Olsthoorn and Western Australian Planning Commission
[2007] WASAT 181
•11 JULY 2007
OLSTHOORN and WESTERN AUSTRALIAN PLANNING COMMISSION [2007] WASAT 181
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 181 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:56/2007 | 8 MAY 2007 | |
| Coram: | MR L GRAHAM (SENIOR SESSIONAL MEMBER) | 11/07/07 | |
| 21 | Judgment Part: | 1 of 1 | |
| Result: | The application was upheld in part only | ||
| B | |||
| PDF Version |
| Parties: | QPW OLSTHOORN WESTERN AUSTRALIAN PLANNING COMMISSION |
Catchwords: | Town Planning Application for planning consent Proposed amalgamation and subdivision Rural/residential lots Undesirable precedent Economically viable rural pursuit Landscape protection area Minimising the ad hoc fragmentation of rural land |
Legislation: | Planning and Development Act 2005 (WA), s 249(1) Shire of Dardanup Town Planning Scheme No 3, cl 3.13.1, cl 3.14.1, cl 3.14.1(a), cl 5.2.3, cl 5.2.3(g), Appendix viii State Administrative Tribunal Act 2004 (WA), s 29(3)(c) |
Case References: | Aspen Pty Ltd v State Planning Commission, (Unreported, Town Planning and Appeals Tribunal, WA, Appeal No 13 of 1988; 21 October 1988) |
Orders | 1. The application for review to create a battleaxe access way from Richards Road to lot 744 is upheld, subject to the following conditions:,(a) The battleaxe access way being constructed and drained at the applicant/owners' cost to the specifications of the local government. (Local Government),(b) Suitable arrangements being made with the local government for the provision of a vehicle crossover to service the lot shown on the approved plan of subdivision. (Local Government),(c) Richards Road being widened to a 20 metre road reserve along the full frontage of the land the subject of this application by the applicant/owner transferring the land required to the Crown free of cost for the purpose of widening Richards Road. (Local Government),(d) Arrangements being made to the satisfaction of the Western Australian Planning Commission and to the specification of Western Power for the provision of an underground electricity supply service to the lots shown on the approved plan of subdivision. (Western Power),(e) The transfer of land as a Crown Reserve, free of cost to the Western Power Corporation for the provision of electricity supply infrastructure. (Western Power),2. The application for review to create a single 4.1 hectare lot as proposed is dismissed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : OLSTHOORN and WESTERN AUSTRALIAN PLANNING COMMISSION [2007] WASAT 181 MEMBER : MR L GRAHAM (SENIOR SESSIONAL MEMBER) HEARD : 8 MAY 2007 DELIVERED : 11 JULY 2007 FILE NO/S : DR 56 of 2007 BETWEEN : QPW OLSTHOORN
- Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Town Planning - Application for planning consent - Proposed amalgamation and subdivision - Rural/residential lots - Undesirable precedent - Economically viable rural pursuit - Landscape protection area - Minimising the ad hoc fragmentation of rural land
Legislation:
Planning and Development Act 2005 (WA), s 249(1)
Shire of Dardanup Town Planning Scheme No 3, cl 3.13.1, cl 3.14.1, cl 3.14.1(a), cl 5.2.3, cl 5.2.3(g), Appendix viii
(Page 2)
State Administrative Tribunal Act 2004 (WA), s 29(3)(c)
Result:
The application was upheld in part only
Category: B
Representation:
Counsel:
Applicant : Self-represented
Respondent : Mr M Cuthbert (Acting as Agent)
Solicitors:
Applicant : Self-represented
Respondent : Western Australian Planning Commission
Case(s) referred to in decision(s):
Aspen Pty Ltd v State Planning Commission, (Unreported, Town Planning and Appeals Tribunal, WA, Appeal No 13 of 1988; 21 October 1988)
(Page 3)
Summary of Tribunal's decision
1 The application for review was lodged against a decision of the Western Australian Planning Commission to refuse a proposed amalgamation and subdivision of four contiguous lots in Richards Road, Ferguson, in the Shire of Dardanup.
2 The Tribunal examined the respective arguments of the parties, the background to the matter, the relevant legislative and policy provisions, the capability of the subject land to support a variety of uses, its potential to store water and the matter of precedent.
