SHARP and WESTERN AUSTRALIAN PLANNING COMMISSION
[2010] WASAT 12
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)
CITATION: SHARP and WESTERN AUSTRALIAN PLANNING COMMISSION [2010] WASAT 12
MEMBER: MR P McNAB (MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 27 JANUARY 2010
FILE NO/S: DR 253 of 2009
BETWEEN: TREVOR SHARP
JENNIFER SHARP
ApplicantsAND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Town planning Subdivision of land Rural land Agricultural zoning Land in 'Development Investigation Area' Proposed lots to be 'superlots' Whether proposal contrary to planning framework Proposal inconsistent with objectives of the Town Planning Scheme Proposal inconsistent with Busselton Urban Growth Strategy Proposal inconsistent with Local Rural Planning Strategy Proposal consistent with Shire's Development Guide Plan (DGP) Rezoning refused by Minister DGP refused approval by Western Australian Planning Commission (WAPC) Status of Shire's 'Business Plan' Whether structure planning for future urban development jeopardised Smaller lot lacking direct physical frontage to public road Whether carriageway easement a sufficient substitute Route of Busselton outer bypass yet to be determined Whether unplanned or ad hoc break up of agricultural land Whether approval would be inconsistent with orderly and proper planning Whether an ad hoc decision or de facto zone change by Tribunal Role of precedent Decision following other Tribunal decisions Decision on merits should not ignore policy or precedents Tribunal not a statutory planning or land management authority Tribunal holding that subdivision approval would subvert the planning framework Application for review dismissed
Legislation:
Shire of Busselton Town Planning Scheme No 20, cl 25, cl 25(1), cl 25(2)
Result:
Application for review dismissed
Category: B
Representation:
Counsel:
Applicants: Mr S Hall (Representative)
Respondent: Mr F Scibilia (Representative)
Solicitors:
Applicants: Planning South West Pty Ltd
Respondent: Western Australian Planning Commission
Case(s) referred to in decision(s):
Bojanich and Western Australian Planning Commission [2006] WASAT 315
Hawkins v Western Australian Planning Commission [2004] WATPAT 16
Hawkins v Western Australian Planning Commission [2004] WATPAT 46
Madeo v Western Australian Planning Commission [2008] WASAT 281
Maher & Anor v Western Australian Planning Commission [2006] WASAT 129
Smith v the Western Australian Planning Commission [2007] WASAT 261
Waddell and Western Australian Planning Commission [2007] WASAT 82
Werner v Shire of Nannup [2007] WASAT 148
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The applicants, Mr and Mrs Sharp, were the owners of certain land in Ambergate, located near the town of Busselton. The land was zoned Agricultural, but was located in a Development Investigation Area.
The owners proposed subdividing their land into two 'superlots', which would apparently conform to local expectations of rural residential development reflected, so they thought, in the Shire of Busselton's approval of a Development Guide Plan. A rezoning of the land had, however, been refused by the Minister, and the Development Guide Plan had been refused approval by the Western Australian Planning Commission, the respondent in these proceedings.
The Western Australian Planning Commission's position was that the proposal was inconsistent with a number of Tribunal decisions and particular components of the planning framework, including the Shire of Busselton Town Planning Scheme No 20, the Shire of Busselton Local Rural Planning Strategy and the Shire of Busselton Urban Growth Strategy (2006). The Western Australian Planning Commission submitted that approval for subdivision could prejudice structure planning for future urban development and the selection of the route of the Busselton outer bypass, which was yet to be determined.
Further, the smaller of the two lots lacked direct physical frontage to the public road network. The Western Australian Planning Commission would not accept a carriageway easement as a sufficient substitute. A further concern arose as to whether a subdivision would lead to the unplanned or ad hoc break up of agricultural land.
The Tribunal accepted the arguments of the respondent, holding that orderly and proper planning would be jeopardised by approval for subdivision at this point in time. The proposed subdivision would be clearly inconsistent with the evident aims and goals of the planning framework.
The application for review was therefore dismissed.
