WANSBROUGH and WESTERN AUSTRALIAN PLANNING COMMISSION - [2019] WASAT 132

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION:   WANSBROUGH and WESTERN AUSTRALIAN PLANNING COMMISSION [2019] WASAT 132
MEMBER:   MS L EDDY, SENIOR MEMBER
MS M CONNOR, MEMBER

HEARD:   19 AND 20 JUNE 2019, FURTHER WRITTEN SUBMISSION RECEIVED 27 SEPTEMBER 2019 AND 2 OCTOBER 2019
DELIVERED          :   11 DECEMBER 2019
FILE NO/S:   DR 374 of 2017
BETWEEN:   CRAIG JAMES WANSBROUGH
First Applicant
PETER HARRY VARELIS
Second Applicant
SEBASTIAN WALZ
Third Applicant
TRACEY TIMMS
Fourth Applicant
CHARLOTTE OLIVIA REYNOLDS
Fifth Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Town planning - Amendment to Subdivision Guide Plan - Rural Living A Policy Area - Increase in lot yield from two lots to three lots under one hectare in area - Sewerage sensitive area - Strategic planning considerations - One hectare minimum lot size requirement - Land capability - Cumulative impacts on the environment - Adverse planning precedent

Legislation:

Metropolitan Region Scheme
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), reg 2(b), reg 79, Sch 2, cl 16, cl 17, cl 18, cl 19, cl 20, cl 21, cl 22, cl 22(1)(c), cl 23, cl 24, cl 25, cl 27(1), cl 28(1), cl 28(2), cl 29, Pt 4
Planning and Development Act 2005 (WA), s 257B(3)
Shire of Serpentine-Jarrahdale Town Planning Scheme No 2, cl 5.12.9(a), Pt 5, Appendix 4A
State Administrative Tribunal Act 2004 (WA), s 31(1)

Result:

Application for review dismissed

Decision of respondent affirmed

Category: B

Representation:

Counsel:

First Applicant	:	Mr J Algeri (acting as agent)
Second Applicant	:	Mr J Algeri (acting as agent)
Third Applicant	:	Mr J Algeri (acting as agent)
Fourth Applicant	:	Mr J Algeri (acting as agent)
Fifth Applicant	:	Mr J Algeri (acting as agent)
Respondent	:	Mr J Misso

Solicitors:

First Applicant	:	Altus Planning
Second Applicant	:	Altus Planning
Third Applicant	:	Altus Planning
Fourth Applicant	:	Altus Planning
Fifth Applicant	:	Altus Planning
Respondent	:	State Solicitor's Office

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

Amherst Developments Pty Ltd and City of Gosnells [2017] WASAT 16
Clive Elliot Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433
Marshall v Metropolitan Redevelopment Authority [2015] WASC 226
Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117

REASONS FOR DECISION OF MEMBER M CONNOR:

Introduction

An application was lodged with the Shire of Serpentine‑Jarrahdale (Council or Shire) to amend the endorsed Subdivision Guide Plan for L51 ‑ L61 McKenna Drive, Cardup (approved SGP). The effect of the proposed amendment was to increase the proposed lot yield of Lot 54 McKenna Drive (Lot 54) from two lots to three lots and increase the lot yield of Lot 55 McKenna Drive (Lot 55) (now Lot 900 and Lot 901) from two lots to five lots (original application).
The original application was advertised for comment and four submissions were received. The Council at its meeting of 22 May 2017 recommended refusal of the proposed amendment to the approved SGP 'due to inconsistency with the Western Australian Planning Commission's in‑principle support for the Rural Strategy Review 2013'.
The original application, together with the recommendation of the Council, was considered by the Statutory Planning Committee of the Western Australian Planning Commission (respondent) at its meeting of 10 October 2017. The respondent resolved pursuant to Sch 2, cl 22(1)(c) of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (deemed provisions) to 'refuse to grant approval to the amendment to [the approved SGP]' for the following reasons:
1.Notwithstanding that the subject land is zoned Rural Living A, whereby a lot size range of 4000m² to 1 hectare may be permitted under Clause 5.12 of the Shire of Serpentine Jarrahdale Town Planning Scheme No. 2, the Subdivision Guide Plan Amendment contemplates a density akin to a R2.5 coding which is contrary to State Planning Policy 2.5 ‑ Rural Living which requires new Rural Living lots to be within close proximity to services, public transport and other amenities necessary to justify the proposed density.
2.The subject land abuts and existing Rural Zone and is located on the periphery of Rural living A 13. The quasi‑urban lot sizes proposed in the Subdivision Guide Plan amendment would not provide a suitable transition from the rural zone to the west. Intensification over and above that contemplated on the original Subdivision Guide Plan, without broader comprehensive planning investigations, is ad hoc, and would have a detrimental effect on the broader rural setting and the amenity of other rural land holdings within the vicinity.
3.Approval of the Subdivision Guide Plan amendment would be contrary to the Shire of Serpentine Jarrahdale 2013 Rural Planning Strategy which seeks to limit further fragmentation of Rural Living Lots below 1 hectare in this area.
4.The propose amendment is not consistent with the Draft Government Sewerage Policy 2016 which does not support subdivision of lots below 1 hectare in sewerage sensitive areas.
5.The Subdivision Guide Plan amendment does not adequately demonstrate that the land is capable of being developed and serviced.
6.Approval of the Subdivision Guide Plan amendment could establish an undesirable precedent.
The applicants, on 30 November 2017, applied under cl 25 of Sch 2 of the deemed provisions to have the decision reviewed. As a part of the proceedings in this matter, the parties engaged in a mediation process, which resulted in the applicants submitting a revised proposed amendment to the approved SGP (revised application). The revised application no longer proposed changes to the lot yield of Lot 54, and only proposed to increase the lot yield of Lot 55, now Lot 900 and Lot 901 (subject land), from two lots to three lots of 8,255m²in a battle‑axe configuration.
The Tribunal, pursuant to s 31(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) invited the respondent to reconsider its decision in light of the revised application.
The respondent, at its meeting of 11 September 2018, resolved to refuse to approve the revised application for the following reasons:
1.Approval of the Subdivision Guide Plan amendment would be contrary to the Shire of Serpentine Jarrahdale 2013 Rural Planning Strategy which seeks to limit further fragmentation of Rural Living Lots below 1 hectare in this area.
2.The proposed amendment is not consistent with the Draft Government Sewerage Policy 2016 which does not support subdivision of lots below 1 hectare in sewerage sensitive areas.
3.The Subdivision Guide Plan amendment does not adequately demonstrate that the land is capable of being developed and serviced.
4.Approval of the Subdivision Guide Plan amendment could establish an undesirable precedent.
The applicants, with leave of the Tribunal, at the commencement of the final hearing substituted the plan of the revised application. The substituted plan dated 14 June 2019 contained an annotation stating:
Note: Stocking of horses or large animals prohibited on lots less than 1 ha.
It is the substituted plan (see Attachment 1), together with the Structure Plan report dated July 2018 and Appendices (see pages 7 – 153, Exhibit 2), that form the application which is the subject of this review.

