Tipping and Western Australian Planning Commission - [2010] WASAT 149

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: TIPPING and WESTERN AUSTRALIAN PLANNING COMMISSION [2010] WASAT 149

MEMBER: MR J JORDAN (MEMBER)

HEARD: 8 JULY 2010

DELIVERED : 8 OCTOBER 2010

FILE NO/S: DR 117 of 2010

BETWEEN: IVAN TIPPING
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Town planning Subdivision Refusal Special Rural zone under local planning scheme Rural zone under Peel Region Scheme Application for one lot of 1.78 hectares and one lot of 1.53 hectares Two hectare minimum lot size under local planning scheme Two houses on the land Agreement with local government to use original house as aged or dependent persons' dwelling Each proposed lot to have a house Lot sizes in locality Character of locality Planning objectives for locality Exception to compliance with local planning scheme under s 138 of Planning and Development Act 2005 (WA) Consideration of hardship under s 241(3) of Planning and Development Act 2005 (WA)

Legislation:

Peel Region Scheme, cl 6, cl 12(e)
Planning and Development Act 2005 (WA), s 138, s 138(2), s 138(3), s 138(3)(a), s 138(3)(b), s 138(3)(c), s 138(3)(c)(i), s 165, s 241(3), s 251(1)
Shire of Murray Town Planning Scheme No 4, cl 2, cl 2.1, cl 2.1(ii), cl 2.2, cl 6.4, cl 6.4.5, cl 6.4.6, cl 6.4.7, Sch 4

Result:

Application for review upheld
Refusal of Western Australian Planning Commission set aside and conditional approval granted for proposed subdivision

Category: B

Representation:

Counsel:

Applicant: Ms L McGurk (Acting as Agent)
Respondent: Mr S Allerding (Acting as Agent)

Solicitors:

Applicant: Greg Rowe & Associates (Town Planners)
Respondent: Allerding & Associates (Town Planners)

Case(s) referred to in decision(s):

Golden and Anor v Minister for Transport (2002) 121 LGERA 101
Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117
Tyrell v Western Australian Planning Commission [2004] WATPAT 172

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

This matter involved an application for review of a refusal by the Western Australian Planning Commission's of an application to subdivide a Special Rural zoned lot at Lot 28 Husband Road, Barragup into a 1.54 hectare lot and a 1.78 hectare lot. Subdivision was refused because the minimum size for lots in this zone under the local planning scheme was 2 hectares and it was considered approval would set an undesirable precedent for subdivision of surrounding lots.
The Tribunal formed the view that approval may be given to the proposed subdivision in conflict with the local planning scheme as provided for under the exception available at s 138(3)(a) of the Planning and Development Act 2004 (WA), which refers to the local planning scheme not being first published or consolidated in the preceding five years and there being a State planning policy that deals with substantially the same manner, namely, lot size.
The Tribunal found that the proposed lot sizes could be allowed consistent with State Planning Policy No 2.5 having regard to 'local conditions'. The conditions included the land being developed with two dwellings and the configuration of the lot. The Tribunal also found that the proposed subdivision would be consistent with the local planning scheme objective of ensuring orderly and proper development and would not be inconsistent with the objectives of other relevant planning instruments.
The Tribunal further found that the proposed subdivision would not establish a precedent for other subdivision in the locality. This was because the circumstances of the proposal were such that it was not objectionable and there was less than a mere chance or possibility that there would be later undistinguishable applications.
The applicant also made a claim of hardship in support of the proposed subdivision. Having found that, on balance, there is a planning case for the proposed subdivision, the Tribunal concluded that having regard to the applicant's claim of hardship in support of the subdivision would not be in conflict with the application of sound planning principles.
The Tribunal decided to uphold the application and grant conditional planning approval for the proposed subdivision.

