WA LANDBANK PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION - [2023] WASAT 93

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION:   WA LANDBANK PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2023] WASAT 93
MEMBER:   MS R LAVERY, MEMBER
HEARD:   22, 23 & 24 May 2023
DELIVERED          :   29 SEPTEMBER 2023
FILE NO/S:   DR 277 of 2021
BETWEEN:   WA Landbank Pty Ltd
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
N/A

Catchwords:

Subdivision - Refusal - Rural zoning - Rural lot with natural vegetation - Objectives of State planning policies for the subdivision of rural land - Objectives of local planning scheme - Subdivision of conservation category wetland - Bushfire management

Legislation:

Development Control Policy 3.4 - Subdivision of Rural Land, s 6, cl 5(a), cl 6
Draft State Planning Policy 2.9 - Planning for Water, cl 5.1, cl 6.2, cl 7.2, cl 8.0
Environment Protection and Biodiversity Conservation Act 1999 (WA)
Environmental Protection Authority (EPA) Guidance Statement No 33 - Environmental Guidance for Planning and Development (GS 33), Pt B, cl B4.2.2, cl B4.3.2
Fire and Emergency Services Act 1998 (WA), s4, s18P, Pt4A
Peel Region Scheme, cl 6(a), cl 12(e)
Planning and Development Act 2005 (WA), s 252(1)
Shire of Murray Local Planning Scheme No 4, cl2.2(f)
Shire of Murray Nambeelup North Dandalup Local Rural Strategy, cl 4.2, cl 4.4
South Metropolitan and Peel Sub-Regional Planning Framework, s 3.8,
State Administrative Tribunal Act 2004 (WA)
State Planning Policy 2.0 - Environment and Natural Resources, cl 4, cl 5.1
State Planning Policy 2.5 - Rural Planning, cl 3.3(b), cl 4(g), cl5a), cl 5.1, cl 5.1(c), cl 6.5, cl 12(e)
State Planning Policy 2.5 Rural Guidelines
State Planning Policy 2.9 - Water Resources, cl 4(1), cl 5.1, cl 5.3,
State Planning Policy 3.7 - Planning in Bushfire Prone Areas, cl 5, cl 5.4, cl 5.3.1

Result:

Application dismissed

Representation:

Counsel:

Applicant	:	Mr A J Marshall
Respondent	:	Mr J Algeri as agent
N/A	:

Solicitors:

Applicant	:	In Person
Respondent	:	Altus Planning as agent
N/A	:	N/A

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

Aston and Western Australian Planning Commission [2018] WASAT 11
Remove a-All-Rubbish Pty Ltd v City of Salisbury (1989) 51 SASR 26, 34 (Jacobs J)

Pritchard J in Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 (Marshall) at [182]

Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433 at 24

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

WA Landbank Pty Ltd (applicant) seeks review of a decision by the Western Australian Planning Commission (respondent) to refuse a two-lot subdivision of Lot 26 Lakes Road, Nambeelup (subject land) to create lots of 40ha (proposed Lot 1) and 46.6 ha (proposed Lot 2) (proposed subdivision).
In these reasons, the Tribunal will firstly describe the subject land, the proposed subdivision, and the applicable legislative framework. The Tribunal will then set out, and in turn consider, the principal issues for determination in these proceedings.
For the reasons given below, the Tribunal finds that the 'correct and preferable decision at the time of the decision upon the review', under s 27(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) in the exercise of planning discretion, is to refuse to grant approval for the subdivision of the subject land.

Subject land

The subject land is more particularly described as Lot 26 being the whole of the land contained in the Certificate of Title Volume 2211 Folio 158 with an area of 86.6ha.
Memorials are registered on the Certificate of Title in relation to:
1.aircraft noise associated with the nearby Murrayfield Airport;
2.odours associated with the nearby Lakes Road Abattoir and the adjacent piggery; and
3.the proximity of the subject land to mosquito breeding areas.
A portion of the subject land is also burdened by a restrictive covenant to the benefit of the Shire of Murray (the Shire) to ensure that any remnant vegetation is not removed or destroyed. The area affected by the restrictive covenant sits within proposed Lot 1.[1]
[1] Respondent's s 24 Bundle of documents dated 22 December 2023 - Document 10.d – Application for Review, Appendix 4.0 - Restrictive covenant - pages 132-138 .
A significant portion of the subject land is mapped as Conservation Category Wetland (CCW) (UFI 6394 and UFI 5033) and portions of the land are mapped as Multiple Use wetlands in the Geomorphic Wetlands (Swan Coastal Plain) dataset.[2]
[2] Respondent's s 24 Bundle of documents dated 22 December 2023 – Document3.d - Delegated Authority Report, Attachment 4 - Conservation Category Wetland map, page 53.
The majority of the subject land is also:
(a) affected by Priority 3 - WA Threatened and Priority Ecological Communities; and[3]
(b)mapped by the Environmental Protection Authority (EPA) as a Peel Regionally Significant Natural Area (RSNA).[4]
[3] WA Threatened and Priority Ecological Communities.
[4] Peel Regionally Significant Natural Area (RSNA).

Surrounding Area

Land in the surrounding area comprises:
•the Murrayfield Airpark to the west beyond Nambeelup Road;
•an intensive piggery on Lot 89 to the north-west;
•rural land to the north;
•predominantly developed rural residential subdivision associated with a kennel zone to the east;
•rural land beyond Lakes Road to the south, including Lot 1 which includes a now closed abattoir; and
•the Nambeelup industrial area to the south-west. The site is located on the north-eastern corner of the intersection of Lakes Road and Nambeelup Road.[5]
[5]Respondent's SIFC dated 22 December 2022 and s 24 bundle of documents - Document 3.b – Delegated Authority Report, Attachment 2 - Aerial plan of subject land and surrounds, page 51.