Background to the Subdivision Guide Plan

There is considerable history relating to the creation of the subject land and it is appropriate that the events leading to this point should be set out in full in order to understand the background to the present review application before the Tribunal.
The approved SGP, which was adopted by the Shire on 28 September 1999, depicted the intended subdivision design of Lot 4 Kargotich Road, Cardup (approximately 24.1 hectares) indicating a yield of 11 lots ranging in size from 2 hectares to 2.5 hectares. The approved SGP also indicated possible future subdivision when services, in particular reticulated water, became available (page 53, Exhibit 2).
In March 2000, Amendment No 100 to the Shire of Serpentine‑Jarrahdale Town Planning Scheme No 2 (TPS 2 or Scheme) was gazetted, rezoning Lot 4 Kargotich Road, Cardup from 'Rural' to 'Rural Living A' zone. In granting approval to Amendment No 100, the then Minister for Planning, amongst other things, required the approved SGP to be modified as follows:
(a)inclusion of additional revegetation areas to accord with the Local Government's guidelines for nutrient and drainage management;
(b)provision of a North point;
(c)deletion of the portion of 'Multiple Use Path' crossing the existing drainage reserve as this will serve no planning purpose given the approved subdivision design for the adjoining lot does not provide opportunity for connectivity;
(d)modify annotation by:
(i)inserting the following:
'Direct vehicle access to Kargotich Road from individual lots is to be restricted via appropriate conditions and/or implementation of a 0.1 metre spite strip;
(ii)replacing 'Possible Subdivision Overlay' in the legend with:
'Possible subdivision overlay, subject to detailed site investigation and Environmental Assessment'; and
(iii)deleting annotation relating to the extent of the road reservation.
The Tribunal is informed that several of these modifications, in particular the modification to the notation relating to the subdivision overlay (modification (d)(ii)), have not been carried out, although the letter dated 21 December 1999 from the respondent to the Chief Executive Officer of the Shire explicitly required 'amending documents to be prepared and executed in accordance with the modifications required and [then submitted] for the Hon Minister's endorsement of final approval' (para 13 and Annexure 1 of Exhibit 3).
On 30 March 2000 the respondent granted approval to subdivide Lot 4 Kargotich Road, Cardup into 11 lots in accordance with the subdivision design depicted in the approved SGP. This approval led to the creation of Lot 55, which was approximately 2.48 hectares in area.
On 16 May 2014 the respondent received an application to subdivide the Lot 55 into five lots. This application was refused by the respondent on 14 October 2014 for the following reasons:
1.The proposal is not consistent with the Shire of Serpentine Jarrahdale TPS No. 2 by reason that it represents a significant departure to the Subdivision Guide Plan (Lot 4 Kargotich Road, Peel Estate) adopted by the Shire on 28 September 1999.
2.The proposal would be contrary to orderly and proper planning by reason of non-compliance with the agreed lot sizes and lot configurations shown on the adopted Subdivision Guide Plan.
3.The proposal, if approved, would prejudice comprehensive planning for the area and set an undesirable precedent for further subdivision in a manner inconsistent with the established planning framework.
On 17 October 2014, the applicants made application to the Tribunal to have this decision reviewed (DR 350 of 2014). As part of those proceedings, the parties engaged in a mediation process, which resulted in a revised plan of subdivision showing two lots of approximately 1.2 hectares each, in a battle‑axe configuration. Although the number of lots accorded with the 'possible subdivision overlay' indicated on the approved SGP, the lot configuration differed.
The Tribunal, pursuant to s 31(1) of the SAT Act, invited the respondent to reconsider its decision in light of the revised plan of subdivision. The respondent, on 10 March 2015, resolved to set aside its decision and approved the subdivision application in accordance with the revised plan, subject to 17 conditions.
According to the undisputed evidence of Mr Aiden O'Brien, Acting Planning Manager, Metropolitan South‑West of the Department of Planning, Lands and Heritage, the subdivision of Lot 55 into two lots was finalised on 16 June 2017, resulting in the creation of Lot 900 and Lot 901 McKenna Drive, Cardup. Lot 900 is approximately 1.28 hectares in area and fronts to McKenna Drive, while Lot 901 is approximately 1.2 hectares in area and has access to McKenna Drive via a battle‑axe leg.

Planning framework

The following legislation, policies and instruments comprise the planning framework applicable to the revised application.

State

Metropolitan Region Scheme

The subject land is zoned 'Rural' in the Metropolitan Region Scheme.

