Waddell and Anor and Western Australian Planning Commission
[2007] WASAT 82
•5 APRIL 2007
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: WADDELL & ANOR and WESTERN AUSTRALIAN PLANNING COMMISSION [2007] WASAT 82
MEMBER: MR P McNAB (MEMBER)
HEARD: 9 NOVEMBER 2006
DELIVERED : 5 APRIL 2007
FILE NO/S: DR 290 of 2006
BETWEEN: CHRISTOPHER JOSEPH WADDELL
PHILOMENA ANN WADDELL
ApplicantsAND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Town planning - Rural land - Agricultural and horticultural land use - Subdivision of land - East Wanneroo - Status of draft strategy dealing with land management and water issues - Poor aquifer water supplies - Water quotas restricting development - Olive plantation already subsisting on one half of rural block - Proposal to have other half used for rural living - Land zoned "Rural Resource" - Proposal contrary to planning framework - Presumption against subdivision of productive agricultural land - Recognition that current planning framework inadequate - Local authority supporting proposal - Surrounding lot sizes and pattern inconsistent with proposal - Proper and orderly planning not served by ad hoc decisions and de facto zone changes by Tribunal - Role of precedent - Decision following other Tribunal East Wanneroo decisions - Decision on merits cannot ignore policy or precedent or elevate draft policy to final status - Draft strategy held not to be determinative - Tribunal not a statutory planning or land management authority - Relevance of financial hardship - Difficulties with memorial on title proposed - Effect on rural land prices - Possible effect on further water use - Application for review dismissed
Legislation:
Planning and Development Act 2005 (WA), s 241(3)
City of Wanneroo District Planning Scheme No 2, cl 3.2.1, cl 3.17.2, cl 3.17.2(d)
Metropolitan Region Scheme
City of Wanneroo Interim Local Rural Strategy
Draft East Wanneroo Land Use and Water Management Strategy
Result:
The application for review is dismissed and the decision under review not to approve the application for subdivision is affirmed
Category: B
Representation:
Counsel:
Applicants: Mr S Allerding (Acting as Agent)
Respondent: Mr V McMullen (Acting as Agent)
Solicitors:
Applicants: Allerding & Associates (Town Planners)
Respondent: Western Australian Planning Commission
Case(s) referred to in decision(s):
Angelo Estates Pty Ltd v Western Australian Planning Commission (1999) 25 SR (WA) 65
Bojanich and Western Australian Planning Commission [2006] WASAT 315
Highland Bridgetown Pty Ltd v Western Australian Planning Commission (1997) 17 SR (WA) 189
Ingram & Anor v Western Australian Planning Commission [2003] WASCA 77
Kimber and Western Australian Planning Commission [2006] WASAT 354
Kimber and Western Australian Planning Commission [2007] WASAT 31
Maher & Anor and Western Australian Planning Commission [2006] WASAT 129
Mirco & Anor and Western Australian Planning Commission [2006] WASAT 165
Strawbridge & Anor and Western Australian Planning Commission [2006] WASAT 96
Tilbrook v Western Australian Planning Commission [2004] WATPAT 100
Wilson & Anor v Western Australian Planning Commission [2004] WATPAT 86
Wilson & Anor v Western Australian Planning Commission [2007] WASC 39
Wilson v Western Australian Planning Commission [2004] WATPAT 86
Wilson v Western Australian Planning Commission [2007] WASC 39
WR Carpenter Properties Pty Ltd and Griffin Coal Pty Ltd and Western Australian Planning Commission [2006] WASAT 200
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
This review was another case before the Tribunal which highlighted certain problems with the planning framework applicable to East Wanneroo.
Mr and Mrs Waddell sought to subdivide their small rural resource block into two 2 hectare lots. One lot would continue to grow olives, while the other would have, in effect, rural living or residential status. From their point of view, this arrangement maximised the potential financial and operational capabilities of the land, given its viability and their circumstances.
The local authority supported the applicants, apparently contradicting their own planning control policies which, on their face, did not favour this development.
Water supplies were restricted to the land and there was pressure to subdivide land in the area. The State Government had, in effect, conceded that the planning framework had failed to keep pace with developments on the ground, and it had published certain draft proposals for the area.
The respondent Planning Commission saw the matter very differently from Mr and Mrs Waddell. The Commission had in place an extensive set of planning controls which prevented the unplanned break up of productive agricultural land, which this land was considered to be. The Commission were anxious that the draft proposals be properly considered, and that such land not be carved up in an ad hoc manner which could lead to the situation worsening, and to other undesirable consequences (such as land inflation). They noted that the draft strategy itself "[did] not support subdivision in the locality of the subject land prior to further planning".
The Tribunal agreed with the Commission and followed a long line of previous cases to the same effect in upholding these policies and planning instruments in such circumstances.
The Tribunal noted the frustration of many in East Wanneroo who had concerns with the planning process, but reminded the parties that the Tribunal was not the designated arm of government charged with land management and strategic planning.
The application was dismissed.
Introduction: the subject land, its locality and the proposal
This review relates to the refusal of the Western Australian Planning Commission (respondent or WAPC) to subdivide Lot 5, No 180 Karoborup Road, Carabooda in the City of Wanneroo into two more or less equal lots, across a notional east‑west line. The subject land is just over 4 hectares and the two lots would each comprise approximately 2 hectares each. One lot, namely Lot 1 to the north, is proposed for a rural living use; the other to the south (Lot 2) is proposed as an olive grove plantation and processing plant. The applicants (Mr and Mrs Waddell) are the co‑owners of the land and seek a subdivision in these terms. (For convenience of reference, Mr Waddell will be referred to hereafter as "the applicant" in a representative capacity.)
Ms CS Vyner was called by the respondent and described in her witness statement the locality near to the subject land as follows, at par 6 – par 9:
"The subject land has an area of approximately 4 [hectares]. The western boundary of the subject land fronts directly onto Karoborup Road for a distance of approximately 182 metres.
The subject land slopes moderately from east to west towards Karoborup Road. An existing residence together with associated outbuildings and sheds are positioned in the north eastern portion of the subject land with a front setback of approximately 172 metres from Karoborup Road.
