Ness & Anor and Western Australian Planning Commission - [2006] WASAT 240

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)

CITATION: NESS & ANOR and WESTERN AUSTRALIAN PLANNING COMMISSION [2006] WASAT 240

MEMBER: MR L GRAHAM (SESSIONAL MEMBER)

HEARD: DETERMINED ON THE PAPERS

DELIVERED : 21 AUGUST 2006

FILE NO/S: DR 526 of 2005

BETWEEN: JOHN NESS
First Applicant
MARION NESS
Second Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Land capability - Undesirable precedent - Non agricultural - Viable landholding - Rural residential

Legislation:

Shire of Busselton District Town Planning Scheme No 20, Table 1

Town Planning and Development Act 1928 (WA), s 5AA, s 26(1), s 61(1)(a)

Result:

The application for review is dismissed.

Category: B

Representation:

Counsel:

First Applicant              :     Mr M Swift
Second Applicant          :     Mr M Swift
Respondent:     Mr M Cuthbert

Solicitors:

First Applicant              :     As Agent
Second Applicant          :     As Agent
Respondent:     Western Australian Planning Commission

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

Aspen Pty Ltd v State Planning Commission (Unreported, Appeal No 13 of 1998, 21 October 1988)

Case(s) also cited:

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The application for review was lodged against a decision of the Western Australian Planning Commission to not approve the amalgamation and resubdivision of Lots 100 and 101, located on Caves Road in the "agriculture" zone in the Shire of Busselton.
In examining the matter, the Tribunal has had regard to both State and local planning policy as they relate to rural/agriculture land, together with the relevant provisions of the Shire of Busselton's District Town Planning Scheme No 20. The matters of "land capability" and "undesirable precedent" were also examined.
The Tribunal concludes that, based on the information before it, the original decision in September 1999 to create Lots 100 and 101 did conform to the intent of relevant State and local policy and Shire provisions, but that the current proposal does not. It also concludes that the proposal, if approved, on the basis of excising a so called "non‑agricultural" portion of land from a previously claimed "viable" landholding (Lot 101) is not a proper basis for creating small rural landholdings, and would be likely to encourage other similar applications from nearby landowners within the "agriculture" zone.
In the view of the Tribunal, an ad-hoc progressive erosion of agricultural land is not contemplated by State or local planning policy, or Town Planning Scheme No 20, and the Tribunal is unable to support the applicants in this case.
The application for review is dismissed.

Introduction

The application for review, dated 25 July 2005, was lodged with the Tribunal under the provisions of s 26(1)(a)(i) of the Town Planning and Development Act 2005 (WA) (the TPD Act) by Michael Swift of Cardno BSD on behalf of John and Marion Ness (applicants).
The application was the result of a decision by the Western Australian Planning Commission (WAPC) (respondent) to reiterate its original decision of 12 April 2005 to refuse an application for amalgamation and resubdivision of a property at Lots 100 and 101 Caves Road, Yallingup, in the Shire of Busselton. The proposal is to create two lots of 57.24 hectares and 7.3 hectares.
The reasons for refusal in the original decision were:
"1.The proposal does not comply with the Leeuwin-Naturaliste Ridge Statement of Planning Policy, specifically those policies pertaining to the "Agriculture and Rural Landscape" land use designation.
2.The proposal is inconsistent with the objectives and policies of the Shire of Busselton Town Planning Scheme, specifically those applicable to the 'Agriculture' zone.
3.The Commission is not prepared to approve the subdivision as the resultant lot size of proposed Lot 1001 would be below the minimum indicated by the Local Government's Town Planning Scheme.
4.The proposal does not comply with Section 4.2.1 of Commission Policy DC 3.4 'Subdivision of Rural Land' in that the proposal is inconsistent with the Shire of Busselton District Town Planning Scheme No 20.
5.The subject land is located within Planning Precinct 7C of the Shire of Busselton Rural Strategy whereby subdivision of rural land outside of those areas specifically identified for such, shall not be supported.
6.Approval to the subdivision would create an undesirable precedent for the subdivision of other lots in the 'Agriculture' zone for non‑agricultural purposes.
7.The proposal represents an unplanned breakdown of land holdings which would be detrimental to the use of the land for rural purposes.
8.The subdivision, if permitted, would create a lot which is too small to comprise a productive commercial agricultural holding."
In a request for reconsideration, dated 28 April 2005, Mr Swift, on behalf of the applicants, challenged the respondent's reasons for refusal and argued that the proposal would not alter the existing land use but would provide a larger rural property with a better prospect for ongoing rural use. The respondent disagreed with these submissions and the application for review was subsequently lodged with the Tribunal.

