Squires and ANOR and Western Australian Planning Commission
[2006] WASAT 144
•2 JUNE 2006
SQUIRES & ANOR and WESTERN AUSTRALIAN PLANNING COMMISSION [2006] WASAT 144
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 144 | |
| TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) | |||
| Case No: | DR:554/2005 | 23 AND 27 FEBRUARY 2006 | |
| Coram: | MS M CONNOR (MEMBER) | 2/06/06 | |
| 25 | Judgment Part: | 1 of 1 | |
| Result: | The application for review is allowed The subdivision approval is granted subject to conditions | ||
| B | |||
| PDF Version |
| Parties: | PAUL REIN SQUIRES JO-ANNE SQUIRES WESTERN AUSTRALIAN PLANNING COMMISSION |
Catchwords: | Town planning Subdivision refusal Subdivision contrary to existing planning framework Relevance of rural zoning Application of planning policy Planning merit Capability of land to accommodate effluent disposal system to meet the requirement of the Draft Country Sewerage Policy Precedent |
Legislation: | Aboriginal Heritage Act 1972 (WA) City of Albany Town Planning Scheme No 3, cl 3.1.13 State Administrative Tribunal Act 2004 (WA), s 29(5)(b), s 82(1) Town Planning and Development Act 1928 (WA), s 20, s 5AA Environmental Protection Act 1986 (WA) |
Case References: | Falc Pty Ltd and Others v State Planning Commission (1991) 5 WAR 522 Knight and Western Australian Planning Commission [2003] WATPAT 6 Nil |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) CITATION : SQUIRES & ANOR and WESTERN AUSTRALIAN PLANNING COMMISSION [2006] WASAT 144 MEMBER : MS M CONNOR (MEMBER) HEARD : 23 AND 27 FEBRUARY 2006 DELIVERED : 2 JUNE 2006 FILE NO/S : DR 554 of 2005 BETWEEN : PAUL REIN SQUIRES
- JO-ANNE SQUIRES
Applicants
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Town planning Subdivision refusal Subdivision contrary to existing planning framework Relevance of rural zoning Application of planning policy Planning merit Capability of land to accommodate effluent disposal system to meet the requirement of the Draft Country Sewerage Policy Precedent
Legislation:
Aboriginal Heritage Act 1972 (WA)
(Page 2)
City of Albany Town Planning Scheme No 3, cl 3.1.13
State Administrative Tribunal Act 2004 (WA), s 29(5)(b), s 82(1)
Town Planning and Development Act 1928 (WA), s 20, s 5AA
Environmental Protection Act 1986 (WA)
Result:
The application for review is allowed
The subdivision approval is granted subject to conditions
Category: B
Representation:
Counsel:
Applicants : Mr C Slarke
Respondent : Ms C Ide
Solicitors:
Applicants : McLeods
Respondent : State Solicitor's Office
Case(s) referred to in decision(s):
Falc Pty Ltd and Others v State Planning Commission (1991) 5 WAR 522
Knight and Western Australian Planning Commission [2003] WATPAT 6
Case(s) also cited:
Nil
(Page 3)
Summary of Tribunal's decision
1 Mr and Mrs Squires applied to the State Administrative Tribunal for review of a decision of the Western Australian Planning Commission refusing approval to subdivide Lot 164 Puls Road, Torbay into two freehold lots of 6.6 hectares and 3.0 hectares.
2 The subject land was zoned "Rural" under the City of Albany Town Planning Scheme No 3 and located in the Torbay townsite. The townsite comprised of 36 lots, with a predominant lot size ranging from 9800 square metres to 2.3 hectares. The townsite was characterised as being more consistent with a "Special Rural" or "Rural Residential" area. The relevant planning policies relating to the subdivision of rural land do not support subdivision unless provided for in the Town Planning Scheme, Local Rural Strategy or Local Planning Strategy.
3 Although the subject land was zoned "Rural" under TPS No 3, the Tribunal was persuaded that the substantial merits of this particular case supported a departure from the relevant policies relating to the subdivision of rural land. The Tribunal considered that the proposed subdivision was consistent with the existing subdivision pattern and land use established in the townsite and that the creation of an additional freehold lot would not have any adverse impact on the amenity of the area or jeopardise the orderly and proper planning of the locality.
4 A further question was raised in relation to the capability of the subject land to accommodating effluent disposal systems that met the 0.5 metres separation requirement from groundwater level, as required under the Draft Country Sewerage Policy. The Tribunal was satisfied that the requirements as specified in Appendix 1 of the Draft Country Sewerage Policy could be achieved. The application for review was allowed subject to conditions.