There are approximately 300 olive trees currently planted on the subject land, which are anticipated to come into yield over the next three years.
The area surrounding the subject land is rural in character and existing land uses include productive agriculture, such as market gardens, turf farms and wholesale nurseries, and some rural residential uses."
To this description of Ms Vyner's may be added Mr Allerding's observations of the site and locality. (Mr Allerding appeared for the applicant.)
He noted that the site is located on the eastern side of Karoborup Road and "is adjacent to approximately 18 lots comprising the Carabooda Lake". Mr Allerding described the properties within the immediate vicinity of the subject land as "utilised for lifestyle residential purposes".
As to the surrounding lot sizes, Mr Allerding's view was that there was, immediately adjoining the subject land to the south, a 2 hectare allotment owned by a nursery, which also owned land immediately to the east of the subject site. To the north of the subject land is a 4 hectare allotment and to the west of Karoborup Road, Mr Allerding claimed that there was a "series of mixed size allotments". On the other hand, Ms Vyner's view was as follows, at par 10:
"The general locality is characterised by lots ranging from 2 [hectares] to 41.1 [hectares]. Not including the two largest landholdings of 33.1 [hectares] and 41.1 [hectares], the average lot size of the generality [sic] locality is 4.9 [hectares]. The majority of lots in the general locality are greater than 4 [hectares]."
The reasons for refusal and procedural history
On 1 August 2006, the respondent refused the applicant's subdivision application for the following reasons:
"1.The land is zoned 'Rural Resource' in the Council's District Planning Scheme No 2. Subdivision in the manner proposed would create the potential for additional building development and the introduction of increased non‑rural/special rural activity in conflict with the zoning objectives.
2.The Commission's Rural Land Use Planning Policy requires Councils to prepare a Local Rural Strategy to comprehensively plan for change and development in rural/special rural areas. In the absence of an approved Local Rural Strategy endorsed by the Commission, the Commission is not prepared to approve the subdivision of rural/special rural land that would lead to unplanned development and could be to the detriment of other rural uses, proper management of rural/special rural land and a rational settlement pattern.
3.The application is inconsistent with the Metropolitan Rural Policy, [which is] a provision of Statement of Planning Policy No 1 Variation No 1, which aims to maintain the open landscape character of rural/special rural areas in Perth. The Commission is not prepared to approve the creation of lots that would adversely impact the open landscape character of rural/special rural areas within the Perth Metropolitan Region.
4.The application does not comply with the Commission's Policy DC 3.4 Subdivision of Rural Land, [which is] a provision of Statement of Planning Policy No 1 Variation No 1, by reason that the subject land has not been identified for residential development in a town planning scheme, an endorsed local planning strategy or an endorsed local rural strategy, and it has not been demonstrated that the site is suitable for closer subdivision.
5.The subject land is located within the study area of the Draft East Wanneroo Land Use and Water Management Strategy which aims to prepare for sustainable land use and water management in East Wanneroo. The application is premature [in respect of] the outcomes of the Strategy.
6.Approval to the subdivision would create an undesirable precedent for the further subdivision of other lots of a similar size in the General Rural Zone of this locality."
In late August 2006, the applicant sought a review of the respondent's decision in this Tribunal. After various directions hearings, the matter was eventually heard in November 2006 and the final written submissions were received in late December 2006.
Although the decision of the Supreme Court in Wilson v Western Australian Planning Commission [2007] WASC 39 was received after the hearing, the Tribunal did not seek the parties' views on that case, as it did not appear to alter either the substance of either the law or the practice in this area of rural subdivisions.
The main issues
The respondent identified some seven issues for consideration by the Tribunal. These were as follows:
"(a)Whether the proposed subdivision is inconsistent with the 'Rural' zone of the subject land under the Metropolitan Region Scheme and [the] 'Rural Resource' zone under the City of Wanneroo District Planning Scheme No 2.
(b)Whether the proposed subdivision is inconsistent with the relevant existing policy framework, which includes: Development Control Policy 3.4, State Planning Policy No 2.5, the Metropolitan Rural Policy, the Rural Small Holdings Policy, the North West Corridor Structure Plan, and State Planning Policy No 3.
(c)Whether the proposed subdivision is consistent with the City of Wanneroo's Interim Local Rural Strategy and whether, if it does, this is of any significance.
(d)What regard ought to be had to the Draft East Wanneroo Land Use and Water Management Strategy ('EWLUWMS') and whether Member Connor's decision in Strawbridge v WAPC [2006] WASAT 96 or Member Jordan's decision in Maher v WAPC [2006] WASAT 129 ought to be preferred.
(e)The degree to which the lack of available groundwater, which reduces the potential for agricultural pursuits in the Carabooda area, ought to be taken into consideration in assessing the application.
(f)Whether the lot sizes proposed are suitable for the 'Rural Resource' zone or more suited to the 'Special Rural' or 'Rural Community' Zones under DPS 2.
(g)Whether the proposed subdivision would set an undesirable precedent and be inconsistent with orderly and proper planning."
Whilst not as detailed as the respondent's list of issues set out above, Mr Allerding's statement of the issues to be considered is broadly consistent with these items. In any event, the list illustrates the main issues that arose during the hearing.
The planning framework
It is common ground that the subject land is zoned "Rural" under the Metropolitan Region Scheme (MRS). Under the City of Wanneroo District Planning Scheme No 2 (DPS 2), the land is zoned as "Rural Resource", as are surrounding properties. Under DPS 2, the intent of the "Rural Resource" zone includes encouraging the use of land "for horticultural and intensive agricultural activities". To this end, DPS 2 has as one of its objectives the protection of intensive agricultural, horticultural and animal husbandry areas from incompatible uses or subdivision. Thus cl 3.17.2(d) of DPS 2 provides that "unless proved otherwise to the satisfaction of the [City] on a case by case basis rural‑residential is considered an incompatible use" (emphasis added).
