Price and Western Australian Planning Commission

[2007] WASAT 26

PRICE and WESTERN AUSTRALIAN PLANNING COMMISSION [2007] WASAT 26

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2007] WASAT 26
Act:	PLANNING AND DEVELOPMENT ACT 2005 (WA)
Case No:	DR:210/2006	Heard:	1 NOVEMBER 2006
Coram:	MS J SMITHSON (SESSIONAL MEMBER)	Delivered:	31/01/07
No of pages:	26	Judgment Part:	1 of 1
Result:	The application for review be upheld The application be approved subject to conditions
Category:	B
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Parties:	JANELLE MARGARET AND WAYNE PRICE WESTERN AUSTRALIAN PLANNING COMMISSION
Catchwords:	Rural subdivision Rural residential lot Homestead lot Road as significant barrier Contiguous use of severed portion WACP Policy DC 3.4 Precedent Rural land use conflict Land capability Application upheld
Legislation:	City of Albany's Local Rural Strategy City of Albany's Town Planning Scheme No 3 Planning and Development Act 2005 (WA) Town Planning and Development Act 1928 (WA) Transfer of Land Act 1983 (WA), s 70A
Case References:	Halden & Anor and Western Australian Planning Commission [2005] WASAT 323 Nil
Orders	1. The application for review is upheld.,2. The decision of the Western Australian Planning Commission is set aside.,3. The application for review is approved subject to the following conditions: ,1) 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).,2) Arrangements being made to the satisfaction of the Western Australian Planning Commission and to the specification of Western Power for the removal, relocation and/or replacement of electricity supply infrastructure, including plant and/or equipment located on or near the lots shown on the approved plan (Western Power).,3) 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).,4) A geotechnical report being carried out to the satisfaction of the Local Government and the Health Department in order to verify a suitable location for an onsite effluent disposal system on the 5.27 hectare lot (Local Government/Health Department).,5) All buildings and effluent disposal systems having the required setbacks to new lot boundaries and to the waterway on the 5.27 hectare lot, to the specifications of the City of Albany and the Health Department.  This includes a minimum 50 metre separation to any existing plantation for any dwelling (Local Government/Health Department).,6) Notification in the form of a section 70A notification, pursuant to the Transfer of Land Act 1983 (WA) (as amended) being placed on the Certificate(s) of Title of the proposed lot(s) that reticulated sewerage is not provided and an approved onsite effluent disposal system, to the specifications of the Local Government and the Health Department, will be required (Local Government/Health Department).,7) Determination of a suitable location for the construction of a crossover to the 5.27 hectare lot, to the specifications of the Local Government (Local Government).,8) Fencing of creek lines on the 5.27 hectare lot being carried out to the specifications of the Department of Environment and Conservation.,9) The following plans being submitted to and approved by the Department of Environment and Conservation for the 5.27 hectare lot:,(a) A creek line management plan; and,(b) A vegetation management plan (DEC).,10) Preparation and implementation of a fire management plan for the 5.27 hectare lot to the specifications of the Local Government and FESA (Local Government/FESA).

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : PRICE and WESTERN AUSTRALIAN PLANNING COMMISSION [2007] WASAT 26 MEMBER : MS J SMITHSON (SESSIONAL MEMBER) HEARD : 1 NOVEMBER 2006 DELIVERED : 1 FEBRUARY 2007 FILE NO/S : DR 210 of 2006 BETWEEN : JANELLE MARGARET AND WAYNE PRICE

Applicants

AND

WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Rural subdivision - Rural residential lot - Homestead lot - Road as significant barrier - Contiguous use of severed portion - WACP Policy DC 3.4 - Precedent - Rural land use conflict - Land capability - Application upheld

Legislation:

City of Albany's Local Rural Strategy

City of Albany's Town Planning Scheme No 3
Planning and Development Act 2005 (WA)
Town Planning and Development Act 1928 (WA)
Transfer of Land Act 1983 (WA), s 70A

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Result:

The application for review be upheld

The application be approved subject to conditions

Category: B

Representation:

Counsel:

Applicants : Ms D Baesjou
Respondent : Mr S Peterson (Acting as Agent)

Solicitors:

Applicants : N/A
Respondent : Western Australian Planning Commission

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

Halden & Anor and Western Australian Planning Commission [2005] WASAT 323


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REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 These proceedings concerned an application for review of the refusal by the Western Australian Planning Commission of a two lot subdivision in the rural locality of Upper Kalgan.

2 The existing property was severed by Deep Creek Road. The first and larger of the proposed lots, situated west of Deep Creek Road, had an area of 196.73 hectares and contained a homestead being the residence of the applicants. This lot was presently used predominantly for cattle grazing but also contained tree plantations. The second smaller lot, situated east of Deep Creek Road, had an area of 5.275 hectares, was traversed by a stream and contained an arboretum but was otherwise not used for agricultural purposes or in association with the larger lot.

3 The subdivision was sought on the basis that the property was severed by Deep Creek Road, a road claimed by the applicants to be a "significant barrier" and as such the subdivision ought be approved under the provisions of s 3.2.1(a) of the Commission's Policy DC3.4 "Subdivision of Rural Land".