3 It was determined that a battleaxe access way from Richards Road to the existing landlocked lot 744 was justified in the circumstances of the case, but that the proposed 4.1 hectare lot adjacent to Richards Road was not justified.
Introduction
4 The application for review, dated 16 February 2007, was lodged by Dr QP Olsthoorn (applicant) against a decision of the Western Australian Planning Commission (WAPC or respondent) on 2 February 2007 to refuse a proposed amalgamation and subdivision in relation to lot 101, lot 743, lot 744 and lot 3578 Richards Road, Ferguson, in the Shire of Dardanup.
5 The application was lodged under the provisions of s 249(1) of the Planning and Development Act 2005 (WA).
6 The reasons for refusal can be broadly summarised as:
(a) The proposed subdivision seeks to create a "rural/residential" lot in a locality where strategic planning has identified that the use is not suitable.
(b) Support for the proposal would be contrary to the respondent's Development Control Policy No 3.4 and inconsistent with the objectives and policies of Statement of Planning Policy No 2.5.
(c) The subject land is located in Planning Units PA 7 and PA 12 of the Shire's Rural Strategy wherein subdivision for "rural/residential" purposes is not supported.
(Page 4)
- (d) The subdivision, if approved, would create a lot too small to comprise a sustainable agricultural holding.
(e) The respondent is not prepared to approve the creation of an agriculturally unsustainable lot in the "general farming" zone, as it would have an adverse impact on the land value structure of properties and not be in keeping with the protection of the broad acre agricultural area.
(f) The creation of a rural/residential lot as proposed is inappropriate as adequate controls to address land use conflict and management are not available.
(g) Approval to the subdivision would result in the creation of lots of a much smaller size than those prevailing in the locality, and set an undesirable precedent for further subdivision of a similar type in the general area.
Subject land
7 The subject land is located approximately 20 kilometres east of Bunbury and is comprised of lot 101 (51.09 hectares), lot 743 (60.2 hectares), lot 744 (40.0 hectares) and lot 3578 (769 square metres).
8 The individual lots can best be described as:
(a) Lot 101 on deposited plan 38603 (Certificate of Title Volume 2634, Folio 517).
(b) Wellington Location 743 (Certificate of Title Volume 1168, Folio 089).
(c) Lot 744 on deposited plan 256392 (Certificate of Title Volume 1058, Folio 240).
(d) Lot 3578 on deposited plan 232982 (Certificate of Title Volume 294, Folio 17A).
9 In the statement of evidence dated 13 April 2007 of Mr Stephen John Hossen, a qualified agricultural scientist for the respondent, he advises:
"8. The subject property is cleared and pastured with annual subterranean clover on the steeper sections and medic on the horticultural soils lower in the landscape. Ryegrass is
- the dominant introduced pasture grass present over the entire block. The pasture mix is suited to the grazing use of the land.
- 9. The subject property has sparse remnant native trees, predominated by Marri … associated principally with the steepest land and areas of granite outcropping. …"
10 In the witness statement, dated 26 April 2007, of Mr Peter Alan Gianatti, a qualified town planner for the Department of Planning and Infrastructure, he advises:
"16. A residential dwelling, a cellar door outlet and various other buildings are located in the south [west] corner of lot 101. A vineyard of approximately 3 hectares is located on lots 743, 744 and 3578 … "
The legislative framework
11 The subject land is zoned "general farming" in the Shire of Dardanup Town Planning Scheme No 3 (Scheme or TPS 3) and falls within a so-called "Landscape Protection" area and an "Additional Use No 6" area under the Scheme.
12 Of relevance also in this matter are the following:
(a) The Shire of Dardanup's Local Rural Strategy (LRS).
(b) The WAPC's Development Control Policy No 3.4 (Subdivision of Rural Land) (DC 3.4).
(c) The WAPC's State Planning Policy No 2.5 (Agriculture and Rural Land Use Planning) (SPP 2.5).