Introduction

In 2001, Mr Ivan Tipping and Mrs Clare Tipping applied to the Shire of Murray (Shire) for planning approval for a second house on Lot 28 Husband Road, Barragup (site). The existing house on the site was proposed to be used as an aged persons' dwelling occupied by Mr and Mrs Tipping, who are joint tenants in a half share of the site. The new house would be occupied by their daughter, Mrs Debbie Desker, and soninlaw, Mr Michael Desker, who are joint tenants in the other half share. The two couples are tenants in common of the site as a whole.
In January 2002, the Shire issued conditional planning approval for 'a new dwelling and aged persons' dwelling' on the site (2002 development approval). Condition 2 of the approval stated:
The applicant entering into a legal agreement with the Shire of Murray, to ensure a caveat is placed on the title of the land requiring that the existing dwelling is occupied by aged or dependent persons only in accordance with the requirements of Town Planning Scheme No 4.
On 7 February 2002, a deed setting out an agreement between Mr and Mrs Tipping and Mr and Mrs Desker and the Shire was signed and witnessed. Certificate of Title Register No 28/P5383 for the site lists in the Second Schedule 'caveat by Shire of Murray lodged 12.8.2003'.
The deed, in the operative part states at cl 1:
The applicants HEREBY COVENANT AND AGREE with the Shire that permanent occupation of the existing dwelling depicted on plans approved by the Shire on 2 January 2002 ("the Aged Accommodation") shall be restricted to dependent persons or persons who are aged fifty[-]five (55) years or over or the surviving spouse of such a person ("the restriction").
Two other clauses of the deed are of particular interest to this matter. They are, in summary, firstly, cl 2, which has the applicants agreeing with the Shire that in the event of an application to strata title the 'Aged Accommodation' the applicants will endorse the 'Restriction' on the strata plan. The next is cl 7 which has the applicants further agreeing to not dispose of or encumber the site or part of the site unless the person to whom the interest is to be granted first executes a deed with the Shire whereby that person covenants to observe the conditions in the deed as if they had been party to the present deed. The applicants were also required to notify any prospective purchaser of the requirement to enter into the deed for the purpose of lodging an absolute caveat.
In April 2005, the Shire granted approval for a 95 square metre extension to the original house. The aged or dependent persons' dwelling is now 154 square metres plus verandahs, with three bedrooms, two bathrooms, a study, a kitchen, and dining and living areas.
On 21 January 2010, the owners of the site applied to the Western Australian Planning Commission (Commission or respondent) for approval to subdivide the site into a 1.78 hectare lot containing the newer house and a 1.53 hectare lot containing the older house used as an aged persons' dwelling. The Commission refused the application to subdivide and an application for review of that refusal was then filed with the Tribunal by Mr Ivan Tipping (applicant or Mr Tipping) pursuant to s 251(1) of the Planning and Development Act 2005 (WA) (PD Act).

The site and locality

The site is 3.31 hectares with frontage of approximately 212 metres to Husband Road at the southeast boundary. The older house on the site is 58 metres from the southwestern boundary and set back 20 metres from Husband Road. The newer house is 52 metres from the older house and is set back 25 metres from the road. The site also has sheds, water tanks, gardens, small paddocks and stands of mature trees.
Barragup is a locality immediately to the east of the urban centre of Mandurah. It is bounded on the west by the Serpentine River, to the north by Goegrup Lake, to the east by Black Lake and to the south by Pinjarra Road. To the south between Pinjarra Road and the Peel Inlet is Furnissdale. To the north, between Goegrup Lake and the Kwinana Freeway is Cogrup. Barragup, Furnissdale and Cogrup are characterised by a subdivision pattern of lots generally between about 1.5 hectares and about 4 hectares, with most lots at about 2 hectares with a single house and generally of the same development as the site. The respondent, in its statement of issues, facts and contentions, stated:
No agricultural activities occur on the subject land or on any of the properties in the locality. Properties in the general locality are best described as 'lifestyle blocks'.

Planning framework

Under Shire of Murray Town Planning Scheme No 4 (TPS 4), at Appendix 51, is a plan depicting the 'Barragup, Furnissdale and Cogrup Special Rural Zone'. The site is located within this special rural zone.
Clause 6.4.5 of TPS 4 states:
All subdivision, development and use of land within a Special Rural Zone shall comply with the Special Provisions contained in Schedule IV of the Scheme relating to the particular parcel or parcels of land, in addition to any other provisions contained in SubClauses 6.4.6 and 6.4.7 of this Part, and the Scheme generally.
