WESTERN AUSTRALIAN PLANNING COMMISSION and HOGAN

[2018] WASAT 25

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION:   WESTERN AUSTRALIAN PLANNING COMMISSION and HOGAN [2018] WASAT 25

MEMBER:   JUDGE D PARRY, DEPUTY PRESIDENT

HEARD:   DETERMINED ON THE DOCUMENTS

DELIVERED          :   16 APRIL 2018

FILE NO/S:   DR 359 of 2017

BETWEEN:   WESTERN AUSTRALIAN PLANNING COMMISSION

Applicant

AND

TERRY HOGAN

Respondent

Catchwords:

Review by judicial member of determination of Tribunal upon a matter involving a question of law under s 244 of the Planning and Development Act 2005 (WA) - Subdivision - Tribunal set aside refusal by Western Australian Planning Commission of two lot subdivision of Rural zoned land and granted conditional subdivision approval - Whether Tribunal erred in law - Whether Tribunal misconstrued meaning of term 'strategy or scheme' in State Planning Policy 2.5 - Rural Planning and Development Control Policy 3.4 - Subdivision of rural land - Whether 'strategy or scheme' includes local planning policy - Whether, by misconstruing meaning of term 'strategy or scheme' in State Planning Policy 2.5 - Rural Planning and Development Control Policy 3.4 - Subdivision of rural land, Tribunal did not apply those policies, but something else - Whether Tribunal had regard to irrelevant consideration - Whether provision of local planning policy which is inconsistent with State planning policy or Development Control Policy of Western Australian Planning Commission is irrelevant consideration in subdivision assessment - Weight to be given to local planning policy which is inconsistent with State planning policy or Development Control Policy of Western Australian Planning Commission in subdivision assessment - Split planning system in Western Australia between subdivision control and assessment and development control and assessment under which subdivision is under exclusive authority of Western Australian Planning Commission (and not local governments)

Legislation:

Planning and Development (Development Assessment Panels) Regulations 2011 (WA)
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2 (deemed provisions), cl 3(1), cl 3(3), cl 3(5)
Planning and Development Act 2005  (WA), s 4(1), s 26, s 26(1), s 26(2), s 26(3), s 27, s 28, s 29, s 29(1), s 87(4), s 135, s 135(1), s 138(1), s 138(2), s 142, s 142(1), s 142(2), s 143, s 143(1), s 241(1), s 244, s 244(2)(b), s 244(3), s 251(1)
Shire of Plantagenet Town Planning Scheme No 3, cl 1.6, cl 7.6
State Administrative Tribunal Act 2004  (WA), s 3(1)
State Administrative Tribunal Rules 2004  (WA), r 10

Result:

Tribunal's determination set aside
Matter remitted to Tribunal (as originally constituted) for reconsideration in accordance with these reasons

Summary of Tribunal's decision:

The Western Australian Planning Commission sought review by a judicial member upon a matter involving a question of law of a determination by the Tribunal when constituted without a legally qualified member.  In the determination, the Tribunal set aside the Commission's decision to refuse subdivison approval for a two lot subdivision of land zoned Rural into lots of 66.5 hectares (containing an existing vineyard, irrigation infrastructure, cellar sales building and a small area of remnant vegetation) and 151.57 hectares (containing a former blue gum plantation being returned to general farm land) and granted conditional subdivision approval.  The Commission contended that the Tribunal erred in law:
(1) by misconstruing the term 'strategy or scheme' in State Planning Policy 2.5 - Rural Planning and in the Commission's Development Control Policy 3.4 - Subdivision of rural land  as including local planning policies made by local governments and, in particular, the Shire of Plantagenet Policy No. 18.1: Planning Vision  (Planning Vision); and
(2) by having regard to an irrelevant consideration, namely provisions of Planning Vision which are inconsistent with State Planning Policy 2.5 - Rural Planning and Development Control Policy 3.4 - Subdivision of rural land.
 The judicial member determined that the Tribunal erred in law by misconstruing the term 'strategy or scheme' as including local planning policies and, in particular, Planning Vision, whereas, under the applicable definition of 'strategy or scheme', this term does not include a local planning policy, and, in consequence of this misconstruction, not applying the State planning policy or the Commission's Development Control Policy, but something else.
 The judicial member determined that the Tribunal did not err in law by having regard to an irrelevant consideration (namely, provisions of Planning Vision), because, although, in Western Australia, subdivision control and assessment falls within the exclusive authority of the Commission (and not local governments), the Commission (and the Tribunal on review) is not prohibited from considering provisions of a local planning policy which are relevant to the proposed subdivision (even if they are inconsistent with a State planning policy or a Development Control Policy of the Commission) by either the express terms of the Planning and Development Act 2005 (WA) or by implication arising from the subject matter, scope and purpose of the power being exercised, namely assessment of a subdivision application.
However, the judicial member observed that an implication arises from the provisions of the Planning and Development Act 2005 (WA) which create a 'split planning system' in this State, under which subdivision control and assessment falls within the exclusive authority of the Commission (and not local governments), whereas development control and assessment is generally undertaken by local governments (and Development Control Panels), that less weight is generally to be given in a subdivision assessment to a local planning policy which is inconsistent with a State planning policy or a Development Control Policy of the Commission than is given to the State planning policy or the Development Control Policy.

The application for review by the judicial member was allowed, the determination of the Tribunal was set aside, and the matter was remitted to the Tribunal (as originally constituted) for redetermination in accordance with the judicial member's reasons.

Category:    B

Representation:

Counsel:

Applicant	:	Mr I Repper
Respondent	:	Mr C A Slarke

Solicitors:

Applicant	:	State Solicitor's Office
Respondent	:	McLeods

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

A v Corruption and Crime Commissioner [2013] WASCA 288; (2013) 306 ALR 491

Boulter and City of Subiaco [2007] WASAT 71; (2007) 52 SR (WA) 84

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

Hogan and Western Australian Planning Commission [2017] WASAT 129

Minister for Immigration, Local Government and Ethnic Affairs v Gray [1994] FCA 1052; (1994) 50 FCR 189

Thomas and Town of Cambridge [2013] WASAT 206

WA Developments Pty Ltd and Western Australian Planning Commission [2008] WASAT 260

REASONS FOR DECISION OF THE TRIBUNAL:

Application for review by a judicial member

1. The Western Australian Planning Commission (Commission) seeks review by a judicial member, under s 244 of the Planning and Development Act 2005 (WA) (PD Act), of a determination made by the Tribunal constituted by Senior Sessional Member Mr J Jordan in a planning review proceeding (determination).

2. The planning review proceeding involved an application for review by Mr Terry Hogan, under s 251(1) of the PD Act, of the Commission's refusal to approve Mr Hogan's application for the subdivision of Lot 6578 Spencer Road, Narrikup (site) into two lots. The application for review was heard on 19 April 2017 and the parties filed written closing submissions on 3 May 2017 (Commission) and 4 May 2017 (Mr Hogan). On 2 August 2017, Senior Sessional Member Jordan made an order that '[f]or reasons that will be published in due course, the application for review is allowed'. The Senior Sessional Member then set aside the Commission's refusal of subdivision approval and granted subdivision approval subject to five conditions. Ultimately, on 3 October 2017, Senior Sessional Member Jordan published written reasons for the determination: Hogan and Western Australian Planning Commission [2017] WASAT 129 (Tribunal's reasons).

3. Section 244 of the PD Act enables a judicial member to review a direction, determination or order of the Tribunal '… upon a matter involving a question of law …' that was made in a proceeding under the PD Act by the Tribunal when constituted without a legally qualified member as defined in s 3(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). Senior Sessional Member Jordan is not a legally qualified member as defined in s 3(1) of the SAT Act.

4. Section 244(3) of the PD Act requires that an application for review by a judicial member must be made by a party 'within one month after the direction, determination or order is given to the party'. In its submissions in support of the application for review by a judicial member filed on 3 November 2017, the Commission submitted that, properly construed, s 244(3) of the PD Act 'requires the application to be made within one month after the reasons for decision are given (whether those reasons are given orally or in writing)', because '[o]therwise, the section would not be effective'. The Commission submitted that its application for review by a judicial member filed on 3 November 2017 was made 'within one month after the direction, determination or order [was] given to [it]', that is, within one month after the publication of the Tribunal's reasons. In the alternative, the Commission applied for an extension of time in which it could commence an application for review by a judicial member under r 10 of the State Administrative Tribunal Rules 2004 (WA) (SAT Rules).

5. At the first directions hearing in the application for review by a judicial member on 24 November 2017, I heard submissions and considered whether the application for review was out of time and, if so, whether an extension of time in which to seek review should be granted under r 10 of the SAT Rules. I gave an immediate oral decision in which I determined that the application for review by a judicial member was made within the time prescribed by s 244(3) of the PD Act and, furthermore and in any case, if an extension of time was required, then, on balance, it should be granted in the exercise of discretion under r 10 of the SAT Rules.