4 The issues were not only whether Deep Creek Road was a significant barrier to use of the severed portion of the site, but whether approval would create an undesirable precedent for rural properties severed by gravel roads and generally. Relevant considerations were: the use and characteristics of the road relative to other rural roads in the City; the size and use of rural properties in the locality; and whether or not the severed lot was capable or suitable for rural residential use.

5 The application for review was upheld subject to conditions.

The site and its context

6 The subject land is referred to as Lot 12 Caronia Road, Kalgan (the site) and has a total area of 202.07 hectares. It contains an existing dwelling in the north-west portion accessed from Caronia Road and is traversed by Deep Creek, a tributary of the Kalgan River.

7 The site is divided by Deep Creek Road, which is constructed to gravel standard but which was re-surfaced and widened in 2006. Approximately 197 hectares of the site lie to the west of Deep Creek Road and 5.27 hectares lie to the east. The proposed subdivision would create

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each of these two parcels as individual lots (see subdivision plan in attachment).

8 Proposed Lot 1 (the larger lot) is predominantly used for cattle grazing but also contains a blue gum plantation and the residence of the applicants. Proposed Lot 2 (the severed lot) contains an arboretum.

9 Land in the vicinity of the site contains a variety of rural activities with the larger lots used predominantly for cattle grazing but with an increasing number of tree plantations. Lot sizes range from 4 to 400 hectares but are predominantly around 30 to 60 hectares.

10 Services in the area are reflective of a rural locality. There is no reticulated sewer or water and electricity is supplied by overhead power lines. The nearest townsite, Kalgan, is 7 kilometres to the south but contains no commercial enterprises. The nearest general store and school is at Many Peaks, some 15 kilometres to the east. Albany is 22 kilometres to the south­west.

11 The site is zoned "Rural" under the City of AlbanyTown Planning Scheme No. 3 (TPS 3) as is the majority of the surrounding area. Deep Creek Road is designated an "Important Regional Road" under TPS 3 as are a number of gravel roads in the City.

The application

12 On 8 March 2006, the applicants sought approval from the Western Australian Planning Commission (the WAPC) for the subdivision of the site into two lots of 197 hectares and 5.27 hectares respectively. Under the proposal, both lots will have frontage and access to Deep Creek Road; however, the larger lot will retain frontage to Caronia Road.

13 In the application, reference was also made to the subdivision being for the purposes of excising a "homestead lot" being the severed lot. A homestead lot is a term used in specific policies of the WAPC and also the City of Albany (the City).

14 In support of the application, the applicants advised, inter alia, that: the re-alignment of Deep Creek some time ago severed the property rendering the severed lot isolated and unusable; the movement of stock across Deep Creek Road was too hazardous to undertake; and the lot's size and configuration rendered it incapable of being used as a contiguous part of the rural uses on the larger lot.

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15 The severed lot is traversed by Deep Creek which the applicants intend to fence to preserve the vegetation, further constraining the use of the land for rural activities. Its only use was in part for an "arboretum" planted by the applicants but this use was not of a commercial nature.

16 The applicants claimed that the subdivision would therefore not reduce the land available for agriculture in the region as the severed lot would be unlikely to ever be used for agricultural activities associated with the larger lot or in its own right.

17 The applicants also argued that one additional lot would not increase the demand on services, the lot could be serviced with power and to the level expected of a small rural holding, and there were other lots of a similar or smaller size along Deep Creek Road and in the general locality. Furthermore, the area was experiencing a declining population which threatened existing services in the nearby townsites. The addition of an additional residence on the severed lot would assist in redressing this.

18 The application was referred to a number of agencies including the then Department of Environment and the City.

19 The Department of Environment objected to the subdivision on the basis that the creek system, which traversed the site and was within the Oyster Harbour catchment, would be best managed as part of one property.

20 The City objected to the subdivision on the basis that the proposal was contrary to the objectives of the "Rural" zoning of the land in TPS 3, did not comply with the City's Local Rural Strategy (LRS), and would set an undesirable precedent.

21 On 2 June 2006, the application was refused by the WAPC for the following reasons:

"1. The proposal does not meet the criteria for rural subdivision set out in Clause 3.2.1 (a) of Commission Policy DC3.4 'Subdivision of Rural Land' by reason that Deep Creek Road is constructed only to gravel standard and supports minor traffic volumes. It is therefore not considered to be a significant feature dividing the property.

(Page 6)

2. The proposal does (sic) meet criteria for homestead lot subdivision set out in Section 4.3 of Commission Policy 3.4 'Subdivision of Rural Land' by reason that;

(a) the majority of the land parcel is located outside the homestead lot policy area of Albany's Local Rural Strategy;

(b) the proposed homestead lot does not contain any existing homestead or any other buildings; and

(c) No information has been submitted with the application confirming a decline in population in this Census District over the last two intercensal periods.

3. Approval to the subdivision would set an undesirable precedent for further subdivision of surrounding rural lots.

4. The proposal is inconsistent with General Policy 30 of the City of Albany's Local Rural Strategy – 'Criteria for Support for Subdivision of Rural Land'.

5. The proposal would result in creation of a lot for rural lifestyle purposes. This is contrary to the City of Albany's Local Rural Strategy, which does not support the creation rural lifestyle lots in this area (sic).