Procedural history

The applicant lodged an application for subdivision approval with the respondent on 31 August 2021 for the subdivision of the subject land into two lots with areas of 40ha (Lot 1) and 46.6ha (Lot 2) in accordance with a plan dated 1 September 2021.
On 7 December 2021, the respondent refused the application for subdivision for the following reasons:
'1.The proposed subdivision is contrary to the Rural zone in the Peel Region Scheme which aims to assist in the conservation and wise use of natural resources including water, flora and fauna.
2.The proposed subdivision is contrary to the Nambeelup North Dandalup Local Rural Strategy (2012) (WA), which aims to protect Conservation Category Wetlands (section 4.2).
3.The proposed subdivision is contrary to State Planning Policy 2.0 Environment and Natural Resources Policy which aims to consider the potential impacts of land use on the environment and support the conservation, protection and management of native remnant vegetation where possible as:
(a)The proposed subdivision would result in clearing of native vegetation and threatened ecological communities; and
(b)Insufficient information has been provided to assess the native vegetation and threatened ecological communities, and justify its clearing.
4.The proposed subdivision is contrary to the Environmental Guidance for Planning and Development – Guidance Statement No.33 which requires lot boundaries to not intersect with Conservation Category Wetlands and their buffers (section B4.3.2).
5.The proposed subdivision is contrary to State Planning Policy 2.9 Water resources which aims to protect, manage, conserve and enhance the environmental attributes, functions and values of Conservation Category Wetlands (policy measure 5.3 (ii)).
6.The proposed subdivision is contrary to Draft State Planning Policy 2.9 Planning for Water which aims to protect sensitive water resources and retain vegetation within wetland buffers and sensitive water resource areas (policy measures 7.2 (c), (f) and (g)).
7.The application is inconsistent with State Planning Policy 2.5 - Rural Planning as the subdivision proposal:
(a)would result in the creation of new rural lots through ad-hoc unplanned subdivision (policy measures 5.1(f) and 6.5);
(b)does not ensure the retention and protection of rural land for biodiversity protection, natural resource management and protection of valued landscapes (policy measure 5.1 (c)); and
(c)does not comply with policy measures 5.1(e), 6.5(a) and 6.5(b) which provide for the creation of new rural lots by exception where only in accordance with the exceptional circumstances identified in Development Control Policy 3.4 - Subdivision of Rural Land, or provided for in other State Planning Policies and/or a local planning strategy or scheme.
8.The application is inconsistent with Development Control Policy 3.4 – Subdivision of Rural Land which only supports the creation of new or smaller lots in specific and exceptional circumstances, and the application does not satisfy the criteria of any of the exceptional circumstances listed under section 6.
9.The proposed subdivision is inconsistent with State Planning Policy 3.7 Planning in bushfire prone areas which applies where there is land use intensification as:
(a)A BAL Contour Map has not been submitted as required by policy measure 6.4 to determine the indicative acceptable BAL ratings across the subject site;
(b)An assessment against the bushfire protection criteria contained in the Guidelines for Planning in Bushfire Prone Areas has not been provided as part of the application. Therefore, the application is deemed non-compliant with State Planning Policy 3.7 Planning in bushfire prone areas as it has not been demonstrated that the bushfire risk can be managed;
(c)It has not been demonstrated that there is a developable area of BAL-29 and below in accordance with Element 2 of the Guidelines for Planning in Bushfire Prone Areas; and
(d)Proposed Lot 2 is located on a cul-de-sac greater than 200 metres, which does not comply with Element 3 of the Guidelines for Planning in Bushfire Prone Areas. Specifically, demonstrating that two access routes are provided, and cul-de-sacs to have a maximum length of 200 metres.
10.Approval of the subdivision would set an undesirable precedent for the further subdivision of similar 'Rural' zoned lots with a Conservation Category Wetland and environmentally sensitive areas.' [6]
[6] Respondent's s 24 Bundle Tab 2 – Decision letter dated 7 December 2021.
The applicant lodged an application for review of the decision with the Tribunal on 23 December 2021. The Tribunal referred the matter for mediation.
A two-lot subdivision proposal for the subject land was also refused by the respondent on 11 October 2002. Those reasons for refusal were as follows:
1.The nature of the land is such that it is not considered suitable for closer subdivision and development than that already existing.
2.The site contains a "Conservation Category" Wetland protected under the Environmental Protection (Swan Coastal Lakes) Policy 1992. Subdivision of the site will increase the potential for degradation of the wetland contrary to policy for its protection.
3.The site is affected by the Murrayfield Airpark. Further development around the airpark is not supported because of the potential impacts of current and future aircraft operations.
4.Subdivision will prejudice the long term expansion of the adjoining Murrayfield Airpark.
5.The whole of the southernmost lot is affected by severe development constraints including a "Conservation Category" Wetland, aircraft noise, buffer from the abattoir and proposed kennel buffer. Development of this lot would not be approved because of these constraints.[7]
[7] Respondent's Statement of Issues Facts and contentions dated 22 December 2022, para 4.

Regional Planning Framework

Peel Region Scheme

The subject land is zoned Rural under the Peel Region Scheme (PRS). The purpose of the Rural zone as described at clause 12(e) of the PRS is:
…
to 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;
…
A relevant aim of the PRS under clause 6(a) is to 'promote the sustainable development of land taking into account relevant environmental, social and economic factors.'

South Metropolitan and Peel sub-regional Planning Framework

The subject land is identified as 'Rural' under the South Metropolitan and Peel sub-regional Planning Framework (sub-regional framework).
Section 3.8 contains a 'presumption against subdivision of rural land where the subdivision is inconsistent with State Planning Policy 2.5 - Rural Planning' (SPP 2.5).

State Planning Policy 2.0 – Environment and Natural Resources (SPP 2.0)

The objectives of SPP 2.0 are provided in cl 4:
4. OBJECTIVES
The objectives of this policy are:
•to integrate environment and natural resource management with broader land use planning and decision-making;
•to protect, conserve and enhance the natural environment; and
•to promote and assist in the wise and sustainable use and management of natural resources.
The general measures at cl 5.1 include:
The implementation of planning decisions can have an impact on the environment and other natural resources. The following policy measures recognise the significance of natural resources, and should be read in conjunction with the more specific statements on aspects of natural resources that follow. Planning strategies, schemes and decision-making should:
(i)Avoid development that may result in unacceptable environmental damage
(ii)Actively seek opportunities for improved environmental outcomes including support for development which provides for environmental restoration or enhancement.
(iii)Take account of the availability and condition of natural resources, based on best available information at the time.
(iv)Protect significant natural, indigenous and cultural features, including sites and features significant as habitats and for their floral, cultural, built, archaeological, ethnographic, geological, geomorphological, visual or wilderness values.
(v)Take into account the potential for economic, environmental and social (including cultural) effects on natural resources.
(vi)Recognise that certain natural resources, including biological resources, are restricted to particular areas and that these geographical areas or land types may need to be identified accordingly and appropriate provision made to protect the areas for the use of those resources.
(vii)Take account of the potential for on-site and off-site impacts of land use on the environment, natural resources and natural systems.
…
(x)Support conservation, protection and management of native remnant vegetation where possible, to enhance soil and land quality, water quality, biodiversity, fauna habitat, landscape, amenity values and ecosystem function.
(xi)Consider alternatives to land acquisition for conservation and landscape protection where limited or no public access is required.
…

State Planning Policy 2.9 – Water Resources (SPP 2.9)

SPP 2.9 provides guidance in the planning, protection and management of surface and groundwater catchments, including wetlands.
The policy objective relevant to this case is clause 4(1) is to:
1.protect, conserve and enhance water resources that are identified as having significant economic, social, cultural and/or environmental values
…
Clause 5.1 relevantly provides general measures General measures. The relevant general measure states:
(i)Protect significant environmental, recreational and cultural values of water resources.
…
Clause 5.3 relevantly seeks to:
(i)Protect, manage, conserve and enhance the environmental functions and values of waterways and estuaries. …
(ii) Protect, manage, conserve and enhance the environmental attributes, functions and values of significant wetlands, such as Ramsar wetlands, conservation category wetlands and wetlands identified in any relevant environmental protection policy.
(iii)Manage, conserve and, where possible, restore the environmental attributes, functions and values of resource enhancement wetlands.
(iv)Ensure adequate and appropriate buffering of wetlands, waterways and estuaries to maintain or enhance the environmental attributes, functions and values of the water resource and minimise the impact of nearby land uses, both existing and future.
(v)Ensure adequate and appropriate buffering of wetlands, waterways and estuaries to maintain or enhance the environmental attributes, functions and values of the water resource and minimise the impact of nearby land uses, both existing and future.