The subject land and the background to the proposed subdivision
The subject land, Lot 2322, is located in Ambergate, south of the Busselton townsite. The land is currently zoned Agricultural. The owners of Lot 2322, Mr and Mrs Sharp (applicants), propose a subdivision of that land on the basis, according to the Western Australian Planning Commission (respondent), 'that the subject land is in the process of being rezoned for special residential/rural living subdivision'. The proposed lot sizes, if a subdivision were to be approved, and the formal identification of the subject land are set out in more detail below.
The respondent has refused the proposal for subdivision, and the applicants seek a review of that decision in this Tribunal.
The following related matters of background, not in any real dispute, are asserted by the respondent:
1. On 25 May 2007, the [a]pplicants sought approval from the [r]espondent to subdivide Lot 2322 Chapman Hill Road, Busselton ('the subject land') into two 'super lots' of 41.4677 ha and 1.56 ha for rural residential purposes (the 'proposed subdivision').
2.The subject land was the subject of a proposed rezoning from agriculture to special residential/rural living by virtue of Amendment No. 119 of Town Planning Scheme No. 20 ('Amendment No. 119').
3.On 12 November 2007, the proposed subdivision application was deferred until the gazettal [approval] of Amendment No. 119.
4.On 30 October 2008, the Minister for Planning refused Amendment No. 119 due to a number of outstanding land use planning, road planning (Busselton Outer Bypass Road) and land suitability issues. The Shire of Busselton was notified of the refusal on 3 November 2008.
5.On 25 May 2009[,] the [r]espondent refused the proposed subdivision application[.]
6.On 17 July 2009, the [r]espondent refused to endorse the Development Guide Plan in relation to Amendment No. 119, which proposed a mix of special residential and rural-residential lots, on the basis that the land is not appropriately zoned and is inconsistent with the Shire of Busselton Urban Growth Strategy (adopted by the [r]espondent in 2006) …
With minor exceptions (and these are differences of what are mainly emphasis or argument), the applicants broadly accept the following statement of facts provided by the respondent, taken from its statement of issues, facts and contentions filed in the Tribunal:
12.The subject land is located in Ambergate South, approximately 6 km south of Busselton town. The subject land consists of a dwelling and outbuildings, which are to be contained in the proposed 1.5 ha lot, and the balance consists of grazing land which is largely contained in the 41 ha lot. The land is generally flat with little slope.
13.The subject land has frontage to Harmony Drive. The proposed 1.56 ha lot does not have direct frontage access onto a public road reserve.
14.The subject land is separated from Chapman Road by approximately 20 metres and access is secured via an easement over Sussex Location 1611 (i.e. Ambergate Heights). The Ambergate Heights Structure Plan makes no provision for continued road access from Chapman Road to the subject land over the easement route.
15.The land immediately to the west, north and east of the subject land consists of agricultural land (grazing). The land to the south of the subject land consists of a special residential, rural residential and agricultural production lots (i.e. Ambergate Heights). The area further to the south, west and east of the subject land is rural, while the land to the north is largely rural with one rural-residential area. Further to the north consists of the 470 ha Ambergate North Structure Plan area, which is identified as a shortterm urban expansion area, but is undeveloped to date.
16.The subject land is zoned 'Agriculture' under the [Shire of Busselton Town Planning Scheme No 20].
17.Under the [Shire of Busselton Local Rural Planning Strategy,] the subject land is designated as 'Precinct 1 Primary Rural'.
18.The subject land has been identified as 'Urban' for longterm future settlement expansion under the [Shire of Busselton Urban Growth Strategy (2006)].
19.The subject land lies within the vicinity of one of the proposed Busselton Outer Bypass … routes, pursuant to the then Department of Planning and Infrastructure's Map of the Busselton Bypass Options, which have yet to be determined.
Respondent's reasons for refusal
The respondent's formal reasons for its refusal of the proposed subdivision, dated 25 May 2009, were as follows:
(a)The proposed subdivision is inconsistent with the 'Agriculture' zoning of the land, the principal purpose of which is to preserve broadacre subdivision. The subdivision, if permitted, would result in an unplanned breakdown of land holdings, contrary to the Scheme policy for the area.
