O'NEIL and WESTERN AUSTRALIAN PLANNING COMMISSION - [2006] WASAT 160

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: O'NEIL and WESTERN AUSTRALIAN PLANNING COMMISSION [2006] WASAT 160

MEMBER: MR J ADDERLEY (SESSIONAL MEMBER)

HEARD: 22 MAY 2006

DELIVERED : 22 JUNE 2006

FILE NO/S: DR 77 of 2006

BETWEEN: CLINTON O'NEIL
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Subdivision of rural land – Planning framework – Town planning scheme – Local planning strategy – Preservation of agricultural resource – Preservation of landscape character – Precedent – Hardship – Application of sound planning principles

Legislation:

Local Planning Strategy, cl 7.2, cl 7.3, cl 7.4, cl 8.8.1, cl 8.8.2, cl 9.6
Planning and Development Act 2005 (WA)

Shire of Chittering District Town Planning Scheme No 6, cl 4.2.3.1, cl 6.2.2, cl 6.2.4, cl 6.2.5

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant: Selfrepresented
Respondent: Mr J Algeri (as Agent)

Solicitors:

Applicant: Self-represented
Respondent: N/A

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

Edwards, MR v Western Australian Planning Commission [2003] WATPAT 127
Fehlauer and Western Australian Planning Commission [2005] WASAT 222
Halden & Anor and Western Australian Planning Commission [2005] WASAT 323
Notte, A and Anor v Western Australian Planning Commission [2003] WATPAT 113

Case(s) also cited:

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

An application for subdivision of Lot 40, Chittering Road, Chittering, was refused by the Western Australian Planning Commission for reasons that the proposal was inconsistent with the objectives and provisions of the prevailing planning framework comprising the local town planning scheme, the local planning strategy, state policies and development control policies.
The applicant argued that subdivision of the 27 hectare rural lot into two lots ought to be allowed because the proposal was consistent, at least in part, with the objectives and provisions of the local town planning scheme, the local planning strategy and relevant state policies. In this regard the applicant argued that the subdivision would not compromise the preservation of agricultural resources or negatively impact on important landscape values and would not set an undesirable precedent for further fragmentation of rural land.
The applicant further argued that the proposed subdivision should be allowed on hardship grounds based on comprehensive documentation of the devastation caused to the applicant's property and horticultural business by a wildfire event in 2004.
The respondent argued that the proposed subdivision was clearly inconsistent with a range of objectives and provisions identified in the planning framework applicable to the area and would, if approved, be contrary to the orderly and proper planning of the area. The respondent demonstrated that, in particular, the subdivision did not meet local planning strategy criteria requiring that all new lots should have sufficient area of tillable land, and be environmentally and economically sustainable in the long term as an agricultural enterprise.
The respondent also argued that the proposed subdivision would compromise landscape values identified by the Local Planning Strategy. Further, the subdivision, because of its inconsistency with policy provisions and the prevailing land subdivision pattern of the area, would set a detrimental precedent for fragmentation of agricultural land in the area.
The Tribunal accepted the arguments of the respondent, that the proposed subdivision was inconsistent with the relevant planning framework, as being soundly based. The applicant's argument failed to present evidence of substance to challenge the proposition of inconsistency.
The Tribunal, whilst acknowledging the genuine hardship confronting the applicant, was constrained within the terms of the Tribunal's responsibility to limit its discretion to approve the application on grounds of hardship only in circumstances which would not affect the application of sound planning principles.
The Tribunal was ultimately of the opinion that to approve the subdivision, taking account of the hardship factor, was so fundamentally contrary to the planning framework for the area as to be inconsistent with sound planning principles.
For these reasons the Tribunal concluded that the application for review of the proposed subdivision should be dismissed.

Introduction

This is an application for review of the decision of the Western Australian Planning Commission (the respondent) to refuse an application for approval of subdivision of Lot 40 Chittering Road, Chittering in the Shire of Chittering (the subject land).
The application for subdivision approval was submitted by the owner, Mr C O'Neil (the applicant), for consideration of the respondent on 22 November 2005.
The respondent resolved to refuse the application for subdivision approval on 17 February 2006, and conveyed its decision and reasons therefore to the applicant by letter dated 20 February 2006.
On 20 March 2006, the applicant lodged an application for review by the State Administrative Tribunal (the Tribunal) of the decision by the respondent to refuse approval of the subdivision of the subject land.