Draft State Planning Policy 2.9 – Planning for Water (Draft SPP 2.9)

Draft SPP 2.9 was advertised for public comment from 10 August 2021 to 15 November 2021. Accordingly, the respondent contends that Draft SPP 2.9 is a seriously entertained planning instrument. Once published, Draft SPP 2.9 will replace a number of State Planning Policies, including SPP 2.9 however no timeframe for the publishing of Draft SPP 2.9 has been provided and at this time it is not considered to be imminent or certain.
The first 'Policy Objective' at clause 5.1 of Draft SPP 2.9 is to:
Protect and improve the environmental, social, cultural and economic values of the State’s water resources.
…
The relevant 'Policy Outcome' at clause 6.2 states that:
Waterways and wetlands have adequate foreshore areas and wetland buffers to protect, manage and conserve water quality and quantity, native vegetation, aquatic and riparian habitats, ecological linkages and associated biodiversity values.
Clause 7.2 'Environmental, social and cultural values' with regards to wetlands and waterways states:
Proposals should, in accordance with the Guidelines:
a) identify wetlands and their buffers and waterways…;
b) facilitate the transfer of wetland buffers and waterway foreshore areas to public ownership, where appropriate; and
c) retain and/or restore vegetation important for the long-term health of water resources within wetlands buffers and waterway foreshore areas with the restoration of vegetation should preferably using endemic species.
Clause 8.0 'Definitions' provides a definition for 'Significant wetland' in Draft SPP 2.9 is as follows:
Significant wetland: include Ramsar wetlands and those listed in the Australian Government’s Directory of Important Wetlands in Australia; wetlands categorised as Conservation Category in the Department of Biodiversity, Conservation and Attraction’s Swan Coastal Plain wetlands dataset, wetlands listed in the South Coast Significant Wetlands dataset, other endorsed wetland dataset and other wetlands that have been identified for protection during the land planning process.[8]
[8] Draft State Planning Policy 2.9 Planning for water August 2021, page 9.
Draft SPP 2.9, includes CCWs in the definition of a significant wetland that is identified for protection during the land planning process.

Environmental Protection Authority (EPA) Guidance Statement No. 33 – Environmental Guidance for Planning and Development (GS 33)

Part B 'Biophysical factors' Chapter B4 - Wetlands sets out the EPA’s broad principles for the protection of wetlands and urges that all CCWs and buffers are fully protected.
Clause B4.2.2 states that CCWs identified on the Geomorphic Wetlands Swan Coastal Plain dataset are wetlands of high conservation significance.

Clause B4.3.2 seeks to ensure that detailed information is obtained on the location of the wetlands, their attributes, functions and management category. Clause B4 3.2 also states that lot boundaries should be located so that they do not intersect wetland and their buffers (as lot boundaries are typically cleared, and kept free to native vegetation, for purposes such as fencing, access and firebreak).
The applicant has not submitted current information in relation to cl B4.3.2 and the proposed subdivision boundary traverses the area identified as CCW.
Management measures of GS 33 relevantly include:
•Boundary alignment - Locate lot boundaries so that they do not intersect wetlands and their buffers. This is recommended as lot boundaries are typically cleared and kept free of native vegetation for fencing, access and firebreak purposes. Careful boundary alignment is especially important in the case of Conservation category wetlands
….
• Wetland buffers - Determine, protect and manage a buffer between a wetland and existing or proposed land uses. This is crucial to maintain or improve wetland values
…
• Retain all remnant vegetation in the buffer
…
• Prepare and implement a wetland management plan for the wetland and its buffer
…
A minimum 50 metre wide vegetated buffer is required for a CCW under GS 33 Attachment B4-3 however site-specific buffers may be determined based on assessment of the wetland’s values, and proposed activities and land uses near the wetland, and GS 33 sets out the criteria for studies to be provided to determine the buffer extent.

State Planning Policy 2.5 – Rural Planning (SPP 2.5)

Clause 3.3(b) states that SPP 2.5 'is to be applied to State and local government planning decision-making for:
…
(b) subdivision proposals for rural zoned land, in tandem with Development Control Policy 3.4: Subdivision of rural land'
…
The Policy Intent of SPP 2.5 is stated as:
The purpose of this policy is to protect and preserve Western Australia’s rural land assets due to the importance of their economic, natural resource, food production, environmental and landscape values. Ensuring broad compatibility between land uses is essential to delivering this outcome.
The relevant objective of SPP 2.5 under cl 4(g) is to 'protect and sustainably manage environmental, landscape and water resource assets'.
Clause 5.1 of SPP 2.5, states that:
The WAPC will seek to protect rural land as a State resource by:
…
(c) ensuring retention and protection of rural land for biodiversity protection, natural resource management and protection of valued landscapes and views; and
…
(e) creating new rural lots only in accordance with the circumstances under which rural subdivision is intended in Development Control Policy 3.4: Subdivision of rural land;
…
Relevantly cl 6.5, states that:
In contemplating subdivision proposals on rural land, WAPC policy is:
(a) the creation of new or smaller rural lots will be by exception and in accordance with Development Control Policy 3.4: Subdivision of rural land;
(b) the creation of new or smaller rural lots by exception may be provided for in other State Planning Policies and/or a local planning strategy or scheme.
…

Development Control Policy 3.4 – Subdivision of Rural Land (DC 3.4)

DC 3.4 guides the subdivision of rural land to achieve the key objectives of SPP 2.5. The general policy provisions for subdivisions on rural zoned land states at cl 5(a) that 'the creation of new or smaller lots will be the exception' and provides in cl 6, a list of 'exceptional circumstances' under which rural subdivision may be considered, as follows:
(a) to realign lot boundaries with no increase in the number of lots, where the resultant lots will not adversely affect rural land uses;
(b) to protect and actively conserve places of cultural and natural heritage;
(c) to allow for the efficient provision of utilities and infrastructure and/or for access to natural resources;
(d) in the Homestead lot policy area (Appendix 2), to allow for the continued occupation of existing homesteads when they are no longer used as part of a farming operation; and
(e) for other unusual or unanticipated purposes which, in the opinion of the WAPC, do not conflict with this and other relevant policies and are necessary to the public interest.

