Strawbridge & Anor and Western Australian Planning Commission
[2006] WASAT 96
•13 APRIL 2006
STRAWBRIDGE & ANOR and WESTERN AUSTRALIAN PLANNING COMMISSION [2006] WASAT 96
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 96 | |
| TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) | |||
| Case No: | DR:545/2005 | 16 DECEMBER 2005 (FURTHER WRITTEN SUBMISSIONS RECEIVED 10 JANUARY 2006 AND 17 JANUARY 2006) | |
| Coram: | MS M CONNOR (MEMBER) | 13/04/06 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | 1. Application for review is allowed 2. The subdivision approval granted subject to conditions | ||
| B | |||
| PDF Version |
| Parties: | GRAHAM DUDLEY STRAWBRIDGE YVETTE FLORENCE STRAWBRIDGE WESTERN AUSTRALIAN PLANNING COMMISSION |
Catchwords: | Town planning – Subdivision refusal – East Wanneroo area – Subdivision contrary to existing planning framework – Protection of agricultural land ensuring continued use for productive agricultural purposes – Water restriction prohibiting use of land for contemplated use – East Wanneroo Land Use and Water Management Strategy (draft for public comment) – Likelihood of change in east Wanneroo area – Impact on the rural character of the locality – Requirement of a mandatory provision for reticulated potable water supply in RuralResidential zones – Precedent – Planning merit |
Legislation: | City of Wanneroo District Planning Scheme No 2, cl 3.16, cl 3.16.1, cl 3.16.1(a), cl 3.16.2 Metropolitan Region Scheme Town Planning and Development Act 1928 (WA), |
Case References: | Agnew Clough Ltd v Town Planning Board (Unreported; Appeal No 1 of 1979 CG Holdings Pty Ltd and Western Australian Planning Commission [1999] WATPAT 11 Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433 Food Plus Limited v City of Perth (Unreported; Appeal Nos 36 and 37 of 1982; 25 June 1982) Lloyd Sales Pty v Subiaco City Council (Unreported; Appeal No 50 of 1981, 22 June 1982) Tang v City of Stirling (Unreported; Appeal No 27 of 1981; 12 March 1982) Aspen Pty Ltd v State Planning Commission (Unreported; Appeal No 13 of 1988) Wilson v Western Australian Planning Commission [2004] WATPAT 86 |
Orders | 1. The application for review is allowed.,2. The subdivision application lodged with the respondent on 8 November 2004 is approved subject to the following conditions:, i. All buildings and effluent disposal systems having the necessary clearance from the new boundaries as required under the relevant legislation. (Local Government), ii. Suitable arrangements being made with Western Power for the provision of an electricity supply service to the lot(s) shown on the approved plan of subdivision. (Western Power), iii. A suitable potable water supply being provided on site for each lot shown on the approval plan of subdivision to the satisfaction of the Western Australian Planning Commission. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) CITATION : STRAWBRIDGE & ANOR and WESTERN AUSTRALIAN PLANNING COMMISSION [2006] WASAT 96 MEMBER : MS M CONNOR (MEMBER) HEARD : 16 DECEMBER 2005 (FURTHER WRITTEN SUBMISSIONS RECEIVED 10 JANUARY 2006 AND 17 JANUARY 2006) DELIVERED : 13 APRIL 2006 FILE NO/S : DR 545 of 2005 BETWEEN : GRAHAM DUDLEY STRAWBRIDGE
- YVETTE FLORENCE STRAWBRIDGE
Applicants
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Town planning – Subdivision refusal – East Wanneroo area – Subdivision contrary to existing planning framework – Protection of agricultural land ensuring continued use for productive agricultural purposes – Water restriction prohibiting use of land for contemplated use – East Wanneroo Land Use and Water Management Strategy (draft for public comment) – Likelihood of change
(Page 2)
in east Wanneroo area – Impact on the rural character of the locality – Requirement of a mandatory provision for reticulated potable water supply in RuralResidential zones – Precedent – Planning merit
Legislation:
City of Wanneroo District Planning Scheme No 2, cl 3.16, cl 3.16.1, cl 3.16.1(a), cl 3.16.2
Metropolitan Region Scheme
Town Planning and Development Act 1928 (WA),
Result:
1) Application for review is allowed
2) The subdivision approval granted subject to conditions
Category: B
Representation:
Counsel:
Applicants : Selfrepresented
Respondent : Mr J Algeri (Agent)
Solicitors:
Applicants : N/A
Respondent : N/A
Case(s) referred to in decision(s):
Agnew Clough Ltd v Town Planning Board (Unreported; Appeal No 1 of 1979
CG Holdings Pty Ltd and Western Australian Planning Commission [1999] WATPAT 11
Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433
Food Plus Limited v City of Perth (Unreported; Appeal Nos 36 and 37 of 1982; 25 June 1982)
(Page 3)
Lloyd Sales Pty v Subiaco City Council (Unreported; Appeal No 50 of 1981, 22 June 1982)
Tang v City of Stirling (Unreported; Appeal No 27 of 1981; 12 March 1982)
Case(s) also cited:
Aspen Pty Ltd v State Planning Commission (Unreported; Appeal No 13 of 1988)
Wilson v Western Australian Planning Commission [2004] WATPAT 86
(Page 4)
Summary of Tribunal's decision
1 Mr and Mrs Strawbridge applied to the State Administrative Tribunal for review of a decision of the Western Australian Planning Commission refusing approval to subdivide No 264 Neaves Road, Mariginiup into two freehold lots of 2.0235 hectares and 2.7 hectares.
