Williams & Anor and Western Australian Planning Commission
[2008] WASAT 6
•15 JANUARY 2008
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: WILLIAMS & ANOR and WESTERN AUSTRALIAN PLANNING COMMISSION [2008] WASAT 6
MEMBER: MR L GRAHAM (SENIOR SESSIONAL MEMBER)
HEARD: 30 NOVEMBER 2007
DELIVERED : 15 JANUARY 2008
FILE NO/S: DR 302 of 2007
BETWEEN: THOMAS WILLIAMS
PHILLIP HOPE
ApplicantsAND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Town planning - Application to subdivide - Rural resource zone - Undesirable precedent - Hardship - Prevailing lot size - Agricultural and horticultural objectives - Limited water availability
Legislation:
City of Wanneroo District Planning Scheme No 2, cl 3.17.1, cl 3.17.2, cl 3.18.1
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 251(1), s 241(3)
Result:
The application for review is dismissed
Category: B
Representation:
Counsel:
Applicants: Selfrepresented
Respondent: Mr J Bouwhuis
Solicitors:
Applicants: Self-represented
Respondent: Western Australian Planning Commission
Case(s) referred to in decision(s):
Aspen Pty Ltd v State Planning Commission (Unreported; Appeal No 13 of 1988, 21 October 1988)
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The application for review was lodged against a decision of the Western Australian Planning Commission to refuse the subdivision of a single 4.016 hectare lot into two 2.008 hectare lots in the "rural resource" zone in Tifway Place, Carabooda.
The Tribunal examined the arguments of both parties to the review, the relevant legislative and policy provisions at State and local level, the prevailing lot size in the locality and matters of precedent and hardship.
The Tribunal determined that the important planning principle of establishing long‑term planning policies to guide subsequent planning decisions would be put at risk if an approval was given to create two essentially rural‑residential lots in the "rural resource" zone.
It was acknowledged that although the applicants were unable to access water from the superficial aquifer to pursue the agricultural or horticultural objectives of the zone on their land, that these circumstances may change to allow these uses to be pursued in the future or, if not, may lead to alternative planning policies.
The application for review was dismissed.
Introduction
The application for review, dated 6 September 2007, was lodged by Mr Thomas Williams and Mr Phillip Hope (applicants) against a decision of the Western Australian Planning Commission (WAPC) on 20 August 2007 to refuse an application to subdivide on the existing 4.016 hectare lot into two equal sized lots of 2.008 hectares. The lot is located in Tifway Place, Carabooda in the City of Wanneroo.
The application for review was made under the provisions of s 251(1) of the Planning and Development Act 2005 (WA) (PD Act).
The reasons for refusal by the respondent as stated in their statement of issues, facts and contentions (SIFC) dated 12 October 2007 were:
"1.The land is zoned 'Rural Resource' in the Council's District Planning Scheme No 2. Subdivision in the manner proposed would create the potential for additional building development and the introduction of increased non‑rural/special rural activity in conflict with the zoning objectives.
2.The Commission's 'Rural Land Use Planning Policy' requires Councils to prepare a Local Rural Strategy to comprehensively plan for change and development in rural/special rural areas. In the absence of an approved Local Rural Strategy endorsed by the Commission, the Commission is not prepared to approve the subdivision of rural/special rural land that would lead to unplanned development and could be to the detriment of other rural uses, proper management of rural/special rural land and a rational settlement pattern.
3.The application is inconsistent with the Metropolitan Rural Policy, a provision of Statement Planning Policy No 1, which aims to maintain the open landscape character of rural/special rural areas in Perth. The Commission is not prepared to approve the creation of lots that would adversely impact the open landscape character of rural/special rural areas within the Perth Metropolitan Region.
4.The application does not comply with the Commission's Policy DC 3.4 'Subdivision of Rural Land', a provision of Statement of Planning Policy No 1, by reason that the subject land has not been identified for residential development in a town planning scheme, an endorsed local planning strategy or an endorsed rural planning strategy, and it has not been demonstrated that the site is suitable for closer subdivision.
