Olsthoorn and Western Australian Planning Commission
[2008] WASAT 24
•6 FEBRUARY 2008
OLSTHOORN and WESTERN AUSTRALIAN PLANNING COMMISSION [2008] WASAT 24
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 24 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:350/2007 | DETERMINED ON THE DOCUMENTS | |
| Coram: | JUSTICE M L BARKER (PRESIDENT) | 5/02/08 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Application for review dismissed Determination of Tribunal in DR 56 of 2007 affirmed | ||
| B | |||
| PDF Version |
| Parties: | QUIRINUS PETER WILLIAM OLSTHOORN WESTERN AUSTRALIAN PLANNING COMMISSION |
Catchwords: | Review by President of determination of Tribunal upon a matter involving a question of law under Planning and Development Act 2005 (WA), s 244 Subdivision application for amalgamation of four lots and resubdivision into four lots Tribunal approved three lots, but refused fourth Local rural strategy provided for "rationalisation" of existing lot configuration to address historic creation of lots without road access or designed without due regard to topographic and land capability constraints Three proposed lots similar in size and location to existing lots Fourth existing lot is 763 square metres in size without road access, whereas fourth proposed lot is 4.1 hectares in size in different location, with road access Whether Tribunal erred in law in interpretation of term "rationalisation" Whether Tribunal erred in law in interpretation of local planning scheme and local rural strategy in relation to minimum lot size Whether Tribunal erred in law by taking into account irrelevant consideration |
Legislation: | Planning and Development Act 2005 (WA), s 3(1)(c), s 135, s 244, s 251(1) Shire of Dardanup Town Planning Scheme No 3, cl 5.2.3 State Administrative Tribunal Rules 2004 (WA), r 10 State Administrative Tribunal Act 2004 (WA), s 3(1), s 105 |
Case References: | Olsthoorn and Western Australian Planning Commission [2007] WASAT 181 Professional Officers' Association of New South Wales v New South Wales Teachers' Federation (1994) 54 IR 85 |
Orders | 1. The application for review is dismissed.,2. The determination of the Tribunal made on 11 July 2007 in proceedings DR 56 of 2007 is affirmed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : OLSTHOORN and WESTERN AUSTRALIAN PLANNING COMMISSION [2008] WASAT 24 MEMBER : JUSTICE M L BARKER (PRESIDENT) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 6 FEBRUARY 2008 FILE NO/S : DR 350 of 2007 BETWEEN : QUIRINUS PETER WILLIAM OLSTHOORN
- Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Review by President of determination of Tribunal upon a matter involving a question of law under Planning and Development Act 2005 (WA), s 244 - Subdivision application for amalgamation of four lots and resubdivision into four lots - Tribunal approved three lots, but refused fourth - Local rural strategy provided for "rationalisation" of existing lot configuration to address historic creation of lots without road access or designed without due regard to topographic and land capability constraints - Three proposed lots similar in size and location to existing lots - Fourth existing lot is 763 square metres in size without road access, whereas fourth proposed lot is 4.1 hectares in size in different location, with road access - Whether Tribunal erred in law in interpretation of term "rationalisation" - Whether Tribunal erred in law in interpretation of
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local planning scheme and local rural strategy in relation to minimum lot size - Whether Tribunal erred in law by taking into account irrelevant consideration
Legislation:
Planning and Development Act 2005 (WA), s 3(1)(c), s 135, s 244, s 251(1)
Shire of Dardanup Town Planning Scheme No 3, cl 5.2.3
State Administrative Tribunal Rules 2004 (WA), r 10
State Administrative Tribunal Act 2004 (WA), s 3(1), s 105
Result:
Application for review dismissed
Determination of Tribunal in DR 56 of 2007 affirmed
Category: B
Representation:
Counsel:
Applicant : Mr JCW Skinner
Respondent : Ms CA Ide
Solicitors:
Applicant : Jackson MacDonald
Respondent : State Solicitor's Office
Case(s) referred to in decision(s):
Olsthoorn and Western Australian Planning Commission [2007] WASAT 181
Professional Officers' Association of New South Wales v New South Wales Teachers' Federation (1994) 54 IR 85
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Summary of President's decision
1 Dr Olsthoorn sought review by the President of a determination of the Tribunal in which it granted approval for the amalgamation of four rural lots and re-subdivision into three lots, but refused approval for a fourth lot.
