Mirco & Anor and Western Australian Planning Commission
[2006] WASAT 165
•23 JUNE 2006
MIRCO & ANOR and WESTERN AUSTRALIAN PLANNING COMMISSION [2006] WASAT 165
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 165 | |
| TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) | |||
| Case No: | DR:578/2005 | 9 DECEMBER 2005 | |
| Coram: | MR P McNAB (MEMBER) | 23/06/06 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | The application for review be dismissed The decision under review is affirmed | ||
| B | |||
| PDF Version |
| Parties: | NG MIRCO A MIRCO WESTERN AUSTRALIAN PLANNING COMMISSION |
Catchwords: | Town planning – Rural land – Swan Valley Rural Zone – Subdivision of productive agricultural land – Subdivision application to divide small block into two lots – Extensive policies requiring justification for subdivision – Whether proposal consistent with policies aimed at preventing the ad hoc fragmentation of such land – Special legislative regime preserving viticulture and other rural pursuits in the area – No relevant local government planning strategy – Family and health reasons put forward by applicants – Whether hardship relevant – Local government and special committee declining to support proposal – Neighbouring properties turning to equestrian activities – Declining viticulture activity – Pressures on rural land if rural residential potential opened up – Comments by Tribunal on duty of parties to give fair notice of material matters in issue – Whether appropriate to enforce viticulture on future owners of lots by way of a Deed of Covenant or similar mechanism – Applicants failed to discharge practical burden overcoming presumption against subdivision – Application dismissed |
Legislation: | Metropolitan Region Scheme Planning and Development Act 2005 (WA), s 134, s 241, s 241(3) Swan Valley Planning Act 1995 (WA), s 4, s 6, s 8, s 23, s 23(1) Swan Valley Town Planning Scheme No 9, cl 8.2.2.2(c) Town Planning and Development Act 1928 (WA), s 24A(5) |
Case References: | Brister, R and Ors v Western Australian Planning Commission [2003] WATPAT 103 Fehlauer and Western Australian Planning Commission [2005] WASAT 222 Halden & Anor and Western Australian Planning Commission [2005] WASAT 323 Re Prica and Comcare (1996) 44 ALD 46 West & Ors and Western Australia Planning Commission [2005] WASAT 326 Westralis Enterprises Pty Ltd v Western Australian Planning Commission [2004] WATPAT 112 Willicombe v City of Gosnells (2006) 41 SR (WA) 283 Wood, F V v Western Australian Planning Commission [2003] WATPAT 96 Notte v Western Australian Planning Commission [2004] WATPAT 167 Lorkiewicz and Anor v Western Australian Planning Commission [2003] WATPAT 51 |
Orders | On the application determined by Member Peter McNab on 23 June 2006, it is ordered that:,1. The application for review is dismissed.,2. The decision under review is affirmed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) CITATION : MIRCO & ANOR and WESTERN AUSTRALIAN PLANNING COMMISSION [2006] WASAT 165 MEMBER : MR P McNAB (MEMBER) HEARD : 9 DECEMBER 2005 DELIVERED : 23 JUNE 2006 FILE NO/S : DR 578 of 2005 BETWEEN : NG MIRCO
- A MIRCO
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Town planning – Rural land – Swan Valley Rural Zone – Subdivision of productive agricultural land – Subdivision application to divide small block into two lots – Extensive policies requiring justification for subdivision – Whether proposal consistent with policies aimed at preventing the ad hoc fragmentation of such land – Special legislative regime preserving viticulture and other rural pursuits in the area – No relevant local government planning strategy – Family and health reasons put forward by applicants – Whether hardship relevant – Local government and special committee declining to support proposal –
(Page 2)
Neighbouring properties turning to equestrian activities – Declining viticulture activity – Pressures on rural land if rural residential potential opened up – Comments by Tribunal on duty of parties to give fair notice of material matters in issue – Whether appropriate to enforce viticulture on future owners of lots by way of a Deed of Covenant or similar mechanism – Applicants failed to discharge practical burden overcoming presumption against subdivision – Application dismissed
Legislation:
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 134, s 241, s 241(3)
Swan Valley Planning Act 1995 (WA), s 4, s 6, s 8, s 23, s 23(1)
Swan Valley Town Planning Scheme No 9, cl 8.2.2.2(c)
Town Planning and Development Act 1928 (WA), s 24A(5)
Result:
The application for review be dismissed
The decision under review is affirmed
Category: B
Representation:
Counsel:
Applicant : Mr Sri Ramanathan (by leave)
Respondent : Mr J Algeri
Solicitors:
Applicant : Self-represented
Respondent : Self-represented
Case(s) referred to in decision(s):
Brister, R and Ors v Western Australian Planning Commission [2003] WATPAT 103
Fehlauer and Western Australian Planning Commission [2005] WASAT 222
(Page 3)
Halden & Anor and Western Australian Planning Commission [2005] WASAT 323
Re Prica and Comcare (1996) 44 ALD 46
West & Ors and Western Australia Planning Commission [2005] WASAT 326
Westralis Enterprises Pty Ltd v Western Australian Planning Commission [2004] WATPAT 112
Willicombe v City of Gosnells (2006) 41 SR (WA) 283
Wood, F V v Western Australian Planning Commission [2003] WATPAT 96
Case(s) also cited:
Notte v Western Australian Planning Commission [2004] WATPAT 167
Lorkiewicz and Anor v Western Australian Planning Commission [2003] WATPAT 51
(Page 4)
Summary of Tribunal's decision
1 This application for review dealt with the refusal by the regulatory authority, the Western Australian Planning Commission, to give its consent for the owners of a small parcel of rural land in the Swan Valley to subdivide their land into two lots. Mr and Mrs Mirco, the applicants, owned the land and wished to do so essentially for family and health reasons. One lot would be sold and one of their sons would continue to occupy the other lot. They raised a claim of hardship. They were engaged in mainly viticulture pursuits on their land.
