Wilson v Western Australian Planning Commission - [2007] WASC 39

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: WILSON & ANOR -v- WESTERN AUSTRALIAN PLANNING COMMISSION [2007] WASC 39

CORAM: LE MIERE J

HEARD: 28 JULY 2006

DELIVERED : 23 FEBRUARY 2007

FILE NO/S: SJA 1050 of 2004

BETWEEN: GARY WILLIAM WILSON
DEBORAH JANE WILSON
Appellants
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

ON APPEAL FROM:
Jurisdiction              :  TOWN PLANNING APPEAL TRIBUNAL OF WESTERN AUSTRALIA
Coram  :MR J G JORDAN
Citation  :[2004] WATPAT 86

Catchwords:

Administrative law - Town planning - Appeal from WA Town Planning Appeal Tribunal - Whether Tribunal erred in law - Whether Tribunal fettered its discretion - Whether Tribunal gave proper reasons

Legislation:

State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA)
State Administrative Tribunal Act 2004 (WA), s 167
Town Planning and Development Act 1928 (WA), s 20, s 61

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellants: Dr J T Schoombee & Mr T Houweling
Respondent: Mr C S Bydder

Solicitors:

Appellants: Cornerstone Legal
Respondent: State Solicitor's Office

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

Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

LE MIERE J: The appellants are the registered proprietors of Lot 835 Rowe Road, Serpentine. Lot 835 has an area of 30.9 hectares, is located approximately 4.5 kilometres west of the Serpentine town centre and 44 kilometres south‑east of the Perth central area. The land is zoned Rural under the Metropolitan Region Scheme ("MRS") and the Shire of Serpentine‑Jarrahdale Town Planning Scheme No 2 ("TPS2"). The appellants applied to the respondent to approve subdivision of the land into three lots, each of 10.3 hectares with equal frontage to Rowe Road.
The respondent refused the application for the following reasons:
"1.The land is identified as Rural in the [MRS] and [TPS2] where the ad hoc subdivision of land that will adversely impact on the rural character and amenity is not supported.
2.Subdivision of this land would be contrary to the settlement strategy for the Shire of Serpentine‑Jarrahdale which seeks to protect the rural character of the area and use of land for productive agricultural activity within the area designated as 'Rural Policy Area'.
3.There is no nexus between the proposed lot size and the vector of subdivision and development in the locality.
4.A capability of the land to accommodate closer subdivision and development has not been demonstrated.
5.Approval to the subdivision would set an undesirable precedent for the further subdivision of surrounding lots."
The appellants appealed to the Town Planning Tribunal of Western Australia against the respondent's refusal to approve subdivision. The Tribunal dismissed the appeal. The appellants now appeal to this Court from the decision of the Tribunal.

The legislative framework

The application for subdivision and the appeal to the Tribunal were made under the Town Planning and Development Act 1928 (WA) ("the Act"). The appeal to this Court was made under the Act and instituted on 28 May 2004.
On 1 January 2005 the State Administrative Tribunal Act 2004 (WA) ("the SAT Act") and relevant provisions of the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA) ("the SAT Conferral Act") came into effect. The SAT Conferral Act repealed some, and amended other, provisions of the Act. It is common ground that pursuant to s 167(4)(d) and (7) to (9) of the SAT Act, this appeal is to be decided on the state of the law as it existed prior to 1 January 2005.

Proceedings before the Tribunal

Unfortunately, some of the tapes recording the proceedings before the Tribunal have been lost and only a partial transcript of the proceedings is available. Each of the witnesses gave evidence by way of a witness statement or report that is before the Court. The transcript is supplemented by notes from the hearing made by the senior member constituting the Tribunal. The record of the proceedings before the Tribunal also includes the respondents' outline of submissions to the Tribunal and the "appellant's main points in closing".

This appeal

The appellants appeal to this Court against the Tribunal's decision. By virtue of s 67 of the Act, at the relevant time a person may only appeal against a direction, determination or order of the Tribunal on a question of law.