6. There are concerns over the susceptibility of the smaller lot to flood events, and the ability of this land to accommodate an onsite effluent disposal system. Adequate information has not been provided that proves the lot can accommodate a building above the Q100 (100-year) flood level, or that effluent disposal is achievable.

7. There are concerns that the proposed subdivision will result in a reduced standard of management of creek lines traversing the property. No information has been supplied with the application to ensure the ongoing management of these creek lines."

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Issues

22 Seven grounds of refusal were cited by the WAPC in refusing the application. These can be summarised into four issues, namely:

1. whether the subdivision meets the requirements of cl 3.2.1(a) of the WAPC's Policy DC3.4 Subdivision of Rural Land (Policy DC3.4), that is, whether Deep Creek Road is a "significant man-made feature physically dividing the proposed lots" and whether approval on that basis would create an undesirable precedent for such subdivision;

2. whether the proposed subdivision, in creating a rural lifestyle or rural residential lot, creates an undesirable precedent and would create the potential for land use conflict;

3. whether the Shire's Homestead Lot Policy is relevant and if so whether the application meets that policy; and

4. whether the severed lot is physically capable of development and would result in an adverse environmental impact or reduced management of the land including of the creek.

23 The Tribunal heard evidence on these issues from Ms Baesjou, town planner for the applicants, Ms Price, the applicant, Ms Brown, town planner from the City, and Mr Jendrzejczak, town planner from the WAPC.

Significant man-made feature physically dividing the proposed lots

24 This issue was the determinative issue in this review as it was the primary basis on which the application was made. The site is in fact physically separated by two roads - Deep Creek Road and Coronia Road - but it is only Deep Creek Road which the applicants claim is a significant physical feature dividing the property and justifying the subdivision.

25 The WAPC's Policy DC3.4 sets out "the specific principles which will be used [by the WAPC] in its determination of applications for subdivision of rural land". Policy DC3.4 contains a number of objectives including to protect agricultural resources, minimise the potential for land use conflict, and manage natural resources. Accordingly, there is a general presumption against subdivision of rural land unless it is provided

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for in a town planning scheme, local planning strategy or local rural strategy.

26 Notwithstanding the general presumption against subdivision of rural land, Policy DC3.4 states that the WAPC may approve such subdivision in a number of instances, including as provided for in cl 3.2.1(a) where:

"a significant natural or man-made feature already physically divides the proposed lots and an undesirable precedent would not be set".

27 The applicants claimed that Deep Creek Road is a significant man­made feature already dividing their property for the following reasons:

(a) Deep Creek Road is reserved as an "Important Regional Road" under TPS 3 confirming that it is a major road in the district.

(b) The road connects South Coast Highway to Mindijup Road, which in turn is one of the few roads that cross the Calvin River. It is therefore a through road, unlike many other gravel roads in the area.

(c) Deep Creek Road was substantially widened and resurfaced in mid-2006 by the City at a cost of $300 000 in response to increased traffic movements. This work was funded jointly by the State Government and the City under the "Timber Industry Regional Evaluation Strategy" (TIRES)given its use, as a haulage route, by major tree companies harvesting in the area. Cartage is anticipated to increase from 8000 tonnes to 40 000 tonnes during 2007.

(d) Deep Creek Road has a significant number of plantations accessing it and is, and will increasingly be, the haulage road following harvesting of these plantations. This could lead to in the order of 1655 truck movements at peak harvest periods on Deep Creek Road.

(e) Furthermore, Lot 5192 immediately north of the site is being quarried for gravel, and gravel trucks use this section of the road. There are also other gravel deposits in the area, likely to be quarried.

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(f) Although the City was unable to provide traffic volumes, it had, according to Ms Baesjou, advised the applicants that Deep Creek Road "is carrying greater volumes of traffic and substantially larger vehicles". The applicants, who reside at the site, confirm this is the case and advised that local residents had sought the upgrading of the road.

(g) The applicants dispute the WAPC's estimates of "low traffic volumes" on Deep Creek Road, claiming the Commission has not had regard to the changing nature of uses in the area, in particular the growth of plantation crops and the quarrying of gravel resources, and the associated traffic implications. The applicants state: "What was once a predominantly cattle farm area with low traffic volumes has become an agro-forestry area populated by ageing farmers, absentee owners or life style type blocks".

(h) The applicants contended that movement of stock across Deep Creek Road to the severed lot would be hazardous to traffic as stock entry points are positioned on bends and dips in the road. It would be dangerous and irresponsible, to both stock and traffic, to walk stock across Deep Creek Road. As well as haulage trucks, the road carries farm traffic and contractors' vehicles associated with the plantations. Contractors often travel at excessive speeds on the road.

(i) Due to these issues, the severed lot has not been and could not be used for grazing or any other farming activities associated with the larger lot.

(j) Ms Baesjou also contended that the severed lot could not practically or safely be farmed in association or contiguously with the larger lot. It is in close proximity to a bend in Deep Creek Road, making stock and equipment crossing difficult. Evidence was given of the nature of these movements to the Tribunal. Furthermore, Ms Baesjou advised that the severed lot was too small to economically and sustainably farm in its own right. It was therefore not an agricultural resource requiring protection under Policy DC3.4 and was

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"nothing more than a rationalisation of the existing lot configuration to reflect its practical future use".