5.The subject land is identified as 'Possible Future Horticultural and Agricultural Precinct' within the study area of the 'Future of East Wanneroo - Land Use and Water Management in the Context of Network City' which aims to prepare for sustainable land use and water management in East Wanneroo. The subdivision proposal for the subject land is considered inconsistent with the purposes of '[The] Future of East Wanneroo' and would undermine the orderly and proper planning of the area.
6.The subject land is located within an 'Agriculture Zone' in the Commission's North West Corridor Structure Plan, a provision of Statement of Planning Policy No 1. The creation of rural residential development in the area would be inconsistent with the objectives of the structure plan and could prejudice future planning in the area.
7.Rural Small Holdings Policy Study, a provision of Statement of Planning Policy No 1, recommends a minimum lot size of 20 hectares for rural lots in this locality. While it is noted that the original lot size is smaller than the minimum 20 hectares, the Commission is not prepared to approve the further fragmentation of general rural lots for rural residential purposes.
8.Approval to the subdivision would create an undesirable precedent for the further subdivision of other lots of a similar size in the Rural Resource Zone of this locality."
Subject land
The subject land is located at No 6 and No 10 Tifway Place, Carabooda (Lot 11 or subject land) and can be described as Lot 11 on Plan 16743. It is contained on Certificate of Title Volume 2112, Folio 406.
The area of the subject land is 4.0168 hectares with a frontage to Tifway Place of 170.96 metres and a side boundary to Greenlees Way of 218.99 metres. There are two dwellings on the property positioned 136 metres back from Tifway Place, together with associated outbuildings.
As advised in par 10 and par 11 of the respondent's SIFC:
"10.The area surrounding the subject land is rural in character and existing land uses include productive agriculture, such as market gardens, turf farms and wholesale nurseries, and some rural residential uses.
11.The general locality is characterised by lots ranging from 2 [hectares] to 41.1 [hectares]. Not including the two largest landholdings of 33.1 [hectares] and 41.1 [hectares], the average lot size of the [general] locality is 4.9 [hectares]. The majority of lots in the general locality are greater than 4 [hectares]."
The legislative and policy framework
The subject land is zoned "rural" in the Metropolitan Region Scheme (MRS) and "rural resource" in the City of Wanneroo District Planning Scheme No 2 (Scheme or DPS 2).
The following policies are considered relevant by the respondent:
a)City of Wanneroo Interim Local Rural Strategy (Interim LRS);
b)WAPC Development Control Policy No 3.4 - Subdivision of Rural Land (DC 3.4);
c)WAPC State Planning Policy No 2.5 - Agriculture and Rural Land Use Planning (SPP 2.5);
d)WAPC Metropolitan Rural Policy 1995 (MRP);
e)WAPC The future of East Wanneroo: Land Use and Water Management in the Context of Network City (East Wanneroo);
f)WAPC North West Corridor Structure Plan 1992 (NWCSP); and
g)WAPC Rural Small Holdings Policy 1980 (RSHP).
Respondent's position
The position of the respondent is outlined in its SIFC dated 12 October 2007. The respondent contends:
a)The proposed subdivision is inconsistent with the objectives of the "rural resource" zone as the functionality of land for rural pursuits is eroded by the breakdown of lot sizes.
b)The proposed subdivision, which would create two lots of approximately 2 hectares each, would be inconsistent with the prevailing lot size in the general locality and therefore inconsistent with the MRP.
c)The proposed subdivision would be inconsistent with the RSHP and the Interim LRS which recommends minimum lot sizes of 20 hectares for the subject land.
d)It is a general principle that, as lots sizes reduce, nearby land becomes attractive for similar subdivision. This encourages speculation and increases the value of surrounding land beyond its agricultural potential, thereby reducing the likelihood of agricultural pursuits being undertaken on rural zoned land.
e)If subdivision was permitted on the basis that the land cannot be used for agricultural uses due to water access issues:
i)a large portion of the locality would be able to be subdivided purely on that basis;
ii)land management controls may not be able to be introduced; and
iii)subdivision would occur on an ad hoc piecemeal basis, rather than in a planned manner subject to broad structure planning. Comprehensive structure planning for Carabooda is required prior to subdivision in order to address these issues.
