MIRCO and WESTERN AUSTRALIAN PLANNING COMMISSION
[2007] WASAT 311
•6 DECEMBER 2007
| JURISDICTION | : | STATE ADMINISTRATIVE TRIBUNAL |
| STREAM | : | DEVELOPMENT & RESOURCES |
| ACT | : | PLANNING AND DEVELOPMENT ACT 2005 (WA) |
| CITATION | : | MIRCO and WESTERN AUSTRALIAN PLANNING COMMISSION [2007] WASAT 311 |
| MEMBER | : | MR J ADDERLEY (SENIOR SESSIONAL MEMBER) |
| HEARD | : | 21 NOVEMBER 2007 |
| DELIVERED | : | 6 DECEMBER 2007 |
| FILE NO/S | : | DR 319 of 2007 |
| BETWEEN | : PASQUALE TOMASO MIRCO |
Applicant
AND
WESTERN AUSTRALIAN PLANNING
COMMISSIONRespondent
Catchwords:
Subdivision of rural land - Swan Valley Planning Act 1995 (WA) - Area B Planning Objectives - Protection of viticulture - Traditional activities - Rural character - Subdivision precedent - Hardship
Legislation:
City of Swan Town Planning Scheme No 9, cl 8.2.2.1, cl 8.2.2.2(c)(iii)
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 241(3)
[2007] WASAT 311
Residential Design Codes of Western Australia (2002)
Swan Valley Planning Act 1995 (WA), s 5, s 8
Result:
Application for review dismissed Decision of respondent affirmed
Category: B
Representation:
Counsel:
| Applicant | : | Mr P Seal (Acting as Agent) |
| Respondent | : | Mr M Logan |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
| Katich | & | Anor | and | Western | Australian | Planning | Commission |
[2007] WASAT 72
[2007] WASAT 311
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
1 This is a review of the respondent's decision to refuse subdivision
approval of a vineyard property in the Swan Valley to create two equal sized lots smaller than ordinarily recommended under the relevant objectives of the Swan Valley Planning Act 1995 (WA).
2 The purpose of the subdivision was to allow the applicant to transfer
one of the lots to his daughter in order that her family could reside on the land and assist with the continued maintenance and management of the vineyard.
3 The Tribunal concluded that, notwithstanding the applicant's present
intention, there was no guarantee for the future that the division of the land wouldn't otherwise result in the use of the lots for purposes inconsistent with the primary objectives of the Swan Valley Planning Act 1995 (WA).
4 The Tribunal dismissed the application for review on the basis that
the subdivision was found not to comply with the relevant objectives of
the Swan Valley Planning Act 1995 (WA).
Introduction
This is an application for review of the respondent's decision to refuse subdivision of a 7.6435 hectare vineyard property, Lot 47 Campersic Road, Herne Hill (Lot 47) into two equal size lots.
The application for subdivision was submitted to the respondent on 9 November 2006.
7 Following consultation with relevant agencies, including the City of
Swan (City) and the Swan Valley Planning Committee (SVPC), the respondent issued its refusal of the subdivision application on 31 August 2007.
8 On 17 September 2007, the applicant lodged an application for
review of the respondent's decision with the State Administrative Tribunal
(Tribunal).
The proposed subdivision and its context
Lot 47 is located in the Swan Valley; an area noted for its vineyards, wine production, scenic landscape and associated tourism.
[2007] WASAT 311
10 The locality surrounding Lot 47 is characterised by regular shaped,
rectangular lots, many of which (although not all) appear to be utilised for
viticulture.11 Strelley Brook is a significant feature of the local landscape,
meandering generally westerly from its source in the foothills of the
Darling Scarp through the vineyards towards the Swan River.
Lot 47 is a 7.6435 hectare rectangular property with a 190 metre length frontage to Campersic Road on the western boundary and a 402 metre eastward extent to the rear boundary.
13 Strelley Brook diagonally traverses the rear of the property, entering
at the north-east corner and exiting south-westwards at about the midpoint of the southern boundary. The streamline margins feature riparian vegetation.
14 Lot 47 is utilised for non-irrigated wine grape growing on the portion
of the property west of Strelley Brook. A homestead and sheds are
located at the front north-west corner of the lot.15 The proposed subdivision of Lot 47 would divide the property into
two almost equal sized rectangular lots. A new boundary running east - west from the centre point of the Campersic Road frontage to centre point of the eastern boundary would create a southern lot of 3.8217 hectares and a northern lot, containing the existing dwelling, of 3.8218 hectares.
