Riley and Western Australian Planning Commission
[2014] WASAT 40
•28 MARCH 2014
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: RILEY and WESTERN AUSTRALIAN PLANNING COMMISSION [2014] WASAT 40
MEMBER: MR J JORDAN (MEMBER)
HEARD: 18 DECEMBER 2013
DELIVERED : 28 MARCH 2014
FILE NO/S: DR 266 of 2013
BETWEEN: IAN JOHN RILEY
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Town planning Subdivision Refusal Two lots of 3 hectares and 3.7 hectares respectively Site within Swan Valley Area B of Swan Valley Planning Act 1995 (WA) Objectives for Area B Potential for agricultural activity Soils Impact of vineyards Land use in locality Lot size pattern Control of subdivision Application of policy Precedent
Legislation:
City of Swan Local Planning Scheme 17, cl 4.2.19(d)
Planning and Development Act 2005 (WA), s 134, s 251(1)
Swan Valley Planning Act 1995 (WA), s 3, s 4, s 6, s 7, s 8, s 9
Result:
The application for review is dismissed
Summary of Tribunal's decision:
Proposed was subdivision to create a 3 hectare and a 3.7 hectare lot in what is defined as Area B under the Swan Valley Planning Act 1995 (WA). Lots of less than 4 hectares proposed within Area B are required to be weighed against a list of particular objectives.
The Tribunal found that the proposed subdivision would be inconsistent with sufficient key objectives for Area B to warrant refusal. The Tribunal concluded that the size and soil type of the proposed lots was not sufficient to support departure from objectives for Area B.
In respect to precedent, on a narrow view, the subdivision would not be a concern, but in respect to consideration of lot size and use in Area B, the Tribunal has concluded that an undesirable precedent would be set.
The Tribunal decided to dismiss the application and endorse the refusal of the proposed subdivision.
Category: B
Representation:
Counsel:
Applicant: Mr P Webb (Acting as Agent)
Respondent: Ms S Grebe (Acting as Agent)
Solicitors:
Applicant: Peter D Webb and Associates
Respondent: Department of Planning
Case(s) referred to in decision(s):
Downs‑Stoney and Western Australian Planning Commission [2008] WASAT 178
Johnston and Western Australian Planning Commission [2013] WASAT 94
Nichols and Western Australian Planning Commission [2005] WASAT 40
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
These proceedings involve an application brought by Mr Ian John Riley (applicant) pursuant to s 251(1) of the Planning and Development Act 2005 (WA) (PD Act) for review of the decision by the Western Australian Planning Commission (Commission or respondent) to refuse an application for approval to subdivide No 8001 (Lot 117) West Swan Road, Henley Brook (site).
Site and locality
The site has an area of 6.704 hectares with frontage of 222 metres to West Swan Road at the eastern end and a common boundary with the reserve along St Leonards Creek at the western end. A house on the site is set back about 42 metres from West Swan Road and includes bed and breakfast accommodation for tourists. To the rear of the house is infrastructure for horses, including stables and a riding arena, as well as sheds, a tennis court, a pool and a water tank. Paddocks for horses extend from the buildings to the southern boundary. Until recently, the applicant used the site for horse breeding and preparing horses for showing, but that use has now been reduced.
The site rises about 7 metres from West Swan Road toward the northwestern corner and then falls more steeply down to the creek reserve at the rear. The western half of the site is mostly vegetated, with further stands of vegetation adjacent to the house and the driveway to the buildings.
To the east of the site on the opposite side of West Swan Road, lots are used for viticulture. Adjoining to the south of the site is a lot of 3.5 hectares which is cleared of vegetation and has a house. Immediately to the north of the site are five lots of 2 hectares around a cul de sac, Gardiner Drive, used for residential purposes. Three of these lots abut the site. To the north beyond Gardiner Drive, lots are larger, some of which contain vineyards. To the west of St Leonards Creek, lots are mostly about 2 hectares in area.
