WR CARPENTER PROPERTIES PTY LTD AND GRIFFIN COAL PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION - [2006] WASAT 200

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)

CITATION: WR CARPENTER PROPERTIES PTY LTD AND GRIFFIN COAL PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2006] WASAT 200

MEMBER: MR D R PARRY (SENIOR MEMBER)
MR J JORDAN (MEMBER)
MR J ADDERLEY (SESSIONAL MEMBER)

HEARD: 7, 8 AND 9 MARCH 2006 - FURTHER WRITTEN SUBMISSIONS FILED 24 MARCH 2006 AND 31 MARCH 2006 - WRITTEN SUBMISSIONS BY MINISTER FOR PLANNING AND INFRASTRUCTURE FILED 7 APRIL 2006 AND WRITTEN SUBMISSIONS BY APPLICANTS IN REPLY FILED 1 MAY 2006

DELIVERED : 24 JULY 2006

FILE NO/S: DR 646 of 2005

BETWEEN: WR CARPENTER PROPERTIES PTY LTD AND GRIFFIN COAL PTY LTD
Applicants
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Town planning Subdivision 98 lots substantially in 7 clusters on coastal rural land 65% of lots less than 3000 square metres, 83% of lots less than 4000 square metres and 91% of lots less than 5000 square metres Average area per lot 7756 square metres Whether subdivision consistent with strategic and statutory planning framework Whether proposal is "rural residential subdivision" Visual impact Impact on landscape amenity values Likely development would have significant, detrimental impact on landscape amenity values from Cape Naturaliste Lighthouse and other public viewing positions Whether site viable for agricultural purposes Farm buildup block Bushfire risk Late identification of issue unsatisfactory and unfair Lack of satisfactory response from FESA Words and phrases: "rural residential subdivision"

Legislation:

Interpretation Act 1984 (WA), s 37
Planning and Development (Consequential and Transitional Provisions) Act 2005 (WA), s 4, s 17, Sch 1
Planning and Development Act 2005 (WA), s 251(1)
Shire of Busselton District Town Planning Scheme No 20

Town Planning and Development Act 1928 (WA), s 20(5), s 26(1)(a)(i), s 69

Result:

Application for review dismissed and decision of respondent affirmed

Category: B

Representation:

Counsel:

Applicants: Mr CJ Colvin SC with Mr MJ Hardy
Respondent: Mr CS Bydder with Ms CA Ide

Solicitors:

Applicants: Hardy Bowen
Respondent: State Solicitor's Office

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

Clive Elliott Jennings Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433
Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522
Ironbridge Holdings Pty Ltd v State Planning Commission (Unreported; Appeal No 24 of 1994, 20 July 1995)
Randall and Town of Vincent [2005] WASAT 147
Re Becker v Minister for Immigration and Ethnic Affairs (1977) 15 ALR 696
The Owners of Strata Plan 18449 and City of Joondalup [2005] WASAT 304
WR Carpenter Properties Pty Ltd & Anor and Shire of Busselton [2005] WASAT 266

Case(s) also cited:

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of the Tribunal's decision

WR Carpenter Properties Pty Ltd and Griffin Coal Pty Ltd sought review of the refusal of a 98 lot subdivision application at Bunker Bay. The lots were substantially comprised in seven clusters. Sixty-five percent of the lots were less than 3000 square metres in area, 83% were less than 4000 square metres and 91% were less than 5000 square metres. The average lot size was 7756 square metres.
The Tribunal determined that the proposal was materially inconsistent with the provisions of a rural strategy, which the local planning scheme sought to implement, because it was not a rural residential subdivision, in consequence of the average and predominant size of lots and its appearance as a residential settlement. The proposal was also materially inconsistent with the rural strategy and an applicable State Planning Policy, because of the likely significant and detrimental impact on rural and natural landscape values when viewed from important public viewing positions.
The application for review was dismissed and the decision to refuse subdivision approval was affirmed.

