Schofield and Western Australian Planning Commission - [2012] WASAT 135

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] WASAT 135
Decision Date: 12 APRIL 2012

CaseChat Overview and Summary

In the case of Schofield and Western Australian Planning Commission, the applicants sought a review of a decision made by the Western Australian Planning Commission. The applicants wished to amalgamate their rural land holdings into larger parcels for potential future subdivision. The Commission refused the application, citing concerns about the potential for irregular and non-compliant future subdivisions, which could undermine orderly and proper planning principles. The applicants contested the decision, arguing that the refusal did not align with existing and pending planning frameworks and was overly restrictive.

The legal issues the court needed to address included whether the proposed subdivision was consistent with the existing and pending planning framework, particularly in relation to the protection of agricultural land. The applicants argued that the refusal set an undesirable precedent and would result in the ad hoc fragmentation of rural land. The court also had to consider the implications of the refusal on coded rural land and the potential for minimising land use conflicts. Furthermore, the court needed to assess whether the land capability assessments had resulted in a change in settlement patterns that warranted the refusal.

The court concluded that the proposed subdivision did not align with the existing and pending planning framework, which aimed to protect agricultural land as a resource. The court found that the refusal was necessary to prevent irregular and non-compliant future subdivisions that could undermine orderly and proper planning principles. The court also emphasised the importance of minimising land use conflicts and protecting agricultural land as a resource. The court determined that the refusal was justified to avoid the ad hoc fragmentation of rural land and to maintain the integrity of the planning framework.

The court ordered that the decision of the Western Australian Planning Commission be upheld, and the applicants' application for the amalgamation of their rural land holdings into larger parcels for potential future subdivision be refused. The court's decision aimed to protect agricultural land as a resource and ensure that the planning framework was followed to maintain orderly and proper planning principles.

Orders