MUNCKTON and WESTERN AUSTRALIAN PLANNING COMMISSION - [2006] WASAT 191

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: MUNCKTON and WESTERN AUSTRALIAN PLANNING COMMISSION [2006] WASAT 191

MEMBER: MR J ADDERLEY (SESSIONAL MEMBER)

HEARD: 1 JUNE 2006

DELIVERED : 24 JULY 2006

FILE NO/S: DR 690 of 2005

BETWEEN: DAVID MUNCKTON
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Rural subdivision – Planning framework – Purpose of lots whether "Rural" or "Rural Living" – Agricultural capability – Economic sustainability – Whether river constitutes significant natural barrier – Precedent – Protection of landscape character – Fire protection performance criteria – Reliance on rail crossings – Railway noise and accident risk – Seriously entertained proposal

Legislation:

Avon Arc Sub-Regional Strategy, cl 2.4, cl 3.2.2
Draft Local Planning Strategy No 1
Draft Local Planning Strategy No 2, cl 3.5, cl 3.6, cl 3.7.2
Draft Shire of Toodyay Town Planning Scheme No 4, cl 2.1, cl 4.2.4, cl 4.2.4(h), cl 6.2.1, cl 6.2.3, cl 6.3.1
Planning and Development Act 2005 (WA)
Public Works Act 1902 (WA), s 102
Shire of Toodyay Town Planning Scheme No 1, cl 3.8.1, cl 3.8.6
Shire of Toodyay Town Planning Scheme No 3, cl 2.1

Result:

The application for review is dismissed

Category: B

Representation:

Counsel:

Mr E Samec
Mr Shuy

Solicitors:

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

Falc Pty Ltd v State Planning Commission (1991) WAR 522
Fehlauer and Western Australian Planning Commission [2005] WASAT 222
Halden & Anor and Western Australian Planning Commission [2005] WASAT 323
Hickling, MW v Western Australian Planning Commission [2003] WATPAT 92
Ingram & Anor v Western Australian Planning Commission [2003] WASCA 77
Ingram, RC and Anor v Western Australian Planning Commission [2004] WATPAT 18
Tilbrook v Western Australian Planning Commission [2004] WATPAT 100
West & Ors and Western Australian Planning Commission [2005] WASAT 326
Wilson and Anor v Western Australian Planning Commission [2004] WATPAT 215
Zimmerman and Western Australian Planning Commission [2006] WASAT 99

Case(s) also cited:

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

This review concerns an application for subdivision of a large rural lot used for grazing purposes in the Shire of Toodyay. The proposed subdivision is intended to create three small lots, intended for agricultural purposes, situated on the south side of the Avon River which traverses the land, whilst the remaining bulk of the land to the north of the river would be retained as a separate lot and continue to be used for grazing purposes.
The Western Australian Planning Commission refused the application on grounds that the subdivision was contrary to the relevant provisions of the Western Australian Planning Commission Policy DC 3.4, the recommendations of the Avon Arc Sub‑Regional Strategy, and did not meet the performance criteria or acceptable solutions of the Planning for Bush Fire Protection manual. In addition, the proposal had not addressed noise and train derailment risk associated with the nearby railway.
The applicant responded in detail to the grounds of refusal and further presented argument as to the capability and likely use of the land for agricultural purposes consistent with State policy objectives. The applicant sought to show that the subdivision was similar to others approved by the respondent in the area and that the Avon River was a significant natural barrier severing the land to justify subdivision. The applicant sought to provide a means of meeting the fire protection performance criteria by additional measures to achieve emergency access and egress to the proposed lots.
The State Administrative Tribunal was not satisfied that the applicant was able to demonstrate that the proposed subdivision achieved the objectives of the planning framework applicable to the area, in key respects, and accordingly determined to dismiss the application for review.

Introduction

This is an application for review of a decision by the Western Australian Planning Commission (the respondent) to refuse an application for subdivision of Lot 4 River Road, Toodyay (the subject land).
The application for subdivision was submitted to the respondent on behalf of Mr D Munckton (the applicant) by consultant town planners, Allerding and Burgess, on 7 September 2004. Following liaison between the applicant and the respondent, the application was amended by submission of a revised plan of subdivision and accompanying documentation on 7 October 2005.
After consultation with relevant agencies, the respondent considered the amended application and resolved to refuse permission for subdivision on 29 November 2005. The respondent's decision and reasons therefore, was conveyed to the applicant by letter dated 2 December 2005.
The applicant lodged an application for review of the respondent's decision to refuse subdivision of the subject land, Toodyay with the Tribunal on 28 December 2005.

The proposed subdivision

The subject land, known as "Deepdale", is a "park land" cleared farming property of 784.13 hectares located about 10 kilometres west of the town of Toodyay.
The subject land is elongated in shape with its greatest length lying north‑east to south‑west. The long southern boundary of the property abuts a railway reserve which roughly parallels the meandering course of the Avon River as it traverses the lot within about 60 metres to 150 metres distance of the southern boundary.
The strip of land between the southern boundary and the river is low lying and constitutes the river valley environs of the Avon River. Land to the north of the river environs, which is the bulk of the property, comprises rising landforms featuring hill slopes, hilltops and valley watersheds gravitating to the Avon River.
The application for subdivision (as amended on 7 October 2005) proposes division of the subject land into four lots of 7.54 hectares (proposed Lot 1), 10.02 hectares (Lot 2), 10.28 hectares (Lot 3) and 756.23 hectares (Lot 4). Lots 1, 2 and 3 are proposed to be located on the southern side of the river and accessed from a proposed extension of Folewood Road which is shown to cross the railway reserve and the Avon River close to the south eastern corner of the subject land. Proposed Lot 4 comprises the balance of the subject land, which is located mainly north of the river and will continue to be accessed from the north‑east from Deepdale Road across adjoining land owned by the applicant, and from the west, via Cobbler Pool Road. The proposed Lot 4 would obtain a legal road frontage access from the proposed extension of Folewood Road, although practical access would be limited because of the lack of a bridge or ford across the Avon River.
A further amended plan submitted to the Tribunal by the applicant illustrates a truncated extension of Folewood Road to just beyond the rail reserve and limiting legal and practical access to proposed Lots 1, 2 and 3 only. The area of Lot 1 is amended to 7.74 hectares. No road frontage to Lot 4 from Folewood Road is provided by this amended configuration.

