Musitano and Western Australian Planning Commission - [2010] WASAT 92

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: MUSITANO and WESTERN AUSTRALIAN PLANNING COMMISSION [2010] WASAT 92

MEMBER: MR R EASTON (SENIOR SESSIONAL MEMBER)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 29 JUNE 2010

FILE NO/S: DR 442 of 2009

BETWEEN: GIUSEPPE MUSITANO
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Town planning Subdivision application Rural land Road as a significant barrier Rail reserve as a significant barrier Contiguous use of the severed portion Western Australian Planning Commission Policy DC 3.4 Whether the proposed subdivision was consistent with the planning framework Whether a significant natural or constructed feature existed that impacted on the ability to practically use the divided parts of the land in conjunction for agricultural purposes Whether approval of the proposed subdivision would set an undesirable precedent

Legislation:

Greater Bunbury Region Scheme
Planning and Development Act 2005 (WA), s 251(1)
Shire of Harvey District Planning Scheme No 1, cl 8.4, Pt V, Table 27

Result:

Application for review dismissed

Category: B

Representation:

Counsel:

Applicant: Mr I Rogers
Respondent: Ms E Mills

Solicitors:

Applicant: Hardy Bowen
Respondent: State Solicitor's Office

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

Aspen Pty Ltd v State Planning Commission (unreported; WATPAT No. 13 of 1988, 21 October 1988)
Goldin & Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 (2002) 121 LGERA 101
Halden & Anor and Western Australian Planning Commission [2005] WASAT 323
Ingram v Western Australian Planning Commission [2003] WASCA 77
Marshall v Western Australian Planning Commission (1995) 15 SR (WA) 170
Nicholls and Western Australian Planning Commission (2005) 149 LGERA 117
Price and Western Australian Planning Commission [2007] WASAT 26
West & Ors and Western Australian Planning Commission [2005] WASAT 326

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

This matter involved an application for review of the refusal of a subdivision application to subdivide Lot 1, Beela Road, Beela into two lots of approximately 57 hectares and 3 hectares.
The proposed subdivision followed the existing physical situation of the proposed lots where the small portion of the lot is separated from the larger portion of the lot by a road reserve and an adjoining rail reserve.
The issues were:
•whether the proposed subdivision was consistent with the planning framework;
•whether a significant natural or constructed feature existed that impacted on the ability to practically use the divided parts of the land in conjunction for agricultural purposes; and
•whether approval of the proposed subdivision would set an undesirable precedent.
The Tribunal found that the underlying principles of the entire relevant planning framework weighed against the proposed subdivision and the potential loss of productive agricultural land.
The Tribunal then dealt with the Western Australian Planning Commission Policy DC 3.4 which provided that an existing physical division of a lot by a significant natural or constructed feature may be formalised through subdivision. The Tribunal found that the road reserve and the railway reserve, either separately or combined, were not a significant constructed existing feature that impacted on the ability to practically use the divided parts of the land in conjunction for agricultural purposes.
The Tribunal also found that approval of the proposed subdivision would set an undesirable precedent.
Even if the Tribunal were found to be wrong on either or both of the issues of precedence and 'significant barrier', the application would still fail because the proposal would be an ad hoc fragmentation of rural land which was not supported by the local planning scheme, the precinct policy area statement within the Scheme and the overall weight of the regulatory effect of the respondent's planning framework.