Introduction
5 Mr Paul Rein Squires and Mrs Jo-Anne Squires (applicants) are the registered proprietors of Lot 164 Puls Road, Torbay (subject land), more particularly described as Lot 164 on Plan 230724 comprised in Certificate of Title Volume 1544 Folio 948. Lot 164 is 9.6 hectares in area and is located in the Torbay townsite on the western side of Puls Road on the corner of Lower Denmark Road.
(Page 4)
6 The applicants made an application to the Western Australian Planning Commission (respondent) on 4 April 2005 for approval to subdivide the subject land to create two lots of 6.6 hectares and 3.0 hectares.
7 The respondent refused the application on 22 July 2005 for the following reasons:
"(1) The subdivision does not comply with General Policy 30 (Criteria for Support for Subdivision of Rural Land) as contained within the City of Albany's Local Rural Strategy by reason that:
(a) The subdivision is not within a rural residential or environmental protection zone;
(b) The subdivision is not for farm consolidation purposes;
(c) The purpose of the subdivision is not to excise an approved intensive agricultural enterprise where it can be shown that the enterprise has been operating in an sustainable and economically viable manner for at least two years; and
(d) The purpose of the subdivision is not to excise an approved tourist or industrial development, or for other uses which would be ancillary to the legitimate rural use of land.
(2) The proposal fails to comply with any of the specific purposes for subdivision or [sic] rural land as contained in the Commission's Rural Land Use Planning Policy DC3.4.
(3) Approval to the subdivision would set an undesirable precedent for the further subdivision of surrounding lots."
The proposal
8 The proposal entails the subdivision of the existing lot to create two freehold lots in a battleaxe configuration. The plan of subdivision identifies the proposed lots as "A" and "B". Lot A is 6.6 hectares in area and has a 281.49 metre frontage to Lower Denmark Road and access to Puls Road via a 1.0 metre wide access leg. Lot B is 3.0 hectares in area
(Page 5)
- and has a 211.43 metre frontage to Puls Road and a 182.92 metre frontage to Lower Denmark Road (see Annexure 1 to this decision).
Planning Framework
State and regional context
9 The respondent has prepared a number of planning documents for the purpose of exercising the power of the respondent under s 20 of the Town Planning and Development Act 1928 (WA) (TPD Act) to approve a plan of subdivision. Statement of Planning Policy No. 1 State Planning Framework Policy (Variation No. 1) (SPP 1) is a policy made under s 5AA of the TPD Act for the purpose of uniting existing State and regional policies, strategies and guidelines within a central framework to provide a context for decision-making on land use, subdivision and development in Western Australia. The policies listed in SPP 1 relevant to this matter include:
· Statement of Planning Policy No. 2.5 Agriculture and Rural Land Use Planning (SPP 2.5);
· Policy No. DC 1.1 Subdivision of Land (DC 1.1); and
· Policy No. DC 3.4 Subdivision of Rural Land (DC 3.4).
10 The respondent also asserted that draft Statement of Planning Policy No 3 Urban Growth and Settlement (SPP 3) was relevant to the determination of this matter as it addresses sustainable communities, new settlements and major town expansions.
Local context
11 The subject land is zoned "Rural" under the City of Albany Town Planning Scheme No 3 (TPS 3 or Scheme).
12 The broad objectives of the "Rural" zone under TPS 3 as contained in cl 3.1.13 of the Scheme are:
a) to ensure that high quality agricultural land is retained for primary production;
b) to regulate uses which might conflict with farming interests, and foster uses which are complementary to such interests; and
c) to preserve rural land within easy reach of urban areas.
(Page 6)
13 The [City] of Albany Local Rural Strategy (1996) (LRS) has been endorsed by the respondent. The intent of the LRS is to identify how the rural areas within the municipality are to be developed and to provide a basis to address planning issues relating to the future development of these areas. It was intended that the LRS would be used as a framework for decision-making.
14 The LRS identifies the broad objective of the "Rural zone" as the retention of high quality agricultural land for primary production, the regulation of uses which may conflict with farming interest and the fostering of uses which are complementary to farming interests. A further objective of the LRS is to identify land which is potentially suitable for rural-residential development (the creation of lots ranging from 2000 square metres to 10 hectares) and land that is not.
15 The LRS contains general policies that relate to the whole of the study area, catchment planning precincts and policy areas. The relevant general policies include Policy No 7 Agricultural Protection/Rural Subdivision and Policy No 10 Rural Townsite Development. The subject land is located within the Torbay Catchment Planning Precinct, however, there is no specific policy statement relating to the Torbay townsite.