(b)The proposal does not comply with the [Shire of Busselton Local Rural Planning Strategy] in that the proposed lot sizes are not suitable for sustainable agricultural use. In this regard, the lots proposed by the application do not achieve the 30 ha minimum arable area requirement for intensive agricultural pursuits (40 ha being required for broad[]acre farming pursuits) and the requirement for a suitable amount of water being available for this minimum area.
(c)The proposal does not comply with the policies and objectives of [State Planning Policy No 2.5 Agricultural and Rural Land Use Planning] which seek to prevent ad hoc fragmentation of rural land.
(d)The proposal does not comply with [Development Control Policy - Subdivision of Rural Land (DC 3.4)] which requires that in the absence of the planned provision for closer settlement and more intensive agricultural uses, existing large rural lots be retained for broad[]acre and traditional forms of farming and that the fragmentation of rural land and loss of rural character through piecemeal, unplanned subdivision not be permitted.
(e)The subject land forms part of an area which, is designated for long[]term future urban residential growth. However this growth is not contemplated at present and requires prior rezoning and structure planning to adequately provide for such urban growth.
(f)The proposed subdivision does not comply with Section 3.6.1 of [Development Control Policy 1.1 Subdivision of Land General Principles (DC 1.1)], a provision of Statement of Planning Policy No. 8 (State Planning Framework Policy) which requires all new lots to have frontage to a constructed road.
The planning framework
The case was argued by reference to, and the Tribunal has had regard to, the following instruments and documents and particular provisions thereof, as identified below:
•Shire of Busselton Town Planning Scheme No 20 (TPS 20), Agriculture zoning, objectives and policies, and cl 25 (dealing with Development Investigation Areas and Development Guide Plans);
•Shire of Busselton's Business Plan for the disposal of certain lots at Ambergate, 2008;
•Development Control Policy 1.1 Subdivision of Land General Principles (DC 1.1) cl 3.7 (dealing with 'direct frontage' access);
•Development Guide Plan for certain Sussex locations, endorsed by the Shire of Busselton in 2003;
•Busselton Urban Growth Strategy, endorsed as a strategy plan in 2006;
•Shire of Busselton's Local Rural Planning Strategy, 2006 and schedule of modifications;
•State Planning Policy No 2.5 Agricultural and Rural Land Use Planning; and
•Development Control Policy 3.4 Subdivision of Rural Land (DC 3.4).
There are, as we have seen, no essential differences between the parties as to the factual substratum of this review. Hence, it is convenient to turn directly to the parties' respective differences concerning the interpretation and application of the various instruments referred to above which make up the planning framework, and to the Tribunal's views upon those differences of opinion. I commence with the question of the impact of the current zoning of the subject land.
Current zoning
Although it is common ground that the subject land is in a Development Investigation Area (DIA), its underlying zoning remains Agriculture. So far as is relevant, cl 25 of TPS 20 provides as follows:
25.DEVELOPMENT INVESTIGATION AREA & DEVELOPMENT GUIDE PLANS
(1)The purpose of identifying land on the Scheme Map as being within a Development Investigation Area is to enable the planned and progressive use and development of the land for other purposes in a manner and at a time appropriate to the orderly and proper planning and development of the land, the locality and the District.
(2)Subject to SubClause (9) [which is not relevant to this proceeding], where land is identified on the Scheme Map as being within a Development Investigation Area, the Council shall require the rezoning of the land consistent with the proposed uses and the preparation of a comprehensive Development Guide Plan for the land and the endorsement of the Plan by it and the WA Planning Commission prior to approving any subdivision or development of the land.
…
As a first step, on ordinary planning principles, that zoning's policies and objectives should significantly influence decisions made as regards subdivision and other development. The respondent submits that the 'policies and objectives applicable to the "Agriculture" zone do not support a 1.5 ha lot as is proposed'. And, as the respondent's written case further points out, cl 25(2) of TPS 20 'require[s] that land with a DIA designation be rezoned consistent[ly] with its intended purpose prior to subdivision being approved' (emphasis added), and such rezoning has not been approved. In fact, it has now been formally refused.