Respondent's position
13 The position of the respondent is outlined in a Statement of Issues, Facts and Contentions dated 27 March 2007. It contends:
(a) the proposed 4.1 hectare lot is too small to support an economically viable rural pursuit;
(b) the proposed 4.1 hectare lot is more consistent with a "small holding" lot which is prohibited in a "Landscape Protection" area under cl 5.2.3(g) of the Scheme;
(Page 6)
- (c) the proposed 4.1 hectare lot does not comply with policy measures 1 and 3 of SPP 2.5 as it introduces a rural lifestyle land use into an area used for general farming purposes;
(d) the proposal represents an ad hoc fragmentation of rural land and introduces the potential for land use conflicts;
(e) the proposal does not comply with cl 3.1.1 and cl 4.1.1 of DC 3.4 as a 4.1 hectare lot is not specifically provided for in tps 3 or the lrs;
(f) the proposal does not meet the minimum lot size requirement of 40 hectares set out in the LRS for general farming purposes;
(g) the respondent supports the amalgamation of lot 3578 into lot 744 and to provide an access leg for lot 744 to Richards Road; and
(h) if the proposal was approved it would create an undesirable precedent across a range of other lots in the locality.
Applicant's position
14 The position of the applicant is outlined in a Statement of Issues, Facts and Contentions dated 5 April 2007. It broadly argues:
(a) it has not been possible to maintain a viable grazing enterprise on 232 hectares;
(b) the only viable alternative is through intensive enterprises such as tourism;
(c) a 4 hectare lot may well be viable as a tourist or other enterprise;
(d) there are numerous precedents; and
(e) there should be the possibility for variations and exceptions.
Planning issues
15 The principal planning issues are:
(Page 7)
- (a) Is a battleaxe access way from Richards Road to an existing landlocked lot 744 justified in the circumstances of this case?
(b) Is the creation of a new 4.1 hectare lot with direct access to Richards Road justified in the circumstances of this case?
Assessment of proposal
Background
16 In a document dated 13 February 2007 the applicant advises:
(a) The original property (100 hectares) was purchased in 1981.
(b) Location 744 (4.0 hectares) was acquired in 1983.
(c) Three hectares of grapes were planted on Locations 743 and 744 and 10 hectares in1994.
(d) Location 3578 (763 square metres) was acquired in 1995.
(e) In 2004 an application was made to the WAPC to:
(i) establish legal access for Location 744; and
(ii) relocate Location 3578 (763 square metres) to a position adjacent to Richards Road and increase its area to 4.1 hectares.
(a) The 2004 application was refused by the respondent on 25 June 2004 for the same reasons given in the current refusal.
(b) On 26 October the applicant lodged an application for the amalgamation of lots 744, 3578 and portion of lots 743 and 101 to create three lots of 50 hectares, 41.2 hectares and 59.4 hectares to provide access to Richards Road for lot 744. Also, it was proposed to create two lots from lot 743 of 4.1 hectares and 55.3 hectares.
(Page 8)
- (c) The proposal was refused by the respondent on 2 February 2007.
(d) On 19 February 2007 an application dated 16 February 2007 was lodged with the Tribunal.
Legislative and policy provisions
Town Planning Scheme No 3
18 The subject land falls within the "general farming" zone of a broader "Non-Urban" land category (zone).
19 The approach of the Shire towards subdivision proposals within the "Non-Urban" zone is covered under cl 3.13.1:
"3.13.1 In considering applications for planning consent to commence development, subdivision and rezoning of land in a Non-Urban Zone the Council shall have regard to
(a) the need to protect the economic viability of the rural land use;
(b) The need to preserve the rural character and a rural appearance of the area;
- … "
"(a) the areas included within the Landscape Protection Areas are considered to be areas of significant landscape beauty;
…
(e) Subdivision proposals should reflect the high quality rural landscape of the area and lots less than four hectares in area and with less than a one hundred metre frontage to a road should not be permitted;
… "
(Page 9)
- (g) Small holding subdivision and development should not be permitted.
… "
"3.14.1 (a) As far as is practicable, the rural character of the area shall be maintained and native trees shall be retained."
22 Appendix viii indicates that the maximum lot size within a "Small Holding Zone" would be 2.0 hectares.
Local Rural Strategy
23 The Local Rural Strategy (June 2000) was endorsed by the respondent in July 2000. It is comprised of Part One (Opportunities and Constraints) and Part Two (Policy and Implementation).
