RADHA SOAMI SATSANG BEAS AUSTRALIA and CITY OF SWAN
[2019] WASAT 24
•8 MAY 2019
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: RADHA SOAMI SATSANG BEAS AUSTRALIA and CITY OF SWAN [2019] WASAT 24
MEMBER: MS L EDDY, SENIOR MEMBER
MR P DE VILLIERS, MEMBER
HEARD: 15 MARCH 2019
DELIVERED : 8 MAY 2019
FILE NO/S: DR 161 of 2018
BETWEEN: RADHA SOAMI SATSANG BEAS AUSTRALIA
Applicant
AND
CITY OF SWAN
Respondent
Catchwords:
Town planning - Development application - Proposed use of land for 'Place of Worship' - Land in Area B of the Swan Valley - Role of the Tribunal having regard to cl 30B of the Metropolitan Region Scheme - Orderly and proper planning - Whether seriously entertained planning proposal - Whether proposed development consistent with objectives of Swan Valley Rural Zone - Whether proposed development accords with planning objectives for Area B of the Swan Valley
Legislation:
City of Swan Local Planning Scheme No 17, cl 4.2, cl 4.2.13, cl 4.2.13(b), cl 4.3, cl 4.3.2, cl 10.2, Sch 1 Pt B
Metropolitan Redevelopment Authority Act 2011 (WA)
Metropolitan Region Scheme, cl 4, cl 24, cl 26, cl 26(2), cl 26(3), cl 28, cl 29(1), cl 29(2), cl 30B, cl 30B(5), cl 33, cl 33(1), cl 33(2), Pt III
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), reg 10, Sch 2 cl 67, cl 67(b)
Planning and Development Act 2005 (WA), s 236, s 252(1), s 257B, Pt 14
Swan Valley Planning Act 1995 (WA), s 6, s 7, s 8, s 9, Pt 3, s 15, s 14, s 23(1),
Swan Valley Protection Bill 2016 (WA), cl 6(1), cl 7(1), cl 7(2), cl 7(3), cl 9(3)
Result:
Application allowed
Summary of Tribunal's decision:
The applicant applied for development approval under both the Metropolitan Region Scheme (MRS) and the City of Swan Local Planning Scheme No 17 to use land located in Area B of the Swan Valley for a 'Place of Worship'. The Swan Valley Planning Committee recommended refusal of the development application on the basis that it was not consistent with the planning objectives for Area B of the Swan Valley contained in s 8 of the Swan Valley Planning Act1995 (WA) (SVP Act). The City of Swan refused to approve the development application and the applicant sought review of that decision in the Tribunal.
As there was an application for approval under the MRS, and because the site in question is located in the Swan Valley, cl 30B of the MRS applied. Where a local government is the decision-maker in relation to a development application, cl 30B requires the local government to refer the matter to the Western Australian Planning Commission if the local government was of the view that it should not follow the recommendation of the Swan Valley Planning Committee. It was therefore necessary to determine what were the Tribunal's powers to determine the application for review, if the Tribunal was of the view that the recommendation of the Swan Valley Planning Committee should not be followed. The Tribunal determined, for much the same reasons as explained in Tah Land Pty Ltd and City of Wanneroo [2013] WASAT 190, that the Tribunal was not constrained in determining the matter in the same way as the City of Swan would have been, because those constraints arise under the delegation to the City of Swan, which delegation does not apply to the Tribunal.
In determining the matter, it was necessary to determine whether a number of documents were either singly, or together, seriously entertained planning proposals or that they should, singly or together, otherwise be given due regard in determining the application. The Tribunal determined that all but one of those documents should not be given any regard.
On the evidence before the Tribunal, the Tribunal determined that the proposed development did meet two of the objectives for the Swan Valley Rural Zone, one of which was that the proposed development accord with the planning objectives for Area B of the Swan Valley specified in the SVP Act. The Tribunal determined that the correct and preferable decision was to approve the development application.
Category: B
Representation:
Counsel:
| Applicant | : | Mr T Houweling |
| Respondent | : | Mr CA Slarke |
Solicitors:
| Applicant | : | Cornerstone Legal |
| Respondent | : | McLeods |
Case(s) referred to in decision(s):
Brencolda Nominees Pty Ltd and City of Fremantle [2010] WASAT 43
Cockburn Cement Limited and Western Australian Planning Commission [2014] WASAT 45
Cumming and Town of Cambridge [2018] WASAT 65
Hanson Construction Materials Pty Ltd and Town of Vincent [2008] WASAT 71
Marshall v Metropolitan Redevelopment Authority [2015] WASC 226
Nicholls and Western Australian Planning Commission [2005] WASAT 40
Puma Energy Australia and City of Cockburn [2016] WASAT 36
Tah Land Pty Ltd and City of Wanneroo [2013] WASAT 190
Terra Spei Pty Ltd and Shire of Kalamunda [2015] WASAT 134
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
Radha Soami Satsang Beas Australia Pty Ltd (RSSB or applicant) owns land known as Lot 5 (No 57) Yukich Close, Middle Swan (site). RSSB is a spiritual and philosophical organisation that has spiritual centres established in various places around the world.
In November 2017, the applicant applied to the City of Swan (City or respondent) for development approval under both the Metropolitan Region Scheme (MRS) and the City of Swan Local Planning Scheme No 17 (LPS 17 or Scheme) to use the land as a place of worship and to carry out associated works (proposed development). In accordance with the requirements of the Swan Valley Planning Act 1995 (WA) (SVP Act) and cl 30B of the MRS, the proposed development was referred to the Swan Valley Planning Committee (Committee). The Committee considered the proposed development in February 2018 and resolved to recommend to the City that the proposed development is inconsistent with the planning objectives for Area B of the Swan Valley (the area in which the site is located) (Area B) as specified in the SVP Act. The council of the respondent considered the proposed development on 6 June 2018 and resolved to refuse to grant development approval. The reasons for that refusal were:
(i)Approval of the application will not fulfil the Swan Valley Rural zone objective d) in that it does not comply with planning Objective
(ii)4 for Area B under the Swan Valley Planning Act 1995 being an activity that is not a traditional activity in the Swan Valley nor an industry associated with viticulture, horticulture or cottage industry.
(iii)Refusal of the application does fulfil the Swan Valley Rural zone Objective d) in that such refusal is inconsistent [sic] with planning Objective 7 for Area B under the Swan Valley Planning Act 1995 to discourage uses incompatible with traditional agricultural activities given that the proposed operations may prejudice the capacity of surrounding land to be used for viticulture.
By an application lodged with the Tribunal on 3 July 2018, the applicant seeks review of the respondent's decision to refuse the proposed development pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act).
Site and proposed development
The site has an area of approximately 4 hectares and is currently vacant with clumps of remnant vegetation. It is zoned 'Rural' under the MRS and 'Swan Valley Rural' under LPS 17. As indicated above, the site falls within the Area B as delineated by the SVP Act.
The proposed development, as originally described in the planning report lodged with the respondent in support of the application, involves:
•Access off Yukich Close in the form of a driveway positioned 25 metres from the eastern boundary of the subject land;
•The establishment of a car park containing 62 bays, to be setback 50.5 metres from the front boundary;
•The erection of a building 30.0 metres x 39.89 metres in dimension (1,196.7m2 in size) with a surrounding 3.0 metre wide veranda. The building is to be used by RSSB for its activities and will comprise the following:
•A main hall area
•A family area;
•Kitchen;
•Office;
•Toilets; and
•An upper level multi-purpose room and small dwelling;
•A 'community green' on the southern side of the [sic] of the hall; and
•A fruit/Citrus orchard on the southern third of the land.
The applicant was given leave, during the course of the proceedings in the Tribunal, to amend the proposed development in accordance with the plans filed in the Tribunal on 21 September 2013 (Exhibit 10). The amendments reflected by those plans were summarised by Mr Joe Algeri (planning consultant) in his witness statement (Exhibit 4) at para 24, and no exception was taken to that summary by the applicant. For present purposes, as nothing turns on those amendments, there is no need to reproduce that summary here.