28 In defending the decision that the subdivision did not meet the criteria for rural subdivision set out in cl 3.2.1(a) of Policy DC3.4 by reason that Deep Creek Road was not a significant feature dividing, the WAPC argued that:

a) Deep Creek Road is constructed only to gravel standard and supports minor traffic volumes albeit it had been widened and resurfaced. Mr Jendrzejczak, on behalf of the WAPC, agreed that traffic volumes would increase in response to increased plantation activity but relied on advice from the City that the road would not need further upgrading and that volumes would remain relatively low.

b) Ms Brown from the City gave evidence that the section of Deep Creek Road adjoining the site carried only 78 vehicles per day (vpd). Mr Jendrzejczak advised that the 1655 trucks quoted by the applicants was an annual figure equating to only 4.5 trucks per day. Adding these to the counts provided by the City increased volumes to 87.5 vpd. Such volumes, in the WAPC's view, did not create a road which was a significant dividing feature given an average suburban cul-de-sac would carry 100 vpd. Therefore, regardless of the type of traffic, a gravel road with such volumes could not be considered significant.

c) Ms Brown agreed with the WAPC that Deep Creek Road did not meet the requirements of Policy DC3.4 in that the road was of gravel standard and carried low traffic volumes, although she was not able to elaborate substantively on the status of Deep Creek Road in terms of its importance or volumes relative to other rural roads in the City.

d) Ms Brown did, however, advise that the last traffic volume count for Deep Creek Road was in July 2004 indicating an average of 78 vpd used this section of road, an increase from an average of 55 vpd in the last count taken in 2000. The road had recently been upgraded by the City; however, was still of a gravel standard and

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Ms Brown considered any sealing of the road in the next 10 years was unlikely, although the City had not given any formal consideration to this.

e) Ms Brown further advised that Deep Creek Road did not meet any of the criteria on the City's Asset Management Strategy which determines which roads should be given priority for upgrading. These criteria include tourism value, strategic significance, economic activity, alternative access and need for emergency access.

29 Evidence given to the Tribunal did not provide any conclusive understanding of the basis for the "Important Regional Road" designation given to Deep Creek Road nor to other gravel roads in the City, which vary in their length, standard of construction and traffic volumes. Nor could a clear hierarchy of rural roads be ascertained.

30 It was also agreed that the traffic volumes were not consistent, varying from little traffic outside peak hours and harvest period to intensive traffic in the harvest season. No specific details were available on the standard of the road or traffic volumes immediately pre and post the 2006 upgrading; however, there was common agreement that the upgrading had been undertaken in direct response to increased and increasing use by logging trucks.

31 In evidence, Ms Price referred to a decision of the Tribunal, namely, Halden & Anor and Western Australian Planning Commission[2005] WASAT 323. In Halden, the Tribunal expressed the view that the composition of the road surface (whether gravel or sealed), its size, maintenance and traffic movements all contribute to answering the question whether a road is "significant", namely, whether it is "not important" or "trivial" or "sufficiently large to be important". Ms Price contended that Deep Creek Road could not be construed as "not important or trivial" in the context of the impact it had on the ability to use the severed portion of the property for farming purposes, either contiguously with the larger lot or at all.

32 The Tribunal finds that, on balance, Deep Creek Road as it now operates is a significant man-made feature which physically divides the property for the following reasons:

(i) The recent substantial upgrading has changed the characteristics of the road and reflects its importance as a haulage through road in the City.

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(ii) The volumes of traffic are arguably low relative to an urban context. However, the parties agreed that they would have increased since the last City counts were undertaken in 2004. They increased by a third between the only counts undertaken in 2000 and 2004 and, given the increased plantation activity and logging traffic in the area, the Tribunal accepts that they would have further increased since then. Whilst it is unfortunate that no counts were available to the Tribunal immediately prior to or since the road's upgrading, they could well now be significantly higher, albeit the Tribunal accepts that volumes varied at certain times, as they do on all roads.

(iii) It is unlikely Deep Creek Road would be on the City's Asset Management Strategy for upgrading, having been substantially upgraded in the last 12 months.

(iv) Whilst at times traffic volumes would not present an impediment to stock crossing or contiguous use of the severed lot, during plantation harvest and at peak times, such use would likely be unsafe and therefore unlikely to occur.

(v) The fact that Deep Creek Road is of gravel construction does not, in this instance, diminish the barrier, given the geometry, width and use as a haulage route of the road relative to other gravel roads in the locality.

(vi) The size and physical features of the severed lot contributes to the Tribunal's conclusion that Deep Creek Road in this instance is a "significant" man-made barrier. Were the severed lot larger and less physically constrained for agricultural use, it could potentially be used in conjunction with the larger lot. However, the Tribunal accepts the applicants' advice of how cattle are moved and the resultant constraints to the ability to cross the road and use the severed lot lead to the determination that it was indeed a barrier for cattle grazing or for any other agricultural purpose that would be contiguous with the use of the larger lot.

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(vii) As such, the Tribunal accepts that the severed lot is not, and is unlikely to ever be, used in conjunction with the agricultural activities on the larger lot.

