WILLIAMSON and WESTERN AUSTRALIAN PLANNING COMMISSION
[2009] WASAT 178
•18 SEPTEMBER 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: WILLIAMSON and WESTERN AUSTRALIAN PLANNING COMMISSION [2009] WASAT 178
MEMBER: MS M CONNOR (MEMBER)
HEARD: 24 JUNE 2009; FURTHER EVIDENCE FILED 26 JUNE 2009
DELIVERED : 18 SEPTEMBER 2009
FILE NO/S: DR 135 of 2009
BETWEEN: ROBERT JAMES WILLIAMSON
LYNETTE WILLIAMSON
ApplicantsAND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Town planning - Subdivision - General Rural zone - 'Locality' - Impact on rural character and amenity of locality - Whether subdivision consistent with prevailing lot sizes in the locality - Whether subdivision would affect structure planning for the locality - Adverse planning precedent
Legislation:
City of Wanneroo District Planning Scheme No 2, cl 3.16.1, cl 8.11.3
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 25, s 241, s 251(1)
Town Planning and Development Act 1928 (WA), s 5AA
Result:
The application for review is dismissed
The decision of the respondent is affirmed
Category: B
Representation:
Counsel:
Applicants: Mr R Sklarski (Acting as Agent)
Respondent: Mr J Bouwhuis (Acting as Agent)
Solicitors:
Applicants: RPS Koltasz Smith
Respondent: Western Australian Planning Commission
Case(s) referred to in decision(s):
Clive Elliot Jennings and Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433
Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117
Ridgecity Holdings Pty Ltd and City of Albany [2006] WASAT 187
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Mr and Mrs Williamson applied to the State Administrative Tribunal for review of the decision of the Western Australian Planning Commission refusing approval to subdivide Lot 28 Hawkins Road, Jandabup into two freehold lots of 1.72 hectares and 2.4 hectares in area.
In determining whether the proposed subdivision was acceptable, the following four principal issues required consideration:
1)Whether the proposed subdivision would have an adverse effect on the rural character and amenity of the locality.
2)Whether the proposed subdivision was consistent with prevailing lot sizes in the locality.
3)Whether the proposed subdivision would adversely affect structure planning for the locality.
4)Whether the proposed subdivision would set an undesirable precedent and is consistent with orderly and proper planning.
In considering the substantive merits of this particular case in light of the objectives of the planning framework and in the context of the surrounding locality, the Tribunal held that the proposal did not warrant approval. The Tribunal determined that there was no cogent and adequate reason, in the circumstance of this case, to support a departure from the current planning framework. The proposed subdivision represented ad hoc subdivision of rural land which would be contrary to the orderly and proper planning of the area and would not accord with the sound planning principles that have been formulated to provide a context for decision-making for the subdivision of rural land.
Introduction
Mr and Mrs Williamson (applicants) made an application to the Western Australian Planning Commission (respondent or WAPC), on 26 September 2008, for approval to subdivide Lot 28 Hawkins Road, Jandabup (subject land) to create two freehold lots of 1.72 hectares and 2.4 hectares in area.
The respondent refused the application on 11 March 2009 for the following reasons:
1.The land is zoned 'Rural' in the Metropolitan Region Scheme. Subdivision in the manner proposed is inconsistent with the intent of its zoning and is premature of an amendment to the Metropolitan Region Scheme.
2.The land is zoned 'General Rural' in the City of Wanneroo's District Planning Scheme No 2. Subdivision in the manner proposed would be inconsistent with the Policy Provision 1 of the City of Wanneroo Subdivision of Rural Land Policy whereby the Council will only support subdivision where the minimum lot size is 4ha on land south of Neaves Road zoned General Rural.
3.The land is located within the study area of The future of East Wanneroo: Land use in water management in the context of Network City, August 2007 which is to guide the future planning of the East Wanneroo area. The proposal is premature to the strategic planning as recommended in the document, particularly with respect to Metropolitan Region Scheme amendments, District Structure Planning and Local Structure Planning. If approved, the application would result in the fragmentation of land which would prejudice the co-ordinated planning of East Wanneroo area.