West Swan Road is the main tourist route through the Swan Valley, and tourist uses on lots to the north of the site include a brewery, an art gallery and wine tasting outlets.
Planning framework
The site is zoned Swan Valley Rural under the City of Swan Local Planning Scheme No 17 (LPS 17). The objectives of the Swan Valley Rural zone under cl 4.2.19 of LPS 17 are to:
(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; and
(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 1995.
The Swan Valley is defined in s 3 of the Swan Valley Planning Act 1995 (WA) (SVP Act) as meaning 'all the land comprised in Area A, Area B and Area C'. A plan depicting these three areas is at s 4 of the SVP Act and the site is within Area B.
Section 8 of the SVP Act lists planning objectives for any proposed development in Area B 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.
Section 6 of the SVP Act provides 'General planning objectives' as follows:
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.
Under LPS 17, the boundaries of the Swan Valley Rural zone generally accord with the boundaries of Area B under the SVP Act. Area A generally accords with the Rural Residential zone under LPS 17, and Area C accords with the Rural Living zone under LPS 17. Under the SVP Act Rural Residential as a use is mentioned in the planning objectives for Area A, at s 7, and Area C, at s 9. Section 8 of the SVP Act is silent on Rural Residential as a use in the planning objectives for Area B.
The PD Act at s 134(3) to s 134(7) provides that where an application for subdivision is made, the Commission must provide full particulars of the application to the Swan Valley Planning Committee (SVP Committee). The SVP Committee then gives its advice in writing on how the application should be determined, including any conditions to which any approval should be made subject. The Commission is to have due regard to the advice of the SVP Committee but may determine the application otherwise than in accordance with that advice.
The respondent also listed policies relevant to this matter and these include the following:
•State Planning Policy 2.5 ‑ Land Use Planning in Rural Areas (November 2013) (SPP 2.5);
•Development Control Policy 3.4 ‑ Subdivision of Rural Land (March 2012) (DC 3.4); and
•Development Control Policy 1.1 Subdivision of Land (General Principles) (DC 1.1).
SPP 2.5 applies to rural and rural living land, in particular, land zoned for rural or agricultural purposes in a local or regional planning scheme. To note is that the current version of SPP 2.5, adopted in November 2013, no longer identifies the site as priority agricultural land, as was the case in earlier versions of SPP 2.5. Clause 4 of SPP 2.5 provides the following objectives:
(a)To protect rural land from incompatible uses by:
i)requiring comprehensive planning for rural areas;
ii)making land use decisions for rural land that support existing and future primary production and protection of priority agricultural land, particularly for the production of food; and
iii)providing investment security for the existing and future primary production sector.
…
(d)To protect and improve environmental, landscape and cultural assets; [and]
(e)To minimise land use conflicts.
Clause 5.1 of SPP 2.5 provides as follows:
… Creation of new rural lots through ad hoc, unplanned subdivision is considered to be inconsistent with, or contrary to, the objectives of this policy. The overarching policy requirements are:
(a)land use change from rural to all other uses is to be planned and provided for in a planning strategy or scheme;
(b)land identified as priority agricultural land in a planning strategy or scheme is to be retained for that purpose;
(c)beyond its principle function for primary production, rural land is also required for public purposes, natural resource management, biodiversity conservation and protection of landscapes and views;
…
(e)creation of new rural lots will be by exception and in accordance with Development Control Policy 3.4 Subdivision of rural land, or planned in a strategy or scheme.
Clause 5.2 of SPP 2.5 is concerned with rural land in the Perth metropolitan region. It refers to existing rural land coming under pressure for conversion to urban purposes. The clause then lists three principles which apply to rural land in the metropolitan region. In summary, these are directed to preserving priority agricultural land for that purpose, conversion of land from priority agriculture only if planned or if a matter of State significance, and the use of the land for rural living proposals only to be by exception in planning strategies and schemes.