Subject land

The subject land can be described as Lot 100 Vidler Road, on Deposited Plan 24538, Certificate of Title Volume 2519, Folio 949 and Lot 101 Caves Road, on Deposited Plan 24538, Certificate of Title Volume 2519, Folio 950.
The property is located some 25 kilometres west of the Busselton townsite, at the corner of Vidler Road and Caves Road and is comprised of existing Lot 100 (approximately 40 hectares) and existing Lot 101 (approximately 25 hectares).

Legislative framework

The subject land is zoned "agriculture" in the Shire of Busselton District Town Planning Scheme No 20 (TPS 20).
Of relevance is Statement of Planning Policy No 6.1 Leeuwin‑Naturaliste Ridge (SPP 6.1) which the Tribunal is required "to have due regard) to under s 61(1)(a) of the TPD Act.
SPP 6.1 is an approved statement of planning policy prepared under s 5AA of the TPD Act by the WAPC.
Other important documents include:
(a)The Shire of Busselton Rural Strategy (the Rural Strategy).
(b)WAPC Policy No DC 3.4 - Subdivision of Rural Land (DC 3.4).

Respondent's position

The respondent's position is outlined in its Statement of Issues, Facts and Contentions dated 2 September 2005. They broadly argue:-
(a)The proposed subdivision does not facilitate the creation of lots for purely agricultural purposes, and therefore does not comply with TPS 20.
(b)Specific policies in TPS 20 for the "agriculture" zone require a "minimum" lot size. The proposed 7.3 hectare lot (proposed Lot 1001) is well below the "minimum".
(c)Although the proposed subdivision does not involve the creation of additional lots, it would result in a net loss of land for useable agricultural purposes.
(d)The amalgamation of existing Lots 100 and 101 would not increase the amount of land useable for agricultural purposes as both lots are already suitable for agricultural purposes at their current size.
(e)The proposed 7.3 hectare lot would be too small for a productive commercial agricultural holding. As such it would inconsistent with SPP 6.1 and TPS 20.
(f)The subject land is not specified in the Strategy as being part of those portions of land where subdivision for rural/residential development would be supported.
(g)The proposed subdivision is not identified in the Strategy or appropriately zoned for rural small holdings subdivision and therefore does not comply with DC 3.4.
(h)The proposal would create an undesirable precedent for further application within the locality for non‑agricultural purposes.
(i)No evidence has been provided that the proposed 7.3 hectare lot has the potential for sustainable agriculture.
(j)A "precedent" quoted by the applicant (Fisherman's Hut subdivision) is not considered to be a valid comparison as the particulars can be distinguished from the current proposal.

Applicants' position

The applicants' position is contained in their Statement of Issues, Facts and Contentions dated 9 September 2004. They broadly argue:-
(a)The subject land is more appropriately described as "rural" land and not "agricultural" land because of its low agricultural capability as described in the "Property and Agricultural Opportunities Report" by John Wise Consultancy Pty Ltd (2005 Wise Report) and the Rural Strategy.
(b)The proposal is not inconsistent with statutory and policy objectives of conserving the productive agricultural potential of the land because that agricultural potential does not exist. This is especially so for proposed Lot 1001.
(c)The proposal is consistent with TPS 20.
(d)The creation of Lot 1001 would represent a continuation of a pattern of development along this stretch of Caves Road in the context of a series of similar and smaller sized allotments in an area that is used for agriculture, but is not designated as "prime" agricultural land.
(e)The agriculture zone allows for a broad range for non‑agricultural land uses such as aged persons homes, bed and breakfast establishments and many other uses. However, the proposal does not include a change from the existing land use.
(f)The proposal may enhance agricultural versatility by amalgamating existing Lot 100 (40.05 hectares) with part Lot 101 to create a single 57.24 hectare lot.
(g)The agricultural use and potential of proposed Lot 1001 is unaffected by the boundary adjustment as it is not currently used, or proposed to be used, for agricultural purposes. The 2005 Wise Report demonstrated that the land did not have the capability for agricultural use.
(h)The respondent mistakenly considers the proposal in the context of subdivision standards for the creation of lots for horticulture. This is not the purpose of the subdivision; particularly the creation of proposed Lot 1001.
(i)The proposal does not represent a poor precedent nor disruption of planning controls applicable in the District.