The proposal

The subject land is a rural lot of 27.1139 hectares located in the Chittering Valley at the eastern margins of the Shire of Chittering (the Shire). The property has a 751.7 metre frontage to Chittering Road. The northern boundary of the property abuts the Brockman River.
The Brockman River valley area, in which the subject land is located, is mainly used for grazing and horticulture.
The subject land is utilised as a citrus orchard, located largely on the lower north eastern levels of the property fronting the road. The orchard is serviced by a dwelling, and sheds for machinery and packing. The rear, or south western portion, of the property constitutes a hill slope, rising to a peak or plateau at the south westernmost corner of the lot, featured by shallow soils and rock outcrops.
The application under consideration proposes the subdivision of the subject land into two lots of 14.89 hectares and 12.22 hectares respectively. The proposed 14.89 hectare lot fronting onto Chittering Road is to be used for continued use of the citrus orchard which is largely contained within the proposed boundaries. The 12.22 hectare remainder portion of the land at the rear of the property, encompassing the hill slope and a small proportion of the existing orchard, would be intended to accommodate a new dwelling within a suitably located 2000 square metres building envelope. Access to the rear lot would be enabled via a 217.2 metre length battleaxe leg access way along the southern boundary of the property extending to Chittering Road.

Town planning scheme and policy provisions

The subject land is situated in the Shire and the land use and development of the property is therefore regulated under the Shire of Chittering Town Planning Scheme No 6 (TPS 6).
Under TPS 6, the subject land lies within the "Agricultural Resource" zone. Objectives of the "Agricultural Resource" zone are expressed in cl 4.2.3.1 of TPS 6 in the following terms:
"To preserve productive land suitable for grazing, cropping and intensive horticulture and other compatible productive rural uses in a sustainable manner;
To protect the landform and landscape values of the district against despoliation and land degradation;
To encourage intensive agriculture and associated tourist facilities, where appropriate; [and]
To allow for the extraction of basic raw materials where it is environmentally and socially acceptable."
The subject land also lies within a "Landscape Protection Special Control Area" under the provisions of TPS 6, the purpose of which is expressed under cl 6.2.2 of TPS 6 to be:
"(a)To secure the areas delineated on the Scheme Map from undue subdivision and development that would detract from the landscape value of the rural environment;
(b)to conserve and enhance the character of the significant landscape area; and
(c)to ensure land use and developments are compatible with the landscape values."
Within "Landscape Protection Areas", TPS 6 provides at cl 6.2.4 that:
"In dealing with an application for Planning Approval, the Local Government will not support:
(a)a dwelling or outbuilding on any ridgeline as may be prominently visible from any public road or which may adversely affect the aspects of neighbouring dwellings;
(b)land uses which are not related to the general objectives of the zone;
(c)the storage or keeping of non-agricultural vehicles or materials on the land as may be visible from any public road;
(d)the removal of any natural vegetation from any ridgeline;
(e)the removal or lopping of trees other than for [… certain listed purposes not relevant here]."
Further, cl 6.2.5 provides:
"In considering an Application for Planning Approval, the Local Government shall have regard to:
(a)the statement and the nature of the key elements of the landscape and its character;
(b)the conservation and enhancement of the landscape values;
(c)the impact of any buildings and associated works on the landscape due to height, bulk, colour, general appearance and the need to remove vegetation;
(d)the requirement for all roofing of any building to be a of a non-reflective nature;
(e)a change of land use where in the opinion of the Local Government the proposed development may cause a deterioration of the landscape value and/or cause an adverse effect(s) on the environment."
The Shire has adopted a Local Planning Strategy (LPS) which has been endorsed by the respondent. The LPS identifies objectives, aims, and detailed strategies and actions designed to guide the Shire in its administration of land use and development control under TPS 6.
The subject land is located within the Chittering Valley geographical unit described by the LPS. The aims in relation to the Chittering Valley are listed at cl 6.2.2 of the LPS as follows:
"6.2.2Aims
To retain the productive land for broad acre farming but accommodate conversion to intensive horticulture where the landform, soils and water supplies permit;
To retain existing natural vegetation and connecting areas to provide for biodiversity corridors;
To protect the Brockman River and its tributaries;
To protect and enhance the rivers, lesser flow lines and wetlands as a measure to arrest land degradation and improve water quality with appropriate buffer widths determined using biophysical criteria;
To retain the productive land for broad acre farming, however, encourage conversion to intensive horticulture where the landform and water supplies permit;
To protect the landscape values of the valley landforms from visually intrusive development or inappropriate land uses;
To protect the environment from further land degradation;