2 Dr Olsthoorn contended that the Tribunal erred in law in its interpretation of the term "rationalisation" in a rural strategy, in its interpretation of the local planning scheme and rural strategy in relation to minimum site area, and by taking into account whether the fourth lot could be put to a sustainable use, which, Dr Olsthoorn argued, is an irrelevant consideration.
3 The President determined that the Tribunal did not err in law in any of these respects. The application for review was dismissed and the determination of the Tribunal was affirmed.
Application for review by President
4 Dr Q P W Olsthoorn has applied under s 244 of the Planning and Development Act 2005 (WA) (PD Act) for review by the President of a determination made by the Tribunal on 11 July 2007 in which the Tribunal granted subdivision approval under s 135 of the PD Act for amalgamation of four rural lots at Richards Road, Ferguson in the Shire of Dardanup, and re-subdivision of the land into three lots, but refused approval for the creation of a fourth lot - see Olsthoorn and Western Australian Planning Commission [2007] WASAT 181.
5 Section 244 of the PD Act enables the President to review a determination upon a "matter involving a question of law" that was made by the Tribunal when constituted without a legally qualified member, as defined in s 3(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). The determination in question was made by the Tribunal when constituted by Senior Sessional Member Mr L Graham who is not a legally qualified member.
6 Section 244(3) of the PD Act requires that an application for review under that section must be made by a party within one month after the determination in question is given to the party. The determination in question was given to Dr Olsthoorn on or about 13 July 2007. Dr Olsthoorn did not make an application for review within the period specified in s 244(3). Rather, Dr Olsthoorn, who at that time was self-represented, appealed from the Tribunal's
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- determination to the Supreme Court under s 105 of the SAT Act.
7 On 19 October 2007, Dr Olsthoorn sought an extension of time under r 10 of the State Administrative Tribunal Rules 2004 (WA)in which to make an application for review by the President of the Tribunal's determination under s 244 of the PD Act. On 30 October 2007, I extended the time in which the application for review may be made to 19 October 2007, on condition that Dr Olsthoorn's appeal to the Supreme Court was discontinued forthwith.
Background
8 Dr Olsthoorn owns the following four contiguous lots:
• Lot 101 on deposited plan 38606, which has an area of 51.0898 hectares and frontage to Richards Road (Lot 101);
• Wellington Location 743, which has an area of 60.2 hectares and frontage to Richards Road (Lot 743);
• Lot 744 on deposited plan 256392, which has an area of 40.0 hectares and no frontage to any public road (Lot 744); and
• Lot 3578 on deposited plan 232982, which has an area of 763 square metres, a width of 10.06 metres, a length of 66.71/76.54 metres and no frontage to any public road (Lot 3578).
9 The cadastral plan underlying the proposed plan of subdivision shows Lot 3578 as the southern prolongation of land described on the plan as "closed road" between Lot 101 to the west and Lot 744 to the east. Lot 3578 appears to have approximately the same width as the "closed road". Although the cadastral plan does not show whether the "closed road" and Lot 3578 continue as an access road to the south, a southern prolongation of the "closed road" and Lot 3578 would meet another access road which provides access to Richards Road.
10 A photograph attached to a land capability and water resources report prepared by Mr J K Silcock, which was relied on by Dr Olsthoorn in the proceedings before Senior Sessional Member Graham, shows that Lot 3578 comprises a fenced dirt road which appears to occupy all or most of the lot's 10.06 metre width. The photograph shows a length of road, which appears to be well in excess of the length of Lot 3578, projecting uphill into the
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- distance. It is unclear whether the photograph looks north or south. If it looks north, then the road in the distance is the "closed road" between Lot 101 and Lot 744. If the photograph looks south, then the road in the distance is a continuation of the road on Lot 3578 in the direction of Richards Road.