The applicant proposes that worshipping activities will be conducted between 8 am and 11.30 am every Sunday, with approximately 10 volunteers and up to 100 worshipers attending. There is also an 'Annual Day' once a year which is expected to attract up to 200 visitors. Volunteer members of the applicant's community will tend the orchard on site and produce from the orchard will be shared amongst the applicant's members or donated to charity. Voluntary service, including gardening and growing fruit and vegetables, is fundamental to the applicant's faith.
Planning framework
Swan Valley Planning Act
The SVP Act delineates land within the Swan Valley into three areas and provides general planning objectives of the Swan Valley as a whole and provides planning objectives for each of the areas. Section 6 of the SVP Act provides:
The general planning objectives for the Swan Valley are the encouragement of the traditional agricultural and other productive uses of the area that complement its rural character, the protection of the environment and the character of the area, the reduction of nutrient levels in the Swan River and the promotion of tourism that complements the rural character of the Swan Valley.
Section 8 of the SVP Act provides:
The planning objectives for any proposed development in Area B are as follows
1.The protection of viticulture.
2.The provision of water for viticulture and horticulture and the discouragement of other activities that have high water demands.
3.The encouragement of tourist facilities provided that they do not detract from the rural character of the area.
4.The encouragement of traditional activities of the Swan Valley and industries associated with viticulture, horticulture and cottage industry provided that they are compatible with the rural character of the area.
5.The encouragement of the consolidation of retail and community facilities at Herne Hill, Caversham and West Swan.
5A.The limited expansion of existing retail and community facilities at Herne Hill, Caversham and West Swan where such facilities are required to service the local community and will not detract from the rural character of the area.
6.The compatibility of design, siting and landscaping with the character of the area.
7.The discouragement of uses that are incompatible with the rural character and traditional agricultural activities of the area.
8.The extraction of basic raw materials so far as it is compatible with the character and amenity of the area and subject to the rehabilitation of the affected land.
9.The subdivision into lots of less than 4 hectares only where this is consistent with the objectives set out in this section.
10.The avoidance of overstocking, of activities causing pollution or degradation of the environment and of any other land management practices detrimental to the amenity of the area.
The SVP Act also provides for the creation of the Committee whose functions include, amongst other things, providing advice in relation to development applications on land within the Swan Valley. Section 15 of the SVP Act relevantly provides:
(1)Where an application is made to the City of Swan under the local planning scheme for development approval relating to land in the Swan Valley the City of Swan, unless subsection (5) applies, is to give full particulars of the application to the Swan Valley Planning Committee.
(2)The Committee, within 42 days after the day on which it receives particulars of an application or within such longer period as the City of Swan allows, is to give to the City of Swan its advice in writing on how the application should be determined, including any conditions to which any approval should be made subject.
(3)If the Committee fails to give its advice within the time allowed under subsection (2), it shall be taken to have no advice to give on the application.
(4)The City of Swan is to have due regard to the advice of the Committee but may determine the application otherwise than in accordance with that advice.
City of Swan Local Planning Scheme No 17
The parties agree that the appropriate land use classification for the proposed development is 'Place of Worship'. That land use is defined in Sch 1, Part B of LPS 17 to mean 'premises used for religious activities such as a church, chapel, mosque, synagogue or temple'. There is no dispute that the orchard aspect of the proposed development is part of the applicant's religious activities and that the caretaker's dwelling is incidental to the main use proposed. A 'Place of Worship' is a 'D' use under the Scheme, which means that 'the use is not permitted unless the local government has exercised its discretion by granting planning approval': cl 4.3.2 of LPS 17.
On 10 April 2019, the respondent's council agreed to the advertising of a proposed amendment to the Scheme that, amongst other things, would make 'Place of Worship' an 'X' or not permitted use in the Swan Valley Rural Zone. Regard must be had to this draft amendment to LPS 17, however, given that the draft amendment is still being advertised, it is far from certain at this stage that the proposed amendment will ultimately be approved by the Western Australian Planning Commission (Commission) and incorporated into the Scheme. Little weight can be given to the draft amendment in those circumstances.
Clause 4.2 of the Scheme provides that it is intended that the objectives of the zone as set out in cl 4.2 'will be applied by Council to determine the appropriateness in a particular zone of discretionary uses, or those uses not listed in the Zoning Table'. The objectives for the Swan Valley Rural Zone are specified in cl 4.2.13, which provides:
a)promote the core area of the Swan Valley primarily as a horticultural, recreational, tourism and landscape resource;
b)provide for limited rural living within the Swan Valley, subject to locational, design and landscaping requirements to enhance the character and amenity of the valley and to ensure compatibility with productive rural activities;
c)recognise the occurrence of high quality horticultural soils and scarce plastic clays and to protect these resources from development which would jeopardise their current and future use;
d)ensure that the development and use of land accords with the planning objectives for Area B as specified in the Swan Valley Planning Act (2005).
Clause 67 of Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regulations) is incorporated into LPS 17: reg 10 of the LPS Regulations and s 257B of the PD Act. Clause 67 of Sch 2 of the LPS Regulations provides a list of matters that, to the extent relevant, the decisionmaker must have due regard to when determining a development application. This provision applies in place of cl 10.2 of LPS 17: Puma Energy Australia and City of Cockburn [2016] WASAT 36, at [36] [47]. Relevantly to this matter, those matters include:
(a)the aims and provisions of this Scheme and any other local planning scheme operating within the Scheme area;
(b)the requirements of orderly and proper planning including any proposed local planning scheme or amendment to this Scheme that has been advertised under the Planning and Development (Local Planning Schemes) Regulations 2015 or any other proposed planning instrument that the local government is seriously considering adopting or approving;
(c)any approved State planning policy;
…
(f)any policy of the State;
…
(m)the compatibility of the development with its setting including the relationship of the development to development on adjoining land or on other land in the locality including, but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the development;
(n)the amenity of the locality including the following (i) environmental impacts of the development; (ii) the character of the locality; (iii) social impacts of the development;
…
(p)whether adequate provision has been made for the landscaping of the land to which the application relates and whether any trees or other vegetation on the land should be preserved;
(w)the history of the site where the development is to be located;
(x)the impact of the development on the community as a whole notwithstanding the impact of the development on particular individuals;
(y)any submissions received on the application;
(za)the comments or submissions received from any authority consulted under clause 66;
(zb)any other planning consideration the local government considers appropriate.
Metropolitan Region Scheme
In this matter, it is necessary to canvas in some detail the provisions of the MRS and the role of the Tribunal standing in the shoes of the decisionmaker when making a decision under the MRS.
Subject to certain exceptions not relevant here, approval of the 'responsible authority' under the MRS is required for the development of land within areas zoned under Pt III of the MRS: cl 24 of the MRS. 'Responsible authority', in relation to a region planning scheme such as the MRS, is the Commission or a local government exercising the powers of the Commission: cl 4 of the MRS.
Clause 26 of the MRS provides:
(1)Except as provided in subclause (2) or (3) of this clause or subclauses (1)(b) and (1)(c) of Clause 29 of this Scheme where a local authority
(a)has prepared a Town Planning Scheme in accordance with section 35 of the Scheme Act that has been approved and published in the Government Gazette; or
(b)has amended a Town Planning Scheme in accordance with section 35 of the Scheme Act so that it conforms to the provisions of this Scheme,
an approval given by the local authority to develop land comprised in the Scheme which has been zoned under this Part shall be deemed to be an approval under this Scheme.
(2)In respect of applications for approval to develop land in the Swan Valley, where the advice of the Swan Valley Planning Committee is accepted by the City of Swan, the determination of the City of Swan under the local planning scheme is taken to be a determination under this Scheme.