Clause 6.4.6 of TPS 4 is concerned with each dwelling having a supply of potable water, either from a reticulated system, bore or rainwater storage and cl 6.4.7 is concerned with setbacks and building envelopes.
Schedule 4 of TPS 4 designates the 'Barragup, Furnissdale and Cogrup Special Rural Zone' as 'SR2' and in column (B) are listed 'Special provisions' which include:
(i)No lot shall be less than 2 ha in area.
Under Table 1 zoning table of TPS 4 for the Special Rural zone, aged or dependent persons' dwellings are an 'AA' (discretionary) use and both ancillary accommodation and grouped dwellings are an 'X' (not permitted) use. TPS 4 includes the definition:
Aged or Dependent Persons Dwelling  means a dwelling used for the accommodation of a person who is aged 55 years or over or for a person with a recognized form of handicap requiring special accommodation provisions for independent living or special care.
This definition is the only reference to aged or dependent persons' dwelling in TPS 4 relevant to condition 2 of the Shire's 2002 development approval.
The site is within 'Precinct 5 Furnissdale' of the Shire of Murray Local Rural Strategy (LR Strategy) which is discussed below.
The site is zoned Rural under the Peel Region Scheme (PRS). Clause 12(e) of the PRS states that the purpose of the rural zone is:
[t]o provide for the sustainable use of land for agriculture, assist in the conservation and wise use of natural resources including water, flora, fauna and minerals, provide a distinctive rural landscape setting for the urban areas and accommodate carefully planned rural living developments.
Clause 6 sets out various aims of the PRS, and these include at (a):
promote the sustainable development of land taking into account relevant environmental, social and economic factors.
The parties also made reference to State Planning Policy 2.5 Agricultural and Rural Land Use Planning (SPP 2.5). SPP 2.5 includes the following definitions:
RuralResidential zoneLand used for residential purposes in a rural setting which provides for alternative residential lifestyle and which seeks to preserve the amenity of such areas and control land use impacts.
Rural Smallholdings zoneLand used for minor rural pursuits, hobby farm, conservation lots and alternative residential life style purposes where part-time income from cottage industries, home occupation and use of the land for agriculture may be derived. This land use seeks to preserve and enhance landscape quality, environmental values and conservation attributes.
SPP 2.5 states that the Commission will only support subdivision for rural residential and rural smallholdings where the land has been appropriately zoned within a town planning scheme, and the provisions of the Commission's Development Control Policy 3.4 Subdivision of Rural Land (DC 3.4) can be complied with. DC 3.4 states, at cl 3.1:
It is WAPC policy that the subdivision of rural and agricultural land for closer settlement (rural-residential and rural smallholdings) and more intensive agricultural uses should be properly planned through the preparation of regional and local planning strategies and provided for in local planning schemes prior to subdivision.
The parties referred to the 'Inner Peel Region Structure Plan' (IPR Structure Plan), agreeing that it was the current operative strategic plan for the area that included the site. The IPR Structure Plan is discussed below.
Significant in the consideration of this matter is s 138 of the PD Act which relevantly states:
…
(2)Subject to subsection (3), in giving its approval under s 135 or 136 the Commission is to have due regard to the provisions of any local planning scheme that applies to the land under consideration and is not to give an approval that conflicts with the provisions of a local planning scheme.
(3)The Commission may give an approval under s 135 or 136 that conflicts with the provisions of a local planning scheme if
(a)the local planning scheme was not first published, or a consolidation of the local planning scheme has not been published, in the preceding five years and the approval is consistent with a State planning policy that deals with substantially the same matter;
(b)the approval is consistent with a region planning scheme that deals with substantially the same matter;
(c)in the opinion of the Commission
(i)the conflict is of a minor nature; or
(ii)the approval is consistent with the general intent of the local planning scheme;
(d)the local planning scheme includes provisions permitting a variation of the local planning scheme that would remove the conflict;
(e)in the case of an application under section 135, the local government responsible for the enforcement of the observance of the scheme has been given the plan of subdivision, or a copy, under section 142 and has not made any objection under that section; or
(f)the approval is given in circumstances set out in the regulations.
(4)…
Section 241(3) of the PD Act provides for the consideration of claims of hardship by an applicant in certain circumstances. This provision and the claims of the applicant are addressed at issue 4 below.