6. I determined that the application for review by a judicial member was made within time for the following reasons:

   In my view, the determination that the [C]ommission seeks to have reviewed upon a matter involving a question of law … is or at least includes the [T]ribunal’s reasons published on 3 October 2017. The word determination is not defined, and, in my view, the determination of the [T]ribunal, in this case, is or at least includes its reasons.  It is the reasons that the [C]ommission contends involve and disclose an error at law, and it is the aspect of the reasons concerning a policy of the local shire[,] referred to as the Planning Vision Policy, that the [C]ommission contends involved an error on the part of the [T]ribunal, in that the [C]ommission contends the Planning Vision Policy was not a relevant matter for consideration by the [T]ribunal.

   In my view, the reasons published on 3 October 2017 is, or at least … forms part of the determination that the [C]ommission is seeking review of, upon a matter involving a question of law[,] in this proceeding. That being the case, the application for review under section 244 was commenced … within one month of the giving of the determination to the [C]ommission by the [T]ribunal. And the application for review is therefore within time[.]

   (T:24; 24.11.17)

7. In considering whether an extension of time should be granted (had an extension been required), I accepted the submissions made on behalf of Mr Hogan that considerations against granting an extension of time included that:

   [there would be prejudice to Mr Hogan,] because he acted reasonably and … has been seeking to clear conditions of subdivision approval …[,] has engaged a lawyer to draft documents required by the conditions, and … has engaged a surveyor who has pegged out the … currently approved lots …

   (T:25; 24.11.17)

   and that:

   what happened in this case ­ the [T]ribunal not making a decision until just … before three months and then not having published reasons for another two months, is not, in my view, good public administration.

   (T:25 ­ 26; 24.11.17)

8. I determined that an extension of time should be granted (had an extension been required), because the period of 'delay' of two months, although 'not insignificant', was 'not very significant', there was 'a reasonable explanation for the delay', because '[o]ne of the fundamental purposes of a judicial officer giving reasons is to enable [the] unsuccessful party to understand whether it has an arguable appeal, or, in this case, an arguable review' and '[t]he [C]ommission obviously could not have known that until it had the reasons that the [T]ribunal published on 3 October 2017', and there was an arguable case for review (T:25­26; 24.11.17).  I found, on balance, that these considerations warranted an extension of time being granted (had an extension been required) notwithstanding the actual prejudice to Mr Hogan and the delay in giving the Tribunal's reasons not reflecting good public administration.

Tribunal's reasons for determination

1. After providing an introduction to the application for review, the Tribunal referred to the site and locality, the planning framework, the proposed subdivision and the Commission's refusal and statement of issues, before discussing and making findings in relation to each of the issues for determination. 

2. The site is located within the district of the Shire of Plantagenet (Shire or Council).  As the Tribunal observed at [3], the site is located approximately 11 kilometres south of Mount Barker and in an established rural area with a mixture of uses including tree plantations, grazing, cropping, vineyards and tourism. 

3. As the Tribunal observed at [3] ­ [6], the site has an area of 218.4 hectares and comprises two parts.  At the southern end, on north­facing slopes, there is a vineyard occupying about 23 hectares, including a cellar sales building, a machinery shed, a dam and associated irrigation infrastructure.  To the north of the vineyard, there is a harvested former blue gum plantation where stumps are being removed and the land is being returned to general agricultural use. 

4. As the Tribunal noted at [14] ­ [15], Mr Hogan's subdivision application involves the creation of proposed Lot A, with an area of 66.85 hectares, containing the existing vineyard and a small area of remnant vegetation, and proposed Lot B, with an area of 151.57 hectares, comprising the remainder of the site where the former blue gum plantation is being returned to general farm land. 

5. As the Tribunal found at [7], there are a variety of lot sizes in the immediate locality 'with most close by being either about the same size as the site or larger'.

6. In discussing the planning framework, the Tribunal observed at [8] that the site is zoned 'Rural' under the Shire of Plantagenet Town Planning Scheme No 3 (TPS 3 or Scheme) and that the Scheme is 'silent on the subdivision of rural land', although its objectives at cl 1.6 include:

   To promote the growth of the grape and wine industry and to encourage and control efficient Animal Husbandry.

7. The Tribunal listed the documents which were contended by the Commission to constitute the planning framework for the purpose of the subdivision application as follows [9]:

   •State Planning Policy 2.5 ­ Rural Planning (SPP 2.5)

   •State Planning Policy 3.7 ­ Planning in Bushfire Prone Areas (SPP 3.7)

   •Development Control Policy 1.1 ­ Subdivision of land ­ General Principles (DC 1.1)

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

   •Lower Great Southern Strategy 2016 (LGSS)

   •Shire of Plantagenet Local Planning Strategy (2013) (LP Strategy)

   •TPS 3

8. The Tribunal then noted [10] that, in its consideration of the proposed subdivision prior to making a recommendation to the Commission (under s 142 of the PD Act), the Council also relied on the Shire of Plantagenet Policy No. 18.1: Planning Vision (Planning Vision), which is a local planning policy prepared, advertised and adopted by the Shire under cl 7.6 of TPS 3.  The Tribunal also noted that '[Mr Hogan] has referred to and relies upon the Shire's Planning Vision as a relevant policy', whereas '[t]he Commission said it did not consider the Planning Vision as part of the planning framework and did not refer to it [in] making its decision'.  The Tribunal then said the following [12] ­ [13]:

   As provided for at s 27 of the State Administrative Tribunal Act 2004 (WA) the Tribunal can have regard to matters not before the original decision­maker and the Tribunal has had regard to the Planning Vision as a planning policy adopted by the Shire as provided for under TPS 3. The respondent and its witness were afforded the opportunity to make submissions on the Planning Vision and what weight it should be given in this matter. The respondent argued it should be afforded little weight because it contradicted the main objectives of policies SPP 2.5 and DC 3.4 and was not endorsed by the Commission.

   The Tribunal has formed the view that the Planning Vision is to be afforded weight in the determination of this matter.  This is because of the background of research and analysis of local circumstances and its relationship to TPS 3.  The relevant policies are referred to in the discussion below. 

9. The Tribunal then referred to the four issues identified by the Commission as issues for determination in the planning review proceeding.  The first issue, as formulated by the Commission, was as follows:

   Whether the proposed subdivision is consistent with the [Commission's] planning framework.

10. The Tribunal did not accept this formulation of the first issue for determination, commenting at [17] that 'it considers it necessary to have regard to the planning framework as a whole and not to be artificially constrained by just what the [Commission] considers as the Commission's planning framework'. The Tribunal expressed the first issue for determination as follows [17]:

    a)whether the proposed subdivision is consistent with the planning framework.

11. The Tribunal then said [18]:

    The remaining three issues listed were:

    b)whether the proposed subdivision would set an undesirable precedent;

    c)whether the proposed subdivision represents the ad hoc fragmentation of rural land; and;

    d)whether the proposed subdivision is consistent with the principles of orderly and proper planning.

12. Before the Tribunal commenced its consideration of each of these four issues, it referred at [20] to the unchallenged evidence of Mr Wayne Pluske, an agricultural scientist specialising in agronomy and soils, who was called by Mr Hogan, that 'the proposed lot configuration responds to soil types and land uses'.

13. In relation to the issue of whether the proposed subdivision is consistent with the planning framework, after referring to provisions of the Lower Great Southern Strategy 2016 (LGSS), the Tribunal rejected the opinion of Mr Peter Wright, a town planner with the Department of Planning, Lands and Heritage, called by the Commission, that the proposed subdivision 'would not be consistent with the intention of the LGSS which requires land to be managed to prevent future rural land uses being compromised' ([29]), for the following reasons [30] ­ [31] (which are not challenged in this review):

    The Tribunal has formed the view that the proposed subdivision would not compromise the future agricultural use of the land.  This is because the proposed lot sizes together with the soil and climate attributes upon which the subdivision is based would result in holdings that are suitable for more than just conversion to a rural living lot. 

    The Tribunal has accepted that the viticultural activity on proposed Lot A demonstrates that this lot of 66.85 hectares, has attributes that will ensure that it will continue to be available for primary production in the future.  The Tribunal has further accepted that proposed Lot B will remain available for general agricultural purposes, consistent with the common land use in the locality in the future.  

1. The Tribunal concluded its assessment of the subdivision application under the LGSS as follows [33] ­ [34]:

   The Tribunal has concluded that because of the locality of the site, the particular soil and climate characteristics and the demonstrated agricultural capacity of the land, the proposed subdivision into the lots of the size proposed would not be directly at odds with the intent of the LGSS.

   The LGSS also says, however, that fragmentation of rural land should only be contemplated where provided for by the relevant policies of the Commission.