f)As DPS 2 does not specifically provide for the subdivision of land for rural residential purposes in a "rural resource" zone, and there is no endorsed local planning strategy, or local rural strategy, the proposal is contrary to both DC 3.4 and SPP 2.5;
g)The intensification of rural residential development along Karoborup Road would be in direct conflict with its identification as a "Scenic Drive", where the aim is to "protect and enhance the rural landscape character of land which is readily visible from those roads".
h)Previous Tribunal determinations within the locality have adopted a consistent approach to the assessment of proposed subdivisions and highlighted that in each example, the maintenance of a minimum 4 hectare average lot size is required within the "rural resource" zone.
i)An approval to this subdivision would create an undesirable precedent for further subdivision of other similar sized or larger lots in the locality.
j)The proposed subdivision is objected to on grounds that all relate to its failure to comply with the relevant planning policies.
Applicants' position
The position of the applicants is outlined briefly in two separate submissions to the Tribunal. The applicants argue:
a)The subject land was purchased in 1990, at which time, the real estate agent advised of the subdivision potential of the property.
b)An approval to construct two dwellings was granted by the City of Wanneroo and both homes were completed in March 1991 with two separate addresses (No 6 and No 10 Tifway Place).
c)There are restrictions on the use of the water by the Water and Rivers Commission which prevent irrigation of the land.
d)As joint tenants it is not possible for each party to use the equity in the property to make improvements without the other party becoming guarantor.
e)The subdivision is being sought on compassionate grounds; specifically in relation to the medical problems of Mrs Hope.
f)Each applicant wishes to have the option to access equity in the property for medical or emergency expenditure.
g)There have been 5 acre lots created in the nearby Emerald Valley, and the neighbour on the adjoining land (Lot 12) subdivided a 19 acre block into two lots of 9 acres and 10 acres.
Planning issues
The principal planning issues are:
a)Is the proposed subdivision contrary to the relevant Scheme and policy provisions?
b)Would the proposed subdivision, if approved, be likely to create an undesirable precedent?
c)Are the compassionate grounds, as stated, in accordance with the intent of the hardship provisions of s 241(3) of the PD Act?
Assessment of the proposal
The proposed development
The proposed development envisages the subdivision of the subject land into two equal sized lots of approximately two hectares each. Both lots would have access to Tifway Place (a cul‑de‑sac) with frontages of approximately 85 metres each.
The subdivision would, in effect, allow each of the two existing residences, with associated outbuildings, to be located on a separate lot (proposed Lot 1 and proposed Lot 2).
Both the northern proposed Lot 1, and the southern proposed Lot 2, would have underground power and connection to a water supply service.
Legislative and policy provisions
City of Wanneroo District Planning Scheme No 2
Under cl 3.17.1 the objectives of the "rural resource" zone are to:
"(a)Protect from incompatible uses or subdivision, intensive agriculture, horticultural and animal husbandry areas with the best prospects for continued or expanded use; and
(b)protect from incompatible uses or subdivision basic raw materials priority areas and basic raw materials key extraction areas."
Under 3.17.2 it states:
"When considering applications for subdivision or for Planning Approval for development which relate to land which is within the Rural Resource Zone, Council shall have regard to the relevant matters listed in Clause 6.8 of the Scheme and in addition to the following matters:
...
(b)Within the Rural Resource Zone the priority uses are intensive agriculture, horticulture and basic raw materials extraction.
(c)The Council shall not support any use or subdivision or zoning that is, or potentially could be, incompatible with the carrying out of the priority uses referred to in sub clause 3.17.2 (b).
(d)Unless proved otherwise to the satisfaction of the Council on a case by case basis, rural residential development is considered an incompatible use.
..."
Under cl 3.18.1, the objectives of the "special rural" zone include:
"(a)designate areas where rural-residential retreats can be accommodated without detriment to the environment or the rural character;
(b)meet the demands for a rural lifestyle on small rural lots generally ranging from one to four hectares in size;
..."
