| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : RICHES and WESTERN AUSTRALIAN PLANNING COMMISSION [2011] WASAT 147 MEMBER : MR J JORDAN (MEMBER) HEARD : 9 JUNE 2011, FINAL DOCUMENT FILED 10 JUNE 2011 DELIVERED : 12 SEPTEMBER 2011 FILE NO/S : DR 215 of 2010 BETWEEN : JOHN RICHES Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords: Town planning - Subdivision - Refusal - Proposed excision of lot containing existing house from larger rural lot - Rural zoned land under local planning scheme - Purpose and intent of rural zoning - Ground water protection area - Rural subdivision policy - Whether homestead lot - Whether population changes in locality Legislation: Planning and Development Act 2005 (WA), s 24(1), s 26, s 241(3), s 251(1)
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Shire of Gingin Town Planning Scheme No 8, cl 3.1.3(g), cl 5.5, cl 5.7, Pt 6, cl 6.5, cl 6.5.2(b), cl 6.5.2(g) Result: The application for review is dismissed
The refusal of the proposed subdivision of Lot 7 Wedgetail Road, Wilbinga is affirmed Category: B
Representation: Counsel:
Applicant : Mr M Hardy
Respondent : Mr A Sharp with Mr B Nelson
Solicitors:
Applicant : Hardy Bowen
Respondent : State Solicitor's Office
Case(s) referred to in decision(s):
Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433
Nicholls and Western Australian Planning Commission [2005] WASAT 40
Ridge City Holdings Pty Ltd and City of Albany [2006] WASAT 187
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REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision 1 This matter involved an application for review of the refusal by the Western Australian Planning Commission of an application to excise 4 hectares containing an existing house from a 20 hectare Rural zoned lot within a groundwater protection area at Wedgetail Road, Wilbinga. 2 The issues that arose in this matter were related to whether the proposed subdivision would be incompatible with the Western Australian Planning Commission's policies on subdivision of rural land, the rural zoning under the local planning scheme and the policy objectives of controlling development in a groundwater protection area. 3 The Tribunal found the proposed ad hoc subdivision of the rural zoned lot would be incompatible with the intent of the local planning scheme and the relevant provisions and objectives of the State policies on the subdivision of rural land. 4 The Tribunal further found that the impact that would result from the proposed subdivision would likely be sufficient to be inconsistent with the principles of risk avoidance and even risk minimisation in the groundwater source protection area in which the lot and neighbouring lots are located. 5 The Tribunal also found that the proposed subdivision would set a precedent for applications to subdivide neighbouring lots that would be indistinguishable from the proposed subdivision. The precedent set would be undesirable because of the impact on the existing local rural character and the potential impact on the ground water protection area. 6 The Tribunal dismissed the application for review and affirmed the refusal of the proposed subdivision.
Introduction 7 These proceedings involve an application brought by Mr John Riches (applicant) pursuant to s 251(1) of the Planning and Development Act 2005 (WA) (PD Act) for review of the decision of the Western Australian Planning Commission (Commission or respondent) to refuse to grant approval for the subdivision of Lot 7 Wedgetail Road, Wilbinga (site) into two lots, one lot to contain the existing house on the site. (Page 4)
Site and locality 8 The site is rectangular in shape, has an area of 20.05 hectares, a frontage of 722.5 metres to Wedgetail Road at the northern boundary and a depth of 278 metres. Generally, the western twothirds of the site contains remnant vegetation, and the eastern third is almost devoid of vegetation and about 5 metres lower in elevation. 9 There is a house and a shed on the site set back about 80 metres from Wedgetail Road. These buildings are located near the middle of the frontage of the site in the vegetated area. The locality has no public reticulated water supply or electricity. The site has its own on-site water and electricity supply. 10 Wedgetail Road is unsealed and ends about 400 metres to the west of the site. About 280 metres to the east of the site Wedgetail Road meets Military Road, a sealed road which connects to Wanneroo Road about 6 kilometres to the southwest. The nearest settlements are Guilderton, about 20 kilometres to the northwest of the site, and Two Rocks, about 22 kilometres to the southwest. 11 The site is one of seven rural lots, three to the north of Wedgetail Road and four to the south, all with a cover of remnant vegetation, surrounded by State forest. North of Wedgetail Road is Lot 12438 of 80.99 hectares owned by the State Government with access from Military Road, and, fronting Wedgetail Road, two privately owned lots, Lot 4 of 18.93 hectares with a house and Lot 5 of 19.09 hectares. South of and fronting Wedgetail Road is the site which is adjoined to the west by State Government owned Lot 12437 of 11.95 hectares and to the east by privately owned Lot 8 of 8.02 hectares with a house. 12 To the south of the site is Lot 1 of 81 hectares, with access off Military Road. Lot 1 has a cleared central area used for limestone quarrying and the manufacturing of reconstituted limestone blocks, with associated sheds, fuel storage, offices and ablutions. 13 A Conservation Category Wetland, which appeared as a flat, dry, cleared area on viewing, extends from Lot 1 north through the eastern third of the site and into Lot 4 on the opposite side of Wedgetail Road. 14 The Tribunal viewed the site and immediate locality accompanied by the applicant, counsel for the parties and the witnesses. (Page 5)