Planning and Development (Local Planning Schemes) Regulations 2015

Pursuant to reg 79 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regulations) the approved SGP is taken to continue in force as a 'Structure Plan' for the purposes of the LPS Regulations.
'Structure Plan' is a defined term under Pt 4 of Sch 2 of the deemed provisions as:
structure plan means a plan for the coordination of future subdivision and zoning of an area of land.
Clause 27(1) of the deemed provisions provides that:
A decision‑maker for an application for development approval or subdivision approval in an area that is covered by a structure plan that has been approved by the Commission is to have due regard to, but is not bound by, the structure plan when deciding the application.
Further, cl 28(2) of the deemed provisions provides that a structure plan that was approved before the commencement day referred to in reg 2(b) of LPS Regulations, as such is the case in this instance, is taken to have been approved on 19 October 2015 and pursuant to cl 28(1) of the deemed provisions, the approved SPG has approval for a period of 10 years from that date.
Clause 29 of the deemed provisions provides for an amendment of a structure plan and the procedures for amending a structure plan are the same as the procedures set out in cl 16 to cl 24 of the deemed provisions for making a structure plan, with any necessary changes.

State Planning Policy 1 - State Planning Framework

State Planning Policy 1 ‑ State Planning Framework (SPP 1) unites existing State and regional policies, strategies and guidelines within a central State planning framework to provide a context for decision‑making on land use subdivision and development in Western Australia. It informs decision-makers in the planning process on those aspects of State level planning policy which are to be taken into consideration, and given effect to, in order to ensure integrated decision‑making across all spheres of planning. SPP 1 includes all current planning policies, strategies, operational policies, position statements and guidelines of the WAPC. The following planning policies, sub-regional strategy, and operational policy listed in SPP 1 are relevant in the consideration and determination of this matter:
•State Planning Policy 2.1 – Peel‑Harvey Coastal Plain Catchment (SPP 2.1) ‑ One of the policy objectives of SPP 2.1 is to 'ensure that changes to land use within the catchment to the Peel-Harvey estuarine system are controlled so as to avoid and minimise environmental damage': cl 2. Further, cl 6.2.3 states:
Because of potential nitrate contamination of the groundwater, on-site effluent disposal will be limited to densities of no more the [one] effluent disposal system per 1 hectare unless specific investigation of the capacity of the local environment to absorb the effluent is undertaken and subject to alternative systems as set out Clause 5.7.
•State Planning Policy 2.5 ‑ Rural Planning (SPP 2.5) ‑ The purpose of SPP 2.5 is to protect and preserve rural land from further fragmentation and to minimise land use conflicts and to promote settlement patterns in a sustainable manner.
•South Metropolitan Peel Sub-Regional Planning Framework (SMPSPF) ‑ The subject land is depicted as 'rural residential' land in the SMPSPF, which is defined as a 'sub‑set of rural living and a land use zone with land parcels from one and four hectares'.
•Government Sewerage Policy (September 2019) (GS Policy) ‑ The GS Policy was published by the Department of Planning, Lands and Heritage on behalf of the State Government and became operational on 23 September 2019.
The intent of this policy is for reticulated sewerage to be provided during the subdivision and development of land so that future generations of Western Australians do not bear the cost of another infill program as a result of planning decision made today. Notwithstanding, the GS Policy acknowledges that that there may be circumstances where reticulated sewerage cannot be provided and adopts a best practice approach to the provision of on-site sewage treatment and disposal, in accordance with Australian/New Zealand Standard 1547:2012 On‑site domestic wastewater management (AS 1547). The GS Policy applies to structure plans and is to be read in conjunction with the supporting Government Sewerage Policy Explanatory notes (September 2019).
The objectives of the GS Policy are:
1.to generally require the connection of new subdivision and development to reticulated sewerage;
2.to protect public health and amenity;
3.to protect the environment and the State's water and land resources;
4.to promote the efficient use of infrastructure and land;
5.to minimise costs to the broader community including by ensuring an appropriate level and form of sewage servicing is provided; and
6.to adopt the precautionary principle to on-site sewage disposal.
Clause 5.2 of the GS Policy provides the following criteria where on‑site sewage disposal maybe considered:
1.where the provisions of cl 5.1.1 do not apply;
2.where the responsible authority is satisfied that:
(i)each lot is capable of accommodating on-site sewage disposal without endangering public health or the environment; and
(ii)the minimum site requirements for on‑site sewage disposal outlined in the policy can be met.
Clause 5.2.1 of the GS Policy sets out the lot size requirement and associated notes. Relevantly, the subject land is located in a 'sewerage sensitive area' and as such, a 1 hectare minimum lots size applies. Clause 5.2.2 provides for separation from water resources, which is not in issue in this matter. Clause 5.2.3 requires that the discharge point of the on‑site sewage system should be 1.5 metres in sewage sensitive areas above the highest groundwater level. The GS Policy also states that:
Where the use of fill is proposed to achieve separation distances, proponents may be required to provide additional information to demonstrate that solutions are effective, do not impact on other lots through water diversion, are not cost prohibitive and will not compromise amenity or landscape values.
Clause 5.2.4 and cl 5.2.5 of the GS Policy require that '[e]ach lot should be sufficient size to accommodate development and an unencumbered land application area for the disposal of sewage in accordance with Schedule 2 of [the] policy' and '[s]econdary treatment systems with nutrient removal will generally be required in … sewerage sensitive areas'.
Schedule 1 ‑ Supporting information and requirements at various stages of the planning system (Schedule 1) of the GS Policy provides that any application for a local structure plan should specify how sewage will be treated and disposed and be accompanied by information that is commensurate to the scale and nature of the proposal. Clause 2.3 of Schedule 1 provides for an assessment of the best practicable option for sewerage servicing for '[p]roposals providing for lots less than 1 hectare where reticulated sewerage may not available'. The assessment should include:
•sewage treatment and disposal options;
•land use planning impacts;
•public health and environmental impacts, in particular:
-identifying potential impact on sensitive receiving environments, including sewage sensitive areas;
-where approval is likely to set a precedent for similar unsewered subdivision in the local catchment, cumulative impacts should be considered;
-identify measures to reduce impacts; and
-information from local government on the performance of on-site systems in the local area at the proposed density.
Clause 2 ‑ Determination of land application area (m²) and cl 3 Land application areas for single houses of Schedule 2 ‑ Site requirements for on‑site sewage systems (Schedule 2) of the GS Policy are applicable to this matter.