In the view of the Tribunal, the intent of the Scheme is to protect the "rural resource" zone from incompatible uses and subdivision, such as rural‑residential subdivision. It also appears that rural‑residential lots are intended to be located, where appropriate, in a "special rural" zone and to be in the order of 1 hectare to 4 hectares.
Interim local rural strategy
Under P5.14, the Interim LRS states:
"... in the portion of the Carabooda locality designated as Rural Resource, where available supplies of groundwater above 1500 cubic metres per annum are fully committed or already overdrawn, Council will give proper consideration to rezoning applications to a more appropriate use."
Appendix 2 states that the City will only support subdivision where:
"... each lot yielded by the proposed subdivision contains a minimum area of twenty (20) hectares, except in special cases where it can be shown to Council's satisfaction that a lot size smaller than twenty (20) hectares would not undermine the Rural Resource zone objectives. But in any case, lots less than eight (8) hectares shall not be supported."
However, there is a recognition that in certain circumstances (such as limited groundwater availability) that further subdivision could be considered.
These points are made on pages 31 and 32 [of the Interim LRS]:
"... issues of groundwater availability and environmental constraints do constitute a reasonable argument for subdivision and that a proper framework for facilitating such subdivision should be provided.
Support of Rural Resource ... zoned lots for further subdivision simply on the basis of citing of these circumstances is generally not considered a suitable framework ...
A suitable framework for facilitating such subdivision is provided through the use of the Special Rural and Rural Community zones. ..."
It is clear to the Tribunal that although the reality of such factors as limited groundwater are recognised as an inhibiting factor to rural production, that the City would prefer that further subdivision occur within a suitable framework, rather than on an ad hoc or piecemeal basis.
Rural Small‑Holdings Policy (1980)
Under cl 8.40 it is recommended:
"Except in special circumstances, the market garden areas of Wanneroo, Spearwood, Wattleup and Rockingham be controlled for subdivision on the basis of the lot sizes on Map 15 (4, 8 and 20 hectares depending on location)."
The subject land falls within an area recommended for a minimum of 20 hectares.
North‑West Corridor Structure Plan (1992)
In addressing the "aims" of the Plan, it advises with respect to rural and non‑urban uses:
"The main aims for planning in the rural and non‑urban areas of Wanneroo are to protect groundwater resources, conserve and protect key agricultural land and basic raw materials from inappropriate development ..."
The key elements of the plan are addressed:
"The structure plan is based on the following elements:
... Whilst soils in the area are generally infertile, the Carabooda locality, east of Wanneroo Road, has developed as a significant market gardening area through irrigation and the use of fertilisers. The continued use of this area for intensive horticulture is recognised in the draft structure plan ..."
Metropolitan Rural Policy (1995)
As explained in the Summary of the document:
"The fundamental premise is that the Rural zone should not be regarded as a resource for continued subdivision but should be viewed in terms of appropriate land uses taking into account a range of public and private objectives."
In the key principles of the policy, it explains:
"2In order to protect metropolitan rural land use for its primary purposes, there should be restrictions on the closer subdivision and fragmentation of rural land, and the ad hoc development and rezoning of rural land for more intensive purposes.
3The need for, and location of, more intensive forms of land use and development in the Rural zone should be identified in local rural strategies prepared by local authorities. ..."
State Planning Policy No 2.5 (2005)
Clause 4.1(a) and cl 4.1(b) of SPP 2.5 explain that a key objective is to protect agricultural land resources wherever possible by discouraging land uses unrelated to agriculture from locating on agricultural land and by minimising the ad hoc fragmentation of rural land.
Clause 5.3.1(iii) states:
"The Commission will only support subdivision for Rural‑Residential and Rural Smallholdings where the land has been appropriately zoned within the town planning scheme ..."
Development Control Policy No 3.4 (2002)
Under cl 3.1.1, DC 3.4 states:
"There is a general presumption against subdivision of rural land unless it is specifically provided for in a town planning scheme, an endorsed local planning strategy or an endorsed local rural strategy."