Planning Issues
The relevance of the "Rural" zoning and the application of planning policy in the determination this matter
16 The respondent contended that there was a comprehensive planning framework that had been developed, both at the state and local level, to guide decision-making in respect to the subdivision of rural land and that there was no proper planning justification to depart from these policies. Ms Marion Murray, a planning officer employed by Department for Planning and Infrastructure, was called by the respondent to give evidence. Ms Murray acknowledged that the subject land was situated within the townsite of Torbay but did not consider this to be a relevant planning factor as townsites per se did not have any status under current planning legislation. She contended that the existing 36 lots in the townsite were historic and should not be a reason for supporting further unplanned subdivision. Ms Murray further asserted that the approval of the proposed subdivision would set an undesirable precedent for further subdivision of land within the Torbay townsite and other lots zoned "Rural" in the locality.
(Page 7)
17 She characterised the area to be "aesthetically pleasing" and serves a "sort of lifestyle residential type function" and "rural retreat", although she considered the subject land to be lower lying and not quite as appealing as other land in the townsite. Ms Murray considered the "Rural" zoning of the land to be appropriate and that its function "keeps the Torbay townsite as is". In her witness statement she considered the application in context of the relevant policies of respondent, namely SPP 2.5, DC 1.1, DC 3.4 and draft SPP 3. In essence, she contended that:
1. The subject land is not suitable for rural residential purposes as the site fails to meet the relevant land capability requirements relating to drainage ability and suitability for onsite effluent disposal. Clause 3.8 of DC 1.1 states that:
"the WAPC considers that all new lots should be physically capable of development for their intended purpose. Prospective purchasers of such lots should be reasonably assured that the lot is suitable in physical terms for development, and that there is a degree of assurance that the lot will remain."
Accordingly, approval to subdivide would be inconsistent with cl 3.8 of DC 1.1.
2. The location and characteristics of the subject land, such as gravel roads and lack of nearby infrastructure and services, clearly identifies it as "rural" rather than "urban" and therefore the respondent's rural policies apply to the subject land. She asserted that TPS 3 provided none of the controls required for rural settlement as specified in cl 5.3.1 of SPP No 2.5. Further, the Torbay townsite was not serviced by a reticulated water supply and therefore, the proposed subdivision does not meet the requirements for rural residential areas, being the mandatory provision of a reticulated potable water supply (cl 5.3.2 of SPP 2.5).
3. The proposed subdivision is inconsistent with Objectives 2 of DC 3.4 in that encouraging settlement in Torbay by permitting the creation of a small rural lot would be an undesirable planning outcome, which would have the effect ofundermining strategic and statutory planning for the Greater Albany area.
(Page 8)
- 4. The proposed subdivision is inconsistent with Objective 3 of DC 3.4 as the use of the land for rural-residential purposes creates the potential for land use conflict with the adjoining agricultural properties.
5. The subdivision of rural land in the Torbay townsite is not provided for in either TPS 3 or the LRS and therefore contrary to the general presumption, embodied in DC 3.4, against the subdivision of rural land. Further, the specific exemptions contained in cl 3.2 are not applicable in this case
6. In the context of the matters listed in cl 6.1.1 of DC 3.4, the proposed subdivision:
• is likely to impact upon the agriculture use of surrounding lots due to land use conflict between rural-residential and rural uses;
• has low capacity for rural-residential development given its poor drainage qualities, soil type and lack of servicing and infrastructure in the immediate vicinity;
• will increase demand on the limited services that are available within the townsite;
• will result in the clearing of existing vegetation, which is undesirable from an environmental and visual perspective;
• will prejudice future urban expansion as it will encourage development outside of areas where urban expansion is planned and provided for;
• may impact on the aboriginal heritage of the site; and
• is not supported by the City of Albany.
7. The subject land is not identified in the LRS as land suitable for rural-residential development and the proposed subdivision does not meet any of the criteria specified in
- GP 30 or the policy objectives expressed in GP 48 and GP 49 of the LRS.
- 8. The proposed subdivision is inconsistent with the principles set out in cl 5.1 of draft SPP 3 relating to sustainable communities. Rural residential intensification is considered to be undesirable as the townsite lacks services appropriate to residential settlement and further intensification will increase pressure on the local government to service the area.
