MAZZARDIS and WESTERN AUSTRALIAN PLANNING COMMISSION
[2007] WASAT 87
•20 APRIL 2007
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: MAZZARDIS and WESTERN AUSTRALIAN PLANNING COMMISSION [2007] WASAT 87
MEMBER: MR J JORDAN (MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 20 APRIL 2007
FILE NO/S: DR 302 of 2006
BETWEEN: VINCENT MAZZARDIS
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Town planning - Subdivision refusal - Rural zoning - Rural zoning - Policy presumption against subdivision of rural land - Existing orchard sue - Isolated location - Precedent - Additional matters to be considered - Exception to general policy
Legislation:
City of Wanneroo District Planning Scheme 2, cl 3.16.1
Planning and Development Act 2005 (WA)
Shire of Gingin Draft Local Planning Strategy, cl 4.1, cl 4.2
Shire of Gingin Draft Town Planning Scheme 9, cl 4.2.5, cl 5.11.3, Table 1
Shire of Gingin Town Planning Scheme 8, cl 3.1.3(g), cl 5.8.1, Appendix 1, Table 1
Result:
Application allowed
Subdivision approved subject to conditions
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Mr M Logan (Acting as Agent)
Solicitors:
Applicant: Self-represented
Respondent: Western Australian Planning Commission
Case(s) referred to in decision(s):
Aspen Pty Ltd and State Planning Commission (Unreported, Appeal No 13 of 1988
Sumner Nominees Pty Ltd and Swan River Trust [2006] WASAT 168
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Mr Vincent Mazzardis applied to subdivide the family property, Lot 2818 on Wanneroo Road, Wilbinga. Proposed were a 10 hectare lot containing orchards and a 21.9 hectare lot on which a family member would continue to develop a netted stone fruit breeding nursery.
The Western Australian Planning Commission refused the application. The proposed subdivision was considered to be inconsistent with the objectives of the rural zoning and the general presumption against further subdivision of rural land.
The Tribunal found that, in this instance, because of the location of the land and because the proposal could be distinguished from proposals for the subdivision of general rural land there was a case for allowing the proposed lots to be created. The application was therefore allowed and the subdivision approved.
Introduction
This is an application by Mr Vincent Mazzardis (applicant or Mr Mazzardis), for review of the refusal by the Western Australian Planning Commission (respondent) to approve the subdivision of Pt Swan Location 2818 Wanneroo Road, Wilbinga, Shire of Gingin (subject land). Mr Mazzardis filed the application on behalf of the owners, which are himself, BA and VDA Mazzardis as tenants‑in‑common.
The site and location
The subject land has an area of 31.9 hectares and a frontage of 377.47 metres to Wanneroo Road at the eastern end. It is one of five lots in a discrete pocket of rural zoned land surrounded on all four sides by land reserved for State forest. The southern boundary of the subject land coincides with the boundary between the Shire of Gingin (Shire or Council) and the City of Wanneroo. To the east, across Wanneroo Road, is a 6.5 hectare lot previously excised from the original Swan Location 2818. Adjoining the southern boundary within the City of Wanneroo are three rural lots of similar size to the subject land. About 1 kilometre to the south‑west beyond the State forest is the eastern edge of a rural community zone within which lots are generally 2 hectares in area. Rural lots are located about 5.5 kilometres to the north and beyond that about 13 kilometres from the subject land.
The proposed subdivision
The proposed subdivision of the subject land would create a 10 hectare lot adjacent to the northern boundary with a frontage of 190 metres to Wanneroo Road. This lot would contain one of the two houses on the land, together with a developing avocado and mango orchard and an early, low chill peach and nectarine orchard. The remainder of the land, 21.9 hectares, would have on it the existing second house and two sheds together with a 5 hectare netted orchard and breeding nursery, described as a breeding facility for early, low chill, peach and nectarine varieties said to be the only one in Western Australia and one of the leading facilities in Australia.
Planning framework
The subject land is zoned "rural" under the Metropolitan Region Scheme (MRS) and Shire of Gingin Town Planning Scheme No 8 (TPS 8). Clause 3.1.3(g) of TPS 8 provides that the purpose and intent of the rural zone is:
"... to provide land for the range of normal rural activities conducted in the Shire and protect such land from inappropriate uses."