(viii) The use of the severed lot for an arboretum was not a farming use associated with the commercial uses of the larger lot, but appears to the Tribunal to be an attempt by the applicants to landscape and use the severed lot unrelated to the use of the larger lot given no contiguous use is possible.

(ix) If reasonable contiguous use of the severed lot with the larger lot is not possible because of the circumstances associated with the severance caused by Deep Creek Road, it is arguable that the road is a significant barrier irrespective of its construction standard. The Tribunal accepts in this instance that this is the case and that it is a reasonable interpretation of cl 3.2.1(a) that a road is a significant barrier if it does not reasonably enable the use of the severed lot in conjunction with the larger lot.

33 The subdivision does, however, still need to meet the second requirement of cl 3.2.1 (a), namely, that it will not set an undesirable precedent. This matter is now discussed.

Precedent for other lots severed by roads

34 One ground of concern raised by the WAPC was that, if the application was approved on the basis that Deep Creek Road was determined to be a significant barrier warranting subdivision, other subdivisions with a similar context would be sought.

35 In terms of the precedent concern based on the severance argument, the WAPC advised that there were four other lots within a 10 kilometre radius of the site which were severed by gravel roads to the extent that the severed portions would be of a similar size to the proposed smaller lot in this application. Furthermore, the precedent could be set for subdivision anywhere in the City of lots severed by gravel roads with volumes in the order of 87 vpd. This would result in additional lots being used for rural residential purposes in predominantly rural localities.

36 The applicants contended that their property was the only property in Deep Creek Road severed by that road. Further, the examples put forward by the WAPC for properties severed by other gravel roads - such as

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Yungup Road, Penn Road and Booth Road - were not valid as these roads were not comparable, being constructed to a much lower standard than Deep Creek Road, did not carry through traffic or haulage trucks, and serviced less properties. Furthermore, the portion of all the lots severed was larger than in this instance, and could likely therefore be used in association with their "larger" lot.

37 Precedent is not a stand alone argument and each application must be considered on its merits. In the circumstances of this application, the Tribunal concludes that the application meets the test of cl 3.2.1(a) of Policy DC3.4 in terms of not creating an undesirable precedent.

Rural lifestyle lot in conflict with adjoining rural uses

38 A second precedent concern raised by the WAPC was in regard to creation of a small rural lifestyle lot in a remote rural locality. However, as the Tribunal has determined that the application meets the requirement of cl 3.2.1(a), it should not follow that its approval can be used as a precedent for other similar sized lots which are not severed by roads.

39 The site is surrounded by a variety of lot sizes varying from 4 to 400 hectares with the majority between 30 and 60 hectares. There was little evidence available to the Tribunal on the basis for the smaller lots that existed. The applicants provided details of lot sizes and use of the 18 rural properties with frontage to Deep Creek Road. These vary in size from 4.5 hectares to 310 hectares.

40 The parties did not agree on whether a rural residential lot was an appropriate use in the location but there was agreement that at 5.27 hectares the severed lot would likely be developed for "rural residential" purposes. The extent and location of the creek and the associated revegetated areas would confine the ability for agricultural uses, and approval to the subdivision would grant dwelling entitlements.

41 The Tribunal agrees that the likely future use of the severed lot would be for rural residential purposes having regard to the definition ascribed to "rural residential zones" in Policy DC3.4: namely rural lots predominantly used for residential purposes but in a rural setting and where preservation of amenity and the control of land use impact is a consideration.

42 The consideration then becomes whether such a lot in this location would create an undesirable precedent, if that was relevant given the

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overriding provisions of cl 3.2.1(a), and also whether it was appropriate in this circumstance.

43 The applicants argued that precedent already existed for Deep Creek Road, with one lot at 4.5 hectares and another at 4.9 hectares, and that the 18 lots in Deep Creek Road, irrespective of size, were already predominantly used for "rural residential" purposes and not for agricultural production or rural use. Only three were occupied by farmers. The balance was occupied by residents who worked elsewhere, were tenanted or were occupied by retirees. Farming the land was not viable which was why so most residents commuted to work elsewhere.

44 The WAPC did not dispute the range of lot sizes in Deep Creek Road but claimed the majority were larger than were proposed in this application, enabling use of the lot without creating land use conflict unlike what would occur in this instance.

45 The Tribunal accepts that the area already contained a number of properties used for "rural residential" purposes of a lesser to greater size relative to this application, and therefore the subdivision would not create a precedent, even if the reason for its approval under cl 3.2.1 was lost over time.

46 However, the Tribunal also accepts that it is a valid consideration as to whether, notwithstanding the application meets the test of cl 3.2.1(a) and does not create a precedent, it ought still to be approved if the resultant lot is not capable of or suitable for development, which were concerns raised by the WAPC in its refusal. The creation of the lot will grant dwelling entitlements. For this reason, the WAPC considered the creation of the severed lot should not be supported, as residential use of the property could fetter the rural use of adjoining properties and thus create land use conflicts, and the lot itself was physically constrained in terms of adequately accommodating a residential use.

47 In this regard, adjoining uses include tree cropping/plantations and cattle farming, and the parties did not agree on the potential land use conflict.