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 Variation No 2, by reason that the subject land has not been identified for rural residential development in a town planning scheme, an endorsed local planning strategy or an endorsed local rural strategy and it has not been demonstrated that the site is suitable for closer subdivision.
5.Approval of the subdivision would create an undesirable precedent for the further subdivision of other lots of a similar size in the 'General Rural' zone of this locality. The proposal if approved would compromise the proper and orderly planning for the area to its detriment.
The applicants, on 8 April 2009, made application under s 251(1) of the Planning and Development Act 2005 (WA) (PD Act) to have the decision reviewed.
Subject land
The subject land is more particularly described as Lot 28 on Diagram 34827 comprised in Certificate of Title Volume 1772 Folio 185 and is 4.13 hectares in area.
Lot 28 is rectangular in shape with a 119.09 metre frontage to Hawkins Road and a depth of 339 metres. Improvements on the land include a dwelling which is located in the south-western corner of the subject land, set back approximately 12 metres from Hawkins Road and a shed located approximately 100 metres from Hawkins Road. A clump of trees surround the existing dwelling, with the remainder of the subject land comprising sparse vegetation.
Damian Road terminates as a cul de sac at the south-eastern corner of the subject land. This road provides vehicular access to the adjoining lot (Lot 35) east of the subject land but does not provide vehicular access into the subject land.
The proposal
The proposal entails the subdivision of the existing lot to create two freehold lots in a battleaxe configuration (refer to Attachment 1). Proposed Lot 1 is 1.72 hectares in area and has a 114.7 metre frontage to Hawkins Road. Proposed Lot 2 is 2.4 hectares in area with vehicular access provided to Hawkins Road via a 6 metre wide access leg. It is proposed to create a reciprocal access easement over the access leg to permit access to the battleaxe leg from proposed Lot 1.
All existing buildings and structures are to be retained within the boundaries of proposed Lot 1. According to the applicants, the proposed lots are intended for equestrian use.
Planning Framework
The subject land is zoned 'Rural' in the Metropolitan Region Scheme (MRS) and 'General Rural' under the City of Wanneroo District Planning Scheme No 2 (DPS 2 or Scheme), as are surrounding properties. Nothing in either the MRS or DPS 2 prohibits the subdivision of the subject land. DPS 2 does not make any specific provision for rural subdivision or recommend a minimum lot size for the 'General Rural' zone. The objectives of the 'General Rural' zone, at cl 3.16.1, are to:
(a)accommodate agricultural, horticultural and equestrian activities;
(b)maintain and enhance the rural character and amenity of the areas designated for rural use and to protect their ground water and environmental values.
The respondent and the City of Wanneroo (City) have prepared a number of planning instruments that are relevant to the question of approval of the proposed subdivision. These instruments, taken from the respondent's documents (and including those already mentioned), are as follows:
i)MRS and DPS 2;
ii)Statement of Planning Policy No 1: State Planning Framework (SPP 1) - This policy unites existing State and regional policies, strategies and guidelines within a central framework to provide a context for decision‑making on land use, subdivision and development in Western Australia. It informs decision‑makers in the planning process on those aspects of State level planning policy which are to be taken into consideration, and given effect to, in order to ensure integrated decision-making across all spheres of planning. The plans, policies and strategies that form the State Planning Framework are listed in Part B of SPP 1. The following policies, strategies and structure plans listed in SPP 1 are relevant in the consideration and determination of this matter:
•Statement of Planning Policy No 2.5 - Agriculture and Rural Land Use Planning (2002) (SPP 2.5) - This policy applies to all rural land in Western Australia. The implementation of the four key objectives embodied in SPP 2.5 is envisaged through the preparation of planning schemes, local planning strategies and policies. This policy, together with Development Control Policy DC 3.4 - Subdivision of Rural Land (DC 3.4), forms the basis for determining applications for the subdivision of rural land.