Appendix 1 of TPS 8 sets out interpretations. The use made of the subject land best fits the definition:
"Irrigated horticulture: means the use of land for any purpose set out hereunder and the use of buildings normally associated therewith:
(a)the growing under irrigation of, berries, vegetables or fruit, except for personal use;
(b)the growing under irrigation of vines, trees, plants, shrubs or flowers for re‑planting, except for personal use; ..."
The lots adjacent to the southern boundary of the subject land are within the City of Wanneroo District Planning Scheme No 2 (Wanneroo DPS 2) and are in the general rural zone. Clause 3.16.1 of Wanneroo DPS 2 provides that the objectives of the general rural zone are to:
"(a)accommodate agricultural, horticultural and equestrian activities;
(b)maintain and enhance the rural character and amenity of the areas designated for rural use and to protect their groundwater and environmental values."
In June 2004, the Shire adopted Draft Town Planning Scheme 9 (draft TPS 9), and Draft Local Planning Strategy (draft LPS) to provide a strategic basis for draft TPS 9. These are discussed further below.
The respondent, in its submissions, also referred to:
•State Planning Policy No 2.5 "Agriculture and Rural Land Use Planning" (SPP 2.5);
•Policy DC3.4 – Subdivision of Rural Land (DC 3.4);
It is common ground that the subject land is located within a Priority 2 source protection area of the Gnangara Underground Water Pollution Control Area. State Planning Policy No 2.2 – Gnangara Ground Water Protection (SPP 2.2) is to be amended to show this. The respondent advised the applicant in September 2005 that the use made of the subject land, with conditions, was compatible within a Priority 2 source protection area. SPP 2.2 provides that subdivision can be considered in certain circumstances in a Priority 2 area. Significantly, the four other lots in this rural pocket are in the Priority 1 source protection area. SPP 2.2 states that in a Priority 1 area land use is to be low risk and low intensity such as forestry and that there is a presumption against subdivision.
The refusal
In its letter of 21 August 2006, in response to a request for reconsideration, the respondent maintained its refusal of the proposed subdivision. The reasons listed were:
"1.The proposed subdivision is inconsistent with the 'Rural' zoning of the land, the principle [sic] purpose of which is to preserve its rural use and density of development. The subdivision, if permitted, would result in an unplanned breakdown of land holdings.
2.The proposed subdivision is contrary to Commission Policy 3.4 – Subdivision of Rural Land, a provision of Statement of Planning Policy No.1, by reason that the subdivision is located in a rural zone where there is a general presumption against further subdivision.
3.Approval to the subdivision would set an undesirable precedent for the further subdivision of surrounding lots."
The issue
The issue in this matter is whether, in the particular circumstances, the proposed subdivision can be supported in the light of the general policy presumption against the subdivision of rural zoned land.
Discussion
The proposed subdivision and the planning instruments
The respondent's SPP 2.5 applies to planning and rural land in Western Australia. The respondent referred to the key objectives of SPP 2.5, the most relevant of which is considered to be:
"4.1.Protect agricultural land resources wherever possible by:
(a)discouraging land uses unrelated to agriculture from locating on agricultural land;
(b)minimising the ad hoc fragmentation of rural land; and
(c)improving resource and investment security for agricultural and allied industry production."
Also referred to was cl 5.3.1(iii) of SPP 2.5 which provides:
"(iii)The Commission will only support subdivision for Rural‑Residential and Rural Smallholdings where the land has been appropriately zoned within the town planning scheme and the provisions of Policy No DC 3.4 (2001) Clause 6 can be complied with."
The respondent then went on to refer to provisions of DC 3.4. It was pointed out that at cl 3.1.1, for rural land, and at cl 4.2.1, for subdivision of rural land for intensive agriculture, there was a general presumption against subdivision unless specifically provided for in a town planning scheme, an endorsed local planning strategy or an endorsed local rural strategy.
Both parties referred to TPS 8. Clause 5.8.1 of TPS 8 states that applications for subdivision of land for horticultural purposes will only be supported for land zoned horticulture. The clause also states that land not correctly zoned will only be considered by Council when an amendment has been initiated to rezone the subject land. Council resolved to amend the zoning of the subject land to horticulture in September 2006, after submissions from the applicant and a site visit. How far this amendment has progressed was not clear from the documents.
Table 1 – Zoning Table of TPS 8 specifies the land use class "irrigated horticulture", which is the use made of the subject land, as a use that "... the Council may, at its discretion, permit ..." in the rural zone.