16 Following the receipt of advice by the Department of Water as to the
preferability that boundary lines should cross water courses at right angles in order to minimise the impact on riparian vegetation, the applicant has submitted a slightly modified subdivision plan to give effect to the Department of Water's preference. Apart from the angle of the proposed boundary across the water course, the material description of the proposed subdivision is unaltered.
17 The purpose of the subdivision is described in terms of a desire by
the applicant, who is elderly and suffering a significant infirmity and an incapacity to maintain the vineyard, to be able to grant the proposed southern lot to his daughter in order that she and her family can reside close to her parents and assist in the management and maintenance of the property.
[2007] WASAT 311
Statutory and policy instruments
18 Lot 47 Campersic Road is zoned "Rural" in the Metropolitan Region Scheme (MRS) and "Swan Valley Rural" under the City of Swan Town Planning Scheme No 9 (TPS 9).
Clause 8.2.2.1 of TPS 9 provides that:
"The purpose and intent of the Swan Valley Rural Zone is to promote the area primarily as a horticultural, recreational, tourism and landscape resource, with areas containing high quality horticultural soils and scarce plastic clays receiving special protection."
20 Development of land within the Swan Valley Rural zone is required
by TPS 9 to be in accordance with the provisions of the Swan Valley
Planning Act 1995 (SVP Act).
The SVP Act identifies at s 5 that Lot 47 is located within planning "Area B". out within s 8 of the SVP Act in the following terms:
The planning objectives for any development within Area B are set
"1. The protection of viticulture. 2. The provision of water for viticulture and horticulture and the discouragement of other activities that have high water demands. 3. The encouragement of tourist facilities provided that they do not detract from the rural character of the area. 4. The encouragement of traditional activities of the Swan Valley and industries associated with viticulture, horticulture and cottage industry provided that they are compatible with the rural character of the area. 5. The encouragement of the consolidation of retail and community facilities at Herne Hill, Caversham and West Swan. 5A. ...
6. The compatibility of design, siting and landscaping with the character of the area. [2007] WASAT 311
7. The discouragement of uses that are incompatible with the rural character and traditional agricultural activities of the area.
8. The extraction of basic raw materials so far as it is compatible with the character and amenity of the area and subject to the rehabilitation of the affected land.
9. The subdivision into lots of less than 4 hectares only where this is consistent with the objectives set out in this section.
10. The avoidance of overstocking, of activities causing pollution or degradation of the environment and of any other land management practices detrimental to the amenity of the area."
The respondent's Policy DC 3.4 - Subdivision of Rural Land (DC 3.4) has relevance. Clause 3.1.1 provides:
"There is a general presumption against subdivision of rural land unless it is specifically provided for in a town planning scheme, an endorsed local planning strategy or an endorsed local rural strategy."
The respondent's decision
24 In determining the application for subdivision, the respondent took
into consideration advice from the City that the subdivision should be
refused because the proposed lot sizes were less than 4 hectares.
Additionally, the SVPC advised that:
"The proposal does not satisfy objective 1 of Area B of the [SVP Act] because the viticultural operations on the land will be adversely affected and as the proposal had previously been refused because the lot sizes were below the recommended size of 4 [hectares] (WAPC Ref: 115916), the [SVPC] does not support this application."
The respondent's decision to refuse the proposed subdivision of Lot 47 was expressed in the following terms:
"1. The Commission is not prepared to support the proposed subdivision as the applicant has failed to demonstrate [2007] WASAT 311
how the overall development of the land can be achieved without conflicting with the objectives of Area B of the [SVP Act].
2. The proposed subdivision does not comply with ... [DC 3.4], a provision of Statement of Planning Policy No 1, State Planning Framework, by reason that it would result in the subdivision of rural land, which is not provided for in ... [TPS 9], an endorsed local planning strategy or an endorsed local rural strategy.
3. The land is zoned 'Rural' in the Metropolitan Region Scheme and 'Swan Valley Rural' in ... [TPS 9]. The purpose and intent of this zoning is to preserve the area's current rural use and density of development. Subdivision in the manner proposed would create the potential for additional building development and the introduction of increased non-rural activity in conflict with the zoning objectives.
4. Approval to the subdivision would create an undesirable precedent for the further subdivision of other lots of a similar size in the 'Rural Living' [z]one of this locality."
