Schofield and Western Australian Planning Commission
[2012] WASAT 135
•12 APRIL 2012
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: SCHOFIELD and WESTERN AUSTRALIAN PLANNING COMMISSION [2012] WASAT 135
MEMBER: MR R EASTON (SENIOR SESSIONAL MEMBER)
HEARD: 12 APRIL 2012
DELIVERED : 12 APRIL 2012
PUBLISHED : 2 JULY 2012
FILE NO/S: DR 403 of 2011
BETWEEN: VERNON SCHOFIELD
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Town planning Development Orderly and proper planning Subdivision of rural land Amalgamation of lots Undesirable precedent Whether proposed subdivision consistent with existing and pending planning framework Protection of agricultural land as a resource Ad hoc fragmentation of rural land Coded rural land Minimising land use conflicts Land capability assessments resulting in a change in settlement patterns
Legislation:
Planning and Development Act 2005 (WA), s 251(2)
Shire of Gingin Local Planning Scheme No 9, cl 5.10.6.1
Result:
Application for review dismissed
Decision of respondent affirmed
Category: B
Representation:
Counsel:
Applicant: Mr H Dykstra (Acting as Agent)
Respondent: Ms C Meaghan
Solicitors:
Applicant: Dykstra Planning (Town Planners)
Respondent: State Solicitor's Office
Case(s) referred to in decision(s):
Aspen Pty Ltd v State Planning Commission (Unreported; Appeal No 13 of 1988, 21 October 1988)
Goldin & Anor v Minster for Transport (2002) 121 LGERA 101
Mader and Western Australian Planning Commission [2011] WASAT 41
Marshall v Western Australian Planning Commission (1995) 15 SR (WA) 170
Nicholls and Western Australian Planning Commission (2006) 149 LGERA 117
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The application for review was lodged against a condition of subdivision approval by the Western Australian Planning Commission to allow a two lot subdivision (Lot A and an amalgamated lot comprising proposed Lot B and proposed Lot C) instead of a three lot subdivision sought by the applicant at Lot 1 Cheriton Road, Ginginup. Two of the lots proposed by the applicant, at 151 hectares (Lot A) and 208.87 hectares (Lot B), were west of Cheriton Road, with a third lot, at 28 hectares (Lot C), east of Cheriton Road.
In undertaking this review, the Tribunal had the benefit of an onsite view of the subject land and considered the arguments of the parties, essentially, within the context of the existing and proposed planning framework.
Three principal issues were agreed with the parties, the first two being whether the creation of proposed Lot C would be consistent with the overall planning framework, having regard to the possible loss of agricultural land as a resource and possible land use conflicts, and whether, if the proposal was inconsistent with the overall planning framework, an exemption was available having regard to existing and future traffic movements along Cheriton Road. The third issue related to the question of undesirable precedent.
The Tribunal found that, although the loss of productive agricultural land resulting from the subdivision was small, there was, nevertheless, still a risk, and that there was no compelling planning argument to allow the ad hoc fragmentation of rural land, particularly in the context of existing and anticipated planning controls.
The Tribunal found that there was no exemption available under planning controls to facilitate the creation of Lot C, and that to create Lot C would set an undesirable precedent.
The application for review was therefore dismissed.
The following are the reasons given orally at the hearing and edited in minor respects to add clarity.
Introduction
This matter is an application by Mr Vernon Schofield (applicant) where, under s 251(2) of the Planning and Development Act 2005 (WA), there is a right of review against a condition of subdivision approval made by the Western Australian Planning Commission (WAPC or respondent).
On 2 April 2012, the Tribunal had the benefit of viewing the site and the locality in the company of the parties.
In October 2010, the applicant sought approval to subdivide Lot 1 and Lot 9500 Cheriton Road, Ginginup, approximately 3 kilometres north of Gingin. In January 2011, the respondent deferred the application to enable the applicant to consider the preparation of an amended proposal.
