot 17 also concluded, contrary to the view expressed in the Halsall Report, that what was to become Lot 17 was suitable for a variety of horticultural activities, albeit the soil types differed between the portions of Lot 17 north and south of Manear Road respectively.
In considering whether the Tribunal erred in law in the manner in which it approached the issues before it, it is necessary to return to the way the case was presented. The opening statement to the Tribunal by the appellants' agent clearly identified two issues. They were the issues as reframed by the Tribunal, albeit in reverse order. Issue No 2 broadly encompassed the various matters referred to in the grounds of review.
The appellants had adduced evidence from Mr Herwig going to the issue of whether the exception to the general policy provision in relation to significant physical divisions was applicable. If the appellants could bring themselves within an exception to the general presumption against subdivision, their proposal would then not be inconsistent with DC 3.4. It was obviously an important issue which the Tribunal needed to deal with. The approach of the Tribunal in dealing first with the question of whether or not that the proposal came within a prescribed exception is entirely consistent with what was described in Bookara Holdings as the proper approach, an approach with which, as I have noted above, I agree.
The fact that the existence of an exception to DC 3.4 was dealt with first does not lead to a conclusion that the Tribunal was treating DC 3.4 as determinative of the application. The Tribunal's formulation of Issue No 2 demonstrates that it did not consider that to be the case.
The fact that, in dealing with Issue No 2, the Tribunal focussed mainly on whether the proposed subdivision may lead to an altered planning outcome is hardly surprising. That is because both the grounds of appeal and the statement of issues by Mr McKellar at the beginning of the hearing identified the question of planning outcomes as the central issue. It was that issue which the appellants argued provided a reason to depart from the general policy position. In the event, the Tribunal weighed the evidence on that issue, and reached a determination based upon the acceptance of Ms Marchbank's evidence. It cannot fairly be said that the Tribunal somehow considers itself bound to dismiss the application by reason of its conclusion as to the planning outcomes of the proposal having regard to the relevant policies. Rather, the Tribunal considered that it should exercise its discretion consistently with the application of the relevant policies, including DC 3.4, and that no reasons had been advanced by the appellants to do otherwise.
In the course of oral submissions, counsel for the appellants made submissions which tended to infer that DC 3.4 was invalid on the basis that it constrained the exercise of discretion in a way not contemplated by the PD Act or reg 21 of the PD Regulations. To the extent that suggestion was made, it was entirely without merit, and flies in the face of well‑established authority. Regulation 21 requires the relevant decision‑maker to have regard to 'all relevant matters'. Applicable State planning policies are clearly relevant to an application for subdivision. The respondent and the Tribunal (by s 241 of the PD Act if not by reg 21 of the PD Regulations) are obliged to have regard to those policies.
A number of other criticisms of the Tribunal's decision were contained in the appellants' written outline of submissions. Many of those matters relate to the merits of the Tribunal's decision. The criticisms form no part of the ground of appeal, nor could they constitute grounds of appeal because they do not involve questions of law. It is not therefore necessary for me to deal with those submissions.

Conclusion

For the foregoing reasons, I am of the view that the ground of appeal lacks merit, and leave to appeal should be refused. The appeal should be dismissed.

SCHEDULE 1