Local

Shire of Serpentine‑Jarrahdale Town Planning Scheme No 2

TPS 2 was gazetted on 4 August 1989 and has been amended from time to time. Of particular relevance is Amendment 100 to TPS 2 (see para 11). All the land contained with the approved SGP, including the subject land, is zoned 'Rural Living A' under TPS 2.
Part V ‑ Development Requirements of TPS 2 set outs the following relevant requirements pertaining to the Rural Living A zone:
5.12.1The purpose and intent of the [R]ural Living [A] … zones is described within the Council's Rural Strategy as amended and adopted by Council and the State Planning Commission dated April 1994.
5.12.2The Rural Living A Zone is intended to cater for rural residential development on a range of lots between 4,000 square metres to one hectare in accordance with the objectives and guidelines of the Rural Strategy.
…
5.12.4Notwithstanding sub clause 5.12.2 … where land capability and site constraints dictate a larger lot size than one hectare (Rural Living A) … may be required.
…
5.12.6Reticulated water supply shall be required for development on new lots under 2 hectares unless approved otherwise by the Council and the State Planning Commission. Where reticulated water is not required, or the land is greater than 2 hectares a guaranteed rainwater supply of 90,000 litres will be required.
5.12.7A description of the land included in the Rural Living A … zones together with the land uses permitted and any special provisions relating to the land are set out in Appendix 4A …. Such uses will be dependent upon site survey and reference to land capability and other planning data.
5.12.8There shall be a plan of subdivision entitled subdivision Guide Plan for each specified parcel of land including in the Rural Living A … zones endorsed by the Shire Clerk and approved by the State Planning Commission.
5.12.9In addition to the provisions contained in Appendix 4A … and other such provisions of the scheme as may affect it, any land which is included as part of the Rural Living A …zones shall be subject to the following conditions:
a)subdivision shall be in accordance with the appropriate Subdivision Guide Plan endorsed by the Shire Clerk but minor amendments to the plan of subdivision may be permitted subject to the approval of the Commission, and Council, however, lot sizes will not generally be permitted to be reduced;
…
g)the keeping of horses, sheep, goats and other grazing animals, where permitted, shall be subject to the prior approval of the Council. Approval to keep animals shall not exceed the stocking rates recommended by the Department of Agriculture for the applicable pasture types[.]
Land use permissibility and any other special provisions relating to the subject land are contained in Appendix 4A of the Scheme. The land contained in the approved SGP is described in Appendix 4A as 'RLA 13 ‑ Lot 4 Kargotich Road, Peel Estate' (RLA 13).
The relevant 'Special Provisions' of RLA 13 in Appendix 4A that are pertinent to this application are:
2.No dwelling, shall be approved by the Council unless it is connected to an alternative domestic waste water treatment system as approved by the Health Department of WA with an adequate phosphorus retention capacity, as determined by the Department of Environmental Protection, and with the base of the system or the modified irrigation area being the required distance above the highest known water table.
…
8.…
… the site plan and proposal shall demonstrate that the development and use of the land will not compromise the implementation of the overlay subdivision, as depicted on the endorsed Subdivision Guide Plan.
…
10.The Council shall not support any application for subdivision of the land into Rural Living A lot sizes unless the subdivision is consistent with a Subdivision Guide Plan endorsed by Council and the Commission for whole or part of the area.
11.A Subdivision Guide Plan for the subdivision of land into Rural Living A lot 1 [sic] sizes, shall have regard to the objectives set out in this Scheme for the zone or zones affected by it, and the requirement of Clause 5.9.3.
12.The Subdivision Guide Plan referred to in Clause 10 shall include and be accompanied by Technical Guidelines that provide a prescription for development and the implementation of subdivision in areas of planning, roadworks, drainage, effluent disposal, water, bushfire control, protection of the environment, landscaping, easements, landowner coordination, infrastructure cost sharing, controlling developments, or generally regulating or prescribing the use or development of land to overcome problems which would occur, should the land be developed.
In Amherst Developments Pty Ltd and City of Gosnells [2017] WASAT 16 at [17], the Tribunal found that scheme provisions, such as cl 5.12.9(a) and special provisions 10 of Appendix 4A, which dealt with the operation, or effect of, structure plans were inconsistent with cl 27 of the deemed provisions and were held under s 257B(3) of the PD Act to no longer be of any effect as cl 27 of the deemed provisions now prevailed.

Shire of Serpentine-Jarrahdale Rural Strategy 2013 Review (December 2017)

The subject land is located in the 'Rural Living Policy Area' (RLPA) of the Shire of Serpentine-Jarrahdale Rural Strategy 2013 Review (December 2017) (Rural Strategy), and more particularly, in the 'Rural Living A' (RLA) policy area.
Clause 4.1 of the Rural Strategy states that the purpose of the RLPA is to provide opportunity for residential uses in a rural setting. The Rural Strategy details the historical development of the RLA and Rural Living B (RLB) policy areas as follows:
These categories were determined in 1994 due to the existing special rural development in the Shire which consisted of lot sizes of approximately 2ha. It was considered that this size was not a viable future option for development as the lots were expensive to service and manage and were too small to be used as hobby farms. [RLA] was created to cater for smaller sizes from 0.4 ha - 1ha and existing Special Rural areas were categorised as [RLB] which allowed for a lot size between 2 - 4ha[.]
The objectives of the RLPA are as follows:
•Provide for additional choice in style and location of residential land not available within the Shire's urban nodes.
•Maximise the provision, use and efficiency of infrastructure available in and around the Shire's urban nodes.
•Restrict rural land uses that are not generally compatible with maintaining residential amenity.
•Provide opportunities for development that maintains rural character and promotes appropriate land management.
•Provide for a diversity of lot sizes ranging from 0.4 and 4 hectares.
•Provide opportunity for low-key tourism, such as Bed & Breakfast accommodation.
•Protect Local Natural Areas and encourage revegetation.
The Rural Strategy sets out the following specific structure plan requirements for RLA policy areas:
•Lots sizes can range between 0.4ha to 1ha with the possibility of limited larger balance lots where capability and site constraints dictate (max 4ha).
•All lots created require connection to a reticulated water supply where possible in accordance with prevailing WAPC Policy at the time.
…
•Clause 5.12.4 of Town Planning Scheme No. 2 applies in [sic] to the following areas where a minimum lot size of 1 hectare is permitted unless a Subdivision Guide Plan and/or overlay depicting smaller lots was existing and approved at such time as the Rural Strategy Review was supported by the WAPC:
•Rural Living A area east of Kargotich Road, north of Gossage Road, west of future Tonkin Highway and south of Special Rural 17 and 20[.]
Figure 4.1 of the Rural Strategy includes the following notation in relation to lot size:
Lot size ranges are a guide only. Final Subdivision Guide Plans/Structure Plans outlining subdivision potential are determined by site specific conditions, capability and constraints.