Introduction

These proceedings involve an application brought by Mr Giuseppe Musitano (applicant), pursuant to s 251(1) of the Planning and Development Act 2005 (WA), for review of the decision of the Western Australian Planning Commission (Commission or WAPC) made on 22 October 2009 to refuse subdivision approval of Lot 1, Deposited Plan No 2689, Beela Road, Beela (site) into two lots.
The original application seeking to subdivide the lot into two parts (A and B) was made on 14 April 2009 and was supported by the following statements:
You will observe by the title diagram that PART B, consisting of approximately 3 hectares is on the same title but is separated from the main portion (PART A) on the southern side by Beela Road and the Collie Railway.
In the past I have farmed the property as one but have encountered much difficulty and danger when attempting to herd cattle along the road and across the rail from PART A to PART B to feed it down. For this reason I have now abandoned utilizing PART B and no longer graze cattle on this part of the farm. The consequence of not utilizing PART B has left an abundance of dry grass over the summer months, that in itself could be considered a fire hazard.
The WAPC referred the application to various agencies, including the Shire of Harvey (Shire) in a letter dated 9 June 2009, objected to the subdivision on the basis that it did not comply with the relevant provisions for rural subdivision of the Shire of Harvey District Planning Scheme No 1 (DPS 1 or Scheme); the Shire's Policy 15.2 Subdivision of Rural Lots (Policy 15.2) and the WAPC's South West Rural Subdivision Guidelines (SWRSG). On 30 June 2009, the WAPC refused the proposed subdivision, providing five grounds for refusal which are described later in these reasons.
On 21 July 2009, the applicant sought a reconsideration of the WAPC's decision. The WAPC once again referred the proposal to various agencies. On this occasion the Shire of Harvey advised in a letter dated 2 September 2009 that:
At its meeting held on 25 August 2009, Council resolved to support the proposed subdivision of Lot 1 Beela Road, Beela as the Council considers that the railway reserve presents a substantial physical separation of the lot.
On 22 October 2009, the WAPC advised the applicant that it had reconsidered the application and had resolved to refuse the application for the reasons provided in its original decision of 30 June 2009.
The reasons for refusal were:
1.The proposed subdivision is inconsistent with the 'General Farming' zoning and lot size requirements as set out by the Shire of Harvey Local Planning Scheme No. 1. The purpose and intent of this zoning is to preserve the area's current rural use and density of development. Subdivision in the manner proposed would create the potential for additional building development and the introduction of increased nonrural activity in conflict with the zoning objectives.
2.The proposed subdivision is inconsistent with Commission Policy DC 3.4 which requires that the subdivision of rural and agricultural land for closer settlement (ruralresidential and rural smallholdings) and more intensive agricultural uses should be properly planned through the preparation of regional and local planning strategies and provided for in local planning schemes prior to subdivision.
3.The proposed subdivision is not consistent with the objectives and policies of Statement of Planning Policy No. 2.5 'Agricultural and Rural Land Use Planning' which seek to prevent the adhoc fragmentation of rural land and require rural residential subdivision to be permitted only on land which is appropriately zoned.
4.Approval to the subdivision would set an undesirable precedent for the further subdivision of surrounding lots.
5.The Commission is of the opinion that difficulties posed by physical divisions can be addressed by alternative means, such as, in this situation, the sale and amalgamation of proposed lot B with adjoining land.

Site and locality

The site has an area of 60.5445 hectares and is located approximately 10 kilometres west of Brunswick Junction. It consists of two portions of land, one of approximately 57 hectares and the other approximately 3 hectares. The two portions are separated by a 25 metre wide road reserve for Beela Road and an adjoining rail reserve that is approximately 48 metres wide. The smaller portion is north of the reserves.
Although there are some small areas of remnant vegetation, the site is cleared and used for grazing. It does not contain a residence.
The Lunenburg River borders the top northwest corner of the smaller portion of the site.
Beela Road is a gravel road where it traverses the site, and the parties agree there is an approximate average of 40 vehicle movements per day on the road.
The rail reserve contains the Brunswick Worsley rail line (also known as the Brunswick Collie line). The line is used for freight movements and at the moment there are approximately 24 train movements per day on the line passing through the site.
The lots in the immediate vicinity are generally used for cattle grazing and generally without dwellings. Approximately 1.5 kilometres east of the site, the land transitions to native forest with some pine plantations.