There are a number of policies and other planning instruments that are relevant to the question of approval of the proposed subdivision. These instruments, taken from the respondent's documents (and including those already mentioned), are as follows:
(a)MRS and DPS 2;
(b)Development Control Policy 3.4 (Subdivision of Rural Land) (DC 3.4);
(c)City of Wanneroo Interim Local Rural Strategy (Interim LRS);
(d)Statement of Planning Policy No 2.5 – Agricultural and Rural Land Use Planning (SPP 2.5);
(e)Metropolitan Rural Policy 1995 (MRP);
(f)Statement of Planning Policy No 3 – Urban Growth and Settlement (SPP 3);
(g)Rural Small Holdings Policy (1977);
(h)North West Corridor Structure Plan (1992); and
(i)Draft East Wanneroo Land Use and Water Management Strategy (EWLUWMS).
In this review, the Tribunal has had regard to those instruments, strategies and policies.
With respect to the main State agricultural and rural policies mentioned above, in Mirco & Anor and Western Australian Planning Commission [2006] WASAT 165 at [25] it was noted that:
"The effect of DC 3.4 (and related policies) are summarised in previous decisions of the Tribunal such as Fehlauer and Western Australian Planning Commission [2005] WASAT 222 at [17] – [23]; Halden & Anor and Western Australian Planning Commission [2005] WASAT 323 and West & Ors and Western Australia Planning Commission [2005] WASAT 326. It is unnecessary to discuss the intent and effect of DC 3.4, as it is fully accepted by the applicants as applicable here and is analysed or applied in part in the reasons for decision in Fehlauer and Western Australian Planning Commission, Halden & Anor and Western Australian Planning Commission and West & Ors and Western Australia Planning Commission, analyses adopted for the purposes of these reasons, so far as they are relevant."
Very recently, this agricultural and rural planning framework was also analysed by Le Miere J in Wilson & Anor v Western Australian Planning Commission [2007] WASC 39 (affirming the previous Tribunal's decision in Wilson & Anor v Western Australian Planning Commission [2004] WATPAT 86 to refuse subdivision).
The particular, if not problematic, position regarding agricultural and rural land in East Wanneroo is specifically discussed in Strawbridge & Anor and Western Australian Planning Commission [2006] WASAT 96 (application allowed in special circumstances); Maher & Anor and Western Australian Planning Commission [2006] WASAT 129 (refused); Bojanich and Western Australian Planning Commission [2006] WASAT 315 (refused); and Kimber and Western Australian Planning Commission [2006] WASAT 354 (refused). (Kimber and Western Australian Planning Commission was affirmed on review by the President of this Tribunal in Kimber and Western Australian Planning Commission [2007] WASAT 31.) Cf Tilbrook v Western Australian Planning Commission [2004] WATPAT 100, where the previous Tribunal gave approval largely, it seems, on the basis that "the proposed lots [would not] be inconsistent with the surrounding lot pattern nor [would] the general rural character of the area [be] affected by the subdivision of the subject land": at [47].
In these circumstances it is unnecessary to set out lengthy extracts from the various instruments mentioned above. So far as is relevant to the circumstances here, the analyses of the planning framework set out in the cases referred to above is adopted for the purposes of these reasons.
However, it may be useful to note, at this point, the observations of Barker J in Ingram & Anor v Western Australian Planning Commission [2003] WASCA 77 (followed in Wilson v Western Australian Planning Commission [2007] WASC 39), a case incidentally touching upon arguments about olive production in rural areas. His Honour suggested, at [79], that in determining the key issue under these instruments as to whether land that has a productive capacity for agricultural production might be lost as a resource by subdivision;
" ... it will, in my view, be seldom, if ever, useful to focus on the financial viability of a particular enterprise proposed to be carried out on the subdivided land. This is because the financial viability of a particular enterprise ultimately tells one little about the extent to which the land's productive capacity for agricultural production will be lost. An inquiry into the financial viability of a particular pursuit will often deal merely with the profitability of a particular enterprise. Profitability may indirectly tell one something about the extent to which the productive capacity of land as an agricultural resource is being exploited, but it will not be a reliable measure in all cases."
("Financial viability" was also raised as an issue in this case, and the Tribunal will return to that matter below.)
The application of these various court and Tribunal authorities is considered further below.
The Draft East Wanneroo Land Use and Water Management Strategy (EWLUWMS)
A great deal of the Tribunal's time in this review was taken up with consideration of the Draft East Wanneroo Land Use and Water Management Strategy (EWLUWMS), one of the instruments mentioned above. It is convenient at this point to deal with the status of that document.
The general effect of that strategy is set out in the following extract from Member Connor's reasons for decision in Strawbridge & Anor and Western Australian Planning Commission, at [35]:
"The Strategy was released for public consultation with the comment period closing on 27 January 2006. The Strategy examines the key land use and water resource management issues and formulates a proposed draft land use concept. The Strategy confirms that under the current water allocation and licence system, horticulture and agriculture in east Wanneroo will not be able to be sustained and that there are strong arguments favouring land use change in this area. The Strategy proposes major land use changes in the area south of Neaves Road. The subject land [in that review, and like here] and surrounding land is identified as 'possible rural living'. The intent of the new rural living areas is to form rural buffers between new urban areas and help to conserve native vegetation and rural landscape values. It is envisaged that these new rural living areas will use a range of existing zones, such as special residential, special rural and rural community to provide for innovative rural subdivision and a range of lots sizes."
As will appear, a central tenet of the applicant's case is for the Tribunal to give indirect effect to this strategy in this review.
In his submissions, Mr McMullen appearing for the respondent, conceded that the strategy should be considered as a "seriously entertained planning proposal". In his written final address to the Tribunal, Mr McMullen submitted as follows, at par 10:
"The draft EWLUWMS was considered by the Respondent on 19 December 2006 and the Respondent resolved to request further reporting in relation to some issues raised. Even if the draft EWLUWMS is finalised in its present form in so far as it affects the subject land, the draft EWLUWMS does not support subdivision in the locality of the subject land prior to further planning."
It is convenient to set out at some length the expert evidence of Ms Vyner in relation to the EWLUWMS. Her evidence was as follows, at par 98 – par 101:
"Although the general recommendations made in the [EWLUWMS] will eventually be forthcoming, the precise form that those changes will take has not yet been decided. Accordingly the mere fact that a subdivision application may be consistent with the draft Land Use Concept proposed by the [EWLUWMS] should not be considered as the basis for approving a subdivision application.