Issue

The issues identified by the parties that arising for determination in this matter are as follows:
1.Having regard to the strategic planning framework, is an amendment that would facilitate further fragmentation of the subject land contrary to the principles of orderly and proper planning?;
2.Has sufficient technical and onsite assessment been undertaken to demonstrate that waste water can be effectively disposed of on the site and that the creation of lots under 1 hectare in size will not have a detrimental effect on the Peel-Harvey Coastal Plain Catchment?; and
3.Would approval of the revised amendment set an undesirable precedent for future subdivision within the SGP area?
The Tribunal will address each issue in turn.

Having regard to the strategic planning framework, is an amendment that would facilitate further fragmentation of the subject land contrary to the principles of orderly and proper planning?

The respondent submits, and the applicants agree, that the exercise of discretion to approve an amendment to the approved SGP is a strategic planning consideration that requires the decision‑maker to 'look beyond whether an amendment is 'compliant' with the planning scheme and meets the technical requirements set out for subdivision control' but rather to consider the long‑term planning intent for the SGP area. (ts 9, 19 June 2019).
The respondent submits that the 'possible subdivision overlay' on the approved SGP continues to represent the most suitable and appropriate form of subdivision in respect of the subject land, taking into account the aims of the RLA zone, read together with the Rural Strategy, the boarder strategic planning framework and the characteristics of the subject land.
The applicants contend that the lot sizes proposed are within the lot size contemplated by the Scheme and the 'possible subdivision overlay' for RLA 13, and the site-specific land capability assessments demonstrate that the lots sizes are satisfactory from a health and environmental perspective.
The applicants argue that the 1 hectare minimum identified in the GS Policy and SPP 2.1 is merely arbitrary and has been subsumed into the Rural Strategy. The applicants say that this is an application of the merits of a particular proposal and assessment should be proportionate to the level of risk associated with the particular proposal.
In considering the revised amendment to the approved SGP in light of the relevant planning framework, the applicants make the following submissions. Firstly, the applicants concede that cl 6.2.3 of SPP 2.1 suggests that densities in areas within the Peel‑Harvey Coastal Plain Catchment (Peel‑Harvey Catchment) that require on‑site disposal should be limited to no more than one system per hectare, but argue that provision is made for smaller lot sizes with alternative waste water treatment and effluent disposal systems if specific investigation are undertaken of the capacity of the local environment to absorb the effluent. The applicants say that such specific investigations to an appropriate standard have been undertaken by Mr Lindsay John Stephens, who is an environmental and geotechnical consultant and who holds academic qualifications in geology, geomorphology and ecology.
Secondly, in regard to SPP 2.5, the applicants assert that the land is already zoned rural living and that the proposed revised amendment to the approval SGP is compatible with the objectives of SPP 2.5.
Thirdly, the applicants submit that the revised amendment to the approved SGP does not conflict with the SMPSPF as this document more broadly addresses a number of land use considerations including the identification and protection of areas for future urban expansion. The applicants note that the SGP area is depicted as 'Rural Residential' in Plan 1 of the SMPSPF, a term described as 'land parcels from one to four hectares in size', but submits that this is a regional document that has not reflected the local nuances of the local planning schemes and/or strategies in some local governments, such as City of Rockingham and the Shire, which provide for lot sizes significantly below 1 hectare area.
Fourthly, the applicants submit that the Rural Strategy is a strategic document which is intended as an overarching guide to complement the Scheme. They say that the Rural Strategy should not be used as a blunt statutory instrument with respect to lot sizes in the RLA policy area as there is provision for a range of lots sizes from 4,000m² to 1 hectare. Rather, the applicants suggest that there is some conflict between the words of the Rural Strategy and Figure 4.1 because if we were to look at Figure 4.1 only, it would suggest flexibility with the RLA and RLB policy areas. In support of their case, the applicants point to the two lots (Lots 53 and 58 McKenna Drive) within the approved SGP that are depicted in the subdivision overlay with lots sizes as small as 5200m² and assert that the revised SGP aligns with the existing subdivision potential of neighbouring properties within the estate. Mr Dykstra contends that the subdivision overlay pattern of the SGPs were never intended to 'lock in in the ultimate subdivision pattern or lot size' (para 12, Exhibit 8) and referred to other more recent subdivisions in the Darling Down locality where lot sizes below 1 hectare have been approved.
Mr Dykstra is of the opinion that the 1 hectare minimum lots size should not be rigidly applied and 'used as an absolute barrier to refuse any application to amend a SGP in the Shire of Serpentine‑Jarrahdale' (para 32, Exhibit 8). He submits that 'once regard is given to the "site specific conditions, capability and constraints" a lot size commensurate with the [revised amendment to the SPG], and with the minimum lot size of the [Rural Living A] zone, can be considered' (para 33, Exhibit 8,). The applicants contend that the proposed lot size of 8255m² meets the strategic objectives of the Rural Strategy, particularly given that the average lot size over the SGP for RLA 13 will still significantly exceed 1 hectare lot size minimum.