Planning framework

The site is zoned 'Rural' under the Greater Bunbury Region Scheme (GBRS). The site is zoned 'General Farming' under the DPS 1.
Table 27, Zoning and Development Standards, of DPS 1, sets a minimum lot size of 40 hectares in the General Farming Zone. The policy statement for the zone is described in Table 27 as:
Council intends to encourage these areas to continue to be used for viable large scale farming activity. Council will encourage and promote good farming, animal husbandry and soil conservation. Some limited tourist and recreational activity may be permitted where no adverse effect to the primary agricultural purpose of the zone will result.
Part V and cl 8.4 of DPS 1 provide for Council to be guided by Planning Precinct Policy Area Statements. The site is contained within Precinct 24 Inner Hills Area where the statement is as follows:
Precinct Policy Area Statement for Precinct 24 Inner Hills Area contained within Schedule 14 of DTPS1 is as follows:
This area of rolling topography is predominately cleared parkland cleared [sic]. It is used mostly for winter grazing.
•Limited opportunities for one or two small special rural zone for 'weekend rural retreat' type development may be appropriate in unexposed locations with good tree cover. Water supply is limited to rainwater tanks. The area is relatively isolated from schools and other social services.
•All rezoning for Special Rural zones shall comply with Clause 6.3 of the Scheme.
•Development should be kept away from hilltops, ridges or other skylines where the visual impact is greatest.
•The area is not considered a priority area for special rural zones. Proposals should be subject to detailed landscape protection assessment. No subdivision of cleared areas should be permitted until such time as the intended area has been replanted and trees have reached a minimum aver height of 3 metres. The requires about a three year lead time for planting subject to good husbandry of the new trees.
•Aside from minor development opportunities for subdivision discussed above, the area should be retained as a broadacre winter refuge grazing area. No subdivision or zoning for nonagricultural purposes should be permitted.
•Replanting of all the clear areas should be encouraged.
The clear intention for this policy area is that it should be retained as a broadacre winter refuge grazing area and that no subdivision for nonagricultural purposes should be permitted, apart from areas that are rezoned for special rural zones.
The Council has adopted Policy 15.2 to guide the subdivision of lots in the Rural zone. Section 1 of Policy 15.2 states that it reflects the WAPC's SWRSG. The Tribunal does not consider there is any relevant difference between the local policy and the SWRSG in terms of this review.
In addition to DPS 1 and associated policies, it is common ground between the parties that the relevant regional planning instruments are:
South West Rural Subdivision Guidelines (SWRSG);
Statement of Planning Policy 2.5 'Agricultural and Rural Land Use Planning' (SPP2.5); and
Development Control Policy 3.4 Subdivision of Rural Land (DC 3.4).
…
SWRSG
In 20 June 2008 the Respondent endorsed the SWRSG.
…
The SWRG were developed:
'to provide further guidance where there are currently insufficient criteria in local government planning schemes or local planning strategies, particularly in relation to minimum lot sizes, soil and water requirements, to ensure that proposed rural lots are agriculturally sustainable'.
The subdivision criteria as found at page 2 of the SWRSG requires that:
'in the case of subdivisions creating new or additional lots on 'rural' zoned land, new lots less than 80ha will not be supported, except where the lot is a minimum of 40ha and an agronomist's report demonstrates that each new lot will contain a minimum of 30ha of land with a highcapability rating (class 1 or 2) for annual or perennial horticultural production; as well as have a secure, sustainable water supply'.
SPP2.5
SPP 2.5 (as amended) was gazetted in March 2002 for the purpose of setting out State and local government responsibilities in ensuring the orderly development of rural land.
Part 2 of SPP 2.5 sets out that the Respondent uses SPP No. 2.5 together with DC 3.4 as the basis for determining applications for the subdivision of rural land.
SPP 2.5 outlines four key objectives, which are detailed as follows:
(a)'Protect agricultural land resources wherever possible by
(i)discouraging land uses unrelated to agriculture from locating on agricultural land;
(ii)minimising the ad hoc fragmentation of rural land; and
(iii)improving resource and investment security for agricultural and allied industry production.
(b)Plan and provide for rural settlement where it can
(i)benefit and support existing communities; and
(ii)have access to appropriate community services and infrastructure.
(c)Minimise the potential for land use conflict by
(i)providing adequate separation distance between potential conflicting land uses;
(ii)introducing management requirements that protect existing agricultural land uses;
(iii)identify areas that are suitable and capable for intensive agricultural pursuits as agricultural priority areas; and
(iv)avoid locating new rural settlements in areas that are likely to create conflict with established or proposed agricultural priority areas.
(d)Carefully manage natural resources by
(i)discouraging developments and/or subdivision that may result in land or environmental degradation;
(ii)integrating land, catchment and water resource management requirements with land use planning controls;
(iii)assisting in the wise use of resources including energy, minerals and basic raw materials; and
(iv)preventing land and environment degradation during the extraction of minerals and basic raw materials; and
(v)incorporating land management standards and sequential land use change in the land use planning and development process'.
Clause 5.3.1(iii) of SPP 2.5 states:
'The Commission will only support subdivision for RuralResidential and Rural Smallholdings where the land has been appropriately zoned within the town planning scheme and the provisions of Policy No. DC 3.4 (2001). Clause 6 can be complied with'.
DC 3.4
In February 2008 the Respondent published DC 3.4 (as amended).
…
As outlined in Part 2, the objective of the DC 3.4 is to guide the subdivision of Rural land to achieve the four key objectives of State Planning Policy No 2.5 being to protect agricultural land, plan for rural settlement, minimize land use conflict and manage natural resources.
As outlined in Part 4 of DC 3.4, the Respondent '. [sic] will exercise its judgement and discretion in applying criteria 4.2 4.9 when assessing the merits of an application for the subdivision of rural and agricultural land'.
In terms of subdivision and lot sizes, criterion 4.2 of DC 3.4 provides:
'In broadacre farming areas large lots may be subdivided to create lots which are consistent with the size of lots used for farming in the locality and allow for continued broadacre farming. Neither lots created in the early days of settlement nor tied lots will be used in determining prevailing lot sizes in a locality or for creating a precedent for further subdivision'.
Criterion 4.3 of DC 3.4 provides:
'The existing physical division of a lot by a significant natural or constructed feature may be formalised through subdivision. A significant physical division generally does not include rural roads or creeks that are commonly crossed for farm management purposes'.