The planning context

Nothing in either the MRS or TPS2 prohibits the subdivision of lot 853 or land zoned Rural. However, the respondent and the Shire have prepared a number of planning documents that are relevant to the appellants' application for subdivision approval.
Section 5AA of the Act provided at the relevant time that the respondent may, with the approval of the Minister, prepare statements of planning policy. Statement of Planning Policy No 11: Agricultural and Rural Land Use Planning ("SPP11") is a statement of planning policy made by the Commission under s 5AA of the Act. It was referred to by the Tribunal as "SPP2.5". Section 5AA(2) provides, amongst other things, that a statement of planning policy shall be directed primarily towards broad general planning. SPP11 provides that it applies to the planning of rural and agricultural land in Western Australia. Section 2 of SPP11 provides that since 1989, "land use planning for rural and rural‑residential development has been guided by the [Commission's] Policy No DC3.4 Rural Land Use Planning (May 1992) and its predecessors" and further provides that the aim of Policy No DC3.4 was to establish a framework that sets out State and local government responsibilities for ensuring orderly and proper planning, and development of rural land. SPP11 recites that the State Government adopted the following position statement in 1994 recognising the need to identify a plan for sustainable development of agricultural land:
"The Western Australian Government considers that productive agricultural land is a finite national and State resource that must be conserved and managed for the longer term.
As a general objective, the exercise of planning powers should be used to protect such land from those developments, activities or influences that lead to its alienation or diminished productivity, while always accepting the need for land for expanding urban areas and other uses of State significance."
SPP11 s 3 provides that it should be read in conjunction with Policy No DC3.4 Subdivision of Rural Land (2002) and the Metropolitan Rural Policy (1995). SPP11 further states that the Commission will use SPP11 and Policy No DC3.4 as the basis for determining applications for the subdivision of rural land. SPP11 s 4 sets out the four key objectives of the policy. They include:
"1.Protect agricultural land resources wherever possible by –
…
b.minimising the ad hoc fragmentation of rural land.
…"
Subsection 5.1(i) of SPP11 provides:
"Local planning strategies should –
…
(e)develop subdivision and development criteria for the identified agricultural, tourist and closer settlement areas;
…"
Policy No DC3.4 contains background notes including the following:
"2.This policy sets out the specific principles which will be used by the Western Australian Planning Commission (the Commission) in its determination of applications for the subdivision of rural land …
3.The policy complies with the objectives of [SPP11] which establishes the State's objectives and policy framework and guidelines for the preparation of regional and local planning strategies. The Statement of Planning Policy also sets out the role for town planning schemes for rural land use planning in Western Australia."
Subsection 1.1 of Policy No DC3.4 provides that the policy is primarily concerned with those matters contained in Pt III of the Act, which deals with the subdivision of rural land and sets out the general principles of the Commission in its operation of that part. Section 2 provides that the policy provides the framework for the subdivision of rural land to achieve the four key objectives of SPP11. The objectives include 1(b), referred to already.
Subsection 3.1.1 provides:
"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 endorsement referred to in that section is endorsement by the Commission. Subsection 3.2 provides that notwithstanding s 3.1.1 the Commission may approve subdivision of rural land for the specific purposes identified in the subsection.
Subsection 61(1) of the Act at the relevant time provided that in determining any application in accordance with Pt V, which includes an appeal from the Commission against subdivision refusal, the Tribunal is to have due regard to relevant planning considerations including any approved statement of planning policy prepared under s 5AA.
In 1994 the Shire published the Shire of Serpentine‑Jarrahdale Rural Strategy ("Rural Strategy"). The Rural Strategy states that it is a planning document that allows the Shire Council to take stock of its rural areas and plan for land use, management and development in the Shire.
The Rural Strategy was referred to by Barker J in Ingram (supra) at [19]:
"The Rural Strategy, which is not part of TPS 2, gives 'body' to the skeletal statement of purpose and intent in TPS 2. It was prepared in accordance with Policy DC 3.4 and with the agreement of the Commission. It is particularly relevant to subdivision proposals in the Shire. The evidence before the Appeal Tribunal suggests that the Commission and the Shire have consistently applied the Rural Strategy in the assessment and determination of planning proposals concerning the rural land resources of the Shire."
It was common ground between the parties to this appeal that the Rural Strategy was a relevant planning document and that the Tribunal should have regard to the Rural Strategy in determining an application for subdivision of rural land within the Shire.
Lot 853 is within the Rural Policy Area. The overview of the Rural Policy Area states that the Rural Policy Area maintains the integrity of the Shire's rural and agricultural character and that it essentially maintains the current standards and practice of agricultural use and development. The overview states that the protection of rural lifestyle, of agricultural production, and rural character are very significant, but not necessarily overriding objectives in the use and development of land.
Concerning "lot sizes" in the Rural Policy Area the Rural Strategy states:
"The Rural Policy Area is largely already subdivided at or below that for sustainable agricultural production. Existing farms are often amalgamations of allotments managed as a single farm. However, the subdivision of new lots is not supported below a minimum lot size of 40 hectares. Proposals to subdivide agricultural land will be assessed on a case by case basis and the minimum lot size is not considered a right or entitlement of land ownership. This is not set as a minimum guide or lot size for agriculture. No meaningful minimum lot size for agricultural viability can be set where the range of agricultural and horticultural enterprise is as extreme as it is in the Shire. Rather, it is intended as a dis‑incentive to subdivision for farmlets or residences. On the other hand, it is size that allows some flexibility to subdivision for, and should not restrict, full‑time commercial agricultural pursuits."
Farmlets are "small farms that may be used for commercial production, alternative agriculture, and some intensive agriculture, or hobby pursuits in association with productive rural lifestyles". They may be considered by some buyers as "rural retreats". They are the prescribed land use within the Farmlet Policy Area.
Concerning "management of lots" in the Rural Policy Area the Rural Strategy says:
"Commercial farming is considered the major land use in the Policy Area but viability is low because of the poor productive capacity of the sandy soils and waterlogging of low lying areas …
The council will also adopt pro‑active and co‑operative approaches with landowners in this Policy Area to address catchment management and land degradation problems, so that land is rehabilitated and maintained in good condition."
The policy objectives for the Rural Policy Area include:
"R1.To retain and maintain the productive capacity of land and agricultural enterprise in close proximity to Perth and its markets;
R2.To encourage, provide opportunities for, and control over, a mosaic of productive agricultural land uses;
…
R5.To otherwise prevent the further fragmentation of land through subdivision for farmlet development in the Policy Area."
The subdivision and development guidelines for the Rural Policy Area include:
"A range of lot sizes above 40 hectares is supported. The recommended minimum lot size for new subdivision is 40 hectares."
Another area designated by the Rural Strategy is the Agricultural Protection Policy Area. The overview in relation to that policy area states that "the Policy Area essentially maintains the current standards and practice of agricultural use and development, but provides an extra level of protection for productive agricultural land and the agricultural use to which it is, or may be put. The protection of the capacity of land for agricultural production is the most significant and overriding objective" of the agricultural protection policy area.
In Ingram Barker J observed that a number of the objectives of Policy No DC3.4 reflected the more specific objectives of the Rural Strategy and that the Rural Strategy, through the creation of such policy areas as the agricultural protection policy area, the rural policy area and the farmlet policy area, has given effect to Policy No DC3.4. I respectfully agree. I refer in particular to one of the Policy No DC3.4 policy objectives: protect agricultural land resources wherever possible by minimising the ad hoc fragmentation of rural land, to which I have referred earlier.
In Ingram Barker J said at [43] – [45]:
"Having regard to the current zoning of Lot 396 under the MRS and TPS 2, and the terms of the Shire's Rural Strategy and the other planning documents referred to, which the Appeal Tribunal considered relevant to the determination of the appeal before it, it seems to me that the Appeal Tribunal was bound to consider, as a most relevant factor, whether, in effect, the subdivision of the land proposed by the appellants would result in the maintenance or loss of land having productive capacity for agricultural production.
To put this factor in terms that reflect the Rural Strategy for the Rural Policy Area, the question for the Tribunal was, in essence, whether the proposed subdivision of Lot 396 would result in lot sizes that would not restrict 'full-time commercial agricultural pursuits' or, at least, not restrict the land from being used for or in connection with that purpose. …
If the Tribunal, on the evidence before it, were to form the view that these objectives would be met, so that there would not be a loss of land with productive capacity for agricultural production, then it might approve the proposed subdivision. The principal question in this appeal is whether the Appeal Tribunal adopted this approach."
Barker J concluded at [84] that he was satisfied that in that case the Tribunal failed to consider properly the main factor made relevant by the Rural Strategy, Policy No DC3.4 and Metropolitan Rural Strategy: "that is, whether the subdivision proposal would result in land in the Rural Policy Area which has productive capacity for agricultural production being lost as a resource".
In this case counsel for the appellant submitted that the matters identified by Barker J in Ingram were relevant to the determination by the Tribunal of the appeal before it and the Tribunal was bound to consider, as a most relevant factor, the matters identified by Barker J.