The refusal

The Commission refused the application for the reasons:
1)The Commission is not prepared to approve the subdivision as the resultant lot sizes would be below the 2 ha minimum indicated by the local government's town planning scheme.
2)Approval for the subdivision would set an undesirable precedent for the further subdivision of surrounding lots.
3)The subdivision is not consistent with provision 3.1 of WAPC Policy DC 3.4 'subdivision of rural land' as the subdivision of the land into lots below 2 ha is not provided for in the local government's town planning scheme.

The issues

The issues that arise for determination in this review are:
1)whether any of the provisions of s 138(3) of the PD Act are applicable so that approval may be given for a subdivision creating lots of less than 2 hectares;
2)whether, in the event that approval of the proposed subdivision may be given having regard to the provisions of s 138 of the PD Act, the proposed subdivision is inconsistent with existing and draft Shire and State planning schemes, policies and strategies;
3)whether the proposed subdivision would set an undesirable precedent for further subdivision of surrounding lots in the special rural zone; and
4)whether having regard to the claim of hardship will affect the application of sound planning principles.

Discussion

Issue 1: Whether any of the provisions of s 138(3) of the PD Act are applicable so that approval may be given for a subdivision creating lots of less than 2 hectares

The PD Act at s 138(2), set out in full above under planning framework, provides that approval is not to be given to a subdivision that conflicts with the provisions of the local planning scheme. Clause 6.4.5 of TPS 4 requires that:
All subdivision … within a Special Rural Zone shall comply with the Special Provisions in Schedule IV relating to the particular parcel or parcels … of land.
Schedule 4 of TPS 4 states that for SR2, within which the site is located, 'no lot shall be less than 2 ha in area'. The proposed lots at 1.53 hectares and 1.78 hectares are less than 2 hectares.
Section 138(3) of the PD Act sets out six alternative exceptions whereby approval may be given to a subdivision that conflicts with the provisions of the local planning scheme. The respondent said none of the exceptions under s 138(3) of the PD Act apply to the proposed subdivision. The applicant said three of the six exceptions apply, namely, s 138(3)(a), s 138(3)(b) and s 138(3)(c) of the PD Act, so the subdivision may be considered.
Section 138(3)(a) of the PD Act provides that approval of a subdivision in conflict with the local planning scheme may be given if:
the local planning scheme was not first published, or a consolidation of the local planning scheme has not been published, in the preceding 5 years and the approval is consistent with a State planning policy that deals with substantially the same matter.
It was common ground that TPS 4 was gazetted in 1989 and has not been consolidated in the last five years. The applicant said the State planning policy relevant to this matter was SPP 2.5.
It was the respondent's submission that some State planning policies that deal with subdivision and development are in direct conflict with a local planning scheme, such as at Perth airport, and therefore reference can be made to the policy when considering subdivision. Mr Richard Trethowan, a town planner employed by the Department of Planning who appeared as a witness for the respondent, said SPP 2.5 did not deal with substantially the same matter, that is, subdivision. He said SPP 2.5 provides guidance for higher levels of planning, including preparation of structure plans and local planning schemes. The site is already zoned Special Rural and so SPP 2.5 is not directly relevant.
Mr Matthew Young, a town planner called by the applicant to give evidence, said, and the respondent did not dispute, that the appropriate reference in SPP 2.5, when considering the site and Special Rural zoning under TPS 4, was to the rural residential zone, which by definition is land used for residential purposes in a rural setting, rather than to the rural smallholding zone, which by definition is land used for minor rural pursuits where part-time income might be derived. Mr Young pointed out that SPP 2.5 was gazetted in March 2002, after the gazettal of TPS 4. In his submission, SPP 2.5 dealt with lot sizes and development in conflict with the earlier TPS 4. Mr Young said the Shire has prepared draft Shire of Murray Local Planning Scheme No 5 (draft LPS 5) to address the conflicts.
The Tribunal notes that the site is already within a locality zoned for the equivalent of rural residential under SPP 2.5. The Tribunal is of the view, however, that it is not necessary that an SPP contain provisions in contradiction to those of an older local planning scheme, as asserted by the respondent. The Tribunal considers that an SPP is dealing with substantially the same matter where it provides guidance as to the matters to be considered and, depending upon the circumstances, a conclusion can be reached that a standard different from that stipulated in the older local planning scheme can be acceptable.