Planning issues

The principal planning issues are:
(a)Does the existing lot configuration conform to the intent of State and local policy and scheme provisions?
(b)Does the proposed lot configuration conform to the intent of State and local policy and scheme provisions?
(c)Would the proposal, if approved, be likely to generate similar application in the locality to the detriment of the "agriculture" zone?

Assessment of proposal

Background

On 14 October 1998, an application to subdivide a single lot of 64.7497 hectares into two lots of approximately 40 hectares and 24.8 hectares was made to the WAPC by Mr and Mrs Ness. The single lot was described as Sussex Location 907, Caves Road, Dunsborough.
On 25 February 1999, the application was refused, essentially on the grounds that the agricultural capability of the proposed lots had not been justified, and that the proposed subdivision would therefore be inconsistent with the Agricultural and Rural Landscape Policy area of the Leeuwin-Naturaliste Ridge Statement of Planning Policy.
Following a request for reconsideration of the decision as lodged by the Busselton Survey Office on behalf of the owners, the WAPC approved the subdivision on 24 September 1999.
In effect, the approval created existing Lots 100 and 101 with the decision being largely influenced by additional land capability information over and above the Property and Agricultural Opportunities Report by John Wise Consulting Pty Ltd, May 1998 (1998 Wise Report) and a Hydrological Assessment Report prepared by Slade Ag Tech 1998 (1998 Ag Tech Report).
According to the 1998 Wise Report, a small rural‑residential lot (Location 521) of approximately 2.5 hectares was created from Location 907 more than twenty years before hand.

State and local policy

The SPP 6.1 is a comprehensive policy ranging from an overall vision through to a series of objectives, policy statements, land use strategies and guidelines for the Leeuwin‑Naturaliste Ridge.
The following extracts from SPP 6.1 are relevant:-
(a)Policy Statement 1.5
"Rural Residential development may be permitted in the designated areas identified in the Land Use Strategy Plan."
(b)Policy Statement 4.1
"There is a general presumption against the subdivision of agricultural land for non-agricultural purposes."
(c)Policy Statement 4.2
"Notwithstanding PS 4.1, subdivision of land designated as Agricultural Protection will be considered under the following circumstances—
• where the proposed subdivision does not detract from the long-term viability of the land for agricultural use; and
• where the proposed subdivision provides an opportunity to diversify or intensify the agricultural use of the land."
(d)Policy Statement 4.3
"Subdivisions considered under PS 4.2 will comply with the following—
• where land is to be used for irrigated horticulture, confirmation of suitable soil capability and water supply will be required. Subdivision should not be less than 20 hectares; or
• where land is to be used for viticulture and other intensive agricultural uses, confirmation of suitable soil capability and water supply will be required. Subdivision should not be less than 30 hectares…"
(e)Policy Statement 4.4
"In order to support and protect agricultural land uses within land designated as Agricultural Protection, there is a general presumption against the approval of non-agricultural use/development. However, non-agricultural use/development will be considered where the proponent can demonstrate that any approval will—
• be compatible with the agricultural use of adjoining or nearby land and where required, include appropriate buffers within the subject land;
• maintain the long-term viability of the land for agricultural use…"
(f)Land Use Strategy 4.10
"In areas designated Agriculture and Rural Landscape, conserving productive agricultural potential and rural landscape values will be the principal criterion used in assessing subdivision applications and proposed changes of land use, to ensure these values continue to predominate."
The difficulty the Tribunal has with SPP 6.1 is the broad based nature of various policy statements, and the possibility of conflict between them.
For instance, rural-residential development may be permitted in "designated" areas and yet providing subdivision does not detract from the long‑term viability of an agricultural use it would be considered in what could be termed "non‑designated" areas.
Again, a non‑agricultural use will be considered where the viability of the existing agricultural use can be maintained.
These statements appear to open up the possibility of smaller lot subdivision providing the viability of the agriculture use is not threatened, although consideration of a proposal by the WAPC certainly does not mean an actual approval. Clearly, more analysis beyond SPP 6.1 is required.
Under DC 3.4 a number of policy objectives and measures for the subdivision of rural land are enunciated. Importantly, cl 3.1.1 states:
"There is a general presumption against subdivision of rural land unless it is specifically provided for in a town planning scheme, an endorsed land planning strategy or an endorsed local rural strategy."
Clause 4.1.1 states:
"The Commission shall only approve subdivision of rural land for rural residential and rural smallholdings where it is identified in an endorsed local planning strategy or local rural strategy and zoned in a town planning scheme."
The important point under cl 4.1.1 is the use of the words "shall only approve" in certain circumstances, although the opportunity for subdivision is opened up by cl 3.2.1(e) of DC 3.4.
Under cl 3.2.1(e), the WAPC may approve the subdivision of rural land for the relocation of boundaries where:
"(i) the new boundaries reflect good environmental and land management practices;
(ii) no additional dwelling entitlements are created or where the dwelling entitlements are removed or reduced; and
(iii) the proposal is intended to facilitate the ongoing agricultural usage on all of the lots."
It would appear to the Tribunal that in this particular case under review, that an argument could be made that what is proposed is a relocation of boundaries under cl 3.2.1(e), but the question then rises as to whether criteria (i), (ii) and (iii) are all met.
Under the Shire's Rural Strategy, the subject land is within Precinct 7 C - Central Farmlands. The Precinct provides for limited rural residential opportunities in specific portions of land identified in the Strategy, but the subject land does not fall within one of those portions.
Under cl 10.6.3.4 of the Rural Strategy it states:
"Subdivision, outside of the abovementioned portions resulting in the fragmentation of agricultural land will not be supported."
It is clear from the Rural Strategy that the provisions of cl 10.6.3.4 are particularly relevant to this case, and subdivision proposals outside those portions of land identified for subdivision would not receive local authority support.