2 The subject land was zoned "Rural" in the Metropolitan Region Scheme and "General Rural" under the City of Wanneroo District Planning Scheme No 2. The overarching objective embodied in all of the planning instruments relevant to this matter underlined the protection of agricultural purposes. However, the suitability of land in the east Wanneroo area to sustain productive agriculture led to the preparation of the "East Wanneroo – Land Use and Water Management Strategy" (draft for public comment). The Strategy confirmed that under the current water allocation and licence system, horticulture and agriculture in east Wanneroo was not sustainable and recommended major land use change. The Tribunal considered that given the high degree of community involvement in the preparation of the Strategy and political impetus, there was a strong likelihood that changes in the direction for this area would be forthcoming.
3 The Tribunal determined that a departure from the current policies was appropriate in this instance. The application for review was allowed subject to conditions.
Introduction
5 Graham Dudley Strawbridge and Yvette Florence Strawbridge (applicants) are the registered proprietors of Lot 103 (No 264) Neaves Road, Mariginiup, more particularly described as Lot 103 on Diagram 68522 comprised on Certificate of Title Vol 1704 Folio 875 (subject land).
6 The applicants made application to the Western Australian Planning Commission (respondent) on 8 November 2004 for approval to subdivide the subject land to create two freehold lots of 2.0235 hectares and 2.7090 hectares, both with frontage to Neaves Road.
7 The respondent refused the application on 4 March 2005 for the following reasons:
(Page 5)
- "1. The land is zoned 'Rural' in the Metropolitan Region Scheme and in Council's Town Planning Scheme. The purpose and intent of this zoning is to preserve the area's current rural use and density of development. Subdivision in the manner proposed would create the potential for additional building development and the introduction of increase non-rural activity in conflict with the zoning objectives.
2. The land is zoned 'Rural' in the Metropolitan Region Scheme and Council's Town Planning Scheme where the Commission does not favour further fragmentation as this leads to smaller lot sizes and closer development which would conflict with the intent of the rural zoning of both these Schemes.
3. The proposed subdivision is contrary to Commission Policy DC 3.4 – Subdivision of Rural Land, a provision of Statement of Planning Policy No. 8, by reason that:
• The subdivision is located in a rural zone where there is a general presumption against further subdivision, and;
• The subdivision of this land for more intensive purposes has not been identified in an adopted Local Planning Strategy or Local Rural Strategy.
4. The subject land falls within an area where the Commission considers the minimum lot size for new subdivision should be 4ha [sic].
5. Approval to the subdivision would set an undesirable precedent for the further subdivision of surrounding lots."
8 The applicants elected to request the respondent to reconsider its decision in accordance with the provisions of s 24(5) of the Town Planning and Development Act 1928 (WA) (TPD Act). The respondent, in a letter dated 19 July 2005, essentially reiterated its previous decision to refuse the application, although it did provide an amplification of the reasons for refusal.
(Page 6)
9 The applicants on 14 August 2005, made application under s 26(1)(a)(i) of the TPD Act to have the decision reviewed.
Subject land and surrounding environs
10 The subject land is 4.7325 hectares in area and is situated on the southern side of Neaves Road. There are currently two substantial buildings located in the north-eastern quarter of the existing lot, one of which is the applicants' residence.