In this matter, SPP 2.5 states at cl 5.3.2(i)(a) that, in areas zoned RuralResidential, 'the lot size should range from 1ha to 4ha depending on local conditions'. The respondent said the 2 hectare minimum at Sch 4 of TPS 4 is in this range and therefore there was no inconsistency between the two documents. The Tribunal is of the opinion that because of the age of TPS 4 and the provisions of SPP 2.5 dealing with substantially the same matter, there is available, consistent with s 138(3)(a) of the PD Act, the opportunity to consider whether an approval may be granted for the proposed subdivision, 'depending upon local conditions'.
Section 138(3)(b) of the PD Act provides that subdivision in conflict with the local planning scheme might be approved if:
the approval is consistent with a region planning scheme that deals with substantially the same matter.
Mr Young said the PRS states the purposes of the rural zone include ' … provide a distinctive rural landscape setting for the urban areas and accommodate carefully planned rural living developments'. In Mr Young's submission, the subdivision would be consistent with careful planning of development within the SR2 zone and consistent with containment of established rural living areas. The subdivision would not in any way be inconsistent with the PRS. Mr Trethowan was of the view that the PRS did not deal with substantially the same matter as the provisions of TPS 4.
The Tribunal notes that the SR2 zone has been established and the PRS does not deal with lot size. The Tribunal is of the view that s 138(3)(b) of the PD Act does not assist the applicant.
Section 138(3)(c) of the PD Act provides that subdivision in conflict with the local planning scheme may be given approval if:
in the opinion of the Commission
(i)the conflict is of a minor nature; or
(ii)the approval is consistent with the general intent of the local planning scheme.
In respect of (i), the respondent said the conflict is not minor. The proposed lots would be, respectively, 11% and 24% below the minimum lot size of 2 hectares required for SR2 under Sch 4 of TPS 4. Mr Trethowan said there was no definition of minor or major but, by comparison, the Residential Design Codes of Western Australia (2008) (Codes), at cl 6.3.1, allow a variation of 5 per cent. The proposed variation was much greater than this. A 1.95 hectares lot had been approved in Barragup, a variation of 2.5 per cent. This he considered minor.
Mr Young disagreed with what he said was the respondent's 'narrow interpretation' of what was minor. He was of the opinion that 'minor' did not relate to lot size alone and must be considered in the wider planning context. Mr Young considered the proposed subdivision would have a limited, or minor, impact on the development and environment of the locality.
The Tribunal has formed the view that s 138(3)(c)(i) of the PD Act does not assist the applicant. This is because the variation in lot size is not minor. It might be that by comparison with lot sizes in the locality the proposed lot sizes are arguably a minor variation, but the variation from the lot size requirement of TPS 4 is not itself sufficiently minor to be reason why approval of the subdivision might be considered pursuant to s 138(3)(c)(i) of the PD Act.
In respect of s 138(3)(c)(ii) of the PD Act, whether an approval would be consistent with the general intent of the local planning scheme, it was common ground that there were no objectives specific to the special rural zone under TPS 4.
Mr Young said the subdivision would be consistent with the general objective at cl 2 of TPS 4 of ensuring orderly and proper development in the scheme area, and would not be inconsistent with specific objectives at cl 2.2. There would not be an impact on the streetscape of Husband Road or on the wider locality because the lots would have street frontages consistent with surrounding lot widths and there were already two dwellings on the site.
The respondent said the objectives at cl 2.1 and cl 2.2 of TPS 4 are so general that they provided no guidance. Mr Trethowan said the only guidance was in Sch 4 of TPS 4 and the subdivision did not comply with the minimum lot size set out in the schedule.
The Tribunal notes the proposed subdivision would not be inconsistent with the general objective at cl 2.1(ii) of TPS 4 of ensuring proper development because result would be rural residential lots with one house, but as the respondent said, the objectives of TPS 4 are mostly too broad to assist in this matter.
The Tribunal has formed the view that there is available an exception under s 138(3) of the PD Act, specifically s 138(3)(a), so that approval may be given to the proposed subdivision. It does not follow, of course, that approval must be given. It remains necessary to determine whether the proposed subdivision merits an approval being granted.