Town planning scheme and policy provisions

The subject land is situated in the Shire of Toodyay (the Shire). The Shire's Town Planning Scheme No 1 (TPS 1) identifies that the subject land is in the "Rural 5 – Resource Conservation" zone.
Clause 3.8.1 of the TPS 1 states that the objectives and policies of the zone are as follows:
"Council's objective will be to ensure that land management within the zone is consistent with, and that any development will enhance the zone's status as a major scenic and recreation resource.
Council's Policy will therefore be to:
(a)retain and enhance tree and vegetation cover in order to assist against any deterioration of the zone's landscape and ecology.
(b)permit rural uses to continue in a manner consistent with good land management practice and with the enhancement of the zone's environment.
(c)exercise controls over the siting and design of buildings or works so as to enhance the visual character of the zone.
(d)assist in the obtaining of additional reserved land where this may be desirable to protect critical areas of landscape or recreational value.
(e)permit appropriate uses of a recreational nature subject to adequate controls on level of activity and siting of such uses."
The Shire also administers an additional, special purpose, Town Planning Scheme No 3 (TPS 3). Clause 2.1 states that the objective of TPS 3 is to:
"[P]rovide for additional settlement and use of appropriately located rural land within the District, and to ensure that increased residential, recreational and rural use resulting from development of Special Rural Zones, enhances the District's social and economic structure, and historic heritage, without detrimentally affecting the landscape, environment and existing agricultural activity."
TPS 3 applies its focus to seven policy areas in the Shire within which the objective and associated policies for additional settlement and use of appropriately located rural land will be administered. The subject land is not included in any of the policy areas of TPS 3.
The Shire has prepared a draft District Town Planning Scheme No 4 (draft TPS 4). The draft TPS 4 was advertised as required by regulation in 2003 and adopted subject to modifications by the Shire on 22 July 2003. The draft TPS 4 was submitted to the respondent for final approval in August 2004. In August 2005, the Shire sought further modification of the draft TPS 4. The respondent is presently assessing the draft TPS 4 as modified by the Shire.
Draft TPS 4 provides at cl 2.1 that "Scheme determinations [are] to conform with Local Planning Strategy".
Draft TPS 4 proposes that the subject land would be zoned "Rural". Clause 4.2.4(h) of the draft TPS 4 lists that the objectives of the rural zone are to:
"…
(i)protect broad‑scale agriculture from unplanned breakdown of rural land;
(ii)provide for tourist related activities, including farm stay, bed and breakfast and holiday accommodation; and
(iii)provide for a range of rural related uses such as intensive agriculture, aquaculture and rural pursuits.
…"
The subject land is identified in the draft TPS 4 as being included in the Avon River Valley Special Control Area (ARVSCA).
Clause 6.2.1 of the draft TPS 4 describes the purpose of the ARVSCA in terms of promoting:
"the objectives of the Avon Arc Sub‑Regional Strategy (January 2001) by identifying areas within the Avon Arc of high landscape value and by conserving and enhancing the significant values and features that exist within this landscape area."
Clause 6.2.3.1 of draft TPS 4 identifies relevant considerations for the responsible authority in the administration of special control areas as follows:
"To preserve and enhance the status of this area as a major scenic and recreation resource the Local Government will:
a)encourage the retention and enhancement of the vegetation cover;
b)encourage rural uses to continue in a manner consistent with good land management practice and the enhancement of the environment;
c)exercise controls over the subdivision and development of land so that the siting and design of buildings or works will enhance the visual character of the area;
d)acquire where appropriate, foreshore land to protect critical areas of landscape or recreational value and to ensure public access; and
e)permit appropriate uses of a recreational or tourist nature subject to adequate controls on the level of activity and siting of such uses."
The Shire has prepared a local planning strategy in order to guide its discretionary decision‑making processes under its town planning scheme. Draft Local Planning Strategy No 1 (draft LPS 1) prepared, advertised and adopted by the Shire in 2003, but not endorsed by the respondent, has been superseded by draft Local Planning Strategy No 2 (draft LPS 2) which has been approved by the Shire and the respondent for the purposes of advertising. Advertising commenced on 27 March 2006 and was due to close on 2 June 2006.
Draft LPS 1 and draft LPS 2 both identify the subject land as "General Agriculture"
Draft LPS 2 provides at cl 3.5 that:
"A primary objective of the Strategy is to protect valuable agricultural land. The larger landholdings in the outlying areas surrounding the townsite are part of the traditional broad acre farming areas of Western Australia.
The Strategy recommends that the land designated for General Agricultural purposes be retained in their present cadastral configuration, unless subdivision and/or amalgamation proposals are for legitimate farming proposals such as the rationalisation of lot boundaries to assist or improve an existing agricultural enterprise or to provide public road access to landlocked lots. Subdivision proposals will be assessed against the Western Australian Planning Commission's Statement of Planning Policy 2.5 – Agricultural and Rural Land Use Planning and Policy No. DC 3.4 – Subdivision of Rural Land.
The further subdivision of land ([that is] the creation of new land titles), unless for a legitimate purpose permitted by Statement of Planning Policy 2.5 and/or Development Control Policy 3.4, will not be supported and land uses incompatible with agricultural pursuits will not be permitted in the areas designated General Agriculture under the Local Planning Strategy."
The Avon Arc Sub-Regional Strategy (AASRS) is a regional planning framework document, prepared under the auspices of the Western Australian Planning Commission, and intended to co‑ordinate and guide land use and development within the Avon River valley environs.
The AASRS identifies the subject land as lying within the "Linear River Valley Greenway System" and within an area of "Highest Priority" landscape management requirement.
In relation to landscape, the AASRS recommends at cl 2.4 that the objective for the "Highest Priority Visual Management Area A" is to require that:
"Development or changes of land use should be designed to have no negative visual impact and a positive overall impact as far as practical to an observer."
In relation to the "Linear River Valley Greenway System", land management measures prescribed at cl 3.2.2 of the AASRS include:
"•Maintain and enhance the conservation and landscape elements within the Linear River Valley Greenway System.
•The visual landscape and remedial environmental outcomes will be the primary determinants in assessing changes in land use.
•Subdivision of land will generally not be supported adjacent to the waterways.
•As part of subdivision approval near waterways an appropriate foreshore reserve (from the top of the bank) or greater should be sought.
•Development proposals must demonstrate that they meet fire hazard and management regimes.
•There is a general presumption against the clearing of remnant or significant areas of vegetation."
Statement of Planning Policy No 2 – Environment and Natural Resources Policy (SPP 2) identifies policy measures at cl 5.1(ii) seeking "opportunities for improved environmental outcomes including support for development which provides for environmental restoration and enhancement".
At cl 5.6 of SPP 2 the policy seeks to:
•Protect and enhance areas of agricultural significance, having regard to the State, regional and local issues and characteristics, and to the requirements of State Planning Policy 11 (now SPP 2.5) Agricultural and Land Use Planning.
•Consider the natural resource capability of rangelands and agricultural lands.
•Diversify compatible land use activities in agricultural areas and rangelands based on principles of sustainability and recognising the capability and capacity of the land to support those uses.
SPP 2 further provides that "planning should ensure that the State's agricultural base is protected from the unplanned loss of high quality productive agricultural land due to permanent changes of land use, and maximise the potential of productive farm land which is of high quality and strategic significance".
Statement of Planning Policy No 2.5 – Agricultural and Land Use Planning (SPP 2.5), in conjunction with Development Control Policy DC 3.4 – Subdivision of Rural Land (DC 3.4), is used by the Western Australian Planning Commission as the state wide basis for determining applications for the subdivision of rural land.
Key objectives of SPP 2.5 are:
"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.
2.Plan and provide for rural settlement where it can:
(a)benefit and support existing communities; and
(b)have access to appropriate community services and infrastructure.
3.Minimise the potential for land use conflict by:
(a)providing adequate separation distance between potential conflicting land uses;
(b)introducing management requirements that protect existing agricultural land uses;
(c)identify areas that are suitable and capable for intensive agricultural pursuits as agricultural priority areas; and
(d)avoid locating new rural settlements in areas that are likely to create conflict with established or proposed agricultural priority areas.
4.Carefully manage natural resources by:
(a)discouraging development and/or subdivision that may result in land or environmental degradation;
(b)integrating land, catchment and water resource management requirements with and use planning controls;
(c)assisting in the wise use of resources including energy, minerals and basic raw materials;
(d)preventing land and environmental degradation during the extraction of minerals and basic raw materials; and
(e)incorporating land management standards and sequential land use change in the land use planning and development process."
SPP 2.5 at cl 5.3.1(iii) provides that:
"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) [sic] Clause 6 can be complied with."
Clause 5.3.2(a) of SPP2.5 identifies that in areas zoned for "Rural‑Residential" purposes "the lot size should range from 1ha to 4ha [sic] depending on local conditions". Clause 5.3.3 identifies that in areas zoned for "Rural Smallholdings" purposes "lot sizes ranging from 4ha to 40ha [sic] or more depending on local conditions" are appropriate.
SPP 2.5 contains a glossary of terms including a definition of "Rural Smallholdings" zone which is described as:
"Land used for minor rural pursuits, hobby farm, conservation lots and alternative residential life style purposes where part‑time income from cottage industries, home occupation and use of the land for agriculture may be derived. This land use seeks to preserve and enhance landscape quality, environmental values and conservation attributes."
DC 3.4 reiterates the policy objectives of SPP2.5. At cl 3.1.1 the DC 3.4 states:
"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."
At cl 3.2.1, DC 3.4 provides that:
"Notwithstanding section 3.1.1, the Commission may approve subdivision of rural land for the following specific purposes:
(a)A significant natural or man-made feature already physically divides the proposed lots and an undesirable precedent would not be set."