2 The Western Australian Planning Commission has a number of policies which, in their effect, make such subdivisions difficult, with the intent that rural land will not be subdivided except for very good reasons, and then in a consistent and planned manner. In addition, this land was governed by a special legislative regime for the Swan Valley which favoured the protection of viticulture. All the regulatory bodies had declined to support the proposed subdivision.
3 The applicant failed to satisfy either the Western Australian Planning Commission or, on review, the State Administrative Tribunal that they had sound or sufficient reasons to permit the subdivision. Hardship could not be considered here because of the obligation on the State Administrative Tribunal to defer to sound planning principles when considering such claims.
4 The State Administrative Tribunal drew attention to the obligation on parties to the Tribunal not to catch either the Tribunal or other parties by surprise as regards any material issue in the review. Here, without any notice, the applicants revealed that their case was largely based upon persuading the Tribunal to agree to the imposition of a condition which would legally bind future owners to continue to practice viticulture on the new lots. The respondent rejected such a condition. The Tribunal reserved this issue for another day as it rejected the application on other grounds.
5 Here, the applicants had not discharged the practical burden that the planning framework imposed upon them to satisfy the Tribunal that the subdivision was justified.
6 The Tribunal dismissed the application for review.
(Page 5)
The subject land
7 The land the subject of this review is Lot 208 William Street, Herne Hill (Lot 208) in the Swan Valley being the land comprised in Volume 1068 Folio 646. The land fronts both William Street and Range Road.
8 The proposal under review is to create to two lots of 2 hectares (proposed Lot 1) and 2.62 hectares (proposed Lot 2) from Lot 208. Proposed Lot 1 (the smaller northern lot) accommodates a single-storey dwelling house, and some fruit trees and vines, and the second larger, southern lot accommodates a two-storey dwelling house and a vineyard. Each dwelling has, according to the applicants, "their own effluent disposal systems and other utility provisions". Proposed Lot 1 has frontage to Range Road and the other larger lot (proposed Lot 2) fronts both roads. One of the applicants' sons (Mr E Mirco) lives in the dwelling house on proposed Lot 1.
9 It is currently proposed that the second larger lot (where the applicants reside) will be sold off after subdivision and that the applicants' son will remain on the other lot.
Zoning of the subject land
10 The land is zoned "Rural" in the Metropolitan Region Scheme and "Swan Valley Rural" under the local planning scheme. The local zoning is linked to uses of the land consistent with the Swan Valley Planning Act 1995 (WA) (SVP Act), a matter discussed further below.
11 Immediately to the east of the subject land, the land is reserved for parks and recreation ("Red Hill" which is part of the "Darling Range Regional Park"), and towards the west the land changes from "Swan Valley Rural" to a "Rural Living" zoning.
History of the review
12 The respondent refused an earlier identical application in September 2004. The respondent refused this current application in August 2005. In summary, the principal grounds for that refusal were:
1) The applicants "failed to demonstrate how the overall development of the land can be achieved without conflicting with the objectives" mandated by the SVP Act. (These objectives are set out in full below.)
(Page 6)
- 2) The proposed subdivision does not comply with the Commission's Policy DC 3.4 (discussed below) by reason that the subdivision "is not provided for in the current [local] Town planning scheme, an endorsed local planning strategy or an endorsed local rural strategy".