The respondent also referred to the Shire's draft TPS 9 and the draft LPS. The respondent advised that draft TPS 9 did not make any separate provision for a horticulture zone and the subject land would be zoned general rural. Clause 4.2.5 of draft TPS 9 set out objectives for the general rural zone and these included ensuring that subdivision, when supported, and development comply with a local planning strategy and any local planning policy adopted by the Council.
Table 1 – Zoning Table of draft TPS 9 was cited as specifying that the land use class agriculture–intensive, which would include the current uses on the subject land, were only permitted if the Council exercised discretion and granted planning approval. Clause 5.11.3 of draft TPS 9 refers to allotment sizes and for a general rural zone lot sizes shall be required to comply with minimum lot sizes corresponding to a GR code. For un‑coded lots, apart from subdivision which would in the local government's opinion assist in achieving the objectives of the zone, subdivision would not be supported. The subject land would be un‑coded in draft TPS 9.
The Shire's draft LPS recognised at cl 4.1 that prime agricultural land would require ongoing protection because of its economic significance. Clause 4.2 of the draft LPS provides comment on the relationship between subdivision and sustaining the primary function of rural land. The draft LPS makes mention of the need for a strategic approach to rural subdivision and that if subdivision is to occur it should only occur in defined areas to prevent such problems as ad hoc fragmentation, land use conflict, precedent for continued rural subdivision and demise of sustainable agricultural land.
The respondent argued that the proposed subdivision could not be supported because it was in conflict with the policy provisions and existing and proposed scheme provisions for rural zoned land. The proposed subdivision was said to be ad hoc as it was not identified for subdivision in any of the planning documents and would result in the loss of agricultural because it would encourage uses not related to agriculture.
Also relevant in this regard, however, are the uses currently made of the subject land and the position of the Shire. These are considered further below in the light of this planning framework.
The comments of the Shire
The applicant referred to, and the respondent acknowledged, the comments made by the Shire in response to the application to subdivide. Councillors of the Shire visited the site and in April 2006 wrote to the respondent saying that "… although Council acknowledges that the proposed subdivision is inconsistent with the intent of the Council's draft Local Planning Strategy and … Policy DC3.4, … it is of the opinion that the proposal has merit and is worthy of support …".
The Shire had regard to matters that could be summarised as:
(a)the isolated location of the subject land;
(b)the uniqueness of the site;
(c)the special requirements of the business;
(d)economic viability and sustainability of the existing businesses; and
(e)security of tenure of the existing businesses.
Mr Mazzardis also produced minutes of the Shire Council meeting of 19 September 2006, in which the Shire supported the subdivision and also resolved to amend TPS 8 to re‑zone the subject land from rural to horticulture and to modify the draft LPS to reflect this amendment.
The comment was made in the report before the Council that the subject land had a unique geographical position in that it was remote from other "rural" land in the Shire and could be considered on its own merits. The Shire noted that in any event, under TPS 8 it had discretion to permit irrigated horticulture in the rural zone.
The Shire also wrote to Mr Mazzardis on 24 November 2006, supporting him in his application to the Tribunal restating why it considered the proposed subdivision could be supported.
Matters that may also be considered in subdivision of rural land
In addition to the clauses referred to above, DC 3.4 also includes at cl 6.1.1 matters the respondent, and therefore the Tribunal on review, can consider when assessing applications for subdivision of rural land. The relevant matters to be considered in this instance might be summarised as:
(i)impact on agriculture;
(ii)the size of the lots being sufficient to be environmentally and economically sustainable in the long term as agricultural enterprises;
(iii)the capability of the land to accommodate the proposed use;
(iv)provision and sustainability of water supply for domestic, fire management and agricultural purposes;
(v)environmental impacts of the proposal on areas of environmental sensitivity, natural features and existing development;
(vi)subdivision boundaries to reflect sound planning and land use management;
(vii)any part of the land currently used for agriculture;
(viii)land management in accordance with natural resource management plans and existing integrated catchment management plan including water source protection and drainage, potential building envelopes and clearing; and
(ix)objections or recommendations from relevant government agencies and local government.
Significant in considering the proposed subdivision relative to the matters listed in cl 6.1.1 is the use currently made of the subject land. There is no dispute that the applicant and the other owners of the subject land are bona fide orchardists. This has been supported by submissions from the Shire and correspondence provided by the applicant, other orchardists and industry representatives. This matter being determined on the papers precluded these submissions being tested. They are, however, seen to be consistent with the assertions made by Mr Mazzardis and reflected in the comments of the Shire of the ongoing horticultural activity that has been and continues to be carried out on the subject land.