Planning framework 15 The site and the six other lots in the Wedgetail Road subdivision are zoned Rural in Shire of Gingin Town Planning Scheme No 8 (TPS 8). Planning approval, with no apparent time limit, has been granted for the 'rural industry (reconstituted limestone block plant and associated facilities)' being carried out on Lot 1. There was no evidence of a current planning approval or extractive industry licence for the limestone quarry on Lot 1. 16 The Shire of Gingin (Shire) has prepared Shire of Gingin draftLocal Planning Scheme No 9 (draft LPS 9). Draft LPS 9 was originally prepared and advertised in 2003. It has been subject to modifications ordered by the Minister of Planning since that time and was again to be advertised in 2011. The amendments required for draft LPS 9 did not affect the site. The site would be zoned 'General Rural' in draft LPS 9. The objectives of the General Rural zone at cl 4.27 of draft LPS 9 are: (a) manage land use changes so that the specific local character of the zone is maintained or enhanced; (b) encourage and protect broad acre agricultural activities such as grazing and more intensive agricultural actives such as horticulture as primary uses, with other rural pursuits and rural industries as secondary uses in circumstances where they demonstrate compatibility of the primary use; and (c) maintain and enhance the environmental qualities of the landscape, vegetation, soils and water bodies, to protect sensitive areas especially the natural valley and water course systems from damage. 17 Draft LPS 9 at cl 5.10.6 specifies 'GR Codes' that provide for rural subdivision into particular sized lots in certain locations. The subject site is designated 'uncoded' and cl 5.10.6.1 of draft LPS 9 states that in uncoded areas, further subdivision will not be supported unless it will assist in achieving the objectives of the zone. 18 Part 6 of draft LPS 9 is concerned with Special Control Areas (SCAs). The site would be within SCA 2 which, in addition to the controls of the underlying zoning, adds development controls to ensure land use and development is compatible with protection and management of groundwater resources. Including SCAs in draft LPS 9 is consistent with the directions at cl 2 of State Planning Policy 2.2 - Gnangara Ground Water Protection (SPP 2.2). (Page 6)
19 SPP 2.2 was gazetted on 5 August 2005 and at Figure 1 sets out the boundaries of the Gnangara Mound Groundwater Protection Area (Gnangara Mound GPA), which extends some 55 kilometres from Ballajura in the south to near Gingin Brook in the north. The site is about 5 kilometres from the northern boundary of the Gnangara Mound GPA and is within the Gnangara Underground Water Pollution Control Area (UWPCA) which is one of the UWPCAs within the Gnangara Mound GPA. 20 Clause 2.1 of SPP 2.2 states: A Priority classification system exists for all gazetted public drinking water source areas in order to restrict or manage activities that may cause groundwater pollution or significant contamination in accordance with the following categories. • Priority 1 source protection areas are defined and managed to ensure there is no degradation of the water resource in these areas. This is the highest level of protection for the water source and normally will apply to land owned by the state, and is characterised by lowintensity [sic] and low-risk land use, such as forestry. Protection of the public water supply outweighs virtually all other considerations in respect to the use of this land. Priority 1 source protection areas are managed in accordance with the principle of risk avoidance(emphasis added). • Priority 2 source protection areas are defined to ensure that there is no increased risk of pollution to the water source. These areas are declared over land where low-risk development already exists. Protection of public water supply sources is a high Priority in these areas. Priority 2 areas are managed in accordance with the principle of risk minimisation and conditional development is allowed (emphasis added). • Priority 3 ... 21 The site is within the defined Priority 1 source protection area within the Gnangara Mound GPA. Appendix 1 of SPP 2.2 has a land use table which lists compatibility guidelines in drinking water source areas. A house is listed for Priority 1 areas as compatible with conditions with an added footnote '16' which states '[l]imited to one residential building per property'. For Priority 2 areas a house is listed as 'acceptable' with reference to the need for conditions related to the density of dwellings in hectares per dwelling. 22 Extractive industry is listed as compatible in both Priority 1 and Priority 2 areas, 'with conditions'. Appendix 1 also includes a table of the (Page 7)
compatibility of land for subdivision within public drinking water source areas. The subdivision of rural land of any size is shown as incompatible within a Priority 1 area and acceptable for Priority 2 areas if 4 hectares or greater. 23 Clause 4 of SPP 2.2 provides three policy 'objectives' for the protection of the quality and quantity of ground water as follows: 4.1 Ensure that all land use changes in the policy area are compatible with the long-term protection and management of groundwater quality and quantity for public drinking water supply, in accordance with Priority source protection area classification objectives; 4.2 Protect groundwater quality and quantity in order to maintain the dependent ecosystems, ecological values and integrity of wetlands and native vegetation, in accordance with recognised conservation values; and 4.3 Protect and/or enhance the quality and quantity of groundwater, in accordance with accepted water quality guidelines and standards for the following uses - 24 Clause 5 of SPP 2.2 provides policy 'measures' including: 5.3 In priority 1 source protection areas in the policy area, there is a presumption against the zoning of land for residential, special residential, special rural, industrial or commercial uses or the subdivision of land. Any other zones incompatible with Priority 1 objectives should not be considered. 5.4 In priority 2 source protection areas the zoning to special rural, rural living or rural-residential or other similar zones, the subdivision of land and land use development proposals, may be approved in the policy area, both in the Perth Metropolitan Region and outside it, provided … 5.5 Exception to the above may be considered where it can be demonstrated to the WAPC that the risk of contamination to the groundwater resource is not increased. In that case, subdivisions with an average 2 hectare (rural living) or 4 hectare lot size (rural) (Page 8)