At cl 6.1.1, DC 3.4 provides that the respondent may also take into account, amongst other matters, the following additional information in respect to considering applications for subdivision of rural land:
"(a)Impact on agriculture ...
(b)Size of lots – Lots are of sufficient size to be environmentally and economically sustainable in the long‑term as agricultural enterprises.
(c)Land capability – The capacity of the land to accommodate the proposed use. Each lot contains sufficient land of high to very high capability for intensive agriculture.
(d)Servicing – Each lot has a sustainable water supply for domestic, fire management and agricultural purposes ...
(e)Lot boundaries – Subdivision boundaries should be designed to reflect sound planning and land use management.
(f)Fire management – All proposals should comply with the performance criteria and standards specified in the Commission's Fire Planning Policy. Access to the proposed lots including egress in the case of emergency.
(g)Land use – The property in relation to adjacent properties, reserves and roads. Any part of the land currently used for agriculture. Existing and proposed adjoining land uses. Whether the subdivision would prejudice future urban expansion. Significant noise sources or other forms of nuisance to the proposed use. Identification of previous use and any contaminated soils or construction and demolition waste for filled areas.
(h)Rural amenity – Rural character and amenity of area. Views to and from the site. How the proposal will enhance the rural management practices within the zone.
(i)Heritage ...
(j)Environment – Environmental impacts of the proposed development on areas of environmental sensitivity, natural features and existing development.
(k)Land management – That is in accordance with natural resource management plans and existing integrated catchment management plans including:
• stocking controls
• clearing restrictions
• fencing controls
• water source protection and drainage
• open space requirements
• ...
(l)Objections or recommendations from relevant government agencies and local government."
Development Control Policy DC 3.7 – Fire Planning (DC 3.7) states the following objectives:
"3.1To identify areas where fire poses a significant threat to life and property.
3.2To avoid intensifying the fire risk to life and property through inappropriately located or designed land use and development.
3.3To ensure that land use and development takes into account fire protection requirements and includes specified fire protection measures where there is any risk from fires."
Clause 4.5 of DC 3.7 requires that:
"More intensive land use and development should only take place in areas where the performance criteria and acceptable solutions set out in Planning for Bush Fire Protection can be achieved."
The manual Planning for Bush Fire Protection recommends at cl 3.4 that:
"In bush fire prone areas battle axe accesses should generally be avoided because they often do not provide two way access and egress to residents. However, where they are used they should comply with the minimum standards for driveways."
The minimum standards for driveways are specified as 6 metres width and no more than 600 metres in length.
"Within bush fire prone areas access routes and driveways designed for use by residents should be suitable for conventional two‑wheel drive vehicles. In addition, all public and fire access should allow for two‑way traffic, so that vehicles can safely enter as well as evacuate in a fire emergency.
In these areas, it is also necessary that all public access have two different access options. This applies to access routes leading into a subdivision, as well as those within a subdivision. By providing two access options, residents can evacuate and fire services can enter even when one access route is blocked by fire."