18 Under cross-examination, Ms Murray conceded that the land uses and lot sizes within the townsite were more consistent with the special rural zoning under the Scheme and that a rural residential typed zoning with appropriate controls in place would be better for this area than the rural zoning which has no controls. Although, she did not support further subdivision within the townsite as further intensification would increase the risk of creating a demand for services.
19 Mr Adrian Nicoll, a planning officer of the City of Albany (City), was called by the respondent to give evidence on the zoning of the subject land, the application of the City's LRS and the planning use or function of the townsite. Mr Nicoll considered the existence of the townsite to be irrelevant in the consideration of this matter as the subject land is zoned "Rural" under TPS 3 and the townsite is not referred to in the Scheme. In his oral evidence, Mr Nicoll attached significant weight to "Rural" zoning of the land and considered it to be a paramount factor in the determination of the application. However, under cross-examination Mr Nicoll accepted that the land in the townsite was generally used for rural lifestyle purposes and that the land use was more consistent with the special rural zoning under TPS 3.
20 The applicants contended that that the respondent had made a number of fundamental errors in the application of its policies and the weight attributed to them. Counsel for the applicants asserted that the first fundamental error was that the policies have been blindly followed without considering the particular context of the proposal and the applicability of the policies.
21 The applicants submitted that the subject land is an anomaly at present, in that it is by far the largest lot in the townsite and that the proposed subdivision would, in effect, fill out or complete the existing subdivision pattern. The applicants contended that little regard was given to those factors by the respondent. The applicants further argued that the
(Page 10)
- policies have little or no application to the proposed subdivision and if they do apply, the proposal does not serve to defeat any of the policies.
22 Mr Nicholas Ayton, a planning consultant called by the applicants to give evidence in these proceeding, considered the proposed subdivision in the context of the relevant policies and contended that the townsite falls largely outside DC 3.4 and the other policies that the respondent sought to rely on, as the policy provisions were predicated on the rural land in question not having already been subdivided and developed for rural living purposes. Torbay has been a designated townsite for over 95 years, and it has for a long time been subdivided and developed for rural residential purposes. He further asserted that TPS 3 has incorrectly zoned the townsite as "Rural" and that the LRS mentions, but fails to address "townsite issues" in any meaningful way.
23 Furthermore, he argued that the purpose Part 7 "Agricultural Protection/Rural Subdivision" of the LRS had was to protect productive agricultural resources and therefore had no real application to the Torbay townsite. He referred the Tribunal to a decision of the former Town Planning Appeal Tribunal, Knight and Western Australian Planning Commission [2003] WATPAT 6, where at [20] to [23] the application of General Policy 30 was considered where rural land did not have the potential to be put to productive use. The Town Planning Appeal Tribunal found that as a consequence of the land not being able to be put to use for primary production, the subject land was not "agricultural land" as the phrase is used in the LRS and that General Policy 30 did not apply in its intent and provisions. This Tribunal agrees with this finding and holds that same view in this instance.
24 Mr Ayton argued that the most relevant policy in the LRS was Part 8 "Rural Residential Subdivision" (Part 8). He acknowledged that the land was not zoned appropriately but submitted that as the subdivision pattern and the use of the land within the townsite reflected rural residential, it was appropriate to apply the objective and General Policy 41 as contained in Part 8.
25 Mr Ayton rejected the respondent's claim that the proposed subdivision would create an undesirable precedent for further subdivision in the Torbay townsite, arguing that the subject land was unique in that it is the last lot of its size in the townsite and that it is inconsistent with the balance of the subdivision pattern. Nor did he consider that the subdivision would, in any way, set an undesirable precedent for land
(Page 11)
- outside the Torbay townsite, as entirely different considerations would arise for such land.
26 In answer to the respondent's claim that the proposed subdivision would conflict with the surrounding agricultural uses, the applicants argued that there was nothing different in this proposal to practically any other rural residential proposal and that there was no evidence to suggest that there would be a problem or that the townsite had experienced similar problems.