The issues

The following three issues arise for determination in this review:
1.whether the proposed subdivision is consistent with the planning framework;
2.whether a significant natural or constructed feature exists that impacts on the ability to practically use the divided parts of the land in conjunction for agricultural purposes; and
3.whether approval of the proposed subdivision would set an undesirable precedent.
The Tribunal will address each issue in turn.

Whether the proposed subdivision is consistent with the planning framework?

The respondent argued that the proposed subdivision is inconsistent with the planning regime, noting that the provisions of DPS 1 and SWRSG impose a minimum lot size of 40 hectares on the subject land, compared to the proposal to create a lot of 3 hectares. The SWRSG requires that, in the case of new lots under 80 hectares, there should be a minimum of 40 hectares supported by an agronomist's report that the new lot contains at least 30 hectares of land with a highcapability rating (class 1 or 2) for annual or perennial horticultural production; as well as a secure water supply. Although one of the lots exceeds, 40 hectares, the application is not supported by an agronomist's report and the second lot is only 3 hectares.
In addition, the respondent argued the proposal is inconsistent with SPP 2.5 which provides at cl 5.3.1(iii) a presumption against subdivision that would create rural-residential or rural smallholdings in land that has not been appropriately zoned.
Furthermore, the respondent argued that the proposed subdivision is inconsistent with the principles underlying the policies as follows:
In the leading case of Ingram v Western Australian Planning Commission [2003] WASCA 77, Barker J explained at [77] that there was a 'common principle' which underlay the panoply of policies which restricted or precluded the subdivision of rural land:
'However, in South Parkfield and in this apppeal there is a common principle that underlies the various expressions of policy that one finds in the various planning documents including the Rural Strategy. That common principle, as suggested earlier in these reasons, is that land within an area such as the Rural Policy Area should not be subdivided if the subdivision would result in land that has a productive capacity for agricultural production being lost as a resource'.
Following this principle, the respondent observed that as the lot has been farmed as a whole in the past, and as the proposed small lot contains grass usable for grazing, that 'the proposed subdivision would lead precisely to the sort of agricultural land loss the policies seek to prevent'.

Mr David Stapleford, a qualified town planner, made a submission on behalf of the respondent. He argued that the small portion of the site does not contain a dwelling and is currently unconstrained in its potential use for agriculture. He noted the risk that if the small lot is created through subdivision and then sold, its likely use is for lifestyle or ruralresidential purposes with resultant land use conflicts.
The applicant argued that the proposal is not inconsistent with SPP 2.5 in that it is not an ad hoc fragmentation of rural land because it reflects an existing physical fragmentation and also because SPP 2.5 is more applicable to broadacre subdivision proposals and the controlled planning of ruralresidential and rural smallholding lots.
Furthermore, the applicant argued that the proposal is not inconsistent with the principles established in Ingram v Western Australian Planning Commission [2003] WASCA 77 because there will be no loss of land having productive capacity. In the first instance, it is argued that the land has no significant capacity of agricultural production because of the physical constraints of size and isolation. In the second instance, it is argued that even if it is held that the land has significant capacity, the capacity is not lost by subdivision because the 3 hectare lot has potential agricultural use either on an intensive scale for citrus or vegetable production, or the land has potential for grazing by way of amalgamation by a landowner on the other side of Beela Road and the rail line.
The applicant further argued that if the land is not subdivided, the physically isolated (3 hectare) portion of the site will continue to be underutilised in terms of agricultural production/grazing, which is inconsistent with SPP 2.5 and DC 3.4, as it represents an inefficient use of the land.
Mr Lohman, a qualified town planner, made a submission on behalf of the applicant, also arguing that the proposed small 3 hectare lot is constrained from productive agricultural use due to its size, degree of severance from the larger 57 hectare lot, and the associated difficulties of moving livestock between the separated portions of the site. He also stated that the 3 hectare lot is constrained by remnant vegetation covering approximately 1.8 hectares of the lot, leaving only 1.2 hectares of cleared area for agricultural pursuits. These figures were not challenged by the respondent.
Mr Lohman concluded that:
The proposal will not result in the removal of agricultural land resources as the larger 57 ha parcel of the Review Site will be unaffected by the proposal in terms of agricultural production. The 3 ha Lot has little agricultural potential due to its size and remnant vegetation restricting the full use of the Lot for agricultural purposes.
I consider that the subdivision of the Review Site would not compromise planning for rural settlement or introduce land use conflict with surrounding agricultural activities. The potential settlement of the 3ha Lot via the development of a dwelling is not so significant to conflict with existing settlement patterns nor intense to create a land use conflict with surrounding agricultural activities.
The difficulty for the applicant is that the weight of the planning framework is against subdivision for nonagricultural purposes and opposed to subdivisions below 40 hectares. In the case of the SWRSG, adopted by the respondent in June 2008, the preferred minimum lot size is 80 hectares for the subdivision of lots suitable for broadacre and general farming. Under the heading Subdivision Criteria, the SWRSG contains the following statement:
It is WAPC Policy that, in the absence of planned provision for closer settlement and more intensive agricultural uses, existing large rural lots be retained for broadacre and traditional forms of farming.
Subdivision below 80 hectares may be considered, provided the lots are a minimum size of 40 hectares and supported by an agronomist's report demonstrating a minimum of 30 hectares of high capability rated land suitable for annual or perennial horticultural production, as well as the demonstration of the availability of a secure sustainable water supply.
There is no agronomist's report supporting the proposed subdivision. Furthermore, there is evidence in the past that the small severed portion of the land has been used for productive agricultural purposes. Although the applicant has stated that he has ceased to use the land, there is no reason to believe that agricultural use of the land associated with the proposed 3 hectare lot will not resume in the future. This finding may be qualified by the question of danger and difficulty of using the severed portion which is considered as a separate issue. The Tribunal agrees with the respondent and finds that the underlying principles of the entire relevant planning framework weigh against the proposed subdivision and the potential loss of productive agricultural land. However, there is a relevant exemption within DC 3.4 which may provide grounds to approve the proposal. The Tribunal will now deal with the issue of the physical separation of the lot into two portions.