may be approved, subject to other planning and environmental requirements being satisfied. Where an approved subdivision has an average lot size greater than stated in this policy, the WAPC may impose a condition requiring that an appropriate covenant or caveat be placed on the certificate of title to indicate that further subdivision of the residual or larger lots would not be approved. 25 The Priority 1 area occupies approximately 95% of the Gnangara Mound GPA, having an area of approximately 2,400 square kilometres. 26 The site is also subject to State Planning Policy 2.5 - Agricultural and Rural Land Use Planning (SPP 2.5). The policy objectives for SPP 2.5 include: 1. Protect agricultural land resources wherever possible by - 4. Carefully manage natural resources by - 27 SPP 2.5 provides that the Commission will only support subdivision for Rural Residential and Rural Small Holding lots where the land has been appropriately zoned within a town planning scheme and the provisions of the Commission's Development Control Policy No DC 3.4 - Subdivision of Rural Land (DC 3.4) have been complied with. 28 Section 241(1) of the PD Act requires the Tribunal to have due regard to State planning policies. 29 DC 3.4 states that it is an operational policy to guide the subdivision of land to achieve the key objectives of SPP 2.5, namely '... to protect agricultural land, plan for rural settlement, minimise land use conflict and manage natural resources'. (Page 9)
30 Clause 3.1 of DC 3.4 contains a general policy requirement for the subdivision of land for closer settlement to be properly planned through preparation of regional and local planning strategies, and be provided for in local planning schemes prior to subdivision. Clause 4.1 of DC 3.4 includes the statement that in the absence of strategies or planning controls, unplanned subdivision would not be permitted. More particularly, cl 4.1 of DC 3.4 relevantly states: 31 Appendix 1 of DC 3.4 has the following definition of a homestead lot: A small lot generally ranging from 1 - 4 ha in size, which is excised from a larger farm holding for separate occupation, such as by a retiring farmer wishing to remain in an existing dwelling. 32 Clause 4.9 of DC 3.4 states that: Homestead lots may be created to enable an existing house on a farm to continue to be occupied provided that: (a) the land is in the Wheatbelt agricultural policy area (refer to appendix 3); (b) the population in the locality is declining or relatively static; (c) the homestead lot has an area between 1 and 4 ha, or up to 20 ha where it is desirable to respond to the landform or to include existing outbuildings or water sources; (d) there is an adequate water supply for domestic, land management and fire management purposes; (e) the homestead lot fronts a constructed public road; (f) the homestead lot contains an existing residence; and (g) a homestead lot has not been excised from the farm in the past. (Page 10)
33 As stated above, a Conservation Category Wetland, as mapped by the Department of Environment and Conservation, is situated in the eastern third of the site and extends south into Lot 1 and north into Lot 4.
Proposed subdivision 34 The proposed subdivision would result in the creation of two lots. Proposed Lot 1 would be 4 hectares and contain the existing house and shed. The lot would be located central to the Wedgetail Road frontage of the site with a frontage of 200 metres to the road and a depth of 194 metres. The remainder, proposed Lot 2, would be a Ushaped lot around Lot 1, with an area of 16.05 hectares. To the west of proposed Lot 1, proposed Lot 2 would have frontage of 288.5 metres to Wedgetail Road and to the east of Lot 1, a frontage of 234 metres to Wedgetail Road. Between Lot 1 and the southern boundary Lot 2 would be about 100 metres deep. 35 Proposed Lot 1 and the western and southern portions of proposed Lot 2 would be vegetated while the lower, eastern portion of proposed Lot 2, which includes the Conservation Category Wetland, is mostly devoid of vegetation.
The refusal 36 The Commission refused the proposed subdivision because it considered it would be (in summary): • An unplanned breakdown of a rural landholding and therefore contrary to DC 3.4; • Inconsistent with the objective of the rural zoning under TPS 8 to preserve the area's current rural use and density of development; • Contrary to the objective of not supporting subdivision within a Priority 1 ground area under SPP 2.2; • Set an undesirable precedent for further subdivision for surrounding lots.
The issues 37 The issues identified were: 1) Whether the subdivision would be unplanned fragmentation of rural land and be inconsistent with the (Page 11)
Rural zoning of the site under TPS 8, SPP 2.5 and DC 3.4; 2) Whether the proposed subdivision would be compatible with the presumption against subdivision in Priority 1 areas and with the objective of long-term protection and management of groundwater quality and quantity for public drinking water under SPP 2.2; 3) Whether the proposed subdivision would be considered under the 'homestead lot' provisions of DC 3.4 and if so, whether the population in the locality is declining or relatively static as required by DC 3.4; 4) Whether draft LPS 9 is a seriously entertained planning proposal and whether the proposed subdivision would be consistent with the objectives for the General Rural zoning of TPS 8; 5) Whether an undesirable precedent would be created if the subdivision were granted approval.