Clause 5.8 of SPP 2.5 provides as follows:
The introduction of sensitive or incompatible land uses such as additional housing or accommodation in rural areas can compromise rural land uses and effectively sterilise rural land … There is a need to ensure that existing rural land uses are protected and landholders are able to exercise their operational needs effectively and appropriately.
…
Land use conflicts will be managed such that:
a)the introduction of land uses in rural areas that may contain existing potential rural land uses will generally not be supported.
…
c)in the absence of site-specific technical studies, buffer distances will be guided by the Environmental Protection Authority's Guidance Statement No. 3 Guidance for the Assessment of Environmental Factors Separation Distances between Industrial and Sensitive Land Uses.
Clause 6 of SPP 2.5 defines the following terms:
Priority agricultural land land considered to be of State, regional or local significance for food production purposes …
Rural land land identified in an endorsed strategy or zoned for rural or agricultural land use under a local planning scheme or strategy.
Rural living land use that is residential in nature, generally characterised by a grouping of lots generally in the order of 1 to 40 hectares … Rural living is not considered a rural or agricultural land use …
DC 3.4 at clause 1 lists the matters to be considered when determining a subdivision application which include:
•the provisions of a local planning scheme;
•relevant State planning policies and operational policies;
•individual merits of the proposal; and
•existing precedents or other potential precedent the proposal may create.
Clause 2 states that DC 3.4 guides the subdivision of rural land to achieve the five key objectives of SPP 2.5 which are referred to above.
The general policy provisions of DC 3.4 are set out in clause 5 as follows:
(a)the creation of new or smaller lots will be by exception;
(b)proposals will be considered against strategies and schemes;
(c)adequate buffer distances for sensitive and/or incompatible land uses can be achieved; and
(d)proposals will be assessed against relevant State planning policies and/or operational policies.
Clause 6 of DC 3.4 sets out 'exceptional' circumstances under which the Commission would consider rural subdivision. The Tribunal is of the view that the circumstances listed are not directly applicable to the proposed subdivision and the planning merit of the proposal must be determined having regard to relevant policy considerations.
Relevant to the application of policies SPP 2.5 and DC 3.4 is the zoning of the site within the Swan Valley Rural zone under LPS 17. This sets out objectives for land in the Swan Valley but also, at cl 4.2.19(d), refers to the need to ensure the development and use of lands accords with the planning objectives for Area B as specified in the SVP Act. The requirement in SPP 2.5 and DC 3.4 that the development and use of land must have a basis in planning instruments leads to the fact that the Swan Valley has its own Act the SVP Act and Area B, as defined under that Act, has set out particular considerations that relate to use and subdivision.
Proposed subdivision
It is proposed to subdivide the site into a 3.7 hectare northern lot and a 3 hectare southern lot. The northern lot would have frontage of 115.96 metres to West Swan Road and would contain the house with the bed and breakfast accommodation, the existing driveway and the other building improvements on the site.
The southern lot would have frontage of 106.1 metres to West Swan Road and would have only the fenced paddocks and improved pasture in the eastern half of the lot.
The boundary between the proposed lots would run from West Swan Road to the reserve at the rear, initially generally parallel to the side boundaries and then, beyond the improvements, deviating to the northwest so that the rear boundary of the northern lot would be about 84 metres and the southern lot would have a rear boundary of about 168 metres. In his witness statement, the applicant said he hoped to retain the northern lot and existing uses as long as he remains physically able. The southern lot would be sold.
The refusal
The respondent referred the subdivision application to the City of Swan (City) and the SVP Committee. The Commission's refusal is consistent with the reasons these two bodies gave for recommending the application be refused.