The respondent's argument
27 The respondent argued that the proposed subdivision was contrary to
the planning objectives of the SVP Act, the TPS 9 and the respondent's State Planning Framework policies relevant to the subdivision of rural land.
28 Mr J Bouwhuis, a qualified town planner employed by the
Department for Planning and Infrastructure, provided evidence on behalf of the respondent in the form of an individual witness statement and in the form of a joint expert witness statement prepared in conjunction with the applicant's town planning expert witness, Mr S O'Hara.
29 The joint expert witness statement helped to highlight the key
arguments put by the respondent in defence of the decision to refuse the
application for subdivision.30 Mr Bouwhuis identified that the application was contrary to
objective 1 of Area B as described by the SVP Act, in that the proposal would necessitate the removal of some of the existing vines in order to
[2007] WASAT 311
allow the construction of a dwelling and driveway on the proposed southern lot. Upholding the objective requires the preservation of vines, not their removal.
31 With regard to objective 4, Mr Bouwhuis stated that the potential for
maintenance or expansion of traditional viticulture operations would be compromised by the reduced income capable of being derived from the smaller lots. Mr Bouwhuis was of the view that if the lots were sold it would be reasonable to anticipate they could alternatively be used for rural-residential purposes. In his view, lots of less than 4 hectares would be economically unviable for viticulture.
32 Mr Bouwhuis further expressed the opinion that creation of the
proposed 3.8 hectare lots would increase the potential for land use conflicts occasioned by such events as chemical spraying, late night vineyard maintenance activities and the like, which may lead to pressure to relocate viticulture away from incompatible non-agricultural lots contrary to objective 7.
33 Mr Bouwhuis was of the opinion that the proposed subdivision
which is intended to create lots of less than 4 hectares, was in contravention of objective 9 because the proposal was otherwise inconsistent with objective 1, objective 4 and objective 7 as previously stated. Mr Bouwhuis also noted that although the application was seeking approval of lot sizes below 4 hectares, this particular property was already significantly limited in its agricultural productive capacity by the presence of Strelley Brook and its riparian environs.
34 The proposal would also be likely to cause the loss of riparian
vegetation associated with Strelley Brook in the event of the construction of a dwelling at the rear of the new lot or the establishment of new vines in the same location. Both options would necessitate the building of a driveway and creek crossing structure. Such circumstances would be environmentally detrimental and therefore contrary to objective 10.
35 In response to the assertion of the applicant, that refusal of the
subdivision on the grounds of non-compliance with DC 3.4 was not relevant because the application fully complied with the objectives of the SVP Act, Mr Bouwhuis emphasised the contrary view that the proposed subdivision did not meet the Area B objectives. In this circumstance, and because the subdivision was not provided for in TPS 9 or any other local planning strategy or rural strategy, the general presumption against the subdivision of rural land as stated in DC 3.4 remains applicable.
[2007] WASAT 311
36 Mr Bouwhuis expressed the view that the proposed subdivision
would allow the establishment of another dwelling on the land which will not assist the objective of TPS 9 which describes an intent to promote the area as a horticultural, recreational, tourism and landscape resource. Mr Bouwhuis also referred to cl 8.2.2.2(c)(iii) of TPS 9 which obligates the local government not to approve development which would detract from the rural character and amenity of the area. In this regard, an increased density of development would detract from the character and amenity of the area.
37 Mr Bouwhuis offered an explanation in respect of the respondent's
fourth reason for refusal, suggesting that the reference to "'Rural Living' Zone" was most likely mistaken and that "Swan Valley Rural" should be substituted to make proper sense of the reason. Mr O'Hara agreed with this observation.
38 Mr Bouwhuis pointed to the lots immediately north and south of
Lot 47, both of which are in the Swan Valley Rural zone, of similar size to Lot 47 and would be directly affected in terms of an undesirable precedent for further fragmentation of rural land if the current application is approved. Incremental subdivision of rural land in the Swan Valley will reduce commercial viability and availability of land for viticulture and other traditional land uses.
39 In response to the applicant's assertion that a precedent for
subdivision approval has been established by the recent subdivision of Lot 62 Haddrill Road Baskerville (Haddrill subdivision), which created two lots of 3.88 hectares, Mr Bouwhuis argued that in the case of the Haddrill subdivision, the proposal had been supported by the SVPC because it was consistent with Area B objectives. The subdivision was distinguishable from the current application in that the original and post subdivisional use of the land was rural-residential (rather than viticulture), and because there was no significant physical constraint on the land, such as Strelley Brook, limiting land use. For these reasons the Haddrill subdivision should not be considered as a precedent to allow the proposed subdivision.