Whether a significant natural or constructed feature exists that impacts on the ability to practically use the divided parts of the land in conjunction for agricultural purposes

DC 3.4 deals with the subdivision of rural land. Section 4 of the policy describes policy measures for rural lots for farming and conservation. The section describes several areas of discretion that the respondent may exercise when considering applications for subdivision. Significantly, s 4.3 provides, under the heading 'Significant physical division' as follows:
The existing physical division of a lot by a significant natural or constructed feature may be formalised through subdivision. A significant physical division generally does not include rural roads or creeks that are commonly crossed for farm management purposes.
By reference to a 2007 decision of the Tribunal, the applicant argued that the road and rail line combined are a significant constructed feature that meet the requirements for subdivision under s 4.3 of DC 3.4. The applicant stated as follows (emphasis added by applicant):
In Price and Western Australian Planning Commission [2007] WASAT 26 at [32], dealing with the 2002 version of DC 3.4, the Tribunal found that:
'If reasonable contiguous use of the severed lot with the larger lot is not possible because of the circumstances associated with the severance caused by the Deep Creek Road, it is arguable that the road is a significant barrier irrespective of its construction standard. The Tribunal accepts in this instance that this is the case and that it is a reasonable interpretation of cl 3.2.1(a) that a road is a significant barrier if it does not reasonably enable the use of the severed lot in conjunction with the larger lot'.
In Price, the Tribunal noted at [32] that:
'(vi) The size and physical features of the severed lot contributes to the Tribunal's conclusion that Deep Creek Road in this instance is a 'significant' manmade barrier. Were the severed lot larger and less physically constrained for agricultural use, it could potentially be used in conjunction with the larger lot.
(vii) As such, the Tribunal accepts that the severed lot is not, and is unlikely to ever be, used in conjunction with the agricultural activities on the larger lot.
(ix) If reasonable contiguous use of the severed lot with the larger lot is not possible because of the circumstances associated with the severance caused by Deep Creek Road, it is arguable that the road is a significant barrier irrespective of its construction standard. The Tribunal accepts in this instance that this is the case and that it is a reasonable interpretation of cl 3.2.1(a) that a road is a significant barrier if it does not reasonably enable the use of the severed lot in conjunction with the larger lot'.
The applicant argued that following the principle outlined in Price and Western Australian Planning Commission [2007] WASAT 26 (Price), the road and rail are a significant constructed feature for the following reasons:
a)the combined width of the two adjoining reserves is 73 metres;
b)it is necessary to herd cattle approximately 500 metres along Beelup Road before crossing the rail reserve to then access the small portion of the lot;
c)the reserves and access arrangements do not reasonably enable the use of the smaller lot in conjunction with the agricultural activities on the larger lot;
d)the access arrangements between the two lots are unsafe and dangerous for livestock crossing;
e)the situation will become worse if road traffic increases and changes in nature due to tree cultivation and harvesting on properties to the southeast;
f)the situation will become worse if rail traffic increases to 34 36 movements per day; and
g)there are practical difficulties with managing a farm with one small portion being physically separated by a significant barrier from the larger portion.
The above arguments were supported by the applicant's statement quoted earlier in these reasons where he described the difficulty and danger of herding cattle along the road and across the rail line.
The respondent argued Price is related to the particular circumstances of that subdivision proposal and is inconsistent with the earlier decision of the Tribunal in Halden & Anor and Western Australian Planning Commission [2005] WASAT 323 (Halden) and West & Ors and Western Australian Planning Commission [2005] WASAT 326 (West) where the Tribunal found that gravel roads did not constitute a significant manmade feature for the purpose of the exemption contained in criterion 4.3 of DC 3.4.
The respondent further argued that there were important distinguishable differences between Price and the current application.
In Price the gravel road, 'Deep Creek Road', had been:
…
reserved as an 'important regional road' under the relevant town planning scheme and had been widened and resurfaced the year before the Tribunal's decision at a cost to the State Government and the City of some $300,000. The road had been improved because of its use as a haulage route by 3 major tree companies harvesting in the area. Importantly the road was a through road (unlike many other gravel roads in the area), and connected South Coast Highway to Mindijup Road.
The case of Price can be distinguished from the current application in almost every aspect. The following factor(s) in particular are to be noted:
