SCHMIDT and WESTERN AUSTRALIAN PLANNING COMMISSION
[2007] WASAT 147
•13 JUNE 2007
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: SCHMIDT and WESTERN AUSTRALIAN PLANNING COMMISSION [2007] WASAT 147
MEMBER: MR B HUNT (SENIOR SESSIONAL MEMBER)
HEARD: 16 MAY 2007
DELIVERED : 13 JUNE 2007
FILE NO/S: DR 65 of 2007
BETWEEN: MS SUSAN ELIZABETH MARGARET SCHMIDT
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Town planning – Rural subdivision – Subdivision application to divide land into two lots – Approval by local government contrary to its own draft Local Planning Strategy – Precedent
Legislation:
Planning and Development Act 2005 (WA)
Shire of York Town Planning Scheme No 2
Result:
The application for review is allowed
The subdivision approval is granted subject to conditions
Category: B
Representation:
Counsel:
Applicant: Mr A Marsh (Acting as Agent)
Respondent: Mr J Bouwhuis (Acting as Agent)
Solicitors:
Applicant: AJ Marsh Pty Ltd (Surveying & Planning Consultants)
Respondent: State Solicitor's Office
Case(s) referred to in decision(s):
Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522
Knight and Western Australian Planning Commission [2003] WATPAT 6
Squires & Anor and Western Australian Planning Commission [2006] WASAT 144
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
This matter involved an application for review of the refusal of a subdivision application of Lot 25 Quairading ‑ York Road, Kauring, Shire of York into two lots.
The proposed subdivision created lots of 2.0443 hectares and 2.0 hectares with frontage to the Quairading ‑ York Road.
The subject land was zoned "General Agriculture" under the Shire of York Town Planning Scheme No 2 and located in the Kauring Townsite. The townsite comprises 26 lots, with lot sizes ranging from 1.5 hectares to 5.1 hectares.
The townsite was characterised as being more consistent with a "Rural ‑ Residential" area. The relevant planning policies relating to the subdivision of rural land do not support subdivision unless provided for in the Shire of York Town Planning Scheme No 2, Local Rural Strategy or Local Planning Strategy.
Although the subject land was zoned "General Agriculture" under the Shire of York Town Planning Scheme No 2, the Tribunal considered that the proposed subdivision was consistent with the existing subdivisional pattern and would not have an adverse impact on the orderly and proper planning of the locality.
The application for review was allowed subject to conditions.
Introduction
This is an application for the review of a decision of the respondent to refuse an application for the subdivision of Lot 25 Quairading‑York Road, Kauring (the site) into two lots of 2.0443 hectares and 2.0 hectares.
The respondent refused the subdivision application on 30 January 2007 for the following reasons:
1.The proposed subdivision is inconsistent with the "Rural" zoning of the land, the principal purpose of which is to preserve its rural use and density of development. The subdivision, if permitted, would result in an unplanned breakdown of landholdings.
2.The nature of the land is such that it is not considered suitable for closer subdivision and development than that already existing.
3.The proposed subdivision is contrary to the Shire of York draft Local Planning Strategy which specifies that there shall be no further subdivision of the Kauring Townsite and its surrounds.
4.Approval to the subdivision would set an undesirable precedent for the further subdivision of surrounding lots.
The proposed subdivision
The application for the subdivision of the site would create two lots of approximately 2.0 hectares in area. The lots would be rectangular in shape with frontages of 90 metres and 65 metres to the Quairading ‑ York Road and depths of 218 metres ‑ 300 metres.
There is an existing residence on the proposed western lot set back approximately 75 metres from the road.
The site and locality
The Kauring Townsite was gazetted in 1912 and has more than 25 lots ranging in area from 1.5 hectares to 5.1 hectares, in addition to Crown Reserves.
Most of the lots have been developed. There is a delicatessen/café/local store on the north side of the Quairading – York Road. The area is serviced with electricity, telecommunications, rubbish collection, school buses to Beverley, York and Northam primary and high schools. Other facilities are further away, being a local church hall, 2 kilometres to the west, Greenhills Inn, 14 kilometres to the west, and York and Beverley townsites, approximately 30 kilometres to the west and east respectively.
There is no scheme water available to the Kauring Townsite and landowners utilise 92 000 litre storage tanks for rainwater collection. There is a local contractor who delivers water, if required, from a Water Corporation standpipe located 2 kilometres to the west.
The site is well vegetated with trees and shrubs, with open areas. The land falls from the north-east to the south-west with grades of 2% 4%.
The predominant lot size is 2 hectares, with four lots in the townsite being larger than 4 hectares.