The owners acquired the subject land in 1988 and have subsequently developed and operated the existing orchard activity. For much of that time, the proposed larger lot has been used for full time commercial horticultural and the proposed 10 hectare lot contains a separate area, used for a related but different aspect of commercial horticulture and which is being developed further with the planting of additional trees. This leads to the point that the land can be considered as "agricultural" land rather than simply as general rural land.
The use made of the subject land means that there is an interrelationship between the matters listed above from cl 6.1.1. The use now made of the land is to continue and so the creation of the proposed lots would not necessarily have an adverse impact on its agricultural potential. The applicant submitted that the viability of the orchard activities over the time they have worked the land shows that the proposed lots would be environmentally and economically sustainable in the long term. To support this, it was said the 5 hectares of netted orchard to be on the larger lot had been economically viable over 18 years and the use of the proposed 10 hectare lot would follow the same practices. Mr Mazzardis submitted that the capability of the subject land to accommodate the proposed uses had been demonstrated by the horticultural activities already conducted on the land.
The respondent commented that there is no guarantee that current use of the proposed lots would continue in the long term. In this regard, the comment can be made that, in respect of rural subdivision, it is not always helpful to simply speculate on whether land not currently put to productive use might be used productively in the future or, on the other hand, whether currently productively used land might be used less productively in the future. The proposed subdivision has been considered in the light of the use now made of the subject land.
The agricultural activities on the subject land, together with the two existing houses have had the use of adequate water supply. What can be said is that on the information before the Tribunal, the proposed lots would be used as intensively and productively as is currently the position. There is no evidence to suggest that subdivision would result in the subject land being lost as a productive resource.
It is proposed that the existing use of the subject land continue after subdivision and so there will be no change in the impact on the local environment were the lots to be created. The only change might well be the construction of an additional shed or sheds necessary for the orchard activity on the proposed 10 hectare lot. Such development in an agricultural setting, however, would be consistent with rural character and amenity.
In weighing the proposal against the matters listed in cl 6.1.1, the Tribunal has concluded that, overall, there is a case in favour of the creation of the two proposed lots.
Precedent concern
The respondent expressed in its reasons for refusal and in its submissions on the proposal, concern about an approval setting an undesirable precedent for the ad hoc fragmentation of rural zoned land. While it is an established principle that precedent not be treated as a stand alone argument: Aspen Pty Ltd and State Planning Commission (Unreported, Appeal No 13 of 1988; 21October 1988), precedent remains a relevant consideration. This is because to simply ignore precedent increases the risk of progressively undermining the planning objectives for a zone or a locality. This is particularly the case when a proposal can not be distinguished from other later subdivision proposals of general rural land. That is, a subdivision of general rural land would be objectionable in the face of a policy presumption against subdivision without something more to make it distinguishable from later subdivisions of similarly zoned land: Sumner Nominees Pty Ltd and Swan River Trust [2006] WASAT 168 [51-52].
The respondent's refusal refers to an undesirable precedent being set for the subdivision of surrounding lots. The aerial photograph filed with documents shows the surrounding rural lots to be natural bush. The Tribunal also notes that the surrounding lots are within the Priority 1 source protection area and subject to stricter controls on development and subdivision than the subject land which is in the Priority 2 source protection area.
The Tribunal has formed the view that because of its location and the use made of it, the subject land can be distinguished from surrounding lots and the proposal could be distinguished from proposals which were simply to subdivide rural land currently unused or used for broad acre activities. Later subdivisions to be undistinguishable would have to be subject to the same intensity of use to be able to advance a claim for an exemption from the general presumption against rural subdivision of DC 3.4. It has been concluded, therefore, that any concern about precedent that might arise from the approval of the proposed subdivision is not, in this instance, sufficient to be a reason to refuse the proposal.
Conclusion
The applicant stressed that the proposed subdivision would assist in achieving independent financial arrangements for the development of the different orcharding activities of the family business. The agricultural activities would be divided between family members and, it was said, this would provide for the different business enterprises to be financially independent and subject to different business decisions.
The respondent properly points out that these business reasons of themselves are not sufficient to set aside sound planning principles in established policies on rural subdivision. The Tribunal has, however, formed the view that it is not necessary to rely on the family farming aspect of the applicant's submission, although it is one consideration.