(3)In respect of applications for approval to develop land in the Swan Valley, where the advice of the Committee is not accepted by the City of Swan, the City of Swan is to refer the application, together with any recommendations provided by all bodies consulted, and the reasons why the advice of the Committee was not accepted by the City of Swan, to the Commission for determination.
(4)In this clause 'Committee', 'Swan Valley', and 'Swan Valley Planning Committee' have the same meanings as they have in the Swan Valley Planning Act 1995.
An application for approval under the MRS is to be submitted to the local authority in whose district the land the subject of the application is situated: cl 28 of the MRS. Except for applications of the types specified in cl 29(1) of the MRS (none of which are presently relevant), the local authority is to determine the application in accordance with the power delegated by the Commission: cl 29(2) of the MRS. Where an application for development approval under the MRS relates to land within the Swan Valley, cl 30B of the MRS applies. Relevantly, that clause provides:
(1)Without limiting clause 30 of this Scheme where an application for approval relates to a development of land in the Swan Valley the responsible authority shall, unless subclause (6) applies to the application, give full particulars of the application to the Swan Valley Planning Committee.
(2)The Committee shall, within 42 days after the day on which it receives particulars of an application, or within such longer period as the responsible authority allows, give to the responsible authority its advice in writing on how the application should be determined, including any conditions to which any approval should be made subject.
(3)If the Committee fails to give its advice within the time allowed under subclause (2), it shall be taken to have no advice to give on the application.
(4)Where the responsible authority is the Commission, the Commission is required to have due regard to the advice of the Committee, but may determine the application otherwise than in accordance with that advice.
(5)Where the responsible authority is the City of Swan, the City is to have due regard to the advice of the Committee but if the City of Swan does not accept that advice, the City of Swan is to refer the application, together with any recommendations provided by all bodies consulted, and the reasons why the advice of the Committee was not accepted by the City of Swan, to the Commission for determination.
Having regard to these provisions, prior to the hearing of the application, the Tribunal made orders affording the Commission an opportunity to be heard in relation to:
(a)the Tribunal's role in determining this application, if the Tribunal was minded not to accept the advice of the Committee, given that the original decisionmaker in this case was the City; and
(b)the merits of the application.
The Commission elected to make submissions in relation to the former issue but declined the opportunity to be heard in relation to the merits of the application. The Commission accordingly lodged written submission in relation to the proper interpretation of relevant provisions of the MRS on 1 February 2019. Neither of the parties to the application made any submissions in reply to those submissions, although both parties indicated that they agreed with the position put by Commission. The Tribunal is persuaded that the position advocated by the Commission is correct. What follows is largely taken from the Commission's submissions, which were very helpful to the Tribunal.
In essence, the Commission's position is that the respondent's decision in relation to the MRS application was made under delegation from the Commission. For the same reasons as were expressed by the Tribunal in Tah Land Pty Ltd and City of Wanneroo [2013] WASAT 190 (Tah Land), at [11] [17], the Tribunal is not the delegate of the Commission and the Tribunal's jurisdiction and power is the same as the Commission. The limitations in cl 26(3) and 30B(5) of the MRS are limitations on the local government's delegation under the MRS and therefore these limitations do not apply to the Tribunal.
In this case, the decision made by the respondent was one that accepted the recommendation of the Committee to refuse the development application, and as such the decision is deemed to be a decision under the MRS because of cl 26(2) of the MRS. Clause 33(1) of the MRS provides for a right of appeal where an application has been refused by the Commission or the local authority exercising the power delegated to it by the Commission to the Minister. Part 14 of the PD Act applies to such an appeal: cl 33(2) of the MRS. Section 236 of the PD Act provides:
(1)In this section
planning scheme includes any other instrument that regulations made under the State Administrative Tribunal Act 2004 specify to be a planning scheme for the purposes of subsection (3).
(2)This Part applies if a written law or a planning scheme or any other written law gives the State Administrative Tribunal jurisdiction to carry out a review in accordance with this Part.
(3)Even if a planning scheme does not expressly give a person a right to apply to the State Administrative Tribunal for a review, in accordance with this Part, of a decision or matter, the planning scheme is to be taken to give that right if
(a)the planning scheme is expressed as conferring on the person a right to appeal against the decision, or to refer the matter, under this Act; or
(b)the planning scheme is expressed as conferring on the person a right to appeal or apply for review in respect of the matter and the matter involves the exercise by the responsible authority of a discretionary power.
(4)Subsection (3) applies even if the planning scheme provides for the appeal, referral or application to be made otherwise than to the State Administrative Tribunal or, in the circumstances described in paragraph (b) of that subsection, otherwise than in accordance with this Part.
(5)A provision in a planning scheme of the kind described in subsection (3)(a) or (b) has no effect other than the effect given to that provision by subsection (3).
Thus, despite the reference to the Minister in cl 33(1) of the MRS, the right of appeal in fact lies to the Tribunal. Separately, s 252(1) of the PD Act relevantly provides for a right of review in relation to the refusal by a responsible authority to grant an approval in the discretion of the responsible authority under a planning scheme. This potentially raises a question in relation to whether only one, or both, of these provisions provide jurisdiction to the Tribunal in this case. As nobody has made any submissions in relation to this question, and as nothing of substance turns on it, it is not appropriate to consider this question at this time.
Whether the Tribunal's jurisdiction and powers come from cl 33 of the MRS read together with s 236 of the PD Act, and/or from s 252(1) of the PD Act, that jurisdiction and power in this case is to review the decision of the responsible authority, which was the respondent exercising the power delegated to it by the Commission. The decision of the respondent that is the subject of review in these proceedings is a decision under the MRS by operation of cl 26(2) of the MRS. For the same reasons as enunciated in Tah Land, the Tribunal is not the Commission's delegate and therefore the Tribunal is not constrained by those provisions in the MRS which constrain the delegated power when exercised by the respondent. In effect, the power the Tribunal exercises is the Commission's power, which is not constrained in the same way that the delegated power is.
City of Swan Local Rural Strategy
The respondent has adopted a City of Swan Local Rural Strategy 2016 (Strategy), which, on page 5 of the Strategy states:
The LRPS will be used by the City to guide the consideration of rezoning proposals, structure plans, development applications, subdivision referrals to the Western Australian Planning Commission (WAPC) and in the preparation of other planning instruments such as local planning policies.
The site is located within the Priority Agriculture Precinct under the Strategy. It is therefore necessary to have due regard to the objectives identified in the Strategy for this precinct in determining the application.
Other documents
The parties referred the Tribunal to a number of other documents and made submissions in relation to what regard the Tribunal should have to them.
The respondent submitted that the 'Swan Valley Land Use the Way Forward' (Way Forward), the draft Swan Valley Development Plan 2015 (draft Development Plan), the Report to the Minister for Planning: an independent review of Swan Valley planning (SV Planning Review), the Swan Valley Interim Planning Policy (Interim Policy) together have a 'gravitational pull' and taken together should be given significant weight. The respondent submits that it is not to the point that one or more of these documents may not be a seriously entertained planning proposal because they are strategic documents and the oft called 'Coty principle' doesn't apply to such documents. The respondent accepts that each document on its own (other than the Interim Policy) would ordinarily be given no, or little weight, but submits that together, because they show a consistent and ongoing strategy for the Swan Valley, they should be given weight.
The Way Forward is a study into land use and management of the Swan Valley undertaken by the Department of Planning in collaboration with the Committee and the City. A discussion paper was released in 2012 which was released for public comment, submissions were received and the final document was released. In February 2014, the Minister for Planning (Minister) announced that the Government had adopted all of the recommendations outlined in the Way Forward. The draft Development Plan was published in 2015. In the foreword it is stated that the draft Development Plan and 'the new Swan Valley Protection Act' are key elements of the government's response to the findings in the Way Forward.