Town Planning Scheme No 20

Under the provisions of TPS 20 the subject land falls within the "agriculture" zone. Amongst the objectives of the zone in Table 1 are:
"(i)To conserve the productive potential of rural land;…
(iii)To regulate the subdivision of agricultural lands within this zone to ensure that land is not withdrawn from production or that the potential for land to be productive is not diminished."
Under the associated policies for the "agriculture" zone, the following are relevant:
"(a) To permit land included within the zone and shown by close investigation in consultation with Agriculture Western Australia not to be prime agricultural land to be utilised for other purposes not incompatible with adjacent uses;
(c) … As a general guide, the total allotment size for a commercial farm that will be recommended by Council to the WA Planning Commission is 30ha for viticultural pursuits and 20ha for horticultural pursuits…
(d) To otherwise, where environmental conditions allow, positively consider subdivision of rural land into allotments comprising a minimum of 40 hectares;
(e) To facilitate the creation of allotments for purely agricultural use and not to hinder the adjustment of boundaries between allotments;
(f) To implement and adhere to the adopted recommendations and outcomes of the Shire of Busselton Rural Strategy, as endorsed by the WA Planning Commission."
A further point of relevance, as raised by the applicants in par 17(e) above, is that a broad range of non‑agricultural uses are already allowed in the "agriculture" zone.
Although this is correct, it is also the case that for such uses as a "bed and breakfast" establishment, the proposed use would be advertised for public submissions and would be confined to the existing lot or lots. The question of subdivision does not arise as part of the consideration.
On the question of the relationship of TPS 20 to the Rural Strategy it appears that the intent of the policies for the "agriculture" zone is to be guided by the Rural Strategy, which limits fragmentation of agricultural land to certain areas not covered by the proposal.

The land capability issue

In the 1998 Wise Report prepared by Mr John Wise, a qualified agricultural scientist, he concluded with respect to the subject land:
"(a)… I believe there are significant areas that with adequate water and with in some instances wind protection have a HIGH capability to support a range of horticulture activities including both wine and table grapes … ; and
(b)It is my opinion based on my examination of the location's soils and land form more suited (with adequate water) to small scale horticulture and rural residential than grazing. I am also of the opinion that there is sufficient area suited to horticulture/table grapes to support an application for subdivision into three lots of 20 to 22 hectares."