To limit subdivisions to ensure the viability of the land holdings is maintained; [and]
To permit discrete development for eco‑tourist and agro tourist purposes."
Clause 7.2 of the LPS refers to the "Retention of Productive Soils for Horticulture and Agriculture" and signals the issue of relevance to be:
"The loss of productive soils to non‑agricultural uses has occurred, but is to be curtailed to avoid further loss in the interests of improved land management practices and an increase in agricultural productivity."
Clause 7.3 of the LPS includes the following the statements:
"The Chittering Valley in particular, and the majority of the rural areas of Shire, has been assessed as of highest landscape value, because of the natural landform attributes.
…
The intent is to retain the rural character and natural features of the landform."
Clause 7.4 of the LPS prescribes, amongst others, the following relevant aim:
"To retain the high landscape values of the Shire by prohibiting inappropriate development and land uses in prominent locations;"
Clause 8.8.1 of the LPS provides a description of the "Agricultural Resource Area" within which the subject land lies. Clause 8.8.2 lists the aims of the "Agricultural Resource Area" as follows:
"To maintain agricultural lands for primary productive purposes;
To protect and improve the natural environment, including the landscape quality of the land[;]
To facilitate the conversion of suitable land, to intensive agriculture based upon appropriate soils and irrigable water supplies;
To prevent the loss of productive land to non agricultural purposes;
To allow agro‑tourism and eco‑tourism to develop in the rural areas;
To allow for the subdivision of non‑productive land or areas of vegetation worthy of preservation in sustainable lot sizes under conservation covenants in accordance with WAPC Policy[; and]
To protect and revegetate streamlines to provide for biodiversity corridors."
Clause 9.6 of the LPS outlines the following strategies and actions relative to the "Agriculture Resource Areas – Horticulture and Viticulture":
"Strategies and Actions
Subdivision of Agricultural Resources zoned land will only be supported where:
The usable or tillable land area is 25 ha [sic] or more. Such areas not included in such calculation comprise, land of substantial remnant vegetation; land required for rehabilitation such as along streamlines and prominent ridge lines, areas of rock or other soils not appropriate for horticulture, land gradients exceeding 15%;
Require land to be appropriately rezoned prior to the Shire supporting subdivision and development for intensive agriculture (to ensure consistency with the requirements of Statement of Planning Policy No. 2.5 [sic]);
The proposed lots must be demonstrated to be of a sufficient size to be environmentally and economically sustainable in the long term as a[n] agricultural enterprise;
Each lot must contain sufficient usable/tillable land of 'High' to 'Very High' capability for intensive agriculture and be suited to the intended intensive agricultural purpose (an absolute minimum area of 25ha [sic] may be suggested, however the Shire and the Commission should be guided by advice from the Department of Agriculture); [and]
Clarify that each lot must have a proven sustainable water supply (in terms of both quality and quantity) for domestic, fire management, agricultural/irrigation purposes and environmental uses."
Statement of Planning Policy No 1 – State Planning Framework Policy (SPP 1) has relevance to the arguments put in this matter. The "General Principles for Land Use Planning and Development" are identified in SPP 1, Part A in the context of the statement that "[t]he primary aim of planning is to provide for the sustainable use and development of land".
Statement of Planning Policy No 2.5 – Agriculture and Rural Land Use Planning (SPP 2.5) also has relevance. The policy objectives of SPP 2.5, s 4, includes, amongst others, the requirement to "protect agricultural land resources wherever possible by … minimising the ad hoc fragmentation of rural land".
Clause 5.3.1(iii) of SPP 2.5 provides:
"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."
Development Control Policy DC 3.4 – Subdivision of Rural Land (DC 3.4) establishes policy objectives including relevantly at cl 2.1 to:
"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."
Clause 3.1.1 of 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."
Clause 6.1.1 of DC 3.4 provides a range of considerations that the respondent may take into account in considering applications for subdivision including, amongst others, the following:
"(a)Impact on agriculture – Agriculture Impact Assessment using guidelines in Appendix 2 [of the Policy].
(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. Its need for and proximity to existing services and infrastructure.
…
(h)Rural amenity – Rural character and amenity of the area. Views to and from the site. How the proposal will enhance the rural management practices within the zone.
…
(j)Environment – Environmental impacts of the proposed development on areas of environmental sensitivity, natural features and existing development.
…
(l)Objections or recommendations from relevant government agencies and local government."
Development Control Policy DC 1.1 – Subdivision of Land General Principles (DC 1.1) provides, in part, at cl 3.1.1, that:
"SPP No. 1 … together with any applicable region scheme and the relevant local government town planning scheme, including any local planning strategy … provide the planning policy direction which guides the WAPC in determining subdivision applications."