In fact the Swan Valley Protection Bill 2016 (WA) (Bill) reached second reading stage in 2016 but did not progress further. The Bill provided for '[a] plan called the Swan Valley Development Plan is to be prepared and approved in accordance with this Part': cl 6(1). Clause 7(1) of the Bill provides that the Minister may request the Commission to prepare and submit to the Minister a proposed development plan. If so requested, the Commission must prepare and submit to the Minister a development plan proposal which includes a proposed development plan together with, amongst other things, 'any amendment to a Swan Valley region planning scheme that the Commission considers is necessary to make that scheme consistent with, or to give effect to, the proposed development plan': cl 7(2) of the Bill. Before submitting a development plan proposal to the Minister, the Commission must consult with various bodies: cl 7(3) of the Bill. The Bill contemplates that a development plan proposal may be approved by the Minister. If approved by the Minister, the effect of a Swan Valley Development Plan was stated in cl 9(3) of the Bill as follows:
If the Minister approves a development plan proposal
(a)the development plan, or amendment to the development plan, that forms part of the proposal comes into effect on the day specified under section 10(2)(a) (commencement day); and
(b)any amendment to a region planning scheme that forms part of the proposal comes into effect, for the purposes of the Planning and Development Act 2005 and as if it were enacted by that Act, on commencement day; and
(c)any amendment to a local planning scheme that forms part of the proposal comes into effect, for the purposes of the Planning and Development Act 2005 and as if it were enacted by that Act, on commencement day; and
(d)any amendment to an improvement scheme that forms part of the proposal comes into effect, for the purposes of the Planning and Development Act 2005 and as if it were enacted by that Act, on commencement day.[end quote]
The draft Development Plan states it is published by the Department of Planning on behalf of the Minister. There is no statement in the draft Development Plan as to what, if any, consultation had taken place in relation to the document.
The Interim Policy was published by the Commission in 2016. In the introduction to the Interim Policy it is stated that:
Government intends to strengthen the current legislative and governance framework for the Valley, and develop a set of planning instruments that will enable informed and consistent decisions to be made regarding future land use and development.
….
[I]t is expected that these instruments will be finalised by June 2015.
In the meantime, viticultural and agricultural industries in the Swan Valley are under pressure from competing residential and commercial land uses, and interim policy measures are required to ensure incompatible development does not occur prior to the planning instruments taking effect.
Following a State election the successor government engaged Mr John Kobelke to conduct a new independent review of Swan Valley Planning in 2017. The SV Planning Review was published in 2018 for public comment.
The respondent submits that a consistent theme of strategic planning is revealed when these documents are considered together. That theme being the need to protect the Swan Valley for viticulture and other traditional Swan Valley activities (agriculture, horticulture and cottage industry compatible with the rural character) plus tourism. One way identified in the documents to achieve this strategic planning goal is to prohibit uses that take land in the Swan Valley out of contention for use for the identified primary intended uses, and in particular a number of the documents recommend that a number of use classes, including 'Places of Worship' should become a prohibited use in some or all zones in the Swan Valley. It is submitted that the fact that the respondent's council resolved, in November 2018 to instruct its officers to prepare a Scheme amendment to make five use classes, including 'Place of Worship' a prohibited use within the Swan Valley Rural Zone shows that action is being taken to implement the strategic planning directives found in the documents identified above. At its meeting on 10 April 2019, the respondent's council resolved to advertise the proposed Scheme amendment.
The applicant submits that the two review documents concern reviews of the SVP Act and yet purport to make recommendations in relation to amendments of LPS 17, which are outside of the scope of the reviews. If the SVP Act is to be amended, that is a parliamentary process, and the reviews may assist in that process, but they are not relevant to discretionary planning decisions under the Scheme. In addition, it is submitted that neither of these documents is a seriously entertained planning proposal. The applicant submits that the Interim Policy does not assist in any real way as for the most part it impermissibly attempts to impart meaning to the SVP Act.
The most commonly cited summary of the principles to be applied in Western Australia in relation to a 'seriously entertained planning instrument is in Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117 at [45] (Nicholls), where the Tribunal held as follows:
It appears that, when a draft planning instrument or policy or a draft amendment to a planning instrument or policy is raised for consideration in relation to a subdivision or development application, the planning consent authority or appeal tribunal must undertake four stages of inquiry. The four stages are as follows:
(1)In jurisdictions where there is no statutory requirement to take into consideration a draft planning instrument or policy or a draft amendment to a planning instrument or policy once it has reached a certain specified stage, the authority or tribunal must consider whether the draft constitutes a seriously-entertained planning proposal. If it determines that it is a seriouslyentertained planning proposal, it is a relevant matter for consideration in relation to the planning assessment.
(2)If the draft is a relevant matter for consideration, the authority or tribunal must consider the extent to which the application before it is consistent with the planning objective or planning approach embodied or reflected in the draft. In particular, the authority or tribunal must consider whether the approval of the application is likely to impair the effective achievement of the planning objective or planning approach embodied or reflected in the draft or is likely to render more difficult the ultimate decision as to whether the draft should be made or its ultimate form.
(3)The authority or tribunal must consider the weight to be accorded to the consistency or otherwise between the application and the draft.
(4)The authority or tribunal must weigh its conclusions in relation to the foregoing matters in the balance along with all other relevant considerations relating to the application, and determine whether, in light of all relevant considerations, it is appropriate in the exercise of planning discretion to grant approval to the application and, if so, subject to what conditions.
Since the introduction of the LPS Regulations, this general principle no longer applies to draft local planning scheme amendments but rather, when due regard is to be had to a proposed amendment to a local planning scheme is governed by cl 67(b) of the LPS Regulations: Terra Spei Pty Ltd and Shire of Kalamunda [2015] WASAT 134, at [200] [202].
Clause 67(b) of Sch 2 of the LPS Regulations applies much more widely than just to draft local planning schemes, draft amendments to local planning schemes and other proposed planning instruments that the local government is seriously considering adopting or approving. The clause commences with the words 'the requirements of orderly and proper planning including' those specified documents. They are examples of orderly and proper planning and do not restrict what is covered by cl 67(b) of Sch 2 of the LPS Regulations.
In Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 (Marshall), at [179] [182], the concept of 'orderly and proper planning' as that phrase was used in the Metropolitan Redevelopment Authority Act2011 (WA) (MRA Act) was explained as follows:
179The starting point for determining the meaning of the phrase 'orderly and proper planning' in s 66(1)(d) of the MRA Act is the ordinary and natural meaning of those words. The ordinary meaning of the word 'proper' includes 'suitable for a specified or implicit purpose or requirement; appropriate to the circumstances or conditions; of the requisite standard or type; apt, fitting; correct, right'. The ordinary meaning of the word 'orderly' includes 'characterised by or observant of order, rule, or discipline'. In other words, to be orderly and proper, the exercise of a discretion within the planning context should be conducted in an orderly way - that is, in a way which is disciplined, methodical, logical and systematic, and which is not haphazard or capricious.
180The planning discretion should be directed to identifying the 'proper' use of land - that is, the suitable, appropriate, or apt or correct use of land. In order to do so, the exercise of discretion would clearly need to have regard to any applicable legislation, subsidiary legislation and planning schemes (such as region schemes, town planning schemes, local planning schemes) and policy instruments. The State Administrative Tribunal has observed that 'at the heart of orderly and proper planning' is a public planning process which permits the assessment of individual development applications against existing planning policies 'so that the legitimate aspirations found in the planning framework may be translated into reality'.
181However, there is no reason in principle why planning legislation and instruments will be the only matters warranting consideration in determining what is a 'proper' planning decision. The matters which warrant consideration will be a question of fact to be determined having regard to the circumstances of each case.