The Future of East Wanneroo - land use and water management in context of Network City
The principal purpose of the East Wanneroo document is to outline a long‑term framework for managing the land and water resources east of Wanneroo Road. In doing so, the document acknowledges that under the current water allocation and licence system that expansion of both horticulture and agriculture is limited.
With such external factors as the impact of lower rainfall, the horticultural and agricultural industries are more dependent on a limited and declining water supply from the superficial aquifer. In effect, the industry is under threat.
However, Figure 5 of the document does designate a large area in Carabooda as a "possible future horticultural and agricultural precinct". The subject land falls within that precinct.
The prevailing lot size
In the witness statement, dated 6 November 2007, of Mr Jason Bouwhuis, a Senior Planning Officer and qualified town planner with the Department for Planning and Infrastructure, he argues:
a)Nearby lots with an agricultural use thereon have access to a finite water supply. Of the eight lots listed in Tifway Place, Carabooda Road and Karoborup Road, their average size is 4.875 hectares.
b)Nearby lots with no agricultural use thereon, due primarily to restrictions on water supply, have an average lot size of 3.86 hectares. These eight lots, which include the subject land, are located in Tifway Place, Karoborup Road and Greenlees Way.
c)Some of the smaller lots in the surrounding area were created prior to the current planning framework, notably, DPS 2. Accordingly, these smaller lots do not constitute a precedent to support further subdivision.
d)Although the subject land is already smaller than the minimum lot size of 20 hectares prescribed in the RSHP and the Interim LRS, this does not provide justification for an even greater departure from the 20 hectares.
The matter of precedent
In their submissions, the applicants refer to examples of subdivision in Tifway Place (Lots 61 and 62) immediately to the north of, and adjacent to, the subject land and a nearby Emerald Valley subdivision.
However, in his witness statement at par 69, Mr Bouwhuis points out that Lot 61 and Lot 62 Tifway Place are in keeping with the predominant lot size in the locality and that the Emerald Valley subdivision is within a "special rural" zone.
On the other hand, in the Planning Officer's (J Wary) report on this matter, dated 17 August 2007, it is pointed out at par 23 that:
"The Commission has been consistent in its refusal of subdivision applications within 'The Future of East Wanneroo' area which have not complied with Commission policies ..."
The matter of precedent is often raised by both parties in applications for review, with the respondent, usually arguing that an approval would be an undesirable outcome by putting planning policy at risk.
However, as explained in Aspen Pty Ltd v State Planning Commission (Unreported; Appeal No 13 of 1988, 21 October 1988) (Aspen), precedent is not to be treated as a "stand alone" argument and is but one factor to be taken into account in reaching a decision.
The approach adopted in Aspen will be continued in this review.
The matter of hardship
As outlined in [15(e)] above, the applicants seek an approval to their subdivision based largely on compassionate or hardship grounds.
The powers of the Tribunal in this regard are covered under s 241(3) of the PD Act which states:
"In determining an application for the review of the determination of, or conditions imposed in respect of, an application for approval to subdivide a lot into not more than [three] lots, the State Administrative Tribunal may have regard to claims of hardship raised by the applicant and proved to the satisfaction of the State Administrative Tribunal, if the State Administrative Tribunal is of the opinion that such regard will not affect the application of sound planning principles."
The case advanced by the respondent is that an approval in this matter would affect the application of sound planning principles as enunciated through the relevant statutory and policy provisions.
Conclusions
The application for review was lodged against a decision of the WAPC to refuse the subdivision of a single lot into two equal sized lots of 2.008 hectares in the "rural resource" zone in Tifway Place, Carabooda.
The Tribunal examined the respective positions of the parties, the relevant legislative and policy provisions at State and local level, the prevailing lot size in the locality and matters of precedent and hardship.
The position of the applicants was that as joint tenants of the subject land, it was not possible for each party to access their equity in the property without the other party acting as guarantor. Also, that funds were particularly needed for the medical expenses of Mrs Hope, now and into the future.
The applicants also cited instances of where subdivision had taken place nearby.
The position of the respondent was that the proposed subdivision was contrary to the relevant Scheme provisions and the objectives of a range of policies at both State and local level. Also, that the proposal, if approved, would create an undesirable precedent by encouraging nearby owners of similar sized or larger lots to seek subdivision.
