OLSTHOORN and WESTERN AUSTRALIAN PLANNING COMMISSION - [2009] WASAT 124

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: OLSTHOORN and WESTERN AUSTRALIAN PLANNING COMMISSION [2009] WASAT 124

MEMBER: MR D R PARRY (SENIOR MEMBER)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 24 JUNE 2009

FILE NO/S: DR 332 of 2008

BETWEEN: QUIRINUS PETER WILLIAM OLSTHOORN
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Town planning - Subdivision - Amalgamation of two lots and subdivision into two lots - General Farming zone - Landscape Protection Area - One lot is closed road reserve with area of 769 square metres - Whether proposal satisfies 'lot rationalisation' provision under local rural strategy - Whether proposed lot sizes and shapes are 'a clear rationalisation of the existing situation' - Impact on rural character and rural appearance - Adequacy of area of proposed lot for on-site effluent disposal

Legislation:

Planning and Development Act 2005 (WA), s 135, s 251(1)
Shire of Dardanup Town Planning Scheme No 3, cl 3.13.1(b), cl 5.2.3

Result:

Subdivision approval refused

Category: B

Representation:

Counsel:

Applicant: Self-represented
Respondent: Mr P Gianatti (Public Sector Employee)

Solicitors:

Applicant: N/A
Respondent: Department for Planning and Infrastructure

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

Olsthoorn and Western Australian Planning Commission [2008] WASAT 24

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Dr QPW Olsthoorn owns two contiguous rural lots, one of which has a road frontage and an area of 60.22 hectares, while the other, being part of a closed road reserve, has no road frontage and an area of only 769 square metres. Dr Olsthoorn sought review by the Tribunal of the decision of the Western Australian Planning Commission to refuse to allow him to amalgamate the lots and to subdivide the amalgamated lot into two lots with areas of 60.194 hectares and 1,024 square metres, each with a road frontage.
The Tribunal agreed with the Western Australian Planning Commission that the application warranted refusal. While Dr Olsthoorn proposed the application on the basis that it satisfied the 'lot rationalisation' provision in the relevant Rural Strategy, the proposal did not fall within the intent of the provision and did not meet an assessment criterion in the provision.
As previously determined by the Tribunal, the purpose of the 'lot rationalisation' provision was not to address the legacy of a lot that was significantly smaller than surrounding lots or that was only conducive to providing an accessway. Furthermore, the proposal was not 'a clear rationalisation of the existing situation', but rather, created an entirely new situation under which a lot conducive to residential use would, in effect, replace a lot conducive only to providing an accessway.
The application for review was dismissed.

Site

Dr QPW Olsthoorn owns Lot 743 and Lot 3578 Richards Road, Ferguson (site). The site is located in the Shire of Dardanup (Shire) approximately 20 kilometres east of Bunbury.
Lot 743 has a frontage of 343.21 metres to Richards Road and an area of 60.22 hectares. Lot 3578 is part of a closed road reserve and does not have a frontage to any public road. Lot 3578 has dimensions of 10.06 metres by 76.54 metres and an area of 769 square metres. Lot 3578 adjoins the north‑western corner of the western part of Lot 743.
The site is zoned 'General Farming' and falls within a 'Landscape Protection Area' under the Shire of Dardanup Town Planning Scheme No 3 (TPS 3 or Scheme). It has an undulating topography and contains some strands of remnant vegetation. The site is currently used for cattle grazing and viticulture purposes.

Subdivision application

On 7 April 2008, Dr Olsthoorn applied to the Western Australian Planning Commission (Commission) for approval under s 135 of the Planning and Development Act 2005 (WA) (PD Act) to amalgamate Lot 3578 with Lot 743 and to re‑subdivide the amalgamated lot into two lots.
The larger of the proposed lots would incorporate the whole of the area of Lot 3578 and the area of Lot 743 other than a 32 metre by 32 metre portion adjoining the eastern boundary of Lot 743 at the Richards Road frontage. This lot would have a frontage of 311.21 metres to Richards Road and an area of 60.194 hectares.
The smaller of the proposed lots would have a frontage to Richards Road of 32 metres, a depth of 32 metres and an area of 1,024 square metres.
The proposed plan of subdivision, showing the current configuration of Lot 743 and Lot 3578, and the proposed two lots, is Attachment 1 to these reasons.
The subdivision application was referred to relevant agencies. The Shire, Western Power and the Fire and Emergency Services Authority of Western Australia did not oppose the proposal. The Department of Health advised that it did not support the proposed subdivision unless a minimum lot size of 2,000 square metres could be achieved.
On 25 August 2008, the Commission refused the subdivision application for 10 reasons.