The boundary of the potential new 'rural living landscape protection area' [which includes the majority of the subject land] is expressly stated in the [EWLUWMS] to be a 'notional line subject to future investigation'. Moreover, it is not entirely clear whether certain sub-areas of that area are to be designated for rural living, while others are to be designated for landscape protection and, if so, where those sub-areas may be. A considerable amount of work is required before the [EWLUWMS] will be finalised and it is unlikely that it will be adopted and implemented in the short-term. The finalisation of the notional boundary, if retained, should not be determined by proposed subdivision but rather through the due process of the adoption of the [EWLUWMS].
I note that the [EWLUWMS] is a preliminary document only and does not supersede the statutory framework that currently applies in the area and has no statutory status in the determination of current subdivision applications. In this regard, on 8 August 2006 the [r]espondent issued a public statement reiterating that the [EWLUWMS] does not supersede the existing statutory framework and that the Respondent will continue to consider applications based on current planning policy until a [s]trategy is finalised.
Accordingly, to approve the proposed subdivision would, in my opinion, be to pre‑empt the ultimate form of the [EWLUWMS] by premature support for ad hoc subdivision, which would be contrary to proper planning procedure and practice. The stage has not yet been reached where the existing planning policy framework for this area can be set aside."
These observations are entirely consistent with the tenor of several recent Tribunal decisions (namely Maher and Western Australian Planning Commission; Bojanich and Western Australian Planning Commission; and Kimber and Western Australian Planning Commission [2006] WASAT 354) and they should be accepted. In Kimber and Western Australian Planning Commission (affirmed, [2007] WASAT 31) Mr Graham noted, at [51], that:
"[E]ven if the [EWLUWMS] is a 'seriously entertained planning proposal' that does not elevate it to some sacrosanct status above the respondent's other policies, or the provisions of DPS 2."
The consequences of this conclusion are that, with respect, Mr Allerding's submissions to the contrary cannot be accepted. Further, to the extent that either his or his client's evidence seeks to engage in speculation as to the likely planning outcome either based upon that strategy or informed by it, it must too be rejected. This includes speculation that the applicant's proposal, if approved, would be inevitably consistent with that draft strategy.
Strawbridge and the WAPC
A related matter is the status of Strawbridge & Anor v Western Australian Planning Commission. Mr Allerding's Statement of Issues, Facts and Contentions focussed on this decision, particularly in relation to its treatment of EWLUWMS. That case allowed the subdivision of certain land (into two approximately 2 hectare lots), land located in East Wanneroo. Member Connor considered EWLUWMS, at [39], as follows (emphasis added):
"Given community expectation and political impetus, it is likely that there will be land use change in the east Wanneroo area in line with the recommendations contained in the Strategy. Given these reasons, the Tribunal considers it reasonable to take into account the findings of the Strategy as one of the relevant planning factors in determining this matter."
In Bojanich and Western Australian Planning Commission Senior Member Parry, at [51], said that:
"… the actual decision in Strawbridge appears to be sound, on the basis of the following reasoning expressed [in the decision] at [40] to [41]:
'[A]pproval for the subdivision of the subject land follows the existing approved pattern of subdivision on adjoining lots and completes the pocket of 2.0 hectare lots on the southern side of Neaves Road. Approval of the subdivision as proposed would not have any adverse impact on future plans co-ordinating development within the area.
Furthermore, given the existing subdivision and development pattern along the southern side of Neaves Road, the Tribunal does not accept the respondent's assertion that the proposed subdivision will diminish the rural character of the locality. Rural living can contribute to environmental rehabilitation of degraded rural lands, as demonstrated by the rehabilitation undertaken by the applicants on the subject land.' "
In any event, Ms Vyner gave evidence that there were matters that made the facts in the Strawbridge & Anor and Western Australian Planning Commission decision clearly distinguishable from the present circumstances. These were as follows:
"(a)The site [in Strawbridge] formed part of an existing approved pattern of subdivision on adjoining lots and completed a 'pocket' of 2 [hectare] lots on the southern side of Neaves Road. By contrast, there is no precedent of subdivision in this area.
(b)The Applicant provided evidence that the site was not suitable for agricultural pursuits due to water allocation restrictions; proximity to a Priority 1 Source Protection Area. Here the Respondent has indicated that the property is suitable for agricultural pursuits, notwithstanding the water licence restrictions.
(c)The site was located in the General Rural Zone where rural‑residential uses were not incompatible with the objectives of the zone. By contrast, in this application, rural‑residential uses which the subdivision could, in the future, facilitate are incompatible with the objectives of the Rural Resource Zone."
The Tribunal is of the view that Strawbridge & Anor and Western Australian Planning Commission is distinguishable both in relation to its facts and the applicable planning controls in relation to the subject land. In particular, "the existing subdivision and development pattern" here is consistent with not subdividing the subject land.
Strawbridge & Anor and Western Australian Planning Commission does not relevantly assist the applicant in this review.
The respondent's case
Mr McMullen, who appeared for the respondent, called an experienced town planner and officer of the respondent, Ms Vyner, to give expert evidence.
Ms Vyner commenced by telling the Tribunal that there was no satisfactory way of controlling land use in terms of what the applicant was proposing. In particular, in Ms Vyner's view "[a]pproving the proposed subdivision would create the potential for additional building development on Lot 2 and introduce incompatible rural residential uses within a rural resource zone, where agricultural and horticultural uses are to be protected and encouraged".
Ms Vyner suggested that the size of the lots was more compatible with the "Special Rural Zone" and although she conceded that there would only be a marginal impact if the subdivision were approved, there could be an "adverse incremental effect" if there were a series of similar ad hoc subdivisions in the locality. She said that as the lot sizes reduced, it had the effect of encouraging land speculation and increasing the value of the surrounding land beyond its agricultural potential, "further reducing the likelihood of agricultural pursuits being undertaken on rural zoned land". In her view, smaller lots tended to be used for rural residential purposes and this could also lead to land use conflicts between residential development and intended agricultural uses. Ms Vyner suggested that as many 22 additional lots could be created in the general locality if a subdivision pattern of 2 hectare lots became the norm.