11 Dr Olsthoorn applied to the Western Australian Planning Commission (Commission) for approval under s 135 of the PD Act to amalgamate the four lots and to subdivide the amalgamated lot into the following four lots:
• A lot with an area of 50.0 hectares, occupying the whole of the area of Lot 101, excluding a 1.0898 hectare portion in the south-eastern corner which would form part of an access way connecting what is now Lot 744 to Richards Road;
• A lot with an area of 55.3 hectares, occupying the whole of the area of Lot 743, excluding a 0.8 hectare strip along the western boundary of Lot 743 which would form part of an access way connecting what is now Lot 744 to Richards Road, and also excluding a 4.1 hectare, roughly square portion, with frontage to Richards Road;
• A 41.2 hectare lot, occupying the whole of the area of Lot 744 and an access way to Richards Road, comprising the south-eastern 1.0898 hectare portion of Lot 101, the 0.8 hectare strip along the western boundary of Lot 743 and the area of Lot 3578; and
• A lot with an area of 4.1 hectares and frontage to Richards Road of 200.0 metres, excised from Lot 743.
12 The proposed plan of subdivision, including the underlying cadastral plan showing the current lot layout, is Attachment 1 to these reasons.
13 On 2 February 2007, the Commission refused the subdivision application.
14 On 16 February 2007, Dr Olsthoorn applied to the Tribunal for review of the Commission's refusal under s 251(1) of the PD Act.
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15 In the review proceedings, the Commission did not object to the amalgamation and re-subdivision insofar as it excised areas from Lot 101 and Lot 743, and eliminated Lot 3578, in order to create an access way for what is now Lot 744 to Richards Road. However, the Commission opposed the creation of the 4.1 hectare lot with frontage to Richards Road.
16 The final hearing in the proceedings took place before Senior Sessional Member Graham on 8 May 2007. On 11 July 2007, the Tribunal determined the proceedings by granting conditional approval for the amalgamation and re-subdivision to provide an access way for Lot 744, and refusing approval for the creation of the 4.1 hectare lot.
Grounds for review by President
17 Dr Olsthoorn raises three grounds for review of the Tribunal's determination to refuse approval for the creation of the 4.1 hectare lot, which can be conveniently reformulated as follows:
1) The Tribunal erred in law in the interpretation of the term "rationalisation" in cl 3.4.3 of Pt 2 of the Shire of Dardanup Rural Strategy (Rural Strategy).
2) The Tribunal erred in law in the interpretation of the Shire of Dardanup Town Planning Scheme No 3 (TPS 3 or Scheme) and the Rural Strategy in relation to minimum lot size.
3) The Tribunal erred in law by taking into account an irrelevant consideration, namely whether the proposed 4.1 hectare lot is able to be used for any particular sustainable development.
18 For reasons discussed below, I do not consider that the Tribunal erred in law in any of these respects. I will address each of Dr Olsthoorn's grounds for review in turn.
"Rationalisation"
19 Clause 3.4.3 of Pt 2 of the Rural Strategy is entitled "Lot Rationalisation" and 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.
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- Council will entertain, in 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."
20 It was common ground before Senior Sessional Member Graham that the proposed amalgamation and re-subdivision meets the first, second and fourth criteria set out in cl 3.4.3 of Pt 2 of the Rural Strategy. However, the Commission argued - and the Tribunal accepted - that the proposed 4.1 hectare lot does not meet the third criterion, namely:
"That the resultant lot sizes and shapes are a clear rationalisation of the existing situation and clearly resolve frontage, access and other issues."
21 The Tribunal's reasons for this finding were set out at [51]-[53] of its reasons for decision as follows:
"In the view of the Tribunal, the proposal to extinguish Lot 3578 at 769 [sic] square metres, and replace it with a much larger 4.1 hectare lot is contrary to the intent of cl 3.4.3 in that it would not be:
'… a clear rationalisation of the existing situation …'
In other words, if what was being sought was to replace a landlocked lot of 4.1 hectares (or a lot of that approximate size) with a 4.1 hectare lot with direct access to Richards Road, then that would accord with the lot rationalisation strategy.
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- In the view of the Tribunal, the lot rationalisation strategy is not there to create a lot size circumstance significantly different to that which currently exists, but rather to create some advantage or compensation in terms of a similar sized lot, but with road frontage. Clearly, such a lot becomes a more saleable commodity than a previously landlocked lot."