The refusal by the respondent

The respondent refused approval of the application for subdivision of the subject land into two lots of 14.89 hectares and 12.22 hectares.
The respondent's reasons for the refusal of the subdivision are:
"1.The proposal does not comply with the criteria for subdivision contained in the Commission's Policy DC 3.4 – Subdivision of Rural Land, a provision of Statement of Planning Policy No. 1 – State Planning Framework, as the Commission was not satisfied that the proposal would facilitate the ongoing agricultural usage on all of the lots. The land capability information submitted did not indicate that the 12.2ha [sic] lot would be viable, in its own right, for sustainable agricultural use. Furthermore, the proposed lots fall below the minimum requirements suggested for intensive agricultural uses as set out in the Shire of Chittering Local Planning Strategy, namely, that each lot proposed for this purpose contain a minimum tillable area of 25ha [sic].
2.The proposed boundary relocation is inconsistent with the 'Agricultural Resource' zoning of the land in Council's Town Planning Scheme and the Local Planning Strategy. 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 non‑rural activity in conflict with the zoning objectives.
3.Approval to the proposed subdivision would set an undesirable precedent for similar proposals in the area."

The respondent's argument

The respondent's argument relies fundamentally on the proposition that the subdivision as applied for, contradicts the provisions of town planning scheme and policy goals relevant to rural land use planning for the area.
Witness for the respondent, Mr R Wallin, an officer of the Department for Planning and Infrastructure, listed in his evidence to the Tribunal those circumstances of the proposed subdivision that did not conform with provisions relating to "Agricultural Resource" zoning under TPS 6 or the detailed requirements of the Shire's LPS.
Particular aspects of non‑conformity of the application were highlighted by Mr Wallin as follows:
•The proposed subdivision is inconsistent with objectives of TPS 6, relative to the "Agricultural Resource" zone because it would facilitate the development of a small rural holding or lifestyle lot with no agricultural potential in an area identified for agricultural production. The proposed subdivision is thus inconsistent with the objectives set out in cl 4.2.3.1 of TPS 6.
•The proposed subdivision is inconsistent with the purposes of the "Landscape Protection Special Control Area" under TPS 6 because future development of a non‑agricultural character (such as a dwelling) on the rear 12.22 hectare lot on the elevated land to the rear of the property would be visible from the scenic vantage point of Chittering Road and thus detract from the established landscape values of the locality contrary to cl 6.2.2, cl 6.2.4 and cl 6.2.5 of TPS 6.
•The proposed subdivision is inconsistent with the Shire's LPS aims for the Chittering Valley set out at cl 6.2.2 because the 12.22 hectare lot is not of sufficient size to be sustainable in the long term as an agricultural enterprise and has no demonstrable access to a sufficient water source for agricultural viability. The subdivision would allow non‑agricultural use, such as a dwelling, which could increase the potential for incompatible land use conflict in the locality. Further, the subdivision would detract from the natural and rural landscape value of the area because of the visual impact of additional development and removal of vegetation associated with that development.
•In relation to cl 9.6 of the LPS, the proposed subdivision is inconsistent with the strategies and actions prescribed for land zoned "Agricultural Resource" because neither of the lots would have a minimum of 25 hectare tillable area as suggested by the strategy. The proposed 12.22 hectare lot lacks sufficient land of high to very high capability for the purposes of intensive agriculture and contains slopes greater than 15 degrees associated with soils not suitable for agricultural use. It would not be environmentally and economically sustainable as an agricultural enterprise. Further, the 12.22 hectare lot would not have a proven sustainable water supply for domestic, fire management, and environmental use or agricultural purposes.