Introduction

These proceedings involve an application brought by WR Carpenter Properties Pty Ltd and Griffin Coal Pty Ltd (applicants), pursuant to s 26(1)(a)(i) of the Town Planning and Development Act 1928 (WA) (TPD Act) (see now Planning and Development Act 2005 (WA) s 251(1)), for review of the decision of the Western Australian Planning Commission (Commission) to refuse to approve a plan of subdivision of land located at Bunker Bay, approximately 3 kilometres southeast of Cape Naturaliste and approximately 10 kilometres northwest of Dunsborough. The land the subject of the proposed subdivision comprises three allotments, the first having frontage to Cape Naturaliste Road, the second having frontage to Bunker Bay Road, and the third extending to the mean high watermark of Bunker Bay and including beach and coastal vegetation. The three allotments are collectively referred to in these reasons as "the site".
The site has an area of 76.0107 hectares. It falls gently from approximately 55.0 metres AHD adjacent to the junction of Cape Naturaliste Road and Sugarloaf Road in the south to 0 metres AHD at Bunker Bay in the north, over a distance of approximately 1.43 kilometres. Because of the topography, the northern part of the site is not visible from Cape Naturaliste Road.
The site has been predominantly cleared for grazing purposes, with pockets of remnant vegetation generally following significant drainage lines that run in a south-north direction towards Bunker Bay, and dense coastal vegetation. The eastern part of the site generally drains towards a freshwater lake known as Lake Jingie which is located on the adjoining property to the east.
A 65 100 metre wide strip of the site adjoining Bunker Bay is reserved for "Recreation" under the Shire of Busselton District Town Planning Scheme No 20 (TPS 20). The rest of the site is zoned "Agriculture" under TPS 20.
The adjoining property to the northwest comprises the Quay West Resort which contains 150 villastyle apartments providing short stay accommodation, a restaurant and 26 residential strata lots. The Quay West Resort land is zoned "Tourist" under TPS 20. The site and the Quay West Resort land formerly comprised a single landholding known as Cape Farm.
The proposed subdivision comprises 98 allotments which would ultimately contain houses, a reservoir reserve having an area of 3753 square metres in the highest portion of the land, a public open space foreshore reserve having an area of 12.4069 hectares, and roads, including access points from both Cape Naturaliste Road and Bunker Bay Road. Ninetyone of the 98 allotments are contained within seven clusters which are generally separated from each other by one or more of the other seven allotments or the public open space foreshore reserve. A copy of the proposed plan of subdivision identifying the seven clusters is appended to these reasons.
Sixtyfive percent of the proposed allotments are less than 3000 square metres in area. A further 18% of the allotments are between 3001 square metres and 4000 square metres in area. A further 8% of allotments are between 4001 square metres and 5000 square metres in area. One allotment is 6115 square metres and one allotment is 7834 square metres. Only six of the allotments have an area of over one hectare. The average area of the 98 allotments is 7756 square metres, including the reservoir reserve and public open space foreshore reserve within the site area divided by 98.
The proposed subdivision would be fully serviced with reticulated water and sewerage services, as the services and headworks put in place for the Quay West Resort were apparently designed to cater for subdivision of the site.
The subdivision application was refused by the Commission on 31 October 2005 for nine reasons.
Following the hearing, the Minister for Planning and Infrastructure, the Hon Alannah MacTiernan MLA, made detailed written submissions pursuant to s 69 of the TPD Act in which she contends that the application should be dismissed. The applicants subsequently filed written submissions in reply to the Minister's submissions.

The issues

The following four principal issues arise for consideration in this review:
1)Is the subdivision consistent with the strategic and statutory planning framework?
2)Is the subdivision acceptable in relation to impact on landscape amenity values?
3)Is the site viable for agricultural purposes?
4)Is the subdivision acceptable in relation to bushfire risk?
The Tribunal will address each of these issues in turn.

Is the subdivision consistent with the planning framework?

It is common ground that there are three planning instruments or policies which are of principal significance in relation to the application, namely TPS 20, the Shire of Busselton Rural Strategy (1993) (Rural Strategy) and the LeeuwinNaturaliste Ridge Statement of Planning Policy (LNRSPP). It is common ground that each of these instruments or policies must be taken into account by the Tribunal in the determination of the review. However, it is to be noted that, when the application for review was made and heard, s 20(5) of the TPD Act provided that the discretion of the Commission is relevantly not fettered by the provisions of a town planning scheme. Although the TPD Act was repealed by s 4 and Sch 1 of the Planning and Development (Consequential and Transitional Provisions) Act 2005 (WA) (PD(CTP) Act) after the hearing, but before the publication of these reasons, the effect of s 17 of the PD(CTP) Act and s 37 of the Interpretation Act 1984 (WA) is that s 20(5) of the TPD Act continues to apply in relation to the determination of the review.