Ms Vyner drew attention to DC 3.4. Ms Vyner expressed the opinion that the general presumption against the subdivision of rural land stated in DC 3.4 applied to the circumstances of this case in light of the following matters:
(a)DPS 2 does not specifically provide for the subdivision of land in the "Rural Resource" zone;
(b)there is no endorsed local planning strategy or local rural strategy currently in existence that provides for the subdivision of such land; and
(c)the proposed subdivision did not meet the criteria for rural subdivision set out in cl 3.2.1 of DC 3.4.
Ms Vyner drew attention to the City of Wanneroo's Interim LRS which was adopted by the City in July 2000. That policy was further adopted by the City as a "Local Planning Policy" under DPS 2 in December 2004. She stressed that the provision was not a final local rural strategy that had been adopted by the City. In any event, the main point of the interim LRS was that a suitable planning framework should be created in the form of rezoning the subject land and its locality to either a "Special Rural" or a "Rural Community" zone under DPS 2.
Ms Vyner also gave expert evidence that the proposed subdivision would be inconsistent with SPP 2.5, the MRP and SPP 3 for the same reasons that it would be inconsistent with the zonings under the MRS and DPS 2, and with DC 3.4.
In summary, her reasons for this conclusion were as follows:
(a)the subject land has not been zoned for rural-residential subdivision in DPS 2 or an approved (final) local rural strategy;
(b)approval of the proposed subdivision would represent an unplanned fragmentation of rural land;
(c)the lot sizes proposed would limit the ability for future viable rural pursuits to be undertaken on the land;
(d)the proposed subdivision could have a negative impact on the surrounding rural area by making nearby land, which is currently used for rural purposes, attractive for similar density subdivision;
(e)the proposed subdivision would create greater potential for conflicts between rural-residential land use and the rural uses on nearby properties; and
(f)by creating the potential for additional residential building development, the proposed subdivision would not preserve the current density of development and would detract from the rural character and amenity of the area.
Mention has already been made above of Ms Vyner's view as to the prevailing lot size pattern in the locality. Ms Vyner's evidence on this matter was as follows.
That although there were lots measuring 2 hectares to 3 hectares in the general area, they were "relatively rare" in comparison with the number of lots measuring 4 hectares to 6 hectares. She calculated the average lot size as 4.9 hectares, with a majority of lots being greater than 4 hectares. She suggested that it would be inconsistent with the MRP which specifies that where a minimum lot size is not specified in the relevant town planning scheme or local rural strategy, the respondent should not approve such subdivision applications which would "result in a lot size below those prevailing in the locality".
Ms Vyner also gave evidence that the small lot sizes proposed by the subdivision application were inconsistent with both the Rural Small Holdings Policy (1977) and the North West Corridor Structure Plan (1992).
The applicant's case: evidence from the supporting witnesses
Mr Allerding, giving evidence as an expert, told the Tribunal that in his view the State Government had, "explicitly recognised that the continuation of land in this area for horticultural and agricultural use is no longer sustainable and [it] has actively sought to amend the Planning Framework as it applies to the [subject land] and surrounding area through the EWLUWMS".
Mr Allerding said that the Interim LRS recognised the absence of groundwater in the "Rural Resource" zone and required a further review of the planning framework. The Interim LRS also contemplated approval of subdivisions in "special cases". Mr Allerding's view was that while no description as to "special cases" was provided for in the Interim LRS, he considered the specific circumstances of this case might qualify for approval.
It was suggested by Mr Allerding that a "planning conflict" existed between the identification of the subject land for agricultural and horticultural purposes and the inability of persons, such as the applicant, to obtain an increase in their water allocations.
In this regard, Mr Allerding sought to rely on the EWLUWMS and the Strawbridge & Anor and Western Australian Planning Commission decision. Mr Allerding went on to suggest that there were three primary considerations as to whether or not the proposed subdivision would prejudice the future subdivision opportunities for the locality. In his opinion, these were:
"1.The [subject land] forms the eastern extent for the 'possible future rural living area' identified under [EWLUWMS];
2.The existence of Karoborup Road which is identified as a scenic route by the City of Wanneroo;
3.The existence of Carabooda Lake, immediately west of Karoborup Road and adjacent to the [subject land]."
Mr Allerding's overall conclusions were as follows:
"•The subdivision proposed will provide a lot size that is consistent with its current and foreseeable water allocation to accommodate the olive grove and processing facility, consistent with its present zoning within a Rural Resource zone;
•The balance area [sic] will establish a lot comprising an existing residence that will enable the land to be utilised to its highest and best use, given the prevailing conditions and that will be consistent with its most likely 'rural living' designation;
•Approval to [sic] the proposed subdivision is consistent with its long term intended purpose under [EWLUWMS] for rural living purposes;
•The location of the land proposed would not adversely affect any existing horticultural activities which do not actively adjoin the site;
•The form of subdivision proposal will not prejudice the future subdivision of the locality because the road and lot layout is substantially predetermined by:
•The presence of Carabooda Lake;
•The alignment of [Karoborup] Drive as a scenic route;
•The identification of the rural living designation being on the eastern edge of the Review Site;
•If the eastern edge of the Rural Living designation under [EWLUWMS] were to change, it is highly unlikely that the proposed subdivision would have any prejudicial impact because the primary access for any future eastern site would not involve the Review Site, and would more likely involve access via Kiln Road."
Much of this speculation and analysis relies upon EWLUWMS and, for the reasons given above, the Tribunal does not accept this evidence as sufficiently compelling to either pre‑empt or set aside planning controls, which themselves contemplate an orderly resolution of these matters.
Mr Allerding also tendered a witness statement of Mr Sam Salpietro, who is the Deputy Mayor of the City of Wanneroo. At par 4 – par 6 of that document, Mr Salpietro said:
"I support the subdivision application of the Waddell family of 180 Karoborup Road, Carabooda because their limited groundwater licence renders their property incompatible with its Rural Resource zoning.