The refusal by the respondent

The respondent refused the application for subdivision of subject land into four lots for the following reasons:
"1.The proposal is contrary to Commission Policy DC 3.4 Subdivision of Rural Land by reason that:
•the subdivision of this land for more intensive purposes is not provided for in the Shire of Toodyay Town Planning Scheme No. 1;
•the river is not considered to be a significant natural or man‑made feature to justify subdivision, and would set an undesirable precedent;
•the application has not satisfactorily demonstrated as outlined under Clause 6.1.1 [sic] that the proposed 7.54ha, 10.02ha and 10.28ha [sic] lots:
a)are of sufficient size to be environmentally and economically sustainable in the long term as an agricultural enterprise;
b)obtain sufficient land of high to very high capability for intensive agriculture; and
c)reflect good environmental and land management practice.
2.The proposed subdivision is inconsistent with the recommendations of the Avon Arc Sub‑Regional Strategy (2001), which places the subject land within the 'Avon River Linear Valley Greenway' system and 'Highest Priority Landscape Management Priority Area' where the objective is to protect land from inappropriate development and land use and where further subdivision of land is generally not supported.
3.The proposed subdivision is not consistent with the Commission's Policy DC 3.7 Fire Planning, which requires that more intensive land use should only take place where the performance criteria and acceptable solutions set out in Planning for Bush Fire Protection can be met. The proposal does not meet the criteria for battle axe legs which should be no more than 600 metres in length.
4.The proposed subdivision has not satisfactorily addressed the proximity of a major railway and adequate separation from potential noise, vibration and train derailment.
5.Approval to the subdivision would create an undesirable precedent for the further subdivision of other lots of a similar size in the Rural Zone of this locality."
In its supplementary advice to the applicant, the respondent explained that DC 3.4 does not contemplate subdivision in accordance with cl 3.2.1(a) unless there is significant physical separation between the proposed lots, the new lot boundaries are consistent with that physical separation, and there is no undesirable precedent set. In this case, the proposal is not consistent with the boundaries of the physical feature and there is a precedent for further subdivision in a similar manner adjacent to the Avon River.

The respondent's argument

The respondent's argument relies substantially on the proposition that the intended subdivision is inconsistent with objectives and provisions of the town planning scheme and local, regional and State policies applicable to the land.
Ms R Watts, an officer of the Department of Planning and Infrastructure, gave evidence on behalf of the respondent, detailing the circumstances where the proposal was at odds with the prevailing planning framework.
In her evidence, Ms Watts argued that the proposed lots south of the river were of a size and character appropriate for "Rural Smallholdings" as described in SPP 2.5 and that therefore the subdivision was promoting a use, that is, "Rural Smallholdings", which was a use not permitted in the "Rural 5 – Resource Conservation" zone as specified at cl 3.8.6 of TPS 1.
Ms Watts expressed the opinion that the subdivision was inconsistent with cl 3.8.1 of TPS 1 because it did not meet the Council's objective to enhance the zone's status as a major scenic and recreation resource. In this regard, Ms Watts stated that there is no apparent intent within TPS 1 to support subdivision within the "Rural 5 – Resource Conservation" zone. Rather the intent of the zone is to encourage conservation and preservation of the landscape and avoid any deterioration thereto.
Ms Watts drew attention to the Shire's TPS 3 which specially identifies locations within the Shire where "Rural Smallholdings" zoning will be supported and noted that the subject land is not included in the relevant policy areas of TPS 3.
In relation to draft TPS 4, Ms Watts argued that because the scheme had reached an advanced stage in preparation, it must be considered as a seriously entertained planning proposal by the Tribunal. The proposed subdivision is inconsistent with the provisions of draft TPS 4 because:
•It would result in the unplanned breakdown of rural land contrary to the objectives of the relevant "Rural" zone described at cl 4.2(i).
•In relation to cl 6.2.1 of the draft TPS 4, which refers to the purpose of the ARSCA, it would be detrimental to the conservation and enhancement of the significant values and features that exist within the landscape of the Avon Arc as expressed by the AASRS.
•There is no intent identified in the draft TPS 4 to support subdivision within the relevant "Rural" zone.
Ms Watts referred, in her evidence, to the Shire's draft LPS 1 and LPS 2. Ms Watts expressed her opinion that the proposed subdivision is inconsistent with cl 3.5 of draft LPS 2 which has the primary objective of protection of valuable agricultural land. To this end, the clause recommends that land designated "General Agriculture" (which includes the subject land) should be retained in its present cadastral configuration unless subdivision proposals are for legitimate farming proposals such as the rationalisation of lot boundaries to assist or improve an existing agricultural enterprise or to provide public road access to landlocked lots.
Ms Watts observed that, if what is proposed by the applicant constitutes a subdivision to promote "intensive agriculture" or if the land is demonstrated to be able to support "intensive agriculture", cl 3.6 of the draft LPS 2 requires an amendment to the TPS 4 to rezone the land for the purpose.
Ms Watts further observed that the proposed subdivision would create lots which would likely be inconsistent with the building setback requirements prescribed under cl 3.7.2 of draft LPS 2 which are:
•100 metres from major roads.
•50 metres from local roads.
In this regard, Ms Watts noted that, whilst the Shire would have discretion to amend the setback requirements in circumstances where there will be no perceived visual impact on the landscape values of the area, in her opinion, the strip of land south of the river has significant landscape value and is visible from the railway line for the whole of its length and the eastern portion is similarly visible from River Road.
Under examination on the matter of whether draft TPS 4 and draft LPS 2 should be accorded the status of seriously considered proposals, counsel for the applicant drew attention to the planning report assessing the proposed subdivision prepared by Ms Watts for the respondent, dated 23 November 2005, which stated "it is likely that substantial modifications will be made to the advertised versions by the Shire, therefore these are not seriously considered proposals".
With respect to SPP 2.5, Ms Watts drew attention to the four key policy objectives and asserted that the proposed subdivision did not accord with those objectives. Further, Ms Watts emphasised the inconsistency of the proposal with cl 5.3.1(iii) which refers to the pre‑requisite of zoning before allowance of subdivision for "Rural‑Residential" or "Rural Smallholding" lots.