The Commission refused the proposed subdivision for the following reasons:
a)The subject land is located within Area B of the [SVP Act] which identifies a recommended minimum lot size of 4 hectares. The proposed lots … are contrary to the objectives of Area B of the [SVP Act].
b)The subject land is located within Area B of the [SVP Act], the main objectives of which are to protect viticultural uses, water for viticulture and horticultural pursuits, and to permit subdivision of land below 4 hectares only where proposed lots are consistent with the objectives of the Act. The proposed subdivision is inconsistent with the objectives of Area B of the [SVP Act].
c)The proposed subdivision does not comply with … DC 3.4 … a provision of State Planning Policy No 1 State Planning Framework, by reason that it would result in the subdivision of rural land, which is not provided for in the current local planning scheme and endorsed local planning strategy or an endorsed local rural strategy.
d)The land is zoned 'Rural' in the Metropolitan Region Scheme and Swan Valley Rural within [LPS 17]. The purpose of intent of this zoning is to preserve the area's current rural use and density of development. Subdivision in the manner proposed would create the potential for the introduction of increased nonrural activity in conflict with the zoning objectives.
e)Approval to the subdivision will create an undesirable precent for the further subdivision of surrounding lots.
Issues
The issues identified by the parties can be summarised as follows:
1)Whether the proposed subdivision would be consistent with the legislative and planning policy framework that applies to the site.
2)Whether approval of the proposed subdivision would create an undesirable precedent for subdivision of land classified as Area B under the SVP Act.
3)The extent to which the Tribunal should rely on the interpretation and application of the relevant planning framework provided for in particular decisions made by the Tribunal on applications for subdivision within the Swan Valley.
4)Whether the subdivision proposal is reasonable in the circumstances of its context in relation to its relative size, soil types and functional use of land.
Discussion
Whether the proposed subdivision would be consistent with the legislative and planning policy framework that applies to the site
SPP 2.5 and DC 3.4 include policy objectives that can be summarised as:
•no ad hoc and unplanned fragmentation of Rural zoned land;
•the preservation and protection of priority agricultural land;
•avoiding land use conflict, particularly where the conflict will have an impact on the capacity of agricultural activity;
•avoiding using rural land for rural living except where specifically planned; and
•protecting rural character and amenity.
The Tribunal does not agree with the statement by Mr Peter Webb, a town planner who was an expert witness for the applicant, who said in the joint statement of the planning witnesses that any change in land use that might result from a subdivision should not be a consideration when assessing a subdivision application. As stated by the Tribunal in Johnston and Western Australian Planning Commission [2013] WASAT 94 (Johnston) at [13]:
… The application is not for development approval; it is an application to subdivide. However, it is an established planning principle that subdivision can be viewed in the context of being a step towards potential development: see SynAusBell Pty Ltd and Western Australian Planning Commission [2006] WASAT 266 at [40] and [41]. It is in this context that the proposed subdivision can be weighed against the relevant planning objectives for Area B at s 8 of the SVP Act as required by objective 9.
The Tribunal does not consider that it would be orderly planning for the City to determine whether any proposed use was consistent with Area B objectives faced with a lot already having been created. By keeping potential future uses of any proposed lots in mind, subdivision can be considered in light of the planning objectives found in SPP 2.5, DC 3.4, LPS 17 and the SVP Act for Area B.
There was no dispute that the SVP Act does not prescribe a specific lot size for Area B. The objectives at s 8 of the SVP Act are directed mostly at proposed development, but objective 9 is a starting point for consideration of the merits of a subdivision proposal. The proposal is to subdivide the site into lots of less than 4 hectares, and so, as required by objective 9, must be assessed against the remaining objectives for Area B.
In respect to objectives 1 and 2 for Area B which are concerned with protecting viticulture, the undisputed evidence of Dr Peter Keating, a soil and crop expert called by the applicant, was that the site has soil not suitable for viticulture, and that the groundwater available to the site is virtually only sufficient for house and domestic garden purposes. The Tribunal does not consider it follows, however, that because a lot is not suitable for vines, subdivision should be allowed as a matter of course. The size and potential use of both the existing and proposed new lots remain a consideration.