The first point that needs to be made is that in 1991, the City of Wanneroo approved two homes on the single Lot 11, with one house being occupied by Mr Williams and the other by Mr Hope. As explained by both applicants at the hearing, it is their long‑term intention to remain on the subject land, but it was this earlier approval by the City, and indications given to them by the real estate agent at the time of purchase of the property, that has encouraged them to now seek subdivision.
In examining this matter, it is very much part of the respondent's case that there are a succession of planning documents, stretching back to 1980, that support the decision to refuse the proposal, and that an approval for what is essentially a rural‑residential subdivision would be contrary to the objectives of the "rural resource" zone. Those objectives earmark the zone for essentially agricultural and horticultural uses.
In the view of the Tribunal, the position taken by the respondent is justifiable but, when the applicants applied to the Department of Water for a licence to draw 54 800 kilolitres of water from the Superficial aquifer in the Wanneroo Groundwater Area for irrigation of 3.5 hectares of vegetables and 0.4 hectares of lawns and gardens, and for household purposes, they were refused by letter dated 4 June 2007.
The letter advised:
"After careful consideration of all the available information, I am advising that the Commission proposes to refuse your application because abstraction from the superficial aquifer within the Carabooda sub‑area of the Groundwater Area has reached the sustainable limit."
The overall effect of this advice is that, at the present time, a landowner in Tifway Place, Carabooda, within the "rural resource" zone is unable to pursue the agricultural and horticultural objectives of the zone.
This problem has been recognised in the recent East Wanneroo document, but a substantial area in Carabooda, including the subject land, has been set aside as a "possible future horticultural and agricultural precinct".
Just how this precinct is expected to flourish within a context of limited water availability is not immediately clear to this Tribunal, but an examination of Fig 5 (Land Use Concept) in the East Wanneroo document only indicates two principal areas where horticultural and agricultural uses are specifically designated. By far the larger is at Carabooda (the other at Nowergup) and the Tribunal is not inclined to jeopardise the intent of these plans at this point in time.
It is also the case that a series of planning documents specified in this review have never anticipated the ad hoc fragmentation of rural land, but rather have attempted to restrict lot sizes in market garden areas to 4, 8 or 20 hectares, depending on location.
In the immediate locality containing the subject land, the average lot size is 4.875 hectares, whilst those lots without an agricultural pursuit, including the subject land, have an average lot size of 3.867 hectares.
However, in the wider Carabooda locality to the east of Wanneroo Road, as shown in attachment E to the respondent's Section 24 Bundle, those lots over 4 hectares tend to be in the order of 8 to 10 hectares, or greater.
On the matter of precedent, the examples referred to by the applicants are immediately north of the subject land in Tifway Place (Lot 61 and Lot 62) and were created as 4 hectares and 3.8 hectares. The example quoted in the so‑called Emerald Valley subdivision falls within a "special rural" zone and not the "rural resource" zone, and in that sense is not relevant to the case under review.
In any event, each case needs to be treated on its merits and the circumstances relating to another similar proposal cannot necessarily be transferred to the case under review.
What the Tribunal would acknowledge though, is that an approval in this case, which is essentially to create two 2 hectare lots in the "rural resource" zone, could encourage others with 4 hectare lots or larger to seek subdivision.
On the important question of hardship, the Tribunal must work within the constraints provided by the legislation and may have regard to these claims providing such regard will not affect the application of sound planning principles.
In this case, it is the view of the Tribunal that the important planning principle of establishing long‑term planning policies to guide subsequent planning decisions in a rural/resource area essentially set aside for agricultural/horticultural use would be put at risk if an approval was given to subdivide the subject land. This is particularly so in this case where there are a succession of policies stretching back over the years, and where the statutory document (DPS 2) seeks to protect the "rural resource" zone from subdivision.
Orders
For the foregoing reasons, the orders of the Tribunal are as follows:
1.The application of review is dismissed.
I certify that this and the preceding [71] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR L GRAHAM, SENIOR SESSIONAL MEMBER
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