182While the exercise of discretion will involve a judgment about what is suitable, appropriate, or apt or correct in a particular case, that judgment must (if it is to be 'orderly') be an objective one. If the exercise of discretion is to be an orderly one, the planning principles identified as relevant to an application should not be lightly departed from without the demonstration of a sound basis for doing so, which basis is itself grounded in planning law or principle. A broad range of considerations may be relevant in that context.
To the extent that the ordinary meaning of the words used is relied upon, the explanation is apposite to the phrase 'orderly and proper planning' as used in cl 67(b) of Sch 2 of the LPS Regulations. In my view, if a planning proposal (other than a local planning scheme or other planning instrument that may be proposed by a local government) is a 'seriously entertained' planning proposal, applying the test in Nicholls, it is likely that orderly and proper planning would require regard to be had to that planning proposal, with the weight to be given dependant on all of the circumstances. The criteria for determining the weight to be given to 'seriously entertained' planning proposals is identified in Nicholls at [57] [59].
It is difficult to see how any document that is not a seriously entertained planning proposal can, somehow, nonetheless make up part of the planning framework. The respondent's 'gravitational pull' argument is poetic but unsupported by any authority.
The submission that the Coty principle does not apply to strategic planning documents was also not supported by any authority and does not accord with reality. Structure plans are strategic planning documents and there are many authorities where the Coty principle has been applied to structure plans: see for example Cockburn Cement Limited and Western Australian Planning Commission [2014] WASAT 45; Brencolda Nominees Pty Ltd and City of Fremantle [2010] WASAT 43.
The Way Forward was, at one time, a seriously entertained planning proposal that was being actively implemented by the government of the day. However, it is no longer being pursued, and is no longer publicly available. The Tribunal was not given a copy of the document by either of the parties. No regard can be had to this document.
The Development Plan is a document that was intended to have effect as contemplated by the Bill. It did not go through the processes specified in the Bill, in particular the consultative and adoption processes. It is not a seriously entertained planning proposal and should in the circumstances be given no weight.
The SV Planning Review is a draft document that has been advertised and submissions are able to be made in relation to the document. It cannot be said that the final form of this document can be known at this point in time. Nor is the final document imminent. The parties do no assert that this document is a seriously entertained planning proposal. The Tribunal is not satisfied that any weight should be given to this document at this stage.
The Interim Policy is a policy of the Commission and therefore regard must be had to it. Having said that, as was conceded by the respondent, it attempts to add meaning to provisions of the SVP Act, which is not something that a policy can or should do. Regard can be had to the Interim Policy's objective perhaps, which is 'ensure incompatible development does not occur prior to the [at the time shortly anticipated] planning instruments taking effect'.
Respondent's argument
The respondent submits that the Swan Valley is a unique location, which is subject to special planning controls seeking to protect its character. The site is in the heart of the productive viticulture area of the Swan Valley. While the site only has moderate capability for agriculture it does not have any fundamental constraint that would prevent it from being used for viticulture, other than a current lack of access to a water licence, which would be necessary, at least at this point in time, to carry out any commercial enterprise.
It is submitted that there is ongoing pressure in the Swan Valley for rural land to be used for non-rural purposes, purposes not connected with viticulture or horticulture. The problem is that the cumulative effect of allowing rural land to be used for non-rural purposes is that it causes an undesirable change to the character of the area. The site is identified as within the priority agricultural precinct by the Strategy, and as such the proposed 'Place of Worship' should not be allowed.
The respondent submits that the proposed development is inconsistent with the objectives for Area B specified in the SVP Act. This is because the proposed development does not further the objectives in that it does not make a positive contribution towards achievement of any of the objectives. It is submitted that it is not just a question of whether the proposed development can coexist with the other land uses sought to be promoted by the SVP Act in Area B, but rather will it prevent this site, as well as neighbouring land, from being used for the promoted uses.
The respondent submits that having regard to the strategic direction to be found in the 'gravitational pull' in the planning framework, the Tribunal should 'hold the line' and not allow any development that would make it more difficult to follow through with the contemplated strategy. The strategy direction, which is being pursued by the respondent's council with the moving forward with the draft amendment to the Scheme that would preclude 'Place of Worship' from occurring in the Swan Valley Rural Zone, should not be stymied by approval of this proposed development.
There are a two main difficulties with the respondent's arguments.
Firstly, as indicated earlier, the Tribunal is not satisfied that there is in fact any currently seriously entertained planning proposal that supports a view that 'Place of Worship' should not be permitted in the Swan Valley Rural Zone. There is a draft Scheme amendment that is to be advertised to that effect, but little weight can be given to that at this point in time.
Secondly, the respondent's submissions rely on a misunderstanding of the proper interpretation of relevant provisions of the SVP Act. On its face, Pt 3 of the SVP Act provides for planning and development objectives for three areas, Area A, Area B and Area C. Those objectives are to be used by the Committee, when providing advice or making a recommendation (relevantly here, in relation to a development proposal): s 14 of the SVP Act. A local government, such as the respondent, is required to ensure its local planning scheme is consistent with the SVP Act objectives: s 23(1) of the SVP Act. The SVP Act does not contemplate that the objectives will directly inform a local government's decisionmaking on a development proposal. However, LPS 17 incorporates the planning objectives specified in the SVP Act as the objectives for certain zones. Relevantly here, the objectives for the Swan Valley Rural Zone include ensuring that the development and use of land accords with the planning objectives for Area B as specified in the SVP Act. Given the objectives for a zone are intended to determine the appropriateness of a discretionary use in a particular zone, the planning objectives thereby become part of the decisionmaking process for development proposals in the Swan Valley Rural Zone.
Section 8 of the SVP Act provides, with objectives 1 and 2, for the protection of viticulture and the provisions of water for viticulture and horticulture. There is no basis to read the fact that these two things are listed first and second out of 11 listed objectives as meaning that these two objectives have priority over, or more importance than, the other objectives in s 8, as was submitted by the respondent. Nothing in the text used or the context would support such a reading. Such a reading would not be consistent with the general objectives for the area, provided for in s 6 of the SVP Act.
The respondent submits that objective 1 in s 8 of the SVP Act includes protection of future potential viticulture and therefore the fact that the site has moderate capability for agriculture, means uses that would prevent the site from potentially being used for viticulture should not be allowed. Such a reading does not fit well with the text used or the context. Objective 1 uses the term 'protection'. There are three objectives that provide for the 'encouragement' of various uses (objectives 3, 4 and 5). One objective provides for the 'discouragement' of certain uses. The language of 'encouragement' and 'discouragement' is aimed at a future outcome. The use of the word 'protection' is more consistent with the concept of protecting that which already exists. However, I do not think anything significant turns on this given that, for the reasons provided below, the encouragement of viticulture as a use is contemplated by objective 4. More fundamentally, s 8 of the SVP Act cannot be understood as requiring the decisionmaker to refuse an application if it would prevent the land from being used for the purpose of viticulture. That is because there is more than one use that is to be encouraged under s 8. In addition, the fact that there is another objective that focuses on discouragement of certain uses, means that uses other than those that are encouraged are able to be approved so long as they meet objective 7 of s 8 of the SVP Act.
Objective 4 includes encouragement of 'traditional activities of the Swan Valley' on the one hand and industries associated with viticulture horticulture and cottage industry on the other hand, provided they are compatible with the rural character of the area. It could be that both the traditional activities and the associated industries have the proviso attached to them, however I think the better view is that the proviso attaches only to this second group of uses. The general planning objectives refers to the encouragement of 'the traditional agricultural' uses, so while the term 'traditional activities' is not defined, it seems likely these are activities that relate to traditional agricultural uses. I note that objective 7 of s 8 refers to 'traditional agricultural activities' and the use of a different phrase would ordinarily show an intent to convey a different meaning. However, in the context, I think the better view is that the phrase 'traditional activities' is synonymous with the phrase 'traditional agricultural activities'. If that is the case, and if the activities are traditional activities, they must form part of the rural character of the area and there would be no need to add the proviso that they be compatible with the rural character of the area. The second category of uses encouraged in objective 4 would in that context be a limited subset of the 'traditional activities'. If viticulture, horticulture and cottage industry were all that is encompassed by 'traditional activities' then the drafter could have simply repeated the phrase rather than specify three types of uses.