The applicants' case, however, essentially appears to rely upon general assertions of consistency with the 'current settlement pattern in the area' and the lack of any jeopardy as regards '[any] structure planning for future urban development'.
In the Tribunal's view, the 'choice' between a zoning classification and matters of limitation directly related thereto, as against general assertions predicting, for example, a lack of jeopardy on a final outcome, leads inexorably, in a planning context, to a position favouring the former. This conclusion is an illustration of the application of the principle of orderly and proper planning.
I turn to the other differences between the parties as regards the other instruments which make up the planning framework. As will be seen, the most relevant instruments have a coherence and integration which tend to support the respondent's case.
Shire of Busselton's Business Plan (Business Plan)
On the status to be afforded to the Shire of Busselton's Business Plan (Business Plan), the respondent argues that the Business Plan 'is not a policy adopted under [TPS 20] and [that the plan] does not appear to be a policy prepared for planning purposes'. Further, the Business Plan 'is not a policy that the respondent must give regard to under the State Planning Framework Policy (Variation No. 2)' and, therefore, 'has no influence on the subdivision and land use planning process'.
The applicant appears not to be contesting the respondent's position, but submits that the plan is nevertheless a 'useful' instrument in that 'it provides insight and guidance as to the preferred pattern of settlement and offers an expectation of development, to prospective purchasers within a reasonable timeframe'.
In the Tribunal's view, the applicant's concession is more or less a complete answer to the respondent's point: the Business Plan cannot carry much, if any, weight in light of the specific zoning controls and matters related thereto already discussed to this point: see also the discussion below on the Busselton Urban Growth Strategy.
Direct access to public roads
Next, there are the provisions of DC 1.1 regulating new lot access. The respondent submits:
Clause 3.7 of [DC 1.1] requires that each new lot [must have] 'direct frontage access to a constructed public road, which is connected to the road system of the locality'. The carriageway easement [to be created in this case] does not provide the 1.5 ha lot with direct physical frontage to a road reserve but rather indirect access to Chapman Hill Road and as such does not satisfy section 3.7 of DC 1.1.
The respondent relies upon Hawkins v Western Australian Planning Commission [2004] WATPAT 16 (Hawkins), where the previous Tribunal without, it should be said, much in the way of reasoning, referred to the policy identified above, applied it and 'identifie[d] the lack of appropriate legal access to the two smaller lots [in a proposed subdivision] as being a fatal objection to approval of the plan of subdivision': the decision as characterised in Hawkins v Western Australian Planning Commission [2004] WATPAT 46 (review by the President, Mr P McGowan, affirming the original decision).
The applicants submit that this case should not be 'considered [as] applicable', and cite instead Werner v Shire of Nannup [2007] WASAT 148 (Werner) where, according to the applicants:
[I]t was demonstrated that a Right of Carriageway [registered on the title] did constitute legal access[;] however[,] there [was always] the need to consider the original purpose of the carriageway and whether a change in land use [say, by development] remain[ed] consistent with the original purpose of the [R]ight of [C]arriageway.
[As the] Right of Carriageway created [here is for] access to one allotment, approval will not exacerbate this purpose and thus [the result] remains consistent with findings of Werner v Shire of Nannup [2007] WASAT 148.
The central problem with applying Werner is that it was a case about development approval not subdivision approval. The review was, in any event, dismissed, although there are general observations in that case by Member Jordan that could be read, perhaps, as suggesting easement access to tourism development, in certain circumstances, might be permissible, notwithstanding a policy calling for such development 'to be sited upon a lot having frontage to a gazetted road'. However, Member Jordan did not consider Hawkins, and there is nothing to suggest that he was intending to cast any doubt upon that case with respect to subdivision standards.
The applicants do not seem to be contesting the suitability of the policy goal of suitable access for lots, but appear to be suggesting that the goal can be achieved in some cases by indirect access. Here, the Tribunal prefers to apply the policy directly as it was applied in Hawkins. No reason of any substance has been put forward as to why, on subdivision approval, a regularly applied policy of maintaining direct access to public roads should be departed from. In such circumstances, to depart from the standard thus created by the respondent's policy as applied by both it and any reviewing tribunal would be, with respect to those holding the opposite view, to subvert notions of orderly and proper planning.