An amended plan was submitted in June 2011 to subdivide Lot 1 Cheriton Road into three lots, described as:
•Lot A 151 hectares;
•Lot B 208.87 hectares; and
•Lot C 28 hectares.
Significantly, Lot A and Lot B were located on the west side of Cheriton Road, and Lot C was the remaining parcel of land wholly located on the east side of Cheriton Road.
The proposal was approved with a condition requiring the amalgamation of Lot B and Lot C.
On 22 November 2011, the applicant lodged an application with the Tribunal seeking to delete the condition requiring the amalgamation.
At a directions hearing on 19 December 2011, the Tribunal made an order inviting the respondent to reconsider the condition in view of additional information to be provided by the applicant.
The applicant provided the additional information in a letter dated 23 January 2012, and on 7 February 2012, the respondent advised the Tribunal and the applicant that it had reconsidered its decision and resolved to retain condition 1 for the following reasons:
1.Cheriton Road is not considered a significant physical division as it is currently a local road with an average daily traffic count of approximately 200 vehicles;
2.The proposed upgrade to Cheriton Road relies on the progression of the Cheriton Country Estate subdivision. The subdivision first received approval in 2004 for 262 lots and to date not a single lot has been created. The current approval expires in April 2012 and a recently submitted application for reapproval is smaller in scale and proposes to create 190 lots. This will potentially generate 1520 vehicle movements per day and this does not categorise Cheriton Road as a significant physical division;
3.Lot 1 Cheriton Road is not identified in [Shire of Gingin Town Planning] Scheme 8 or [Shire of Gingin Local Planning] Scheme 9 for further subdivision;
4.The creation of proposed Lot C is considered fragmentation of rural land and is contrary to SPP 2.5.
The subject land and surrounding locality
The subject land is approximately 3 kilometres north of Gingin and has an area of 388 hectares. The site is traversed by Cheriton Road, with 360 hectares west of Cheriton Road and 28 hectares east of Cheriton Road. The western portion also has a frontage to Sloans Road and an unconstructed road reserve.
The site is undulating and is predominantly cleared of native vegetation, but with scattered trees throughout. The site is currently used for grazing. There are two dwellings, four outbuildings and 17 dams on the site. Three of the dams are on Lot C and there are no other improvements on Lot C.
Lot C has a frontage of 1,474.3 metres to Cheriton Road. It has a depth of 136.3 metres at the northern end and a depth of 483.5 metres at the southern end. The eastern boundary abuts Gingin Brook.
The Title included in the applicant's bundle includes some rights to dam and divert Gingin Brook. The frontage to Gingin Brook is approximately 1,335 metres.
Cheriton Road, where it transverses the site, has a 5 metre wide bitumen seal with no line markings. The speed limit is 110 kilometres per hour.
Land surrounding the review site is generally used for grazing and irrigated horticulture.
Between the townsite and the review site, the land is zoned for rural use, although between the town and the review site on the northern edge of the town there is a rural residential estate known as Marchmont Estate.
Significantly, approximately 3 kilometres north of the review site and 6 kilometres north of the town, there is a proposed rural residential development described as Cheriton Country Estate. The land, Lot 81 and Lot 83 Cheriton Road, has been rezoned for rural residential. An application to subdivide Lot 81 and Lot 83 Cheriton Road to create 262 lots was approved by the respondent on 15 April 2008. The approval expires on 16 April 2012. To date, no lots have been created as a result of the approval.
However, on 20 December 2011, an application was made to the respondent to subdivide Lot 81 Cheriton Road only, to create 190 lots. The application is still being assessed by the respondent. Although no lots have been created, there has been noticeable site works. The works on part of proposed Lot 1, possibly relating to a proposed stage 1, include hard sealed internal roads, drainage, underground power and fencing.