The respondent argued, and the Tribunal agrees, that objective 1 also requires consideration of the impact any use of the proposed additional lot might have on the existing viticultural operations immediately opposite the site on the east side of West Swan Road.
The Environmental Protection Authority's guidance document 'Separation Distances Between Industrial and Sensitive Land Uses No 3' (Buffer Guidance Statement No 3) referred to in clause 5.8 of SPP 2.5, lists the generic buffer distance between sensitive land uses and operating vineyards as 500 metres.
The evidence of Mr Jason Gordon, a town planner called by the respondent, was that there were 10 lots within 500 metres of the site which either contain viticultural activities or have soils recognised as suitable for viticulture. Four of these lots were less than 200 metres from the site. This then brings into question whether it is appropriate to create an additional lot which would most likely contain a dwelling and potentially a commercial use that may cause conflict with the use of neighbouring lots for vines.
Dr Keating said there might be some question about the future of vines because of diminishing water supply and quality, and management practices. The Tribunal noted these comments, but considers it appropriate to proceed on the basis that lots east of West Swan Road are suitable for, and a number of lots are developed as, vineyards. Protection of this use is a key planning objective for Area B.
Dr Keating said that the impact of neighbouring land uses on each other would not be influenced by where the lot boundary was located. It was the distance between potentially incompatible activities that had to be considered.
It was the applicant's position that the 500 metre buffer could be reduced because of limited impact from chemicals, dust, noise and light. This could be supplemented by having a building envelope on the proposed southern lot set back about 150 metres from the road, and by the introduction of vegetation screening any use from the lots suitable for vineyards.
Mr Gordon said that buffers in the Buffer Guidance Statement No 3 are appropriately measured from the boundaries of the site because any activity could be conducted up to the boundaries. He said there had not been a site specific technical study, as referred to in clause 5.8(c) of SPP 2.5, to demonstrate that it would be appropriate to reduce the 500 metre buffer. In Mr Gordon's opinion, it was not sufficient to dismiss as a consideration any future conflict of use issues just because a future owner of the proposed lots would be aware there were vines in the locality.
The Tribunal is concerned that any additional lot must be considered as a development site for residential use, and also potentially a development that would have workers and visitors. By requiring any future use that was to attract people to be restricted to the setback from West Swan Road suggested by the applicant with the revegetation proposed brings into question the merit of creating an additional lot in Area B.
This leads on to discussion of objectives 3 and 4 for Area B under s 8 of the SVP Act. As listed above, these two objectives, respectively, encourage tourist facilities, provided they do not detract from rural character or traditional activities of the Swan Valley, and industries associated with viticulture and horticulture, or cottage industry, again provided they are compatible with the rural character of the area.
The applicant's submission was that it is simply a subdivision being applied for and the lot created would provide an opportunity for the uses listed in objectives 3 and 4, but that is a matter best left to the SVP Committee and the City. It was also said that certain tourist uses are more dependent on location, parking and landscaping than lot size. As stated above, the Tribunal considers that potential future use is a consideration when additional lots are proposed in Area B.
The parties looked at some length at what they respectively considered to be the rural character of the area. Each party interpreted photographs of land uses in this locality, some of which are identified above, and the existing subdivision pattern to support their respective submissions. There was general agreement the frontage of proposed lots would be similar to the existing lots in the immediate locality.
The Tribunal notes the rural character of the locality comprises agricultural activity, mostly east of West Swan Road, tourist uses, and some rural residential use on smaller lots.
The site currently supports rural activity associated with horses and a bed and breakfast use for tourists. The applicant commented that the horse uses, at a lesser scale, could be carried out on the proposed southern lot. There is currently no infrastructure to support horse activity on the southern lot. Comment was also made about some crops that might be produced, but Dr Keating said the investment would be considerable, such as grow tunnels or green houses, to make such activity viable.
The Tribunal is concerned that creating the proposed lots of less than 4 hectares would require duplication of facilities or similar, currently found on the existing 6.7 hectares. This would be necessary if the new lot is not to simply be created as a rural residential lot, a use directed to Area A and Area C under the SVP Act.