Development Guide Plan (DGP)
As regards the Development Guide Plan (DGP), the respondent agrees with the applicants that the proposed plan of subdivision 'is consistent with the DGP', being an instrument that had been previously endorsed by the Shire of Busselton. But the respondent submits that, as the respondent subsequently refused the DGP, 'it does not have any formal status within the statutory planning framework'. Nevertheless, the applicants submit that:
Whilst [this position is] correct in fact, consent by the Shire of Busselton [to the DGP] demonstrates a support to the pattern of settlement and appropriateness in regard to the timing of development.
Further, the applicants say:
Similar to the Business Plan, the DGP is a useful document in that it provides insight and guidance as to the preferred pattern of settlement and offers an expectation of development within a reasonable timeframe.
Again, in the Tribunal's view, and for similar reasons to those already given, the respondent's position should be preferred on this point. A vetoed DGP cannot carry much, if any, weight in the planning framework in the circumstances that we are currently considering.
Shire of Busselton Urban Growth Strategy (BUGS)
The Shire of Busselton Urban Growth Strategy(2006) (BUGS) is centrally relied upon by the respondent. The applicants criticise the reliance on the currency of this instrument given the date of its review (2006, reviewing an instrument dated 1999), and, in any event, because of its apparent failure to reflect other development:
[The respondent] states that BUGS has been reviewed. A period of 7 years for endorsement, with minimal if any modifications to BUGS from that endorsed by the Shire of Busselton is not considered a review. Any reasonable review during that period should have resulted in modifications addressing the existence of Ambergate Heights [land located nearby to the subject land] and adjusted the timeframes within which subdivision could be considered.
[The respondent relies upon] the argument [in BUGS] of 'land identified for subdivision within a short to medium timeframe' being developed prior to this site. A departure from this policy statement has already occurred within the Ambergate vicinity, via the development of Ambergate Heights. Further, the [current] proposal is not for urban expansion, the [a]pplication is for the excision of an existing dwelling only.
The respondent makes, I think, four main points in response to the applicants' criticisms:
[1]BUGS was reviewed and endorsed by the [r]espondent in 2006. The currency of the BUGS is demonstrated by the fact that land within the vicinity of the subject land, and identified for release prior to the subject land (within a short to medium timeframe) has not yet been the subject of a subdivision application.
[2] … BUGS does not provide for rural residential subdivision or any other form of more intensive subdivision unless the land is properly zoned and comprehensively planned by way of district-level and local structure plans, which will be prepared at a time which accords with that envisaged by the BUGS. As the subject land is identified in a long[-]term timeframe[,] there is no need for land use and lot size criteria to be investigated in the short[]term time frame through the rezoning and structure planning process.
[3]The 'future use' designation under BUGS requires that the subject land not be contemplated for subdivision until a future point in time, which is notionally identified as being 15 to 25 years into the future, but in any case, no sooner than a point in time which falls after land identified for subdivision within a short to medium time frame, has been developed. Accordingly, given the considerable time lag for urban uses to take place on the land, it is appropriate to have regard to the subject land's existing Agricultural zoning, and [to] apply the [r]espondent's policies pertaining to rural and agricultural land to the subject land.
[4][The applicants assert that] the proposed subdivision is not ad hoc. The respondent's view is that the proposal is ad hoc on the basis that it does not conform with the intended time frame for subdivision within the subject locality as required by the BUGS.
In the Tribunal's view, BUGS is an endorsed policy dealing in general with subdivision and related matters and which, in planning terms, is of recent provenance. The policy is consistent with the tenor of the respondent's main case which relates to the need to promote orderly and proper planning for this particular area, which includes the subject land. And, central to this notion is the need to avoid ad hoc subdivisions which might prejudice wider planning considerations which are yet to be finalised. Ambergate Heights is therefore largely irrelevant to the specific future mapped out for the subject land by BUGS in the context of any proposed subdivision.
Again, no cogent reasons have been put forward by the applicants which would disentitle that policy from the weight that it should be afforded on this review. BUGS supports the respondent's case and it should carry significant weight in the review process.