Fifthly, the applicants say that the GS Policy is an Operational Policy under SPP 1 and is intended only to 'guide' decision‑making. In terms of the weight that should be accorded to the GS Policy in the determination of this application, the applicants accept that the GS Policy is a planning instrument that is to be given regard, but only to the extent that it is to guide decision‑making. The applicants submit that discretion is available to approve lots of less than 1 hectare in sewerage sensitive areas where there is no reticulated sewerage. To read the GS Policy otherwise would assume that it is no longer a policy to guide decision‑making but rather 'a blunt statutory instrument intended to enforce a prohibition' (applicant's further written submission on the GS Policy). The applicants contend that the proposed revised amendment to the SGP can be supported giving appropriate regard to the GS Policy and the merits of the application because the proposed lot sizes are consistent with lots sizes contemplated in RLA 13, TPS 2 and the Rural Strategy and the resultant subdivision will not have negative consequences on the environment or public health as demonstrated by the site specific investigation undertaken by Mr Stephens. Moreover, the removal of horses from the land will have a positive effect of reducing nutrient loading on the site.
As articulated by the parties, the nature of this review proceeding is different to a review proceeding involving the consideration of the merits of a subdivision application. The Tribunal in reviewing a proposed amendment to a SGP is called upon to the consider the proposal in the context of not just the statutory planning framework but in light of the longer‑term strategic planning aims and objectives for the relevant locality and whether the proposed amendment will achieve the desired outcomes. Clearly, the Scheme, which is over 30 years old, embodies a strategic intent to support the subdivision of rural land to provide for rural residential lots ranging in size between 4,000m² and 1 hectare within specified RLA policy areas within the municipality, predicated on land capability and the preparation of subdivision guide plans. At the time the SGP for RLA 13 was approved the lot sizes reflected the minimum requirement for lots without reticulated water, that being a minimum of 2 hectares and although the subdivision overlay did indicate how the lots could possibly be further subdivided, the then Hon Minister required the following notation to be inserted in the legend of the SPG: 'Possible subdivision overlay, subject to detailed site investigation and Environmental Assessment'. The approved SGP is now 20 years old and of the 11 lots created, only three (including the subject land) have been further subdivided generally in accordance with the 'possible subdivision overlay'.
The Tribunal finds on the evidence that there has been a strengthening in the State's strategic objective to protect the environment, natural resources and natural systems and more specifically, the Peel‑Harvey Catchment through State planning policies, the sub‑regional planning framework and more recently, with the adoption of the GS Policy. This is further apparent from the periodic update to the Rural Strategy which has culminated in the inclusion of 'a minimum lot size of 1 hectare' for a number of specified RLA policy areas unless a SGP and/or overlay depicting smaller lots was existing and approved at the time the Rural Strategy Review was supported by the WAPC. This modification reinforced the State's strategic objective as articulated in its policies but recognised the previous planning undertaken in particular RLA policy areas.
The applicants appear to be relying on the historical development of the RLA policy areas and subdivision patterns for the area rather than accepting that there has been a change in the strategic planning framework which seeks to limit densities in sewerage sensitive areas to no more than one effluent disposal system per 1 hectare to manage the cumulative impacts of on‑site waste water disposal and the risk that they pose on the environment and water resources. Further, the reliance on the 'possible subdivision overlay' of the approved SGP to support further subdivision of the lots within RLA 13, is misplaced given the need for 'detailed site investigations and Environmental Assessment'. This notation on the approved SGP necessitates an examination of the cumulative environmental impacts of further subdividing the lots within RLA 13. The Tribunal accepts that sufficient site‑specific investigations have been undertaken by the applicants to demonstrate that the proposed lots are of sufficient size to accommodate a land application area in accordance with Schedule 2 of the GS Policy (see para 76) but this is only one of the limbs supporting the further subdivision of the lots within RLA 13. There is no evidence to suggest that there has been any assessment of the cumulative impacts of the higher density of on-site sewage disposal on the environment to secure support for subdivision consistent with the current 'possible subdivision overlay'. Therefore the amendment to the approved SGP should not be supported given an assessment of the cumulative impacts of further subdivision of lots within RLA 13 have not been undertaken.
The proposed amendment is considered to be discordant with current planning principles and there is insufficient evidence to suggest that these principles should be departed from. As the SGP is a strategic planning document it should reflect the planning consciousness of the day and therefore, the proposed amendment to the approved SGP should not be supported.