48 The WAPC argued that practices associated with these uses, particularly plantation harvesting and spraying, would impact on the amenity of the occupants of the severed lot and any house on it could not achieve sufficient setbacks to reduce this impact unlike the majority of lots in the area. The likely maximum setback from the nearest plantation would be 100 metres.

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49 Conversely, Ms Baesjou claimed that farming activities and rural lifestyle lots had co-existed in this location for a number of years. Furthermore, Ms Price advised that aerial spraying in the area had been banned in 2000 and that there were at least two other homes in Deep Creek Road within 100 metres of plantations. Given the history of use of the site for both cattle grazing and plantation cropping and the extent of plantations in the area, the applicants argued any conflict would be known and evident to purchasers of the severed lot. The WAPC disagreed that this would be the case.

50 The Tribunal notes that there are currently 18 lots along Deep Creek Road varying from 4.5 hectares to over 300 hectares. All have homesteads, including the two lots of 4.5 hectares and 4.9 hectares respectively, with these smaller lots containing homesteads within or in the vicinity of 100 metres of plantations. On the evidence of the applicants, all are occupied.

51 The Tribunal further notes that the City's Homestead Lot Policy (discussed further in the following section) in fact encourages vacant homesteads within tree plantation areas to be reoccupied, by permitting homestead lots to be created in these areas on lot sizes between 5 and 10 hectares. That policy only requires a 50 metre setback between plantations and homesteads.

52 The parties did not agree on what setback could be achieved on the smaller lot given the site's physical constraints. However, it was agreed that it would be at least 50 metres and likely to be in the vicinity of 100 metres. The Tribunal accepts that, even if the subdivision meets the requirements of cl 3.2.1 of Policy DC3.4, it remains a prudent requirement that a dwelling on the severed lot should achieve a sufficient setback to plantations to minimise the potential for land use conflict and to preserve the amenity of occupants.

53 Subject to requiring a setback of at least 50 metres for any dwelling on the smaller lot, the Tribunal forms the view that approving the subdivision resulting in the severed lot being used for rural lifestyle purposes (that is, containing an occupied dwelling), is unlikely to create the potential for significant land use conflict, and therefore is not a basis for refusal of this application.

The homestead lot policy

54 The third issue was whether or not the proposed subdivision could or should be approved as a "homestead lot". Under Policy DC3.4,

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a homestead lot can be considered in rural areas where there has been a declining population over two intercensal periods and the lot/s will not generate any additional needs for the provision of government and community services. Requirements for homestead lots, in terms of minimum lots sizes and servicing requirements, are to be specified in a local planning strategy and scheme.

55 In the City, requirements for homestead lots are specified in General Policy 62 (GP62) contained within the City's LRS. Under GP62, homestead lots can be supported in specified locations in the eastern part of the City as specified in the LRS which are considered to be experiencing declining populations. The policy has arisen as a result of the loss of housing stock and community infrastructure associated with changes in farming practices, particularly the development of tree plantations for commercial purposes and the amalgamation of farm holdings. The review site is partially included within a homestead lot policy area under GP62.

56 Policy GP62 adopts the WAPC minimum lot size for homestead lots of 5 hectares. A key principle underlying Policy GP62 is the loss of housing stock that has occurred in the homestead lot policy areas through either farm amalgamations or tree plantations. It is therefore one of the requirements of Policy GP62 that a homestead lot must contain an existing dwelling. It is also noted that there is strong community support for Policy GP62 to address rural depopulation.

57 The applicants did not make it clear to the Tribunal as to whether they were specifically applying for approval under either Policy GP62 or under the homestead lot provisions of DC3.4. They did provide advice to support the claim that, notwithstanding the site was not totally included in a homestead lot policy area, the area was experiencing population decline which was adversely impacting on local community infrastructure. Furthermore, they met the minimum lot size under Policy GP62 as well as numerous other criteria such as servicing availability and public road access.

58 The City and the WAPC argued that the application did not meet the key criteria of a homestead lot, namely, that it did not contain an existing dwelling notwithstanding other criterion may be met.

59 The Tribunal accepts that, notwithstanding that requiring a proposed lot to contain an existing dwelling could be considered a narrow basis for addressing rural depopulation and that the proposed subdivision could

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otherwise be considered as having met other homestead lot policy requirements, the requirement for the proposed smaller lot to contain an existing dwelling is a fundamental requirement of the policy. It goes to the heart of the basis on which the City has adopted its policy. For this reason, the Tribunal agrees with the respondent that the application would fail if it were for a homestead lot.

Compliance with Local Rural Strategy

60 The Tribunal notes that the purpose of cl 3.2.1(a) of Policy DC3.4 is to allow creation of a severed lot as an exception to the general presumption against subdivision of rural land. Therefore, if a proposed lot is deemed to meet the requirements of this clause, it must be accepted that it is likely in many instances to otherwise not meet the requirements of either Policy DC3.4 or a local authority's town planning scheme or local rural strategy.

61 It may be the case that, were it not for cl 3.2.1(a), the application ought not be approved given that it does not meet a number of the requirements of Policy DC3.4 or the City's LRS. However, having determined that the requirements under cl 3.2.1(a) were met, the other statutory or policy provisions applying to the grounds for rural subdivision do not apply in this instance, other than in terms of the capability of the land to be developed with a dwelling and any environmental impact this may have, given construction of a dwelling would be a likely consequence of approving the application.