Shire of Busselton's Local Rural Planning Strategy (LRPS)
The applicants refer to the attempts by the Shire of Busselton to modify this policy in connection with its consideration of the DGP and otherwise to its status as 'merely' a policy which can be disregarded if a proposal is otherwise justified on its planning merits.
The respondent submits that it has endorsed the LRPS which, it submits, in that form, 'clearly identifies that the subject land is located within Precinct 1, whereby the objective is to retain land for agricultural purposes'. The respondent goes on to submit that '[i]ssues pertaining to the way in which [the Shire of Busselton] has dealt with the LRPS are not matters which ought to be dealt with in this forum'.
The Tribunal agrees with the respondent's submissions. Again, no cogent reasons have been put forward by the applicants which would disentitle that policy from the significance it should be ordinarily afforded in a review. The LRPS supports the respondent's case and, like BUGS, it should carry weight in the review process.
The findings that I have made to date indicate clearly the strength of the respondent's case, when the relevant planning instruments discussed above are correctly understood in their context and applied, having regard to general principles. Even without regard to some of the respondent's other more general policies on the subdivision of rural land, there is, I think, sufficient material to date to indicate refusal of the applicants' proposal.
This position is, however, strengthened when one has regard to the additional questions of the prejudice to the selection of the Busselton Outer Bypass route and to the need to avoid fragmentation of rural land.
Busselton outer bypass
The respondent submits as follows:
[The applicants assert] that the excision of the existing dwelling on a separate lot' ... will not prejudice the design of the Busselton Outer Bypass ... and the need to preserve the existing and anticipated urban development for the locality'. This view is contrary to the broad planning principles of Section 3.1.1 of the Respondent's Policy DC 1.1, on the basis that proposals should be consistent with the long[]term planning goals of [the] locality, and[,] in this case[,] it is the BUGS [see, cl 3.3.3] which requires the bypass road option selection process to be completed prior to the determination of any rezoning amendment, structure planning and subdivision. Any further subdivision of land on the general path of selected Outer Bypass Road route will result in increased costs for land acquisition, site preparation and road construction, due to the presence of more dwellings and other structures, which will need to be removed. The cost to implement noise attenuation and landscaped visual screening measures will also be greater if the surrounding land is subdivided for more intensive and sensitive development in the vicinity of the selected bypass route.
Importantly, the bypass route has not yet been determined. Notwithstanding this fact, the applicants submit in reply as follows:
[The respondent] states that [the] BUGS 'requires the bypass road option selection process to be completed prior to the determination of any rezoning amendment, structure planning and subdivision'. This statement is at odds with the Shire [of Busselton]'s and [the respondent's] endorsement to development within Ambergate Heights and the North Ambergate Structure Plan. The approval of both again demonstrates that [the] BUGS is no longer relevant and has been largely ignored as a substantial planning instrument.
[The respondent's concern] that subdivision 'will result in increased costs for land acquisition, site preparation and road construction, due to the presence of more dwellings and other structures, which will need to be removed' is considered to overlook the physical attributes of the locality. Should these concerns be widely held by the [r]espondent[,] then alignments other than through this land would be a more obvious alignment[,] regardless of this [a]pplication [for subdivision].
An alignment through this land is also considered unlikely[,] given the potential impact such a roadway would have on residents within Ambergate Heights. That subdivision was designed and approved with no buffers or screen planting and includes north-south road links connecting with the [subject] land. The [applicants contest] that use of the subject land for rural residential development, not a bypass, is considered a principal reason as to why the impost of such conditions did not eventuate.
Other comments by the [r]espondent … such as: 'The cost to implement noise attenuation and landscaped visual screening measures will also be greater if the surrounding land is subdivided for more intensive and sensitive development in the vicinity of the selected bypass route', [have] no relevance[,] as it appears to relate to the further development of the residual rural lot, which is not proposed by this [a]pplication.
This review is not concerned with other areas of Ambergate, which have been planned and implemented in their own orderly way. At the date of this review, so far as the subject land is concerned, the bypass is in very close proximity to the subject land as concerns one of the five options ('Option yellow') shown on the plan specially produced by the respondent for the purposes of the review. This fact is not challenged by the applicants, apart from speculation about the likely route.