Properly understood, s 8 of the SVP Act requires consideration of whether the proposed development is incompatible with or puts at risk any existing viticulture (objective 1) and whether it involves any of the uses to be encouraged (objectives 3, 4 and 5). If it does, one has regard to any of the remaining objectives that are relevant. However, the decisionmaker should be positively inclined towards approval of proposals that are to be encouraged under s 8 of the SVP Act. But what approach does the SVP Act require in relation to a proposed development that is not a use to be encouraged?
I do not think that the SVP Act can be read such that if a proposed use is not one that is to be encouraged then it cannot be approved for a number of reasons. Firstly, as indicated above, objective 7 provides for the discouragement of uses incompatible with the rural character and traditional agricultural activities, and as such, seems to be contemplating that uses other than those which are to be encouraged may nonetheless be approved in Area B.
Secondly, when one has regard to the objectives for Area A and Area C of the Swan Valley a similar pattern of identifying some uses which are to be encouraged is found. Looking at s 7 of the SVP Act, which provides the objectives for Area A, objective 2 provides for the encouragement of viticulture, horticulture, hobby farming, and rural activities compatible with rural residential uses in the area. This conveys that it is contemplated that rural residential use exists and is acceptable in this area, yet there is no specific mention of rural residential as a use that may be approved consistently with the objectives for Area A. The SVP Act, in providing objectives for each area provides for uses that are to be encouraged, in relation to Area B only, it also provides for uses that are to be discouraged. If a proposed development involves a use that is to be discouraged in Area B then the decisionmaker should be positively inclined against approval of the proposed development unless some exceptional reason applies.
Thirdly, the respondent is required to ensure that LPS 17 makes provision for the carrying out of development in Area A, Area B or Area C is consistent with the objectives set out in s 7, 8 or 9 of the SVP Act: s 23(1) of the SVP Act. The Swan Valley Rural Zone is located in Area B and therefore uses that may be approved in that zone must be able to be approved consistently with the objectives for Area B. The Zoning Table at cl 4.3 of LPS 17 contemplates a number of uses that are not one of the uses to be encouraged in s 8 of the SVP Act, such as, for example, 'Place of Worship'.
Fourthly, the encouraged uses for Area B do not include rural living, yet one of the objectives for the Swan Valley Rural Zone in LPS 17 is to provide for limited rural living: cl 4.2.13(b) of the Scheme.
If a proposed use is not a preferred use, regard must be had to the remaining relevant objectives that apply to the area in question to determine whether the proposed use of land accords with the planning objectives. This determination, together with consideration of any of the other objectives for the zone that are relevant will guide the decisionmaker in determining the appropriateness of the proposed development in the zone.
Consistency with planning framework
Scheme
As indicated above, there are four objectives for the Swan Valley Rural Zone. There is no dispute that only objectives a) and d) are relevant to this proposed development. The respondent did not, correctly in my view, argue that in order to be appropriate development in the zone the proposed development had to involve a use of the kind specified in objectives a) to c) in cl 4.2.13 of LPS 17. Plainly, the Zoning Table contemplates, as capable of approval within the zone, a much wider range of uses than those specified in the objectives for the Swan Valley Rural Zone.
The first objective seeks the promotion of this zone as 'primarily' 'a horticultural, recreational, tourism and landscape resource'. In my view this has the effect of indicating that these types of uses are to be preferred in this zone. If a proposed development involves one of the identified uses it will be more appropriate for the zone than other uses, except for those specified in the second and third objectives.
Two town planning consultants gave evidence at the hearing, Mr Algeri and Mr Anthony Watson. In Mr Algeri's opinion, the proposed development did not involve any of the uses identified in the first objective for the Swan Valley Rural Zone. He acknowledged that the proposal involves aspects of a horticulture nature but was of the view that this was incidental to the primary use as a 'Place of Worship'. He considered it relevant also that the horticultural aspects of the proposed use were not 'a productive horticultural resource of the type objective (a) seeks to promote': Exhibit 4, at para 33. None of the terms 'horticultural', 'tourism' or 'landscape' are defined in LPS 17. The ordinary meaning of 'horticulture' and 'landscape' taken from the Macquarie Online Dictionary is:
Horticulture
noun 1. commercial cultivation of fruit, vegetables, and flowers, including berries, grapes, vines and nuts.
2. the science or art of growing fruit, vegetables, flowers or ornamental plants.
3. the cultivation of a garden[.]
Landscape
noun 1. a view or prospect of rural scenery, more or less extensive, such as is comprehended within the scope or range of vision from a single point of view.
2. a piece of such scenery.
3. a picture representing natural inland or coastal scenery.
4. such pictures as a category.
5. Printing a page or illustration larger in width than depth[.]
One of the ordinary meanings of 'horticulture' does include an aspect of commerciality, as suggested by Mr Algeri. In the context of a rural zone, to understand 'horticultural' as including any garden does not seem consistent with what is intended to occur as one of four primary uses. It is more likely that the term is intended to have the first of the above identified ordinary meanings. The Tribunal is satisfied that the proposed development does not involve a horticultural use because it does not involve any commercial aspect and is not on a commercial scale. However, it may constitute a 'landscape' use.
The applicant proposes to retain almost all of the existing native vegetation and to enhance that with further plantings of Swan Coastal plane species. The proposed carpark is to be surrounded by dense planting of crepe myrtle trees. To the rear of the building there will be a large area of turf surrounded by vegetable gardens and the orchard. Mr Michael Noonan, Director of Hort Plan Pty Ltd (the consultants who prepared the landscaping plan) gave evidence that at maturity the proposed landscape plantings in addition to the existing vegetation would provide effective screening of the proposed building.
Mr Alan Ross, Registered Architect, gave evidence in relation to the proposed built form and its interaction with the landscape character of the area as well as the degree of integration of the proposed development as a whole with the surrounding landscape. It is Mr Ross' opinion that the proposed building is consistent with architectural styles of building design prevalent in the vicinity and is similar in terms of scale and bulk to many larger agricultural shed facilities in the vicinity. In his opinion, the proposed development is well integrated in to the surrounding landscape with the screen planting. According to Mr Ross, the proposed development uses its location well, and by providing additional landscape treatment it will enhance the experience for residents and visitors in the vicinity to create a point of interest that sits comfortably in its landscape and provides a scale of planted material that effectively screens the built elements of the development, adding planted new material that enhances the rural landscape. None of this evidence was contradicted in any way.
Based on this evidence the Tribunal is satisfied that the proposed development does contribute to promote the zone as a landscape resource. The proposed development is consistent with the first objective of the Swan Valley Rural Zone.
The fourth objective for the Swan Valley Rural Zone is to ensure that the development and use of the land accords with the planning objectives for Area B as specified in the SVP Act.