The site is bordered by 2 hectare lots to the east and west, the 20 metre Quairading ‑ York Road to the north and open paddocks to the south.
There is substantial vegetation at the southern portion of the site.
Planning framework
The land is zoned "General Agriculture" in the Shire of York Town Planning Scheme No 2 (TPS 2). TPS 2 provides no guidance on lot sizes for land zoned "General Agriculture".
The objectives of this zone are:
(a)to ensure the continuation of broad hectare agriculture as the principal land use in the district encouraging where appropriate the retention and expansion of agricultural activities;
(b)to consider non‑rural uses where they can be shown to be of benefit to the district and not detrimental to the natural resources or the environment;
(c)to allow for facilities for tourists and travellers, and for recreation uses;
(d)to have regard to residential use of adjoining land at the interface of the "General Agriculture" zone with other zones to avoid adverse effects on local amenities.
The Shire of York Local Rural Strategy (2002) (LRS) has been endorsed by the respondent.
The objectives of the LRS are:
•to provide for continuation of environmentally sustainable rural uses;
•to provide for diversification of rural uses;
•to identify an acceptable settlement pattern with potential for rural residential subdivision and development;
•to provide for conservation of heritage places and existing landscape features of environmental significance;
•to provide for the co-ordination and extension of infrastructure and services to meet local needs; and
•to encourage tourism.
In the LRS, a section titled Land Use Strategy – Settlement Strategy considers the six townsites or growth areas in the Shire of York, and in s 7.1.7, addresses specifically the Kauring Townsite.
The recommended strategy in the LRS is:
"The Council accepts the existing subdivided lots will be progressively developed, predominantly for Rural Residential purposes. Further subdivision is not supported now but will be reviewed when a reticulated water supply may be provided, development of existing lots has occurred and development is supported by a land capability and suitability assessment".
The Shire of York has prepared a draft Local Planning Strategy (draft LPS) which has been advertised, adopted and endorsed by the Shire of York and is currently with the respondent for its consideration for final approval.
The draft LPS identifies the Kauring Townsite as Farming. The townsites of Greenhills and Mount Hardey are identified as Rural Townsites.
The draft LPS addresses the Kauring Townsite in cl 6.4.10 which has as the objective:
"Retain and enhance the current rural character and lifestyle"
and strategies:
•"no expansion or further subdivision of the townsite and its immediate surrounds will be supported
•support actions that improve the condition of waterways that pass within or near the townsite."
The respondent has a number of policies that provide a context for decision‑making on land use, subdivision and development in Western Australia. The policies relevant to this matter include:
•Policy No DC 3.4 ‑ Subdivision of Rural land (DC 3.4);
•Statement of Planning Policy No 2.5 ‑ Agriculture and Rural Land Use Planning (SPP 2.5);
•Statement of Planning Policy 3 ‑ Urban Growth and Settlement (SPP 3).
The issues
The following issues arise for determination in this review:
(1)Whether the proposed subdivision is:
(a)consistent with the "General Agriculture" provisions of TPS 2;
(b)consistent with the LRS which provides for a general presumption against small lot subdivision for rural living other than in accordance with a settlement strategy;
(c)consistent with the Draft LRS which provides for no further subdivision within the Kauring Townsite;
(d)consistent with the provisions of the SPP 2.5 and DC 3.4;
(e)consistent with the provisions of SPP 3; and
(2)If the proposed subdivision were approved, what conditions should be applied.
The Tribunal will address the issues 1(a)-1(e) inclusive together in considering the relevance of the "General Agriculture" zoning.
The relevance of the "General Agriculture" zoning and the application of planning policy in the determination of this matter
The respondent contended that there is a State and local planning framework that has been developed to guide decision-making in respect to the subdivision of rural land and that the subdivision application does not comply with these policies.
Mr Jason Bouwhuis, a senior planning officer with the Department for Planning and Infrastructure, gave evidence for the respondent. Mr Bouwhuis acknowledged that the site was situated within the Kauring Townsite, and that there was no evidence of rural activity. He also acknowledged that the majority of the lots in the townsite were developed to some extent and that the prevailing lot size was 2.0 hectares.
Mr Bouwhuis contended that the "General Agriculture" zoning of the site in TPS 2 requires the continuance of broad hectare agriculture as the principal land use. He asserted that an increase in Rural ‑ Residential land use could increase the potential for land use conflict with abutting farms.
Mr Bouwhuis' evidence on the LRS focussed on identifying the site with the Kauring Plains area. The Tribunal considers that cl 7.1.7 is the appropriate reference, and under cross-examination, Mr Bouwhuis agreed; however, he contended that the recommended strategy in cl 7.1.7 of the LRS did not support subdivision.