24 Under cl 3.7.10 of Part One (Demand for rural/residential lots) it states:
"Lot size
…
• It is considered that lots in the Ferguson Valley should not be less than 4 hectares. There has been considerable demand for 16 hectare to 20 hectare lots in the Ferguson Valley based on significant aesthetic appeal and suitability for certain forms of intensive agriculture at select locations.
• It is suggested that lots on the scarp face, if permitted, should be no less than 8 hectares in order to minimise the visual impact of any development."
25 Under cl 3.4.1 (Part Two) a minimum lot size of 20 hectare, 30 hectare, and 40 hectare is set down for rural subdivision based on horticulture, viticulture and general farming pursuits. These minima appear to be based on an estimate of the lot sizes needed to support agricultural production.
(Page 10)
26 Under cl 3.4.3 (Part Two) the matter of the rationalisation of small, landlocked lots created historically is addressed. It established criteria that need to be met before lot rationalisation is entertained. These criteria include:
"• 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; and
• 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."
27 The subject land fees within Policy Area 7 (PA 7) – Darling Scarp where land uses are defined under the general headings of "primary", "secondary", "undesirable" and "ancillary". General Farming is listed under "primary" and Rural Residential is listed under "undesirable".
State Planning Policy No 2.5
28 This policy applies to all rural land in Western Australia and is meant to be read in conjunction with DC 3.4.
29 One of its prime policy objectives is to protect agricultural land resources wherever possible by:
"minimising the ad hoc fragmentation of rural land".
30 There is provision for a "general agricultural zone", such as the "general farming" zone in TPS 3, which does not include land for "priority agriculture" or land suitable for closer settlement. Uses permitted include tourist facilities, farm stay, chalets and bed and breakfast where these are complementary to the agricultural use of the land.
Development Control Policy No 34
31 As in SPP 2.5 the Policy attempts to minimise the ad hoc fragmentation of rural land but includes an important overall statement with respect to subdivision:
(Page 11)
- "3.1.1 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."
Land capability and water resources
32 In a "Land Capability and Water Resources Report" (Silcock Report) dated 25 March 2006, Mr John K Silcock advised, for the applicant with respect to Locations 3578 and 743:
(a) Two test holes dug on Location 743 confirmed deep friable loam soils to a depth better than 50 centimetres.
(b) No test holes were dug on Location 3578 as it was mainly a consolidated laneway and land use 1 – 2 metres wide either side clearly demonstrated a high capability land use for wine grapes.
(c) The proposed 4.1 hectare lot from Location 743 to replace Location 3578 could be used for a range of agricultural activities including grazing (cattle, sheep, alpacas or boutique stud animals). With fencing the free range grazing of meat birds is a possibility.
(d) Subject to sufficient water a range of vegetables, fruit trees, vines or olives could be grown. Wildflowers, organic vegetables, lavender or herbs could also have some potential.
(e) There are two small gullies within the proposed 4.1 hectare lot that could be utilised for gully dams in order to realise any potential other than domestic use.
33 In his statement of evidence, Mr SJ Hossen advised for the respondent:
(a) The proposed 4.1 hectare lot is rectangular in shape with a 200 metre frontage to Richards Road. It is 205 metres deep, extending north towards Hough Brook.
(b) The proposed 4.1 hectare lot is located mid-slope between the ridge line to the south of Richards Road at an approximate elevation of 200 metres and Hough Brook at 100 metres above sea level. There is a drop from
- 145 metres elevation on Richards Road to 110 metres above sea level at the north-west corner of the proposed lot.
- (c) It would be possible to construct two small low capacity dams on the site at existing depressions.
(d) The southern area of the proposed 4.1 hectare site is too steep for the majority of agricultural uses and is not suited to market gardening, vineyards or orchards. It is suited to grazing and may be suited to some form of forestry depending upon soil depth.
(e) Approximately 1.0 hectares of land closest to Hough Brook is suitable for horticulture, including potatoes, if adequate water was available. Water from the two proposed dams would need to be complemented with water from Hough Brook.
(f) The surplus produced from a 4.1 hectare property is grossly inadequate to cover fixed and other costs of an agricultural business.
(g) Within the Shire a 40 hectare area is regarded as a minimum lot size for grazing. As such, the proposed lot of 4.1 hectare would not be viable and would only be capable of supporting three breeding cows.