TPS 20

In WR Carpenter Properties Pty Ltd & Anor and Shire of Busselton [2005] WASAT 266, the Tribunal held, at [45], as follows:
"Although under s 20(5) of the [TPD] Act the Commission's discretion to approve a subdivision is not fettered by the provisions of a town planning scheme, it is clear that [TPS 20] does not generally contemplate subdivision of land zoned "Agriculture" for other than agricultural purposes … "
The proposed subdivision is for residential, rather than for agricultural purposes. However, policy (f) of the "Agriculture" zone is "[t]o implement and adhere to the adopted recommendations and outcomes of the [Rural Strategy], as endorsed by the [Commission]". Moreover, general objective (j) of TPS 20 is "to generally implement and reflect the policies and strategies outlined in the [Rural Strategy] and (where not inconsistent with that Strategy and/or this Scheme) the … [LNRSPP]"(see cl 4(j)).
The applicants rely heavily on the Rural Strategy and contend that the proposed subdivision is consistent with its provisions. In particular, the applicants maintain that the proposed subdivision is a rural residential subdivision of the nature contemplated by the Rural Strategy.

Rural Strategy

The site is contained within Policy Area 7 Cape Naturaliste and specifically within Precinct 7A Bunkers/Rocky Point under the Rural Strategy. The principal objective of Policy Area 7 is:
"To protect and enhance the natural and rural environment of the Cape while providing limited opportunities for sensitive rural residential development."
The objective of Precinct 7A stated in cl 10.6.1.3 is as follows:
"To protect the natural, rural and landscape values of the area while accommodating opportunities for sensitive tourist development and limited rural residential subdivision."
Clause 10.6.1.2 of the Rural Strategy includes the following:
"If key physical and landscape elements of Cape Farm are to be secured for the future, then it is considered that there is cause to entertain an innovative, small scale rural residential proposal that:
•cedes full foreshore reserve to Bunkers [sic] Bay;
•provides adequate open space buffers to Lake Jingie;
•secures as rural farmland areas of the site with high visual sensitivity from the Lighthouse, Naturaliste Road and Bunkers [sic] Bay reserve;
•provides for public 'audit' in the management of such areas; and
•locates and controls building so as to minimise its visual impact from primary vantage points."
Clause 10.6.1.4, which is entitled "Principal Policies", includes the following:
"Council may consider for rezoning an innovative, small scale rural residential proposal on Cape Farm Locations 'd', 442 and 683 [which include the site] on provision of an acceptable plan of subdivision/development which protects the high landscape sensitivity, reflects the physical and environmental capabilities of the land including appropriate management of effluent disposal and drainage and which provides adequate foreshore reservation and open space buffer to Lake Jingie. The South West Region Planning Committee has further indicated that any proposal for subdivision and development at Bunker Bay must be small in scale, not adversely affect scenic viewsheds, include substantial foreshore and other areas being ceded for conservation purposes, ensure safe and convenient access to the beach and retain remnant vegetation. Proposals which adequately address the above will be considered on its [sic] merits and not constrained by minimum lot size requirements. Consideration must be given to linkages with the adjoining Rocky Point area;"
Clause 10.6.1.8 of the Rural Strategy, which is entitled "Assessment Criteria", states, in relation to rural residential, as follows:
"•Site analysis to determine appropriate lot density and size mix through identification particularly of land form, soil, vegetation, effluent disposal and drainage constraints;
•Detailed landscape impact analysis and particularly from primary vantage points including the Lighthouse, Naturaliste Road and Bunkers [sic] Bay reserve; …
•Minimum lot size to be determined by site analysis (without reticulated water) but not to exceed an average density of more than one lot or dwelling upon three ha of location area subject to supporting site analysis;
•Provision of an adequate foreshore reserve and open space buffers to Lake Jingie, in both cases to the satisfaction of Council, the Department of Planning and Urban Development and the Department of Conservation and Land Management;
•Identification to the satisfaction of Council, the Department of Planning and Urban Development and the Department of Conservation and Land Management of appropriate ownership, landuse and management controls over lands having high landscape sensitivity; …
•Location of building envelopes such that any building is substantially obscured from Naturaliste Road and the Lighthouse and institution of clearing controls; …
•Provision for strategic fire management including per lot contribution for fire equipment upgrading."