Ms Watts addressed the provisions of DC 3.4 and asserted, in her evidence, that the proposed subdivision is inconsistent with the requirements of DC 3.4 on the following grounds:
•The proposed subdivision is not provided for in a town planning scheme, local planning strategy or rural strategy and therefore there is a general presumption against subdivision under the policy in accordance with cl 3.1.1.
•There is no significant natural or man made feature that physically divides the land into the proposed lots as envisaged under cl 3.2.1 of DC 3.4. The proposed subdivision, if allowed on this ground, would therefore create an undesirable precedent.
•The proposed lots are unlikely to be environmentally and economically sustainable in the long term as an agricultural enterprise thus not achieving the criteria set out at cl 6.1.1(b) of DC 3.4.
•It has not been demonstrated that the land has sufficient capacity to accommodate intensive agriculture as provided at cl 6.1.1(c).
•The proposed subdivision does not comply with the performance criteria and standards in the relevant Fire Planning Policy referred to at cl 6.1.1(f).
•Because the proposed smaller lots are adjacent to the railway they are likely to be subject to detrimental impacts from noise, vibration and rail accident risk. No noise impact assessment has been carried out. The rail line carries about 50 trains per day travelling at 70‑100 kilometres per hour. In the absence of noise assessment of the environs, the respondent, based on advice from West Australian Government Railways, the Public Transport Authority and Department of Planning and Infrastructure, would seek a 50 metre buffer between the rail line and any dwelling. Such a buffer would preclude use of the proposed building envelopes on the land.
•Safety issues are triggered by the proposed subdivision and its relationship with the rail line. Rail crossing treatments would likely be required for Folewood Road. Other existing crossings of the rail line are likely to be closed for safety reasons.
•The proposed subdivision and development of the smaller lots would be unlikely to enhance the views to and from the site as building envelopes will need to be raised above flood levels generating a prominence of development visible from the railway and road contrary to cl 6.1.1(h) of DC 3.4.
Continuing her evidence, Ms Watts cited DC 3.7 and its reference to cl 3.4 of the manual "Planning for Bushfire Protection" which discusses battle axe lots and the maximum length of access legs. Because the proposed subdivision is served by access legs of 1 kilometre and 2 kilometres in length, the proposed subdivision is non‑compliant with the preferred maximum length identified in s 3.4 of 600 metres.
Ms Watts also referred to the manual's recommendation that two access options should be available to each lot. Ms Watts expressed concern that although five river crossings were identified on the applicant's subdivision plan, these crossings were not demonstrably practical for two wheel drive vehicles, nor did they offer a reasonable route back to the public road system.
Under examination Ms Watts acknowledged and accepted the applicant's expert evidence that the proposed subdivision could comply with DC 3.7 and the "Planning for Bushfire Protection" manual if the proposal met the necessary performance criteria. Ms Watts maintained doubts that the proposed occupational rail crossings would remain available to the land.
Turning to the AASRS, Ms Watts in her evidence, was of the view that the proposed subdivision was not consistent with the relevant strategy landscape objectives because the subject land is located in the "Highest Priority Landscape Management Area" wherein development should be designed to have no negative visual impact on the rural landscape and wherein further subdivision of land should generally not be supported. To explain the reasons for this opinion, Ms Watts pointed out that clearing of vegetation would need to take place to effect firebreaks and access driveways and building sites would need fill to ensure dwellings and effluent disposal systems were established above the 1 in 100 years flood level. Dwellings built on the proposed development envelopes would be likely to be visible from River Road, and from the railway line, and would therefore be inconsistent with the scenic and recreational values of the area which is characterised by a landscape of natural vegetation.
On the question of precedent, Ms Watts drew the Tribunal's attention to the history of recent subdivisions in the area. Of most relevance was the subdivision of Lot 102 and the subject land approved by the respondent to create lots of 2.9 hectares, 2.6 hectares, 6 hectares, 6.1 hectares, 12 hectares and 125 hectares. Ms Watts explained that the subdivision approval, which took place in 1999, was approved on the basis of reasons that included the acceptance by the respondent that the land was severed by the Avon River and River Road and because the lot sizes proposed represented a transition between the smaller lots of the Toodyay townsite and the larger lots of the "Rural 5" zone. Ms Watts argued that the current proposal for subdivision of the subject land is distinguishable from the 1999 approval because it is located further west, away from the Toodyay townsite, and does not represent a transitional area.
Ms Watts advised the Tribunal that a subdivision immediately to the west of the subject land, creating three lots of 53.16 hectares, 23.7 hectares and 3.35 hectares was approved by the Minister for Planning on appeal in 1999. The reasons for approval included the circumstance that the property already comprised three titles which were proposed to be rationalised having regard to severance by the rail line and a local road.
Ms Watts further advised the Tribunal that the examples of subdivisions outlined in her witness statement either predated the currently prevailing planning framework for the area, or were otherwise consistent with relevant policies.
Ms Watts referred to plans accompanying her witness statement identifying a number of properties in the area which would be affected in the event that a precedent is established by the approval of the proposed subdivision.
Ms Watts submitted further plans to the Tribunal illustrating consolidated ownership of lots in the locality of the subject land. According to Ms Watts the plans showed that lots referred to in the applicant's evidence as individual lots upon which agricultural activity was taking place, were in some instances component lots of larger land holdings. Counsel for the applicant objected to the receipt of this evidence on grounds that the ownership of land was not a relevant matter to the planning issues at hand and should not be considered by the Tribunal. The Tribunal nevertheless accepted that the evidence may be relevant in its deliberations in so far as the documentation was supplementary to the evidence submitted by the applicant as to the use of small parcels of land in the area. In this regard, it may be relevantly contemplated that consolidated ownership of small parcels of land could have a practical bearing on the nature of use of the land having regard to rural land use management practices and economies of scale. The Tribunal accepted Ms Watts' evidence as potentially helpful for these reasons.