The evidence before the Tribunal

In its reasons for decision the Tribunal summarised the evidence concerning the physical characteristics of lot 835 and the sizes of lots in the vicinity of lot 835.
In relation to land use, the Tribunal referred to the evidence of Mr Wilson, the male appellant, that during the nine years he had owned the land he had grazed cattle as a hobby but had confronted difficulties in doing so.
The Tribunal referred to the evidence of Mr Johnston, a farm management consultant. Mr Johnston was of the view that pastures of annual species, including grasses and some legumes, seen on the subject land and in the immediate vicinity, could be reasonably productive and capable of sustaining a grazing operation with some supplementary feeding as is normal district practice.
Mr Stephens is an environmental and geological consultant. In a written report he concluded that the subject land is unsuitable for horticulture, sheep breeding, a piggery, poultry and perennial horticulture. In his "further notes on land capability July 2000", he said a potential use that warranted further investigation was floriculture or native plants and that additional work would need to be done to match particular species with soil conditions. Other uses mentioned that might warrant further investigation were ostriches and aquaculture of yabbies and black bream. The three new lots might also be used for grazing as either a part time or a hobby operation. Mr Stephens considered that none of those uses were capable of providing a full time livelihood but whether an industry is viable depends very much on the creativity of the landholder rather than the difference between 10 hectares and 30 hectares.
The Tribunal noted that Mr Johnston had reservations about Mr Stephens' conclusion that limited agricultural pursuits such as annual floriculture or restricted agriculture might be possible, particularly on 10 hectare lots as opposed to the existing 30 hectares. It was Mr Johnston's view that the highest capability of the subject land is for grazing and this is maximised by keeping it as a single block. Subdividing the land and creating more building envelopes, gardens, roads, fire breaks etc would further reduce the productive capacity of the land.
Mr Scharf is an officer of the Department of Planning and Infrastructure which services the Commission. At the time of giving evidence he was the Senior Planning Appeals Officer within the Department's Statutory Services Division, Policy and Legislation Directorate. He has town planning qualifications. The Tribunal summarised Mr Scharf's view as being that just because the subject land is not of sufficient size and capability to support viable agricultural use, this does not justify subdivision to smaller, less productive lots.
Mr Dykstra is a professional town planner. Mr Dykstra considered the proposed subdivision to be in keeping with the existing rural character of the area. In his opinion the failure of the Shire to rezone the land to be consistent with existing land use and subdivision pattern does not prohibit the Tribunal from acknowledging the reality that this is a farmlet area where subdivision creating small farms can be considered. Mr Dykstra acknowledged that any expansion of Farmlet Policy Areas under the Shire's Rural Strategy is usually a progressive occurrence but said that given that the subject land is within an area that has a lot size and land use consistent with the Farmlet Policy Area, it could be said the Rural Strategy had been remiss in not including this land within the Farmlet Policy area. Mr Dykstra said that the Shire, in its 2003 Rural Strategy Review, supported the inclusion of lot 835 within the Farmlet Policy Area and observed: "whilst this was ultimately not supported by the Western Australian Planning Commission, a more logical proposal to include the wider area within the Farmlet Policy would have been difficult to reject".