Application for review

On 5 September 2008, Dr Olsthoorn sought review by the Tribunal of the Commission's decision under s 251(1) of the PD Act.
Dr Olsthoorn contended, in particular, that the proposal satisfies the criteria for 'lot rationalisation' stated in cl 3.4.3 of the Shire of Dardanup Rural Strategy (Rural Strategy). Dr Olsthoorn also relied on the decision of Justice Barker in relation to an earlier amalgamation and subdivision application proposed by Dr Olsthoorn in Olsthoorn and Western Australian Planning Commission [2008] WASAT 24 (Olsthoorn and Western Australian Planning Commission).

Consideration of application for review

The Tribunal considers that the proposed amalgamation and subdivision warrants refusal for the following four reasons.
First, contrary to Dr Olsthoorn's case, the proposal does not satisfy the 'lot rationalisation' provision in cl 3.4.3 of the Rural Strategy.
Clause 3.4.3 of the Rural Strategy states as follows:
The historic pattern of subdivision in the Shire of Dardanup has left a legacy of lots without legal road frontage or designed without due regard to topographic and land capability constraints.
Council will entertain, in the rural areas, applications for subdivision which have as an objective rationalisation of the existing lot configuration and recommend approval by the Western Australian Planning Commission where the following assessment criteria have been met:
•That the subdivision proposed does not require a Council contribution to road construction.
•That each of the lots proposed will have legal road frontage.
•That the resultant lot sizes and shapes are a clear rationalisation of the existing situation and clearly resolve frontage, access and other issues.
•The subdivision does not result in an increase in the number of lots unless all the lots proposed meet the minimum lot size criteria established in this Strategy (emphasis in bold added).
The proposal satisfies the first, second and fourth assessment criteria set out in cl 3.4.3 of the Rural Strategy. However, the proposal does not fall within the intent of the lot rationalisation provision and does not satisfy the third assessment criterion.
In Olsthoorn and Western Australian Planning Commission, Justice Barker held, at [24], as follows:
The term "rationalisation" takes meaning from its context and the purpose served by the clause. The purpose is to rationally address the historic "legacy of lots without legal road frontage or designed without due regard to topographic and land capability constraints". The purpose is not to address the legacy of a lot that is significantly smaller in area than surrounding lots or that has a shape and dimensions that are essentially only conducive, in the rural context, to providing an access way, such as Lot 3578.
Furthermore, the proposal is not 'a clear rationalisation of the existing situation'.
Mr Graham Houghton, a town planner on whose evidence Dr Olsthoorn relied, said that 'because of its small size[,] it is reasonable to assume that [Lot 3578] was created for a dwelling'. However, as Mr Peter Gianatti, a town planner who gave evidence on behalf of the Commission, said, Lot 3578 'is of a shape and size generally conducive only to developing a road'. Justice Barker said essentially the same thing in Olsthoorn and Western Australian Planning Commission at [24].
In contrast, the proposed 32 metre by 32 metre, 1,024 square metre lot, is of a shape and size conducive to residential use. The resultant lot size and shape is not, therefore, 'a clear rationalisation of the existing situation', but rather involves the creation of an entirely new situation under which a lot that is conducive to residential use would, in effect, replace a lot that is conducive only to providing an accessway.
Second, as the proposal does not satisfy the lot rationalisation provision in the Rural Strategy, it is subject to the general farming provision in relation to rural subdivisions in cl 3.4.1 of the Rural Strategy (Olsthoorn and Western Australian Planning Commission at [29]). The proposed 1,024 square metre lot is significantly below the minimum area of 40 hectares referred to in cl 3.4.1 of the Rural Strategy.
While, as a policy provision, the minimum 40 hectare standard could be departed from in appropriate circumstances, there is no cogent reason, in the circumstances of this case, to depart from that standard to the extent proposed in the application. To the contrary, it is appropriate that the 40 hectare standard not be departed from in this case, because the proposal plainly does not meet another development standard specified in cl 3.4.1 of the Rural Strategy, namely, that 'the site has a land capability suitable for general farming'. As Mr Gianatti said, 'there is little potential for productive agriculture to occur upon [the 1,024 square metre] lot'.