State Planning Policy 3.7 – Planning in Bushfire Prone Area (SPP 3.7)

The subject land is designated as a bushfire prone area by the Fire and Emergency Services Commissioner under Part 4A, s 18P of the Fire and Emergency Services Act 1998 (WA) (FES Act).
Pursuant to s 4 of the FES Act, SPP 3.7 applies to subdivision applications located in designated bushfire prone areas and requires the policy to be read in conjunction with the Bushfire Guidelines for Planning in Bushfire Prone Areas (Bushfire Guidelines).
The intent of SPP 3.7 is "to implement effective, risk-based land use planning and development to preserve life and reduce the impact of bushfire on property and infrastructure."

Local Planning framework

Shire of Murray Local Planning Scheme No. 4 (LPS 4)

The subject land is zoned 'Rural' under LPS 4. The surrounding land is zoned 'Rural' to the north, 'Special Use: Kennel' to the east, 'Special Use: Abattoir' and 'Rural' to the south and 'Special: Various' for the Murrayfield Airport and 'Special Use: Nambeelup Industrial Development' to the west, under LPS 4.
Clause 2.2(f) of LPS 4 is titled 'Specific Objectives' and states that a specific objective of the Shire is 'to preserve the special environment associated with the lakes and waterways within the Scheme Area.'

Shire of Murray Nambeelup North Dandalup Local Rural Strategy (LRS)

The subject land is identified as 'Rural' under Figure 4 of the LRS, a non-statutory document approved by the respondent to guide future rural land use in the Nambeelup and North Dandalup areas as an interim guidance document pending the Shire's local planning scheme review. A minimum 40ha lot size is provided under cl 6.4 for land zoned Rural under the LRS.
Clause 4.2 identifies the subject land as a CCW with Priority 2 vegetation (as per Figure 3). Clause 4.4 of the Rural Strategy states that:
Whilst limited occurrences of declared rare flora, protected fauna and threatened ecological communities have been identified within the study area, this is most likely due to a lack of survey information in the area highlighting that vegetation.[9]

Referrals to Department of Biodiversity, Conservation and Attractions (DBCA) and Department of Water and Environmental Regulation (DWER)

[9] LRS cl 4.4, para 2.

The subdivision application was referred to the DBCA which responded on 26 October 2021 noting that an environmental report had not been provided to the DBCA for it to comment on and that the extent of native vegetation clearing has not been outlined. It goes on to explain that:
Most of Lot 26 is mapped as Conservation category wetland (CCW) (UFI 6394 and UFI 5033) in the Geomorphic Wetlands (Swan Coastal Plain) dataset. The Environmental Protection Authority (EPA) Guidance Statement 33 - Environmental Guidance for Planning and Development (2008) outlines that CCW’s and their buffers should be fully protected, and that wetlands that are to be protected should have a minimum 50 metre buffer. Section B4.3.2 of the Guidance Statement outlines that lot boundaries should be located so that they do not intersect wetlands and their buffers, and careful boundary alignment is especially important in the case of Conservation category wetlands.[10]
The proposed new lot boundary between proposed Lot 1 and Lot 2 runs through the middle of the mapped CCW boundary.
[10] Respondent's s 24 Bundle of documents dated tab 9(c) page 69 DBCA Referral Response dated 26 October 2023
In objecting to the subdivision applications, the DBCA also identified further matters for consideration:
… review by DCBA and DWER of the environmental values of the wetlands currently mapped in the Geomorphic Wetlands of the Swan Coastal Plain (GWSCP) dataset using available data and advise that while this dataset is unpublished, the draft revised mapping confirms the CCW status of the portions of Lot 26 Lakes Road that are currently mapped as CCW, and identifies additional portions currently mapped as Multiple Use wetland to be CCW.
…
The vegetation on Lot 26 has been mapped by the EPA as a Peel Regionally Significant Natural Area (Peel RSNA). The EPA’s Environmental Protection Bulletin No 12 (Swan Bioplan – Peel Regionally Significant Natural Areas) outlines that,
…
• Development proposals and Planning Scheme Amendments that impact on the Peel RSNAs will require detailed investigations of their natural values consistent with EPA guidance statements 10, 51 and 56.
Bulletin No 12 also outlines requirements for flora and vegetation surveys to be undertaken for proposals that may impact on Peel RSNAs.
…
Draft Strategic Assessment of the Perth and Peel Regions (SAPPR)
While it is recognised that the SAPPR project has been put on hold, it is noted the draft SAPPR report prepared by the Department of Planning Lands and Heritage identified Lot 26 for retention for conservation purposes.
Threatened Flora Species
Populations of a number of threatened flora species have been recorded in close proximity to Lot 26, DBCA notes that no targeted threatened flora surveys of areas subject to clearing have been provided for review.
Vegetation Communities
No information on the vegetation communities present on Lot 26 or vegetation surveys have been provided.
Native vegetation on Lot 26 includes Banksia woodlands of Swan Coastal Plain, a vegetation community listed as Endangered under the Commonwealth’s Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) and as a Priority 3 Community in Western Australia.
Matters of National Significance
The proposed development may result in the loss of habitat for Carnaby’s Black Cockatoo, Baudin’s Black Cockatoo, and the Forest Red-tailed Black Cockatoo. These species are listed as ‘Endangered’ and ‘Vulnerable’ respectively under the Environmental Protection and Biodiversity Conservation Act 1999 (EPBC Act). These species are also listed as ‘Specially Protected’ under the Western Australian Wildlife Conservation Act 1950.
The proponent will need to consider requirements for referral to the Commonwealth Department of Agriculture, Water and Environment under the EPBC Act in relation to Black Cockatoo habitat, the Banksia woodlands of the Swan Coastal Plain TEC, and potentially habitat for listed threatened flora species.[11]
[11] Respondent's s 24 bundle of documents dated 21 December 2022 tab 9(c) DBCA referral response dated 26 October 2023, page 69-71.
No evidence of referral to the Commonwealth Department of Agriculture, Water and Environment under the EPBC Act in relation to Black Cockatoo habitat, the Banksia woodlands of the Swan Coastal Plain TEC, and potentially habitat for listed threatened flora species has been provided by the applicant.
The DWER on 17 September 2021 also objected to the proposal due to the potential impact on environment and resource values and management as follows:
The Geomorphic Wetlands – Swan Coastal Plain (Management Category) Dataset, which is managed by the Department of Biodiversity, Conservation and Attractions (DBCA), has identified that a Conservation Category Wetland (CCW) is present over most of the site and this would make it difficult for any development on the lot to achieve adequate environmental setbacks from the CCW. The Department recommends that further advice be sought from the DBCA on the status of the CCW over the lot. The Department cannot support the proposed subdivision until the issues associated with CCW management have been resolved to the satisfaction of the DBCA.[12]
[12] Respondents s 24 bundle of documents dated 21 December 2022 tab 9(b) DWER referral response dated 17 September 2021, page 66.