The applicant's argument

The applicant's argument was founded on the proposition that the proposed subdivision was entirely consistent with the relevant planning framework for the area because the proposed lots, if allowed, would enable an increased capacity for the land to be used for rural purposes, would remain rural in character consistent with the landscape character of the area and would otherwise conform with appropriate subdivision and development requirements of the regulatory authorities.
Mr D Munckton, the owner of the subject land and applicant, gave evidence to the effect that the subject land is operated as a grazing property, and that he runs 3000 to 4000 sheep and 130 cattle. The sheep are reluctant to ford the Avon River and thus the grazing operations of the property are largely confined to the northern side of the river.
The river normally runs from April until the end of November and sometimes reaches 150 metres width when in full flood, thus constituting a significant natural physical barrier to the management and use of the farm.

Mr Munckton advised the Tribunal that in his opinion, his farming operation was not economically sustainable taking into account the capital value of the land and the low rate of return from the grazing business. Mr Munckton stated that his purpose in farming the property was for the enjoyment of a lifestyle, not as a financial investment. The land on the southern side of the river generates little or no return to the business.
Mr Munckton, in his evidence, listed other lots in the area, which are of similar size to the proposed lots on the southern side of the river, and which are being actively used for agricultural production.
Mr P Fievez, an agricultural scientist and consultant, gave evidence on behalf of the applicant to the effect that the soils of the proposed three lots south of the river are very productive for agriculture and that the areas of cleared land on each of the three lots, ranging from approximately 4.5 hectares to 8 hectares would be sufficient for agricultural production.
Mr Fievez gave evidence that in his opinion, creation of three lots south of the river was preferable because a single 17.14 hectare lot would be too large and overwhelming for one new owner to manage.
Mr Fievez presented his analysis of the economic viability of the grazing operation of the farm and identified that the return per hectare without taking account of land value, interest and overheads is $73.79 per hectare. After taking account of interest and overheads, this return is actually negative at ‑$329.20 per hectare. Mr Fievez concluded that the farm was not economically viable.
Mr Fievez presented costings to show that the production of an oaten hay crop which could be grown on any of the three southern lots would return $198 per hectare after deduction of production costs.
Mr Fievez concluded his evidence with documentation and photographic illustrations of various forms of horticulture and pastoral activity on small lots in the vicinity of the subject land.
Mr P Fitzgerald, an experienced town planning consultant, gave evidence on behalf of the applicant.
Mr Fitzgerald explained that the proposed subdivision was designed to create land use parcels south of the river, large enough to support meaningful land use, but small enough to facilitate management by a small farming operation.
In terms of TPS 1, Mr Fitzgerald highlighted that the proposed subdivision enables an increased capacity for viable agricultural activity without necessitating the further clearing of vegetation. It will carefully control development within building envelopes, protect and enhance riparian vegetation under the terms of a foreshore management plan and provide greater surveillance and control of the land to protect against fire, vandalism and misuse of the land. In these circumstances, the proposed subdivision is consistent with TPS 1 objectives and policies described at cl 3.8.1.
Because the proposed subdivision is not intended to provide for "Rural Smallholdings" lots, Mr Fitzgerald argued that TPS 3, which identifies land suitable for "Rural Smallholdings", is not relevant. The subject land should be assessed as a "rural" proposal based on its capacity to support agriculture.
Mr Fitzgerald referred to SPP 2 and noted the consistency of the proposed subdivision with relevant policy measures of SPP 2 including:
•Improved environmental outcomes (cl 5.1(ii)).
•Protection, retention and intensification of an area of agricultural significance (cl 5.6).
•Protection against unplanned loss of agricultural land.
With respect to SPP 2.5, Mr Fitzgerald addressed the policy objectives, noting that the proposed subdivision would achieve the goal of discouraging land uses unrelated to agriculture and would improve the level of investment in agricultural production. In this regard, Mr Fitzgerald expressed the view that the further policy objective of minimising the ad hoc fragmentation of rural land should not preclude all subdivision particularly in instances where other State and local policies have been complied with.
Mr Fitzgerald furthered the applicant's argument in relation to SPP 2.5 noting that the proposed subdivision would be consistent with the policy in that further settlement of the new lots would increase the local population and benefit the existing community, there would be minimal land use conflict and the proposal would lead to improved management of natural resources (the Avon River) as outlined previously.
Mr Fitzgerald concluded his evidence in relation to State planning policies by observing that they are "higher order" policies and should be accorded more weight than development control policies.
Tuning to the development policies, Mr Fitzgerald said that the policies should not be rigidly applied without reference to the merits of the case. Because the proposed subdivision has met the objectives of SPP 2.5 (which is a "higher order" policy), DC 3.4 should not preclude the subdivision.
Mr Fitzgerald acknowledged that DC 3.4 contains, at cl 3.1.1, a presumption against subdivision unless it is specifically provided for in a town planning scheme, an endorsed local planning strategy or an endorsed local rural strategy, and further acknowledged that the applicant's subdivision, in the manner proposed, is not provided for in any such document.
Mr Fitzgerald drew attention to cl 3.2.1(a) of DC 3.4, which allows subdivision where a significant natural or man made feature physically divides the land. Mr Fitzgerald considered that the Avon River was such a significant natural feature and was an impediment to the land being farmed as a single unit. The application of this provision of the policy would not cause an undesirable precedent because similar or smaller lot sizes have been approved in the past close to the subject land where the lands in question have been severed by river and rail.
Mr Fitzgerald commented on the AASRS in terms emphasising that any development resulting from the proposed subdivision would be consistent with the zoning of the land, controlled as to visual impact under the Council's town planning scheme, be rural in nature, and therefore be in character with the landscape of the locality. In any case, Mr Fitzgerald argued, the land south of the river is lower than River Road and therefore the vista to the landscape feature of the "scarp" would be unlikely to be impacted in any significant sense.
Draft TPS 4 may qualify as a seriously entertained planning proposal, but its significance is "diluted" by a number of factors including the duration of its draft status. In this regard, the scheme has been changed substantially since advertising and may need to be readvertised. TPS 4 is linked with draft LPS 2 which is also likely to change following advertising and following consideration by the respondent.
Mr Fitzgerald contended that the proposed subdivision did not represent an unplanned breakdown of rural land because, in other respects, the proposal conformed with the Shire's and the respondent's relevant policies and objectives.
Draft LPS 2 should not be considered a seriously entertained planning proposal because it is still subject to change following advertising, and which in turn could have effect upon the content of draft TPS 4.
Mr Fitzgerald noted that the proposed subdivision was nevertheless consistent with the objective for "General Agriculture" described in draft LPS 2 at cl 3.6 in that the subdivision enhances, rather than diminishes the agricultural use of the land. The agricultural capability of the land, as shown by Mr Fievez, demonstrates that the subdivision is a legitimate farming proposal.
Mr Fitzgerald, in his evidence, suggested that the proposed lot sizes are capable of "broad acre" farming. It is not proposed to subdivide the land for "intensive agriculture". Rather, the proposal is for the "intensification of rural activity" based on addressing the current under utilisation of the land.
On the issue of potential noise nuisance from train movements impacting on the proposed lots south of the river, Mr Fitzgerald advised that in the past, a 20 metre setback between rail and development had been considered acceptable by the Shire. Measures such as insulation and double glazing could be implemented as conditions of approval to minimise noise impact.
With respect to safety concerns, Mr Fitzgerald pointed out that the rail line lies in a "cut" about 3 metres to 4 metres deep in locations adjoining the development envelopes of Lot 1, Lot 2 and Lot 3. Such a configuration of the land form and the straightness of the track would render risk of damage from derailment as unlikely. Further, the crossing at Folewood Road is in a highly visible location and is already constructed to a bituminised crossing standard. Upgrading would not be warranted for such a limited increase in traffic generated by three new lots.
With regard to the issue of precedent, Mr Fitzgerald was of the view that the circumstances of the proposed new lots south of the river were generally consistent with a series of lots created over the years, between the river, road and railway line in the area west of Toodyay. These lots were illustrated on plans attached to Mr Fitzgerald's witness statement. Given the presence of such lots created on the basis of the severance of land by the road, rail and river, the principle has been established for subdivision approval in circumstances similarly pertaining to the subject land.
The final witness for the applicant was Mr R Davis, a chartered fire engineer, gave evidence to the Tribunal that the proposed subdivision was generally in accordance with the acceptable solutions of the Planning for Bushfire Protection guidelines, with the proviso that access to proposed Lot 2 and proposed Lot 3 include provision for:
•Railway crossings for alternative egress to be extended to the subdivision and to comply with and be maintained in accordance with acceptable standards as described in the Planning for Bushfire Protection guidelines.
•Passing bays to the acceptable solution standard.
•Turn around areas to the acceptable solution standard.
•All other requirements for access to the acceptable solution standards.
In the event that the preceding provisions are implemented the subdivision will comply with the performance criteria of the Planning for Bushfire Protection guidelines notwithstanding that the battle axe access driveways exceed 600 metres in length.
Under examination, Mr Davis was unable to confirm whether the identified alternative egress rail crossings were in fact lawful and permanently available to the land. Mr Davis acknowledged that if the alternative egress rail crossings were not available then the proposed subdivision would not meet the relevant performance guidelines.