40 Mr Bouwhuis did not consider that there was any justification for
applying flexibility based on a percentage variation below the minimum lot area required under objective 9. Although such a facility has been applied in the case of the Residential Design Codes of Western Australia (2002) and by the Shire of Mundaring in relation to rural subdivision
[2007] WASAT 311
policies, neither of these instruments have relevance or applicability to the
SVP Act.41 On examination of his testimony, Mr Bouwhuis acknowledged that if
vines were absent from the applicant's land, there could be presumed to be some parallels with the Haddrill subdivision that may occasion a different and arguably more favourable assessment by the respondent.
The applicant's argument
42 The applicant's argument was based on three general propositions.
Firstly, that the proposed subdivision conforms with the relevant Area B objectives of the SVP Act. Secondly, that the respondent has established a notable precedent for subdivision of similar sized lots within Area B. Thirdly, that there are grounds of hardship suffered by the applicant that the Tribunal should consider which favour allowing the proposed subdivision.
43 Mr P Mirco, the owner of Lot 47 and the applicant in this matter,
testified as to his thirty year long association with the property, involving the establishment of his house and the vineyard. He informed the Tribunal of his intention to remain on the property and to continue its operation as a vineyard into the future.
44 At 67 years of age and suffering arthritis, back pain and diabetes, it is
becoming difficult for Mr Mirco to conduct the more physical activities associated with running the vineyard. Age, poor health and financial constraints represent a circumstance of considerable personal hardship for Mr Mirco.
45 The purpose of the proposed subdivision would allow the transfer of
the southern lot to Mr Mirco's daughter and facilitate an arrangement that
would enable her to assist in the day to day running of the vineyard.46 Mr Mirco outlined the relatively high costs of engaging hired labour
to help run the vineyard, demonstrating that such a course would be uneconomic. The market for wine grapes had been particularly depressed over the past few years.
47 Mr Mirco explained that if he was unable to obtain practical
assistance to run the vineyard and if annual pruning and maintenance wasn't carried out, then the vines would very quickly become diseased and unproductive.
[2007] WASAT 311
Councillor C Gregorini, Mayor of the City and a member of the SVPC, provided evidence on behalf of the applicant.
49 Councillor Gregorini advised that he had opposed the SVPC
recommendation to refuse the proposed application because he was of the opinion that the proposal complied with the Area B objectives. In particular, Cr Gregorini was of the view that the proposed arrangement, allowing additional family support to Mr Mirco, would help to maintain the vineyard rather than allow it to fall into inevitable decline.
50 Councillor Gregorini drew attention to the Haddrill subdivision as an
example of a proposal for similar lot sizes recently approved by the
respondent.
The applicant's final witness was Mr O'Hara, a qualified and experienced town planning consultant.
Mr O'Hara provided a witness statement as well as a joint expert witness statement in conjunction with Mr Bouwhuis.
53 Mr O'Hara was of the opinion that the proposed subdivision will
facilitate viticultural activity on the land for the next generation, whereas if it is disallowed, the vineyard is likely to decline and the vines will be removed. Whilst there would be some modest loss of vines (about 3%) associated with the proposed subdivision and a new dwelling for Mr Mirco's daughter's family, such a loss is marginal compared to the overall possibility of decline of the vineyard if the subdivision proposal fails. Based on the assumption of facilitating and securing family support for the continued operation of the vineyard, the proposed subdivision offers a practical option to protect viticulture on the land and therefore satisfies objective 1 for Area B under the SVP Act.
54 For the same reasons, Mr O'Hara is of the opinion that the proposed
subdivision will encourage and sustain viticulture which is a traditional activity compatible with the rural character of the Swan Valley. Accordingly the proposal complies with Area B objectives 4 and 7.
55 Mr O'Hara was also of the opinion that objective 10 was satisfied in
the circumstances that the subdivision would maintain a well managed traditional rural activity and that the [concerns of the] Department of Water in relation to establishing a right angle boundary crossing of the Strelley Brook water course could be practically accommodated.
[2007] WASAT 311
Other than objective 9, no other objectives for Area B are contended by the respondent as relevant to the application.
57 Objective 9, which qualifies that a subdivision into lots less than
4 hectares must be predicated on compliance with the other objectives of Area B, is therefore satisfied, according to Mr O'Hara, because the proposal is demonstrably able to conform with the relevant objectives 1, 4, 7 and 10.