(i)Beela r[R]oad becomes a no[-]through road shortly after it crosses the subject land, and does not connect to any other routes;
(ii)There has been no substantial upgrade changing the characteristics of the Beela Road;
(iii)There is no planned upgrade of Beela Road;
(iv)Beela Road is an unsealed minor road;
(v)Beela Road has, according to a vehicle count taken in January 2010, an average of 40 only vehicle movements per day;
(vi)The gravel surface of Beela Road is only 5m wide;
(vii)Beela road is not used as a primary production haulage route, and is accordingly not regularly used by heavy vehicles.
The respondent then argued that the rail line has an average of only two movements per hour and is provided with a well defined and safe crossing for cattle and pedestrians. 'Such a level of movement cannot reasonably be said to preclude the continued use of the entirety of the land for agricultural purposes'.
The respondent's arguments that neither the road nor the rail line are significant barriers to the ability to practically use the divided parts of the land were supported by witness statements from Ms Shelley Brindal, a land officer with the Public Transport Authority (PTA) which is responsible for the railway reserve, and also from Mr Damien Morgan, the Manager of Infrastructure and Design at the Shire.
Mr Morgan provided evidence regarding vehicle movements along Beela Road based on a traffic count from 5 January 2010 to 12 January 2010 showing an average of approximately 40 vehicle movements per day (vpd). Mr Morgan stated that the count was taken 50 metres west of Flynn Road and that the count was typical for a rural road of the nature of Beela Road. Mr Stapleton added some context to Mr Morgan's evidence by stating:
…
In my view the vpd count along the portion of the road which crosses the subject land is likely to be even less than 40 vpd.
This is because the traffic from four dwellings serviced by Flynn Road are unlikely to traverse the subject land.
…
Further, only one dwelling is serviced by Beela Road, east of the subject land, and Beela Road becomes a 'No Through Road' 2.5 km east of the subject land.
…
Therefore, I cannot agree with the Applicant's assertion that such a low level of vehicle numbers, regardless of the type of traffic, could in any way be considered 'significant'.
Ms Brindal's evidence was that 'there are currently 24 train movements per day on the section of railway line which traverses the site. This may increase or decrease in the future'. Ms Brindal indicated that the PTA was concerned about the safety of the crossing if subdivision was approved (noting it could be addressed) and also concerned about the precedent which may lead to additional lots being created with the possible need for more, or upgraded level crossings which impact on safety and efficiency of train movement.
The Tribunal had the benefit of a site viewing in the presence of the parties. The viewing clarified some of the uncertainty in the written submissions. The rail crossing is not opposite any part of the larger lot; hence it is necessary to herd the cattle along the road rather than across it. The evidence included figures for the herding distance along the road, varying from 150 metres to 1 kilometre. Although there is a gate approximately 200 metres from the crossing, due to lack of contrary evidence, the Tribunal accepts the applicant's evidence as a farmer that it is necessary to herd the cattle 500 metres along the road, the extra 300 metres distance being the distance to holding yards on the large lot.
In dealing with this issue, there are three separate questions: whether the road is a significant barrier; whether the rail is a separate barrier; and whether the road and rail in combination is a significant barrier. The Tribunal is guided by the findings in Halden and West at [43 44] and [51 66] with an awareness of the findings in Price.

The road

Dealing first with the findings in Price, the Tribunal agrees with the respondent that there are significant distinguishable differences between Price and the current application. In Price, the Tribunal was aware that its decision was different to the Tribunal's findings in Halden. In Priceat [27], the particular characteristics of Deep Creek Road were described and, at [32], the Tribunal found that 'on balance' Deep Creek Road was a significant manmade feature where at (i) and (ii) the Tribunal specifically referred to the road's recent substantial upgrading; its importance as a haulage throughroad and the increased plantation activity and logging traffic in the area. Such characteristics did not apply in Halden and do not apply in this review.
Furthermore, since these decisions, DC 3.4 has been amended, where in DC 4.3 the provision for possible subdivision to formalise separation by a significant natural or constructed feature, an important qualification has been added: 'A significant physical division generally does not include rural roads or creeks that are commonly crossed for farm management purposes'.
The Tribunal accepts that the policy refers to crossing a rural road, whereas in this case the cattle must be herded along the road rather than across it. Nevertheless, Beela Road is a typical narrow rural road with low traffic volumes and the Tribunal finds it would be inconsistent with the policy to regard Beela Road as a significant physical division.