3) The proposed subdivision conflicts with the intent of the local and Metropolitan Region Scheme rural zoning.
13 This application was opposed by the local authority (the City of Swan) and the statutory Swan Valley Planning Committee established under the SVP Act. On the application of this Act, see further below.
14 Attempted mediation in the Tribunal did not succeed and the matter was eventually heard in December 2005. Later, further submissions, including submissions on legal issues concerning the power to impose certain conditions regulating the future use of the land (discussed below), were received from both parties. The last of these arrived in late March 2006.
The planning framework: special legislation
15 At the local level, the subdivision is governed by the SVP Act, and the City of Swan's Town Planning Scheme No 9 (TPS 9): see cl 8.2.2.2(c).
16 It is common ground that the subject land is "Area B" of the Swan Valley Precinct: see SVP Act, s 4.
17 Under the SVP Act, so far as is relevant, regard must be had to the following criteria in making planning decisions (emphasis added):
"8. Planning objectives for Area B
The planning objectives for any proposed development in Area B are as follows –
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. [Tourist facilities.]
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. [Consolidation of certain retail and community facilities.]
5A. [Limited expansion of certain existing retail and community facilities.]
6. The compatibility of design, siting and landscaping with the character of the area.
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 in certain cases.]
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."
18 In addition, SVP Act s 6 provides for some "General planning objectives" as follows:
"The general planning objectives for the Swan Valley are the encouragement of the traditional agricultural and other productive uses of the area that complement its rural character, the protection of the environment and the character of the area, the reduction of nutrient levels in the Swan River and the promotion of tourism that complements the rural character of the Swan Valley."
19 Under s 23 of the SVP Act, TPS 9 must be consistent with the Act. So far as is relevant, s 23(1) provides that:
(Page 8)
- "The City of Swan is to ensure that any aspects of the local planning scheme, and any policies made under that scheme, that relate to –
(a) the subdivision of land;
(b) the provision of infrastructure; and
(c) the carrying out of development generally, in [Area B]
… are consistent with the objectives set out in [s 8]."
20 The SVP Act extracts set out above are shown in their amended form, amendments that have come into force since the review was commenced. The amendments made do not materially affect the issues in this review and no party has sought leave to make any additional submissions on the possible impact of those amendments.
21 It was submitted, and not disputed, that under s 24A(5) of the former Town Planning and Development Act 1928 (WA) (see now s 134 of the Planning and Development Act 2005 (WA) (the PD Act)) the respondent was, in this case, "bound … to determine the application in accordance with the [Swan Valley Planning Committee's] advice". This provision is not applicable to the deliberations of the Tribunal, but nevertheless it remains an important consideration.
22 In addition, the respondent Commission relies upon its Policy DC 3.4 "Rural Land Use Planning Policy" (DC 3.4), which is part of the State Planning Framework. In particular, the respondent relies upon cl 3.1.1 of DC 3.4, which provides a "general presumption against" the subdivision of rural land "unless such subdivision is specifically provided for in a town planning scheme, a local planning strategy or a local rural strategy endorsed by the Commission". See also cl 4.1.1. Here, there is no such local instrument in existence which contemplates or deals with the planned subdivision of productive rural land (which this is) in the area that includes the subject land.
23 The related policies relied upon by the respondent are the Agriculture and Rural Land Use Planning 2002 policy (SPP 2.5) and the Metropolitan Rural Policy 1995. It is not disputed that under SPP 2.5 the Swan Valley is identified as an "Agricultural Priority Management Area". The 1995 Policy is broadly consistent with and to the same intent as DC 3.4.
(Page 9)
24 Under s 241 of the PD Actthis Tribunal is required to have regard to the State Planning Framework, as follows:
"241. Tribunal to have regard to certain matters
(1) In determining an application in accordance with this Part [dealing with review of decisions] the State Administrative Tribunal is to have due regard to relevant planning considerations including –
(a) any State planning policy which may affect the subject matter of the application …"
Applicants' case
26 The first submission of Mr Sri Ramanathan is to the effect that the existing pattern of development and activities will remain the same on the land after subdivision. These activities are said to be consistent with the SVP Act s 8 objectives set out above. How this object (that is, continued use after subdivision and sale of the second lot – see below) might be achieved is discussed further below.
27 A second submission relates to family hardship if the subdivision is not approved. This matter was originally expressed to be an "exceptional circumstance" avoiding the application of DC 3.4 referred to above and its presumption against the subdivision of rural land.