Mr Dykstra said that environmental repair was a rationale for the farmlet policy area of the Rural Strategy and that whilst the subject land was not within a Farmlet Policy Area, farmlet‑type lots and uses surround the subject land and subdivision consistent with the existing lots' size pattern provides an opportunity for rehabilitation and environmental repair by conditions of subdivision. Mr Dykstra said that environment repair and protection of the site can be achieved both through subdivision conditions and development control by the Shire under TPS2.

Comments by Tribunal

In its reasons for decision the Tribunal referred to what counsel for the respondent apparently referred to as the test for subdivision in Ingram. As I have said, in that case, Barker J said that the Tribunal was bound to consider, as a most relevant factor, whether in effect, the subdivision of the land proposed by the appellants would result in the maintenance or loss of land having productive capacity for agricultural protection. His Honour said that if the Tribunal were to form the view that those objectives would be met, so that there would not be a loss of land with productive capacity for agricultural production, then it might approve the proposed subdivision. The Tribunal noted the argument of counsel for the appellant that the existing lot is of marginal productive capacity, but the three proposed lots can be equally or more productive. The Tribunal then made the following finding at [76]:
"On the evidence provided, particularly that of Dr Stephens, it is apparent that the subject land is not a 'valuable' agricultural resource. This is because the western third is Bassendean sand, which has the characteristics of being leached, infertile, non‑wetting and not able to retain water. The eastern two‑thirds of the subject land is subject to seasonal inundation because of the clay in the soil not too far below the surface. The dampness restricts the use that can be made of the land during the wet months. From this evidence, it is concluded that the need to preserve a 'valuable' productive agricultural resource is not a factor that can of itself be determinative of this matter."

Tribunal's conclusion

The Tribunal then went on to set out its conclusion. The Tribunal found that the appellants had used the land for running cattle as a hobby rather than a means of livelihood and that "it could be no more than this". The Tribunal stated that the question remained, however, "that if such an activity is difficult to sustain in the long term on the subject land, does this provide a basis for creating three smaller lots".
The Tribunal then referred to the potential use that could be made of the three proposed lots. The Tribunal said there was evidence of a short list of potential uses but these were presented as nothing higher than possibilities that would require further examination. Cattle grazing was the only use that had been tried. Mr Wilson said that cattle grazing could continue on the proposed lots but the respondent said it was best carried out on the existing lot. The Tribunal stated at [80]:
"From the evidence presented I have concluded that some agricultural [use] might be made of the subject land, but I am not persuaded that this is sufficient basis for the creation of three lots of the size proposed, the productive use of which can only be the subject of speculation given the marginal nature of the soil."
The Tribunal then referred to the Shire's resolution in the 2003 review that the subject land be included within the Farmlet Policy Area. The Tribunal stated at [81]:
" … From the evidence presented, however, I consider there to be planning merit in the comment of Mr Dykstra that it would have been a more appropriate approach to the planning of the locality if all lots similar in size to those of the proposed subdivision were included within the Farmlet area, not just the subject land. To select just one property from amongst all of these appears to have little planning logic."
The Tribunal then referred to "the absence of a vector of subdivision in the locality that would support the proposed subdivision". The Tribunal found that predominately the lot size pattern in the locality was static and had been for some time. The smaller lots near the subject land do not present as a "core" from which there is a subdivision progressing as a vector. The agricultural base, however marginal, is not being eroded by subdivision as the policies in place and TPS2 have been consistently applied over a number of years. The Tribunal stated at [84]:
" … The presumption is against subdivision in the Rural zone and Rural Policy Area and following the recent review this remains the position, notwithstanding the process criticised by the appellants to arrive at that position."
The Tribunal observed that nearby lots similar in size to the lots proposed are zoned rural and are in the Rural Policy Area notwithstanding that they are well below the minimum lot size suggested for that policy area but that the presence of this inconsistency, without something more, does not provide a basis for subdivision. The Tribunal said at [85]:
" … To look only to the smaller lot sizes and not all surrounding lots to establish a rationale for subdivision will lead to a break up of that lot size pattern and this is not considered a desirable planning outcome for a zone in which there is a presumption against subdivision."
For those reasons the Tribunal dismissed the appeal before it.