Discussion
Issue 1 whether the proposal would be unplanned fragmentation of rural land inconsistent with TPS 8, SPP 2.5 and DC 3.4 38 TPS 8 does not include any provisions that specifically guide or discourage the subdivision of Rural zoned land and no policies have been adopted by the Shire under TPS 8 for this purpose. Clause 3.1.3(g) of TPS 8 includes the following objective for the Rural zone: Rural zone to provide land for the range of normal rural activities conducted in the Shire and protect such land from inappropriate uses. 39 It was the applicant's submission that the proposed subdivision, and the potential use to be made of the lots, would not offend the objective for the rural zone in TPS 8. This was because the existing use of the lots would continue and a house in remnant bush was a normal activity for privately owned rural lots in the locality. 40 In respect of SPP 2.5 and DC 3.4, the applicant's submission was that these policies should be treated with caution if considered relevant to the proposal. It would be legally incorrect and simply bad planning to inflexibly apply the provisions of DC 3.4 and SPP 2.5. (Page 12)
41 The applicant said that the circumstances of the proposed subdivision should not be overlooked when considering the objectives of SPP 2.5 and DC 3.4. The Wedgetail Road subdivision was a unique rural subdivision because of the small number, the size and the relative isolation of the lots and the ownership and the non-agricultural use made of them. The applicant said SPP 2.5 and DC 3.4 were usually invoked when land might be lost to agricultural production. This subdivision would not result in the loss of agricultural land because the lots were not used as farms and were unlikely to be in the future. 42 The respondent's position was that because there was no support for the subdivision of rural land in TPS 8, the proposed subdivision would be unplanned fragmentation of rural land. The respondent went on to argue that this unplanned fragmentation of the rural land would be contrary to the planning objectives and requirements of SPP 2.5 and DC 3.4. That is, subdivision to create lots similar to that proposed was akin to a Rural Residential or Rural Small Holding subdivision and, under DC 3.4 and SPP 2.5, this form of subdivision is only to be supported through the preparation of planning strategies and provided for in a local planning scheme. 43 The respondent noted that the site and neighbouring lots were not used as agricultural land, but said that DC 3.4 was concerned not only with the fragmentation of agricultural land, but, as provided at cl 3.1, with both 'the subdivision of rural and agricultural land' for closer settlement. The respondent said that cl 4.1 of DC 3.4 included the policy measure of 'retention of rural character and agricultural landholdings'. The proposed subdivision would not maintain the rural character of the locality because of the additional development that would result and was therefore in conflict with the intent of DC 3.4. 44 The Tribunal considers that the proposed subdivision is unplanned fragmentation of rural zoned land. There is an absence of policies prepared under TPS 8, but there is the statutory requirement that regard be had to State planning policies. In this regard, the Tribunal is aware that, as held in Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433 at [24], the existence of a policy cannot replace the discretion of the decision-maker in the sense that it is to be inflexibly applied regardless of the merits of the particular case, and: [t]he relevant consideration in many applications will be why the 'policy' should not be applied; why the planning principles that find expression in the 'policy' are not relevant to the particular application. (Page 13)
45 The Tribunal considers that the subdivision of larger rural holdings into rural lots of 4 hectares is not orderly planning, unless there is an argument for a specific rural activity. Residential is not considered to be such a land use. Rural holdings are commonly only subdivided into smaller lots for this single purpose only after provisions within a scheme are invoked to facilitate such a subdivision. TPS 8 includes Rural Residential and Rural Living zones for this purpose, and at cl 5.5 and cl 5.7 respectively, are the steps required to identify lots for these uses. Selected areas are included in Appendices 6 and 7 of TPS 8 and in some instances include a 'Plan of Subdivision'. The Tribunal is of the view that a proposed lot containing a house and not being used for agricultural activity is not sufficient basis to set aside the requirements of TPS 8, SPP 2.5 and DC 3.4. 46 Relevant to this conclusion is that, in consideration of the issues below the Tribunal has concluded that there is concern about the location of the site in the Gnangara Mound GPA and the likely undesirable precedent that might be created if subdivision of the site were allowed. These conclusions and the relative isolation of the locality have led the Tribunal to the view that the provisions of TPS 8 relevant to rezoning for the creation of lots of 4 hectares to be used for residential purposes in a rural setting should be addressed to establish whether it would be orderly planning for that form of subdivision to occur in the Wedgetail Road subdivision locality. 47 The Tribunal has formed the view that the ad hoc creation of the proposed 4 hectare lot for residential purposes would be unplanned fragmentation of this Rural zoned site and would be incompatible with the intent of TPS 8, SPP 2.5 and DC 3.4.