Analysis

In conducting the following analysis, the Tribunal took into consideration the following list of authorities:
•Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522;
•Fehlauer and Western Australian Planning Commission [2005] WASAT 222;
•Halden & Anor and Western Australian Planning Commission [2005] WASAT 323;
•Hickling, MW v Western Australian Planning Commission [2003] WATPAT 92;
•Ingram & Anor v Western Australian Planning Commission [2003] WASCA 77;
•Ingram, RC and Anor v Western Australian Planning Commission [2004] WATPAT 18;
•Tilbrook v Western Australian Planning Commission [2004] WATPAT 100;
•West & Ors and Western Australian Planning Commission [2005] WASAT 326;
•Wilson and Anor v Western Australian Planning Commission [2004] WATPAT 215; and
•Zimmerman and Western Australian Planning Commission [2006] WASAT 99.
The respondent's argument is founded on the proposition that the proposed subdivision represents an inappropriate fragmentation of rural land which is identified as an important agricultural resource and a highly valued landscape quality that ought to be protected.
To support this argument, the applicant has tendered evidence to outline the planning framework applicable to the area, including the local planning schemes, draft policies, the local regional policy, and state planning and development control policies.
Key arguments which the respondent advanced were:
•That the proposal created lot sizes which were by definition "Rural Smallholdings" that would not be allowable other than where specifically provided for by the town planning scheme.
•That the proposed lots were of a size not economically sustainable in the long term as agricultural enterprises.
•That the Avon River did not constitute a significant natural physical barrier which would justify subdivision of the land.
•That the subdivision did not meet acceptable fire protection standards.
•That the proposed subdivision and consequent development would negatively impact upon the landscape character of the area which has been identified as of the highest visual importance.
•That the proposed subdivision, if approved would set an undesirable precedent for further subdivision of other lots of similar character in the locality.
The applicant responded to each of the preceding arguments and furthered the case for the proposed subdivision by placing an emphasis on the positive outcome for agricultural productivity on the land that would be likely if the small lots on the southern side of the river are utilised for some form of agriculture.
The applicant also identified other similar circumstances in the locality where subdivision had been approved in the past as a result of severance of land by road, rail and river.
The Tribunal noted the history of subdivisions in the area and the examples of physical severance of land that resulted in subdivision approvals, but was most persuaded by the evidence of Mr Munckton in relation to the practical difficulty of farm management over the whole of the subject land when the Avon River is flowing. The Tribunal was mindful of the significance of the Avon River within the region, its physical characteristics and its substantial dimensions which led to the conclusion that the river is a demonstrably substantial feature that practically divides the land. The Tribunal noted that the physical division of the land did not, however, coincide with all the boundaries of new lots associated with the proposed subdivision.
The Tribunal considered the evidence of the applicant that the proposed lots were likely to be used for agriculture. This evidence included examples of similar size lots in the locality used for farming activities, evidence from Mr Fievez as to the productive capability of the soils on the southern side of the river, an example of the operating margin for oaten hay production on the land, and advice from Mr Munckton that local estate agents have advised him of good demand for lots of the kind anticipated from the proposed subdivision.
The applicant did not seek to demonstrate that the new lots on the southern side of the river would be of sizes that were economically sustainable in the long‑term other than in the form of a part time or hobby scale of agriculture as shown by Mr Fievez in his oaten hay production example. To translate the example to one of the larger lots of 10 hectares in area, the oaten hay annual production value at the operating margin of $198 per hectare would be $1980 (assuming the lot was totally cleared and assigned to production). A return at that scale is hardly consequential in terms of an agricultural income and would certainly be unsustainable for anyone other than a "life style" resident who relied on other income means. The Tribunal is of the view that economic sustainability couched in these terms is unhelpful in interpreting the expression as it appears in DC 3.4 and unsatisfactory in demonstrating that the policy consideration can be met.
Irrespective of the question of economic sustainability of the proposed lots, the Tribunal accepts the argument of the applicant that the lots are capable of agricultural production. The Tribunal remains unconvinced that the particular examples of agricultural activity and the operating margins illustrated by the applicant represent anything other than a very minimal incentive to use the land for agricultural purposes.
Mr Fitzgerald, for the applicant, argued that the proposed lots were not "Rural Smallholdings" but were rural lots intended for agricultural use. This distinction was not satisfactorily explained. The Tribunal has difficulty with this argument from a number of perspectives. Firstly, the applicant is not able to determine or control the aspirations of the new lot owners who may otherwise wish to use the land just for residential purposes or as "Rural Smallholdings" in the manner that the policy definition describes. Secondly, the applicant's witness, Mr Fievez, outlined typical hobby agricultural activities that could be contemplated on the lots which seem to match the SPP 2.5 and DC 3.4 policy definitions of "Rural Smallholdings". Thirdly, the proposed lot sizes also fall within the range of rural lot sizes that match the policy definition. Fourthly, Mr Munckton, in his evidence, advised the Tribunal that the lots would be suitable as rural "lifestyle" lots and that the local estate agent had confirmed a demand for such "lifestyle" lots. In the circumstances, it is difficult for the Tribunal to reach any conclusion other than that the proposed lots on the southern side of the river are reasonably described as, and most likely to be used, as "Rural Residential" or "Rural Smallholdings" as defined in the relevant State policies. Therefore, the proposed subdivision would not escape the conditions for creation of "Rural Residential" or "Rural Smallholdings" lots outlined at cl 5.3.1(iii) of SPP 2.5.
The question of fire protection measures was addressed by the applicant's witness, Mr Davis, who recognised that the proposed subdivision would need to be serviced by alternative egress routes in order to meet the performance criteria of the Planning for Bushfire Protection guidelines. The subdivision would therefore need to rely on the provision and maintenance of at least two emergency egress crossings of the railway line. Mr Davis referred to existing "occupational" access points across the rail line that could serve proposed Lot 2 and proposed Lot 3, but was unable to assist the Tribunal as to whether such crossings were of a formal nature with a legally binding right of access to the subject land. Mr Davis further stated that if the crossings could not be permanently relied upon, then the proposed subdivision would not meet the relevant performance criteria.
Submissions to the Tribunal from the respondent and the applicant, with regard to draft conditions appropriate to a possible approval of the subdivision, indicated differing opinions as to the status and future of the rail crossings to the land. The respondent submitted that Westnet Rail had advised that existing occupational crossings should be closed. The applicant argued that Westnet Rail was not the responsible agent for the making of rail crossings and that the Public Transport Authority was the body responsible as provided for under s 102 of the Public Works Act 1902 (WA). Correspondence from the Public Transport Authority to the respondent, dated 6 December 2004, regarding the proposed subdivision offered no objection to the subdivision and otherwise recommended several conditions including dedication of Folewood Road associated with the existing rail crossing.
The Tribunal noted that the subdivision application (refer page 2 of the letter of application by Allerding Burgess, dated 1 September 2004, addressed to the respondent) at the time of the Public Transport Authority's correspondence, specifically undertook to consolidate the three rail crossings to just the one at Folewood Road. It is therefore reasonable to assume that the Public Transport Authority, in considering its response to the subdivision application as it was proposed at the time, accepted that the removal of the other two crossings was to be anticipated in respect to the proposed subdivision.