Issues

The agreed issues for determination are:
1. Whether the proposed subdivision should be approved, having regard to the zoning of the subject land;
2.Whether the proposed subdivision should be approved, given that a Conservation Category Wetland (CCW) encompasses most of the subject land, and having regard to the environmental values and attributes of the subject land; and
3.Whether the proposed subdivision should be approved, having regard to State Planning Policy 3.7 (SPP 3.7) and the Guidelines for Planning in Bushfire Prone Areas (Bushfire Guidelines).

In relation to these matters the Tribunal had the benefit of expert evidence from Mr Paul Bashall a town planner and Mr Philip Bayley an environmental expert on behalf of the applicant and Mr Ryan Shaw a town planner, Mr Lyndon Mutter a flora and vegetation expert and Ms Fiona Felton a wetlands expert on behalf of the respondent.
In relation to the environmental expert witnesses, a joint conferral of experts was held on 28 April 2023 and in the Joint Statement of Witnesses dated 10 May 2023 and in evidence the experts agreed the following:
Issue matters on which the expert witnesses agree:
1. damplands v’s palusplain - that there are no damplands, as described by geomorphic classification, mapped on Lot 26. Where [Mr Bashall] uses the term dampland in his witness statements, these wetlands have a geomorphic classification of palusplain which have the same hydrological regime as damplands. These are described in ‘A Methodology for the Evaluation of Wetlands of the Swan Coastal Plain’ (2017, DBCA, Attachment FF3) Note - The term damplands is often used generically and in the context of habitats to refer to lands with seasonally waterlogged soils irrelevant of the landform (i.e. basin or flat).
2. UFI-5033 – extent and management category - that the extent and management category of sumpland UFI-5033 as on Attachment FF4 is correct as conservation Category
3. UFI-13305 – management category only - [t]hat UFI-13305, as on Attachment FF4, is a Conservation category wetland to the extent that is it is a wetland. It should be noted that the experts disagree on the wetland delineation of this wetland which will be addressed later on.
4. Wetland definition - that the definition of a wetland is as stated in the Environmental Protection Act i.e. "an area of seasonally, intermittently or permanently waterlogged or inundated land, whether natural or otherwise, and includes a lake, swamp, marsh, spring, dampland, tidal flat or estuary".
5. Available flora, fauna and ecological community data and future survey requirements - that Weston (2007) identified a number of threatened and priority species and inferred threatened and priority ecological communities, and that the study doesn’t comply with current guidelines for biological survey. [Mr Bayley, Ms Felton and Mr Mutter] are of the view that, if there is to be any disturbance on the vegetated portion of the block further surveys should be undertaken to ensure that the known and potential threatened flora, fauna and threatened ecological community values are not impacted. [Mr Bayley] considers that any further surveys should be limited to the area of disturbance, and carried out for the purpose of locating building envelopes [Mr Mutter] considers that the survey should also include adjacent areas that may be subject to indirect impacts.[13]

Issue 1 - Whether the proposed subdivision should be approved, having regard to the zoning of the subject land

[13] Joint Statement of Expert Environmental experts dated 10 May 2023.

It is agreed that the subject land is zoned 'Rural' under the PRS and LPS4. The respondent's position is that there is a presumption against subdivision in cl 3.8 of the sub-regional framework where the subdivision is inconsistent with SPP 2.5. The respondent says that the subdivision is inconsistent with SPP 2.5 for the following reasons. The overarching purpose of SPP 2.5 is to:
… protect Western Australia’s rural land assets due to the importance of their economic, natural resource, food production, environmental and landscape values. And specifically under cl 4(g) to protect and sustainably manage environmental, landscape and water resource assets.
Further, under cl 5.1(c), Rural land is to be protected by 'ensuring the retention and protection of rural land for biodiversity protection, natural resource management and protection of valued landscapes and views', and that new rural lots are to occur only in accordance with the exceptional circumstances identified in DC 3.4 provided at paragraph 41 above. Clause 6.5 reiterates that the creation of new or smaller lots will be by exception and in accordance with DC 3.4 and that 'the creation of new or smaller rural lots by exception may be provided for in other State Planning Policies and/or a local planning strategy or scheme'.
The DWER also objected to the proposed subdivision in its letter of 12 September 2021 on the basis that the proposed subdivision had the potential to impact on environmental and water resource values and management, and that it would be difficult for any development to achieve adequate environmental setbacks from the CCW.
The respondent contends that the subdivision application is inconsistent with SPP 2.5 as 'the proposal results in the fragmentation of rural land through the ad-hoc unplanned subdivision in a manner that is not planned in accordance with a local strategy or local planning scheme'.[14] Whilst the respondent acknowledges that the LRS provides for a minimum lot size of 40ha on rural zoned land, it asserts that the significant environmental values that are identified on the subject land result in the need to protect and sustainably manage the land's environmental assets and the objective to ensure retention and protection of rural land for protection of biodiversity and management of natural resources outweighs the stated minimum lot size.
[14] Respondents Statement of Issues facts and contentions (SIFC) dated 22 December 2022, para 37.
In relation to DC 3.4, clause 5(a) states that 'the creation of new or smaller lots will be the exception' and lists the exceptional circumstances under which subdivision may occur in cl 6, however the respondent asserts that none of these exceptional circumstances apply to the subdivision application. For this reason, the respondent contends that the subdivision application is inconsistent with the sub-regional framework, SPP2.5 and DC 3.4.
The applicant contends that rather than providing for the sustainable use of land for agriculture and assisting in the conservation and wise use of natural resources cl 12(e) of the PRS provides for 'a broad brush "locking up" of large parcels of private land under the guise of environmental protection' and cites a Legislative Council of WA Report 33 – Standing Committee on Public Administration. It is not my role to deliberate on the appropriateness of the report of the standing committee. Rather, my role is to focus on the issues required to be considered in this review.
The applicant contends that:
Sustainable land development involves using the land within its capability to ensure the productivity and economic potential of the land is maintained, whilst its ecological function, such as the ability of the soils to retain water or the landscape to support biodiversity, is not diminished. Where economic, social and environmental factors are considered simultaneously, the long-term sustainability of the health, resilience and productivity of a property is more likely to be assured.[15]
[15] Applicant's SIFC dated 14 February 2023, para 26.
The applicant further contends the State government is not meeting the aims and requirements of their own policies as it has given no consideration to the sustainable development of the subject land. The applicant asserts that the subject land is zoned rural but, as it stands, has no rural value and is unusable for rural purposes as the restrictions imposed on the subject land have ensured no rural activity can be undertaken and have therefore devalued the land, placing the burden and cost of environmental protection on the applicant.