In considering this matter, the Tribunal has had due regard for relevant State planning policies and the policies referred to under those, particularly DC 3.4 which is concerned with the subdivision of rural land. In examining the matter, the starting point was that there was a presumption against the ad hoc subdivision on rural land unless specifically provided for in an endorsed town planning scheme or strategy.
Clause 6.1.1 of DC 3.4, however, provides for the respondent and therefore the Tribunal on review to take into consideration identified matters. In this instance, the Tribunal has concluded that, when considered against these matters and keeping in mind the key objectives identified at cl 4.1 of SPP 2.5, there is a case for determining that, because of the location of the subject land and the use already made of it by bona fide orchardists, the proposed subdivision might be allowed as an exception to the general presumption against rural subdivision.
As pointed out by the respondent, subdivision is not necessary for continued agricultural use of the subject land. Examination of the matter, however, has led to the conclusion that subdivision would not prevent the agricultural use continuing, could provide the opportunity for continued sustainable separate development of different aspects of the orcharding activities and need not have any adverse impact on rural character and amenity or the local environment.
In respect of the argument that the proposed subdivision might be viewed by others as a precedent for an application to similarly subdivide their rural holding, the Tribunal has found that the proposed subdivision is not objectionable given the use currently made of the subject land and while there is a chance that there may be other specific circumstances where a land owner can make a similar claim for the use of their land, for proposals for the subdivision of general rural land such a claim could not be sustained.
All aspects of this matter when considered together are considered, in this instance, to provide a case for the creation of the two lots proposed. The Tribunal has therefore determined that the proposed subdivision can be supported as an exception to the general presumption against the subdivision of rural land.
Conditions
As ordered by the Tribunal, the respondent provided, without prejudice to its position, a schedule of draft conditions it would want imposed were the Tribunal to support the subdivision. The draft conditions have been considered in the light of the particular circumstances of the subdivision.
One recommended condition was concerned with the provision of a subdivisional works management plan demonstrating the impact of site works on any wetlands, watercourses, surface water or groundwater. This was to be provided prior to the commencement of site works and all development activity on the land was to comply with the plan. The proposal is to create lots for which virtually no site works are required and on the lots that would be created development exists or has already commenced. A new driveway to the house on the 10 hectare lot is indicated. It is not considered that a works management plan is necessary for activity limited to that extent. Any future clearing or additional development would be subject to any approvals necessary and can be considered in relation to any impact that would result at that time.
A further recommended condition was that, prior to the commencement of site works, an environmental management plan be prepared. Again, in the light of the fact that this subdivision involves operating orchards which, on the presumption of regularity, it is presumed have any approvals required to be issued by the Council, it has been concluded that such a condition is not required in this instance.
The respondent also recommended a condition about the licensing of bores and wells. The applicant said that in 1988, the Water Corporation advised on bores for the orchard plan and licences were held to reflect this. No more recent evidence than this was produced and the 1988 letter indicated that licensing requirements might change in the future. A water condition to ensure supply of water was properly supported is considered appropriate.
The applicant also objected to the preparation of a fire management plan. As there will now be additional boundaries and potentially different ownership of the additional lot created in an area surrounded by State forest, the Tribunal is of the view such a condition is appropriate.
Orders
Following its deliberations on this matter, the Tribunal makes the following orders:
1.The application for review is allowed.
2.Approval is granted for the subdivision of Pt Swan Location 2818 into two (2) lots of 10 hectares and 21.9 hectares as proposed, subject to the following conditions:
i)Suitable arrangements being made with Western Power for the provision of an electricity supply service to the lots shown on the approved plan of subdivision. (Western Power)
ii)The transfer of land as a Crown Reserve, free of cost, to the Western Power Corporation for the provision of electricity supply infrastructure. (Western Power)
iii)Suitable arrangements being made with the local government for the provision of vehicle crossovers to service the lots shown on the approved plan of subdivision. (Local Government)
iv)A fire management plan being prepared and implemented to the specifications of the local government and the fire emergency services authority. (Local Government)
v)All buildings and effluent disposal systems having the necessary clearance from the new boundaries as required under the relevant local planning scheme. (Local Government)
vi)All ground water supplies from bores and/or wells having the necessary approvals and licences from the Department of Water. (Department of Water)
I certify that this and the preceding [53] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J JORDAN, MEMBER
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