Starting with the first objective, the protection of viticulture, the Tribunal is satisfied that the proposed development does not adversely impact on any existing viticulture. Mr Jonathon David Harper is the Director and Principal Scientist at Environmental Technologies & Analytics. He has extensive experience in air quality and atmospheric science. The Tribunal accepts his evidence in relation to the issue of spray drift and prefers this evidence on this issue to the evidence of Mr Neil Clinton Lantzke, who is an agricultural scientist but is not an expert in air quality and atmospheric science. In Mr Harper's opinion the existing vegetation is sufficient for there to be negligible impact from spray drift on the site from any of the existing viticulture in the area. He considers that there is no likelihood of any impact from spray drift on the site if one has regard to the proposed landscaping plan. While it cannot be known whether any of the land surrounding the site that is not currently under vine may, at some point in time, be used for the purposes of viticulture, it is Mr Harper's opinion that if it became necessary to protect people using the site from spray drift from a new viticulture activity, it would be easy to establish an appropriate buffer on the site that would eliminate the impact of spray drift. While the objectives of Area B include the encouragement of traditional agricultural activities, it is only a matter of speculation as to whether or not land surrounding the site might one day be used for the purpose of viticulture. Indeed, the evidence before the Tribunal is that there has been a significant removal of vines from the location over the last 10 years, which tends to suggest the opposite trend to any suggestion that it is likely other land in the area will be used for viticulture. In those circumstances, the Tribunal does not consider that it is appropriate to require the applicant to incorporate further screening to protect from potential spray drift in the future. Having regard to the objective to encourage traditional agricultural activities, the Tribunal would, if it could, be minded to require that, should any such activity be approved on land located sufficiently close to the site that the site may be affected by spray drift, the applicant must at that stage introduce any necessary buffer. This would eliminate any potential for the introduction of a non-agricultural use to prevent a later agricultural use from being approved. However, any such requirement would not, I think, be lawful on the basis that its ambulatory and uncertain.
The respondent submits that the fact that other land in the vicinity may in the future be used for viticulture, but that might be prevented because of the existence of a sensitive use on the site, is a reason to refuse the proposed development; because it would potentially prevent later agricultural uses on nearby land. However, the Tribunal does not have any evidence that the existence of the proposed development on the site would prevent the use of land nearby for traditional activities of the Swan Valley. On the evidence of Mr Harper, the introduction of a buffer would prevent any issue from spray drift impacting on people who may attend the site. There is no basis to believe that any proposed traditional activity could not incorporate such a buffer on the land the subject of the proposed traditional activity. Having dealt with one of the respondent's arguments in relation to objective 4, it seems appropriate to turn to its other argument in relation to this objective.
The respondent submits that as the proposed use does not involve the use of the site for any traditional activities of the Swan Valley or the other associated activities specified in objective 4, it is inconsistent with objective 4. As indicated above, the Tribunal is not satisfied that ensuring that development and land use accord with the planning objectives for Area B requires the decisionmaker to only consider the uses that those objectives encourage. There is no basis to read s 8 of the SVP Act as putting any priority on the encouragement of the activities identified in objective 4 over any other objective. Nor is there any basis to read that section (read with cl 4.2.13 of the Scheme) as requiring refusal of any proposed development that does not contemplate one of the encouraged uses. If a development proposal in land in the Swan Valley Rural Zone involves one of the uses that are encouraged for Area B then that is a strong factor in support of approval of the development proposal unless there is a reason why it should not be approved. The proposed development does not involve any of the uses or activities that are listed in objective 4. However, it is not inconsistent with objective 4 because there is no evidence that it will prevent the encouragement of any of the encouraged uses for Area B other than, to the extent that the site is actually developed and used as contemplated in the proposed development, on the site.
There is no argument that the proposed development is inconsistent with objective 2 for Area B. The water necessary for the proposed development is proposed to be from rain water run-off that is captured and stored with supplementation with limited scheme water if necessary. There is no evidence that this would interfere with the provision of water for viticulture and horticulture within Area B.
The proposed development does not involve any tourist facility, retail or community facilities, so does not meet objectives 3, 5 and 5A; but there is no suggestion that the proposed use in any way interferes with the encouragement of those uses otherwise in Area B.
In relation to objective 6, the uncontradicted evidence of Mr Ross and Mr Noonan is to the effect that the proposed development is compatible in terms of design, siting and landscaping with the character of the area. The Tribunal so finds.
Objective 7 requires the discouragement of uses that are incompatible with the rural character and traditional agricultural activities of the area. This objective is focused on the 'use' of land. What is to be discouraged are incompatible uses. The term 'incompatible' is defined in the Macquarie Online Dictionary as:
adjective1. not compatible; incapable of existing together in harmony.
2. contrary or opposed in character; discordant.
3. that cannot coexist or be conjoined[.]
Mr Algeri is of the view that the proposed development is incompatible with the rural character and traditional agricultural activities of the area in essence because it is not associated with, or have any relationship with the traditional rural activities of the area. He says that the Interim Policy shows an intent to discourage any new use that is disconnected from viticulture, rural character or traditional activities. He says the same result is achieved by having regard to the first objective for the Swan Valley Rural Zone, which he says means that because the uses listed there are to be the primary uses, any development must be related to those uses otherwise it will be inconsistent with that objective. For the reasons canvassed above, the Interim Policy definition of 'rural characteristics' and other specific definitions of terms used in the SVP Act are of no assistance. The Tribunal also does not agree with the interpretation of cl 4.2.13 of the Scheme that Mr Algeri has taken. In addition, it is not permissible to seek to understand the terms used in the SVP Act by having regard to the text of LPS 17. There is no reasonable basis for the interpretation of objective 7 relied upon by Mr Algeri in forming his opinion.
In crossexamination, Mr Algeri accepted that the landscaping proposed, and in particular the orchard, would have a rural ambiance and agreed that the proposed development does have some semblance of rural activity.
Mr Watson is of the view that the use and activity levels on the site will on the whole be minimal and that it will have no impact on adjoining and adjacent properties. In his opinion the proposed development is a good fit with development in the location. He says this is because of the preservation of existing vegetation, limited land disturbance, the positioning of the built form set back into the middle of the site and the use of the rear part of the site for agricultural production. The Tribunal prefers the opinion of Mr Watson on this topic as he bases his opinion on the test set by the text of objective 7 in s 8 of the SVP Act.
The Tribunal is satisfied that the proposed development involves uses that are relatively low impact, and that do not cause amenity or other adverse impacts on any of traditional agricultural activities in the location. There is nothing about the proposed development, in terms of use, or in terms of appearance, that would be discordant with, or incapable of existing in harmony with, the rural character of the locality or with traditional agricultural activities. The site is part of relatively recently subdivided area of land, and as such sits amongst a number of approximately 4 hectare parcels of land, some of which have been, or appear to be being, developed with single dwellings. There are very large shedlike structures on land opposite the site and on land adjoining and to the rear of the site. Both of the developments occurring on the land opposite the site and on the land to the rear of the site involve activities that bring, or will bring, not insignificant numbers of visitors to the area. There is nothing about use of land as a place of worship that is inherently urban. It is not a use, in and of itself, that might strike a discordant note in a rural location of the type that exists in the locality in question here. The Tribunal is satisfied that the proposed development accords with objective 7 for Area B.
The remaining objectives can be dealt with shortly. The proposed development does not involve the extraction of basic raw materials and there is no suggestion that the site is suitable for such a use. The proposed development is neither consistent nor inconsistent with objective 8 for Area B. Objective 9 relates to subdivision so is plainly not relevant here. No party raised any issue that the issues identified in objective 10 arise in this case.
In summary, the Tribunal is satisfied that the proposed development accords with the planning objectives for Area B and therefore is satisfied that the fourth objective for the Swan Valley Rural Zone has been met.
As indicated above, cl 67 of Sch 2 of the LPS Regulations requires due regard to be had to a number of other matters. Most of those matters were not effectively in dispute between the parties, other than the asserted inconsistency of the proposed development with the Strategy and the orderly and proper planning argument that has been dealt with above. For ease of reference, analysis of the proposed development having regard to the Strategy will be dealt with under a new subheading.
Strategy
At cl 1.3 of the Strategy, the scope of the Strategy and what it includes is set out as follows:
•The relationship between strategic planning at the Local Government, State and Regional level;
•A description of the key characteristics of the City's rural areas, its regional context and major planning issues;
•The strategic directions which the City is seeking to pursue within its rural lands;
•Objectives on key topics outlining the Strategic direction of the City in the matter, and the Strategies and Actions it will undertake to implement the strategic direction;
•Identification of Rural Strategy Precincts and appropriate provisions, outlining the purpose and objectives for each precinct and criteria for subdivision/development; and
•Recommendations to the planning framework arising from land use planning issues in rural areas.