Clause 10.6.1.9 of the Rural Strategy, which is entitled "Further Planning", states as follows:
"Preparation of a Structure Plan by Council, in consultation with the landowners for the area of Bunkers [sic] Bay to Eagle Bay including investigation of an appropriate coastal route linking Bunders [sic] and Eagle Bays."
Mr Michael Swift, a consultant town planner who gave evidence on behalf of the applicants, considers that the subdivision application "was clearly made for a rural residential development in accordance with what we see as the relevant policy framework … leading from the Rural Strategy through [TPS 20] and other associated documents". In support of this position, Mr Swift relies in particular on the words of cl 10.6.1.4 of the Rural Strategy that "[p]roposals which adequately address the above [criteria] will be considered on its [sic] merits and not constrained by minimum lot size requirements" and the first and third bullet points in cl 10.6.1.8 set out above. Mr Swift stresses that the average density of one lot or dwelling upon 3 hectares in cl 10.6.1.8 applies only to subdivisions without reticulated water, whereas the proposed subdivision includes reticulated water.
However, the Rural Strategy clearly contemplates that subdivision of the site, other than for rural purposes, must constitute rural residential subdivision. Moreover, the rural residential subdivision contemplated is characterised by the adjective "small scale" on three occasions and "limited" on one occasion in the provisions set out earlier. The Tribunal finds that the proposed subdivision cannot be reasonably characterised as rural residential subdivision, much less as rural residential subdivision which is limited or small in scale.
Rural residential subdivision is a term of art in town planning, the meaning of which is relevantly informed by a number of planning provisions.
First, policy (a) of the "Rural Residential" zone under TPS 20 provides as follows:
"To encourage rural residential subdivision by permitting a range of lot sizes in conventional subdivision subject to a general minimum [lot] size of 1 hectare with an average minimum lot size of approximately 2 hectares and providing greater flexibility for lots created within appropriate cluster subdivisions or by strata title subdivision, depending upon the special physical characteristics of the land;" (Emphasis added.)
Mr Timothy Shingles, a town planner and the Manager of Strategic Planning with the Shire of Busselton (Shire), who gave evidence on behalf of the Commission, indicated that approximately 90% of rural residential subdivisions in the Shire have a 2 4 hectare average lot size, even where clustering has been adopted as a design approach. In some cases, the average lot size is greater. Mr Shingles is only aware of two subdivisions on land zoned "Rural Residential" in which the average lot size is less than 2 hectares, namely, "an existing very small subdivision" in Eagle Bay, where the average lot size is around 1 hectare or a little higher, and a subdivision in Kookaburra Way, Busselton, where the average lot size is approximately 4200 square metres. Mr Shingles stated that the Kookaburra Way subdivision "was predicated on the basis that it's in an urban area [and] can be fully serviced with utility and government services. It also has very good access to the full range of community facilities that you would expect in an urban area". Mr Neil Fraser, a town planner and the Commission's Acting Team Leader, South West Planning, Statutory Planning Division, who gave evidence on behalf of the Commission, added that the Kookaburra Way subdivision is "right on the urban development front of Busselton and right next door, on the other side of Queen Elizabeth Avenue, is a structure plan area that is proposed to accommodate approximately 12 000 people in urban development so it's very different in terms of its characteristics and nature to the subject land".
Second, the definition of the term "Rural Residential" in the LNRSPP states that "Rural Residential subdivisions comprise lot sizes ranging from one to 10 hectares, with two to three hectares being most common". (Emphasis added.)
Third, cl 5.3.2 of State Planning Policy No 2.5 Agriculture and Rural Landuse Planning states as follows:
"In areas zoned 'RuralResidential' the following town planning scheme provisions should apply in addition to those listed in 5.3.1(ii):
(a)the lot size should range from 1 ha to 4 ha depending on local conditions; and
(b)mandatory provision of a reticulated potable water supply to an appropriate standard as determined by the licence holder." (Emphasis added.)
Fourth, cl 3.1.3(a) of the Commission's Policy No DC 2.5 Special Residential Zones states that Special Residential zones comprising lots of between 2000 square metres and one hectare are considered by the Commission to be "essentially residential" and "should be adjacent to existing or planned residential areas and have good access to schools, community facilities and other urban services".