The railway

Policy DC 3.4 does not contain a definition of 'significant'. Furthermore, while the policy specifically indicates that 'significant' does not include rural roads and creeks that are commonly crossed for farm management purposes, it does not refer to railways. In Halden at [57 62] the Tribunal discussed the meaning of the word significant, where at [59] the Tribunal stated:
In the Tribunal's view, the composition of the road surface (whether it is sealed or not), its size, maintenance and traffic movements all contribute to answering the question whether a road is relevantly 'significant'; namely whether it is 'not unimportant or trivial' or 'sufficiently large to be important'.
On initial examination it may appear that a railway is sufficiently large to be important. Also, in this instance there is grade separation and the crossing of the railway is restricted to one point. Nevertheless, that crossing point is well defined with cleared space and good vision of the railway on both sides of the crossing. The written submissions did not make clear distinctions between the road and the railway, in terms of difficulty of farm management, or suggest that the railway is more of a problem than the road, although the applicant did state that after herding the cattle along the road, they must be:
prevented from dispersing (as cattle are usually wont to do) and kept together in place, at great difficulty to the applicant, to wait for a train to pass to ensure they do not stray onto the railway line creating a potential hazard to trains.
However, the same arguments of dispersal and straying apply to the road. Ms Brindal, in her evidence, made no reference to potential hazards associated with cattle. Her concern, as a witness for the PTA, was the potential hazard of increased traffic and pedestrian crossings of the railway, associated with potential residential use of the small lot.
The existing train movements are low and there is a crossing point with clear vision in both directions. Based on the evidence, there is no reason to find that this particular railway reserve is sufficiently large to be important. The Tribunal finds that the rail line by itself is not a significant barrier.

The road and railway in combination

Turning now to the question of whether the road and railway line in combination are a significant barrier. The Tribunal is guided by the principles outlined in Halden at [51] [66]. Consistent with these principles, the Tribunal finds that even in combination, the traffic volumes on Beela Road and the rail line do not reasonably warrant a finding of significant. This is supported by the evidence that the small lot has been farmed in the recent past. There was no evidence to support an argument that changed volumes of traffic have caused the change in farm management by the applicant, especially as the combined traffic volumes of the road and railway are relatively low. It is accepted that the applicant does not currently use the severed lot, but the Tribunal is not convinced that the land is not capable of being used in the future for agricultural purposes (such as a continuation of the former use for grazing or the growing of hay to support grazing).
The Tribunal finds that Beela Road, the rail reserve and the two in combination are not a significant constructed existing feature that impacts on the ability to practically use the divided parts of the land in conjunction for agricultural purposes.

Whether approval of the proposed subdivision would set an undesirable precedent?

The respondent argued the proposal is objectionable and that it would set an undesirable precedent for subdivision in the locality. The respondent stated it had identified 15 other properties within a 7 kilometre radius where lots are intersected by the railway and Beela Road. It was concerned that subsequent subdivision of these properties would lead to unplanned fragmentation of productive agricultural land and the encroachment of rural residential lots into an agricultural area with the resultant land use conflicts between residential and agricultural uses.