11 Most of the subject land has been cleared of substantial vegetation, although there is some significant tree growth in the north-eastern quarter of the lot, particularly between Neaves Road and the existing residence.
12 Immediately to the north of Neaves Road there is a large area of State forest, which is reserved accordingly in the Metropolitan Region Scheme (MRS). On the southern side of Neaves Road in this locality, there is a variety of lot sizes. There are a number of larger agricultural lots immediately south of the subject land. In contrast, there are four lots (Lots 105, 106, 107 and 108) to the west of the subject land and a further two lots (Lots 501 and 502) to the east of the subject land that are just over 2.0 hectares in area. The land in this area is generally zoned "General Rural" under the City of Wanneroo District Planning Scheme No 2 (DPS 2), although there are two "Special Rural" zoned areas within close proximity to the subject land (refer to Annexure 1). According to the respondent:
"there is a substantial amount of residential development in both of these special rural areas, which are (in terms of the operative planning scheme) intended to accommodate rural-residential retreats on lots generally ranging between one and four hectares."
Planning Framework
Regional
13 The subject land is zoned "Rural" in the MRS. The respondent has prepared a number of planning documents for the purpose of exercising the power of the Commission under s 20 of the TPD Act to approve a plan of subdivision. The following policies have been taken into consideration in the determination of this matter:
• Statement of Planning Policy No 1 – State Planning Framework Policy (SPP 1);
(Page 7)
- • Statement of Planning Policy No 2.5 – Agriculture and Rural Land Use Planning (SPP 2.5);
• Development Control Policy 1.1 – Subdivision of Land – General Principles (DC 1.1);
• Development Control Policy 3.4 – Subdivision of Rural Land (DC 3.4);
• Rural Small Holdings Policy Study 1977; and
• Metropolitan Rural Policy 1995.
14 The Tribunal notes that SSP 1 and SSP 2.5 have been formulated under s 5AA of the TPD Act and as such, the Tribunal is required to have "due regard" to the provisions within these policies in making decisions on planning matters: see s 61(1)(a) of the TPD Act.
Local
15 Under DPS 2 the subject land is zoned "General Rural". The Tribunal identifies the following clause of DPS 2 as relevant to the consideration and determination of this matter:
• Clause 3.16 "The General Rural Zone" – specifically subclause 3.16.1, which sets out the objectives for the zone and; subclause 3.16.2, which specifies the matters to which regard is to be given in considering applications for subdivision. One such matter is the contents of "any Local Rural Strategy adopted by the Council and the Commission".
16 The City of Wanneroo adopted the City of Wanneroo Interim Local Rural Strategy (Interim Strategy) on 11 July 2000. The Tribunal notes that this document is an interim strategy that has not been endorsed by the respondent. Sections of the interim strategy referred to by the respondent include Appendix 2 "Subdivision of Rural Zoned Land" and s 13 "Landscape Enhancement Scenic Drives".
Respondent's position
17 The respondent contended that the proposed subdivision was contrary to the planning framework that has been formulated to provide the context for decision-making and that there is no proper planning justification to depart from the respondent's policies. Mr Logan, a senior planning officer of the Department of Planning and Infrastructure called by the respondent to give evidence, referred to the relevant policies of respondent, namely SPP 1, SPP 2.5, DC 3.4, DC 1.1, Rural Small
(Page 8)
- Holdings Policy Study 1977 and Metropolitan Rural Policy 1995. In essence, he contended the following:
1. The proposed subdivision does not accord with the key objectives of SPP 2.5, which seeks the protection of agricultural land resources when ever possible by minimising the ad hoc fragmentation of rural land.
2. The land is not appropriately zoned and such, the proposal is inconsistent with cl 5.3.1(iii) of SPP 2.5 which states that:
"The Commission will only support subdivision of Rural-Residential and Rural Small holdings where the land has been appropriately zoned within the town planning scheme and the provision of Policy No DC 3.4 (2001) Clause 6 can be complied with."
3. The proposed subdivision is contrary to the policy objectives of DC 3.4 which seek to protect agricultural land resources wherever possible by:
"(a) discouraging land use unrelated to agriculture from locating on agricultural land;
(b) minimising the ad hoc fragmentation of rural land; and
(c) improving resource and investment security for agricultural and allied industry production."