The applicant is seeking to regain some value through the approval of the subdivision application which will give the applicant a greater equity value for use in its day-to-day business and help support the maintenance of the site. In their supporting documentation for this application for review the applicant stated:
The purpose of the subdivision application is to right a wrong in the overall degrading of lot 26 and differentiate the portion of lot 26 burdened by the restrictive covenant to the Shire of Murray and to lift the restriction placed upon the northern balance of land and thereby increase the equity value of the land, as it has been severely downgraded by approximately 70 per cent from its 2008 valuation due to the imposition of the covenants and memorials placed on the land; see attached valuations 2008 and 2021.[16]
[16] Respondent's s 24 bundle of documents dated 21 December 2022, page 78, third dot point.
The economic viability of the subject land is not a planning consideration for determination in this case.
The applicant also submits that additional 'inhabitants on the site could act in the positive to increase surveillance and the establishment of firefighting water supplies where none currently exist. This increased surveillance would also increase protection against anti-social activities such as illegal rubbish dumping, motorbikes and off-road vehicles and trespassers likely to cause bushfires.'[17]
[17] Applicant's Statement of Issues Facts and Contentions dated 17 February 2023, para 101(b)(iii).
I find that there is insufficient evidence adduced by the applicant to persuade me that this application falls within one of the six exceptional circumstances provided in cl 6 of DC 3.4 for approving further fragmentation of rural land. Nevertheless, I accept that DC 3.4 remains a policy that cannot be inflexibly applied without regards to the merits of the case.
As articulated in Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433 at 24, Barker J held that the policy guides the exercise of planning discretion, it does not replace the discretion in the sense that it is to be inflexibly applied. His Honour said that:
… the relevant consideration in many applications will be why the 'policy' should not be applied; why the planning principles that find expression in the 'policy' are not relevant to the particular application[.]
…
In Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, Brennan J confirmed the freedom of the Administrative Appeals Tribunal to apply or not apply the policy. He noted, however, that departures from government policy would be 'cautious and sparing', occurring only where there were 'cogent reasons': 644 - 645.
In addition, as stated by Pritchard J in Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 (Marshall) at [182]:
While the exercise of discretion will involve a judgment about what is suitable, appropriate, or apt or correct in a particular case, that judgment must (if it is to be 'orderly') be an objective one. If the exercise of discretion is to be an orderly one, the planning principles identified as relevant to an application should not be lightly departed from without the demonstration of a sound basis for doing so, which basis is itself grounded in planning law or principle[.]
It is also the case that, in the context of this proceeding, it is artificial to consider the question of lot size in isolation. Rather, I find that the merits of the proposed subdivision should be considered against the nominal minimum 40ha lot size for the Rural zone in the LRS in the context of the overall planning framework. It is through this lens that, I find, the appropriateness of the proposed subdivision should be evaluated.

Issue 2 - Whether the proposed subdivision should be approved, given that a CCW encompasses most of the subject land, and having regard to the environmental values and attributes of the subject land