22 Mr JCW Skinner, counsel for Dr Olsthoorn, submits that the senior sessional member erred in law in the interpretation of the term "rationalisation" in cl 3.4.3 of Pt 2 of the Rural Strategy. Mr Skinner refers to dictionary meanings of "rationalise" and stresses, in particular, The Macquarie Concise Dictionary (4th) Macquarie University Library, Sydney, 2004 definitions "to make rational or conformable to reason" and "to reorganise (resources, the components of a business etc) to promote efficiency, economy etc …". Mr Skinner also refers to the decision of the Industrial Relations Commission of New South Wales in Professional Officers' Association of New South Wales v New South Wales Teachers' Federation (1994) 54 IR 85, in which the Commission said at 102:
"A central or key concept in the meaning of 'rationalise', at least insofar as industry is concerned, is 're-organisation'. That concept, it seems to us, carries connotations of promoting matters such as efficiency and economy …"
23 Mr Skinner submits that, by excluding the creation of a lot of a different size from being a "rationalisation", and limiting the concept of "rationalisation" to the creation of a replacement lot of similar size, the Tribunal placed too narrow an interpretation on the concept of "rationalisation" in the context of cl 3.4.3. He submits that there is nothing in cl 3.4.3 that requires a proposed replacement lot to be of the same or similar size as the lot being replaced or extinguished and that, in fact, "such a requirement would be contrary to the clear intent and purpose of cl 3.4.3 to address the legacy of the type of lots referred to in the opening paragraph". Mr Skinner also contends that the reference to "lot sizes and shapes" in the third criterion of cl 3.4.3 "necessarily contemplates that the size of the proposed replacement lot will be different from that of the lot to be replaced or extinguished". Finally, Mr Skinner submits that the size and shape of the proposed 4.1 hectare lot is "a clear rationalisation of the existing situation", within the meaning and in satisfaction of the third criterion in cl 3.4.3, because the size of the proposed lot "conforms to reason and removes the irrational quality of the historic Lot 3578, having an area of only 763 square metres, surrounded by lots of much larger size" and "the shape and dimensions of the proposed lot conform to reason and
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- remove the irrational elements of the shape and dimensions of the historic Lot 3578".
24 I do not consider that the Tribunal erred in its interpretation of the term "rationalisation" in cl 3.4.3. 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.
25 The proposed 4.1 hectare lot is approximately 54 times larger, and approximately 20 times wider, than Lot 3578. Although the proposed 4.1 hectare lot would have a road frontage, whereas Lot 3578 does not, because of the significant difference in size and shape, the proposed re-subdivision to create the 4.1 hectare lot is not "a clear rationalisation of the existing situation" within the meaning of the third criterion in cl 3.4.3. Rather than a "rationalisation" of the existing situation, the new lot would involve the creation of a significantly different "lot size circumstance", to quote the senior sessional member. While some variation in size and shape is contemplated in order to address the historic legacy of lots without legal road frontage, or designed without due regard to topographic and land capability constraints - as the senior sessional member recognised - the significant difference in size and shape between Lot 3578 and the proposed 4.1 hectare lot goes well beyond rationalisation of the existing situation by addressing the historic legacy referred to in the clause.
26 Finally, caution needs to be exercised in having regard to the discussion of the meaning of the term "rationalise" in the New South Wales Industrial Relations Commission case, because of the difference in statutory context and purpose. While it is appropriate to have regard to the dictionary meanings of the word "rationalise", the definitions need to be considered in the context of the relevant legislative purpose served by the use of the word in the clause in question.
27 Dr Olsthoorn's first ground for review fails.
Minimum lot size
28 In the course of his reasons, the senior sessional member contrasted the proposed lot size of 4.1 hectares with the minimum lot sizes of 40 hectares for general farming, contemplated in cl 3.4.1 of Pt 2 of the Rural Strategy;
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- and 30 hectares for viticulture and 20 hectares for horticulture, contemplated in cl 3.4.2 of the Rural Strategy; see at [58] - [65].