This application was supported by the City of Wanneroo Council at its 26 April 2006 meeting. The Waddell application proposes a sustainable planning solution to optimise their existing water licence on a new olive grove and to enhance the use of their existing rural-residential, rural living lot.
For many years I have been a strong advocate for subdivision in cases like the Waddell's [sic] where groundwater constraints sterilize the productive horticultural use of rural land, and thereby can create financial, family and related hardship."
The applicant's evidence: his proposal and motivations
The applicant's witness statement was received into evidence. Most of the information in that witness statement is useful background material, or has been covered in other evidence before the Tribunal.
It is worth noting that Mr Waddell did offer to place a "memorial on our rural‑residential (rural living) title if our application is approved. This would indicate that the property is a rural‑residential lot as part of a rural/horticultural area at present".
The following exchange between the applicant and his representative in the applicant's supplementary oral evidence sets out the current situation with regard to the subject land, the applicant's proposals, and the position with regard to water. This evidence also purports to answer one of the respondent's concerns as to potential land use conflicts, if the proposal were to be approved:
"MR WADDELL: … We are growing a small plantation at the moment on the half that we seek to divide into a second lot [that is to the south, Lot 2] and that plantation contains five varieties of olives, four varieties of those are preferred as table olives, one variety is predominantly oil, although that too - - they can all be used as table varieties but that - - that's what we've got at the moment.
MR ALLERDING: So in terms of the assertions that were made earlier [by the respondent's witness] with respect to the nature of water supply or the required volume of water, what do you say about the extent of area that your current [water] allocation allows you based upon what olives you are growing?
MR WADDELL: If indeed we - - we are granted approval and we plant out the 2 hectares as we propose I believe that we will just be able to do that and still have enough water to continue the rural living activities on our existing lot and I think - - I'm sure that our case is supported in - - in the witness statement of Mr Connolly [for the respondent, as to water issues] … particularly based on those figures that we spoke about a little earlier in terms of the allocations of water for mature olive trees and the additional 20[%] factor that's required for table olive variety.
MR ALLERDING: Okay. Now just again briefly perhaps if I can ask you to explain the nature of the growing and processing of olives and whether or not that gives rise to externalities and adverse impacts [that is, land use conflict issues]?
MR WADDELL: … A large reason for our choice of olives is that they are probably the most friendly, benign variety of planting that we could choose for our site. In accordance with our water licence that we did win on appeal some years ago we did plant the other - - other plantations including a small vineyard, citrus trees, and a small vegetable plantation as required and - - and some native trees. In - - olives are by far the most suitable for our land. The other varieties create all sorts of problems in terms of water usage, use of pesticides, fertilisers and general maintenance, so olives are very benign complementary activity within the mix that we're proposing."
Mr Waddell was also asked about the extent to which surrounding properties could be described as de facto "rural living" arrangements. Mr Waddell estimated that there were about 10 additional properties, on top of the eight or so identified by Ms Vyner in her cross‑examination.
In answer to questions from the Tribunal, Mr Waddell frankly confirmed that subdivision would favourably address finance and taxation/business arrangements in general for him. He thought that if the value of land went up generally (because of subdivision potential) that would address issues of hardship that were occurring as a result of the difficulties with using this increasingly "degenerate land". He noted that a previous foundation owner of the subject land had committed suicide because of these pressures.
Mr Waddell further elaborated the central tenet of his case as follows (emphasis added):
"MR WADDELL: Well, [the subject land] has its own particular characteristics where what we're proposing I think is perfectly suited to our land, we're optimising its use by putting it to its full horticultural use under our existing water licence and the other thing about our property I think is that because of its quite central location to the rural living structure of lots around it, I believe that we could - - we could work as a very beneficial precedent to the other lots in terms of how to maximise and optimise the use and productivity of those lots around us and in fact I have as part of my discussions with [officers of the respondent] suggested that this is the win/win situation with our lot, is indeed if it's approved we would then be in a position to support a case for other similar lots like ours that do meet current regulations and would indeed not threaten the potential outcomes of EWLUWMS either and in that regard we would be prepared to be a pilot case and indeed bring about the wider benefit to - - to our case - - to our result. Sorry, and in that sense I don't see us being - - seeking sort of any preferential or priority treatment, I would indeed ask that our case be seen in its wider context as a broader benefit which could be - - could proceed from now as part of the EWLUWMS program. I believe the pattern is now, the occupancy, the - - you know, in many ways what we are doing is following an existing pattern that's emerged over time. We're not setting an undesirable precedent in a sense - - and if there's any likeness to [Strawbridge & Anor and Western Australian Planning Commission] I think it's that, that we are actually formalising a structure and use and in fact optimising the current rural resource zoning of the land by doing what we're proposing but then also leading the charge for a general benefit that I think should proceed now. I have actually put that to officers at DPI [the respondent] and we are - - we would commit to that for our case to be seen in that light."
Water issues
The respondent called Mr JD Connolly, who is the Program Manager at the Swan Avon Region of the Waters and Rivers Commission (the Commission). Mr Connolly has the qualifications and experience to be considered as a water expert.
He told the Tribunal that, in terms of bore water and the superficial aquifer, the Carabooda sub‑area had "reached its sustainable limit". The applicant holds a water extraction licence current to 30 March 2010 permitting water entitlement of 20 300 kilolitres per annum for certain irrigation and household purposes.
Mr Connolly's main evidence, at par 12 – par 14 of his witness statement, was as follows:
"The Commission bases its water allocation rates for the State on figures made available by the Department of Agriculture. In accordance with information within Bulletin No 4462, Irrigation of Olives in Western Australia, olives are allocated 10 000 kilolitres per hectare per annum in the Wanneroo Groundwater area. …
The [subject land] has approximately 1.8 hectares of land available for agricultural pursuits and a corresponding water allocation of 18 800 kilolitres per annum ([l]ess 1500 kilolitres being the domestic component of the licensed 20 300 kilolitres). The Commission is of the opinion that based on information in Bulletin No 4462, that this amount of land would support an olive grove of up to 450 young trees under trickle irrigation. Factors such as age of trees, seasonal rainfall levels and amounts of fertilizers applied would impact on the yield that could be expected. …
The Commission is of the belief that other agricultural pursuits such as table grapes, citrus or vegetables could also be viable on the 1.8 hectares available. Any change in groundwater use would be subject to an application being submitted and assessed by the Commission. Generally the Commission would [approve] such changes provided any potential impacts were managed, [that is] fertilizer application rates, and there was no increase in water usage. This, however, would be dependent on the individual land owner's expectations of the land."