Mr Wallin also referred to planning policies of relevance, particularly SPP 2.5, DC 3.4 and DC 1.1.
In relation to SPP 2.5, Mr Wallin noted that the proposal conflicted with the policy objective of "minimising the ad hoc fragmentation of rural land" and argued that the excision of the 12.22 hectare non‑viable portion of land would create an undesirable precedent for further subdivision of agricultural zoned land.
In respect to DC 3.4, Mr Wallin highlighted the policy presumption against subdivision of rural land unless it is specifically provided for in a town planning scheme or local planning strategy and emphasised that the proposed subdivision is not so provided for in the Shire's TPS 6 or the LPS.
Mr Wallin also testified that the proposed subdivision did not fall within the categories of purpose in cl 3.2.1 of DC 3.4 for which subdivision could be approved. In this regard, satisfying the criteria of the Chittering Fire Recovery Assistance Scheme would not constitute a justification under the policy for subdivision of the land.
In relation to DC 1.1, Mr Wallin noted the emphasis of the policy at cl 3.1.1 on the composite planning framework of any applicable region scheme, town planning scheme and local planning strategy providing guidance in determining subdivision applications. In this regard the proposed subdivision has been shown to be inconsistent with the relevant town planning scheme and local planning strategy planning framework.
The respondent cited Halden & Anor and Western Australian Planning Commission [2005] WASAT 323 as a relevant example of the principles that the Tribunal has applied in questions of the relevance of the planning framework to the determination of town planning issues.
On the question of precedent, Mr Wallin noted that existing lot sizes in the area are generally significantly larger and that the landform of the wider locality of the Chittering Valley is similar in character to that of the subject land. There are properties also featuring steep ridge lines and stands of remnant vegetation. Allowance of subdivision to excise portions of unviable agricultural land would have detrimental impacts on agricultural use in the locality due to:
•Increased potential for land use conflict with non agricultural uses; and
•Intensification of non‑agricultural building impacting on local landscape values represented by agricultural use and remnant vegetation.
Referring to a plan of the locality submitted as evidence to the Tribunal, Mr Wallin identified that a number of smaller lots situated along Chittering Road in proximity to the subject land, including two immediately to the south of the subject land, were established before the gazettal and/or adoption of the current planning framework comprising TPS 6 and the LPS. No subdivision approvals had been effected in the locality by the respondent under the current planning framework in a form contrary to the provisions of that framework.
On the question of hardship experienced by the applicant as a result of wildfire damage to the orchard, the respondent offered argument that, whilst the hardship is profound, such circumstance is not a ground for departing from town planning principles in determining the subdivision. To do so would create an enduring effect which would compromise the planning framework of the area. The respondent cited the following cases reflecting principles that the Tribunal has applied in questions on the relevance of "hardship" to town planning determinations:
•Fehlauer and Western Australian Planning Commission [2005] WASAT 222;
•Notte, A and Anor v Western Australian Planning Commission [2003] WATPAT 113; and
•Edwards, MR v Western Australian Planning Commission [2003] WATPAT 127