Issue 2 - whether the proposed subdivision would be compatible with the presumption against subdivision in Priority 1 areas and with the longterm protection and management of groundwater quality and quantity for public drinking water under SPP 2.2 48 The respondent called as a witness Mr Stephen Watson, Program Manager, Protection Planning in the Water Source Protection Branch of the Department of Water. Mr Watson referred to the Department of Water's 'Water Quality Protection Note - Land Use Compatibility in Public Drinking Water Source Areas', published in July 2004. He said the Water Quality Protection Note was produced to assist decision making for all public drinking water sources, including UWPCAs, water reserves and catchment areas. Mr Watson referred to (Page 14)
diagram 1 of the Water Quality Protection Note, which set out a flow diagram for the priority classification of water source protection areas. This started with existing or approved zoning, ownership and land use and led to existing or proposed government reserves being Priority 1 areas and rural land (excluding intensive agriculture) being Priority 2 areas. 49 SPP 2.2, published in 2005, was based on much of the content of the Water Quality Protection Note and the site was included in a Priority 1 area. It was Mr Watson's evidence that when SPP 2.2 was gazetted in 2005, the objective was that the State would become the owner of all land within Priority 1 groundwater protection areas. It had subsequently been found that that objective could not be achieved. It was also Mr Watson's evidence that, if the classification of the Priority protection areas were to be officially revisited, the site and the three neighbouring privately owned lots in the Wedgetail Road subdivision would most likely be placed within a Priority 2 groundwater source protection area. 50 Mr Watson said that within the Priority 2 area, the Department of Water's approach was to oppose subdivision, and the increased development activity that would result, in the interests of the principle of risk minimisation. Mr Watson said that if, however, another agency decided to approve a subdivision, the Department of Water would recommend a minimum rural lot size of 4 hectares as provided for in cl 5.5 and Appendix 1 of SPP 2.2. 51 Mr Jason Bouwhuis, a town planner who appeared as a witness for the respondent, said the Commission relied on SPP 2.2 and the site was in a Priority 1 area. Mr Bouwhuis was of the opinion that the proposed land use changes resulting from the creation of an additional lot, including the construction of, and the potential pollution from, an additional dwelling, associated outbuildings and the onsite effluent disposal system would be incompatible with the objectives of SPP 2.2. If the presumption against subdivision in SPP 2.2 were not maintained the longterm protection and management of groundwater quality and quantity in accordance with the principle of risk avoidance for Priority 1 areas would be compromised. 52 The Department of Water told the respondent in a letter dated 18 May 2010 that 'it was not in a position to purchase the land'. Mr Riches said he had the same response from the Commission, and the Department of Environment and Conservation when he asked them whether they would commit to purchasing the 16 hectare vacant lot proposed by the subdivision. (Page 15)
53 Mr Watson and Mr Bouwhuis both said that they had no knowledge of any plans to review the Priority classification for privately owned land within the Priority 1 areas of the Gnangara Mound GPA. 54 The applicant emphasised that the context of the proposed subdivision could not be ignored and this included the use made of the Department of Water owned Lot 1, abutting the site to the south. On the evidence before the Tribunal, it is apparent planning approval was issued in 2005 for the block manufacturing rural industry with no identifiable time limit imposed and this use was still operating. There was no clear evidence of either a current planning approval or extractive industry licence for the quarry. Mr Riches commented that the quarry was still operating, but there was no evidence to confirm this. 55 Mr Watson and Mr Bouwhuis acknowledged the reconstituted limestone block manufacturing and quarry uses but both referred to Appendix 1 of SPP 2.2 where the land use table lists extractive industry as 'compatible with conditions' for both Priority 1 and Priority 2 areas. They did, however, say they had no knowledge of how the plant on Lot 1 operated and what monitoring was carried out to ensure there was no impact on groundwater. They also acknowledged, when questioned that a house and alternative treatment unit would have less impact on groundwater that a productive farm using agricultural chemicals. 56 Mr Watson and Mr Bouwhuis each said that they had noted the use made of Lot 1, but were concerned with the impact on the Gnangara Mound GPA from development that would result from the proposed subdivision. 57 The Tribunal found it difficult to reconcile the respondent's insistence on the standards of land use and subdivision control for a Priority 1 area under SPP 2.2 with the admission that the site and neighbouring lots would be Priority 2 if the formal classification process were repeated. Four hectares is the minimum lot area that might be allowed in Priority 2, but the Tribunal does not accept that this lot size in Appendix 1 of SPP 2.2 is setting a subdivision standard to guide planning decisions. As stated above, the Tribunal has formed the view that there is no basis for supporting the proposed subdivision to be found in TPS 8, SPP 2.5 and DC 3.4. As stated, the Tribunal has also formed the view that the proposed subdivision would become an undesirable precedent for the subdivision of other, larger lots in the Wedgetail Road subdivision. (Page 16)
58 It was not apparent from the filed documents that the Department of Water had any role in the approval of the block manufacturing plant. The Department of Water acquired Lot 1 after the manufacturing uses and quarrying had been approved. The witnesses for the respondent were not able to say if there was to be any review of these uses in this Priority 1 area or if the performance of the activities were monitored. 59 The applicant said the potential impact from the proposed subdivision on the Priority 1 area would likely be a fraction of that from the uses on Lot 1. Even if this were the case, the Tribunal is of the view that impact as a result of the proposed subdivision, and the subdivision of neighbouring lots that might follow, is not to be ignored and is likely to be sufficient to be inconsistent with the principles of risk avoidance and even risk minimisation in this groundwater source area.