Planning framework
In the early submissions to the Tribunal, there was some debate about the relevance of the draft documents: the Shire of Gingin Local Planning Scheme No 9; the Shire of Gingin Local Planning Strategy; Draft Reviewed State Planning Policy 2.5; and Revised WAPC Policy DC 3.4. The applicant, in his expert witness statement and in the hearing, agreed that these documents were seriouslyentertained documents and were relevant to the review.
Therefore, the parties and the Tribunal agree the following planning documents are relevant to the determination of this review:
•The Shire of Gingin Town Planning Scheme No 8 (TPS 8);
•The Shire of Gingin Local Planning Scheme No 9 (LPS 9);
•The Shire of Gingin Local Planning Strategy (Strategy);
•State Planning Policy 2.5 Agricultural and Rural Land Use Planning (SPP 2.5);
•Draft Reviewed State Planning Policy 2.5 Land Use Planning in Rural Areas (SPP 2.5 (2012));
•WAPC Policy DC 3.4 Subdivision of Rural Land (DC 3.4); and
•Revised WAPC Policy DC 3.4 Subdivision of Rural Land (DC 3.4 (2012))
Issues
The parties submitted a list of six issues, with the first issue subdivided into five parts and with the parties offering different versions of the wording on their proposed issues and subissues. Without limiting the issues raised by the parties, the Tribunal was of the opinion, and informed the parties at the beginning of the hearing, that the matter could be resolved by consideration of three key issues. After discussion with the parties, the following issues were agreed:
1)whether the proposed creation of Lot C is consistent with the planning framework, having regard to the possible loss of productive agricultural land as a resource and possible land use conflicts;
2)if the proposal is inconsistent with the planning framework, whether an exemption is available through DC 3.4, having regard to existing and future traffic movements on Cheriton Road; and
3)whether the proposal would create an undesirable precedent for further subdivision of nearby rural land.
I will deal with each of the issues in turn and now proceed to the first issue.
Issue 1: whether the proposed creation of Lot C is consistent with the planning framework, having regard to the possible loss of productive agricultural land as a resource and possible land use conflicts
There appeared to be general agreement between the parties that the relevant underlying purpose of the overall planning framework was the protection of agricultural land as a resource. Although proposed Lot C is currently being used for grazing, neither party submitted any evidence relating to the land use capabilities of Lot C. In general, it was agreed by both parties that the proposed lot was capable of being used as an agricultural resource. The respondent's major concern was possible land use conflicts.
Respondent's case
Ms Kelsie Lewis, a planner employed by the respondent, appeared as a witness for the respondent. The respondent argued that the creation of Lot C would be contrary to the requirements and intent of the existing planning framework and the pending planning framework. During the hearing, it was accepted that the modified DC 3.4 (DC 3.4 (2012)) was now the active policy. It was also accepted that the Strategy, LPS 9 and SPP 2.5 (2012) had all been endorsed by the respondent and were awaiting final approval from the Minister for Planning.
A reading of the witness statement by Ms Lewis and the respondent's statement of issues, facts and contentions, together with their bundle of documents, indicated that the policy changes by the respondent were subtle. During the hearing, the significance of the policy changes by the respondent became apparent.
The respondent argued that the focus was now on settlement patterns in rural zoned areas and protecting rural land from incompatible uses by requiring comprehensive planning and minimising land use conflict. This appeared to be a shift away from the focus on the protection of productive agricultural land as a resource.
However, it became apparent that the focus on protection still existed as a fundamental objective.
One of the objectives of SPP 2.5 (2012), as stated in the respondent's amended statement of issues, facts and contentions, is:
(a)To protect rural land from incompatible uses by:
…
(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.
The respondent argued that one of the reasons for the change in policy approach related to problems associated with the agricultural focus, where subdivisions were being supported on the basis of land capability assessments resulting in a change in settlement patterns and a rise in land use conflicts.
This opinion is supported in cl 5.1 of SPP 2.5 (2012), where it is stated that:
… It is the view of the WAPC that there is an existing supply of suitably sized rural lots to cater for intensive and emerging primary production land uses. 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 therefore:
…
(d)The use of rural land for intensive or emerging primary production land uses does not warrant creation of new or smaller rural lots on an unplanned, ad hoc basis.