The applicant argued that the proposal had unique characteristics that enabled it to be approved on merit without risk of creating a precedent, noting that the lots identified by the respondent were distinguishable for various reasons including that some were Crown lots and others would result in subdivision proposals where all the lots were below 40 hectares.
Precedent was considered by the Tribunal, in an analysis of authorities including Aspen Pty Ltd v State Planning Commission (unreported; WATPAT No. 13 of 1988, 21 October 1988), Marshall v Western Australian Planning Commission (1995) 15 SR (WA) 170, and Nicholls and Western Australian Planning Commission (2005) 149 LGERA 117 at [71] [75]. In that case the Tribunal adopted the following criteria, as to the circumstances in which precedent is a relevant consideration in a planning assessment, from Goldin & Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 (2002) 121 LGERA 101 as consistent with Western Australian authority:
[34]… that the proposed developments were not themselves unobjectionable,
… that there was more than a mere chance or possibility that there may be later undistinguishable development applications.
For precedent to be a relevant factor both tests must be satisfied.
In this instance, for reasons discussed earlier, the proposed subdivision is not unobjectionable and therefore the first test for precedent is satisfied.
However, the question remains whether there is more than a mere chance that there may be later undistinguishable applications. Although the respondent claimed that within 7 kilometres there are 15 other properties that are severed by Beela Road and the rail line, the applicant argued that not all those lots were comparable, with some being uncleared Crown land and the majority of the others resulting in subdivisions where all lots were below 40 hectares. While the applicant is correct, the Tribunal notes that in several cases the larger lots would be just below 40 hectares. Being close to 40 hectares, there is the reasonable expectation of future applications supported by the agronomists' reports arguing that, say, a 38 hectare lot is viable without the smaller severed lot(s).
Based on the documents, there is one lot that is similar to the review site. This is also identified as Lot 1 but it is on the north side of the rail line and from the aerial photograph it appears to have a small portion severed from the main lot by the rail and/or river. However, Beela Road does not adjoin the rail line near this lot. Although in the immediate context there is the chance of one clearly indistinguishable application, there are several other nearby potential applications which are indistinguishable in principle: the ad hoc fragmentation of land caused by severance of a physical feature in the form of a combined road and rail reserve, even though the larger lots will be just less than 40 hectares.
Furthermore, some of these lots have more than one small severed position. For example, Lot 11 to the east of the review site consists of an area of approximately 39 hectares on one side of the road and rail reserve with two severed smaller areas on the other side, each between 2 and 3 hectares. Similarly, Lot 104 to the west of the review site consists of a larger portion of approximately 38 hectares and then a portion of 4.5 hectares severed by the road and four smaller portions (all less than 3 hectares) severed by the road and rail.
Furthermore, within the broader context of the application of the respondent's policies with the southwest, there is a reasonable chance that indistinguishable applications will be made involving the combination of road and rail or similar reserves.
Therefore, on balance, the Tribunal finds that the second test for a precedent has been satisfied. Hence, based on the documents submitted, the Tribunal finds that approval of the proposed subdivision would set an undesirable precedent.

Conclusion

In West at [34] [36] the Tribunal made the following relevant observations:
34.As regards the relevant policies under consideration, which are discussed above, and conceded to be directly relevant, the main focus of them is preventing the ad hoc fragmentation of productive agricultural land, which, it is common ground, is the status of the land here. Fragmentation relevantly arises from 'unplanned' subdivisions, and the ad hoc concerns are said to arise out of the lack of a (usually local) planning process to deal with the other consequences of that fragmentation.
35.The premise, as an aim of government, is that such subdivision of land is to be avoided as it necessarily has the tendency to reduce the mass of productive agricultural land available to the State and otherwise adversely impacts upon orderly land use and development. Such consequences include the negative impact of smaller lots on particular types of agriculture and land use, pressure on or demands for infrastructure and services (particularly as regards rural residential lots), and the 'precedential' effect of approvals having the further effect of fragmenting land. As already mentioned, of particular importance is the required existence of further planning strategies (for example, a local planning strategy) dealing with such consequences.
36.Policies with these aims, if rational in their approach, if designed accordingly, if otherwise lawful and if consistently applied, ought to be generally applied in their terms by this Tribunal on review to promote consistency and fairness in administrative decisionmaking, as well as transparently assisting the pursuit of legitimate aims of government whenever relevant discretionary power is exercised by any of its agencies. Further reliability is achieved by a similar consistency of decisions across this and the previous Town Planning Appeal Tribunal.
The applicant argued that this review was similar to Price where the Tribunal found that a road crossing the property was a significant barrier that was sufficient to overcome the underlying principles of the policy framework that presume against the subdivision of agricultural land.
The Tribunal found that this application was distinguishable from Price and that, consistent with other findings of the Tribunal discussed above, the application should be dismissed.
The Tribunal found that the underlying principles of the entire relevant planning framework weighed against the proposed subdivision and the potential loss of productive agricultural land.
The Tribunal then dealt with the DC 3.4 which provides that an existing physical division of a lot by a significant natural or constructed feature may be formalised through subdivision. The Tribunal found that Beela Road and the railway reserve, either separately or combined, were not a significant constructed existing feature that impacted on the ability to practically use the divided parts of the land in conjunction for agricultural purposes.
The Tribunal also found that that approval of the proposed subdivision would set an undesirable precedent.
Even if the Tribunal were found to be wrong on either or both of the issues of precedence and 'significant barrier', the application would still fail because the proposal would be an ad hoc fragmentation of rural land which was not supported by the local planning scheme, the precinct policy area statement within the Scheme and the overall weight of the regulatory effect of the respondent's planning framework.
It follows that the application for review should be dismissed and the decision of the WAPC to refuse subdivision is affirmed.

Orders

The Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision of the respondent made on 22 October 2009 to refuse subdivision approval of Lot 1, Deposited Plan No 2689, Beela Road, Beela into two lots is affirmed.
I certify that this and the preceding [81] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR R EASTON, SENIOR SESSIONAL MEMBER