The applicant's argument

The applicant's argument is founded on the proposition that the application for subdivision should be granted having regard to relevant planning principles and because of hardship considerations.
The applicant identified that the relevant planning principles that should be addressed in planning laws, in order to support the primary aims of those laws, should be environment, community, economic, infrastructure and regional development considerations.
The applicant affirmed that the Shire's TPS 6 and the LPS are the relevant planning instruments applicable to the land in question and that the subject land is zoned "Agricultural Resource" and falls within the Chittering Valley land management unit.
The subject land, subject of the subdivision proposal, is being used for specialised commercial horticulture (principally as a citrus orchard) and grazing.
In February 2004, a wildfire destroyed 2.55 hectares (approximately one third) of the citrus orchard causing financial hardship to the applicant's family because of the inability to derive sufficient income from the property and the inability to obtain sufficient capital to re‑establish that part of the orchard damaged by the fire.
Insurers have refused to accept liability for the wildfire damage.
The applicant is of the opinion that the Shire knowingly allowed dangerous private recreational activity on land near the subject land which led to the wildfire event.
The consequences of the wildfire and the ensuing financial hardship have impacted severely on the applicant and his family, both financially and emotionally.
Approval of the proposed subdivision would enable the applicant to sell the "hill" lot and use the proceeds to fund re‑establishment of the damaged orchard. The "orchard lot" would then be functional and sustainable as a viable business unit.
In relation to the planning considerations relative to the proposed subdivision, the applicant gave evidence to the effect that:
•The "hill lot" is not suitable for intensive agriculture because of its steep gradient.
•Agricultural viability is not reduced by the proposed subdivision because the "hill lot" is not presently used for agriculture and the "orchard lot" would continue as a commercial orchard as before. Refusal of approval of the proposed subdivision does not preserve a current viable use.
•There are already lots in the area less than the 25 hectare minimum required by the LPS, thus the proposed subdivision would be consistent with the existing pattern of subdivision.
•The locality comprises lots of varying sizes, some of which are of similar or even smaller size than the proposed lot sizes resultant from the subdivision of the subject land. Therefore, the proposed subdivision would not have an adverse effect on the pattern of subdivision in the locality. In any event, the unique topography of the "hill lot" substantially diminishes the possibility that the proposed subdivision would set an undesirable precedent.
•There are lots in the area approved for non‑rural use such as the recently approved monastery and retreat centre on Chittering Road, and other rural retreat developments. These uses do nothing to preserve agricultural use in the locality.
The applicant provided the Tribunal with comprehensive documented evidence in relation to:
•Wildfire Investigation by the Fire and Emergency Services Authority (FESA).
•Fire Damage Assessment Report by Eric Skipworth & Associates.
•The Chittering Fire Recovery Assistance Scheme.
•Natural Disaster Relief Arrangements by the Government of WA.
These documents confirmed the circumstances of the wildfire damage to the applicant's property and the very limited financial support derived from the relief programme.