In Olsthoorn and Western Australian Planning Commission, Justice Barker said, at [36], that:
… if the proposal fully satisfied cl 3.4.3 [of the Rural Strategy], the Tribunal may, in the exercise of planning discretion [determine] that it is appropriate to grant subdivision approval whether or not the proposed lot could be put to a sustainable [farming] use, if its capacity to be put to such a use were no different from or potentially better than the capacity of the original lot.
However, as found earlier, the proposal does not fully satisfy cl 3.4.3 of the Rural Strategy.
Third, cl 3.13.1(b) of TPS 3 requires consideration, in relation to planning applications in the General Farming zone, of 'the need to preserve the rural character and a rural appearance of the area … ', whereas Mr Gianatti said, 'the proposed subdivision may create a land use conflict and may result in a loss of rural landscape values'.
As Mr Gianatti explained, 'the expectations of residents in rural residential development are often of a higher amenity than that within agricultural areas'. The Tribunal accepts Mr Gianatti's evidence that the proposal would give rise to an unacceptable risk of land use conflict, because of residents' concerns in relation to mechanical noise, spray drift and dust from general farming activities, and may potentially restrict agricultural use on adjoining land.
Furthermore, cl 5.2.3 of TPS 3 states that, in assessing a planning application in a Landscape Protection Area, consideration is to be given to the following:
…
(b)Buildings and associated services should be regarded as being secondary to the natural features of the area and should not usually be permitted in visually exposed areas.
(c)Buildings should be set back at least 100 metres from public roads except where the natural vegetation is such that buildings sited closer to a road will be screened by natural vegetation or dense planting of native vegetation.
…
As the proposed 1,024 square metre lot would have a depth of only 32 metres, there would be insufficient area to achieve the intent of these considerations by setback of buildings or screening vegetation. Furthermore, while Dr Olsthoorn argued that Lot 3578 'is also highly visible from Richards Road', that lot is only conducive, as found earlier, to providing an accessway, rather than buildings, and is, in any case, set back approximately 500 metres from Richards Road.
Finally, the proposed 1,024 square metre lot does not satisfy the minimum site area of 2,000 square metres referred to in the Draft Country Sewer Policy for a lot without access to reticulated sewerage.
There is no cogent reason, on the evidence, to depart from this policy provision in the circumstances of the case. While Dr Olsthoorn said that his house is built on the same type of soil as the proposed 1,024 square metre lot, 'and has been serviced very adequately by septic tanks for the last 30 years', the evidence does not show whether Dr Olsthoorn's house is on a property with an area less than 2,000 square metres. In any case, a departure from the policy, which aims 'to protect public health', would require more scientifically based evidence than that offered by Dr Olsthoorn.
While there is capacity to increase the area of the lot to 2,000 square metres (as, in effect, recommended by the Department of Health), there is no point in doing so, having regard to the earlier three reasons for refusal of the application.

Conclusion

The proposed amalgamation and resubdivision warrants refusal in the exercise of planning discretion.
Dr Olsthoorn put forward the application on the basis that it satisfies the lot rationalisation provision in cl 3.4.3 of the Rural Strategy. However, it was plain from Justice Barker's decision in the earlier proceedings between Dr Olsthoorn and the Commission, at [24], that no amalgamation and resubdivision of Lot 3578 could satisfy the purpose of cl 3.4.3 of the Rural Strategy. As his Honour held:
The purpose is not to address the legacy of a lot that is significantly smaller in area than surrounding lots or that has a shape and dimensions that are essentially only conducive, in the rural context, to providing an accessway, such as Lot 3578.

Orders

The Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision made by the respondent on 25 August 2008 to refuse approval for the amalgamation of Lot 743 and Lot 3578 Richards Road, Ferguson and resubdivision of the land into two lots is affirmed.

I certify that this and the preceding [37] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR D R PARRY, SENIOR MEMBER

Attachment 1