Has sufficient technical and onsite assessment been undertaken to demonstrate that waste water can be effectively disposed of on the site and that the creation of lots under 1 hectare in size will not have a detrimental effect on the Peel‑Harvey Coastal Plain Catchment?

There is no contest that the approved SGP is located within the Peel‑Harvey Catchment and, as such, is located in a 'sewerage sensitive area' under the GS Policy.
The respondent contends that there are a number of key deficiencies in the information contained in the land capability and geotechnical assessment, and therefore, the Tribunal cannot be satisfied that the site‑specific investigations have been carried out properly so as to demonstrate that waste water disposal can effectively be disposed of on-site in a manner that will cause no adverse effects on public health, water resources or the environment.
The respondent asserts that the applicants' site and soil evaluation does not meet the following aspects of AS 1547:
•it does not account for rainwater data by way of a water balance;
•it does not include site specific investigations to the depth required by AS 1547; and
•it does not include soil permeability tests in accordance with the procedure set out in AS 1547.
Further, the respondent says that as the type of on-site sewage system proposed for the subject land has not be specified, the minimum information required under cl 2.4 of Sch 1 to the GS Policy has not been met.
The applicants' argue that the land capability and geotechnical assessment provides sufficient technical and engineering evidence to demonstrate that there will be no adverse effects on public health, water resources or the environment. Contrary to the respondent's assertion, the applicants says that the proposed lots sizes will lead to improved environmental management of the land rather than any degradation as the nutrient levels on the subject land will be significantly reduced because the keeping of livestock will not be permitted on the lots.
The Tribunal had the benefit of expert evidence from Mr Stephens, who was called on behalf of the applicants; and Mr Richard Godfrey Theobald, Managing Scientist ‑ Water, within the Public and Aboriginal Health Division of the Department of Health and who holds a Bachelor of Science degree (majoring in environmental health), who was called on behalf of the respondent.
Mr Stephens, in July 2018, prepared a Land Capability - Geotechnical Assessment (Capability Assessment) for the subject land (Exhibit 9, Annexure 2), which amongst other things, assessed the capability of the subject land for waste water disposal. Mr Stephens' assessment acknowledged the existing dwelling and its waste water system and identified two further possible building envelopes on the subject land. He also assumed that the subsequent subdivision of the subject land into three lots under 1 hectare in area would result in the prohibition of livestock on the land. Two soil test holes were dug, one within each of the identified building envelopes, to depths of 1300 millimetres and 1450 millimetres. Amongst other findings, his assessment concluded that the 'selected building envelopes are geotechnically capable of accepting alternative/nutrient absorbing waste water systems and comply with all guidelines and policies'. He also observed that there is 'no evidence of failure in the waste water system at the existing dwelling'.
The environmental experts, in their joint conferral statement (Exhibit 5) and in their oral evidence, agreed that AS 1547 is the appropriate national standard to assess soil and capability for on-site waste water disposal.
According to Mr Theobald the methodology established under AS 1547 provides an analysis of how the soil will react to loading of water over an annual cycle. Mr Theobald submits that the geotechnical work undertaken by Mr Stephens has been undertaken in a fragmentary manner and does not accord with the approach that AS 1547 requires. Mr Theobald considers the Capability Assessment to be lacking in the following four respects.
Firstly, a water balance analysis in accordance with Appendix Q: 'Water balance and land application systems' (Appendix Q) of AS 1547 to demonstrate the soil moisture content within the land application area has not been undertaken accounting for seasonal water fluctuation. Mr Theobald explained that the concern is that because of the marginal nature of the soils on-site and the fact that there is an impermeable layer (at around the 300/400 millimetre mark), at certain times of the year land may flood as a result of having both rainwater and waste water placed on it. The Tribunal was told that a water balance analysis examines the annual rainwater cycle and establishes which time of the year the land is most likely to be completely inundation (or not), and will demonstrate through a numerical calculation whether the pooling of water on the top of the soil after rain (as observed from photographic evidence), 'is simply water lying on a very thin layer of impermeable soil or whether [it is] because of complete inundation down to a lower level' (ts 30, 19 June 2019).
Secondly, the Capability Assessment does not provide the required information under AS 1547 about the soil types and their respective infiltration capacities within a 2 metre profile (an investigation depth of at least 1.5 metres below disposal depth, noting that the bottom of the apparatus is usually at least 0.5 metres below the surface ground level). Mr Theobald explained that this information is required both from an environmental and public health perspective to fully understand how water will be dispersed through the soil column and the soil's nutrient holding and processing capacities.
Thirdly, a 'constant head test' was not undertaken in accordance with Appendix G: 'Soil permeability measurement – Constant head test' (Appendix G) of AS 1547, which demonstrates how the soil works over a period of time. Although Mr Theobald did concede that the results of testing undertaken by Mr Stephens on several occasions showed similar results that indicated that the nature of the infiltration rate is 'pretty similar' and he himself questioned whether it is necessary to undertake further testing.
Fourthly, the Capability Assessment does not identify the size and location of the land application area for on-site waste water disposal.
On the basis of the information before him, Mr Theobald concluded that insufficient technical assessment had been undertaken to demonstrate that the subject land is suitable for on-site waste water disposal at the lot sizes proposed.
Mr Stephens argues that AS 1547 requires that the scale and nature of the evaluation be proportionate to the level of risk associated with a proposal. He submits that AS 1547 does not require that every aspect of the standard must be completed in every case but that the assessment complete what is required to identify the issues and inform decision-making on the disposal of waste water. Mr Stephens' assessment of the proposal is that it is 'small-scale' as there are no particular environmental constraints and it only involves the potential creation of one additional lot. He maintains that the Capability Assessment, together with the additional permeability testing undertaken on 17 June 2019 (Exhibit 10), is the appropriate level of evaluation for the level of risk.
Mr Stephens does not consider that a water balance analysis in accordance with Appendix Q of AS 1547 is warranted in this instance. He explained that the water balance and land application system analysis is a theoretical calculation based on the soil properties to determine whether there will or will not be surface water laying on the ground. He considered that it was not necessary to provide those calculations as based on his understanding of the nature of the soils through the extensive field work that he has undertaken in the locality, he knew that there would be surface water laying on the ground and acknowledged the issue in Table 1 of the Capability Assessment where he states:
Parts of these soils where there is little sand cover and the water cannot drain are subject to surface water at times during winter normally immediately following heavy rainfall events, which was the situation at the time of the site inspection.
The perched winter surface water occurs when the rate of rainfall exceeds the rate of infiltration of surface water into the soils.
Mr Stephens in oral evidence, reiterated that '[i]n winter, when the rainfall exceeds the permeability rate of that clay layer, then the water builds up on the surface of that clay layer. So the situation is well-known and you design and select the waste water system accordingly to counteract' that situation (ts 31, 19 June 2019).