2. The Tribunal then set out relevant provisions of State Planning Policy 2.5 ­ Rural Planning (SPP 2.5) and the Commission's Development Control Policy 3.4 ­ Subdivision of rural land (DC 3.4) [35] ­ [39]:

   The [Commission] cited from cl 2 of SPP 2.5:

   The purpose of this policy is to protect and preserve Western Australia's rural land assets due to the importance of their economic, natural resource, food production, environmental and landscape values.  Ensuring broad compatibility between land uses is essential to delivering this outcome.

   SPP 2.5, as provided at cl 3.3(b) is to be used in tandem with DC 3.4 in decision­making on subdivision proposals for rural zoned land.

   The [Commission] referred to SPP 2.5 cl 6.5 'Subdivision', which states:

   It is the view of the WAPC that there are sufficient, suitably sized and located rural lots to cater for intensive and emerging primary production land uses.  Creation of new rural lots through ad hoc, unplanned subdivision will not be permitted.

   In contemplating subdivision proposals on rural land, WAPC policy is:

   (a)the creation of new or smaller rural lots will be by exception and in accordance with Development Control Policy 3.4:  Subdivision of rural land;

   (b)the creation of new or smaller rural lots by exception may be provided for in other State Planning Policies and/or a local planning strategy or scheme;

   (c)no other planning instruments besides those listed at (a) or (b) can provide for the subdivision of rural land;

   and

   (d)the introduction of new dwelling entitlements or other sensitive land uses should not limit or prevent primary production from occurring.

   DC 3.4 at cl 2 says that it is an operational policy to guide subdivision of rural land to achieve key objectives of SPP 2.5.  At cl 5, D[C] 3.4 states that when determining subdivision proposals on rural land, the following measures apply:

   (a)the creation of new or smaller lots will be by exception;

   (b)proposals will be considered against strategies and schemes;

   (c)adequate buffer distances for sensitive and/or incompatible land uses can be achieved; and

   (d)proposals will be assessed against any relevant State planning policies and/or operational policies.

   Clause 6 of DC 3.4 sets out the exceptional circumstances under which subdivision of rural land can be considered and these include:

   (a)to realign lot boundaries with no increase in the number of lots, where the resultant lots will not adversely affect rural land uses;

   (b)to protect and actively conserve places of cultural and natural heritage;

   (c)to allow for the efficient provision of utilities and infrastructure and/or for access to natural resources;

   (d)in the Homestead lot policy area (Appendix 2), to allow for the continued occupation of existing homesteads when they are no longer used as part of a farming operation; and

   (e)for other unusual or unanticipated purposes which, in the opinion of the WAPC, do not conflict with this and other relevant policies and are necessary to the public interest.

   Although the WAPC seeks to minimise the creation of new or smaller rural lots, there are some circumstances where subdivision may be appropriate in order to promote better land management and achieve environmental, cultural and/or social benefits[.]

   (Emphasis added)

3. The Tribunal then said the following [43] ­ [44]:

   However, DC 3.4 and SPP 2.5 are applicable State wide and the statement in cl 4 of DC 3.4 that 'there is an existing supply of suitably sized and located rural lots to cater for intensive and emerging production land uses' is viewed by the Tribunal in this context.  If subsections of cl 6 to cl 6.5 of DC 3.4 and cl 5.1(f) of SPP 2.5 were the only planning considerations, then any rural subdivision would be rare.  However, cl 4 of DC 3.4 goes on to state:

   Where local conditions require subdivision or creation of land parcels for this purpose, it should be provided for in a strategy or scheme and supported by evidence from the agency responsible for agriculture and food[.]

   In this matter an application for subdivision has been made, based in part on the site characteristics, for a purpose that includes an intensive agricultural use.  To consider further if there is any support for the proposed subdivision, it is necessary to have regard to the local planning 'strategy or scheme'.

   (Emphasis added)

4. The Tribunal then discussed the Shire of Plantagenet Local Planning Strategy (2013) (LP Strategy) at [45] ­ [48]. At [45], the Tribunal set out a 'note' that appears on the Shire's website before the LP Strategy. The 'note' states that there are 'some areas of this [LP Strategy] that are outdated largely due to the time taken to progress the document through the [Department of Planning] and [Commission]' and that '[t]here are instances where this [LP Strategy] and the Planning Vision differ and this is largely due to the longer expected life of the Planning Vision'.

5. The Tribunal said the following at the end of its discussion of the LP Strategy [48]:

   In this matter DC 3.4 requires reference to be had to the local strategy when considering subdivision of rural land.  The LP [S]trategy requires consideration of the capability of the land, but the LP [S]trategy also requires that subdivision be in accordance with DC 3.4 and SPP 2.5.  To move beyond this circular interrelationship between the LP Strategy and the Commission's policies the Tribunal considers it necessary to also have regard to TPS 3 and the policies created pursuant to it.

6. The Tribunal then discussed the Shire's Planning Vision local planning policy as follows [49] ­ [53]:

   In the course of the hearing, Mr Wright was examined on the Planning Vision and his opinion of its application in this matter.  Mr Wright pointed out that much of the Planning Vision was first put forward by the Shire as a draft local planning strategy.  This was rejected by the Commission and the Commission endorsed the now extant LP Strategy.  The Planning Vision was then adapted by the Shire, adopted under the provisions of TPS 3, and became LPP 18.1 Planning Vision. 

   The respondent and Mr Wright said the Shire was not the decision­maker in this matter and the content of the Planning Vision was not reflected elsewhere in the planning framework.  The respondent said the Planning Vision should be considered irrelevant to decision­making and that little weight should be placed on it. 

   Under the Planning Vision the site is within Planning Unit P8 and, at cl 3.1.4.1(1), it provides that there is a presumption against subdivision unless the Council is satisfied:

   …

   (vii)that the subdivision is necessary to enable the carrying out of an intensive agricultural pursuit and is in accordance with this Planning Vision; and

   (viii)the balance of title also meets agreed objectives, standards and development controls.

   Clause 3.1.4.1(5) of the Planning Vision refers to Council support for a minimum lot size of 50 hectares for intensive agriculture, with size justified by soil and water analysis, and signed off by the, now, Department of Primary Industries and Regional Development and the Department of Water and Environmental [sic] Regulation.  Where analysis supports the creation of such an intensive agricultural lot cl l [sic] 3.1.4.2(2)(iv) says that the remaining land must be a minimum of 80 hectares and suitable for continued agricultural production.  The Tribunal notes that these minimum lot sizes are achieved and the evidence of Mr Pluske is not contradicted. 

   The Shire has continued to support the initiatives contained within the Planning Vision, but the Commission has not and has based its decision to oppose subdivision essentially on the criteria for assessing subdivision found in DC 3.4. …

7. The Tribunal then concluded in relation to the issue of whether the proposed subdivision is consistent with the planning framework and determined in relation to this issue as follows [55] ­ [61]:

   There is no dispute that policy should inform the decision­maker.  In this matter the Tribunal has noted that the Shire has planning objectives for its district as expressed in its Planning Vision.  In this matter there is a tension between overarching policies of the Commission on subdivision of rural land in general and land use and lot size objectives identified at a local level.  It is arguable that it becomes pointless having local policies if there are not any circumstances where a subdivision might be considered consistent with the objectives of SPP 2.5 and DC 3.4.

   The Tribunal considers one step is to determine if a site has particular characteristics such that a subdivision proposal warrants more than a simple dismissal as just another rural subdivision.  There is a principle in statutory interpretation that requires that texts be construed so far as is possible to operate in harmony and not in conflict.  Clearly, in this matter, it is not statutory texts being considered, but rather a series of policies.  The Tribunal considers relevant, however, the principle of the various documents not being intended to contradict each other.

   The Tribunal is of the view that all of the documents of the planning framework adopted by the authorities relevant to this matter are to be considered and not just those policies that between themselves reinforce a particular outcome.  The Planning Vision has been adopted by the local authority for its district.  The Tribunal is of the view that the Planning Vision should be included when weighing the proposed subdivision against the planning framework.

   In this matter, DC 3.4 refers to a requirement to have regard to the local planning scheme.  The Tribunal has interpreted this as referring also to policies adopted under TPS 3.  The Planning Vision does not support subdivision unless certain criteria are satisfied.  If not satisfied, the assessment under DC 3.4 is appropriate.  In this respect, the Tribunal considers that the Planning Vision and SPP 2.5 and DC 3.4 are not repugnant to each other.  In the circumstances of this particular matter, the Tribunal is satisfied that the Planning Vision can be interpreted to complement rather than contradict the other documents in the planning framework in the intent to limit and otherwise regulate rural subdivision.

   The Tribunal accepts that because of the significance of SPP 2.5 and DC 3.4, the test for merit of this subdivision proposal should not be taken lightly.  The Tribunal believes, however, that this matter is one that provides an opportunity for the flexible application of planning policy which the law requires. 

   In this matter, the Tribunal is conscious of the important objectives of the rural subdivision policies in ensuring the valuable resource of rural land is not lost by subdivision that will result in uses antithetical to agricultural production.  The Tribunal is also conscious that the Shire should be able to reasonably expect that, over time, its properly arrived at planning objectives for its district might be achieved, even in circumstances where this might involve subdivision having regard to the particular site specific attributes.