Issue 2: Whether, in the event that approval of the proposed subdivision may be given having regard to the provisions of s 138 of the PD Act, the proposed subdivision is inconsistent with existing and draft Shire and State planning schemes, policies and strategies

Starting with TPS 4, as stated above, TPS 4 includes general objectives at cl 2.1 and specific objectives at cl 2.2. The only assistance in assessing the proposed subdivision is found at objective cl 2.1(ii), which is to 'ensure the orderly and proper development of the Scheme Area'.
TPS 4 also does not include any objectives or intent for the SR2 zone. The special provisions for the SR 2 zone at Sch 4 state that 'no lot shall be less than 2 ha in area' and also refer to fencing, landscaping, fill levels and setbacks. TPS 4 does stipulate, in the zoning table, that grouped dwellings and ancillary accommodation are prohibited uses in the special rural zone. All of these matters together might reasonably be construed as an attempt to create a locality of particular character.
Mr Young was of the view that the site had unique circumstances for Barragup and was anomalous in respect to TPS 4. This was because the site was the only lot with two dwellings and these could be considered as grouped dwellings, a use that is prohibited. Mr Young asserted the subdivision would provide an opportunity to place the two dwellings on separate lots, thereby making the site consistent with the intent of TPS 4, and s 5.3.1(ii)(e) of SPP 2.5.
Mr Trethowan disagreed that the existing development on the site can be viewed as grouped dwellings. He said that TPS 4 contemplated approval for a single house with discretion available to approve an aged or dependent persons' dwelling and subdivision was not required for the continuation of this existing land use. In his submission, approval would provide the opportunity for a replication of the existing development on any additional lot created and this would be inconsistent with TPS 4.
The two experts agreed that the Shire had initiated an amendment to TPS 4 to remove from Table 1 aged or dependent persons' dwellings as an 'AA' use for the special rural zone. If the amendment were granted final approval, then it would not be possible to approve two dwellings on a special rural zoned lot. This would mean that the circumstances surrounding the development approvals for the site could not be repeated. The evidence was that this amendment to TPS 4 had not yet been advertised for public comment.
The Tribunal is of the view that the proposed subdivision would be consistent with TPS 4 because, other than lot size, development standards for the SR2 zone would be satisfied and additional development on the new lots a remote possibility. Grouped dwellings and ancillary accommodation are not permitted and, in the Tribunal's opinion, opportunities would be limited for aged or dependent persons' dwellings given the planning control amendments proposed, and, in any event, any application would have to be considered on its merit.
SPP 2.5 is concerned with lot size. First, in respect to SPP 2.5, the experts agreed that the site was not good quality agricultural land that required protection and that the subdivision will not result in environmental degradation because the site is already fully developed. The experts agreed that the existing development did not comply with s 5.3.1(ii)(e) of SPP 2.5 which requires that rural residential areas, which can be considered as generally equivalent to a special rural zone under TPS 4, have only one dwelling per lot. In this regard, SPP 2.5 and TPS 4 contradict each other and if subdivision were to occur, the resultant lots would have development consistent with SPP 2.5.
In respect of lot size, SPP 2.5 refers to a recommended range of '1ha to 4 ha depending on local conditions'. Mr Young's submission was that the proposed lots would be within this range and therefore consistent with SPP 2.5.
SPP 2.5 refers to rural residential subdivisions being consistent with DC 3.4. Section 3.1 of DC 3.4 requires that rural residential and rural smallholdings should be properly planned for through the preparation of planning strategies and provided for in local planning schemes. Mr Trethowan was of the view that this had occurred and TPS 4 required lots of a minimum area of 2 hectares. In this regard, therefore, the proposed subdivision would not comply with s 3.1 of DC 3.4. Mr Trethowan referred to the requirement at cl 5.3.2(d) of SPP 2.5 that for rural living local planning schemes include a mandatory requirement for reticulated potable water supply and the site did not have reticulated water.
Mr Young's evidence was that draft LPS 5 would be incorporating the standards of SPP 2.5 which would overcome the existing conflicts with TPS 4. It was common ground that LPS 5 had not been advertised, but Mr Young considered that the proposed subdivision being consistent with SPP 2.5 would also be consistent with draft LPS 5.
The Tribunal has formed the view, as set out under issue 2 above, that it is open to consider the lot size range of 1 hectare to 4 hectares 'depending on local conditions'. The Tribunal is of the opinion that 'local conditions' support the creation of the proposed lots. This is addressed further under issue 3 below, but the conclusion is based on the finding that two lots would have development that complied with relevant development standards and the length of the frontage to Husband Road. The Tribunal has concluded that the proposed subdivision would not be inconsistent with SPP 2.5.
The site is within 'Precinct 5 Furnissdale' of the Shire of Murray Local Rural Strategy (LR Strategy). The LR Strategy at cl 5.3.5 states that the principal objective of Planning Precinct No 5 is:
To provide a balance of urban growth and ruralresidential development which has minimal environmental impact on the adjacent Serpentine River and lakes, and which maintains a separate identity from neighbouring Mandurah.
The LR Strategy is from 1994 and the planning controls in place achieve these objectives. The Tribunal has formed the view that two lots of the size proposed would not be inconsistent with maintaining these objectives. If the subdivision were to be approved, the conclusion reached under issue 3 below is that the approval is unlikely to be a precedent for other subdivisions and so an approval would be consistent with this objective of the LR Strategy.
The PRS does not provide any direction or special provisions in regard to special rural subdivision. From the purpose of the PRS, set out in full under planning framework above, the only relevant consideration might be that the rural zone, is to 'provide a distinctive rural landscape setting for the urban areas and accommodate carefully planned rural living developments'. Given that Barragup is already a planned rural living development area the most than can be said is that the subdivision would not be inconsistent with this broad objective.
Under the IPR Structure Plan, the site is designated 'greenbelt rural living'. Mr Young said that the proposed subdivision was consistent with the objective for greenbelt rural living found at cl 12.1.5 of the IPR Structure Plan which was 'to contain rural living areas and stop them spreading and intruding into the broadacre rural areas'. The proposed subdivision, in his opinion, represented a consolidation of existing rural living area through the subdivision of a larger lot.
Mr Trethowan said that the IPR Structure Plan does not designate lot sizes for the greenbelt rural living area and does not contemplate intensification of the special rural area within which the site is located.
The Tribunal considers that because the proposed subdivision will not increase development density, and will not set an undesirable precedent for the intensification for development in Barragup, as discussed under issue 3 below. The best that can be said is that, as with the PRS, the proposed subdivision would not be inconsistent with the IPR Structure Plan.
The experts also made reference to 'Directions 2031 and Beyond' (Directions 2031). The version referred to by the experts was a draft. This document has now been published in its final form by the Commission in August 2010. The experts agreed that the site and Barragup in general was not identified in Directions 2031 as a location for longterm urban development. This continued the strategic direction of the IPR Structure Plan for the land to remain a rural lifestyle area. Mr Young pointed out that Directions 2031 identified Furnissdale and North Yunderup to the south of Pinjarra Road as being suitable for investigation for urban development. In his submission, this was an important planning principle in this subdivision, as the subdivision will not result in fragmentation of land that has long-term urban potential.
The Tribunal is inclined to agree with Mr Trethowan, who commented that Directions 2031 is a broad strategy for this region and has limited relevance to whether the site stays as one lot or is subdivided into two lots as proposed.
Mr Young referred to an additional seven draft or existing planning instruments. The draft instruments referred to had not been adopted or endorsed by the Commission. The Tribunal considers these are not sufficiently seriously entertained to be determinative of the outcome. Some planning instruments did not include the site. The best that can be said of these documents is that they generally endorse the principle that special rural and rural residential subdivisions should be consolidated, have appropriate services and should not compromise retention of valuable agricultural land and/or potential future urban development. Mr Young said, and the Tribunal agrees, that the proposed subdivision does not contradict these planning objectives.