The submissions made were for a building envelope to be some 150 metres from the road and screening vegetation. The Tribunal has formed the view that, in the face of concerns about finding a use for an additional lot consistent with the objectives for Area B, there must be reluctance to support the creation of an additional lot.
This same conclusion is also drawn from consideration of the proposed subdivision and its potential use relative to objectives 6 and 7 of the planning objectives for Area B.
Objective 5, 5A and 8 are not relevant, and in respect to objective 10, for Area B, the evidence was that the horsebased activities that the applicant previously carried out would have to be reduced, and that the proposed lots could not be used to the same extent for horsebased activity previously conducted on the site if vegetation and soils were not to be affected.
The Tribunal has formed the view that to create two lots would not be consistent with achieving the planning objectives for Area B of the SVP Act.
Whether the approval of the proposed subdivision would create an undesirable precedent for the subdivision of land classified as Area B under the SVP Act
Both parties were aware of Nichols and Western Australian Planning Commission [2005] WASAT 40 (Nichols) which, at [73], sets out when precedent is a relevant consideration in a planning assessment, namely:
(1)That the proposed development or subdivision is not in itself unobjectionable; and
(2)There is more than a mere chance or possibility that there may be later undistinguishable applications.
The Tribunal considers the applicant has relevantly pointed out that the proposed subdivision would not set an undesirable precedent if consideration is given only to lot sizes to the west side of West Swan Road, west of the site, and between lots fronting Gardiner Drive and about 2 kilometres to the south.
Of concern to the Tribunal is that a precedent would be set for the subdivision of lots of poorer soils in Area B. The fact of poorer soil alone is not a basis for subdivision. There is also potentially an objectionable element to the proposed subdivision, in that creating an additional lot increases the potential for additional sensitive development within 500 metres of operating vineyards.
The extent to which the Tribunal should rely on the interpretation and application of the relevant planning framework provided for in particular decisions made by the Tribunal on applications for subdivision within the Swan Valley
In its statement of issues, facts and contentions, the respondent listed six decisions issued by the Tribunal between 2006 and 2013 made in respect of applications to subdivide land within Area B of the Swan Valley. The respondent listed reasons why it considered these decisions were relevant, and the list included:
•Lot sizes of less than 4 hectares were proposed.
•The planning framework referred to at the time of each of the decisions was, in all material respects, analogous to the planning framework currently in force, albeit with some amendments having recently been made to SPP 2.5 and DC 3.4.
The respondent said that the views expressed by the Tribunal in those decisions demonstrate the principles that should be applied to the proposed subdivision; that is, the relevant objectives of the planning framework were upheld and the subdivisions were refused.
The applicant provided comment on each of the six listed cases. The applicant's conclusion was:
In all of the circumstances of these decisions, whilst the same planning framework has been used to determine those, it is contended that the way in which the decisions were made were based on fundamentally different issues. The proposed subdivision on the review site has completely different merits.
In DownsStoney and Western Australian Planning Commission [2008] WASAT 178 at [62] and continuing at [64] to [66], the Tribunal, as presently constituted, made the following comment which it considers relevant in this current instance:
Consistency in decision-making is an important planning principle and even with the recent gazettal of LPS 17 there has been no material change in the planning controls applicable in this part of the Swan Valley since the gazettal of the SVP Act in 1995.
…
Decisions of the Commission have resulted in reviews by the Tribunal. The respondent cited Mirco and Western Australian Planning Commission [2006] WASAT 165 and Nurmi and Western Australian Planning Commission [2006] WASAT 241 as examples to be followed. These had been refused because the proposed subdivisions of one lot into two in each instance were considered to be in conflict with the objectives of the zoning, the objectives of the SVP Act, Area B and DC 3.4 as well as being inconsistent with the prevailing lot size. The Tribunal dismissed the applications.