DC 3.4 advocates a general presumption against subdivision of rural land and only supports subdivision for Rural-Residential and rural smallholdings where it is identified in an endorsed local planning strategy or local rural strategy and zoned in a town planning scheme. The exceptions as contained in cl 3.2.1 are not applicable in this instance.
4. The proposed lot sizes are inconsistent with the Rural Small Holdings Policy Study 1977 which suggests a minimum rural lot size of 4 hectares.
5. The proposed subdivision is contrary to the following principles contained in the Metropolitan Rural Policy 1995:
- "2. In order to protect metropolitan rural land for its primary purposes, there should be restrictions on the closer subdivision and fragmentation of rural land, and the ad hoc development and rezoning of rural land for more intensive purposes.
….
5. The subdivision and development of rural land should only be permitted where it is:
• consistent with the policy measures set out in Part 5 of [the] policy;
• consistent with any approved local rural strategy; and
• consistent with an approved town planning scheme."
- 6. In light of the above, the proposal is inconsistent with the applicable statutory and policy framework and as such does not constitute proper and orderly development.
18 Mr Logan argued that the subdivision will further fragment rural zoned land and create lots that are less viable for the conduct of economic agricultural pursuits than the existing lot. He contended that the applicants had not substantiated or demonstrated that the proposed lots were sufficient in size to support economically viable and sustainable agricultural pursuits or that the lots had the ability to accommodate agricultural, horticultural and equestrian activities (cl 6.1.1(b) of DC 3.4 and the first objective of the "General Rural" zone as specified in DPS 2).
19 Furthermore, Mr Logan asserted that approval of the proposed subdivision would result in the creation of lots that are of a size consistent with a "Rural-Residential" zoning, which provides for a denser pattern of subdivision than that contemplated by the current rural zoning. He contented that the increase in density of the existing settlement pattern would diminish the rural character of the locality. His justification being that the potential for additional building development and the likelihood of increased non-rural activities would result in a shift of the character of the area from "General Rural" to "Rural-Residential". He considered this
(Page 10)
- to be of particular significance as the subject land is one of special scenic value and readily visible from Neaves Road.
20 The respondent was also concerned that approval of the proposed subdivision would set an undesirable precedent for further subdivision of other similar size or larger lots in the locality, as well as for other similar size or larger rural zoned lots in other parts of the northern metropolitan area, as for example in the vicinity of the eastern end of Neaves Road. The respondent rejected the applicants' argument that a precedent had already been established, arguing that many of the cited lots were not in the "General Rural" zone or were generally only created following successful appeals to the then Minister for Planning, against refusal by the respondent's predecessor (the State Planning Commission).
21 The respondent also referred to the advice received from the Water Corporation opposing the subdivision on the grounds that the proposal is remote from the Corporation's water reticulation scheme and would result in the creation of lots less than four hectares in size without the provision of water. The Water Corporation further advised that this recommendation was made in support of SPP 2.5 which requires a reticulated water supply for lots up to four hectares in area: cl 5.3.2(i)(b).
Applicants' position
22 The applicants claimed that the water restriction placed on the subject land by the Department of Environmental Protection Water and Rivers Commission, restricting the taking of water for only household purposes and irrigation of 4.0 hectares of lawn or gardens, essentially prohibited the utilisation of the land for agricultural/horticultural purposes. The applicants acknowledged that both the existing lot and the proposed lots could support other rural pursuits, such as equestrian activities and dog kennels.
23 The applicants also claimed that the soil type within the locality lacked the essential nutrients for the raising of livestock and required substantial amounts of fertilisers to support any productive agricultural crop. Mrs Strawbridge demonstrated that the subject land is abutting the Priority 1 Source Protection Area and the revised Underground Water Pollution Control Area, and asserted that the use of fertilisers, chemicals and the like used in agricultural pursuits presented a contamination risk to the ground water supply.
24 To support her arguments concerning the difficulties associated with supporting viable agricultural pursuits in this area, Mrs Strawbridge
(Page 11)
- referred to the "East Wanneroo – Land Use and Water Management Strategy" (draft for public comment) (EWLUWM Strategy or Strategy) citing the following paragraphs:
Page 11:
"The DoE views it as most unlikely that the large amount of groundwater required to use all the land zoned general rural or rural resource … in the study area ever would be available to enable any more land to be used for productive irrigated horticulture."