27 The second fundamental error claimed by the applicants was that the respondent acted, in effect, as if it was bound by the zoning of the land and accorded inappropriate weight to the zoning of the land in the determination of the application. On this point, the applicants referred the Tribunal to the decision of the Full Court of the Supreme Court in Falc Pty Ltd and Others v State Planning Commission (1991) 5 WAR 522. The applicants contended that Mr Nicoll looked no further than the zoning of the land when he made his recommendation to the respondent and that the zoning of the land was the critical or paramount issue for Ms Murray, which had obscured the real issues relating to the suitability of the subject landin its proper context for subdivision. The applicants contended that the lot sizes and existing land uses were not consistent with the rural zone, which is concerned primarily with the retention of high quality agricultural land but more akin with a rural lifestyle type zoning such as "Special Rural". The applicants also referred to the City of Albany's draft Local Planning Strategy (ALPS) to highlight the current approach being adopted by the City in respect to townsites. The Strategy "promotes the existing rural townsites of Torbay [and others] as primary focal points and settlement centres for rural communities" and also indicates that the community planning scheme will create a new zone called "Rural Townsites" or "Rural Settlement", within which clear land use and development principles and controls will be established. It was acknowledged that this document was not a seriously entertained proposal but considered relevant in that it indicated recognition of townsites by the City and, notwithstanding it draft status, was in fact being applied by the City.
28 The Tribunal recognises the importance and role of policy in guiding the respondent in its decisions on the subdivision of rural land, and to promote rational and consistent decision-making. The Tribunal acknowledges that the comprehensive planning framework that has been formulated in regards to the subdivision of rural land both at the State and local level is soundly based on key principles and objectives to establish
(Page 12)
- future planning direction which provides the context for decision-making. However, policies should not be applied so inflexibly that where a variance may be appropriate it is simply ignored. As pointed out by Nicholson J in Falc Pty Ltd and Others v State Planning Commission, "the function of the Tribunal is to have regard to that policy but to exercise its discretion in relation to it in the light of the evidence in the particular case." Although His Honour was referring to the Tribunal's predecessor, the observation is equally applicable to this Tribunal.
29 Falc Pty Ltd and Others v State Planning Commission also 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.
30 The subject land is zoned "Rural" under TPS 3 and as such, the respondent's policies relating to the subdivision of rural land and policies contained in the City's LRS, are relevant considerations. However, the fact that the subject land is located within the Torbay townsite cannot be ignored. The lots within the townsite had been developed for rural residential purposes and are not capable of sustaining productive agricultural use. These are relevant factors that relate to the land in question. Mr Nichol, in his response to the respondent, elevated the zoning of the land as the determinant factor and failed to consider the substantive planning merits of the case. The respondent in determining the application relied solely on the statutory and policy framework in situ and failed to attribute any weight to the material circumstances surrounding the subject land. Lot sizes and existing land uses within the townsite are not consistent with the rural zone, which is concerned primarily with the retention of high quality agricultural land, but more akin with a rural lifestyle type zoning such as "Special Rural" or "Rural Residential". Therefore, the relevance of the zoning and policies must be weighed against the circumstances of this case.
31 The proposed subdivision will not erode the agriculture base of the municipality, is consistent with the subdivision pattern in the townsite and will maintain the rural residential character of the area. Furthermore, the Tribunal accepts the evidence of Mr Wells that the proposed subdivision will not have any unmanageable effects on surrounding agricultural activities and will have minimal impact on existing services. The inability of the proposed lots to be serviced by reticulated water supply does not provide a barrier to subdivision given the area context. Given the above, the creation of an additional lot within the townsite is not considered to be contrary to the orderly and proper planning of the locality.
(Page 13)
32 Given this position, the Tribunal concludes that in this instance, it is appropriate to depart from the current policies.
Whether the proposed lots have the land capability of accommodating a dwelling with an effluent disposal system that meets the 0.5 metres separation requirement from groundwater under the Draft Country Sewerage Policy?
33 The Draft Country Sewerage Policy (Sewerage Policy) set outs the wastewater disposal requirements of new subdivision and development. Under the Sewerage Policy reticulated sewerage is required for all subdivision or development, except where certain discretionary provisions apply. It was agreed by the parties that the subject land was eligible for exemption from the requirement to connect to reticulated sewer. Appendix 1 of the Sewerage Policy provides the minimum site requirements for on site wastewater disposal and specifies that "[i]rrespective of the type of on-site wastewater disposal system proposed, there should be at least a 0.5 metres separation between the natural ground surface and the highest known groundwater level". The policy further provides that correctly engineered drainage solutions may be used to increase the clearance between the natural surface and the highest known groundwater level, subject to such drainage works being environmental acceptable.
34 The respondent contended that the proposed subdivision was inconsistent with the requirements of Appendix 1 of the Sewerage Policy as the 0.5 metres separation requirement was unlikely to be met by the subject land.
35 To give evidence in respect to this question, the respondent called Mr Gregg Harwood, a senior Environmental Health Officer at the City of Albany. Mr Harwood has been employed as an Environmental Health Officer within local government for the past 18 years and relevantly holds a Diploma of Environmental Health from Bentley TAFE. He has also completed the Department of Environmental Protection authorised officers course at Edith Cowan University and has been appointed as an authorised officer within the City under the Environmental Protection Act 1986 (WA).