Issue 3: Whether the proposed subdivision would set an undesirable precedent for further subdivision of surrounding lots in the special rural zone

Both the applicant and the respondent produced various plans to illustrate the subdivision pattern and range of lot sizes in Barragup and Furnissdale. The plan attached to the experts' joint statement states that there are 279 SR2 zoned lots in Barragup and 138 in Furnissdale/North Yunderup. The experts agreed that lot sizes in the SR2 zone in Barragup range between 1.6 hectares and 12.14 hectares. The prevailing lot size is between 2 hectares and 3 hectares, with the average being 2.405 hectares. The cadastral plans give an indication of development and subdivision potential and therefore whether a precedent might be set for the creation of lots under 2 hectares.
The experts agreed that there were 19 lots in Barragup and 12 lots in Furnissdale within the 3 hectare to 4 hectare lot size range that might be considered for subdivision, if an approval of the proposed subdivision were considered to be a precedent for subdivision of lots of a similar size.
Mr Young pointed out that Furnissdale, south of Pinjarra Road, was intended to be assessed for development for urban purposes under the IPR Structure Plan and Directions 2031. In his opinion, it would be unlikely that the Commission would grant approval for more intensive special rural subdivision because this would lead to the fragmentation of future urban land. Mr Young further submitted that the site was unique because it was the only lot in the SR2 zone of Barragup with two dwellings. He referred to other approvals for lots under 2 hectares in the SR2 zone.
Mr Trethowan said an approval would be viewed by others as a precedent for them to follow and the result would be in conflict with the planning objectives for the locality. His evidence was that the Commission had not granted approval to a subdivision of any lots below 2 hectares since 1994. Approvals that had been previously granted had been minor variations, or related to open space adjoining waterways being given up, or were old. None had been approved on review of a Commission decision since the Tribunal came into existence. He said other applicants would not know whether the second dwelling on the site was built before or after subdivision.
In Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117 at [71] [75], the Tribunal adopted the following criteria, from Goldin and Anor v Minister for Transport (2002) 121 LGERA 101, as the circumstances in which precedent is a relevant consideration in a planning assessment:
1.that the proposed developments for subdivision were not themselves unobjectionable; and
2.that there was more than a mere chance or possibility that there may be later undistinguishable development applications.
The Tribunal has formed the view that the proposed subdivision would not be objectionable in respect of the impact it would have on the Barragup locality. This is because the resultant lots would have a frontage equivalent to, or larger than, most other frontages in the locality, and both lots would contain development similar to that on other lots. The one aspect of development that is objectionable in planning terms is that the lots created would be smaller than the minimum size stipulated in Sch 4 of TPS 4. The Tribunal considers, however, from the evidence on lot sizes, the additional lots that might result would be a sufficiently small proportion of the overall lot numbers as to not have an impact that would change the character of the locality.
It is acknowledged that one of the houses on the site is an aged or dependent persons' dwelling by agreement between the owners and the Shire. The Tribunal received no legal submissions, but from the deed it would appear that the agreement between the current owners of the site and the Shire would remain enforceable. The original intention of the 2002 development approval would not be lost, but would remain in the control of the Shire.
The aged or dependent persons' dwelling would be on its own lot, and it is not common that there be just one such dwelling on a lot, but there is nothing in TPS 4 to prevent this. The Tribunal would comment that aged or dependent persons' dwellings are not commonly associated with or required to be on a lot with a single house, such as is required for ancillary accommodation. As stated in the explanatory guidelines for Pt 7 of the Codes, the development colloquially known as a 'granny flat' is a form of ancillary accommodation, not an aged or dependent persons' dwelling. The Tribunal considers that separating the aged or dependent persons' dwelling from the single house by subdivision would not be improper, and therefore objectionable, planning.
In considering whether there would be a mere chance or possibility that there may be later undistinguishable applications by other landowners in the locality, the Tribunal has formed the opinion that this unlikely to be the case. The evidence before the Tribunal was that the site is the only lot which contains two houses.

Grouped dwellings and ancillary accommodation are not permitted in the SR2 zone. The experts noted that there had been prepared a scheme amendment to change aged or dependent persons' dwellings from a discretionary use to a use not permitted in the zone. This amendment to the scheme has not yet been advertised, but it is a consideration and does give an indication of the direction of the planning of the locality being considered by the Shire.
The Tribunal has formed the view that, because of these particular circumstances, the proposed subdivision would not result in the creation of an undesirable precedent.
The Tribunal was assisted in reaching this conclusion when there was also added to the consideration the claim of hardship by the applicant. This is discussed as the next issue.

Issue 4: Whether having regard to the claim of hardship will affect the application of sound planning principles

Section 241(3) of the PD Act provides:
In determining an application for the review of the determination of, or conditions imposed in respect of, an application for approval to subdivide a lot into not more than three lots, the State Administrative Tribunal may have regard to claims of hardship raised by the applicant and proved to the satisfaction of the State Administrative Tribunal, if the State Administrative Tribunal is of the opinion that such regard will not affect the application of sound planning principles.
The applicant's bundle of documents included copies of Mr and Mrs Tipping's medical records. Mr Tipping also provided a witness statement. Mrs Tipping, who is in her sixties, is legally blind because of macular degeneration. Mrs Tipping is also totally deaf in one ear and partially deaf in the other, is a diabetic and has high blood pressure. Mrs Tipping is a dependent person and Mr Tipping a sole carer, providing her with assistance to get to shops, doctors, specialists and other services in this semirural area with limited public transport. Mr Tipping was the sole carer for Mrs Tipping when he was diagnosed with mesothelioma in December 2008, which he described as a terminal cancer. Mrs Desker, their daughter, who lives in the other house with her husband and son, is a fulltime worker and her son is a primary school student. Heـand Mrs Tipping therefore have limited support from their family.
It was Mr Tipping's submission that Mrs Tipping will soon have to move to accommodation where she can get the support she needs, because he will not be there to support her. To achieve this, Mr Tipping says he needs to sell their house and share of the property. Mr Tipping's daughter is not able to buy them out, and so, unless they subdivide, the lot as a whole would have to be sold, if a buyer for two houses could be found, which would be disruptive to his daughter and her family.
The respondent's comments on the claim of hardship are properly restricted to the comment that, as required by s 241(3) of the PD Act, regard must be had to the application of sound planning principles and, in its submission, as set out in the discussion under the issues above, it believes the creation of the lots of the size proposed would conflict with Sch 4 of TPS 4 and therefore be in conflict with sound planning principles. The respondent's submission was that no regard should therefore be had to the claim of hardship.
The site is owned by Mr and Mrs Desker with one halfshare and Mr and Mrs Tipping the other halfshare as tenants in common. This form of ownership would enable a onehalf undivided share to be sold, but the applicant's submission was that it would be difficult to sell such a share, given the two dwellings on the land. The submission on behalf of the applicant was that sale would be likely to occur more quickly if two green titles were created and given the prognosis for Mr Tipping this would best suit the applicant's need to immediately provide for Mrs Tipping.
The Tribunal is conscious that caution is required when having regard to a claim of hardship. It is important to emphasise that the claim is one of hardship not a claim that the application is to be treated compassionately or determined on compassionate grounds: Tyrell v Western Australian Planning Commission [2004] WATPAT 172 (Tyrell) at [33]. Hardship has an element of objectivity hence the express reference to the need to prove hardship to the satisfaction of the Tribunal: Tyrell at [35]. Development and subdivision approvals remain with the land. The Tribunal must be satisfied the hardship is related to the present planning situation and that having regard to the hardship considerations would not affect the application of sound planning principles.
The development on the land was granted approval in 2002. The disease that now affects Mr Tipping was diagnosed in 2008. The changed circumstances of the owner require a different planning solution to that previously sought and achieved. The planning for the locality may ultimately facilitate the current proposal, but the applicant cannot wait. The Tribunal has formed the view that the combination of planning and personal circumstances in this instance result in personal hardship for the applicant.
Personal hardship should only be a consideration where planning merits are equally balanced. In this matter, the Tribunal is aware that the lot size control in TPS 4 should not be lightly set aside, and particularly solely for compassionate grounds. However, having regard to the conclusion reached in respect of the three issues above, the Tribunal has formed the view that on balance there is a planning case for the proposed subdivision. Having regard to the hardship considerations of the applicant in support of the subdivision would not be in conflict with the application of sound planning principles.