Capability and suitability for development

62 It was agreed that the severed lot could be serviced in terms of power and phone connections. Whilst reticulated water and sewer are not available, neither are they available to any properties in the locality which rely on surface run-off and rainwater tanks for water and onsite effluent disposal. It was noted that there were no objections to the application from the Water Corporation or Western Power, and that the Health Department was not a referral agency, albeit it is the agency which generally advises on onsite effluent disposal.

63 Nevertheless, the WAPC raised a concern that the severed lot would not be suitable for onsite effluent disposal which would be required for any dwelling constructed on it. The WAPC suggested site testing be undertaken to confirm the onsite effluent system location proposed.

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64 The applicants provided a report by Mr David Boadle (the Boadle report), a qualified scientist, on the suitability of the proposed smaller lot for development. The Boadle report stated:

"The upper part of the block would make an ideal building site. Deep well drained soils are ideal for installation of a septic tank/leach drain system of wastewater treatment posing no danger of nutrient export to the Kalgan River catchment due to the clay and wetland plant buffer zone."

65 The WAPC did not provide any evidence to counter the Boadle report and their concerns were not reflected in the response from the Department of Environment and Conservation (the DEC). The location of onsite effluent disposal systems is generally a condition of such subdivisions and the Tribunal is satisfied that, albeit the severed lot is constrained by the location of the creek and its associated vegetation, there is sufficient area available for construction of a dwelling and its associated onsite effluent system.

66 The DEC did, however, object to the proposed subdivision on the grounds that the creek system that traverses the site is best managed as one parcel of land. The site is within a catchment area that feeds Oyster Harbour.

67 The Interim Development Policy Manual produced by the Albany Waterways Management Authority (the AWMA) was provided as the basis for the DEC's management preference, with Mr Jendrzejczak advising that the less number of owners managing creeks the easier catchment management was.

68 The applicants have agreed to fence the creek to enable vegetation to re­establish and advised that the management of the creek on the severed lot was better than the management of it on many other properties. Further, they argued that the purchasers of the property would likely view the vegetated creek as a landscape feature and would be unlikely to adversely impact on it. The WAPC did not dispute this assertion. The DEC policy would preclude a dwelling being constructed in a location adjoining the creek.

69 The Tribunal could not see how the creek would be any better managed should the subdivision not proceed, noting the statement in the Boadle report that "from an environmental perspective, the lot is well managed" and "this lot is already using best management practices with the strip of riparian vegetation in near pristine condition and little

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evidence of weed infestation. The surrounding properties that Deep Creek traverses have little or no riparian vegetation and the creek is little more than an eroded gully in these blocks".

70 The Tribunal agrees with the WAPC however, that the findings of the Boadle report need to be verified by approval to the location and type of any onsite effluent system proposed, but this is a standard condition of any such subdivision.

71 Mr Jendrzejczak also stated that the subdivision did not meet the requirements of Policy DC3.4 in terms of the environmental impacts (of the subdivision) on areas of environmental sensitivity, natural features or existing development nor in terms of land management objectives. Other than in terms of being easier to manage, no evidence was provided by the WAPC as to its environmental impact concerns. The severed lot did not contain any features which would suggest to the Tribunal that an adverse environmental impact would result from the subdivision. The Tribunal noted that the DEC had not raised any such concerns other than as they related to management.

72 Mr Jendrzejczak also stated that the subdivision did not meet the requirements of Policy DC3.4 in terms of land management objectives. These objectives require development to be in accordance with natural resource management plans and integrated catchment management plans which address issues such as stocking control, clearing restrictions and the like. For the additional one lot proposed by this application, which does not contain and is unlikely to support any agricultural practices of significance, it is not considered that this concern is warranted.

73 The WAPC also refused the application on the basis that there were concerns over the susceptibility of the severed lot to flooding. This was on the basis that adequate information had not been provided that proves the lot can accommodate the Q100 (100-year) flood level.

74 The applicants contended that the information had not been provided because they were unaware that it was required. On ascertaining this was a requirement given the ground for refusal, the Boadle report had been commissioned and was made available to the Tribunal and to the respondent. The Boadle report states only, however, that "There is no evidence of flooding of the creek even during extreme rainfall events such as April 2005".

75 The applicants further contended that discussions with the DEC indicated that there are no publicly available records relating to previous

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flood events in the locality and that the DEC therefore relies on "local knowledge". On 1 and 2 April 2005, the site received 180 millimetres of rain which was charted by the Albany Bureau of Meteorology as a Q100 flood event peaking at 4 am on 3 April 2005. The applicants inspected the creek at 6.30 am on 3 April 2005 and stated "the creek exhibited elevated levels as would be expected during an event of this magnitude, however there was no evidence of excursion of creek water above or beyond the creek banks".

76 The WAPC provided no evidence in support of this ground for refusal nor called any experts in this regard. The WAPC did not dispute the applicants' claims. The Tribunal notes that a flooding concern was not raised by the DEC or the City in responding to the application, and therefore cannot accept that flooding is a valid ground for refusal, particularly given that the applicants provided, when requested, what information they could to address this issue.