The draft LPS is considered by Mr Bouwhuis to be a seriouslyentertained planning proposal, and asserted that the identification of the townsite for farming purposes was consistent with the overall emphasis of the LRS and the draft LPS to encourage settlement in the York townsite where significantly more goods and services are available and population growth can be accommodated.
The inconsistencies of the subdivision application with DC 3.4, SPP 2.5 and SPP 3, Mr Bouwhuis contends, follow from the zoning of the land, principally the potential encouragement of land uses unrelated to agriculture and the addition of lots in a townsite with limited services.
Ms Susan Schmidt, an experienced property developer in the wheatbelt region and the owner of the site, gave evidence regarding the general nature of the site and the locality.
She advised that she had recently purchased the property, but had lived in York for 10 years. She considered that the townsite functioned adequately with the available services and that it was socially cohesive.
Mr David Lawn, a part‑time planning officer with the Shire of York, and an experienced and qualified town planner, most recently with the Shire of Chittering, gave evidence on behalf of the applicant.
Mr Lawn began his employment with the Shire of York in January 2007 so was not personally involved in providing advice to the respondent on this matter.
Mr Lawn advised that he had visited the site and agreed with the support that the Shire of York gave to the subdivision and gave the following reasons:
"(1)The land was within the Kauring Townsite.
(2)The proposed lots were consistent with the prevailing lot sizes in the town namely 2 hectares.
(3)The proposed lots were on a landform, which would require no earthworks or interruption to the native vegetation.
(4)The scarcity of available lots with nearly all lots developed or occupied.
(5)Although the land is currently zoned General Agriculture the capacity for the land to be used for agriculture is nil because of its lack of connection to the general farming land uses outside the townsite boundary, and the prohibition of clearing indigenous vegetation (Photographs available for inspection)."
Mr Lawn could not explain why the Kauring Townsite was not zoned "Rural Townsite" in TPS 2 as other remote and less developed localities like Greenhills and Mt Hardey were.
He also could offer no explanation to the fact that the Kauring Townsite is not proposed for Rural Townsite in the draft LPS but did advise that Council was seeking such an amendment.
Mr Lawn not only considered that the subdivision would have no adverse effects on the locality, but also that it would contribute positively to the social strength of the area. He considered Kauring to be a vibrant area exhibiting strong growth.
Mr Alan Marsh, a licensed surveyor experienced in land planning and development matters, gave evidence regarding the establishment of the Kauring Townsite in 1912 and how it had developed over time. He contended it was now 90% developed and that the level of services both at Kauring and in York and Quairading were both adequate and appropriate for the landowners.
Mr Marsh asserted that potable water was available in a secure way, being provided for through the required 92 000 litre rainwater storage tanks or, if required, supplemented from a water supply contractor.
Mr Marsh advised the Tribunal, and Mr Lawn confirmed, that while the site was well vegetated, there were areas available for a building envelope that would not require clearing of vegetation.
Mr Marsh considered that because the proposed subdivision is within the Kauring Townsite, it fell outside the consideration of DC 3.4 and the other policies that the respondent sought to rely on as they were predicated on the rural land not having already been subdivided and developed for Rural ‑ Residential purposes.
Mr Marsh asserted that policies have been followed blindly by the respondent without considering the particular context of the proposal and the relevance of the policies.
The Tribunal recognises the importance of policy in guiding the respondent in making decisions on the subdivision of rural land; however, policies should not be applied so inflexibly that appropriate variance is ignored.
Discussion
In considering a similar situation in the townsite of Torbay in the Shire of Albany, Squires & Anor and Western Australian Planning Commission [2006] WASAT 144, at [23] the Tribunal agreed with a previous finding in Knight and Western Australian Planning Commission [2003] WATPAT 6 at [20] to [23] that as a consequence of the land not being able to be used for primary production, it was not "agricultural land", and therefore the use of that phrase in policies did not apply. This Tribunal holds that same view in this instance.
Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522 established that zoning is not the absolute arbiter of an application for subdivision and that it is the Tribunal's statutory duty to apply sound town planning principles to the substantial merits of each particular case.
The "General Agriculture" zoning of the site in TPS 2 does mean that the respondent's policies and the Shire of York's LRS and draft LPS are relevant considerations.
The respondent, in determining the application, relied solely on the statutory and policy framework and attributed no weight to the circumstances of the locality (lot sizes and land uses) which are not consistent with the "General Agricultural" zone but more akin to a "Rural Living" or "Rural ‑ Residential" type zoning.