Conclusion

The proposed subdivision would be in conflict with the lot size requirement for SR2 at Sch 4 of TPS 4, which requires a minimum lot size of 2 hectares. The Tribunal formed the view that approval may be given to the proposed subdivision in conflict with TPS 4 as provided for under s 138(3) of the PD Act. More particularly, the exception available under s 138(3)(a), which refers to a local planning scheme not being first published or consolidated in the preceding five years, which is the case with TPS 4, and, there being a State planning policy that deals with substantially the same manner, namely lot size. SPP 2.5 is a State policy that deals with lot sizes.
There are various planning instruments relevant to the proposed subdivision. The Tribunal found that the proposed subdivision would be inconsistent with the lot size standard for SR2 under TPS 4, but otherwise would be consistent with the objective for ensuring orderly and proper development. The Tribunal further found that the proposed lot sizes could be allowed consistent with SPP 2.5 having regard to 'local conditions'. In general, the proposed subdivision was found not to be inconsistent with the objectives of the other relevant planning instruments.
The Tribunal concluded that, if allowed, the proposed subdivision would not establish a precedent for the subdivision of the locality. This was because the circumstances of the proposal were such that it was not objectionable and there was less than a mere chance or possibility that there would be later undistinguishable applications.
The applicant also made a claim of hardship in support of the proposed subdivision. Having regard to the conclusion reached on the merits of the proposal, that is, that on balance there is a planning case for the proposed subdivision, the Tribunal concluded that having regard to the applicant's claim of hardship in support of the subdivision would not be in conflict with the application of sound planning principles.
The Tribunal has decided to uphold the application and grant planning approval for the proposed subdivision.

Conditions

As required by the orders of the Tribunal, the respondent provided a schedule of draft conditions, without prejudice to its position, it would want imposed if the subdivision is allowed. The only condition discussed between the parties was a requirement for reticulated water. The respondent then withdrew the requirement for reticulated water, having regard to the fact that scheme water is some distance away and the evidence was that each dwelling on the site is currently served by an adequate on-site potable water supply.

Orders

1.The application for review is upheld.
2.The refusal of the Western Australian Planning Commission of 16 March 2010 is set aside and approval is granted for the proposed subdivision of Lot 28 Husband Road, Barragup, subject to the following conditions:
1)An acid sulphate soils self-assessment form and, if required as a result of the self-assessment, an acid sulphate soils report and an acid sulphate soils management plan shall be submitted to and approved by the Department of Environment and Conservation before any site works are commenced. Where an acid sulphate soils management plan is required to be submitted, all site works shall be carried out in accordance with the approved management plan.
2)The subdivider making suitable arrangements for the local government to ensure that prospective purchasers of the lots will be advised of those provisions of the local government's town planning scheme that relate to the use and management of the land.
3)A Notification pursuant to s 165 of the Planning and Development Act 2005 (WA) is to be placed on the Certificates of Title of the proposed lots advising of the existence of a hazard or other factor. Notice of this Notification is to be included on the deposited plan. The Notification is to state as follows:
This lot is in close proximity to known mosquito breeding areas. The predominant mosquito species is known to carry Ross River Virus and other diseases.
4)The provision of easements for existing or future water, sewerage and drainage infrastructure as may be required by the Water Corporation being granted free of cost at body.
5)Arrangements being made to the satisfaction of the Western Australian Planning Commission and to the specifications of Western Power for the provision of an underground electricity supply service to the lots shown on the approved plan of subdivision.

I certify that this and the preceding [97] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J JORDAN, MEMBER