Grounds of appeal

Having reviewed the Tribunal decision, I will consider the grounds of appeal in the order advanced by the appellant in oral argument.

Appeal ground 6

Appeal ground 6 is that the Tribunal erred in law, improperly fettered its discretion and failed to give proper reasons by finding that there was "a presumption against subdivision" of the land because the land:
a.was zoned "rural" in TPS2;
b.fell within the Rural Policy Area as defined in the Rural Strategy.
At [84] of its reasons the Tribunal said:
"The presumption is against subdivision in the Rural zone and the Rural Policy Area and following the recent review this remains the position, notwithstanding the process criticised by the appellants to arrive at that position."
The appellants submit that while the zoning under the local town planning scheme was a relevant consideration, the Tribunal erred in giving it a presumptive prohibitory effect in relation to subdivision. The appellants submit that the Tribunal erred in holding that the inclusion of the land in the Rural Policy Area created a "presumption against subdivision". The appellants submit that by applying the Rural Strategy in such an inappropriate way, the Tribunal failed to comply with its statutory duty and committed an error of law. The appellants submit, in effect, that the Tribunal's duty was to decide whether the subdivision should be approved and in doing so was required to consider and weigh all matters relevant to that decision. The appellant submits that the Tribunal failed to do so and the Tribunal considered the issue determined before it by the "presumption against subdivision".
The "presumption against subdivision" arises from Policy No DC3.4. Section 3 is titled "General Policy Measures" and s 3.1 is titled "General Presumption Against Subdivision". Subsection 3.1.1 provides, as set out above: "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". Subsection 3.2.1 provides that notwithstanding s 3.1.1, the Commission may approve subdivision of rural land for the specific purposes there set out. None of those specific purposes apply to the present case. The provisions of the Rural Strategy in relation to the Rural Policy Area include the statement that the subdivision of new lots is not supported below a minimum lot size of 40 hectares.
Paragraph 61(1)(a) of the Act provides that in determining any application in accordance with Pt V the Tribunal is to have due regard to relevant planning considerations including any approved statement of planning policy prepared under s 5AA. SPP 11 is an approved statement of planning policy prepared under s 5AA. Section 3 of SPP11 provides that it is to be read in conjunction with Policy No DC3.4 and that the Commission will use SPP11 and Policy No DC3.4 as the basis for determining applications for the subdivision of rural land. Having regard to s 20(1)(a) and s 61(1)(a) of the Act, SPP11 and Policy No DC3.4 the Tribunal was bound to have due regard to the general presumption against subdivision in s 3.1 of Policy No DC3.4. Furthermore, the planning principles and policies concerning the Rural Policy Area in the Rural Strategy were matters the Tribunal was entitled to have regard to as relevant considerations in their decision. The Tribunal did not err in law by finding that a general presumption against subdivision existed.
The mere fact that the Tribunal applied a particular policy in exercising its discretion does not necessarily mean that the discretion thereby miscarried: Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522 per Ipp J at 533. Nevertheless, a person exercising statutory discretionary power must not place fetters upon the factors they can properly consider when exercising it in individual cases. The common law has developed a doctrine under which decision makers may have regard to a relevant policy, but may not treat it as a fixed, determinative rule. Thus, the policy is required to leave scope for consideration of the merits of the individual case.
The no‑fettering principle operates in two ways. First, it invalidates a policy if the policy attempts to exclude the exercise of a discretion, as well as any decision made in reliance on such an unlawful policy. Secondly, it invalidates decisions made by inflexibly applying a policy which, in its own terms, is valid because it leaves scope for consideration of the merits of individual cases: Laws of Australia [2.4.170]. The appellants submitted that the Tribunal infringed the no‑fettering principle in both ways.
Aronson, Dyer and Groves "Judicial Review of Administrative Action" 3rd ed, in discussing the rule that those exercising statutory discretionary power must never place fetters upon the factors they can properly consider when exercising discretion in individual cases, say at 281:
"In other words, 'guidance' is permissible, even desirable, provided it is not too inflexible. The difficulty lies in determining how much flexibility is required …
Most of the cases have stressed that the predetermined 'rule' must never be so inflexible that the decision‑maker refuses to listen to an argument for exemption. In other words, the rule against fettering requires guidance rules either to contain their own waiver rule within them, or to be capable of being put to one side where an individual argues against its application to their case. Carroll v Sydney City Council (1989) 15 NSWLR 541 held that the Council could validly resolve upon a general policy regarding the regulation of amusement parlours, provided that the resolution's own terms made it clear that it was sufficiently flexible to allow individual cases to be considered on their merits. Otherwise, it was said, the resolution would appear to carry the force of a general law, an effect which could not be attributed to resolutions."
In considering the general presumption against subdivision in Policy No DC3.4 it is necessary to consider both its context and text. The introduction in s 1 of Policy No DC3.4 states that the policy "sets out the general principles of the Commission in its operation of [Pt 3 of the Act]". Subsection 1.2 states that in determining subdivision applications the Commission will seek to ensure that the broad objectives contained in s 2 of the policy are met. The general presumption against subdivision is set out in s 3.1. Subsection 3.2 sets out specific purposes for which the Commission may approve subdivision of rural land "notwithstanding s 3.1.1". Section 4 sets out other purposes for which the Commission may approve subdivision of rural land. Section 6 sets out other matters the Commission may consider in considering applications for subdivision of rural land. The section states that the list of matters is a guide and should not be considered exhaustive. Consideration of Policy No DC3.4 as a whole confirms that the general presumption against subdivision does not purport to preclude the decision maker from approving subdivision where the subdivision is not specifically provided for in a Town Planning Scheme, an endorsed local planning strategy or an endorsed local rural strategy or is for a specific purpose set out in s 3.2 or s 4.