(h) If the horticultural soils in the 1.0 hectare portion had access to water it would be possible to engage in intensive horticultural options. However, all established horticultural crops would result in an uneconomic outcome due to the small area of land involved.
(i) For the horticulture venture to have long term profitability it would have to be linked to a value adding enterprise using niche marketing or tourism. The value added components would be vastly more important for business viability than the agricultural production.
34 In the view of the Tribunal the Silcock Report did not go beyond suggesting a broad range of possible activities on the proposed 4.1 hectare lot; whereas the statement of evidence of Mr SJ Hossen took into account the limitations of the land for the majority of agricultural uses and the lack
(Page 13)
- of an adequate water supply. It also raised the important question of viability.
35 What is clear to the Tribunal is that no specific case for a business enterprise has been put before it for consideration, and although some additional suggestions were canvassed at the hearing by the applicant (such as a shedded goat industry) they did not advance beyond the theoretical.
The matter of precedent
36 The position of the applicant is that a number of small lots in the order of 4 hectares to 6 hectares have been created in the "general farming" zone and fall within the LPA.
37 This view is supported in the witness statement, dated 30 April 2007, of Mr John E Gardiner for the applicant who advised:
"There are numerous examples of relocations and realignments of lots as small as 1 hectare which have been relocated and are still zoned general farming from the early 1990's, in the Valley."
38 During the hearing Mr Gardiner further advised of lots within the so-called Hentybrook Estate with 4 hectare lots, and a further subdivision at Greenwood Heights. However, in his terms:
" … they are zoned special rural."
39 In the witness statement of Mr Gianatti he advised:
"6.1 It is acknowledged that rural smallholding lots zoned either 'Small Holding' or 'General Farming' exist within the boundaries of the Landscape Protection Area.
6.2 Recently created lots within the Small Holding Zones have been required to implement measures to mitigate landscape impacts through vegetation screening which would not be required for the proposed 4.1 hectare subject area.
6.3 General farming lots were created according to the historical subdivision pattern in the area, before the implementation of the current Shire and Respondent policy and practice."
(Page 14)
40 In his response to the argument that various small lot subdivisions had been created elsewhere Mr Gianatti advised in his witness statement that:
(a) a number of small lots have been created within "Small Holding" zones;
(b) a number of small lots have been created as a result of a significant road construction or a road realignment.
41 Mr Gianatti also advised that a number of examples of small lot subdivision could not be checked as a result of records not being found but his overall conclusion with respect to the creation of the proposed 4.1 hectare lot was:
"Approval to a lot of this size on 'General Farming' zoned land would set [an] undesirable precedent in the Shire of Dardanup. Such a precedent would result in the proliferation of economically unviable lots for rural land uses throughout the General Farming zone."
42 The matter of precedent was addressed in Aspen Pty Ltd v State Planning Commission, (Unreported, Town Planning and Appeals Tribunal, WA, Appeal No 13 of 1988; 21 October 1988)) where it states:
"The precedent argument is not usually treated by this Tribunal as a 'stand alone' argument. It is a consideration, but if there is no other reason why a development should not occur, the fact that it may tend to result in other application being made for similar kinds of development, should not be a reason why the appeal should be dismissed."
Conclusions
43 The application for review was lodged against a decision of the respondent to refuse the proposed amalgamation and subdivision of several lots comprising the subject land in Richards Road, Ferguson.
44 In undertaking this review the Tribunal has examined the respective arguments of the parties, the background to the matter, the relevant legislative and policy provisions, the capability of the subject land to support a variety of uses, its potential to store water and the matter of precedent.
(Page 15)
45 The position of the respondent is that the proposed 4.1 hectare lot is too small to support an economically viable rural pursuit, is contrary to relevant statutory and policy provisions, is an ad hoc fragmentation of rural, is more consistent with a rural smallholding lot which is prohibited in the "Landscape Protection" area and, if approved, would create an undesirable precedent.
46 The applicant had no objection to the amalgamation of the small 769 square metre lot (lot 3578) into lot 744 as part of a battleaxe access leg for lot 744 to Richards Road.
47 The position of the applicant is that it has not been possible to maintain a viable grazing enterprise on a 232 hectare landholding and that the only viable alternative is through intensive enterprises such as tourism. Also, that a 4 hectare lot may well be viable as a tourist or other enterprise.