•DC 3.4 - Subdivision of Rural Land - (DC 3.4) sets out the principles that are to be used by the respondent in its determination of applications for the subdivision of rural land. This policy guides the subdivision of rural land to achieve the four key objectives of SPP 2.5. The policy advocates that the subdivision of rural and agricultural land for closer settlement and more intensive agricultural uses should be properly planned through the preparation of regional and local planning strategies and provided for in local planning schemes prior to subdivision (cl 3.1).
•Metropolitan Rural Policy 1995 (MRP) - which is to be read in conjunction with SPP 2.5 and DC 3.4, provides a framework for the future planning of Perth's rural areas and identifies the need for clear policy direction, recognising the importance of protecting rural character and amenity and safeguarding important resources from incompatible subdivision and development. The MRP seeks to protect productive agricultural land and highlights the importance of local rural strategies and town planning schemes.
•Rural Small Holdings Policy (1980) - the general recommendation for the subdivision of rural land supports smaller lots of a minimum of 4 hectares, generally adjacent to the 'Urban' zone, with lot sizes increasing as distance from the 'Urban' zone increase. More specifically, the policy recommends a four (4) hectare minimum in this locality.
•North-West Corridor Structure Plan (1992) - the overall objective of the North-West Corridor Structure Plan is to accommodate part of the long term growth of the Perth metropolitan region in the north-west corridor. The subject land is located in a 'Landscape Protection' zone, the purpose of which is to ensure the natural character of the area is conserved and enhanced through sensitive subdivision and development which recognises existing landscape systems and natural features. It is noted that this plan is currently under review.
iii)City of Wanneroo Interim Local Rural Strategy (2000) (Interim LRS) - this policy has been adopted by the City in accordance with cl 8.11.3 of DPS 2 but has not been endorsed by the respondent. This strategy seeks to protect the agricultural resources in East Wanneroo but acknowledges that there is a need to adopt a framework that deals with issues associated with ground water restrictions and environmental constraints.
iv)City of Wanneroo Policy - Subdivision of Rural Zoned Land - cl 1 of the policy provides that the City shall only support subdivision of rural land where 'each lot yield by the proposed subdivision contains a minimum of 4 hectares'.
v)The future of East Wanneroo - Land use and water management in the context of Network City (EWLUMS) - refer to [15].
In this review, the Tribunal has had regard to those instruments, strategies and policies. In particular, the Tribunal notes that SPP 1 and SPP 2.5 are approved statement of planning policy prepared under s 5AA of the Town Planning and Development Act 1928 (WA) and continue in force as State planning policies under the PD Act: s 25. Under s 241 of the PD Act, the Tribunal is required to have due regard to any State planning policy which may affect the subject matter of an application for review.
Both State and local government policies have been focused on controlling and limiting the development and subdivision of rural land and promoting the retention of rural land in East Wanneroo for agricultural and horticultural purposes. This approach has been premised on the assumption that adequate ground water resources are available in the East Wanneroo area to sustain productive agriculture. However, it has been acknowledged that declining water table levels and availability of ground water are major issues and limiting factors affecting the planning of the East Wanneroo area. The conflict between the established planning framework and the suitability of the land to sustain productive agriculture led to the release of the East Wanneroo ‑ Land Use and Water Management Strategy for public comment, resulting in the development of a land use concept contained in the document entitled 'The Future of East Wanneroo - Land Use and Water Management in the Context of Network City' (EWLUMS). This strategic plan proposes major land use changes in the East Wanneroo area that are intended to be implemented through the statutory planning framework. The land use concept plan (refer to Figure 5 in EWLUMS) designates the subject land and surrounding land as 'Rural' with an annotation on the plan indicating that the future zoning of the rural areas in this location are subject to future planning and the outcomes of the East Wanneroo Road Network Study and Gnangara Sustainability Strategy. According to the respondent, it is anticipated that these studies will be completed by November 2009 and that a structure plan will be ready for adoption in December 2009, which will guide the rezoning of land in the East Wanneroo locality from 'Rural' to 'Urban Deferred' in the MRS.
It is with this background in mind that the Tribunal considers the issues as identified by the parties.
Issues
Whether the proposed subdivision is acceptable having regard to the following four principal issues:
1)Whether the proposed subdivision will have an adverse effect on the rural character and amenity of the locality.