Subsection 3.1.1 of Policy No DC3.4 provides that 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. I interpret the section as follows. If the subdivision is specifically provided for in a town planning scheme, an endorsed local planning strategy or an endorsed local rural strategy then the general presumption against subdivision of rural land does not apply. If those "exceptions" do not apply then the general presumption applies. The general presumption means that subdivision of rural land will not be approved unless there are exceptional reasons why approval should be given. Thus, the policy is that the subdivision of rural land will not be approved unless:
1.It is specifically provided for in a town planning scheme, an endorsed local planning strategy or an endorsed local rural strategy;
2.It is for a specific purpose enumerated in s 3.2;
3.It falls within s 4; or
4.There are exceptional reasons for approving subdivision.
The policy itself is therefore valid because it allows the consideration of the merits of individual cases.
The decision of the Tribunal would be invalid if it was made by inflexibly applying the policy within Policy No DC3.4 or the Rural Strategy. The Tribunal would err in law if it treated the policy as excluding any discretion in relation to the individual case of the appellants. A proper, genuine and realistic consideration of the merits of the appellants' application for subdivision approval is required: Falc (supra) per Nicholson J at 527. The Tribunal must not attach such great weight to the policy that it results in the Tribunal failing to apply sound town planning principles to the substantial merits of the appellants' case: Falc per Ipp J at 536.
The appellants submit that the Tribunal by inflexibly applying the policy of not allowing subdivision of rural land failed to comply with its statutory duty. If that is established then I consider that the Tribunal will have committed an error of law which can be set aside on appeal to this Court: Falc per Ipp J at 534. I now turn to the consideration given by the Tribunal to the particular circumstances of the appellants' case.
The appellants did not contend that the proposed subdivision fell within any of the express "exceptions" in s 3.1.1 or the specific purposes specified in s 3.2 or s 4 of Policy No DC3.4 nor that it met the subdivision guidelines for the Rural Policy Area in the Rural Strategy.
In its reasons the Tribunal referred to "the finding in Falc Pty Ltd & Anor v State Planning Commission (1991) 5 WAR 522, that, while zoning must be acknowledged, it is not determinative of the matter" and that:
"[B]oth parties were conscious of the non‑exhaustive list of town planning considerations referred to in Falc, including the orderly development of the land, the maintenance of the character of the area, the aesthetics of the proposed development, environmental risks, the size of the proposed lots in relation to others in the locality and the control over the use of the land".
The Tribunal referred to the arguments put by the appellants why subdivision should be approved in this particular case.
In their main points in closing the appellants submitted that lot 835 cannot be operated as a viable agricultural unit. At [77] the Tribunal adverted to that point but considered that it did not "provide a basis for creating three smaller lots", that is, was not a sufficient reason for approving the proposed subdivision.
In their main points in closing the appellants submitted that subdivision of lot 835 into three blocks of 10.3 hectares each will fit in with the pattern of subdivision in the area. The Tribunal addressed the issues arising from that matter in pars 84 and 85 of its reasons.
The appellants submitted that the subdivided lots will be suitable for agricultural pursuits such as aquaculture, perennial floriculture, tree farming and horse breeding. That matter was addressed by the Tribunal at par 79 and 80 of its reasons. The Tribunal found that some agricultural use could be made of the three proposed lots but the uses put forward in evidence were "presented as nothing higher than possibilities that would require further examination". The Tribunal concluded that some agricultural use might be made of the land but the productive use of them "can only be the subject of speculation given the marginal nature of the soil" and hence that was not a sufficient basis for approving the proposed subdivision.
In their main points in closing the appellants referred to the resolution of the Shire Council on 25 March 2002 that lot 835 be changed from the Rural Policy Area to Farmlet Policy Area. That matter was referred to by the Tribunal at [81] of its reasons and described by the Tribunal as "one element that does differentiate the proposed subdivision from what might otherwise have been an ordinary application". The Tribunal concluded, in effect, that it would have been a more appropriate approach to the planning of the locality if all lots in similar size to those of the proposed subdivision were included within the Farmlet Policy Area but that the Shire had selected just one property from amongst all of these and that decision appeared to have little planning logic. That is, the resolution of the Shire should be given little weight because there was little planning logic in it.
It appears from that brief review of the Tribunal's reasons that the Tribunal did not treat Policy No DC3.4 for the general presumption against subdivision as excluding any discretion in relation to the appellants' individual case. The Tribunal gave specific consideration to arguments of the appellant in favour of subdivision notwithstanding that they were not within the express "exceptions" in s 3.1.1 of Policy No DC3.4 or within the specified exceptions in s 3.2 or s 4. That is, the Tribunal gave consideration to whether or not there were exceptional reasons for not applying the general presumption against subdivision in Policy No DC3.4.
It is apparent from its reasons for decision that the Tribunal gave proper, genuine and realistic consideration to whether there were sufficient reasons for departing from the "presumption against subdivision" policy and concluded that there were not. The Tribunal did not improperly fetter its discretion or fail to give proper reasons by finding that there was a presumption against subdivision because the land was zoned rural in TPS2 and was rural land within the Rural Policy Area. Ground 6 is not made out.