48 The applicant also argues that numerous small lots exist elsewhere and there should be the possibility for variations and exceptions.
49 Of importance in this matter are the historical circumstances that have given rise to a number of landlocked lots in the general locality. The matter was explained in the witness statement, dated 29 April 2007, of Mr Keith Hopper for the applicant:
"The Shire of Dardanup has been aware of and frustrated for some time by the existence of a significant number of anomalous lots, created up to 100 years ago for reasons long lost to living memory, but legal titles non-the-less.
Indeed on-going audit of our rate-base is still uncovering titles lost to record many years ago and often unknown to the descendants of the original owners who are now being charged rates on these properties.
The seemingly ad hoc creation of titles in the past, frequently without road access, strangely profiled, and of minimal area, as is the case with former timber rail reserves or shared access to neighbouring properties, has left the current council and its ratepayers with a plethora of anomalous titles, almost invariably inconsistent with our Town Planning Scheme, Rural Strategy, and, significantly, DPI policy for rural and general farming holdings. It is the major reason for the specific insertion of Clause 3.4.3 in our Rural Strategy Report."
(Page 16)
50 An examination of cl 3.4.3 is of particular significance because it establishes criteria that need to be met before lot rationalisation is entertained by the Shire. One of the criterion is:
"That the resultant lot sizes and shapes are a clear rationalisation of the existing situation and clearly resolve frontage, access and other issues … "
51 In the view of the Tribunal the proposal to extinguish lot 3578 at 769 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 … "
52 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.
53 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 size lot but with road frontage. Clearly, such a lot becomes a more saleable commodity than a previously landlocked lot.
54 A further point on this matter is that it has always been open for the applicant to provide access from the landlocked lot 744 by way of an access leg to Richards Road.
55 Although it would be sensible and desirable for lot 3578 to be extinguished to allow this to occur, it is not absolutely necessary that it should, as evidenced by the need to angle the access leg in the vicinity of other lots adjacent to Richards Road.
56 Again, although the applicant argues for compensation if lot 3578 is extinguished and not replaced by a new 4.1 hectare lot, this is not a case where compensation would be paid. All that is required is to manoeuvre the proposed access leg around lot 3578 by way of a new application for subdivision.
57 In the view of the Tribunal, although lot rationalisation is a desirable planning objective in order to eventually achieve a sensible lot configuration in the locality, it should not be done at the expense of the Scheme or policy objectives.
(Page 17)
58 On the matter of the proposed 4.1 hectare lot the applicant argues that it would be a single lot in the "general farming" zone and should not be categorised as a rural/residential lot.
59 The respondent's view is that the proposed lot is a rural/residential lot which is not supported in the "Landscape Protection" area.
60 The difficulty the Tribunal has had in this case is the conflicting statements in the LRS where, under cl 3.7.10 (Part 1), it is argued that lots in the Ferguson Valley should not be less than 4 hectares. This implies a 4 hectare minimum lot size.
61 However, under cl 3.4.1 (Part 2) it talks of lot size minima of 20 hectares, 30 hectares and 40 hectares for rural subdivision based on horticulture, viticulture and general farming pursuits respectively.
62 A useful starting point in trying to unravel these conflicting statements is to look at the overall objectives of the LRS which include:
" …
• Meet the policy requirements of the Western Australian Planning Commission;
• Encourage the location of productive non urban land uses on the basis of sustainability and suitability;
• Provide opportunities for tourist, rural residential and other non rural uses in rural areas:
… "
63 In examining the State-wide policy requirements of the respondent it is clear that there is a general presumption against the ad hoc subdivision of rural land unless it is provided for in a town planning scheme, an endorsed planning strategy or an endorsed local rural strategy.
64 In the Shire of Dardanup there is an endorsed local rural strategy and, as pointed out in [60] above, there is an argument for 4 hectare minimum subdivision.
65 However, to support such an open-ended approach to subdivision in the Ferguson Valley would allow each owner to create a 4 hectare lot or lots when contrastingly cl 3.13.1 of TPS 3 aims to protect the economic viability and the rural character and rural appearance of Non-Urban areas.
(Page 18)
66 As explained in [62] the LRS also talks about "sustainability and suitability" which brings into focus the changing nature of the Ferguson Valley.