In the 1998 Slade Ag Tech report prepared by Mr Warren Slade, an Agricultural Consultant, he concluded in his hydrological assessment report:
"(a)Existing water supplies are only associated with stock and house water requirements, but to gain full development potential of these lots, upgrading of dam storage volumes or creation of new dams with large capital investment will be required;
and
(b)This property has the capacity to develop reliable irrigation water supplies from water creek flows, dam storage and abundant seepage gains from the superficial aquifer."
Following the refusal of the then proposed subdivision into proposed Lots 100 and 101 in February 1999, additional information was provided by Mr Wise on the 17 March 1999 as part of a reconsideration of the matter. He advised that on proposed Lot 100 (40.1 hectares) that there were 23.4 hectares with FAIR to HIGH viticultural capability and that on proposed Lot 101 (24.8 hectares) there were 19.6 hectares with FAIR to HIGH horticultural capability.
Based on the information before the Tribunal it would appear that this additional technical data was sufficient to cause the WAPC to uphold the reconsideration request. Lots 100 and 101 were approved in September 1999 on the basis of their viticultural and horticultural viability.
As part of the current proposal, a further report from Mr Wise was produced on 19 September 2005. The 2005 Wise Report argues:
"(a)Under the current economic situation neither block is in my opinion of a size sufficient to support any form of viable agricultural enterprise.
(b)Considering the success of the Mesdag family in rehabilitating Lot 100, I believe that there should be no objection to any proposal to increase the size of that lot at the expense of Lot 101.
(c)The retained lot of approximately 7 hectares… is not a viable agricultural unit with or without a boundary adjustment. Further, I believe the compromise proposal directed at the maintenance of the usual 20 hectare standard has no real relevance in this case and if there is to be any benefit agriculturally it would indeed be from transferring more land rather than less from Lot 101 to Lot 100."
In the final submissions by the applicants; dated 3 March 2006, there is strong support given to the 2005 Wise Report conclusions, but the respondent in their final submission dated 21 March 2005 argue:
"47The lack of evidence to substantiate the change in market conditions and the failure to demonstrate a sound basis for Mr Wise's change of position diminishes the reliability of the 2005 report to the extent the Respondent submits that the Tribunal ought to place considerable weight on the 1998, 1999 and hydrological assessment reports which establish the agricultural capability of Lot 100 and Lot 101."
In the view of the Tribunal, the following is clear:
(a)The original application to subdivide Sussex Location 907 in October 1998 into two lots of approximately 40.1 hectares (Lot 100) and 24.8 hectares (Lot 101) was finally granted on the basis of viticultural and horticulture viability; with lot sizes being in general accord with the lot size requirement for those uses under TPS 20.
(b)Since the creation of the two lots, no viticultural or horticultural activity has taken place on the land.
(c)Lot 100 has been sold to a Mr Nicolas Mesdag and, according to the 2005 Wise Report, the land has undergone an extensive programme of replanting along with natural regeneration of vegetation. Also attempts are being made to recolonise the property with endemic animals.
(d)There is no evidence before the Tribunal to support the statement by Mr Wise in his 2005 Report that the proposed lot 1001 of approximately 7 hectares is not a viable agricultural unit with or without a boundary adjustment.
In the view of the Tribunal even if a portion of agricultural land was not viable, or could not be used for agricultural purposes, that is not of itself a reason for subdivision. There are many agricultural properties in the State where the same circumstances occur, and subdivision into rural‑residential lots would never be contemplated by the owner(s) or supported by public planning authorities.
Again, the point must be made that if the subdivision was to proceed on the basis of the proposed 7 hectare lot being unviable, and the proposed 57 hectare lot being more viable than the current 40 hectare Lot 100, at what point would you stop further subdivision of the 57 hectare lot on the basis of it still being viable if made smaller. Clearly, the progressive erosion of agricultural land in this way is not contemplated by State or local planning policy or TPS 20.

The undesirable precedent issue

In its reasons for refusal, the respondent advised:
"6Approval to the subdivision would create an undesirable precedent for the subdivision of other lots in the 'Agriculture' zone for non agricultural purposes."
In a letter from Cardno BSD, dated 15 May 2006, on behalf of the applicants it is argued that the respondent recently approved a boundary adjustment application (WAPC ref 127878) to create two lots of 12.158 hectares and 36.8611 hectares in the "Agricultural" zone requiring a minimum lot size of 40 hectares. The claim is made that there are numerous similarities to the proposal now before the Tribunal.
In a response dated 24 May 2006, the respondent argues that there are substantial differences between the two applications and no precedent has been created.
The Tribunal accepts that applicants, as in this case, will often quote circumstances where a previous approval at another location is used to advance their own proposals. However, each case needs to be considered on its particular merits and it is, in the experience of this Tribunal, very rare that two cases and their specific circumstances are exactly the same.
Again, as pointed out in Aspen Pty Ltd v State Planning Commission (Unreported, Appeal No 13 of 1998, 21 October 1988), precedent is not to be treated as a "stand alone" argument and is but one factor to be taken into account.
That is to say that even if the circumstances in two separate cases were such that the precedent argument carried weight, there is always the possibility that more important planning argument demands a refusal.