Grounds 1, 2 and 3

Grounds 1, 2 and 3 of the appeal are that:
"1.The Tribunal erred in law in approaching the issue of whether subdivision should be granted asking itself whether agricultural activity on the land, which it found was difficult to sustain, provided a basis for creating three smaller lots.
2.Further to ground 1, the Tribunal erred in law by concluding that while some agricultural use might be made of the land (found by the Tribunal to be the case) that did not provide a sufficient basis for subdivision, as the productive use of the three intended lots could only be the subject of speculation, given the marginal nature of the soil.
3.Further to grounds 1 and 2, the Tribunal:
(a)erred in law in basing its refusal of the application on marginal use that could be made of the land for agriculture after subdivision, when that was already the case at present, prior to subdivision, where the Tribunal did not make a finding (in any event not open on the evidence before it) that subdivision would bring about any material negative change to the existing marginality;
(b)failed to take into account a relevant consideration, make any or any profit finding or give reasons with respect to the uncontroverted fact and circumstance that subdivision would enhance environmental rehabilitation of degraded land."

The appellants dealt with the above three grounds together and submitted that they relate to the failure by the Tribunal to properly exercise its discretion concerning the grant of subdivisional approval with reference to the agricultural capacity of the land and any agricultural activities which could feasibly be pursued on the land, before and after the subdivision.
The appellants submitted that the proper approach to considering agricultural use and potential in the context of a subdivision such as the one in issue in this case was set out by Barker J in Ingram & Anor v Western Australian Planning Commission (supra) at [77] – [78]:
" … there is a common principle that underlies the various expressions of policy that one finds in the various planning documents including the Rural Strategy. That common principle, as suggested earlier in these reasons, is that land within an area such as the Rural Policy Area should not be subdivided if the subdivision would result in land that has a productive capacity for agricultural production being lost as a resource.
Thus, to the extent that a consideration of the rural pursuits proposed to be carried out on land after it has been subdivided assists in determining whether the land will be lost as such a resource, it may be considered relevant. If the evidence shows that the land may well be used more intensively or more productively, or even as intensively and as productively, than it presently is, the view may well be open that the subdivision meets the objectives of the planning documents."
The appellants' case is that the Tribunal failed to properly address or make any proper findings with regard to those matters.
The respondent submitted that the Tribunal dealt with the question, identified in Ingram at [77] – [78] as going to whether the proposed subdivision meets the objectives of the planning documents, of whether "land may well be used more intensively or more productively, or even as intensively and as productively, than it presently is". The respondent submits that the Tribunal referred to the evidence before it on the issue in its reasons at [28] – [43]. The Tribunal then found at [80] that while "some agricultural [use] might be made of the subject land … I am not persuaded that this is sufficient basis for the creation of three lots of the size proposed, the productive use of which can only be the subject of speculation given the marginal nature of the soil".
I accept that the Tribunal addressed the question of whether the land may be used more intensively or more productively, or even as intensively and as productively, after the proposed subdivision than before.
The appellants' case before the Tribunal was that the land would not be lost for any relevant agricultural purposes should subdivision occur because the existing use for cattle grazing could be continued on the proposed subdivided lots but also by means of subdivision more intensive agricultural activities such as floriculture, annual horticulture in part or aquaculture could be carried on over the land in subdivided lots.
At [41] the Tribunal referred to the opinion of Mr Johnston that the highest capability of the subject land is for grazing and this is maximised by keeping it as a single block. The Tribunal referred to the evidence that the subdivided blocks could be used for more intensive agricultural activities. The Tribunal's finding at [80] is that the productive use of the proposed subdivided lots could only be the subject of speculation. That finding is supported by the following evidence:
•The evidence of Mr Wilson in his witness statement and in cross‑examination recorded in the trial member's notes.
•The evidence of Mr Dykstra in cross‑examination recorded in the Tribunal member's notes.
•The evidence of Mr Stephens in examination‑in‑chief and in cross‑examination recorded in the Tribunal member's notes.
•The evidence of Mr Scharf in cross‑examination noted in the Tribunal member's notes.
•The evidence of Mr Johnston in chief and cross‑examination recorded in the Tribunal member's notes.
•The witness statement of Mr Stephens.
•The witness statement of Mr Johnston.
In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271 – 272 and 291 the High Court said that the reasons of an administrative decision maker are meant to inform and not to be scrutinised upon over‑zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. That is the appropriate approach to the reasons for decision of the Tribunal. A court determining an appeal involving a question of law must be wary of reconsidering the merits of the decision in the sense of the findings of fact, the identification of appropriate planning policies and the application of those facts to the policies and principles.
I am satisfied that the Tribunal identified the issue referred to by the appellants by reference to [77] and [78] of the judgment of Barker J in Ingram. The Tribunal specifically referred to the matter at [74] of its reasons. The Tribunal found that the "test" was not satisfied in this case because the productive use of the lots under the proposed subdivision could only be the subject of speculation. That is, according to the Tribunal, the evidence did not show that the land may well be used more intensively or more productively, or even as intensively and as productively, than it presently was being used. Grounds 1, 2 and 3 are not made out.