29 Mr Skinner submits that the provisions of cl 3.4.1, cl 3.4.2 and cl 3.4.3 of the Rural Strategy are separate and distinct circumstances in which rural subdivisions can be supported and that, consequently, if the criteria set out in cl 3.4.3 of the Rural Strategy are satisfied, then the subdivision is supported. I agree that cl 3.4.1, cl 3.4.2 and cl 3.4.3 set out separate and distinct criteria for rural subdivisions for general farming, horticulture and viticulture, and lot rationalisation, respectively. Therefore, if each of the criteria set out in cl 3.4.3 were satisfied, it would not be necessary for a proposed subdivision to also meet the minimum lot areas referred to in cl 3.4.1 or cl 3.4.2. However, for reasons discussed earlier, the third criterion in cl 3.4.3 is not relevantly satisfied in this case.
30 Mr Skinner submits, alternatively, that the size of the proposed 4.1 hectare lot satisfies the minimum site area of 4 hectares prescribed in cl 5.2.3 of TPS 3 for land within a Landscape Protection Area - which includes the site - and in cl 3.7.10 of Pt 1 of the Rural Strategy for lots in the Ferguson Valley - where the site is located. Mr Skinner submits that the more general provisions of the Scheme and of the Rural Strategy "cannot be intended to override these more specific and particular provisions in relation to minimum lot size".
31 However, the specification of different minimum lot sizes for the Landscape Protection Area in cl 5.2.3 of TPS 3 and for general farming, horticulture and viticulture in cl 3.4.1 and cl 3.4.2 of the Rural Strategy are likely to serve different planning purposes. Whereas the preservation of the landscape qualities of a Landscape Protection Area may only require a minimum site area of 4 hectares, cl 3.4.1 of the Rural Strategy indicates that a minimum area of 40 hectares is required for general farming and cl 3.4.2 of the Rural Strategy contemplates that 30 hectares is required for viticulture and 20 hectares for horticulture. Furthermore, cl 3.7.10 of Pt 1 of the Rural Strategy specifies a minimum site area of 4 hectares for rural residential subdivision, whereas the land in question is used for rural purposes and is proposed to be rationalised for those purposes. Therefore, while it is a principle of statutory interpretation that general provisions do not override more specific and particular provisions, in this case cl 5.2.3 of TPS 3 and cl 3.7.10 of Pt 1 of the Rural Strategy are not relevantly more specific and particular than cl 3.4.1 and cl 3.4.2 of Pt 2 of the Rural Strategy.
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32 The Tribunal did not err in law in the interpretation of the Scheme and Rural Strategy provisions relating to minimum lot size. Dr Olsthoorn's second ground for review fails.
Sustainable development
33 In the course of his reasons, at [74], the senior sessional member found that Dr Olsthoorn did not put forward a detailed case for consideration in relation to whether the 4.1 hectare lot could be put a sustainable use.
34 Mr Skinner submits that if I were to accept Dr Olsthoorn's contention that the proposed subdivision satisfies each of the assessment criteria in cl 3.4.3 of the Rural Strategy, then it is not necessary to also demonstrate that the proposed 4.1 hectare lot is able to be used for any particular sustainable development. He consequently contents that the Tribunal erred in law by taking into account an irrelevant consideration
35 However, even if each of the criteria in cl 3.4.3 were satisfied, the Tribunal did not err in law. In particular, it was not irrelevant to consider whether the proposed lot could be put to a sustainable use. One of the purposes of the PD Act is to "promote the sustainable use and development of land in the State": s 3(1)(c). Furthermore, the objectives of the Rural Strategy in cl 1.2 of Pt 1 include to:
"… encourage the location of productive non-urban land uses on the basis of sustainability and suitability."
36 Nevertheless, if the proposal fully satisfied cl 3.4.3, the Tribunal may, in the exercise of planning discretion, have determined that it is appropriate to grant subdivision approval whether or not the proposed lot could be put to a sustainable 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.
37 Dr Olsthoorn's third ground for review fails.
Conclusion
38 The Tribunal did not err in law in any of the three respects alleged by Dr Olsthoorn. It follows that the application for review by the President should be dismissed and the determination of the Tribunal should be affirmed.
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Orders
39 I make the following orders:
1. The application for review is dismissed.
2. The determination of the Tribunal made on 11 July 2007 in proceedings DR 56 of 2007 is affirmed.
I certify that this and the preceding [39] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
_________________________________________
JUSTICE M L BARKER, PRESIDENT
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Attachment 1
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4