Page 21:
"Current water allocation limits in the Wanneroo groundwater area, the severe impact of lower rainfall and the corresponding detrimental impact on the environmental values of Gnangara Mound may result in changes in future public and private water licensing and allocation policy to focus on less abstraction from the superficial aquifers on the mound. These factors pose major constraints to the future viability of southern east Wanneroo's agricultural/horticultural industry that is dependent on a limited and declining water supply from the superficial aquifer."
26 Mrs Strawbridge contended that the issue of fragmentation of rural land could not be argued in this instance as the proposed subdivision was merely infill that would not result in the loss of any agricultural land. In relation to the argument that the proposed subdivision would detract from the rural character of the area, Mrs Strawbridge argued that development of the land would be controlled by DPS 2 and all buildings would be required to accord with the relevant provisions of the Scheme and with the City's Interim Rural Strategy. Mrs Strawbridge produced photographs of the revegetation undertaken on the subject land and gave details of the development on the adjoining two hectare lots stating that:
(Page 12)
- "Other owners of adjoining subdivided lots have also built their dwellings and planted various trees and shrubs to restore, protect and enhance the rural landscape character of the land which is readily visible from the road."
27 Mrs Strawbridge argued that the existing development demonstrated that closer development does not necessarily result in an adverse impact on the rural character of the area and that there was no evidence to prove that the subdivision of the subject land would result in compromising the protection and enhancement of the rural landscape character.
28 In respect to the Water Corporation's arguments for opposing the subdivision, the applicants contended that such arguments could not be sustained given that there are already properties adjacent to the subject land, less than 4.0 hectares in area, without the provision of reticulated water.
29 During the hearing, Mrs Strawbridge claimed that if the subdivision was not approved then they (the applicants) would face economic hardship. Other than a general explanation of events, including reference to Mr Strawbridge's medical condition, there was no evidence led to demonstrate precisely what the claim of hardship was.
Planning issues
30 The overarching objective embodied in all of the planning instruments relevant to this matter underlines the protection of agricultural land by ensuring the continued use of land for productive agricultural purposes. The planning instruments advocate a general presumption against subdivision of rural land, except where subdivisions are intended for genuine agricultural purposes and the lot sizes are capable of sustaining long-term agricultural use, or where otherwise provided for in a town planning scheme, local planning strategy or endorsed local rural strategy.
31 The respondent, including its predecessors and the local authority, have consistently resisted any subdivision of rural zoned land within the east Wanneroo area. However, in recent years, there have been a number of Ministerial appeal decisions and a Town Planning Appeal Tribunal (TPAT) decision(CG Holdings Pty Ltd and Western Australian Planning Commission [1999] WATPAT 11)approving subdivision of rural land in the east Wanneroo area. In CG Holding Pty Ltd and Western Australian Planning Commission, the then Town Planning Appeal Tribunal found that in this case there was insufficient water
(Page 13)
- available for the applicant to be granted a licence to enable it to use the subject property for agricultural purposes and held that:
"if the highest and best use of the property as reflected in the various studies undertaken by relevant departments, … is that this land is appropriate for agricultural purposes but there were practical and legal restriction on the capacity of it so to be used then the context against which the policy has been prepared and applied requires revision."
33 The conflict between the established planning framework and the suitability of the land to sustain productive agriculture led to the preparation of the EWLUWM Strategy. This is acknowledged in the Minister's forward contained in the Strategy where she states:
"The east Wanneroo community has raised many issues in relation to current water resource planning, allocation and licencing and the lack of strategic land use planning for the area. In particular, many sites set aside for horticultural uses were unable to access water. Clearly some new direction was needed."
34 The Strategy, at page 19, further supports the view that the current policy framework is out of step with the relevant planning issues in the area:
"For many years, much of east Wanneroo has been zoned rural because of State and local government planning policies, eg Statement of Planning Policy 2.5 Agriculture and Rural Land Use Planning (WAPC 2002), promoting the retention of productive rural zoned land and agricultural/horticultural land uses and not supporting subdivision of productive rural land.
While this may have been justified in the past, a range of factors need to be considered in determining the future direction for land use planning policy for east Wanneroo."