58 Mr O'Hara further argued that because the proposal met the
requirements of the SVP Act, the respondent's invocation of DC 3.4 was not relevant as a ground of refusal. Mr O'Hara drew attention to the Tribunal's deliberation on the relationship of these planning instruments in its decision Katich & Anor and Western Australian Planning Commission [2007] WASAT 72.
59 Addressing the respondent's third ground of refusal citing the need to
preserve the area's current rural use and density of development, Mr O'Hara argued that TPS 9 made no reference to density of development in the context of the Swan Valley Rural zone. In any case, the construction of an additional dwelling is a common rural activity and is permitted in the Swan Valley Rural zone in TPS 9.
60 Mr O'Hara agreed with Mr Bouwhuis that the fourth ground of
refusal made more sense in terms of any precedent relating to the Swan
Valley Rural zone rather than the Rural Living zone.61 Mr O'Hara also made reference to the Haddrill subdivision as a
precedent for approval of this subdivision because it demonstrated that the respondent had recently created similar lot sizes (3.88 hectares) within Area B.
Analysis
The following key questions can be distilled from the arguments of
the parties:
• Is the proposal a secure, ongoing basis for maintenance of the vineyard on Lot 47, and thus in the interest of protecting viticulture on the land, and more generally, in Area B of the SVP Act? • Does the Haddrill subdivision represent a precedent relevant to the proposed subdivision such that it should be [2007] WASAT 311
allowed on grounds of reasonableness, consistency and
equity?
• Are the grounds of personal hardship identified by the applicant sufficient to warrant exercise of the Tribunal's qualified authority under s 241(3) of the Planning and Development Act 2005 (WA) (PD Act)?
63 In order for the Tribunal to accept that the proposed subdivision
represents a secure ongoing basis for management and maintenance of the vineyard, there would have to be some certainty that the arrangement (for Mr Mirco's daughter to take on the responsibility to reside on the new lot and assist with the necessary vineyard duties) was in some way guaranteed.
Unfortunately, there is no evidence before the Tribunal that this is the case, or indeed that it could be the case.
65 Notwithstanding the applicant's good intentions, or his daughter's
present undertakings, there can be no certainty about what circumstances may affect the parties in the future and how that may alter personal priorities. Those changes in circumstances may well alter intentions with respect to the use or disposal of the new lots in a manner quite contrary to present intentions and possibly in a manner contrary to the objectives of Area B.
66 At best, the proposal relies on an admirable undertaking of familial
support, but with little to guarantee the certainty of successful continuation of the vineyard. Conversely, there is a significant risk of failure of the intended arrangement and the possible consequent compromise of the SVP Act objectives if the property is divided and the resultant lots are disposed. In this regard, the Tribunal accepts the respondent's argument that the use of the smaller lots for rural-residential purposes, or for hobby farming, are less compatible with the interest of the Swan Valley than retention of the land as a single entity.
67 The applicant has argued that if the subdivision is disallowed, then
there is a strong likelihood that the vineyard will not be able to be maintained. Such an outcome would be contrary to the objectives of Area B. Thus, the applicant argues, the subdivision ought to be allowed because it offers a means of continuity for the vineyard and therefore represents the better of the two options.
[2007] WASAT 311
68 The Tribunal acknowledges this argument, but would be uneasy to
accept it because of the profound and irreversible outcomes which could flow from division of the property. Regardless of the near-term future, and the possible demise of the vineyard, the Tribunal also acknowledges the argument put by counsel for the respondent, that retention of the property in a single holding may represent a better long-term prospect for retention of traditional agriculture in the Swan Valley. Even if the vineyard fails in the short-term, the property would not be fragmented in a manner that offers the opportunity of dispersal of the land to other uses less compatible with traditional agriculture.
69 The Tribunal notes the context of the subdivision, particularly the
size of properties north and south within the Swan Valley Rural zone. Many of the properties are of similar size to Lot 47 and a significant number are presently utilised for viticulture. The occasion of subdivision of Lot 47 would undoubtedly generate an expectation of similar subdivision of those properties and a resultant possibility of uncertain and possibly detrimental consequences to the interest of protecting viticulture in the area.
70 The Tribunal notes that the expert witnesses, when confronted with
the choice between subdivision of the land (with its possible consequence of disposal of the smaller lots for use as rural-residential or hobby viticulture), or alternatively the retention of the land in one parcel, both concluded that the lesser risk to the diminution of traditional agriculture was occasioned by the latter. Mr O'Hara qualified this opinion as pertinent only in the event that Mr Mirco's commitments and intentions, and his daughter's undertakings were not taken into account.