Ms Vyner's concluding evidence on this point, at par 26 – par 27, was as follows (emphasis added):
"The Applicant's contention that there are no further opportunities for the balance of the land (namely the remaining 2 [hectare] lot) to be utilised for horticultural/ agricultural operations because of water licence restrictions is to an extent accepted. However, this does not provide sufficient justification for the approval of the proposed subdivision. As the olive plantation already exists on the subject land the subdivision is not necessary for the olive plantation to continue operation. Furthermore there is no evidence that the agricultural use of the subject land will cease to exist if the proposed subdivision is not approved.
The current water allocation and licence system in East Wanneroo limits the type of rural enterprises which can be undertaken in the locality. However, the Applicant has clearly demonstrated that the subject land in its current configuration is capable of sustaining an agricultural pursuit, which is consistent with the objectives of DPS 2 for the Rural Resource zone. Thus, the subdivision of the subject land in order to create two lots (one proposed to be used for rural living purposes) is in my view in direct conflict with the objectives of DPS 2 for this zone."
In Strawbridge & Anor and Western Australian Planning Commission, at [30] – [33], Member Connor said:
"The overarching objective embodied in all of the planning instruments relevant to this matter underlines the protection of agricultural land by ensuring the continued use of land for productive agricultural purposes. The planning instruments advocate a general presumption against subdivision of rural land, except where subdivisions are intended for genuine agricultural purposes and the lot sizes are capable of sustaining long‑term agricultural use, or where otherwise provided for in a town planning scheme, local planning strategy or endorsed local rural strategy.
The respondent, including its predecessors and the local authority, have consistently resisted any subdivision of rural zoned land within the east Wanneroo area. However, in recent years, there have been a number of Ministerial appeal decisions and a Town Planning Appeal Tribunal (TPAT) decision (CG Holdings Pty Ltd and Western Australian Planning Commission [1999] WATPAT 11) approving subdivision of rural land in the east Wanneroo area. In CG Holding[s] Pty Ltd and Western Australian Planning Commission, the then Town Planning Appeal Tribunal found that in [that] case there was insufficient water available for the applicant to be granted a licence to enable it to use the subject property for agricultural purposes and held that:
'if the highest and best use of the property as reflected in the various studies undertaken by relevant departments, ... is that this land is appropriate for agricultural purposes but there were practical and legal restriction on the capacity of it so to be used then the context against which the policy has been prepared and applied requires revision.'
Furthermore, the Tribunal was concerned that refusal of the subdivision application would produce a result where effectively the applicant was denied the opportunity to use its property in a way contemplated by the respondent.
The conflict between the established planning framework and the suitability of the land to sustain productive agriculture led to the preparation of the EWLUWMS Strategy. This is acknowledged in the Minister's forward contained in the Strategy where she states:
'The [E]ast Wanneroo community has raised many issues in relation to current water resource planning, allocation and licencing and the lack of strategic land use planning for the area. In particular, many sites set aside for horticultural uses were unable to access water. Clearly some new direction was needed.' "
Although there were some differences between the parties in this case, it was common ground that the supply of water in the area is problematic, and that this limits agricultural development. Indeed, this issue, presented in a broader form, is a major part of the EWLUWMS (see chapter 4), as indicated in the extract and discussion above.
Nevertheless, the critical question for the Tribunal is whether this scenario necessarily leads to the conclusion that there is a case for putting aside the current planning controls and in effect releasing productive agricultural land from that status.
As on the applicant's case, agricultural production is already occurring on the subject land (consistent with the current planning framework), and therefore this is not a case where there is "insufficient water available for the applicant to be granted a licence to enable it to use the subject property for agricultural purposes", the precedent, if it be one, of CG Holdings Pty Ltd and Western Australian Planning Commission has no application here. If it did, there might be grounds in any event for departing from it in the light of more recent authority in this Tribunal, including Strawbridge & Anor and Western Australian Planning Commission which was decided on grounds other than to do with water (which was expressly raised as a problem in that case).
The practical and legal limitations on the supply of water to the subject land are, in the Tribunal's view, insufficient to set aside notions of orderly and proper planning.
Discussion of the case
The central findings of the Tribunal and conclusions of the Tribunal may be shortly stated. They are as follows:
1)The planning framework set out above is common ground and applies to the subject land.
2)On its face, that planning framework does not contemplate approval of the applicant's proposal. Indeed, if applied, it would create significant if not insurmountable barriers towards its implementation. That position is conceded by the applicant.
3)That framework is a lawful and a rational exercise in Government discretionary decision-making: see, for example, Wilson v Western Australian Planning Commission [2007] WASC 39 at [55] (affirming Wilson v Western Australian Planning Commission [2004] WATPAT 86).
4)Appropriate weight must be given to that particular planning framework: cf Ingram v Western Australian Planning Commission at [43] ("a most relevant factor").
5)The land in its current form, considered as a single planning unit, is capable of sustaining agricultural production, as the applicant's own case suggests. Further, the relevant parts of the planning framework treat the land, in effect, as a rural land resource, without emphasis on rural living. Thus, its current zoning as "Rural Resource" under DPS 2.
6)The immediately surrounding locality is broadly of the same status as the subject land with an average lot size greater than 2 hectares. This is generally evident from the aerial photograph in evidence, a fact unsurprisingly consistent with Ms Vyner's opinion. There is no or no sufficient pattern of pre-existing subdivision at 2 hectares to support the applicant's case on this point.
7)There is, accordingly, in the circumstances of this case, a "presumption against subdivision" under DC 3.4 (emphasis added), as the land's capacity for sustainable agricultural use might be adversely affected. None of the express written exceptions to that presumption are relevant here.