2)Whether the proposed subdivision is consistent with prevailing lot sizes in the locality.
3)Whether the proposed subdivision will adversely affect structure planning for the locality.
4)Whether the proposed subdivision will set an undesirable precedent and is consistent with orderly and proper planning.
The Tribunal will address each of these issues in turn. However, in order to come to any findings on these issues it is necessary to determine the 'locality'.
The respondent identified the 'locality' as the land zoned 'General Rural' situated east of Jandabup Lake and south of Wirrega Road, bordered to the south by land zoned 'General Resource' and to the east and north by land reserved for State Forest (refer to Attachment 2). The reason for the respondent defining the 'locality' as such, related to the lot size characteristics within that area, having a definitive lot size pattern of 4 hectares.
The applicants identified Jandabup Lake as the main geographical feature in the area and defined the 'locality' central to this feature, that being all the lots zoned 'General Rural' surrounding Jandabup Lake, and extending to include the land zoned 'General Rural' east Hawkins Road bounded by the land shown as reserve for 'State Forests'.
The Tribunal, in Ridgecity Holdings Pty Ltd and City of Albany [2006] WASAT 187, considered the concept of locality and observed at [42] as follows:
The concept of the locality in town planning is necessarily flexible. However, the determination of the boundaries of the locality in any given case is generally concerned with town planning impacts. The locality of a site is the topographic area which relevantly affects or is affected by a proposed development. The characterisation of the locality will depend on the impact in question and circumstances of the case.
The Tribunal does not agree with either of the defined areas identified by the parties. The Tribunal considers that the boundaries of the immediate 'locality' in this instance, should be limited to those lots south of Wirrega Road, east of Hawkins Road and bordered to the south by land zoned 'General Resource' and to the east by land reserved for 'State Forests'. The discrete area identified by the Tribunal excludes those lots that interface with Jandabup Lake as it is considered that the constraints associated with the wetland area do not have the same relevance to those lots east of Hawkins Road.
The following issues will be determined on the 'locality' as defined by the Tribunal.
Whether the proposed subdivision would have an adverse effect on the rural character and amenity of the locality
Objective (b) of DPS 2 is to 'maintain and enhance the rural character and amenity of the areas designated for rural use …'
Mr Sklarski submitted that the proposed subdivision maintained, rather than enhanced, the rural character and amenity of the area for the following reasons:
•the immediate locality is characterised by fragmented rural smallholding lots with lot frontages and lot depth dimensions varying considerably;
•the lot configuration proposed is not incongruous with the surrounding subdivision pattern and does not diminish the landscape values of the locality;
•the rear battleaxe lot is not readily visible from the street and the aesthetic impact of the battleaxe leg within the broader context of the streetscape is not conspicuous; and
•the proposed lots are capable of being used for rural pursuits, such as equestrian purposes.
The respondent contended that further fragmentation of the land is inconsistent with maintaining and enhancing the rural character and amenity of the locality as the additional built form that is capable of approval does not maintain the open landscape character of the locality.
The locality is characterised by lots that are 4 hectares in area which produces a spatial pattern that is consistent with the objectives of the planning framework. The applicants' argument on lot sizes is not supported as there is a consistency of lot sizes in the locality as defined by the Tribunal. The Tribunal considers that the intensification of the settlement pattern will undoubtedly diminish the rural character and amenity of the locality as the additional built form will impinge on the open landscape character and result in reduced areas of land capable of use for rural pursuits.
Whether the proposed subdivision is consistent with prevailing lot sizes in the locality
The extent of the 'locality' is important in relation to this issue as there is considerable variation in lot sizes in the East Wanneroo area generally. Within the 'locality' as identified by the applicants, the lots sizes range from 1.2 hectares to 4.0896 hectares and, as such, lots of the size proposed by the subdivision would not be uncharacteristic in this context.
However, as the Tribunal found above, 'locality' in this case is not as broad as that identified by the applicants. During the hearing, the applicants conceded that the prevailing lot size within the 'locality' as defined by the respondent is 4 hectares. The inference that can be drawn from this concession is that the lots created by the proposed subdivision would not be consistent with the prevailing lots size in that locality.