Issue 3 - whether the proposed subdivision could be considered under the 'homestead lot' provisions of DC 3.4 and, if so, whether the population of the locality is declining or relatively static as required by DC 3.4 60 There was no dispute between the parties that the use of the site was not what is commonly accepted as a farm, which is to produce crops or run livestock. Mr Riches' evidence was that he did not intend to farm the site. 61 The applicant said that, while cl 4.9 of DC 3.4 referred to farms, it did provide for the creation of a homestead lot of 4 hectares and if the proposed subdivision were allowed, Mr Riches would continue to live in the house and the existing rural use made of the site would not change. The proposed subdivision would also comply with the requirements at subclauses 4.9(a), (c), (d), (e), (f) and (g) of DC 3.4. The applicant also said that as required by cl 4.9(b) of DC 3.4, in its opinion, the population of the locality was at best static. 62 The respondent said that the proposed subdivision was clearly in conflict with cl 4.9 of DC 3.4. The site was not, and was not going to become, a farm. In addition, the proposed house lot was a significant proportion of the area of the site. Clause 4.9(c) of DC 3.4 provided for homestead lots of up to 20 hectares and this was the total area of the site. 63 The respondent said that in respect to consideration of population change 'in the locality' required by cl 4.9(b) of DC 3.4, it considered the locality to be the areas defined by Australian Bureau of Statistics (ABS) for the collection of statistics. For census collector district 5040206, which includes the site, ABS figures showed a population increase from (Page 17)
214 people in 2001 to 287 people in 2006. For the Shire of Gingin the increase in population was from 3191 in 1996 to 4152 in 2006. These were modest but actual increases. 64 There were exchanges between Counsel and the witnesses on what might be the 'locality' for the purpose of cl 4.9(b) of DC 3.4. The Tribunal notes that census district 5040206 extends about 20 kilometres to the east of the site to Brand Highway and rural lots along the highway are separated from the site by State forest. The Wilbinga Locality of the Shire extends westward from the site across Wanneroo Road to the coast, a distance of about 15 kilometres. 65 The Tribunal also notes that cl 6.5 of TPS 8, which is concerned with matters it is necessary to have regard to when determining a development application uses references to 'locality'. Clause 6.5.2(b) is concerned with the purpose for which the locality is reserved, zoned or used, and cl 6.5.2(g) is concerned with the orderly and proper planning of the locality and the preservation of the amenity of the locality. In the Tribunal's view, sense can only be made of provisions such as these in TPS 8 if the consideration of locality is as identified in Ridge City Holdings Pty Ltd and City of Albany[2006] WASAT 187 at [42]: The concept of the locality in town planning is necessarily flexible. However, the determination of the boundaries of the locality in any given case is generally concerned with town planning impacts. 66 The Tribunal appreciates that professionally collected population statistics are the best means of judging population changes. The Tribunal is of the view, however, that the Wedgetail Road subdivision is unique because of its isolation. It has no meaningful physical relationship with other areas of the Shire when considering the direct physical impact on local character and amenity of the proposed subdivision and any resultant development. There appears to be no interrelationship between activities within the Wedgetail Road subdivision and other rural localities. 67 Elsewhere in the Shire there might be lots in a locality that have an identifiable area of influence and interaction that extends for some kilometres. In this matter, the Tribunal considers it arguable that because of the unique characteristics of the site, namely its relative isolation and that it is one of only four privately owned lots in the Wedgetail Road subdivision, the population figures for what could be considered as this locality for the purpose of cl 4.9 of DC 3.4 could be subject to disproportionate change merely by a change in the family circumstances of individual local households. These comments on the use of the term (Page 18)
'locality' relative to the proposed subdivision make it difficult to draw a sensible conclusion on local population change. 68 The Tribunal has concluded that, notwithstanding the conclusions that might be drawn in respect of cl 4.9(a) to cl 4.9(g) of DC 3.4, given the nonagricultural use made of the site, its relatively small size for a rural lot and its location, the creation of a homestead lot as provided for at cl 4.9 of the DC 3.4 is not relevant to determining whether there is a planning basis for the proposed subdivision.
Issue 4 - whether draft LPS 9 is a seriously entertained planning proposal and whether the proposed subdivision would be consistent with the objectives for the General Rural zoning of LPS 9 69 Draft LPS 9 was on display for public submissions until 29 August 2011. Whether submissions were received and what the consequences of those submissions will be is not known. 70 Both parties referred to the test set out by the Tribunal in Nicholls and Western Australian Planning Commission [2005] WASAT 40 (Nicholls) at [59] for establishing whether a draft town planning scheme can be considered as seriously entertained. The four criteria listed in Nicholls are: (1) The degree to which the draft addresses the specific application. (2) The degree to which the draft is based on sound town planning principles. (3) The degree to which its ultimate approval could be regarded as 'certain'. (4) The degree to which its ultimate approval could be regarded as 'imminent'. 71 The Tribunal is of the view that Item 1 of the Nicholls test is satisfied. This is because proposed is the subdivision of land zoned rural under TPS 8 and draft LPS 9 would include the site in the General Rural zone. At cl 1.6 the aims of draft LPS 9 include protecting rural land resources by a presumption against unplanned fragmentation and support for ongoing productive rural use. Clause 4.2.7 of draft LPS 9 sets out objectives for the General Rural zone which includes managing land use changes to maintain rural character. 72 Clause 5.10.6 of draft LPS 9 sets out the General Rural zone minimum lot sizes identified by a 'GR' Code. This site would be uncoded (Page 19)