8)To give approval to the applicant's proposal would, both on the evidence of the respondent (which the Tribunal accepts) and the authorities, lead to the following:
(a)the unplanned fragmentation of productive rural land (there being no identifiable approved or sufficiently certain planning instrument or strategy yet in place to rationalise this process);
(b)the creation of potential land use conflicts by the establishment of a rural living precedent, which in the ordinary case would need to be separately zoned for or otherwise controlled: cf Mirco and Western Australian Planning Commission at [35];
(c)relatedly, the potential for "artificial" land value increases: cf Mirco and Western Australian Planning Commission at [35];
(d)the placing of potential further demands on limited water supplies, as land use, residential or otherwise, intensified in this process;
(e)the creation of only one smaller lot being used for agricultural pursuits, the other (with a dwelling house) being converted to de facto rural residential or rural living status;
None of these circumstances is consistent with the intent of the planning framework, local or State, which is currently applicable here. A fortiori, none of them can displace the presumption against subdivision referred to.
9)The personal circumstances of the applicant (including his difficulties in raising finance) cannot, as a matter of town planning principle and law, displace these regulatory concerns (cf s 241(3) of the Planning and Development Act 2005 (WA) and see Ingram v Western Australian Planning Commission at [83]).
10)A memorial on title, as proposed by the applicant, would have considerable practical difficulties, to say the least: cf Mirco and Western Australian Planning Commission at [50].
11)The support of the local authority must be seen in the light of their own stated policy instruments to the contrary: cf Halden and Western Australian Planning Commission at [37]:
"The Shire's expressed support for the [subdivision] application [in that case] does not, in the Tribunal's view, mean that their published policy is being departed from generally."
12)Neither the EWLUWMS nor the Strawbridge & Anor and Western Australian Planning Commission decision relevantly control the outcome of this case, as is outlined above.
Conclusions on the "merits" argument
The statement of the applicant set out above ("leading the charge for [the] general benefit") demonstrates that the applicant sees his application as a "pilot [or test] case", one that would effectively pave the way for others to similarly formalise or rationalise the alleged better productive use of the land in the area, a path consistent with, it is said, the inevitable direction of planning for the area, limited water supplies, and what is actually occurring "on the ground".
This position is, in the Tribunal's view, the real "merits" argument of the applicant (although other related matters were raised by the applicant; these have been dealt with above). It effectively concedes that the orthodox view is as is set out in the Tribunal's reasoning immediately above, and contends that this position ought to be abandoned.
But to accede to the applicant's argument, however beneficial to the applicant, superficially desirable and apparently rational it appears to be, would nevertheless be ad hoc and de facto re‑zoning on the part of this Tribunal, action that would, in effect, ignore the state of the policy framework referred to above. As was noted in Bojanich and Western Australian Planning Commission at [67], this Tribunal is not the designated policy-maker or regulatory body for such decisions. These decisions and related action, if they are to take place at all, must originate within the corridors of power where responsibility has been assigned for them under our structure of government. In this case they do not include the Tribunal. Further, it is not the Tribunal's role to give de facto endorsement or legitimacy to provisional or transitional indications of change on the ground unless, like the circumstances in Strawbridge & Anor and WesternAustralian Planning Commission, there are exceptional circumstances justifying it.
And, any suggestion that this Tribunal in its deliberations when it is required to pay appropriate attention to both governmental policy and the "merits of the particular case" is at liberty to undertake this primary role of land management under the guise of the consideration of the merits of the case, with respect, fundamentally misconceives the role of the Tribunal, underplays the weight to be given to the extensive, detailed policy in this area and ignores a long line of court and Tribunal decisions to the contrary, many of which are mentioned above.
With all respect to Mr Allerding, the need to apply policies in this area "flexibly" (which, within limits, may be accepted as a general proposition) does not equate to abandoning such policies altogether, which is what the applicant seeks the Tribunal to do. As the Tribunal noted in WR Carpenter Properties Pty Ltd and Griffin Coal Pty Ltd and Western Australian Planning Commission [2006] WASAT 200, at [113], in a passage endorsed in Bojanich and Western Australian Planning Commission (emphasis added):
"Although the Commission (and the Tribunal on review) is not fettered in the exercise of planning discretion by the provisions of [the local planning scheme] and may depart from the provisions of policy controls in appropriate circumstances, it is generally contrary to orderly and proper planning to approve a subdivision which is materially inconsistent with the strategic and statutory planning framework."
Further, the Tribunal in taking this approach would not be engaging in an irregular "moratorium" exercise, as Mr Allerding suggests, citing Highland Bridgetown Pty Ltd v Western Australian Planning Commission (1997) 17 SR (WA) 189. Although, by majority, the previous Tribunal there found that "the imposition of a moratorium on development is not valid" where the regulatory body "has not yet taken the time to consider the future of the area" (at [208]), that case does not address the situation, as here, where a whole raft of applicable policies and instruments are already in place and one strategy only is in draft form. This was essentially the basis for distinguishing Highland Bridgetown Pty Ltd v Western Australian Planning Commission which was adopted by the Tribunal in Angelo Estates Pty Ltd v Western Australian Planning Commission (1999) 25 SR (WA) 65 at [74]: "Here the proposal is cogent but the planning is in place."
For these reasons the application for review must be dismissed.
It is evident from this case (and others already mentioned) that some of the residents of East Wanneroo, such as the applicant, are in a difficult situation with regard to the development of their land. It only remains to reiterate what Senior Member Parry said in Bojanich and Western Australian Planning Commission at [67]:
"The Tribunal can certainly understand the applicants' frustration with the slow pace at which strategic planning of the East Wanneroo area has apparently occurred. Urban planning and environmental considerations require that the strategic planning process for this area be finalised quickly. However, orderly and proper planning is seldom simply a matter of remedying frustrations."
Orders
The orders of the Tribunal are:
1.The application for review is dismissed.
2.The decision under review not to approve the application for subdivision is affirmed.
I certify that this and the preceding [82] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P McNAB, MEMBER
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