The environmental experts agree that there is a CCW on the subject land, however they disagree on the extent of the wetland.
The environmental experts agree in relation to available flora, fauna and ecological community data and future survey requirements that, if there is to be any disturbance on the vegetated portion of the subject land, further surveys should be undertaken to ensure that the known and potential threatened flora, fauna and threatened ecological community values are not impacted, but they disagree on the extent of those surveys.
The environmental experts also agreed that the flora and vegetation survey undertaken by Dr Arthur Weston (2007) identified a number of threatened and priority species and inferred threatened and priority ecological communities, and that the study doesn’t comply with current guidelines for biological survey.
Mr Bayley considers that any further surveys should be limited to the area of disturbance, and carried out for the purpose of locating building envelopes whilst Mr Mutter asserts that the survey should also include adjacent areas that may be subject to indirect impacts.
Mr Bayley and Mr Mutter agreed that the vegetation survey undertaken is now 16 years old. Mr Mutter asserts that the survey is not compliant with the current vegetation survey standards that the Environmental Protection authority and others have outlined. He says in evidence that '[t]he information on potential threatened species occurring on the lot has changed over that time, so the Weston report identified one threatened species and a number of conservation significant species.'[18]
[18] ts page 58, 23 May 2023.
Mr Mutter considers that the threatened species, Verticordia densiflora var. pedunculata is still threatened and is listed as Endangered under the Western Australian Biodiversity Conservation Act 2016 (BC Act) and also under the Commonwealth Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). The other conservation significant species identified by the Weston report included State listed priority species, species that may be threatened but for which there is not enough survey data to confirm their status one way or the other. He says that there are 'priority 4' species, which are species that were considered threatened and where there are enough survey species that they fall below the line of threatened but which need to be monitored in case that status changes because if other populations are lost then those particular populations may become more threatened.
The point, Mr Mutter asserts, is that in those 16 years, there have been some changes such that, for example, one of those species is no longer identified as a priority species. He says that Dr Arthur Weston identified that there was habitat for two other species in very close found population one of which has been found on the top end of the Murrayfield Airpark and one located about a kilometre south of the subject land. For this reason and because there may be species evident that were not searched for at the time, he asserts there is the need for a compliant and current vegetation survey of the site.
Mr Bayley contends that this level of survey would likely take two years and at least one spring and that it would be better to concentrate this work in the location of the areas that are likely to be disturbed, once the subdivision and building envelopes had been approved.
Ms Fenton considers that wetland delineation information provided by Bayley Environmental Services (BES) was considered by the then Department of Environment and Conservation (DEC) between 2009-2011 and it was determined that the 'The information did not meet the requirements as outlined in the 'Protocol for proposing modification to the Geomorphic Wetland Swan Coastal Plain dataset' (DEC 2007) and that the wetland boundary would not be amended.'.
This delineation was considered by the EPA who stated:
The EPA has considered the information provided by BES and advice provided by the DEC, and determined that it does not support a change to the boundary of the wetland as mapped in the Geomorphic Wetland Swan Coastal Plain dataset. In defining a wetland boundary the DEC takes into consideration not only hydrology but also hydric soils, and vegetation. The EPA supports the DEC’s approach and considers that a wetland is also defined by its ecosystem, functions and processes.[19]
[19] Joint Statement of Expert Environmental Witnesses date 10 May 2023 Attachments FF1c and FF2c.
She submits that since the DEC’s 2011 determination no additional information has been provided for consideration.
Based on available information, Ms Felton opines that she would not accept the proposed wetland delineation at POB2 Figure 9 of Mr Bayley's witness statement,[20] as she believes that further information for the area between Mr Bayley's wetland boundary and that of the Geomorphic Wetland Swan Coastal Plain (GWSCP) dataset boundary[21] is required to amend the current delineation for the following reasons:
•Attachment POB2 figure 9 proposed wetland boundary is based on water within 0.3m. Capillary rise in sand particularly in the presence of fines would likely be 0.3-0.5m, based on ongoing discussions with DBCA’s hydrologist in relation to wetland delineation across the Swan Coastal Plain.
•There are limited sample points in the area between Mr Bayley's Figure 9 proposed wetland boundary and the extent of the GWSCP dataset boundary (Attachment FF4).
•Weston (2007) and Casson (2001) (Attachment POB2, Figures 9, pages 38 and 40) vegetation survey indicate there are species, which I would consider to be wetland indicative, occurred outside the proposed wetland boundary on Attachment POB2’s. Of particular note is Pericalymma ellipticum which is considered to be an obligate wetland species, based on experience and ongoing discussion with DBCA vegetation experts in relation wetland delineation across the Swan Coastal Plain.
•Weston (2007) Attachment POB2 p77, 78 notes Evandra pauciflora and Dielsia stenostachya are listed in ‘Bush Forever (2000, p201)’ as ‘being dependent on seasonal ponding or inundation’.
•Weston (2007) Attachment POB2 p76 notes Dillwynia dillwyniodes is listed in ‘Bush Forever (2000, p201)’ as being dependent on seasonal ponding, waterlogging or inundation.
•Protocol for proposing modification to the Geomorphic Wetland Swan Coastal Plain dataset‘(DEC 2007) states that vegetation surveys should include at least one 10x10 per mapped vegetation unit with additional plots to demonstrate the variation of floristics and condition within the unit.[22]
[20] Witness Statement of Mr Phillip Bayley dated and signed 14 April 2023 Attachment POB2, Figure 9.
[21] Witness Statement of Ms Fiona Felton dated and Signed 13 April 2023 Attachment FF4.
[22] Joint Statement of Expert Environmental Witnesses dated10 May 2023.
Mr Shaw contends that in addition to the CCW values of the subject land it is also likely to comprise the State and federally-listed Banksia Attenuata Threatened Ecological Community (TEC), which also provides habitat for the endangered Carnaby's Cockatoo, which in itself is a federally-listed TEC. Mr Shaw says he forms this view having regard to the Australian Government's Department of Climate Change, Energy and the Environment and Water 'protected matters' mapping tool, which shows record of Banksia attenuata, or otherwise known as floristic community type 20a which the mapping tool indicates covers approximately 92% of the subject land.
He says that the presence of the Banksia attenuata on the subject land is supported by the applicant's environmental reports, particularly s 3.1.1 (3) of the 2007 Flora and Vegetation Assessment by Dr Weston.
The applicant's environmental studies were prepared prior to 2009, and therefore predate the Carnaby's Cockatoo Recovery Plan in November 2009 and Banksia attenuata listings in 2016. This Mr Shaw opines, suggests that updated new information is required to inform the appropriateness of the application.
Mr Shaw submits that in his experience as a town planner, 'it is typical for applicants to demonstrate to the satisfaction of the decision-maker that subdivision impacts are acceptable. This is because the subdivision will result in a change to the 'status quo'.'
Mr Shaw asserts that the applicant's subdivision proposal lacks information sought in cl B4.3.2 of GS 33 being detailed technical information on the attributes, functions and management of wetlands and their buffers.
The applicant has not provided this required information as part of the application for subdivision or as evidence in this case.
In Aston and Western Australian Planning Commission [2018] WASAT 11 the review of an application for a rural subdivision with natural vegetation, where, as in this case, the applicant submitted that the subdivision would result in additional occupancy of the land and that, in turn, would result in better management of the land than is possible with just one owner. In that case the respondent also pointed out that the relevant assessment had not been carried out so it was not known that the subdivision would result in satisfactory management of environmental impacts and so could not be supported, notwithstanding the area of the lots were all greater than 40 hectares. Senior Sessional Member Jordan found in that case that:
The Tribunal is of the view that before subdivision is considered, there must first be identified any particular impact of a proposed subdivision and what actual environmental constraints exist and how they might be managed. The merit of a subdivision proposal in an environmentally sensitive location such as this can then be properly addressed.[23]
[23] Aston and Western Australian Planning Commission [2018] WASAT 11 , para 49.
I find that, as the application was lodged with the Tribunal in December 2021, the applicant has had the opportunity to undertake the necessary compliant and current vegetation surveys, as Mr Bayley indicated that it would need at least one spring and that has occurred during this time. The applicant has not provided a compliant and current vegetation survey that would assist the Tribunal in making an informed decision in this case. In the absence of that information, the impact of the proposed subdivision on the CCW and vegetation on the subject site is unknown.
The applicant has not provided sufficient environmental reports as required by the DBCA for it to reconsider the boundaries of the CCW which might otherwise result in the approval of a subdivision. In the absence of that information and a possibly realigned boundary to the CCW acceptable to the DCBA, I find that the application does not meet the DCBA guidelines as it proposes a boundary which dissects the CCW contrary to the subdivision guidelines of Bulletin 12.
I am not persuaded that the subdivision of the subject land to assist with land management in the absence of compliant and current vegetation surveys that would enable assessment of the environmental impact of the proposed subdivision through a CCW is a sound basis on which to approve the proposed subdivision. I find that the approval of the subdivision in the absence of understanding of its environmental impact would be contrary to the existing planning framework.

Issue 3 - Whether the proposed subdivision should be approved, having regard to SPP 3.7 and the Bushfire Guidelines.