which means further subdivision would not be supported unless it is to achieve the objectives of the zone. The Tribunal notes that the smallest lot size under a GR code in draft LPS 9 is 10 hectares. Lots of 4 hectares are referred to in cl 5.10.5.1 of draft LPS 9 for the Rural Living zone. 73 In respect of the second item in the list in Nicholls, the applicant said draft LPS 9 was 'embryonic' and so it could not be certain that it embraced sound planning principles. The Tribunal notes that draft LPS 9 has been in preparation since 2003 and has been under scrutiny by the Department of Planning and other relevant government agencies during that time and the public during an earlier advertising period. The Tribunal has accepted that in the absence of argument to the contrary, that the provisions in draft LPS 9 pertinent to the proposed subdivision are based on sound planning principles. 74 As to whether draft LPS 9 can be considered as certain and imminent, the applicant said draft LPS 9 failed both these tests. Draft LPS 9 has been advertised but it is not known that it is yet in its final form. In addition, it is simply not known when draft LPS 9 will be finalised. 75 The respondent said the current version of draft LPS 9 was the result of the assessments it had been subject to since 2003. In that time, the provisions affecting the site have not changed. The respondent said that, importantly, as required by SPP 2.2, Pt 6 of LPS 9 includes provisions for declaring special control areas (SCAs) to protect public drinking water areas. Draft LPS 9 at cl 6 includes the site in SCA 2, which requires regard to be had to the provisions of the Department of Environment and Conservation land use compatibility tables for UWPCAs. In the submission of the respondent, draft LPS 9 should be considered certain in respect of the provisions relevant to the site. 76 It was the further submission of the respondent that, because it has been advertised for consent in what the respondent considers is likely to be it ultimate form, draft LPS 9 should be considered imminent. 77 The Tribunal is of the view that the provisions of draft LPS 9 concerning the site can be considered as reasonably certain and relevant to the consideration of this matter. This is because the requirements of SPP 2.2 that land in a UWPCA be included in a SCA is reflected in the LPS 9 provisions. In addition, it was not revealed to the Tribunal that there had been any submissions since 2003 that had questioned the lots around Wedgetail Road being zoned General Rural with no coding to (Page 20)
support subdivision. It was not apparent to the Tribunal that the proposed zoning and the associated land use controls would be likely to change at the current stage in the processing of draft LPS 9. 78 The Tribunal must comment, however, that the timing of the final gazettal of LPS 9 is not certain. The Tribunal is aware of the often leaden progress of a local planning scheme review and is cautious to say that completion of the process is imminent. 79 In respect of this issue, the applicant argues that in any event, the proposed subdivision does not offend against the provisions of draft LPS 9. This is because no loss of productive agricultural land will result and the ongoing use of the two rural lots created would not have an undesirable impact on the landscape. The resultant use of the two new lots would, in the applicant's submission, be less likely to have an adverse impact on the rural locality and groundwater than would the undertaking of farming activity on the site, which was conceded by Mr Watson. 80 The Tribunal's conclusions on Issue 4 are essentially that the provisions of draft LPS 9 are sufficiently relevant to reinforce the examination of the proposed subdivision required by SPP 2.2, TPS 8 and SPP 2.5 and DC 3.4. The Tribunal's conclusions in respect of those planning instruments are set out above.
Issue 5 - whether an undesirable precedent would be created if the subdivision were granted approval 81 The applicant said that the creation of the additional lot would not result in an undesirable outcome. This was because future use was likely to be consistent with the use now made of the site, which was limited to residential activity. If the approval led to the subdivision of other lots in the Wedgetail Road subdivision this would not result in an undesirable outcome. Only a limited number of lots could be created and, as with the site, the potential use of the additional lots could be limited because of the characteristics of the land. The applicant said the additional lots would not have a poor environmental consequence because of the relatively greater impact of the quarry and blockmaking activities on Lot 1. It was the applicant's submission that to ignore the effect of the quarry would 'fly in the face of reality'. 82 The Tribunal has formed the view that the proposed subdivision, if allowed, would set a precedent for the subdivision of the other lots in the Wedgetail Road subdivision. The Tribunal has also concluded that this (Page 21)
precedent is relevant to the determination of the matter because of the potentially undesirable planning consequences. 83 The Tribunal considers the proposed subdivision of the site, in itself, would be objectionable. This is because it would introduce a minimum lot size less than that existing in this rural locality and add a potential for additional impact on the landscape and the Gnangara Mound GPA. 84 As pointed out by the applicant, the impact from the proposed additional lot is likely to be relatively minor compared to the limestone extraction and block manufacturing activity on adjoining Lot 1. The Tribunal does not consider, however, the impact of the subdivision is to be overlooked simply because of what has been allowed on the adjoining Lot 1. The subdivision and development potential created by an approval would be unplanned, inconsistent with rural subdivision policy and inconsistent with the intent of the controls for subdivision and development in the Gnangara Mound GPA. 85 The Tribunal is also concerned that the three other privately owned lots in the Wedgetail Road subdivision are similar to the site in size, rural character and use. Any application to subdivide these lots would be indistinguishable from the proposed subdivision. The proposed subdivision would be setting a new minimum lot size of 4 hectares and would establish that creating an unusual lot shape is acceptable to accommodate a house lot excision. 86 If the subdivision were to be allowed, the Tribunal is of the view that there would likely be more than a mere chance or possibility that there would be applications to subdivide the other freehold lots, as well as the 16 hectare lot resulting from the subdivision of the site. The potential yield is about 12 lots. The Tribunal has formed the view that to set a precedent for this planning outcome in this locality would be undesirable because it would be in conflict with the steps otherwise required under TPS 8 to identify such land use areas, would impact on the local rural character and would have a potential impact on the Gnangara Mound GPA.