Findings and Conclusion

77 The application was refused primarily because the WAPC did not accept that the proposal met the test required by cl 3.2.1(a) of Policy DC3.4 in that, in the WAPC's opinion, Deep Creek Road was not a significant man-made barrier and approval would create an unacceptable precedent. In failing this test, therefore, there was a presumption against the subdivision unless the application met other strategic and policy requirements, which it did not.

78 These requirements included the requirements for homestead lots and/or rural residential lots as stipulated in the City's LRS.

79 Concern was also raised that the proposed smaller lot was not physically capable of development in terms of potential for flooding, onsite effluent disposal and the location of a dwelling, without adverse environmental and land management impacts.

80 In terms of the test under cl 3.2.1(a), the Tribunal has considered a number of applications for review which must meet this test, including Haldenreferred to by the applicants. The Tribunal considers each application on its merits on the basis of whether or not the particular road in question creates a barrier in terms of the use of the lot in question and whether approval to that application would create a precedent in that same context. In coming to decisions on what is "significant", it is a test of the road (barrier) itself, the implications of the severance it creates and the consequent implications as a precedent.

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81 In the circumstances of this application, the Tribunal is satisfied that the road in question - Deep Creek Road - does create a dividing feature which is a significant barrier to the ability to use the severed lot as a reasonable contiguous use of the larger property. Further, this impact has been worsened by the increasing use of the road as a log haulage route which has been recognised by its recent significant ($300 000) upgrading, albeit the road remains of a gravel standard as do most rural (non­highway) roads in the City.

82 The fact of the road's use as a heavy haulage route for logging tracks, the small size and constrained nature of the severed lot, and the use of the larger lot for cattle grazing necessitating the need to cross cattle if the smaller lot was to be used, persuaded the Tribunal that cattle crossing would be dangerous, and therefore unlikely and unwise to occur, particularly given the bend in the road in this location. The fact that traffic on the road may only have averaged 78 vpd prior to upgrading and is only likely to be relatively heavy during a short harvesting period diminishes but does not remove the safety risk.

83 Policy DC3.4 does not require that the dividing feature must be a barrier at all times, only that it is significant in terms of the use of the severed property, and therefore, by implication, rendered as unusable the severed portion as an extension of the use of the larger lot. The Tribunal was satisfied that, in the circumstances only of this property, Deep Creek is a reasonable and non-trivial dividing feature warranting the application.

84 The Tribunal was also satisfied on the second requirement that it would not create an undesirable precedent. There were no other lots of comparable circumstance along the same road which were similarly severed, nor were there demonstrated to be comparable circumstances for rural roads of similar standard in the locality.

85 Given the Tribunal is satisfied that the provisions of cl 3.2.1(a) of Policy DC3.4 are met, the other grounds of non-compliance with the City's LRS or general rural subdivision policy requirements given as the grounds for refusal fall away. These include the requirements for homestead lot or rural lifestyle subdivision, or as are contained within the City's LRS.

86 The Tribunal is further satisfied that the severed lot is physically capable of accommodating a dwelling and onsite effluent disposal without adverse environmental impact subject to standard subdivision conditions in regard to these matters. Further, that the lack of information on

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flooding and concerns with land management have been subsequently addressed and/or are not sufficient grounds for refusal.

Orders

87 The Tribunal makes the following orders:

1. The application for review is upheld.

2. The decision of the Western Australian Planning Commission is set aside.

3. The application for review is approved subject to the following conditions:


1) 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).

2) Arrangements being made to the satisfaction of the Western Australian Planning Commission and to the specification of Western Power for the removal, relocation and/or replacement of electricity supply infrastructure, including plant and/or equipment located on or near the lots shown on the approved plan (Western Power).

3) 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).

4) A geotechnical report being carried out to the satisfaction of the Local Government and the Health Department in order to verify a suitable location for an onsite effluent disposal system on the 5.27 hectare lot (Local Government/Health Department).

5) All buildings and effluent disposal systems having the required setbacks to new lot boundaries and to the waterway on the 5.27 hectare lot,

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to the specifications of the City of Albany and the Health Department. This includes a minimum 50 metre separation to any existing plantation for any dwelling (Local Government/Health Department).

6) Notification in the form of a section 70A notification, pursuant to the Transfer of Land Act 1983 (WA) (as amended) being placed on the Certificate(s) of Title of the proposed lot(s) that reticulated sewerage is not provided and an approved onsite effluent disposal system, to the specifications of the Local Government and the Health Department, will be required (Local Government/Health Department).

7) Determination of a suitable location for the construction of a crossover to the 5.27 hectare lot, to the specifications of the Local Government (Local Government).

8) Fencing of creek lines on the 5.27 hectare lot being carried out to the specifications of the Department of Environment and Conservation.

9) The following plans being submitted to and approved by the Department of Environment and Conservation for the 5.27 hectare lot:

(a) A creek line management plan; and

(b) A vegetation management plan (DEC).

10) Preparation and implementation of a fire management plan for the 5.27 hectare lot to the specifications of the Local Government and FESA (Local Government/FESA).

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Attachment

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I certify that this and the preceding [87] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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MS J SMITHSON, SESSIONAL MEMBER