The respondent noted that this position has been reinforced in DC 3.4 (2012) by removing existing lot size patterns as a basis for supporting subdivision, and by increasing the standards to be met for exemptions.
With specific reference to this review, the respondent referred to cl 3 of DC 3.4 (2012), where cl 3.1 states:
It is WAPC Policy that the subdivision of rural and agricultural land for closer settlement (ruralresidential and ruralsmallholdings) and more intensive agricultural uses should be properly planned through the preparation of regional and local planning strategies and provided for in local planning schemes prior to subdivision.
These revised policies are not inconsistent with the existing TPS 8, where Ms Lewis observed:
… the objective of the rural zone is to provide for a range of … rural activities and protect such land from inappropriate uses. The creation of Lot C would establish a dwelling entitlement and Lot C could be developed for Rural Living. In my opinion, this is inappropriate and could increase the potential for land use conflict which the respondent's planning policy framework seeks to avoid.
The respondent then argued that the revised policy framework is reflected in the Strategy and LPS 9, which are both in the final stages of adoption. The respondent stated it was significant that, as a result of the strategy, LPS 9 has recognised that approximately 20% of rural zoned land, especially near river systems, is suitable for subdivision.
LPS 9 has two classes of general rural land: coded and uncoded. The various levels of general rural coded land identify minimum lot sizes. Clause 5.10.6.1 of LPS 9 states that 'lot sizes in the general rural zone shall comply with the following standards', where a table is presented that sets out minimum lot size for each code as follows:
GR 10 minimum lot size 10 Hectares
GR 20[minimum lot size] 20 Hectares
GR 30[minimum lot size] 30 Hectares
GR 40[minimum lot size 40 Hectares[.]
There is a strong presumption against unplanned fragmentation of general rural land unless it is coded. The minimum lot size for uncoded general rural land is not specified. However, it includes the following statement for uncoded general rural land:
… further subdivision will not be supported unless it meets the exceptional circumstance requirements for subdivision under WAPC Development Control Policy 3.4.
The Tribunal will deal with this aspect of the planning framework later in these reasons.
Ms Lewis further argued that:
Objective 4.2.7(d) for the General Rural Zone 'provides for the operation and development of existing, future and potential land uses by limiting the introduction of sensitive land uses in the General Rural Zone'. It is my opinion that the creation of Lot C conflicts with this objective by introducing an incompatible land use.
Applicant's case
The applicant argued that the proposal is not inconsistent with the planning framework; will not result in the loss of productive agricultural land; will not cause any land use conflicts; is not ad hoc planning because the subdivision is contemplated by both the Strategy and LPS 9; and the creation of Lot C is supported by TPS 8 and the Shire of Gingin.
Mr David Maiorana appeared as an expert planner for the applicant. He submitted extensive arguments that the land would continue to be used for productive agriculture if the subdivision proceeded. He argued that the lot size and shape were not conducive for a rural living style lot because of the need for constant land management. He observed that subdivision may increase productivity because the lot would be suitable for intensive agriculture such as irrigated horticulture. It would be inconsistent with standard farming practices for a farmer carrying out broadacre farming to farm a small portion of the farm for intensive agriculture. Furthermore, the increased capital available from the sale of Lot C would enable further capital investment in Lot A and Lot B, increasing the productivity on those lots.
The applicant argued that the current use of Lot C was very labour intensive and places an unnecessary financial burden on the owner when transferring stock across Cheriton Road.
Mr Maiorana acknowledged the potential for a new dwelling to be built on Lot C, but argued that land use conflicts between the dwelling and rural activities on adjoining lots were highly unlikely, due to the shape and location of the lot. The lot has two long boundaries to Cheriton Road and Gingin Brook, which provide natural buffers. For similar reasons, he argued that any new dwelling would not have an adverse impact on the rural character of the area.