Conclusion 87 In respect of Issue 1, which was concerned with whether the proposed subdivision is consistent with the relevant planning instruments, the Tribunal has found the proposed subdivision to be in conflict with the provisions of TPS 8, which include zones and processes required to (Page 22)
identify locations for the creation of small rural lots for residential purposes. 88 There is a further statutory requirement that regard be had to relevant State planning policies and the Tribunal has formed the view that a proposed lot containing a house and not being farmed is not of itself a sufficient basis to set aside planning objectives of SPP 2.5 and DC 3.4, particularly in an isolated rural locality with no services and a conservation category wetland affecting properties. 89 The Tribunal has concluded that the ad hoc creation of the proposed 4 hectare lot for residential purposes would be unplanned fragmentation of Rural zoned land incompatible with the intent of TPS 8, SPP 2.5 and DC 3.4. 90 Issue 2, which was concerned with whether the proposed subdivision would be compatible with the objectives and provisions of SPP 2.2 for the protection and management of groundwater quality and quantity for public drinking water. 91 The Tribunal noted the evidence from the Department of Water witness that the site and neighbouring lots would not be classified as within the Priority 1 groundwater protection area, but within a Priority 2 area if the formal classification process were repeated today. The Tribunal has also noted the witnesses for the respondent accepted that the block manufacturing and the limestone quarrying conducted on adjoining Priority 1 classified Lot 1, might have a greater impact on groundwater than residential use with both witnesses for the respondent not aware if the performance and continuation of these activities was being reviewed. 92 The Tribunal has formed the view, however, that the 4 hectare minimum lot size listed for Priority 2 areas in Appendix 1 of SPP 2.2 does not set a subdivision standard to guide planning decisions. The Tribunal has formed the view that the proposed unplanned subdivision of a rural zoned lot in this locality would be incompatible with TPS 8, SPP 2.5 and DC 3.4 and that the subdivision of neighbouring lots is likely to follow if approval is granted for the creation of the proposed lots. The Tribunal has concluded that the impact that would result from the proposed subdivision is likely to be sufficient to be inconsistent with the principles of risk avoidance and even risk minimisation in this groundwater source protection area. 93 Issue 3 was concerned with the relevance to the subdivision of the 'homestead lot' provisions of DC 3.4. The proposed subdivision would (Page 23)
excise a 4 hectare house lot from a 20 hectare rural lot that is not farmed. The Tribunal has formed the view that, because of the direct relationship between the homestead lot provisions and objectives of DC 3.4 and farming properties, the provisions of DC 3.4 that are relevant to the creation of a homestead lots are not relevant to determining whether there is a planning basis for the proposed subdivision. 94 Issue 4 was whether draft LPS 9 was a seriously entertained planning proposal and whether the proposed subdivision would be consistent with the objectives for the General Rural zoning of TPS 9. The Tribunal has formed the view that draft LPS 9 addresses the planning circumstances of the proposed subdivision and is based on sound planning principles. 95 The Tribunal has also concluded that the provisions of draft LPS 9 relevant to the site can be considered as reasonably certain. This was because the provisions of draft LPS 9 reflected the requirement of SPP 2.2 that land in an UWPCA be included in a SCA and the existing rural zoning is to continue. The Tribunal was however cautious to say that completion of the process for gazettal of LPS 9 is imminent. 96 The Tribunal's conclusion on Issue 4 was essentially that the provisions of draft LPS 9 are sufficiently relevant to reinforce the examination of the proposed subdivision required by SPP 2.2, TPS 8, SPP 2.5 and DC 3.4. 97 Issue 5 required to be considered whether the proposed subdivision would set an undesirable precedent for the subdivision of the other lots in the Wedgetail Road subdivision. 98 The proposed subdivision, if allowed would introduce a minimum lot size of 4 hectares, which is less than that existing in this rural locality. The three other privately owned lots in the Wedgetail Road subdivision are similar to the site in size, rural character and use. The Tribunal considers there would likely be more than a mere chance or possibility that there would be applications to subdivide the other freehold lots and any application to subdivide these other lots into 4 hectares would be indistinguishable from the proposed subdivision. 99 The Tribunal has concluded that to set a precedent for the unplanned subdivision of lots in this locality would be undesirable because of the impact on the rural character and the potential impact on the Gnangara Mound GPA. (Page 24)
100 The parties also referred to the personal circumstances of Mr Riches that had led him to make the application to subdivide. Mr Riches has a strong desire to remain in his house, but needs to sell land because of his personal obligations. 101 For the applicant, the submission was that the proposed subdivision had unique qualities because of the location, the local rural character and the use made of neighbouring lots. Planning policies cited by the respondent were said therefore to be of marginal relevance and the proposed subdivision would not have planning consequences prejudicial to the planning objectives for the locality. The applicant said the overall circumstances were such that the personal situation of Mr Riches might be considered analogous to hardship and the subdivision allowed. 102 Even if there were proven circumstances of hardship, as revealed in the discussion of the issues above, the Tribunal has concluded that the proposed subdivision would not be consistent with the application of sound planning principles and, as a consequence, as provided at s 241(3) of the PD Act, it would not be open to the Tribunal to endorse the proposed subdivision. 103 The Tribunal has concluded that because of its findings in the consideration of issues, the subdivision, as proposed, would not be consistent with the orderly and proper planning of the locality. The Tribunal has therefore decided to dismiss the application and affirm the respondent's refusal.
Orders |