35 The Strategy was released for public consultation with the comment period closing on 27 January 2006. The Strategy examines the key land
(Page 14)
- use and water resource management issues and formulates a proposed draft land use concept. The Strategy confirms that under the current water allocation and licence system, horticulture and agriculture in east Wanneroo will not be able to be sustained and that there are strong arguments favouring land use change in this area. The Strategy proposes major land use changes in the area south of Neaves Road. The subject land and surrounding land is identified as "possible rural living". The intent of the new rural living areas is to form rural buffers between new urban areas and help to conserve native vegetation and rural landscape values. It is envisaged that these new rural living areas will use a range of existing zones, such as special residential, special rural and rural community to provide for innovative rural subdivision and a range of lots sizes.
36 The respondent contended that the Strategy is not a "seriously entertained" proposal and as such, little weight should be accorded to the document.
37 The previous Town Planning Appeal Tribunal in several decisions (Agnew Clough Ltd v Town Planning Board (Unreported; Appeal No 1 of 1979; 1 May 1980; Tang v City of Stirling(Unreported; Appeal No 27 of 1981; 12 March 1982) and Food Plus Limited v City of Perth (Unreported; Appeal Nos 36 and 37 of 1982; 25 June 1982) recognised the need to take into consideration a "seriously entertained" planning proposal and that the weight to be given to the planning proposal will in each case depend upon the degree of likelihood of its being finally adopted (Lloyd Sales Pty v Subiaco City Council (Unreported; Appeal No 50 of 1981, 22 June 1982).
38 Further, Barker J, sitting in the Supreme Court of Western Australia, held in Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433 at 451 452 as follows:
"88. The Coty principle, so-called, makes eminent sense. Planning options seriously entertained by planning authorities should not be peremptorily cut off. With respect, the principle enunciated Agnew Clough by the Tribunal concerning the relevance of what it identified as proposals for amendment of existing town planning scheme or a statement of policy that is 'seriously entertained' also makes good sense. Nonetheless, there is perhaps a danger in elevating this principle to the status it does not have, and treat it as one having a
- statutory basis. Rather, the principle is merely intended to enable a planning proposal that does not yet have a formal status in the planning process to be regarded as a relevant town planning factor."
39 Although the Strategy is still undergoing the public consultation process, there has been significant community input incorporated into the preparation of the draft, involving a three month public comment period in May 2004 on "East Wanneroo Land Use and Water Management Strategy – Preliminary Discussion Paper", as well as a community forum held in November 2004 to progress community input in the draft strategy. There is a clear indication that the existing planning framework fails to address the realities of the existing circumstances and there is political pressure for change, which led in the preparation of the Strategy. Given community expectation and political impetus, it is likely that there will be land use change in the east Wanneroo area in line with the recommendations contained in the Strategy. Given these reasons, the Tribunal considers it reasonable to take into account the findings of the Strategy as one of the relevant planning factors in determining this matter.
40 The respondent further argued that the Strategy would need to be implemented through the statutory framework to ensure that appropriate provisions were in place to provide for a co-ordinated approach to subdivision and development of land. The Tribunal generally agrees with this approach. However, in this instance, the subject land is distinguishable as approval for the subdivision of the subject land follows the existing approved pattern of subdivision on adjoining lots and completes the pocket of 2.0 hectares lots on the southern side of Neaves Road. Approval of the subdivision as proposed would not have any adverse impact on future plans co-ordinating development within the area.
41 Furthermore, given the existing subdivision and development pattern along the southern side of Neaves Road, the Tribunal does not accept the respondent's assertion that the proposed subdivision will diminish the rural character of the locality. Rural living can contribute to environmental rehabilitation of degraded rural lands, as demonstrated by the rehabilitation undertaken by the applicants on the subject land.
42 SPP 2.5 sets out scheme provisions that should be used by local government to control planning and development in rural areas. Relevantly, it considers "Rural-Residential" and "Rural Smallholding" zones and suggests that in "Rural-Residential" zones, the lots sizes should
(Page 16)
- range from 1.0 hectares to 4.0 hectares depending on local conditions and the requirement of a mandatory provision of a reticulated potable water supply. Whereas, in areas zoned "Rural Smallholding" the lots sizes range from 4.0 hectares to 40 hectares depending on local conditions and the provision of an adequate sustainable potable water supply for domestic use. In respect of "local conditions" in "Rural Smallholding" zones, a footnote is included which states that "individual local governments should determine the size depending upon local conditions and long-term environmental sustainability for conservation theme lots". Therefore, it may be possible under SPP 2.5 to provide "Rural Smallholding" lots of less than 4.0 hectares without reticulated water supply if local conditions supported this form of development. There are two existing "Special Rural" areas in the locality that fall within this category. In considering this particular application, the Water Corporation simply applied the policy without considering the general merits of the case.