Finally, by reference to LPS 9 and the Strategy, Mr Maiorana argued that the proposal is consistent with both documents because they anticipate and provide for small rural lots along Moore River and Gingin Brook waterways. Clause 4.2 of the Strategy states:
Establish a coding mechanism under the rural zoning of the Town Planning Scheme which:
(a)Recognises the predominant lot size categories of existing rural small holdings generally flanking both river systems within the Shire;
(b)Provides for limited subdivision of these existing rural small holdings areas, in a planned manner that is gradual and frontal;
…
(d)Provides for rural lot sizes that graduate generally from smaller to larger at the interface with the broad acre rural agricultural land.
During the hearing, Mr Mariorana acknowledged that the coding system adopted in the Scheme (LPS 9) did not include the applicant's property. However, he argued that that was a result of the convenience of mapping, in that only a small number of lots north of the town would have been coded. In all other respects, the proposed lot is consistent with cl 4.2(a), cl 4.2(b) and cl 4.2(d) of the Strategy. The proposed lot would be indistinguishable from other small rural holdings along the river systems, and provides a suitable interface between smaller lots near the town and the larger rural lots to the north.
Findings
The Tribunal does not completely accept the respondent's argument that the proposed subdivision will result in the creation of a lifestyle lot with a resultant risk of land use conflicts. The reason for the qualified position is because of the lack of convincing evidence, and also because the planning framework supports (albeit in other locations) similar lots along the two river systems. It follows from this, supported from evidence from the respondent acknowledging the agricultural potential of the land, that the new lot will not necessarily result in the loss of productive agricultural land.
However, the balance of evidence did not lead the Tribunal to support the subdivision on this issue because, although the risk of land use conflicts and the risk of potential loss of productive agricultural land are small risks, they remain as risks that would be contrary to the current and pending planning framework.
Another reason, which by itself is sufficient to find against the subdivision, is that approval of this particular subdivision would be ad hoc planning, especially because the respondent and the Shire of Gingin are about to complete a comprehensive planning process through the adoption of the Strategy and LPS 9. The Tribunal acknowledges the applicant's argument, that both documents recognise the smaller rural lot potential along the two river systems. The proposed Lot C adjoins one of the river systems and is located in a transition zone from the town to larger rural lots to the north. However, as the respondent argued, almost 20% of rural land has been coded to permit subdivision, but this particular lot and immediate locality were excluded from the coded rural land. The existence of rural residential land to the north of the proposed lots may be one reason for not providing coded land between the townsite and Cheriton Estate. There is a risk that any further small lots between the townsite and Cheriton Estate will contribute to a change of settlement pattern.
Finally, although the applicant has been able to mount some credible arguments that the proposal will not have a negative outcome, there is no planning reason to support a change with no obvious positive outcomes in planning terms to balance the small risk of negative outcomes. The applicant argued that it is more cost effective for the applicant not to have to cross Cheriton Road, but the applicant's own evidence is that this crossing takes place two to three times per week. There is no evidence to suggest that subdivision is necessary to ensure the continued use of proposed Lot C as productive agricultural land.
Therefore, although the Tribunal finds that land use conflicts, or the loss of productive agricultural land resulting from the subdivision, are small risks, nevertheless, the risks remain. Furthermore, there is no compelling planning argument to overcome the underlying principles of the planning framework that provide protection against ad hoc fragmentation of rural land. It would be inconsistent with orderly and proper planning to treat this land as if it were coded rural land when LPS 9, which is about to be adopted, specifically excluded proposed Lot C and the surrounding locality from the coded rural land.
Issue 2: if the proposal is inconsistent with the planning framework, whether an exemption is available through DC 3.4 (2012), having regard to existing and future traffic movements on Cheriton Road
It was accepted by both parties that DC 3.4 ( 2012) provides for exemptions that permit subdivisions in some circumstances that would otherwise not be supported.