   The Tribunal has worked through the various documents of the planning framework.  Having regard to the site specific attributes, the Tribunal has concluded that this subdivision will not lead to permanent land use changes and loss of agricultural land as is the concern of the LGSS.  When this is kept in mind and the objectives of the Planning Vision are contemplated, the objective in SPP 2.5 of preserving rural land assets is satisfied.  The Tribunal has found that the proposed subdivision is consistent with the planning framework.

   (Emphasis added)

8. In relation to the issue of whether the proposed subdivision would set an undesirable precedent, the Tribunal determined as follows [66]:

   The Tribunal would comment that a precedent is not, of itself, undesirable simply because it is a precedent.  As found in the discussion on the planning framework above, the Tribunal has formed the opinion that, in the particular circumstances of this site, there is a case in support of the proposed subdivision.  For that reason, the Tribunal has formed the view that the proposed subdivision is not objectionable. 

   (Emphasis added)

9. In relation to the issue of whether the proposed subdivision represents the ad hoc fragmentation for rural land, the Tribunal determined as follows [68] ­ [69]:

   An overarching policy objective, especially as expressed in SPP 2.5 and DC 3.4, is to guard against 'ad hoc, unplanned' subdivision, particularly in circumstances where there is concern about land being removed from potential agricultural production.  In a sense an ad hoc subdivision must by definition be unplanned.  The site is not in a locality zoned for subdivision and the application has been made solely for the purpose of subdividing the site.  The site is, however, in a locality where the LGSS and the Planning Vision recognise that there is potential for lots to have an appropriate combination of soil, topography and climate to warrant consideration of greater intensity of agricultural use. 

   The Tribunal considers that this particular application is not truly ad hoc.  This is because the application was made in the context of these relevant planning documents being in existence and against which it can be assessed to determine if it has any merit.  It is not simply just a subdivision application made in the absence of any local or district planning framework. 

   (Emphasis added)

10. In relation to the final issue of whether the proposed subdivision is consistent with the principles of orderly and proper planning, the Tribunal determined as follows [73]:

    On this issue, the Tribunal would look to the conclusions reached above.  That is, the Tribunal has found in the planning instruments that include not just SPP 2.5 and DC 3.4, that together might be described as self-referential, but in addition the LGSS and the Planning Vision that expand upon planning considerations in this locality and the wider area.  To this can be added the inherent attributes of the site and the actual use made of it.  Having regard to all of these factors the Tribunal has made the judgment that the proposed subdivision would be consistent with orderly and proper planning.

    (Emphasis added)

11. The Tribunal concluded its reasons as follows [74] ­ [77]:

    Directly relevant to the consideration of a subdivision is the potential use to which the lots created can be used. The respondent argued that the applicant does not have to subdivide to continue the current use made of the site.  The Tribunal has noted this, however, and application to subdivide was made and has to be determined. Proposed was the creation of a 66.85 hectare viticulture lot and a 151.57 hectare general agricultural lot.

    The Tribunal has formed the view that when the relevant planning framework is considered as a whole, there is to be found a basis for supporting the proposed subdivision. In the light of this finding, the Tribunal did not consider the proposal to be ad hoc in that there was a planning basis for considering the subdivision and the use made of the lots, which in turn informed the conclusion that the subdivision would be consistent with orderly and proper planning.

    The Tribunal has noted that there might be other subdivision proposals in the locality that cite any approval as a precedent. The Tribunal is of the opinion that before any approval could be cited as a precedent by others the merits of the other application would have to be examined to establish if there was any basis for such a claim. Having found that the proposed subdivision is not itself objectionable because of the particular circumstances, the Tribunal does not consider the possibility of the outcome being cited as a precedent is of itself a reason for refusing the application.

    Following its examination of the matter, as set out above, the Tribunal decided to allow the application. The Commission's decision to refuse the application has been set aside and conditional approval granted for the proposed subdivision.

Grounds for review

1. The Commission seeks review of the Tribunal's determination by a judicial member on the following two grounds:

   1.The Tribunal misconstrued [the Commission's] SPP 2.5 and DC 3.4 by interpreting the term "strategy or scheme" as including policies adopted under the relevant local planning scheme, namely the Shire of Plantagenet's "Planning Vision".

   2.The Tribunal erred in law by having regard to an irrelevant consideration, namely clauses 3.1.4.1 and 3.1.4.2 of the Shire of Plantagenet's "Planning Vision".

2. As indicated earlier, a review by a judicial member under s 244 of the PD Act must involve a 'review [of] a direction, determination or order upon a matter involving a question of law …'.

3. There is no dispute between the parties ­ and it is clearly the case ­ that the second ground of review involves a question of law and that the Tribunal's determination is sought to be reviewed upon a matter involving a question of law.

4. However, Mr Hogan submits that the first ground of review does not involve a question of law, because SPP 2.5 and DC 3.4 are 'policies' which '[do] not confer rights or impose duties that are legally enforceable'.  In contrast, the Commission submits that a serious misconstruction of the terms of a policy, such as SPP 2.5 or DC 3.4, involves a question of law constituting a legally reviewable error.  In support of this submission, the Commission refers to the following passage from the decision of the Full Court of the Federal Court of Australia (Neaves, French and Drummond JJ) in Minister for Immigration, Local Government and Ethnic Affairs v Gray [1994] FCA 1052; (1994) 50 FCR 189, 208:

   The question arises whether a mis­application or mis­construction of the ministerial policy by the Tribunal gives rise to error which is reviewable on appeal to this Court as an error of law.  It must be accepted, as counsel for the Minister submitted, that ministerial policy is not to be construed and applied with the nicety of a statute.  Policies are not statutory instruments.  They prescribe guidelines in general, and not always very precise, language.  To apply them with statutory nicety is to misunderstand their function.  On the other hand, where the existence and content of such a policy is to be regarded as a relevant fact which the Tribunal is bound to consider, a serious mis­construction of its terms or misunderstanding of its purpose in the course of decision­making may constitute a failure to take into account a relevant factor and for that reason may result in an improper exercise of the statutory power.  If a decision­maker, not bound to apply policy, purports to apply it as a proper basis for disposing of the case in hand but misconstrues or misunderstands it so that what is applied is not the policy but something else, then there may be reviewable error. …

   (Emphasis added)

5. In my view, the Commission's first ground of review involves a question of law of the nature referred to by the Full Court of the Federal Court in the final sentence of the quotation in the preceding paragraph.  What the Commission contends, in essence, is that the Tribunal seriously and fundamentally misconstrued the meaning of the term 'strategy or scheme' in SPP 2.5 and DC 3.4, by interpreting it as including a local planning policy such as Planning Vision, in consequence of which the Tribunal did not apply the provisions of those policies, 'but something else'.  This ground, therefore, involves a question of law and the Tribunal's determination is sought to be reviewed upon a matter involving a question of law. 

Statutory framework for subdivision control and assessment in Western Australia

1. Before considering each of the Commission's grounds of review, it is instructive to refer to the statutory framework for subdivision control and assessment in Western Australia.

2. Section 135 of the PD Act requires the approval of the Commission to subdivide land in this State. Section 135(1) of the PD Act states as follows:

   A person is not to ­

   (a)subdivide any lot; or

   (b)amalgamate any lot with any other lot, whether within the same district or otherwise; or

   (c)lay out, grant or convey a road,

   without the approval of the Commission.

3. Section 138(1) of the PD Act enables the Commission to impose conditions on a grant of subdivision approval which are to be complied with before the Commission will endorse a diagram or plan of survey to effect the subdivision. Section 138(1) of the PD Act states, in part, as follows:

   The Commission may give its approval under section 135 … subject to conditions which are to be carried out before the approval becomes effective.

4. Section 138(2) of the PD Act makes the provisions of any local planning scheme that applies to the land the subject of a subdivision application a matter that the Commission is bound to take into consideration when determining the subdivision application and (subject to subsection (3)) precludes the Commission from giving an approval that conflicts with the provisions of an applicable local planning scheme. Section 138(2) of the PD Act states, in part, as follows:

   Subject to subsection (3), in giving its approval under section 135 … the Commission is to have due regard to the provisions of any local planning scheme that applies to the land under consideration and is not to give an approval that conflicts with the provisions of a local planning scheme.

5. Section 142(1) of the PD Act requires the Commission to forward a proposed plan of subdivision to a local government, public authority or utility services provider 'for objections and recommendations', if, in the Commission's opinion, the subdivision 'may affect the functions of [the] local government, [the] public authority, or [the] utility services provider'. Under s 142(2) of the PD Act, the local government, public authority or utility services provider which receives a plan of subdivision from the Commission is required to forward a written memorandum 'containing any objections to, or recommendations in respect of, the whole or part of that plan' to the Commission within 42 days or such longer period as the Commission allows.