In my view, no subdivision should take place until this matter is more or less finalised: the relevant instruments require that position; general principle would suggest the same outcome.
Loss of rural land?
The applicants submit that subdivision approval 'would [neither] jeopardise the continuation of proper and orderly planning providing for further urban subdivision' nor would it result in the loss of rural land. In response, the respondent submits that:
The fragmentation of rural land will create opportunities for multiple land ownership, with a strong likelihood [of] each owner having different ambitions and timeframes for subdivision[,] and it relies on private agreements to be reached for subdivision to be co-ordinated in a timely manner. By contrast, the staging and timing of subdivision on a single broad[]acre lot, such as the subject land, for future urban subdivision does not involve the same difficulties.
The 1.5 ha lot fragments the subject land and increases the constraints on the 40 ha lot insofar as reducing land areas which are suitable for agricultural activity and for the provision of buffers. The agricultural buffers are necessary to mitigate the nuisance effects of farming. In any event, the applicant has not demonstrated that the proposed 40 ha lot, as well as the 1.5 ha lot, can be sustainably farmed.
It is trite to observe that a long line of cases in the Tribunal have upheld the long-established policies of successive governments which are generally opposed to the unplanned or ad hoc break up of agricultural land, whether in terms of the protection, regulation and management of a resource, or because of the need to plan adequately for the consequences of such closer settlement. There is no cogent case for departing from that position in the present review, especially where, as here, it is demonstrated that a number of planning issues are being worked through in a methodical and structured way according to recognised precepts of planning practice.
That process would be, in my view, prejudiced by the proposed subdivision at this time.
Precedent: differences on planning cases
Finally, there is the question of the application of previous decisions of the Tribunal where their issues mirror the circumstances of this review. These decisions are Maher & Anor v Western Australian Planning Commission [2006] WASAT 129 and Madeo v Western Australian Planning Commission [2008] WASAT 281. The respondent's submissions on these authorities are as follows:
In [Maher], the applicants sought approval for a subdivision of a lot zoned 'rural' into two smaller lots. The subject land was identified as 'possible future urban deferred' under draft planning proposals. The Tribunal dismissed the application finding that:
'there was a presumption against subdivision of rural zoned land in the planning controls in place. There had been recognition of the pressures for urbanisation of the locality and planning studies had commenced to address this. The proposed subdivision could not be supported; however, because it had not yet been decided what form of development was appropriate for the locality and there was not in place any statutory controls and structure planning for there to be orderly subdivision.'
In [Madeo] the Tribunal dismissed an application for subdivision of a lot zoned 'rural' into two smaller lots. The subject land was identified in a local government strategy as 'future urban deferred'. The Tribunal …
'did not accept that the possible long-term planning objectives for the land warranted exercise of a subdivision approval now. Such an approach would disregard the need for comprehensive planning to allow for changes of land use and closer settlement under the auspices of properly prepared strategies, and appropriate amendments to the local planning scheme.'
Like the circumstances noted in Maher and Madeo, the subject land and its surrounding land requires substantial further comprehensive planning …
In reply, the applicants submit as follows:
Points of difference [as to these cases] are, [as] the pattern of settlement has been determined by the BUGS and [the] Business Plan, approval will not result in a diminished agricultural capacity of the land and no additional buffers or land management controls are required.
In determining this [a]pplication a more relevant consideration would be Smith and Anor v the Western Australian Planning Commission [2007] WASAT 261, as it clearly demonstrate[s] that [the] planning framework is only one factor for consideration and that:
'The situation cannot arise that a policy or strategy, no matter how cogent or refined, can be the basis for the enquiry to end and the appeal determined. Every strategy is entitled to a different weight in deliberations, depending on its certitude ...' (Morrissey v State Planning Commission (1994) 11 SR (WA) 35 [cited in Smith and Anor v the Western Australian Planning Commission [2007] WASAT 261, at [69]].)
Furthermore[,] in Smith and Anor v the Western Australian Planning Commission [2007] WASAT 261, the [T]ribunal was not persuaded on the need for overall planning or rezoning as a prerequisite for subdivision and approval would not prejudice orderly planning of the area.