43 The respondent argued that the smaller the lot sizes, the higher the expectation and demand by residents for services, and in rural-residential areas there is a general expectation that reticulated water will be available. Mrs Strawbridge submitted that there was no reason to believe that there would be an expectation or demand for a reticulated water supply as lots within the general locality, including those between 2.0 hectares and 4.0 hectares, are not currently serviced by a reticulated water supply. Given the current situation, the applicants did not consider that there would be any potential for conflict if approval was granted to the subdivision.
44 The respondent did not dispute that there were lots of less than 4.0 hectares in the area that are not serviced by a reticulated water supply. It was the respondent's contention that there is now a standard as to what density should be provided with reticulated water and it does not wish to see an abandonment of that standard, as it is the current policy.
45 The applicants demonstrated that lots within the existing two "Special Rural" areas and the 2.0 hectare lots adjacent to the subject land are adequately serviced by the provision of their own onsite potable water supply for domestic use. Therefore, the Tribunal does not consider the inability of the proposed lots to be serviced by a reticulated water supply as a barrier to subdivision given the area context.
(Page 17)
Conclusion
46 The evidence has shown that the subject land is not capable of being utilised for productive agricultural purposes but could sustain other rural pursuits such as equestrian activities and dog kennels. The subdivision of the subject land would not preclude its use for such rural pursuits, which would accord cl 3.16.1(a) of DPS 2. Further, the proposed lot sizes would be consistent with the adjacent lots on the southern side of Neaves Road.
47 The EWLUWM Strategy proposes major land use changes in the area south of Neaves Road and identifies the subject land and surrounding land as "possible rural living". The Tribunal considers that given the high degree of community involvement in the preparation of the Strategy and political impetus, there is a strong likelihood that change in the current policies for the area will eventuate. The current policies, which strive to underline the protection of agricultural land by ensuring the continued use of land for productive agriculture purposes, are now just one of a number of planning factors to be taken into consideration in determining an application for subdivision in this area. In this instance, given the inability of the subject land to be used for productive agricultural purposes and based on the merits of this particular case as stated above, the Tribunal considers that a departure from the current policies is appropriate.
48 Furthermore, the Tribunal does not consider the argument that approval of the proposed subdivision would set an undesirable precedent for further subdivision of other similar size or larger lots in the vicinity 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.
49 The Tribunal is cognisant of the claim of hardship cited by the applicants, but given the planning merits of the case, the Tribunal did not see the need to address this issue. The Tribunal's decision in this instance is based purely on planning grounds.
Conditions
50 As required by a direction of the Tribunal, the respondent prepared "without prejudice" draft conditions of approval, which are as follows:
"1. All buildings and effluent disposal systems having the necessary clearance from the new boundaries as
- required under the relevant legislation. (Local Government)
- 2. Suitable arrangements being made with Western Power for the provision of an electricity supply service to the lot(s) shown on the approved plan of subdivision. (Western Power)
3. Suitable arrangements being made with the Water Corporation so that provision of a suitable water supply service will be available to the lot(s) shown on the approved plan of subdivision." (Water Corporation)
51 The applicant raised concern with condition 3 and suggested the following re-wording of the condition:
"3. Provision of a suitable water supply to the lot(s) shown on the approved plan of subdivision will wholly and solely be the responsibility of the lots title deed holder(s)."
52 The respondent's draft condition 3 is unclear in respect to the type of water supply service to be provided and should be modified to confer certainty. In this instance, connection to a reticulated water supply is not possible and as such, the condition should be modified requiring a suitable potable water supply be provided on site for each lot.
(Page 19)
Annexure 1
Orders
1) The application for review is allowed.
2) The subdivision application lodged with the respondent on 8 November 2004 is approved subject to the following conditions:
i. All buildings and effluent disposal systems having the necessary clearance from the new boundaries as
- required under the relevant legislation. (Local Government)
- ii. Suitable arrangements being made with Western Power for the provision of an electricity supply service to the lot(s) shown on the approved plan of subdivision. (Western Power)
iii. A suitable potable water supply being provided on site for each lot shown on the approval plan of subdivision to the satisfaction of the Western Australian Planning Commission.
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MS M CONNOR, MEMBER
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