The planning instruments of the Shire of York and the response of the Shire of York to this application appear inconsistent and Mr Lawn was unable to provide an explanation.
Mr Marsh, however, in his evidence, asserted that the recommended strategy in cl 7.1.7 of the LRS did anticipate future review when matters such as a reticulated water supply is available, existing lots are developed and land capability assessment is supportive.
He contended that these matters had been met and that the reticulated water condition was now satisfied by a secure water supply.
He further reminded the Tribunal that the Council is seeking to amend the draft LPS to facilitate some further subdivision in the Kauring Townsite.
The proposed subdivision will maintain the settlement pattern of the townsite and on the evidence of Mr Lawn will not have any unmanageable effects on surrounding farming areas.
The absence of a reticulated water supply does not provide a barrier to subdivision, given the area context and the availability of supply through other means.
The Tribunal concludes that in this instance it is appropriate to depart from the current policies.
Conclusion
The Tribunal considers that the merits of this case support departure from the relevant policies relating to the subdivision of rural land. The Tribunal does not consider that the creation of an additional freehold lot will have any adverse impact on the amenity of the area or jeopardise the orderly and proper planning of the locality.
The Tribunal does not consider that approval of the subdivision would set an undesirable precedent, as each case should be treated on its merits and regard given to the particular circumstances of the site.
Conditions
The respondent prepared "without prejudice" draft conditions of approval, which are as follows:
(1)Arrangements being made to the satisfaction of the respondent and to the specification of Western Power for the provision of an underground electricity supply service to the lot(s) shown on the approved plan of subdivision (Western Power).
(2)Any existing overhead electricity consumer service is required to be converted to underground (Western Power).
(3)If an existing aerial electricity cable servicing the land the subject of this approval crosses over a proposed lot boundary as denoted on the approved plan of subdivision, satisfactory arrangements will need to be made for the removal and relocation of that cable (Western Power).
(4)All buildings and effluent disposal systems having the necessary clearance from the new boundaries as required under the relevant legislation (Local Government).
(5)Suitable arrangements being made with the local government for the provision of vehicular crossover(s) to service the lot(s) shown on the approved plan of subdivision in consultation with Main Roads WA (Local Government).
(6)The subdivider of the land shall make arrangements to ensure prospective purchasers of the proposed lots are advised in writing that provision of a reticulated sewerage service will not be available to the lot and that all future dwellings on the lot will need to be connected to on-site effluent disposal system(s) (Local Government).
(7)The subdivider of the land shall make arrangements to ensure prospective purchasers of the proposed lots are advised in writing that provision of a reticulated water service will not be available to the lot and will be required to make their own arrangements to provide an adequate potable water supply (Local Government).
The applicant and the respondent agreed to the following amendments:
(1)The deletion of condition 3;
(2)The amendment of condition 5 to read "suitable arrangements being made with the local government for the provision of a shared vehicular crossover to service the lots shown on the approved plan of subdivision (Local Government)";
(3)The inclusion of conditions:
•All dwellings will be required to be provided with 92 000 litre rainwater tanks (Local Government).
•A prescribed building envelope being established on the eastern lot to avoid the removal of native vegetation (Local Government).
Orders
1.The application for review is allowed.
2.The subdivision application lodged with the Western Australian Planning Commission on 23 October 2006 is approved subject to the following conditions:
(i)Arrangements being made to the satisfaction of the Western Australian Planning Commission and to the specification of Western Power for the provision of an underground electricity supply service to the lot(s) shown on the approved plan of subdivision (Western Power).
(ii)Any existing overhead electricity consumer service is required to be converted to underground (Western Power).
(iii)All buildings and effluent disposal systems having the necessary clearance from the new boundaries as required under the relevant legislation (Local Government).
(iv)Suitable arrangements being made with the local government for the provision of a shared vehicular crossover to service the lots shown on the approved plan of subdivision (Local Government).
(v)The subdivider of the land shall make arrangements to ensure prospective purchasers of the proposed lots are advised in writing that provision of a reticulated sewerage service will not be available to the lot and that all future dwellings on the lot will need to be connected to on-site effluent disposal system(s) (Local Government).
(vi)The subdivider of the land shall make arrangements to ensure prospective purchasers of the proposed lots are advised in writing that provision of a reticulated water service will not be available to the lot and will be required to make their own arrangements to provide an adequate potable water supply (Local Government).
(vii)All dwellings will be required to be provided with 92 000 litre rainwater tanks (Local Government).
(viii)A prescribed building envelope being established on the eastern lot to avoid the removal of native vegetation (Local Government).
I certify that this and the preceding [64] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR B HUNT, SENIOR SESSIONAL MEMBER
0
2
2