On the face of it, both Maher and Madeo are consistent with the conclusions already reached in this matter above. They make the same point as is made above, which is essentially to do with support for the principle of orderly and proper planning: see, also, my own decision of Waddell and Western Australian Planning Commission [2007] WASAT 82, where I observed, at [76] [77], that:
[To] accede to the applicant's argument, however beneficial to the applicant, superficially desirable and apparently rational it appears to be, would nevertheless be ad hoc and de facto rezoning on the part of this Tribunal, action that would, in effect, ignore the state of the policy framework referred to above. As was noted in Bojanich and Western Australian Planning Commission [[2006] WASAT 315] at [67], this Tribunal is not the designated policy-maker or regulatory body for such decisions. These decisions and related action, if they are to take place at all, must originate within the corridors of power where responsibility has been assigned for them under our structure of government. In this case[,] they do not include the Tribunal. Further, it is not the Tribunal's role to give de facto endorsement or legitimacy to provisional or transitional indications of change on the ground unless … there are exceptional circumstances justifying it.
And, any suggestion that this Tribunal[,] in its deliberations when it is required to pay appropriate attention to both governmental policy and the 'merits of the particular case'[,] is at liberty to undertake this primary role of land management under the guise of the consideration of the merits of the case, with respect, fundamentally misconceives the role of the Tribunal, underplays the weight to be given to the extensive, detailed policy in this area and ignores a long line of court and Tribunal decisions to the contrary …
In the Tribunal's view, no relevant 'pattern of settlement' has yet been determined with respect to the subject land; that process is taking place now and it ought not to be anticipated, prejudiced or predetermined outside of the planning framework outlined above by ad hoc decisions of this Tribunal.
In Smith v the Western Australian Planning Commission [2007] WASAT 261, cited by the applicants, Senior Sessional Member Hunt allowed the review, saying, at [74]:
The respondent provided only general concerns regarding planning and infrastructure matters and the Tribunal is not persuaded that approval of this subdivision would prejudice the future orderly planning of the area.
The Tribunal regarded the relevant area 'as being Rural Residential and that this proposal would give rise to one additional dwelling only'. That case lacked the history and context of this review, and it could not be said here that only 'general concerns' were advanced by the respondent. Moreover, the Tribunal here is satisfied that the 'future orderly planning of the area' would be prejudiced if the subdivision were to be permitted.
It is unnecessary, in the light of these cases and the Tribunal's earlier discussion, to refer directly to the respondent's general internal policies (parts of which have already been mentioned above) which seek to significantly regulate the subdivision of rural land.
Conclusions
The conclusions of the Tribunal may be shortly stated. The respondent has been consistent both in its design of and its application of the planning framework so far as the subject land is concerned. The proposed subdivision should not be approved, as it would be inconsistent with the evident aims and goals of that framework. In particular, the respondent has made out its case's central arguments that the subject land 'is located in a predominantly rural environment and is [currently] zoned as such' and that the 'proposal is clearly not in accordance with the timeframe envisaged by' BUGS. There is no case made out for departure from the aims and goals of the planning framework.
Moreover, as has been mentioned from time to time above, the applicants' proposal, if acceded to, would weaken the principle of orderly and proper planning as applied to the subject land and its relevant precinct. Such 'proper planning' requires the applicants to wait until the planning outcomes are known and provided for, as is envisaged in the various instruments discussed above.
It is no doubt frustrating for the applicants to be faced with refusal when they appear to have some local support for their plans, and given that the process will take some years more to finalise. However, if I may, I adapt the words of my colleague Senior Member Parry, who said in relation to another, albeit unrelated, planning matter in Bojanich and Western Australian Planning Commission [2006] WASAT 315, at [67] (emphasis added):
The Tribunal can certainly understand the applicants' frustration with the slow pace at which strategic planning ... has apparently occurred … However, orderly and proper planning is seldom simply a matter of remedying frustrations.
Orders
For the above reasons, the Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision under review is affirmed.
I certify that this and the preceding [56] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P McNAB, MEMBER
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