Mirco & Anor and Western Australian Planning Commission

In the case of Mirco & Anor v Western Australian Planning Commission, the applicants sought approval for a subdivision of a small block of rural land in the Swan Valley Rural Zone. The dispute centred on whether the proposed subdivision, which would divide the existing block into two lots, was consistent with the extensive policies designed to prevent the fragmentation of productive agricultural land. The applicants cited family and health reasons for their request, while the local government and a special committee opposed the application, highlighting the shift towards equestrian activities by neighbouring properties and the decline in viticulture. The case was heard by the Western Australian Planning Commission.

The legal issues before the court involved the interpretation of the planning policies and the determination of whether the proposed subdivision aligned with the broader objectives of preserving rural land for agricultural purposes, particularly viticulture, in the face of potential residential development. The court had to assess the weight of the applicants' personal circumstances and the impact of the subdivision on the surrounding area, including the pressures on rural land and the implications for future land use.

The court found that the applicants had not sufficiently justified the proposed subdivision in light of the policies and the special legislative regime intended to protect the rural character of the area. The court noted the lack of a relevant local government planning strategy and the opposition from local stakeholders, including the neighbouring properties and the special committee. The court also highlighted the duty of the parties to provide fair notice of the material matters in issue and considered whether a Deed of Covenant or similar mechanism should be enforced to preserve viticulture on the future owners of the lots. Ultimately, the court concluded that the applicants had failed to overcome the presumption against subdivision, and the application was dismissed.

The court's final orders were that the application for review be dismissed and the decision under review be affirmed.