The subject land is designated as a 'bushfire prone area' by the Fire and Emergency Services Commissioner under Part 4A, section 18P of the FES Act.
SPP 3.7 applies to subdivision applications located in designated bushfire prone areas and requires the policy to be read in conjunction with the Bushfire Guidelines for Planning in Bushfire Prone Areas (Bushfire Guidelines).
The intent of SPP 3.7 is "to implement effective, risk-based land use planning and development to preserve life and reduce the impact of bushfire on property and infrastructure."
The respondent contends that the proposed subdivision if approved would increase the dwelling entitlements on the subject land and thus the potential for risk of bushfire to people and property would increase resulting in the requirement for assessment against SPP 3.7 and the Bushfire Guidelines.
No evidence has been adduced by the applicant that it has complied with the requirements of SPP 3.7 and the Bushfire Guidelines. The applicant has indicated that '[a] bushfire management plan for the adjacent St David’s Estate dated 13/07/2005 incorporates Lot 26 as depicted on the photographic cover of the bushfire management plan.'.[24] They say that for this reason the requirement for a bushfire management plan and BAL assessment should be a condition of subdivision approval and addressed at that time.
[24] Applicant's Statement of issues facts and contentions dated 17 February 2023, para 7a.
The aforementioned St David's Estate bushfire management plan was not prepared in accordance with, nor does it negate the need to comply with, the provision of information as detailed in SPP 3.7 and the Bushfire Guidelines.
At clause 5 of SPP 3.7, the policy objectives are to:
5.1Avoid any increase in the threat of bushfire to people, property and infrastructure. The preservation of life and the management of bushfire impact are paramount.
5.2 Reduce vulnerability to bushfire through the identification and consideration of bushfire risks in decision-making at all stages of the planning and development process.
5.3 Ensure that…subdivision…applications take into account bushfire protection requirements and include specified bushfire protection measures.
5.4 Achieve an appropriate balance between bushfire risk management measures and, biodiversity conservation values, environmental protection and biodiversity management and landscape amenity, with consideration of the potential impacts of climate change.
Particularly, when considering potential conflicts between environmental values and bushfire mitigation, cl 5.4 applies.
The respondent contends that a 50m vegetated buffer to the mapped CCW, required under Attachment B4-3 to GS 33, extends the vegetated area of the subject land. They say that there remains limited, if any, areas available for development that are unaffected by vegetation associated with the CCW, priority threatened and priority ecological communities and vegetation potentially associated with the Swan Bioplan RSNA. Further, they contend that additional limitations to areas of land available for development will likely arise from the requirement to achieve separation from vegetation to mitigate the risk of bushfire and achieve the policy objectives of SPP 3.7 and the Bushfire Guidelines.
Mr Bashall advised that he had prepared plans showing the location of appropriate building envelopes and while the plan was filed at the final hearing it was provided following the conclusion of expert evidence and was not subject to examination by the expert witnesses and cannot therefore be given weight in these proceedings.
Information required to be submitted for subdivision applications within bushfire prone areas including the subject land include:
a)a BAL Contour Map to determine the indicative acceptable BAL ratings across the subject site, in accordance with the Guidelines. BAL Contour Maps should be prepared by an accredited Bushfire Planning Practitioner;
b)the identification of any bushfire hazard issues arising from the BAL Contour Map; and
c)an assessment against the bushfire protection criteria requirements contained within the Guidelines demonstrating compliance within the boundary of the subdivision site.
The applicant did not submit with the subdivision application nor adduce any evidence in relation to the information required by SPP 3.7 and the Bushfire Guidelines other than to suggest the information would be provided once the subdivision is approved and should be included as a condition of subdivision approval.

Mr Bashall agreed in evidence that a BAL is always requested for a subdivision but he was not involved in the subdivision application and that he was of 'the understanding that a fire management plan was already in place'.[25] The planning experts agreed this information needs to be provided.
[25] ts page 111, 23 May 2023.
When questioned by Mr Marshall in relation to whether he was aware of subdivision approvals that were granted with a condition for a bushfire management plan, Mr Shaw responded that this had not happened since 2015 when the new bushfire policy suite came into effect and prompted 'quite a drastic shift to getting the information upfront to make an informed decision, especially in cases where there is an intensification of land use such as this proposal'.[26]
[26] ts page 114, 23 May 2023.
The respondent asserts that the Bushfire Guidelines provide advice in relation to how bushfire risk is to be addressed when planning, designing or assessing a planning proposal within a bushfire prone area and that cl 5.3.1 states that:
All subdivision applications in bushfire prone areas are to be lodged with a Western Australian Planning Commission Application Form 1A. The box ‘bushfire prone area’ must be ticked and the application is to be accompanied by a BAL Contour Map or BAL assessment (as appropriate).
I find that in relation this third issue, there is insufficient information adduced by the applicant to allow proper consideration of whether the proposed subdivision should be approved, having regard to SPP 3.7 and the Bushfire Guidelines.
I also find that it is commonplace for this information to be provided to enable the decisionmaker to make an informed decision and that standing in the shoes of the respondent, I have insufficient information to be satisfied that it is appropriate to exercise the discretion required to approve the subdivision in this case. Nor do I consider that it is appropriate to approve a subdivision with a condition requiring the provision of a bushfire management plan as this information is required to make an informed decision on subdivision application.

Conclusion

This is a review under s 252 (1) of the PD Act and is based on the planning merits of the subdivision application in accordance with the PD Act the Tribunal can decide to approve, approve with conditions or refuse the subdivision application.
In considering the agreed issues in relation to this application for review, the matters I am required to consider in accordance with the planning framework and particularly whether the absence of information in regard to both the environmental vegetation survey and bushfire management is determinative in the exercise of discretion required to approve the proposed subdivision, it is important to understand that the power to impose planning conditions is not unfettered, must be exercised with some constraint and cannot be addressed until the question as to whether the development is suitable and appropriate is resolved. It is only after that question has been answered that the planning authority should turn is attention to appropriate conditions.
Jacobs J in Remove-All-Rubbish Pty Ltd v City of Salisbury[27] notes 'that to approach a planning decision by framing conditions designed to make an unacceptable proposal suitable and appropriate is to bypass the primary question'.
[27] Remove a-All-Rubbish Pty Ltd v City of Salisbury (1989) 51 SASR 26,34 (Jacobs J)
The Tribunal must consider the proposed subdivision and make its decision as to whether the proposed subdivision should be approved in the exercise of discretion, 'the impact of the development must be evaluated and not determined by reference to conditions that are designed to mitigate that impact'.[28]
[28] Planning and Environmental Law in Western Australia – S Willey (2021) page 317.
In this case the imposition of a condition of subdivision for the provision of information that is relevant to the consideration of whether the application is suitable and appropriate and should therefore be approved in the exercise of discretion is tantamount to placing the cart before the horse.
While there is no onus in review proceedings in the Tribunal, it is for the applicant to adduce cogent evidence so as to persuade the Tribunal that the proposed subdivision of the subject land should be approved in the exercise of discretion. I find that there is insufficient evidence adduced by the applicant in regard to the environmental impacts and bushfire management implications to come to that conclusion. Having considered the evidence before the Tribunal, it is clear that the application for review fails on evidence provided by the applicant.
The purpose of this review, under s 27(2) of the SAT Act, is 'to produce the correct and preferable decision at the time of the decision upon the review' and the Tribunal in considering the material before it must form its own view, in the exercise of discretion, as to whether development approval should be granted for the proposed development in this case.
The Tribunal, having considered the substantial merits of this case, taking into account the planning framework and having due regard to the relevant matters for consideration, considers the matters the subject of this review warrant refusal in the exercise of discretion.
The application for review is dismissed and the decision of the respondent dated 7 December 2021 is affirmed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS R Lavery, MEMBER
29 SEPTEMBER 2023