71 On balance, the Tribunal finds that, praiseworthy though they are,
the applicant's intentions and means to sustain the vineyard on Lot 47 are insufficiently certain to overcome the risk associated with the unintended, but possible, detrimental consequences of the subdivision if approved.
72 These consequences, in the opinion of the Tribunal, represent an
unreasonable risk to the pursuit of the SVP Act, Area B objectives 1, 4
and 7.
Because the proposal cannot reasonably be seen to comply with the SVP Act objectives, the application must also be measured against DC 3.4 which obligates a general presumption of refusal of the subdivision of rural land unless it is otherwise particularly provided for. In the absence
[2007] WASAT 311
of such a circumstance, the Tribunal concludes that the subdivision should
fail in the context of the prevailing planning framework.
74 Turning to the question of the Haddrill subdivision, the argument
that this recent subdivision constitutes a precedent for the subdivision of Lot 47 has to be treated with serious concern. The Tribunal notes the similarity in terms of zoning, the relevance of Area B objectives and the lot sizes resultant from the subdivision. Unfortunately, a full picture of all the considerations pertinent to the Haddrill subdivision was not made available to the Tribunal in order to afford a totally satisfactory comparison.
75 The respondent distinguished the Haddrill subdivision on the
grounds that it involved a non-viticultural land use and was therefore removed from the obligations to satisfy the Area B objectives in the same manner as the subdivision of Lot 47. This argument begged the question that if the vines were removed from Lot 47, would the respondent consider subdivision more favourably?
76 The Tribunal was told by the respondent's witness that it may be the
case that the subdivision would be treated more favourably in the absence of the vineyard. This statement has to be treated with some caution. If taken to its logical conclusion, it would be apparent to all that the means to achieve a more favourable attitude to subdivision approval in the Swan Valley would be by effecting removal of vines prior to making an application. Clearly this is not a tenable position to maintain the objectives of the SVP Act.
77 On balance, based on the information available, the Tribunal echoes
the surprise expressed by Cr Gregorini at the event of the Haddrill subdivision approval. However, whilst concerned by the implications of the decision, the Tribunal is not prepared to afford the Haddrill subdivision so much weight that would alter its view that the subdivision of Lot 47 was not compliant with the objectives of the SVP Act. The reasons for not giving full weight to the Haddrill subdivision as a meaningful precedent are:
• The "one-off" nature of the decision which does not seem to represent a history of consistent subdivision approvals of this kind in the area. • The relative remoteness of the subdivision from Lot 47 (about 3 kilometres). [2007] WASAT 311
• The possibility that the decision was simply inappropriate with respect to the sensible pursuit of the SVP Act objectives.
78 The nature of the hardship circumstance identified in this application
is the fundamental reason for pursuit of the subdivision. Mr Mirco's age and health condition, limiting his ability to continue the management of the vineyard, are undoubtedly evident. It must also be said, though, that the reality of Mr Mirco's infirmity might be considered an inevitable, but fairly normal consequence of ageing, thus necessitating the usual consideration of lifestyle changes. It does not necessarily follow that the long-term nature of land use should be governed by a personal generational cycle.
79 The Tribunal's powers to take hardship circumstances into account in
making its decision are guided by s 241(3) of the PD Act. The limitation is such that the Tribunal can only take hardship into account where it is of the opinion that such regard will not affect the application of sound town planning principles.
80 In this case, the Tribunal's decision is firmly governed by the
application of the Area B objectives of the SVP Act. To disregard the application of the objectives as argued in the preceding analysis in this report, in order to allow the subdivision on the grounds of hardship considerations, would, in the opinion of the Tribunal, abrogate the application of sound town planning principles. Accordingly, the incidence of hardship is not considered a ground to allow the application.
Conclusion
81 Based on the preceding analysis, the Tribunal concludes that the
application for review of the respondent's decision to refuse subdivision approval of Lot 47 Campersic Road, Herne Hill into two lots should be dismissed.
| Orders |
1. The application for review is dismissed.
2. The decision of the respondent made on 31 August 2007 to refuse subdivision approval of Lot 47 Campersic Road, Herne Hill into two lots is affirmed.
[2007] WASAT 311
I certify that this and the preceding [81] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J ADDERLEY, SENIOR SESSIONAL MEMBER
0
0
6