36 The applicants called Mr Martin Wells, an Environmental Consultant, to given evidence on the nature and capability of the land to support on site effluent disposal systems. Mr Wells holds a Bachelor of Agricultural Science and has accreditation as a professional soil scientist
(Page 14)
- with the Australian Society of Soil Science Inc. He has considerable experience in land capability assessment and soil analysis.
37 In accordance with standard practice, these experts conferred after they had each exchanged their written evidence, prepared a joint witness statement of matters agreed, matters not agreed and the reasons for any disagreement and gave evidence concurrently. The Tribunal has been greatly assisted by the process.
38 Mr Wells, in his witness statement, provided an aerial photograph of the lot delineating the location of soil description sites and the boundaries of four "land units" (area with common landform and soil conditions) (see Annexure 2 attached to these reasons). This diagram was used by the experts as a basis for agreeing matters. The conferral process resulted in quite a number of matters being agreed between the experts. In order to understand the nature of the lot in respect to the issues of water logging and on site effluent disposal, it is appropriate to set out the matters that were agreed between the experts. These are as follows:
• "The soil and landform conditions within Lot 164 are not uniform.
• The major portion of the property, comprising the central and eastern parts of proposed Lot A and all of proposed Lot B, consists of a plain with humus podzol soils that will be subject to waterlogging in winter or spring. A lesser portion of the property, comprising the western part of proposed Lot A, consists of a gently inclined slope with somewhat better drained brown deep loamy surfaced duplex soils.
• During winter and spring, the watertable levels within the lower lying portions (land units A and B) will be high and prevent the use of conventional septic tank and leach drain systems.
• Within the low-lying area (land units A and B) the only forms of wastewater disposal system [sic] that might be considered are 'alternative treatment units' subject to a 0.5 metre separation occurring between the natural ground surface within Lot 64 and the highest known groundwater level.
(Page 15)
- • It is considered likely that around September or October of some years groundwater levels will rise to within 0.5 m of the natural land surface within these areas (land units A and B).
• As a result, and unless detailed ground level surveying were to establish a greater level of separation to groundwater, the Draft Country Sewerage Policy prohibits any form of on-site wastewater system within the lower-lying area, except where an environmentally acceptable engineered drainage solution can be devised.
• Within the southern portion of the property (proposed Lot B and within land unit A) there is an existing large shed with a residential component and an operating 'alternative treatment unit' for on-site effluent disposal.
• The land within the north-western portion of Lot 164 (land units C and D) has the highest land capability and is the preferred site for an on-site wastewater disposal system providing this system is designed to achieve an adequate separation above groundwater.
• Location of an on-site wastewater disposal system within the north-western portion of the property (proposed Lot A) would not be precluded by the requirements of the Draft Country Sewerage Policy providing the 0.5 m groundwater separation requirement can be met. If this requirement can be met the area is of sufficient size to accommodate a single residence and its associated wastewater disposal system."
39 The outstanding issues identified by the experts related to:
i) effects of waterlogging on vehicle access; and
ii) ability to provide an effluent disposal system that meets the requirement for 0.5 metre separation from groundwater.
(Page 16)
40 In relation to vehicle access both experts agreed that with a modest amount of fill this issue could be resolved.
41 On the issue of effluent disposal systems, Mr Harwood asserted that during winter the 0.5 metre watertable separation requirement under the Sewerage Policy could not be achieved in any part of the property. Although he did acknowledge that there was an approved functioning alternative treatment unit operating effectively on proposed Lot B servicing an existing building. The classification of the building was in dispute between the parties. The outcome of this dispute is of no consequence to this matter as Mr Harwood confirmed that the City had given approval to the alternative treatment unit in December 2000 and that it was functioning effectively.
42 Mr Harwood considered that land units C and D were only suitable for a fully inverted nutrient retaining septic systems, such as Biomax, Ecomax and Environsafe, due to the high likelihood of an elevated winter water table. He did not consider conventional septic tanks and leach drains suitable in this instance. He argued that only a late winter site testing could verify that a 0.5 metre groundwater separation could be achieved in land units C and D. He did suggest that if the separation could not be achieved there was the further option of looking at possible drainage solutions to meet the requirement of the Sewerage Policy.
43 Mr Wells contended that the separation could be achieved within the sloping terrain in the north-western portion of Lot 164 (land units C and D). In relation to land units A and B, he did not consider the waterlogging constraints to be a relevant consideration given the proposed Lot B already had an approved functioning wastewater disposal system operating on site. Mr Harwood agreed with this contention.