Ground 4

Ground 4 of the appeal is that:
"The Tribunal erred in law by fettering its discretion and taking into account the irrelevant consideration that the land ought to have been included by the Shire as part of a rural strategy allowing for closer subdivision of all surrounding lots of a similar size but that until that has been done in terms of a formal policy, subdivision should be refused."
The appellants based this ground upon the assertion that the Tribunal accepted the evidence of Mr Dykstra that the land in question and all lots of a similar size in the locality should have been included within the Shire's Farmlet Policy Area. Within the Farmlet Policy Area, the guidelines for subdivision and development are more generous than those applied to the Rural Policy Area. The proposed subdivision would meet the guidelines applying in the Farmlet Policy Area that there should be a 10 hectare minimum lot size where the land generally has a lower capability for agriculture use.
The appellants further submitted that the Tribunal fettered its discretion because it in effect permitted the decisions and actions of others to control the exercise of the discretion invested in the Tribunal – namely the decision of the Shire not to include the subject land or the surrounding area in the Farmlet Policy Area.
This ground of appeal is misconceived. The Tribunal did not accept that the land in question and all lots of similar size in the locality should have been included within the Farmlet Policy Area. The Tribunal agreed with Mr Dykstra's view that it would have been a more appropriate approach to the planning of the locality if all lots similar in size to the subject land were included within the Farmlet Policy Area, rather than merely the subject land because "to select just one property from amongst all of these appears to have little planning logic". The Tribunal did not accept that the land in question and all lots of a similar size in the locality should have been included within the Shire's Farmlet Policy Area. The Tribunal merely stated that if lots were to be included it should not be one lot from amongst all the others.
The respondent submits that the Tribunal did not fetter its discretion. The Tribunal had regard to the terms of the Rural Strategy as actually adopted, which it was bound to do. The Tribunal in effect placed little weight on the Shire's resolution to include only the subject land in the Farmlet Policy Area because selecting just the subject property from amongst all the others appear to have little planning logic. The respondent submits that the Tribunal was entitled to adopt this view and in doing so did not err in law.
I accept the respondent's submissions. Ground 4 is not made out.

Ground 5

Ground 5 is that the Tribunal erred in law:
(a)by failing to have regard to the relevant consideration that the land had indeed been excluded from the Rural Policy Area in the Local Rural Strategy and included in the Farmlet Policy Area in terms of the most recent review undertaken by the Shire and was only removed from the Farmlet Policy Area upon the insistence of the respondent;
(b)by failing to find that there is no basis in law for the respondent to so override the decision of the Shire in relation to the process of formulation and content of the policy for a local rural planning strategy;
(c)by failing to have regard to the relevant consideration that the Shire had supported the subdivision application.
As I have said, the Tribunal had regard to the fact that the Shire had resolved to include the subject land within the Farmlet Policy Area but placed little weight upon the resolution because the decision had little planning logic. The land in question remained within the Rural Policy Area.
The appellants submit that the Shire resolved to include the subject land within the Farmlet Policy Area and that there is no basis in law for the respondent to override the decision of the Shire to include the land within the Farmlet Policy Area.
The respondent submits that it does have a role in the preparation of rural strategies. This is recognised by s 3.1.1 of DC3.4 which refers to endorsed local planning strategies and local rural strategies. The requirement of indorsement is a requirement of indorsement by the respondent. That requirement reflects the primary role of the respondent in determining subdivision applications and the more global approach which the respondent is required to take in dealing with subdivision matters. Further, the respondent submits, and I accept, that the Shire's resolution is not a local planning policy as contemplated by Pt IX of TPS2.
Finally, the respondent submits that the mere fact that the Shire supported the proposed subdivision could provide little assistance to the Tribunal in determining whether the proposed subdivision should be permitted, any more than the mere fact that the respondent opposed the proposed subdivision could. The Tribunal's determination depended upon evidence about, amongst other things, the relevant planning context and the characteristics in use of the subject land. I accept those submissions.
The Tribunal had regard to the Shire's resolution but placed little weight on it for the reasons given. Ground 5 is not made out.

Conclusion

For the reasons stated the appeal must be dismissed.