The applicant referred specifically to [Katich & Anor and Western Australian Planning Commission] [2007] WASAT 72] in which the Tribunal supported the amalgamation of two viticultural lots and the excision of a house for a family member in Area B …
Whilst the Tribunal considers the decisions cited are instructive in explaining the approach of each of the parties in this matter, it is inclined to the observation of Mr Fairfoul that they are distinguishable from the proposed subdivision on the facts and so are not to be given determinative weight in the deliberations. The decisions assist in identifying planning principles, but importantly it is the particular circumstances of each that determined the outcome.
The fifth decision cited by the respondent, Johnston, came later than the decisions listed above. It is appropriate to note at this point that, since the matters listed were determined, DC 3.4 no longer includes a reference to the prevailing lot size pattern in the area, and SPP 2.5 no longer includes the site as priority agricultural land. The Tribunal is of the view that the principle illustrated by the cases cited is that the individual merit of the proposed subdivision is to be considered having regard to its context but, importantly, any proposal must also be measured against the planning controls specific to Area B of the SVP Act.
This leads to considering the proposed subdivision in light of the items listed by the applicant in issue 4.
Whether the subdivision proposal is reasonable in the circumstances of its context in relation to its size, soil types and functional use of land
Dealing first with size, cadastral plans show the site is the largest lot in the immediate locality. The two proposed lots would generally be larger than lots immediately around the site west of West Swan Road, but smaller than lots further north and many lots east of the road.
Objective 9 for Area B in the SVP Act requires more than consideration of the lot size pattern if lots are to be less than 4 hectares. The existing lot size pattern within Area B, west of West Swan Road, reflects poorly on the respondent's earlier application of the SVP Act objectives. There appears to have been little consideration for the boundary between Area B and Area A, in which there is reference to rural activity being compatible with rural residential use. The Tribunal considers it important to keep in mind that the SVP Act clearly sets out different objectives for Area B. The Tribunal has formed the view that it would not be appropriate to support subdivision because there is sufficient concern, as discussed above, about the impact of an additional lot on maintaining the objectives for Area B. Half the site being surplus to requirements for current use is not, of itself, a basis for subdivision.
The Tribunal acknowledges that the site is bounded by lots smaller than proposed, but it is of the opinion that isolating the lot and its immediate neighbours from the consideration of the planning objectives for Area B cannot be supported. This is particularly so when the cadastral plan shows that arguments similar to those now put forward might be made for extending the area of lots less than 4 hectares from this 'core' of smaller lots.
The suitability of the soil for viticulture is not accepted as a reason to subdivide. Area B clearly includes areas of soil suitable for viticulture and areas of unsuitable soil; it might be said even individual lots have differing soil types. It is not the soil type that is determinative of suitability for subdivision but the location of the site within Area B, where the objectives are not consistent with creating rural living or lots with the potential for conflict with objectives for Area B. If the new lots have the potential to adversely impact on the viticulture and rural character of Area B then any subdivision proposal must be treated with caution.
The Tribunal has formed the view that, on balance, the context of the lot does not outweigh the policy objectives for Area B and in that respect the proposed subdivision would not be appropriate.
Conclusion
The Tribunal has concluded that the proposed subdivision would be inconsistent with sufficient key objectives for Area B to warrant refusal.
In respect to precedent, on a narrow view, the subdivision would not be a concern, but in respect to consideration of lot size and use in Area B, the Tribunal has concluded that an undesirable precedent would be set.
As to guidance on how to consider this matter, the Tribunal found that consistent with the approach in other cases, the appropriate course was to look at the proposal in light of its individual characteristics but in the context of the planning objectives for Area B.
Finally, the Tribunal further concluded that the size, soil type and functional use of the proposed lots was not sufficient to support departure from objectives for Area B.
Orders
The Tribunal makes the following order:
1.The application for review is dismissed.
I certify that this and the preceding [69] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J JORDAN, MEMBER
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