Analysis

The respondent's argument that the proposed subdivision is inconsistent with TPS 6 objectives, the LPS requirements and state policy provisions is substantiated by the evidence presented to the Tribunal by the respondent's witness, Mr Wallin.
It is apparent to the Tribunal that the land in question is located in an area identified by TPS 6 and the LPS for the maintenance of rural production in an area generally suited by way of topography, soils, water supply, land use pattern and infrastructure to the purpose of supporting grazing and horticulture.
It is also apparent that the subject land is situated in the Chittering Valley which is identified in the LPS as having the highest importance in terms of landscape values associated with the rural character of the area.
The respondent has argued that the provisions of TPS 6, the LPS and the relevant policies of the WAPC all coincide with the purpose of precluding subdivision into lot sizes of the order proposed in order to protect agricultural land resources of the area.
Because the proposed subdivision is likely to introduce to the "hill lot" visually prominent clearing of vegetation and building contrary to the aims of landscape protection, the proposal is argued as being inconsistent with the relevant provisions of TPS 6 and the LPS designed to protect the rural character of the area.
The respondent identified that the proposed subdivision is inconsistent with the overall planning framework for the area, and if approved contrary to planning provisions, would set an undesirable precedent for subdivision of other lots in the area with similar land use, topographical features and vegetation characteristics.
The applicant generally acknowledged the planning framework for the area and sought to demonstrate that within the framework, the proposed subdivision would, by enabling the raising and investing of capital, achieve the land use planning objective of sustaining the rural business presently operating on the land.
The applicant drew attention to the circumstance that there are other lots in the vicinity of similar size to those proposed by the subdivision and that therefore the proposal does not set a precedent in relation to lot sizes in the area.
The respondent acknowledged the presence of some such lots but noted that these all pre‑dated the introduction of the present town planning scheme and the local rural strategy. No subdivision of land in the area had subsequently been approved by the respondent in a manner inconsistent with the presently prevailing planning framework.
The applicant argued that development of the "hill lot" could be effected unobtrusively, in a manner consistent with TPS 6 and the LPS landscape protection objectives, by locating a building envelope on the plateau section of the lot out of view from key vantage points in the Chittering Valley.
In this regard, the Tribunal was unable to satisfactorily conclude whether or not such development could be undertaken without compromising the landscape protection objectives, because no substantive evidence was presented to demonstrate the effect of any development on key sight lines from vantage points such as Chittering Road or other property dwellings.
The applicant stressed the unique circumstances of the proposed subdivision which arose from the devastating effects of the wildfire which had destroyed the income generating capacity of the orchard and the future of the applicant and his family in the horticulture industry.
The hardship experienced as a result of the wildfire was highly stressful and placed great emotional strain on the family. Subdivision of the land was seen to be the logical means to redress the impact of the disaster and return the applicant's property and affairs to financial stability.
On consideration of the arguments summarised here, the Tribunal has been presented with persuasive evidence that the proposed subdivision is inconsistent with the planning framework for the area as provided by the relevant texts of TPS 6, the LPS, SPP 2.5, DC 1.1 and DC 3.4.
The applicant's contention that the proposed subdivision is consistent with the planning framework rests on outcomes of the subdivision, achieving only a limited range of the objectives set out in the LPS. These include the objective of preserving the productive capability of the land and the objective of possibly minimising the visual impact of the subdivision on landscape character. It remains, however, that major issues, such as the requirement to maintain lot sizes with an economically viable area of tillable land, and the possible detrimental effect of subdivisional precedent in the area, have not been convincingly addressed by the applicant in a way to overcome the overarching presumption against approval of subdivision of rural land iterated in cl 3.1.1 of DC 3.4.
Turning to the question of hardship, the applicant has comprehensively recounted and documented the circumstances of the misfortune wreaked by the wildfire event of 2004 which devastated the property and in particular compromised the viability of the applicant's commercial citrus orchard. The applicant's evidence is accepted by the Tribunal in full as a genuine argument of hardship.
The role of the Tribunal, in the case of town planning matters, is to adjudicate upon planning decisions determined by responsible planning authorities and to find whether those decisions have been reasonably made with regard to the facts of each case, and the prevailing town planning instruments and policies that regulate the orderly and proper land use planning of the area in question.
The Tribunal is, in certain cases, able to take account of the circumstances of hardship that may be raised by the applicant for review of a particular matter, but only insofar as any decision flowing from that circumstance of hardship is able to still conform with sound town planning principles.
The Tribunal has been reminded of, and takes account of, case history on the subject of "hardship" as identified by the respondent and previously listed in this report.
The expression "sound town planning principles" is in effect very limiting upon the exercise of any discretion by the Tribunal to set aside a decision of a planning authority, which has been made in accordance with reasonably and properly made planning laws and policies.
There is nothing to persuade the Tribunal that, in this matter, the respondent has not made a determination that is based on the application of sound town planning principles, clearly and unequivocally supported by reasonably and properly made planning laws and policies.
It follows, then, that to set aside the respondent's decision and to approve the proposed subdivision in circumstances that would then conflict with basic provisions of TPS 6, the LPS and state policies would be contrary to the application of sound town planning principles.

Conclusion

For the reasons outlined in the Analysis section of these reasons (pages 20 – 24), the Tribunal concludes that the application for review of the respondent's decision to refuse the application for subdivision of the subject land should be dismissed.

Orders

1.The application for review of the Western Australian Planning Commission's decision to refuse subdivision approval of Lot 40 Chittering Road, Chittering is dismissed.

I certify that this and the preceding [85] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J ADDERLEY, SESSIONAL MEMBER