28 Mr Mirco regrettably passed away shortly after the hearing. His cancer and his frailness, and the poor health of his elderly widow were
(Page 10)
- identified as hardship claims. The original plan of the applicants was for them to vacate the two-storey dwelling upon a subdivision being approved and for them to then sell the second lot. The applicants would then use the proceeds of the sale to move to more suitable accommodation. As mentioned, one of their sons, Mr E Mirco, would continue to reside in the single storey dwelling.
29 Section 241(3) of the PD Actprovides as follows:
"In determining an application for the review of the determination of, or conditions imposed in respect of, an application for approval to subdivide a lot into not more than 3 lots, the State Administrative Tribunal may have regard to claims of hardship raised by the applicant and proved to the satisfaction of the State Administrative Tribunal, if the State Administrative Tribunal is of the opinion that such regard will not affect the application of sound planning principles."
30 This matter will be returned to below.
The respondent's evidence
31 Apart from the policies and other material already referred to above, the respondent produced evidence that the lot size of properties in the immediate vicinity of the subject land were generally in excess of four hectares: see, for example, the aerial photograph and map of "Lot Sizes" dated 28 November 2005. Moreover, a number of refusals of applications to subdivide surrounding properties in the area were documented on the maps produced. Only one subdivision of land in the locality is noted, and this occurred apparently over a decade ago.
32 Mr SJ Willey was called by the respondent. Mr Willey is an academic and part-time senior planner with the respondent.
33 He told the Tribunal that the Swan Valley "is a unique agricultural and tourism resource in that it is a traditional horticultural and viticultural region in close proximity to the Perth metropolitan area". The protection of this land was, he submitted, the premise for the enactment of the SVP Act. He went further and claimed that this area (that is, the Swan Valley) "is the only locality in Western Australia that Parliament has specifically legislated to protect for rural uses".
34 He also explained (and supported) the application of the policies referred to above.
(Page 11)
35 He submitted that two hectare lots would encourage special rural or rural-residential type uses which "[had] the effect of encouraging [land] speculation and increasing the value of the land beyond its agricultural potential". In the literature, this is referred to as "The Impermanence Syndrome". Further, Mr Willey suggested that such developments would be contrary to orderly planning "because of the potential to create land use conflicts".
36 The Tribunal is satisfied that, having regard to Mr Willey's academic credentials and experience, he is qualified to express an opinion on this matter.
37 Mr Willey also argued that this Tribunal ought to follow Brister, R and Ors v Western Australian Planning Commission [2003] WATPAT 103 which held that (at [35]),
"the arguments that there are already two existing houses, hence no increase in density and that the proposed subdivision will not physically affect the fabric or the rural amenity of the area are deficient. These arguments only look at the issue in isolation and do not consider the 'bigger picture' and the serious implications for the potential to prejudice the overall planning of the locality."
The applicants' evidence
38 The applicants called Mr R Belton, a planner. Mr Belton's brief witness statement comprised a series of, in effect, assertions that the proposed subdivision would not be inconsistent with the SVP Act's objectives (s 8), set out above. The policies of the respondent, referred to above, were not addressed by him. In cross-examination, he conceded that Mr Willey's point about the pressure placed on agricultural land by the creation of smaller lots was valid: T:67.
39 Mr Sri Ramanathan's witness statement is similar in effect to that of Mr Belton's. It also contained a number of assertions, in part relying upon Mr Belton's opinion, that both the SVP Act's objectives and the policies would not be compromised by subdivision approval.
40 The basis of these assertions appears to be the belief that as nothing will essentially change after subdivision approval, the existing agricultural use of the land will be protected or encouraged, and thus viticulture would be relevantly "protected". How this was necessarily so was not demonstrated in the witness statements.
(Page 12)
41 However, it became clear during the hearing that the fundamental premise of much of the applicants' case was that the Tribunal should impose upon the subdivision a condition that, whether enforced by deed or covenant or some other mechanism, would achieve that aim.
42 No notice of this centrally important issue or argument was given in any form, and it does not appear in any witness statement filed on behalf of the applicants. After lawyers were consulted, written submissions were eventually received on this issue. The Tribunal's conclusions on the matter are set out below.
43 The Tribunal observed during the hearing that such a practice – that is, introducing an element of surprise of this nature – is to be deprecated. Cf the Administrative Appeals Tribunal in Re Prica and Comcare (1996) 44 ALD 46 at pages 62 - 63: "… [it] is unfair that a party be caught by surprise shortly before or at a hearing by the late production of evidence by the other party". Especially in an administrative Tribunal, the issues and proposed evidence ought to be clear and well understood a reasonable time before the actual hearing.