44 Mr Wells maintained that a conventional septic tank system subject to a requirement of either a partially inverted leach drain (land unit D) or a fully inverted leach drain (land unit C) would be able to achieve an adequate separation above ground level. He considered the difference between the choice of system to be a management issue and not one of consequence in relation to determining the acceptability or otherwise of a specific area of land for on site effluent disposal.
45 Mr Wells did not agree with Mr Harwood on the need to test water levels in winter as he considered this to be an impractical and meaningless exercise, pointing out that "it may be a particularly dry year next winter", and that the results would not be definitive. He considered it more
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- important to following the joint Australian and New Zealand Standards in terms of site assessment and soil and land conditions which relies on a professional examination of the soil conditions. This analysis of the texture, structure and colour of the soil in various layers indicated whether or not the soil was likely to be adequately drained. Mr Wells contended that "the on-site inspection of the soil conditions confirmed that the 0.5 metres separation from the water table will occur based on [his] analysis of the soil conditions and the records of nearby bores as to what the actual AHD … level of the water table is". He later stated that:
"On the basis of my examination of the soil profile and my knowledge of the regional water table level from the Department of Environment's bore which is just off the property; I have a high level of confidence that it's not an issue."
47 The evidence from the experts show that proposed Lot A is capable of meeting the requirements of the Sewerage Policy. Although Mr Harwood was uncertain about whether the 0.5 metres groundwater separation could be achieved on land units C and D he did suggest that the separation requirement could be achieved through drainage solutions, which is an option available under the Sewerage Policy. Mr Wells was highly confident that the 0.5 metres separation from the water table could be achieved in land units C and D. The soil analysis evidence of Mr Wells is convincing and is the preferred method of determining the likelihood of whether the required separation distance can be achieved. Notwithstanding, the experts agreed that even if the separation distance could not be achieved a design solution is available which would satisfied the requirements of the Sewerage Policy. Therefore, the Tribunal does not consider this issue to be a reason to refuse the subdivision.
(Page 18)
Conclusion
48 Although the subject land is zoned "Rural" under TPS No 3, the Tribunal is persuaded that the substantial merits of this particular case support a 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.
49 Furthermore, The Tribunal does not consider the argument that approval of the proposed subdivision would set an undesirable precedent for further subdivision of land in the Torbay townsite and other lots zoned "Rural" in the locality as a sole reason for the proceedings being dismissed, as each case should be treated on its merits and regard given to the particular circumstances of the site.
Conditions
50 As required by a direction of the Tribunal, the respondent prepared "without prejudice" draft conditions of approval, which are as follows:
"1. Each new lot shall be at least 4 ha.
2. Each new lot shall contain an area of higher, well drained ground suitable for building and effluent disposal purposes.
3. The proposed access leg from Lot A to Puls Road shall be widened to incorporate a cleared area and avoid the need to clear the paperbark vegetation along the northern boundary.
4. The access leg and crossover are to be constructed in accordance with City of Albany specifications and to the satisfaction of the Western Australian Planning Commission. (LG)
5. Notification in the form of a section 70A Notification, pursuant to the Transfer of Lands Act 1893 is to be placed on the Certificates of Title of the proposed lot(s) advising that due to the land's soil and drainage characteristics, all development will require servicing by effluent disposal systems approved by the City of Albany and the Department of Health. Systems must be designed and
- located to minimise nutrient export and/or release into any groundwater resource.
- 6. The subdivider making arrangements satisfactory to the Western Australian Planning Commission to ensure that prospective purchasers of the lots created will be advised that:
(a) all dwellings will be required to be provided with 92000 litre rain water tanks. (LG)
(b) the land is zoned Rural and as such future landowners may expect to be impacted from time to time by smells, sounds and vapours associated with agricultural activity. (LG)
7. 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)
8. A point to point restrictive covenant for the benefit of the City of Albany being registered on the Certificate of Title pursuant to section 129BA of the Transfer of Land Act at the expense of the applicant to prohibit access to Lower Denmark Road from proposed Lots A and B. (LG)
9. Prior to the creation of the proposed lots, ethnographic and archaeological surveys of the area will be required to verify the location of Aboriginal sites. New lot boundaries shall be positioned to avoid damaging or altering any site. (Department of Indigenous Affairs)"
51 The applicants raised concerns with all conditions except for conditions 3 and 4.
52 The respondent argued that condition 1 was required as the creation of the 3.0 hectare lot creates a strong precedent for the further subdivision of the 6.6 hectares lot. The Tribunal does not support this argument as it is difficult to envisage a further application for subdivision given the land capability of accommodating effluent disposal onsite, however, if a further application was made it would be considered and determined on its merit.