6. Under s 143(1) of the PD Act, in determining whether to grant subdivision approval, the Commission is bound to take into account any objections or recommendations contained in a memorandum forwarded to it under s 142. Section 143 of the PD Act states as follows:

   (1)After considering any objections or recommendations contained in a memorandum forwarded to the Commission under section 142, and any advice of a relevant environmental condition forwarded to it under that section, the Commission is to ­

   (a)approve the plan of subdivision; or

   (b)refuse to approve the plan of subdivision; or

   (c)approve the plan of subdivision and require the applicant for approval to comply with such conditions as the Commission thinks fit before the diagram or plan of survey will be endorsed with the approval of the Commission.

   (2)The Commission is to try to deal with the plan of subdivision in one of the ways mentioned in subsection (1) within the period of 90 days after the day on which the plan was submitted to the Commission for approval or within such longer period after that day as may be agreed in writing between the Commission and the applicant for approval.

7. It is apparent from the foregoing provisions of the PD Act that subdivision control and assessment in Western Australia falls within the exclusive authority (subject to review by the Tribunal) of the Commission (and not local governments).[1]  As I observed in Boulter and City of Subiaco [2007] WASAT 71; (2007) 52 SR (WA) 84 [60] ­ [61], Western Australia has a 'split planning system':

   … under which subdivision control and assessment is undertaken by the Commission at State level whereas development control and assessment is generally undertaken by local governments [and, since 25 March 2011, by Development Assessment Panels under the Planning and Development (Development Assessment Panels) Regulations 2011 (WA)] applying local planning schemes and policies at local level. The Commission also undertakes some development control and assessment under region planning schemes, although certain of these functions are delegated to the relevant local government.

   Subdivision control in Western Australia is regulated by Div 2, Div 3 and Div 4 of Pt 10 of the PD Act, whereas development control is regulated by Div 5 of the PD Act and local and region planning schemes.  This split planning system is unique to Western Australia among Australian planning systems.  In the other States and the Northern Territory, "development" relevantly includes subdivision of land so that development approval is required for subdivision and there is a single system of development/subdivision control and assessment which is generally administered by local governments: see Environmental Planning and Assessment Act 1979 (NSW) s 4 [now, s 1.5]; Planning and Environment Act 1987 (Vic) s 3; Integrated Planning Act 1997 (Qld) s 1.3.2 [now, Planning Act 2016 (Qld) s 6 and Sch 2 ('development' includes 'reconfiguring a lot' which includes 'creating lots by subdividing another lot')]; Development Act 1993 (SA) s 4; Land Use Planning and Approvals Act 1993 (Tas) s 3; and Planning Act 1993 [now, Planning Act] (NT) s 3.  The Australian Capital Territory has a unique leasehold system of land tenure and primary land use control is through lease use clauses.

   [1] However, as indicated earlier, the relevant local government is required to be consulted under s 142(1) of the PD Act if the Commission is of the opinion that a plan of subdivision may affect the local government's functions and the Commission is bound, by s 143(1) of the PD Act, to take into consideration any objections or recommendations contained in a memorandum forwarded by the relevant local government to the Commission under s 142.

8. Section 241(1) of the PD Act sets out matters that the Tribunal is bound to take into consideration in determining a planning review proceeding under Pt 14 of that Act (which includes an application for review under s 251(1) of the PD Act of the Commission's decision to refuse to approve a subdivision application). Section 241(1) of the PD Act states, in part, as follows:

   In determining an application in accordance with this Part the State Administrative Tribunal is to have due regard to relevant planning considerations including ­

   (a)any State planning policy which may affect the subject matter of the application[.]

   …

9. Section 26(1) of the PD Act authorises the Commission to prepare State planning policies with the approval or on the direction of the Minister for Planning. Section 26(2) and s 26(3) of the PD Act provide that a State planning policy 'is to be directed primarily towards broad general planning and facilitating the coordination of planning throughout the State by local governments', but may make provision 'for any matter which may be the subject of a local planning scheme'. Furthermore, s 26(4) states as follows:

   A State planning policy may be prepared so as to apply ­

   (a)generally or in a particular class of matter or in particular classes of matter; and

   (b)throughout the State or in a specified portion or specified portions of the State, whether or not a planning scheme has been prepared or is being prepared in that portion or those portions of the State.

10. Section 29 of the PD Act states as follows in relation to the approval of State planning policies:

    (1)The Governor may approve a State planning policy prepared by the Commission with or without such modifications as the Minister may recommend and the Governor thinks necessary to make and which the Governor is by this subsection authorised to make.

    (2)A State planning policy has no force or effect until it is approved by the Governor and published in the Gazette.

11. Interestingly, as Mr Hogan observes in his submissions, although the Tribunal is expressly bound by s 241(1) of the PD Act to take 'any State planning policy which may affect the subject matter of the application' into consideration, the Commission is not expressly bound by any provision of the PD Act to do so. Nevertheless, under Western Australian planning law, a State planning policy concerning subdivision will generally guide the Commission (and the Tribunal on review) in the exercise of its discretion as to whether to grant subdivision approval and, if so, subject to what conditions: Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433 [24] (Barker J). Similarly, although not referred to in the PD Act, a Development Control Policy adopted by the Commission for the purposes of subdivision control and assessment will also generally guide the exercise of the Commission's (and, on review, the Tribunal's) discretion as to whether to grant subdivision approval to a proposed subdivision and, if so, subject to what conditions.[2]  As Justice Barker held in Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [24]:

    In some cases, the Commission may have adopted a set of planning principles which it, for the sake of convenience, has called a "policy" and which is stated to be relevant to subdivision applications.  In such cases, the document is not a "policy" given force by the Town Planning and Development Act, but, nonetheless, it may be relevant to the exercise of its discretion to approve or reject a particular plan of subdivision lodged with it.  If the Commission has adopted such a "policy", and it is relevant to the application, the policy will be expected to guide the exercise of discretion.  However, the existence of such a "policy" is not intended to replace the discretion of the Commission in the sense that it is to be inflexibly applied regardless of the merits of the particular case before it.  Notwithstanding this understanding, the relevant consideration in many applications will by why the "policy" should not be applied; why the planning principles that find expression in the "policy" are not relevant to the particular application.  Good public administration demands no less an approach.

    [2] Furthermore, in the case of the Tribunal, such a Department Control Policy is a matter that SAT is bound to take into consideration in a subdivision review proceeding in terms of 'relevant planning considerations' under s 241(1) of the PD Act.

12. Clause 3(1) of the deemed provisions for local planning schemes in Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regs) (deemed provisions) states as follows:

    The local government may prepare a local planning policy in respect of any matter related to the planning and development of the Scheme area.

13. Clause 3(3) of the deemed provisions requires that a local planning policy must be based on 'sound town planning principles' and enables it to 'address either strategic or operational considerations in relation to matters to which the policy applies'.

14. Although, as discussed in Boulter and City of Subiaco at [61], in contrast to every other Australian planning jurisdiction, the term 'development' under Western Australian planning law (s 4(1) of PD Act) does not include 'subdivision', the term 'planning' (while not defined in the PD Act) clearly includes subdivision.  It is, therefore, within the authority of a local government to prepare and adopt a local planning policy addressing matters related to subdivision in the relevant local planning scheme area. 

15. Clause 3(5) of the deemed provisions states as follows:

    In making a determination under this Scheme the local government must have regard to each relevant local planning policy to the extent that the policy is consistent with this Scheme.

16. However, as discussed earlier, determinations in relation to subdivision applications are made by the Commission under s 135 and s 143 of the PD Act, not by local governments under local planning schemes.

Consideration of the Commission's grounds for review

Ground 1 ­ 'The Tribunal misconstrued the [Commission's] SPP 2.5 and DC 3.4 by interpreting the term "strategy or scheme" as including policies adopted under the relevant local planning scheme, namely the Shire of Plantagenet's "Planning Vision"'

1. The Commission submits that the Tribunal misconstrued the meaning of the term 'strategy or scheme' in cl 6.5(b) of SPP 2.5 and in cl 4 and cl 5 of DC 3.4 as including a local planning policy and, in particular, the Shire's Planning Vision.  As indicated in the extracts from the Tribunal's reasons set out earlier at [23], cl 6.5 of SPP 2.5 states the Commission's view that there are 'sufficient, suitably sized and located rural lots to cater for intensive and emerging primary production land uses' and that the Commission's policy in contemplating subdivision proposals on rural land is that the creation of new or smaller rural lots 'will be by exception and in accordance with [DC 3.4]' or 'by exception … provided for in other State planning policies and/or a local planning strategy or scheme', and that 'no other planning instruments besides [DC 3.4, State planning policies and a local planning 'strategy or scheme'] can provide for the subdivision of rural land'.  As also indicated in the extracts from the Tribunal's reasons set out earlier at [24] and at [25], cl 4 of DC 3.4 similarly states that the Commission is of the view that 'there is an existing supply of suitably sized and located rural lots to cater for intensive and emerging primary production land uses' and that '[w]here local conditions require subdivision or creation of land parcels for this purpose, it should be provided for in a strategy or scheme …' and cl 5 of DC 3.4 states that, when determining subdivision proposals on rural land, the measures that will be applied by the Commission include that 'the creation of new or smaller lots will be by exception' and 'proposals will be considered against strategies and schemes'.