44 The applicants' son, Mr E Mirco, a resident of the property, also gave evidence. His written statement mainly concentrates on the medical and related circumstances of his parents. However, Mr Mirco's oral evidence drew attention to the preponderance of stock and equestrian activities in the locality. Mr Mirco claimed that the governmental aim of protecting Swan Valley viticulture had failed and that if there was no subdivision the property would be sold and that horses would arrive. This point was foreshadowed in earlier cross-examination of Mr Willey by Mr Ramanathan. Again, unfortunately no notice of this issue was given in any witness statement or other document. Mr Mirco also acknowledged that the lots are currently run as one largely integrated operation.
45 Mr Willey was recalled to give evidence in reply on this point of equestrian use of land in the area. He conceded that equestrian activities were occurring in the locality; that viticulture was at the moment under financial and market pressures; but he said that it still survived in the locality and that a long term view ought to be taken to protect agricultural land by preventing its ad hoc break-up.
Deeds, restrictive covenants or conditions
46 As has been mentioned, it was revealed at the hearing that a crucial element of the applicants' case was to be the suggestion that a "legal agreement be lodged by the applicant and a caveat be put on the title that
(Page 13)
- this land shall be used for only this specific purpose" that is, presumably for viticulture (T:29). The precise mechanism for this was never enunciated at the hearing: cf the discussions at T:31 ("memorial") and T:61 and T:65 ("restrictive covenant").
47 Various examples and formulations were offered by Mr Sri Ramanathan involving such apparently analogous matters as feral cats, aircraft noise and land prone to flooding. Subdivision guide plans or similar instruments were mentioned. He called this an example of "lateral thinking" and urged the Tribunal to follow suit.
48 In cross-examination, Mr Willey rejected any such model (so far as it could be understood) saying that it is "an extremely messy area where planning authorities would be stepping into and really an affront on property rights".
49 On behalf of the applicants, Messrs Hardy Bowen subsequently made written submissions on the issues generally saying that the it would be "open to the Tribunal to find that the [r]espondent has not established that the application is inconsistent with the objectives in s 8 of the SPV Act and accordingly that there is no basis for the imposition of a condition to address the [r]espondent's concerns in relation to the SPV Act". (Emphasis added.) Alternatively, they proposed a condition which permitted a Deed of Covenant and a charge enabling the respondent to lodge a caveat on the title to each lot with the aim of "requiring that [owners and subsequent owners] use reasonable endeavours to ensure the existing viticulture on the lot". The suggestion of a restrictive covenant was expressly retracted.
50 The respondent rejected this model saying that it was outside of the Commission's functions "to become responsible for monitoring and enforcing a deed of covenant entered into with the subdivider's and prospective purchaser's of the land".
51 In light of the conclusions reached by the Tribunal on the wider question before it, it is unnecessary to resolve this difference of opinion on this complex issue, except to note that the use of such devices seems in the past, at any rate, to be commonly restricted to conservation areas and the like (see, for example, Wood, F V v Western Australian Planning Commission [2003] WATPAT 96; Westralis Enterprises Pty Ltd v Western Australian Planning Commission [2004] WATPAT 112). The question will no doubt arise again in future cases and may be conveniently determined there.
(Page 14)
Discussion of the case
52 In this case, the Tribunal accepts the evidence of Mr Willey over that of the applicants' planners. His evidence was thoughtful and considered, and drew together in a coherent way not only the policies of the respondent but the framework of Area B under the SVP Act and the academic literature relating to the subdivision of rural land. Moreover, his position is broadly consistent with the previous Tribunal decisions referred to above.
53 The Tribunal is not satisfied that the applicants have overcome the presumption against the unplanned fragmentation of productive agricultural land, a result that the policies and the SVP Act seek to avoid. In short, the "practical burden" (see Willicombe v City of Gosnells (2006) 41 SR (WA) 283 at page 286) cast upon them has not been discharged by the production of suitable and relevant material permitting the Tribunal to approve subdivision.
54 As to hardship, in Brister v Western Australian Planning Commission, at [36] the former Tribunal said:
"Although the Tribunal is sympathetic towards the emotional and financial issues confronting the [applicants], the Tribunal is of the opinion that the proposed subdivision of the subject land is not consistent with the orderly and proper planning of the locality and does not accord with sound planning principles that have been formulated for the locality."
55 Thus, the Tribunal rejected a claim of hardship under the former law, now mirrored in s 241(3) of the PD Act. This Tribunal has come to the same conclusion in this case.
56 For these reasons the application under review must be dismissed.
Orders
1. The application for review is dismissed.
2. The decision under review is affirmed.
- I certify that this and the preceding [56] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR P McNAB, MEMBER
(Page 15)
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