It is significant that, just before the hearing, the revised version of DC 3.4 had been adopted by the respondent, although the announcement of that adoption was to be delayed until an announcement was made on revised SPP 2.5. This was expected in mid April 2012. The minor uncertainty about which version of DC 3.4 was operative at the time of the hearing is mostly irrelevant, because the revised DC 3.4 would be given serious weight. Even with that weight, it remains a policy and not a set of inflexible rules.
The respondent argued that DC 3.4 (2012) is consistent with the revisions to SPP 2.5, and reflects a tightening of the planning framework against subdivision. One example given was the removal of the prevailing lot size pattern as a ground to support subdivision. To support the argument that the presumption is against subdivision, the respondent referred to cl 4 of DC 3.4 (2012) that states:
… 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 respondent also referred to cl 5 of DC 3.4 (2012) which states, in part:
… when determining subdivision proposals on rural land … the creation of new or smaller lots will be by exception.
The respondent then referred to cl 6 of DC 3.4 (2012), which sets out the circumstances where the subdivision of rural land may be considered. The circumstance relevant to this particular application is cl 6.1, which states, in part:
… the existing physical division of a lot by a significant natural or constructed feature may be formalised through subdivision. However, the physical division in itself does not warrant the creation of additional or smaller lots. A significant physical subdivision would include, but not be limited to, a controlled access highway or a river[,] but would not generally include minor barriers such as rural roads or creeks that are commonly crossed for farm management purposes.
Up to this point on this issue, the applicant, in general, agreed with the respondent. The essential difference between the parties is whether Cheriton Road is a significant physical division.
Ms Lewis argued that Cheriton Road, with a current traffic movement of approximately 200 vehicles per day, is well below a threshold accepted by planning officers at the Department of Planning of 2,500 vehicle movements per day for a road to be considered a significant physical barrier. Ms Lewis stated:
… This number of vehicle movements is considered by Main Roads to render a road unsafe for crossing for farm management purposes and was referred to in Mader and Western Australian Planning Commission [2011] WASAT 41 at [44].
Although the respondent was successful in Mader and Western Australian Planning Commission [2011] WASAT 41 (Mader), the Tribunal had the benefit in that case of an expert traffic witness at [51] [58]. It must be noted that the findings in Mader cannot lead to any conclusion that the Tribunal supports 2,500 vehicles per day as a threshold. In this review, that figure is specifically rejected due to the lack of any supporting evidence. It is useful to know that the respondent will accept 2,500 vehicles per day as a significant barrier but, in this review, lower figures such as 200 vehicles per day are not necessarily rejected since speed, type of vehicles, topography, sight lines, road construction and the nature of the farm movements along or across the road are all relevant factors in determining whether a particular road is a significant barrier.
Ms Lewis argued that low traffic volumes were not the only reason to reject Cheriton Road as a significant barrier. Other factors included acceptable sight lines and the fact that the crossing points were immediately opposite each other and did not require any movement along the road.
Furthermore, countering the applicant's argument on likely increased traffic volumes from the proposed Cheriton Country Estate, Ms Lewis observed that, although the rezoning was completed almost 20 years ago, no lots have been created. The current subdivision application is for a smaller number of lots (190), and it is not clear whether they will proceed or, if they do, whether they will be staged.
The applicant disagreed on the sight lines and argued that speed created potential danger, especially since the crossing point on proposed Lot C is below the level of the road, and stock that are about to cross the road would not be easily visible to motorists.
Mr Mariorana argued that the likely development of the Cheriton Country Estate must be given serious weight. The revised subdivision is for 190 lots and would take place on the part of the estate where infrastructure, including, roads, fences and underground power, already exists. The reduced proposal would generate an additional 1,520 vehicles per day which, by reference to the Shire's minutes, Mr Mariorana argued would require an upgrade to a Type 6 road to cater for 1,000 4,000 vehicles per day, with an 8 9 metre sealed width.