2. Mr Hogan submits that the Tribunal did not, in fact, determine that Planning Vision is a 'strategy or scheme' for the purposes of SPP 2.5 and DC 3.4, but rather 'the Tribunal interpreted the [DC] 3.4 requirement to have regard to the local planning scheme as referring also to policies adopted under TPS 3'. Furthermore, and in the alternative, Mr Hogan submits that the definition of 'strategy or scheme' in SPP 2.5 (set out at [65] below) 'is broad enough to include a local planning policy'. Finally, and in the alternative to his first two submissions, Mr Hogan submits that, even if the Tribunal misconstrued the term 'strategy or scheme' in SPP 2.5 and DC 3.4 (and if this constituted an error of law), then the error did not vitiate the Tribunal's decision, because a local planning policy, such as Planning Vision, is not an irrelevant consideration (contrary to ground 2).

3. As I said in Thomas and Town of Cambridge [2013] WASAT 206 at [5] and [23], in a review by a judicial member under s 244 of the PD Act, the reasons for determination of the Tribunal must be read as a whole, not minutely or finely with an eye keenly attuned to the perception of error, not in an overly critical or pernickety manner, and not concerned with looseness of language or phrasing. However, in my view, when the Tribunal's reasons are read in this way, it is clear that the Tribunal erred in law as alleged by the Commission in terms of ground 1, for the following reasons.

4. Three parts of the Tribunal's reasons in particular indicate that, contrary to Mr Hogan's first submission, the Tribunal did, in fact, determine that the Shire's Planning Vision is a 'strategy or scheme' for the purposes of SPP 2.5 and DC 3.4. 

5. The first indication is at [43] ­ [44] of the Tribunal's reasons set out earlier at [24]. At [43] the Tribunal observed that '[i]f subsections of cl 6 to cl 6.5 of DC 3.4 and cl 5.1(f) of SPP 2.5 were the only planning considerations, then any rural subdivision would be rare' and then observed:

   However, cl 4 of DC 3.4 goes on to state:

   Where local conditions require subdivision or creation of land parcels for this purpose, it should be provided for in a strategy or scheme and supported by evidence from the agency responsible for agriculture and food[.]

   (Emphasis added)

6. Significantly, immediately after setting out this quotation from cl 4 of DC 3.4, the Tribunal said the following [44]:

   In this matter an application for subdivision has been made, based in part on the site characteristics, for a purpose that includes an intensive agricultural use.  To consider further if there is any support for the proposed subdivision, it is necessary to have regard to the local planning 'strategy or scheme'.

   (Emphasis added)

7. Secondly, the Tribunal said the following [56]:

   The Tribunal considers one step is to determine if a site has particular characteristics such that a subdivision proposal warrants more than a simple dismissal as just another rural subdivision.  There is a principle in statutory interpretation that requires that texts be construed so far as is possible to operate in harmony and not in conflict.  Clearly, in this matter, it is not statutory texts being considered, but rather a series of policies.  The Tribunal considers relevant, however, the principle of the various documents not being intended to contradict each other.

   (Emphasis added)

8. Thirdly, the Tribunal said the following [58]:

   In this matter, DC 3.4 refers to a requirement to have regard to the local planning scheme.  The Tribunal has interpreted this as referring also to policies adopted under TPS 3. …

9. In my view, these three parts of the Tribunal's reasons collectively indicate that the Tribunal determined that the Shire's Planning Vision falls within the meaning of the term 'strategy or scheme' in SPP 2.5 and DC 3.4.  It is clear from [43] ­ [44] of the Tribunal's reasons that the touchstone for its subsequent consideration of the LP Strategy and Planning Vision was the provision in cl 4 of DC 3.4 that '[w]here local conditions require subdivision or creation of land parcels for this purpose [i.e. to cater for intensive and emerging primary production land uses], it should be provided for in a strategy or scheme …'.  In the immediately following paragraph, the Tribunal expressly stated that '[t]o consider further if there is any support for the proposed subdivision, it is necessary to have regard to the local planning 'strategy or scheme'''.  This is the clearest single statement that the Tribunal was considering whether, and then determined that, Planning Vision is a 'strategy or scheme' for the purposes of SPP 2.5 and DC 3.4. 

10. Then, when discussing Planning Vision, the Tribunal referred to a 'principle in statutory interpretation' requiring that 'a series of policies' should 'be construed so far as possible to operate in harmony and not in conflict' ([56]).  This plainly indicates that the Tribunal considered Planning Vision as falling within 'a series of policies' together with SPP 2.5 and DC 3.4. 

11. The Tribunal then said that it 'has interpreted' the requirement in DC 3.4 'to have regard to the local planning scheme' 'as referring to policies adopted under TPS 3'.  This, again, is clearly a reference to the touchstone provision in cl 4 of DC 3.4 that '[w]here local conditions require subdivision or creation of land parcels for this purpose [i.e. to cater for intensive and emerging primary production land uses], it should be provided for in a strategy or scheme …' and the provision in cl 5 of DC 3.4 that, when determining subdivision proposals on rural land, the Commission will apply measures including that 'the creation of new or smaller lots will be by exception' and 'proposals will be considered against strategies and schemes'.

1. In my view, the Tribunal's determination that Planning Vision falls within the term 'strategy or scheme' in SPP 2.5 and DC 3.4 involved a serious and fundamental misconstruction of the meaning of that term.  The meaning of the term 'strategy or scheme' is defined in the glossary of terms at the end of SPP 2.5.  The glossary states that '[d]efinitions contained in this policy also apply to [DC 3.4]'.  The term 'strategy or scheme' is defined in the glossary of terms for the purposes of SPP 2.5 and DC 3.4 as follows:

   Strategy or scheme     A general term used to capture a range of documents that guide or direct planning decision­making.  Specifically, it refers to:

   •an endorsed regional planning and infrastructure framework

   •an endorsed sub­regional framework or plan

   •an endorsed local planning strategy

   •an endorsed regional planning scheme

   •an endorsed local planning scheme

   •any other relevant document endorsed by the Western Australian Planning Commission or Minister for Planning

2. Significantly, the Tribunal's reasons do not set out or refer to this definition.  This omission may explain why the Tribunal erred in law in terms of the Commission's first ground of review.

3. Mr Hogan emphasises the first sentence of the definition of 'strategy or scheme', namely '[a] general term used to capture a range of documents that guide or direct planning decision­making' and submits:

   The SPP 2.5 definition of 'strategy or scheme' confirms it is a 'general term'.  The subsequent reference to specific documents the general term refers to does not exclude other documents which guide or direct planning decision­making, such as a local planning policy.

4. I do not accept Mr Hogan's submission.  Although the first sentence of the definition of the term 'strategy or scheme' indicates that it is '[a] general term used to capture a range of documents that guide or direct planning decision­making', when the definition is read as a whole, it is clear that a 'strategy or scheme' must fall within one of the listed bullet points in the definition. 

5. The words '[s]pecifically, it refers to' at the beginning of the second sentence of the definition and the final (catchall) bullet point ('any other relevant document endorsed by the Western Australian Planning Commission or Minister for Planning') are clear textual indications that the second sentence of the definition contains an exhaustive statement of what planning documents fall within the term 'strategy or scheme'.  The words '[s]pecifically, it refers to' indicates an exclusive statement of meaning, rather than an inclusive definition of meaning.  The catchall expression 'any other relevant documents endorsed by the Western Australian Planning Commission or Minister for Planning' further indicates that no other planning documents are included within the meaning of the term 'strategy or scheme' beyond the listed types of documents and any other relevant document that has been endorsed by the Commission or the Minister.

6. A contextual factor supporting this interpretation is that cl 6.7 of SPP 2.5 expressly refers to 'local planning policies' and states that local governments may prepare local planning policies to 'supplement or elaborate on issues associated with [SPP 2.5]'.  Clause 6.7 of SPP 2.5 also states that '[t]he scope and effect of local planning policies is outlined in the [LPS Regs]'.  The fact that SPP 2.5 expressly refers to and provides for 'local planning policies' to 'supplement or elaborate on issues associated with [SPP 2.5]', whereas the definition of 'strategy or scheme' does not include a 'local planning policy' in the listed types of documents, is a contextual indication that the term 'strategy or scheme' does not include a local planning policy.