Conclusions

The application for review has resulted from a decision of the respondent to not approve the amalgamation of two existing lots of approximately 40.1 hectares and 24.8 hectares and resubdivision into two new lots of 57.2 hectares and 7.3 hectares. The applicants have argued that the proposal is merely an adjustment to existing lot boundaries to create the two new lots in the "agricultural" zone, but in the context of this review that point is not critical to the outcome.
The Tribunal has had regard to both State and local policy as they relate to rural/agricultural land together with the provisions of TPS 20. The matters of land capability and undesirable precedent were also examined.
In the context of State policy there is a general presumption against the subdivision of rural land although cl 3.2.1(e) of DC 3.4 does open up the possibility of subdivision by way of boundary relocation where certain criteria are met. These criteria require that the new boundaries reflect good environmental and land management practices, that no new dwelling entitlements are created and the proposal facilitates the ongoing agricultural usage on all of the lots.
Even if it could be argued that the proposal was a boundary relocation, there is certainly no information before the Tribunal that the proposal would reflect good environmental and land management practices or that the proposal would facilitate the ongoing agricultural use of both lots. In fact, it is argued in the 2005 Wise Report that the proposed 7.3 hectare lot 1001 is not a viable agricultural unit.
In SPP 6.1 it appear that although rural‑residential development may be permitted in 'designated' areas it also opens up the opportunity for it to occur outside of these areas providing it would not detract from the viability of an agricultural use. Again, the policy allows for non‑agricultural uses where the viability of an existing agricultural use can be maintained.
Although the applicants argue that their proposal may enhance the agricultural viability of Lot 100 by adding an additional 17.4 hectares, there is simply no existing agricultural use on Lot 100 for an assessment to be made. Also, the applicants acknowledge that there is no existing agricultural use on the proposed 7.3 hectare lot and it is not intended that there will be.
Under both the Rural Strategy and TPS 20, the fragmentation of land in the "agriculture" zone is limited to certain specified areas. The subject land is not included in a specified area.
From an examination of the information before it on State and local policy, together with the relevant provisions of TPS 20, the Tribunal can find no substantive argument to support the applicants' case.
On the important question of land capability, it is clear that the reason why Lots 100 and 101 were created from Sussex Location 907 was the strength of the viability argument for viticulture and horticulture due to soil type and water supply potential. However, no development along these lines has since taken place.
The current argument for subdivision puts the previous viability rationale for Lots 100 and 101 to one side and argues that, due to changed economic circumstances, there may be more benefit agriculturally from transferring more land from Lot 101 to Lot 100.
There is no evidence before the Tribunal on the so‑called "economic circumstances" but, even if it could be proven that a portion of an agricultural land holding was not viable, that is not of itself a reason for subdivision.
Again, even if the subdivision was to proceed on the basis of the 7.3 hectare lot being unviable, and the new larger 57 hectare lot being a more viable proposition than the existing 40 hectare Lot 100, it would certainly provide a circumstance where the owner of the new larger lot would not be discouraged from seeking further subdivision on the basis of a smaller lot than 57 hectares still being viable.
The Tribunal concludes that, based on the information before it, the original decision in September 1999 to create Lots 100 and 101 did conform to the intent of relevant State and local policy and Scheme provisions, but the current proposal does not. It also concludes that the proposal, if approved, on the basis of excising an unviable portion of land from a previously claimed viable landholding would be likely to encourage other similar applications from nearby landowners from within the "agriculture" zone.
Clearly, the progressive ad‑hoc erosion of agricultural land in this way is not contemplated by relevant State or local planning policy or TPS 20, and the Tribunal is unable to support the applicants in this case.

Orders

For the foregoing reasons, the orders of the Tribunal are as follows:
1.The application for review is dismissed.
2.The decision under review is affirmed
I certify that this and the preceding [72] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR L GRAHAM, SESSIONAL MEMBER

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Ness & Anor and Western Australian Planning Commission [2006] WASAT 240

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