Mr Mariorana stated:
Already the ability to safely and efficiently cross Cheriton Road with stock is impractical and places a financial burden on the landowner. Even a minor increase in traffic numbers along Cheriton Road will make this situation untenable. …
Furthermore, Mr Mariorana referred to a proposed waste management site to be built further north. Whilst he acknowledged that most vehicle movements would be along Wannamal Road to the Brand Highway, he argued there would be an increase in vehicle movements along Cheriton Road to the Gingin townsite.
Findings
If the future circumstances outlined by Mr Mariorana come to pass, it is possible that Cheriton Road will become a significant physical barrier. However, at this stage, even with a 110 kilometre per hour speed limit, there is no reason for the Tribunal to find that Cheriton Road is anything but a typical rural road that is commonly crossed for farming purposes. This finding is supported by the low traffic volumes, the lack of evidence that sight lines are unacceptable and the lack of evidence that the type of traffic on the road is unusual for a rural road.
While the Tribunal accepts that planning should allow for future events, there is reasonable uncertainty about traffic changes in the short to medium term. Even if traffic increases, there is no necessary correlation between traffic increase and the road becoming a physical barrier; for example, traffic speeds may be adjusted.
In view of the history, there is no certainty that the Cheriton Country Estate will proceed in the foreseeable future and, even if it does proceed, it is not clear how many lots will be created and how many lots will be developed and actually generate traffic. If all 190 lots are created in the next few years, and if most of them are developed, it is possible that Cheriton Road could be re-rated as a significant physical barrier.
Similarly, there is uncertainty whether the waste plant and associated road changes will generate a noticeable change in traffic. If the road changes make Cheriton Road a short cut between Brand Highway and the townsite, that change by itself may generate a sufficient change in the volume and type of traffic to re-rate Cheriton Road as a significant barrier.
A combination of both factors may result in a re-rating, but this may depend on how Cheriton Road is treated, the extent of road upgrading and any change to speed limits.
At this stage, on the evidence available to the Tribunal, there is no reason to find that Cheriton Road is a significant physical barrier, or that Cheriton Road is likely to become a significant physical barrier in the next few years.
Therefore, the Tribunal finds there is no exemption available under DC 3.4 (2012) to facilitate that creation of Lot C on the basis of a significant physical division.
Bearing in mind the previous findings, it is now appropriate to consider the issue of precedence.
Precedence
Precedent was considered by the Tribunal in an analysis of authorities, including Aspen Pty Ltd v State Planning Commission (Unreported; Appeal No 13 of 1988, 21 October 1988), Marshall v Western Australian Planning Commission (1995) 15 SR (WA) 170, and in Nicholls and Western Australian Planning Commission (2006) 149 LGERA 117 at [71] - [75] (Nicholls). In the Nicholls case, the Tribunal adopted the following criteria as to the circumstances in which precedent is a relevant consideration in a planning assessment from Goldin & Anor v Minster for Transport (2002) 121 LGERA 101 as consistent with Western Australian authority:
(1)That the proposed development or subdivision is not in itself unobjectionable; and
(2)That there is more than a mere chance or possibility that there may be later undistinguishable applications.
For precedent to be a relevant factor, both tests must be satisfied.
In this instance, for reasons discussed earlier, the proposed subdivision is not unobjectionable and therefore the first test for precedent is satisfied.
Furthermore, it is quite clear that, within the locality of the review site and, further away, on the fringe of the Gingin townsite, there are similar lots subdivided by the same or similar roads.
Therefore, the Tribunal finds that the second test for a precedent has been satisfied because there is more than a mere chance or possibility that there may be later undistinguishable applications. Hence, the Tribunal finds that approval of the proposed subdivision would set an undesirable precedent.
Orders
For the above reasons the Tribunal finds that the application for review has been unsuccessful and issues the following orders.
1.The application for review is dismissed.
2.The decision of the respondent to impose condition 1 is affirmed.
I certify that this and the preceding [84] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR R EASTON, SENIOR SESSIONAL MEMBER
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