The Tribunal was not presented with any further evidence by authoritative witnesses to substantiate whether the suggested alternative emergency rail crossings were a realistic long‑term service to the land. In the circumstances, the Tribunal is unable to reasonably rely on the proposed measure to meet the relevant fire protection performance criteria.
On the question of whether the proposed subdivision is likely to contradict the landscape management objectives of the area as articulated in the AASRS, the applicant argued that the development and land use associated with the proposed subdivision would be rural in nature, constitute an attractive rural landscape in its own right, and therefore be in character with the landscape quality of the area. Visibility of the land to the south of the river is limited because it is lower than the road and does not impinge upon the landscape vista of the "scarp" or hillside which rises beyond the river.
The respondent relied upon the expectation that the proposed subdivision and resultant development would require clearing of vegetation and the development of dwellings and ancillary structures that would not be in keeping with the scenic and recreational values of the area which are essentially composed of landscape and natural vegetation.
The Tribunal was of the view that neither argument was particularly helpful in illustrating the prevailing visual character of the area or modelling the likely visual impact of the subdivisional development. In the circumstances that the subject land is clearly identified as being located in the "Highest Priority Landscape Management Area" within the "Avon River Linear Valley Greenway" system, the onus of demonstrating landscape compatibility lies with the applicant. In this regard, the applicant has failed to adequately substantiate a case to the Tribunal that the proposed subdivision would not detrimentally affect the appearance of the rural landscape.
The question of precedent has been argued by the applicant from the perspective that the subdivision is typical of a number of similar circumstances in the locality whereby subdivision has been granted in the past as documented in the applicant's witness statements. The typical grounds for approval of these subdivisions has been the presence of physical barriers to the use of the land such as roads, rail lines and the river. Resultant lot sizes have been comparable with those proposed for the subdivision of the subject land.
The respondent has sought to discount the relevance of previous subdivisions arguing that in one case the subdivision of similarly situated land between river and road, west of the Toodyay townsite in 1999, constituted a "transition" of lot sizes from the town site to the larger rural lot sizes further westward where the subject land lies. Another subdivision immediately west of the subject land was approved on the basis that the land already comprised three titles and was approved additionally on the basis of recognition of the "severance" of the land by a road. The respondent also argued that the subdivisions pre‑dated the establishment of the presently prevailing planning framework.
In considering these arguments, the Tribunal has already acknowledged the proposition that the Avon River constitutes a significant natural physical barrier which may, in part, justify a division of the land for the reasons already expressed. In this regard, the Tribunal is reaching a conclusion of principle which has similarly been arrived at in the determination of the subdivisions east and west of the subject land. Of greater interest to the Tribunal is the further division of the property east of the subject land into small rural lots not founded on any reason associated with physical severance of the land. The reasoning for this subdivision approval by the respondent included the notion that the land was a "transitional" area between the Toodyay settlement and rural areas. The Tribunal has difficulty with the notion of a "transitional" area and reconciling such a concept with any provisions of the relevant town planning schemes or local or state policies. It is not clear to the Tribunal why such a "transitional" area should exist, or if it should, what should be its extent and what purpose and planning provisions should apply to the land. The Tribunal acknowledges that the subdivision to the east of the subject land does represent a significant fragmentation of rural land in a manner which could reasonably raise expectations of similar subdivision on the subject land.
This brings into consideration the argument of the respondent that the subdivision pre‑dates the present regulatory planning framework to the extent that a similar subdivision application if submitted today would fail to be approved. The Tribunal is inclined to accept this argument on the basis that evidence has been provided to identify a range of planning instruments that have been implemented or prepared since 1999. These include draft TPS 4, draft LPS 2 and the AASRS. The Tribunal accepts that the draft instruments are not able to be accorded great weight as seriously entertained planning proposals because of the strong possibility of further changes yet to eventuate in the preparation process, however, they do represent a clear intention by the local authority to augment the planning framework by the introduction of an updated town planning scheme and a local planning strategy. The AASRS is also a significant change to the planning framework with specific relevance to the subject land as already discussed. In the circumstances, the Tribunal is reluctant to accept the proposition that the earlier subdivision to the east of the land is a substantial argument, today, for similar subdivision of the subject land.
The respondent identified a number of rural properties in the area that were of similar character to the subject land and which could be said to be vulnerable to any precedent which might be set by an approval of this application. The Tribunal accepts this proposition.
The matter of noise nuisance and accident risk associated with train movements was not thoroughly explored or evidenced by either party. No authoritative witnesses attended the Tribunal in regard to train types, characteristics and frequency, nor was any noise assessment undertaken. In the absence of such evidence, the Tribunal is not prepared to reach a conclusion on this aspect of the application for review.
In summary, the Tribunal found that the respondent's arguments for refusal were sound but only in so far as:
•The proposal is reasonably and properly described as a subdivision to create "Rural Smallholdings" lots which is a use not provided for by zoning and appropriate development controls in this location by the relevant Shire town planning schemes.
•The proposed subdivision does not meet acceptable fire protection standards.
•The proposed subdivision and consequent development thereon has not been demonstrated to meet the landscape protection requirements of the AASRS.
•The proposed subdivision represents an unplanned ad hoc fragmentation of rural land and would, if approved, set an undesirable precedent for further subdivision of other lots in the locality of similar size and character.
Whilst the Tribunal accepted in principle that the Avon River did constitute a significant physical barrier to justify separation of the subject land into two parcels, the rationale for separation did not extend to warrant the further separation of the proposed lots south of the river.

Conclusion

For the reasons outlined in the Analysis section of this report, the Tribunal concludes that the application for review of the respondent's decision to refuse the subdivision of the subject land should be dismissed.

Orders

1.The application for review of the Western Australian Planning Commission's decision to refuse the subdivision of Lot 4 River Road, Toodyay, is dismissed.

I certify that this and the preceding [129] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J ADDERLEY, SESSIONAL MEMBER