In the context of consideration of the proposed development, it seems that the second last dot point is the relevant part of the Strategy to consider.
Clause 3.3 of the Strategy provides the objectives, land use allocation and subdivision and development criteria in relation to Local Priority Agriculture land. The General Objectives are:
a)To preserve areas of local agricultural significance, maintaining a clear emphasis on the primacy of agriculture and primary production activities above all other uses
b)To minimise the impact of adjoining land uses on the Local Priority Agriculture (LPA) precinct that may restrict or conflict with the continued use for agriculture;
c)To support the establishment of agricultural land use through the effective management to natural resources;
d)To establish objectives for identified LPA precincts based on prevailing land use constraints and land capability factors; and
e)To minimise risk to life and property by considering the prevailing threat of bushfire hazard in determining planning applications, ensuring development is in accordance with current best practice for bushfire protection and mitigation
The Tribunal notes that objective (a) of the Strategy does not entirely accord with the objectives for the Swan Valley Rural Zone in the Scheme because it focuses only on agriculture and does not include recreation, tourism and landscape uses as contemplated by LPS 17.
Under the heading 'Subdivision and Development Criteria (to apply within all LPAs)' there are three bullet points which state:
•There is a general presumption against the ad hoc fragmentation of rural land which is identified as having agricultural significance. It is considered to be a valuable resource.
•Land identified as Local Priority Agriculture land is to be retained for that purpose.
•Proposals to rezone land, subdivide or develop within the LPA precinct for any beneficial non-agricultural uses are to be accompanied by an Agricultural Impact Assessment outlining the following:
It would seem then, that despite the apparent firm language used in the second bullet point, the third bullet point expressly contemplates that a proposal to use land for a non-agricultural purpose may be contemplated if further specified information is provided and, presumably, a decision would be required to have regard to that further information.
The original application lodged with the respondent contained in Exhibit 2 at Tab 1 does not have any document called 'Agricultural Impact Assessment', nor does it appear to address the areas of information specified in the Strategy. The report of the respondent's planning officer that assessed the original development application does not refer to the absence of an Agricultural Impact Assessment. Neither of the planners who gave evidence in this matter referred to the need for an Agricultural Impact Assessment. No submissions were made about the absence of an Agricultural Impact Assessment. The Tribunal can only conclude, therefore, that the respondent does not consistently apply the Strategy, at least in relation to Local Priority Agriculture land, or alternatively was of the view that the Strategy should not be applied in this case. Having regard to this, and the inconsistency of at least one of the objectives for Local Priority Agriculture land with the objectives for Swan Valley Rural Zone in LPS 17, the Tribunal is not satisfied that, on this occasion, any weight should be given to the Strategy.
Conclusion
For all of the reasons above, and having regard both to the recommendation of the Committee and to all of the relevant matters prescribed by cl 67 of Sch 2 of the LPS Regulations, which to the extent they have not been referred to in these decisions, the Tribunal has found all support the same conclusion, the correct and preferable decision in this matter is that the proposed development should be approved subject to conditions.
There remains one final submission that must be dealt with. The respondent submitted that, as a similar proposal in terms of use, albeit with a different proposed built form, had been refused by the Metro East Joint Development Panel in July 2015, and because there has been no relevant change in the planning framework since that time, the principle of consistency in decisionmaking should be applied: citing Cumming and Town of Cambridge [2018] WASAT 65 (Cumming), at [21]. In my view the circumstances in Cumming, and in the case cited therein (Hanson Construction Materials Pty Ltd and Town of Vincent [2008] WASAT 71, at [54]) are distinguishable because in those cases the earlier decisions relied upon had not been the subject of appeal to the Tribunal. In this case, the previous decision was the subject of an application for review to the Tribunal. It is the case that the application was withdrawn before it was determined by the Tribunal, but the substantial merits of the original decision were not determined. In addition, even where orderly and proper planning requires the decisionmaker to have regard to previous decisions in relation to the same site if the planning framework has not changed, it should not give the earlier decisions much weight if, on all the evidence before the Tribunal, a different decision is in fact the correct and preferable decision. In this case, the Tribunal is satisfied that the correct and preferable decision in relation to the proposed development is that it should be approved.
Whilst initially there was some dispute between the parties as to the content of the conditions that are appropriate should the proposed development be approved, by the conclusion of the hearing there was no longer any dispute.
Orders
The Tribunal therefore proposes to make the following orders:
1.The application is allowed.
2.The decision of the respondent made on 6 June 2018 to refuse the proposed development is set aside and instead a decision to approve the proposed development subject to the following conditions is substituted:
(1)This approval is for a 'Place of Worship' and 'Caretaker's Dwelling' as defined in the City of Swan Local Planning Scheme No. 17 in accordance with the following approved plans:
(a)Site Plan 1/1 revised 19.9.2018;
(b)Plans & Elevations 1/2 revised 19.9.2018;
(c)Landscaping Plan RSSB-2 Rev C,
but as amended by these conditions.
(2)The hours of operation of the Place of Worship (excluding the Caretaker's Dwelling) shall be limited to between 8 am to 12 pm every Sunday (excluding: (1) Seva Activities and (2) 'annual day' events, which are permitted once per year).
(3)Music associated with the Place of Worship (either live or recorded) is not permitted to be played prior to 9 am on Sundays. External amplification is prohibited at all times.
(4)A maximum of 110 persons are permitted onsite at any one time between 8 am to 12 pm every Sunday (excluding the once yearly 'annual day' events).
(5)A maximum of 210 persons are permitted onsite at any one time during each 'annual day' event.
(6)Both the Place of Worship building and the Caretaker's Dwelling are to incorporate the building measures outlined in Australian Standard 3959:2009 - Construction of Buildings in Bushfire Prone Areas required for a Bushfire Attack Level rating of BAL12.5. Those measures are to be shown as part of the requisite Building Permit application.
(7)The Bushfire Protection Criteria requirements of the revised 'Bushfire Attack Level Report', prepared by Bushfire Prone Planning and dated 16 May 2018 (v1.3), are to be implemented prior to occupation of any building to the satisfaction of the City of Swan.
(8)All landscaping must be completed in accordance with the Landscaping Plan approved pursuant to Condition 8 prior to occupation of any building, and is to be maintained thereafter for the life of the development to the satisfaction of the City of Swan.
(9)The development must be connected to the Water Corporation's sewer, where available, unless otherwise provided with an onsite effluent disposal system approved by the Department of Health.
(10)A total of 62 parking bays shall be provided, each measuring minimum 5.4 metres x 2.4 metres, clearly marked on the ground and served by a minimum 6 metre wide paved accessway. Where the accessway abuts a building or other barrier, a minimum width of 6.5 metre is required. Disabled bays to comply with Australian Standard 2890.6:2009 Offstreet Parking for people with disabilities.
(11)All pavement on the site must be capable of accepting anticipated loadings (including access ways, parking areas, storage and hard stands). The parking bays and all paved areas must be maintained to a high standard throughout the life of the development.
(12)Vehicle access on to the site shall be restricted to that shown on the approved site plan.
(13)All crossovers must be built and maintained in accordance with the City of Swan specifications.
(14)All stormwater produced on the site shall be contained on the site.
(15)Provision must be made for access and facilities for use by people with disabilities in accordance with provisions of the Building Code of Australia and AS 1428.1.
(16)The developer must ascertain the location and depth of any services that may interfere with crossover and associated building construction. Any adjustment to affected services is to be arranged by the applicant at his/her expense with the appropriate service authority approval, prior to works commencing on the site.
(17)Any additional development, which is not in accordance with the application (the subject of this approval) or any condition of approval, will require further approval of the City of Swan.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS L EDDY, SENIOR MEMBER
8 MAY 2019
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