67 In his witness statement Mr Hopper explains:
"The Ferguson Valley is a prime example of such a precinct where market forces have almost completely rewritten the actual land-use manual, from dairy, general farming and forestry to an emerging icon for viticulture, tourism, agro-tourism, rural-residential lots and farm stay accommodation."
68 The Tribunal accepts the reality of this situation but it is also the case that additional uses can be accommodated on an existing holding without the necessity for subdivision. In fact, SPP 2.5 specifically provides for this to occur:
" … Uses permitted include tourist facilities, farm stay, chalets and bed and breakfast where these are complementary to the agricultural use of the land."
69 The applicant addressed this point at the hearing with respect to his existing holding:
" … I have opened a winery, cellar door sales since Christmas and in those four months – four months – I have doubled my gross income from cattle sales in the previous financial year. My margin is considerably greater. I'm only running it on weekends, Saturdays and Sundays. We serve food. We built a kitchen. The capital expenditure compared to the rest of the property is minimal …"
70 However, what the applicant now seeks is a stand-alone 4.1 hectare lot which, in the view of the Tribunal, needs to be justified on planning grounds.
71 It is not sufficient to argue that:
" a 4 hectare lot may well be viable as a tourist or other enterprise."
72 In fact there has been no specific argument put to the Tribunal for the creation of the 4.1 hectare lot, other than as a substitute lot for the extinguishment for lot 3578 or for a series of hypothetical land uses which
(Page 19)
- of themselves, unless supported by a business case, would be unlikely to withstand scrutiny.
73 To create the proposed 4.1 hectare lot without justification, and to allow other lots elsewhere on this basis, would merely lead to the creation of lifestyle lots which can be adequately provided for elsewhere in "Small Holding" zones.
74 This is not to say that a proposition could not be put for a sustainable development on the subject land but, based on the evidence of Mr Hossen, a 4.1 hectare lot in the steep location proposed, and with an unproven water supply, there is little to justify an approval. The applicant has simply not put forward a detailed case for consideration.
75 On the specific question of creating a 20 hectare lot in accordance with cl 3.4.1 (Part Two) of the LPS, Mr Cuthbert, for the respondent, replied to Senior Sessional Member Graham:
"Mr Graham: … If a lot of 20 hectares came forward as a proposition to the Commission would they at least look at that … based on their policies?
Mr Cuthbert: Yes, that's right."
76 On the matter of precedent the Tribunal accepts that a number of small lots may well have been created in the "general farming" zone and in the "Landscape Protection" area for a whole host of reasons over many years.
77 However, the Tribunal must consider the merits or otherwise of the particular case before it and, under current policy and practice, it is not constrained by previous policy or decisions.
78 In the view of the Tribunal a battleaxe access way from Richards Road to the existing landlocked lot 744 is justified in the circumstances of this case, but the creation of a 4.1 hectare lot as proposed has not been justified.
Orders
79 For the foregoing reasons, and in accordance with s 29(3)(c) of the State Administrative Tribunal Act 2004 (WA), the orders of the Tribunal are:
(Page 20)
- 1. The application for review to create a battleaxe access way from Richards Road to lot 744 is upheld, subject to the following conditions:
(a) The battleaxe access way being constructed and drained at the applicant/owners' cost to the specifications of the local government. (Local Government)
(b) Suitable arrangements being made with the local government for the provision of a vehicle crossover to service the lot shown on the approved plan of subdivision. (Local Government)
(c) Richards Road being widened to a 20 metre road reserve along the full frontage of the land the subject of this application by the applicant/owner transferring the land required to the Crown free of cost for the purpose of widening Richards Road. (Local Government)
(d) Arrangements being made to the satisfaction of the Western Australian Planning Commission and to the specification of Western Power for the provision of an underground electricity supply service to the lots shown on the approved plan of subdivision. (Western Power)
(e) The transfer of land as a Crown Reserve, free of cost to the Western Power Corporation for the provision of electricity supply infrastructure. (Western Power)
2. The application for review to create a single 4.1 hectare lot as proposed is dismissed.
- I certify that this and the preceding [79] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR L GRAHAM, SENIOR SESSIONAL MEMBER
(Page 21)
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