In relation to the investigation procedures set out in Table B1 'Summary of Investigation Procedures' of AS 1547, Mr Stephens told the Tribunal that unfortunately his earth‑moving equipment was not able to reach the specified depth of 1.5 metre contained in Table B1 and that one of the test holes reached 1.3 metres in depth and the other 1.4 metres in depth. However, he did not see this failure as an issue because based on his experience and knowledge of the area, he made the assumption that 'the clay layer would continue to depth' and 'discussed the risk in terms of that assumption' (ts 34, 19 June 2019). In addition, he found further comfort from cl 2 of the special provisions relating to RLA 13 in Appendix 4A of TPS 2 which requires dwellings in RLA 13 to be connected to an alternative domestic waste water treatment system, and as such, the land would need to be filled at least half a metre to a metre for the installation of such a system, which when added to the depth of the test pits would satisfy the requirement as the distance is measured from the base of the apparatus.
As to Mr Theobald's concerns regarding the lack of soil permeability testing as provided from in Appendix G of AS 1547, Mr Stephens explained that he had undertaken a 'soil texture test', a method referred to by Mr Theobald, to identify the nature of the soils but had not carried out specific soil permeability test in the Capability Assessment as he considered he had sufficient knowledge of the site and local area to complete the assessment without the tests. However, given the criticism raised by Mr Theobald he conducted infiltration tests on 17 June 2019 (Exhibit 10) in order to check the results of the Capability Assessment. Three test holes were established in accordance with AS 1547 which revealed that the infiltration rates were shown to be comparable to 'moderately structured light clays' to 'weakly structured clay loams', which he concludes are consistent with the finding of the Capability Assessment for the mapped clayey subsoils. By using this information and Table M1 'Recommended Design Irrigation Rate (DIR) for Irrigation Systems' of AS 1547 Mr Stephen calculated the application area to be in the order of three to three and a half litres per square metre (ts 45, 19 June 2019). As a worst case scenario, Mr Stephens calculated that a system servicing 10 persons at 150 litres per day at 3 litres per square metre of disposal would require a waste disposal area of 500 square metres. Based on this calculation, he contends that there is more than adequate land available, given that the proposed lots are around 8,255m² in area, to install an alternative domestic waste water treatment system.
Mr Stephens also argues that '[t]he capability for waste water disposal is independent of lot size. It is no different geotechnically for a waste water systems on a 2,000m² or 2.0 hectare lot in terms of performance' (Exhibit 9, Annexure 2 page 19). He does agree there is a difference in the nutrient loading per hectare, and in this instance, he submits that the nutrient levels will be reduced by the reduction of lot sizes because of the removal of livestock.
Mr Theobald, under cross‑examination, accepted that the size of the application area of each of the proposed lots did not pose a difficulty in terms of hydraulics. However, he commented on the change in nature of the government's sewerage policies and how their design and intent were quite different. Mr Theobald explained that the 'original' sewerage policy (2003 version which was operational at the time of the final hearing) supported the infill sewer program, whereas the more recent editions (2016/2018 which were in draft at the time of the final hearing) made provision for consideration of environmental constraints and impacts, which was reflected in the increase of the lot size requirement from 2000m² to 1 hectare.
As articulated in Clive Elliot Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433 at 24, Barker J held that while 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 addition as stated by Pritchard J in Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 at [182]:
… 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[.]
The Tribunal is satisfied that sufficient site specific assessment has been undertaken by Mr Stephens, and that the information provided is commensurate to the scale and nature of the proposal to be confident that in a worst case scenario, that each of the proposed lots is of a sufficient size to accommodate a land application area in accordance with Schedule 2 of the GS Policy. The Tribunal is not troubled by the fact that the on-site sewage system has not been specifically identified as the applicants accept that a secondary treatment system is required and more importantly, the Scheme provisions for RLA 13 require dwellings to be connected to an alternative nutrient absorbing system.
However, the Tribunal is not satisfied that the applicants have adequately demonstrated that cumulative impacts of a higher density of on-site sewage disposal for the RLA 13 area will not have a detrimental effect on the environment.
One of the objectives of the GS Policy is to 'to protect the environment and the State's water and land resources'. Lots size is considered to be a 'critical risk factor associated with on-site sewage disposal'. A 1 hectare minimum lot size is identified for 'sewerage sensitive areas primarily to manage cumulative impacts on the environmental and water resources' (cl 5.2.1 of GS Policy). It would appear from the Explanatory Notes that the 1 hectare minimum is not an arbitrary figure but that there is a justification for and a scientific basis for the recommended lot size. Where cumulative environmental risks are deemed high, AS 1547 supports a conservative approach and reference is made in the Explanatory Notes to catchment modelling undertaken as part of the 'development of a number of water quality improvement plans', one of which includes the Peel‑Harvey Catchment area, and states that:
[i]n unsewered areas the desired nutrient targets will only be achieved if the recommended lot sizes are used. If smaller unsewered lot sizes are permitted the additional nutrient inputs from sewage would mean the targets of any water quality improvement plan will never be achievable regardless of other measures put in place.
An argument that only one additional lot will be created and that nutrient export will be reduced as a result of the prohibition of horses and large animals on lots less than 1 hectare does not address the issue of cumulative risk. Firstly, no environmental evidence was adduced to challenge the basis of the 1 hectare minimum lot size specified for sewerage sensitive areas. Secondly, there was no meaningful analysis of the cumulative risks of approving lots of less than 1 hectare in a sewerage sensitive area and its impact on the nutrient targets for the Peel‑Harvey Catchment. The Tribunal is not persuaded that there is a cogent reason to depart from the 1 hectare minimum lot size requirement in sewage sensitive areas in the in the circumstances of this case.

Would approval of the revised amendment set an undesirable precedent for future subdivision within the SGP Area?

The circumstances in which precedent is a relevant consideration in a planning assessment has been articulated in Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117 at [74], where the Tribunal found that in order for adverse planning precedent to be a relevant consideration in a planning assessment, the following two criteria must be established:
(1)That the proposed development or subdivision is not in itself unobjectionable; and
(2)That there is more than a mere chance or possibility that there may be later undistinguishable applications.
In this case, each of the criteria is met. The proposed amendment to the approved SGP, for the reasons expressed above, is 'not unobjectionable'. In addition, there is more than a mere chance or possibility that there may be later undistinguishable applications as there are other lots in the approved SGP and in the RLA zone more generally, where a similar type of application to that which is now before the Tribunal could be proposed. Therefore, adverse planning precedent is a relevant consideration and as such the amendment to the approved SGP should not be supported.
REASONS FOR DECISION OF SENIOR MEMBER L EDDY:
I have had the benefit of reading the reasons prepared by Member Connor, with which I am in agreement. I agree with the orders to be made.

Orders

For the above reasons, the Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision of the respondent is affirmed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS M CONNOR, MEMBER
11 DECEMBER 2019

Attachment 1