7. A purposive interpretation of the meaning of the term 'strategy or scheme' arrives at the same result.  As indicated earlier, the provisions of the PD Act concerning subdivision have the effect that, in Western Australia, subdivision control and assessment is within the exclusive authority of the Commission (and not local governments).  Each of the types of planning documents listed in the bullet points in the definition of 'strategy or scheme' requires the endorsement of the Commission or the Minister.  In light of the provisions of cl 6.5 of SPP 2.5 and cl 4 and cl 5 of DC 3.4 which use the expression 'strategy or scheme' (set out in the Tribunal's reasons quoted earlier at [23] ­ [24]) and the definition of that term in the glossary of terms, clearly, the intention of the definition is to restrict the application of the Commission's policy, in contemplating subdivision proposals on rural land, that 'the creation of new or smaller rural lots [is] by exception [and] may be provided for in other State planning policies and/or a local planning strategy or scheme' and 'no other planning instruments besides [DC 3.4, a State planning policy or a local planning strategy or scheme] can provide for the subdivision of rural land', to subdivisions provided for in planning instruments endorsed at State level only.  The clear purpose is also to exclude from the application of this policy subdivisions provided for in local planning policies, which are made by local governments and do not require endorsement, or even consultation, at State level. 

8. As indicated earlier, Mr Hogan submits, alternatively, that even if the Tribunal misconstrued the meaning of the term 'strategy or scheme', 'it was not a vitiating error which affected the exercise of the Tribunal's discretion, because the Tribunal was permitted to take Planning Vision into account'.

9. Although, as discussed below, the Commission's second ground of review fails, because a local planning policy concerning subdivision within a scheme area, such as the Shire's Planning Vision, is not an irrelevant consideration in relation to subdivision assessment (even if the local planning policy is inconsistent with a State planning policy or a Development Control Policy of the Commission), the Tribunal's error in terms of ground 1 is so significant as to vitiate the entirety of its determination.  This is because the Tribunal erroneously had regard to Planning Vision, not as merely a local planning policy that is inconsistent with SPP 2.5 and DC 3.4, but as one which falls within the contemplation of SPP 2.5 and DC 3.4 as a 'strategy or scheme' which, under those policies, may provide for the creation of new or smaller rural lots by exception.

10. In my view, the Tribunal fell into error of law of the nature discussed by the Full Court of the Federal Court in Minister for Immigration, Local Government and Ethic Affairs v Gray 208, namely, purporting to apply SPP 2.5 and DC 3.4 'as a proper basis for disposing of the case in hand but misconstru[ing] or misunderstand[ing] it so that what is applied is not the policy but something else …'.

11. This error affected not only the Tribunal's determination in relation to the issue of whether the proposed subdivision is consistent with the planning framework, but also its determinations in relation to the other three issues.  In relation to the issue of whether the proposed subdivision would set an undesirable precedent, the Tribunal said at [66] that '[a]s found in the discussion on the planning framework above, the Tribunal has formed the opinion that, in the particular circumstances of this site, there is a case in support of the proposed subdivision'.  In relation to the issue of whether the proposed subdivision represents the ad hoc fragmentation of rural land, the Tribunal said at [68] that '[t]he site is … in a locality where the LGSS and the Planning Vision recognise that there is potential for lots to have an appropriate combination of soil, topography and climate to warrant consideration of greater intensity of agricultural use'.  In relation to the issue of whether the proposed subdivision is consistent with the principles of orderly and proper planning, the Tribunal said at [73] that '[o]n this issue, the Tribunal would look to the conclusions reached above[;] [t]hat is, the Tribunal has found in the planning instruments that include not just SPP 2.5 and DC 3.4, that together might be described as self-referential, but in addition the LGSS and the Planning Vision that expand upon the planning considerations in this locality and the wider area'.

12. It is clear that the Tribunal gave significant weight, in the exercise of its discretion as to whether to grant subdivision approval under s 135 and s 143 of the PD Act, to Planning Vision. The Tribunal's reasons indicate that it granted subdivision approval, because it found that the proposal is consistent with Planning Vision and the LGSS and because of the unchallenged evidence of Mr Pluske and 'the inherent attributes of the site and the actual use made of it' ([73]). The Tribunal's serious and fundamental misconstruction of the term 'strategy or scheme' was clearly material to its determination (although it appears that Planning Vision was not the sole basis upon which it granted subdivision approval). In my view, therefore, the Tribunal's decision is vitiated by its error of law in terms of ground 1.

Ground 2 ­ 'The Tribunal erred in law by having regard to an irrelevant consideration, namely clauses 3.1.4.1 and 3.1.4.2 of the Shire of Plantagenet's "Planning Vision'''

1. Although the Commission concedes that, in different circumstances, a local planning policy will not 'necessarily be irrelevant to any application for subdivision', it submits that:

   The clauses of Planning Vision that were considered by the Tribunal (that is, clauses 3.1.4.1 and 3.1.4.2) are not permissible considerations in this case because:

   a.they are directly inconsistent with SPP 2.5 (and DC 3.4), properly construed, which is the highest level of relevant policy; and

   b.they are not documents of the Commission, in circumstances where the discretion to determine subdivision application is vested in the Commission.

2. The Commission submits that the fact that it has rejected the substance of Planning Vision when it was proposed by the Shire as part of the Shire's draft local planning strategy, 'because of its inconsistency with the State planning framework[,] demonstrates and reinforces this conclusion'.

3. In contrast, although Mr Hogan concedes that Planning Vision is 'arguably inconsistent' with SPP 2.5 and DC 3.4, he submits that the PD Act does not expressly, or by necessary implication, make a local planning policy, such as Planning Vision, an irrelevant consideration to the exercise of discretion in relation to the determination of a subdivision application under s 135 and s 143 of the PD Act.

4. As the Court of Appeal (Martin CJ & Murphy JA) held in A v Corruption and Crime Commissioner [2013] WASCA 288; (2013) 306 ALR 491, in order for the Commission's second ground of review to succeed [100] (citation omitted):

   … it must be established that the [impugned matter, in this case cl 3.1.4.1 and cl 3.1.4.2 of Planning Vision] … was one which the decision­maker was prohibited from considering, either by the express terms of the statute, or by implication arising from the subject matter, scope and purpose of the power being exercised [in this case, assessment of a subdivision application] …

5. As the Court of Appeal (Martin CJ & Murphy JA) also said in A v Corruption and Crime Commissioner [90] (citations omitted):

   It must be recognised that, between matters a decision[­]maker is bound to take into account, and those irrelevant considerations which the decision-maker is prohibited from considering, there may be a wide range of permissible considerations which the decision-maker may weigh or disregard without committing an error of law.  It has been emphasised that a decision[-]maker is not to be criticised for failing to consider everything which the affected party has chosen to include in an exhaustive list of all matters which the decision[­]maker might conceivably regard as relevant …

6. I reviewed the statutory framework for subdivision control and assessment in Western Australia earlier in these reasons. Clearly, there is nothing in the statutory framework which expressly prohibits the Commission from considering a local planning policy, such as Planning Vision, which is inconsistent with a State planning policy or a Development Control Policy of the Commission, in the exercise of its discretion when determining a subdivision application under s 135 and s 143 of the PD Act.

7. I have also considered whether the Commission is prohibited 'by implication arising from the subject matter, scope and purpose of the power being exercised' from considering a local planning policy, such as Planning Vision, which is inconsistent with a State planning policy or a Development Control Policy of the Commission.  Although, as I said earlier, in Western Australia, subdivision control and assessment falls within the exclusive authority of the Commission (and not local governments), I do not discern an implication arising from the subject matter, scope and purpose of the power of assessment of subdivision applications under the PD Act prohibiting the Commission (and the Tribunal on review) from considering a local planning policy which is inconsistent with a State planning policy or a Development Control Policy of the Commission. 

8. Indeed, as Mr Hogan submits, the implication from the requirement to consult with the local government where a plan of subdivision may affect its functions under s 142(1) of the PD Act and from the requirement to consider any objections or recommendations contained in a memorandum forwarded by the local government to the Commission under s 143(1) of the PD Act, is to the contrary. Those provisions indicate that local planning considerations may be relevant to subdivision assessment and, as Mr Hogan submits, '[l]ocal planning considerations may properly be given expression in a local planning policy, and often are'. Moreover, a local planning policy concerning subdivision in the relevant scheme area may serve to, and would generally, inform a local government's objections or recommendations to the Commission in relation to a subdivision application under s 142(1) of the PD Act. As a local government's objections and recommendations in relation to a subdivision application is a matter that the Commission is bound to take into consideration, a provision of a local planning policy on which those objections or recommendations are based cannot be a matter that the Commission is prohibited from considering.

9. In my view, as discussed below, the inconsistency between cl 3.1.4.1 and cl 3.1.4.2 of Planning Vision, on the one hand, and SPP 2.5 and DC 3.4, on the other, and the fact that Planning Vision is 'not [a] document from the Commission' are certainly relevant to the relative weight which should generally be given to a provision of a local planning policy which is inconsistent with applicable provisions of SPP 2.5 and DC 3.4 in a subdivision assessment.  However, I do not discern an implication arising from the subject matter, scope and purpose of the power of assessment of subdivision applications that inconsistency between a provision of a local planning policy and SPP 2.5 or DC 3.4 or the fact that a local planning policy is not a document of the Commission makes the provision of the local planning policy something that the decision­maker is prohibited from considering in a subdivision assessment.