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53 The respondent contended that the purpose of condition 2 was to ensure that both lots have the benefit of the higher ground available in portions C and D and that the owner of proposed Lot B would have access to an appropriate building envelope in the event another or alternative dwelling was sought. The Tribunal does not support this condition as the imposition of such a condition would require a total redesign of the proposed subdivision and is in effect tantamount to a refusal of the application before the Tribunal.
54 The applicants argued that condition 5 does not have any application or benefit in respect to proposed Lot B as there is an existing effluent system already operating and that there does not seem to be any real purpose in requiring the notification to remain once there is an approved system on proposed Lot A. The Tribunal considers that given the circumstances of this particular application in relation to land capability and effluent disposal it is appropriate to alert potential owners of the issue. However, the condition should be amended to insert the word "residential" before the word "development".
55 The applicants did not raise objection to part (a) of condition 6 but did object to part (b) of the condition. According to the respondent part (b) of the condition addressed the potential land use conflict that may arise by way of the rural lots to the north. The Tribunal considers the condition as a whole to be an "advice note" in another form and as such should not be imposed as a planning condition. Condition 6 is not reasonably necessary to regulate the subdivision, as it is clear that the subject land and its surrounds are rural in character and that reticulated water is not available in the area.
56 In relation to condition 7, the applicants submitted that no other lot within the Torbay townsite is serviced by underground power and to the applicants' knowledge no underground power is provided in the City of Albany. The applicants submitted the condition was inequitable. This condition accords with Western Power's policy "Requirements For Provision/Removal Distribution Electrical Network South West Interconnected Systems When Land is Subdivided" and reflects the long-standing practice that has been embodied in land development clearance conditions that have been agreed between Western Power and the Department for Planning and Infrastructure. The condition seeks to mitigate problems identified by Western Power in relation to risk to public safety and security of supply. Although the subject land may be the only lot in the townsite required to be serviced by underground power at this stage, this condition would be equally attached if other lots were to
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- subdivide. On the evidence, the Tribunal is not persuaded that this condition should be deleted.
57 The respondent agreed to the deletion of condition 8.
58 The respondent submitted that condition 9 was based on the advice from the Department of Indigenous Affairs and was imposed to ensure that the subdivision does not adversely impact on areas of significance to the Aboriginal community. This condition is considered to be an "advice note" and as a condition is unnecessary as the applicants are required to comply with the Aboriginal Heritage Act 1972 (WA).
59 During the hearing, consideration was given to the imposition of a condition requiring the identification of building envelopes for the respective lots. Given the land capability and soil considerations in relation to the location of effluent disposal systems the Tribunal considers that it would be appropriate for such a condition to be imposed.
Orders
1. The application for review is allowed.
2. The subdivision application lodged with the respondent on 4 April 2005 is approved subject to:
a) the following conditions:
- i. The proposed access leg from Lot A to Puls Road shall be widened to incorporate a cleared area and avoid the need to clear the paperbark vegetation along the northern boundary.
ii. The access leg and crossover are to be constructed in accordance with City of Albany specifications and to the satisfaction of the Western Australian Planning Commission.
iii. Notification in the form of a section 70A Notification, pursuant to the Transfer of Lands Act 1893 (WA) is to be place on the Certificates of Title of the proposed lot(s) advising that due to the land's soil and drainage characteristics, all development
- will require servicing by effluent disposal systems approved by the City of Albany and the Department of Health. System must be designed and located to minimise nutrient export and/or release into any groundwater resource.
iv. 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.
- b) the imposition of a condition requiring the identification of building envelopes.
- 3. Pursuant to s 29(5)(b) and s 82(1) of the State Administrative Tribunal Act 2004 (WA),orders 1 and 2 do not come into effect until such time as the condition referred to in Order 2(b) is finalised, at which time the Tribunal will provide a consolidated order setting out all of the conditions of the approval.
4. The matter is listed for a half day hearing, commencing at 10 am on Friday 16 June 2006 for finalisation of the condition referred to in Order 2(b), unless the parties file a Minute of Consent Orders setting out an agreed form of words prior to this date.
I certify that this and the preceding [59] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS M CONNOR, MEMBER
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- ANNEXURE 1
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ANNEXURE 2
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4
1
5