Whether the proposed subdivision would adversely effect structure planning for the locality
The respondent contended that the proposed subdivision is premature to the outcomes of the formulation of a structure plan to guide the MRS rezoning and therefore, is inconsistent with EWLUMS. Mr Bouwhuis submitted that the creation of two lots in a battleaxe configuration within a locality subject to preliminary structure planning would further constrain the ability of the locality to be comprehensively planned. He considered that further fragmentation of land would undermine the coordination of services and infrastructure and reduce the land use options available in the immediate locality.
The applicants argued that the proposed subdivision would not prejudice the respondent's ability to control planning outcomes in the East Wanneroo area. Mr Sklarski submitted that the absence of detailed structure planning did not render the subdivision as premature as the proposed subdivision is consistent with the land use designation in EWLUMS, therefore broader level strategic planning was not required for this area. He considered that subdivision of the land in the proposed manner would not jeopardise the orderly future planning of the locality as contemplated by EWLUMS as the proposal did not envisage the creation of any additional roads or other features that would further constrain the development of a comprehensive structure plan.
Mr Sklarski is correct in saying that the proposed land use, that being equestrian use, is consistent with the 'Rural' designation of the land in EWLUMS. However, he is wrong in inferring that broader level strategic planning is not required for this area, as EWLUMS clearly indicates that further studies are required to determine the future land use options for this area. If this locality is eventually considered suitable for urban use, further fragmentation of landholding will undoubtedly pose additional constrains and prejudice the planning and coordination of services and infrastructure of this area. However, if the land is to remain as rural, further subdivision of the land is not consistent with principles embodied in the State and local planning instruments, which seek to safeguard against further fragmentation of rural land unless specifically planned for through the use of appropriate planning mechanisms to achieve coordinated development. The question in this instance is whether the substantive merits of this particular case support a departure from the current planning framework. The findings in relation to the previous considerations do not provide any justification to suggest that the principles that find expression in the planning framework should be departed from.
Whether the proposed subdivision would set an undesirable precedent and is consistent with orderly and proper planning
Mr Sklarski asserted that the proposed subdivision would not set an undesirable precedent as there are numerous allotments within the locality which are of a similar size to that proposed, it is consistent with DPS 2 and does not impact on EWLUMS.
The 'locality', as identified by the Tribunal, contains only two lots of a similar size to that proposed; the remainder of the lots are in excess of 4 hectares.
The circumstances in which precedent is a relevant consideration in a planning assessment has been detailed in Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117 at [74]. In this case, each of the criteria is met. The proposed subdivision, for the reasons expressed above, is objectionable and furthermore, there is more than a mere chance or possibility that there may be later undistinguishable applications, because there are a considerable number of lots within the locality that are 4 hectares in area and zoned the same as the subject land.
Therefore, adverse planning precedent is a relevant consideration and, as such, in the circumstances of this case, the consideration of adverse planning precedent also warrants refusal of the application.
Conclusion
In considering the substantive merits of this particular case in light of the objectives of the planning framework and in the context of the surrounding locality, the Tribunal does not consider the proposal warrants approval.
Barker J held in Clive Elliot Jennings and Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433 at [24], while the policy guides the exercise of planning discretion, it does not replace the discretion in the sense that it is to be inflexibly applied. His Honour said that:
... the relevant consideration in many applications will be why the 'policy' should not be applied; why the planning principles that find expression in the 'policy' are not relevant [to] the particular application.
The Tribunal, in considering the four principal issues identified by the parties, finds that there is no cogent and adequate reason, in the circumstance of this case, to support a departure from the current planning framework. The proposed subdivision represents ad hoc subdivision of rural land which is contrary to the orderly and proper planning of the area and does not accord with the sound planning principles that have been formulated to provide a context for decision-making for the subdivision of rural land.
Orders
For the above reasons, the Tribunal makes the following orders:
1.The application is dismissed.
2.The decision of the respondent is affirmed.
I certify that this and the preceding [40] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS M CONNOR, MEMBER
Attachment 1
Attachment 2
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