10. The Commission also submits that the terms of SPP 2.5 'prohibit' or make 'impermissible' consideration of cl 3.1.4.1 and cl 3.1.4.2 of Planning Vision, because cl 6.5(c) of SPP 2.5 states that 'no other planning instruments besides [DC 3.4, State planning policies or a local planning strategy or scheme] can provide for the subdivision of rural land'.

11. However, a State planning policy (although made and having effect under s 26 ­ s 29 of the PD Act) is not deemed to be an enactment or legislation under the PD Act or otherwise and cannot make a local planning policy (even one that is inconsistent with its terms) an irrelevant matter for consideration in the exercise of planning discretion under s 135 and s 143 of the PD Act. It is instructive and significant to contrast a local planning scheme which, when approved by the Minister and published in the Gazette, 'has full force and effect as if it were enacted by this Act' (s 87(4) of the PD Act).

12. Clauses 3.1.4.1 and 3.1.4.2 of Planning Vision were therefore not irrelevant considerations in the exercise of planning discretion under s 135 and s 143 of the PD Act in this case. The Commission's second ground of review fails.

13. However, as indicated earlier, the Tribunal's determination is vitiated by its error of law in terms of the first ground of review, because the Tribunal took these provisions of Planning Vision into consideration, not merely as provisions of a local planning policy which is (it is conceded, arguably) inconsistent with SPP 2.5 and DC 3.4, but rather as falling within the term 'strategy or scheme' used in cl 6.5 of SPP 2.5 and cl 4 and cl 5 of DC 3.4.  Therefore, although Planning Vision was not an irrelevant consideration, the manner in which the Tribunal had regard to the provisions of this local planning policy was impermissible and vitiated its determination.

Weight to be given to a local planning policy which is inconsistent with a State planning policy or a Development Control Policy of the Commission in relation to subdivision

1. It follows from my determination in relation to the second ground of review that Planning Vision forms part of 'a wide range of permissible considerations which the decision­maker may weigh or disregard without committing an error of law' falling 'between matters a decision[­]maker is bound to take into account, and those irrelevant considerations which the decision­maker is prohibited from considering' (A v Crime and Corruption Commissioner [90]).  The question therefore arises as to what weight should be given to a provision of a local planning policy which is inconsistent with a State planning policy or Development Control Policy of the Commission in relation to subdivision.

2. The weight to be given to a relevant provision of a local planning policy concerning subdivision in a subdivision assessment by the Commission or in a subdivision review proceeding before the Tribunal depends on the facts and circumstances of the case. Mr Hogan submits that '[t]here is nothing in the [PD] Act which requires a local planning policy to be given less weight than a State planning policy'. It is correct that the PD Act does not expressly require that a local planning policy be given less weight than a State planning policy (or a Development Control Policy of the Commission) in the exercise of planning discretion as to whether to grant subdivision approval under s 135 and s 143 of the PD Act. However, in my view, an implication arises from the provisions of the PD Act which create the split planning system in this State that the Commission (and the Tribunal on review) is generally to give less weight to a local planning policy which is inconsistent with a State planning policy or a Development Control Policy of the Commission than is given to the State planning policy or the Development Control Policy, because subdivision control and assessment is legislated to be within the exclusive authority of the Commission (and not local governments) in Western Australia.

3. As Justice Barker explained in Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission at [24], the general function and purpose of a planning policy, as a matter of '[g]ood public administration', is for the decision­maker to formulate, adopt and publish planning principles that find expression in a planning policy in order to guide the decision­maker's exercise of discretion in planning assessment decision­making. The decision­maker in relation to subdivision applications is the Commission (subject to review by the Tribunal) (and not local governments) and it is a reflection of the general function and purpose of planning policies and the exclusive authority of the Commission in relation to subdivision that State planning policies (which the Commission prepares, with the approval or on direction of the Minister) and Development Control Policies (which the Commission formulates, adopts and publishes) are generally to be given greater weight in subdivision assessments than local planning policies (which the Commission has no role in relation to).

1. Moreover, given that the local government of the district in which a subdivision is proposed is not the decision­maker in relation to a subdivision application of land in the district, although a provision of a local planning policy concerning subdivision adopted by the local government which is inconsistent with a provision of SPP 2.5 or DC 3.4 is not an irrelevent consideration by the Commission (or the Tribunal on review) in a subdivision assessment, the general function and purpose of such a provision of a local planning policy is not to guide the exercise of discretion of the Commission in the same way as a relevant provision of a State planning policy or a Development Control Policy of the Commission. Rather, as discussed earlier, a provision of a local planning policy concerning subdivision in the relevant scheme area serves to, and would generally, inform the local government's objections or recommendations to the Commission under s 142(1) of the PD Act. Furthermore, as contemplated by cl 6.7 of SPP 2.5, a provision of a local planning policy which 'supplement[s] or elaborate[s] on issues associated with [SPP 2.5]' (that is, relevently, one which is not inconsistent with SPP 2.5) may also serve to guide the exercise of the Commission's (and, on review, the Tribunal's) discretion.

2. Finally, were it not the case that a provision of a local planning policy which is inconsistent with a provision of SPP 2.5 or DC 3.4 is generally to be given less weight than the provision of SPP 2.5 or DC 3.4, the conferral by the Parliament of exclusive authority on the Commission in relation to subdivision control and assessment could be undermined by the making of local planning policies by local governments, which, as indicated earlier, do not require endorsement by, or even consultation with, the Commission.  This point is brought into sharp relief in a case such as this where 'much of the Planning Vision was first put forward by the Shire as a draft local planning strategy … [and] [t]his was rejected by the Commission …' (Tribunal's reasons [49]).

3. Consequently, although 'subdivision facilitates development' (WA Developments Pty Ltd and Western Australian Planning Commission [2008] WASAT 260 [32]), the Tribunal's observation at [60] that 'the Shire should be able to reasonably expect that, over time, its properly arrived at planning objectives for its district might be achieved' is incorrect where the Shire's objectives in relation to subdivision are in a local planning policy which is inconsistent with a State planning policy or a Development Control Policy of the Commission in relation to subdivision.

Conclusion

1. The Tribunal erred in law by misconstruing the meaning of the term 'strategy or scheme' in SPP 2.5 and DC 3.4 as including the Shire's Planning Vision local planning policy.  This error vitiated the Tribunal's determination with the consequence that it must be revoked. 

2. The Commission submits that, if the Tribunal's determination is revoked, then I should 'substitute a determination that the Commission's refusal to grant subdivision approval on 11 August 2016 should be affirmed'.

3. Although s 244(2)(b) of the PD Act enables a judicial member, having revoked a direction, determination or order of the Tribunal, to substitute another direction, determination or order that the Tribunal could have made in relation to the matter, in my view, the Commission's suggestion is not the appropriate outcome. This is because, although the Tribunal clearly gave significant weight to cl 3.1.4.1 and cl 3.1.4.2 of Planning Vision, it appears that it did not grant subdivision approval only because of its finding that the proposal is consistent with Planning Vision, but also because of its finding that the proposed subdivision is consistent with the LGSS and because of the unchallenged evidence of Mr Pluske and 'the inherent attributes of the site and the actual use made of it' ([73]).

4. In my view, the appropriate outcome of the application for review by a judicial member is for the matter to be remitted to the Tribunal (as originally constituted) for redetermination in accordance with these reasons and on the basis of the evidence and submissions presented at the hearing on 19 April 2017, the final submissions filed on 3 and 4 May 2017 and any further submissions filed by the parties in accordance with orders set out below.

Orders

1. For these reasons I make the following orders:

   1.The application for review by a judicial member is allowed.

   2.The orders made by the Tribunal in proceeding DR 270 of 2016 on 2 August 2017 and the determination by the Tribunal in Hogan and Western Australian Planning Commission [2017] WASAT 129 are revoked.

   3.Proceeding DR 270 of 2016 is remitted to the Tribunal (as originally constituted) for redetermination in accordance with the reasons for decision in proceeding DR 359 of 2017 and on the basis of the evidence and submissions presented on 19 April 2017, the final submissions filed on 3 and 4 May 2017 and any further submissions filed by the parties in accordance with the following orders.

   4.By 7 May 2018 the parties may file and, if so, must exchange any further written submissions.

   5.By 14 May 2018 the parties may file and, if so, must exchange any submissions in reply to any submissions filed in accordance with the preceding order.

   6.If either party seeks a further oral hearing in proceeding DR 270 of 2016, it must apply by correspondence to Judge Parry's Associate for a directions hearing in proceeding DR 359 of 2017 by 23 April 2018.

   I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

   D PARRY

   16 APRIL 2018