Consistently with these various planning provisions which provide guidance as to the meaning of the term "rural residential subdivision" in terms of minimum and average lot size, cl 10.6.1.2 of the Rural Strategy refers to an example of "a rural residential proposal for approximately 30 lots ranging in size from 1.0 12.5 hectares; representing an average site density of one lot/3 ha of gross area" (emphasis added) which was apparently put forward at some stage in relation to the whole of Cape Farm. Although only an example, this provides an indication of the scale and intensity of rural residential subdivision contemplated by the Rural Strategy in relation to the site.
Mr Fraser gave evidence that the Commission has accepted the approach of clustering in other subdivisions within the Shire where "the objective is to maintain the average, but to allow smaller lot sizes, so that they can be consolidated and to reduce visual impact reduce environmental impact etc".
Although the proposed subdivision is substantially comprised within seven clusters, the average area per lot of 7756 square metres and the predominant size of allotments is manifestly less than the average and minimum sizes of allotments contemplated by the words "rural residential subdivision" used in the Rural Strategy.
Mr CG Colvin SC, who appears with Mr MJ Hardy for the applicants, submits that "lot sizes themselves are not the basis for distinguishing between rural residential and urban character. Rather, it is whether the development itself creates an urban environment or an expectation of availability of urban services". He submits that "the critical characteristic of this proposal is that it is clearly not contained in an urban setting. It does not have an urban aspect".
We accept that the fact that the overall setting of a subdivision is rural is a relevant, although not a determinative, consideration in determining whether the subdivision can be characterised as rural residential. We also accept that average or minimum lot sizes which guide an assessment of whether a subdivision can be characterised as rural residential should not be applied inflexibly or without regard to the particular circumstances of the case. However, the minimum and, where clustering is proposed, more particularly the average, lot sizes contemplated in the various planning provisions referred to earlier are significant, because they facilitate the developed character and the residential, visual and environmental amenity contemplated by the expression "rural residential subdivision".
Mr Swift considers that the planning objective sought to be achieved by rural residential subdivision includes that it is "a softer form of development in terms of its impact than straight residential" and has "the nature of more sparse development" to allow environmental and landscape objectives to be met. Similarly, Mr Shingles, with whom Mr Fraser agrees, considers that the planning objective is "the achievement of a high level of rural amenity in the landscape in which the development is proposed to be situated" and that "part of achieving a high level of rural amenity in a rural residential subdivision relates to the average lot size … and that relates to the number of dwellings you have within the landscape". Mr Shingles considers that "one of the primary issues that needs to be determined [is] that the outcome of the subdivision … should not have the appearance of a residential settlement no matter how well designed or how limited it is in size. It should appear to fit into the rural environment and not impact on rural character".
We accept Mr Shingles' and Mr Fraser's evidence that the proposed subdivision, while located in a rural locality, would have the appearance of a residential settlement, rather than a rural residential subdivision, in consequence of the average and minimum lot sizes proposed, and the location in particular of clusters 6 and 7, which would be seen as a residential settlement from important public viewing positions at Cape Naturaliste Lighthouse, the road leading from the Lighthouse, Shelley Beach Lookout and Shelley Beach, which aspect is considered in detail in relation to issue 2 below. Moreover, for reasons discussed in relation to issue 2 below, notwithstanding the clustering, the proposed subdivision and particularly the location of clusters 6 and 7 would have a significant and detrimental impact on rural and natural landscape amenity values when viewed from the public viewing positions referred to in this paragraph, which is inconsistent with the achievement of a high level of rural amenity in the landscape.
Mr Colvin also submits, consistently with Mr Swift's evidence summarised at [26] above, that the list of outcomes and assessment criteria set out in the Rural Strategy express what is meant by the composite expression "innovative, small scale rural residential proposal". He submits that these outcomes and criteria do not focus on the number of lots. Rather, they are concerned with landscape issues and issues of water and sewerage services. The references to scale should be construed accordingly. Mr Colvin submits further that a construction of the Rural Strategy under which a minimum lot size is not contemplated is evident from the terms of the draft Meelup Bunker Bay Structure Plan (draft Structure Plan), which was prepared and advertised for public comment by the Shire in 1993 and which showed 62 allotments in four clusters and a central tourism site on Cape Farm.
However, while cl 10.6.1.4 of the Rural Strategy states that "proposals which adequately address the above [criteria] will be considered on its [sic] merits and not constrained by minimum lot size requirements", in order for a subdivision to be a "proposal" within the contemplation of the provision, it must constitute a "small scale rural residential proposal". The provision that such proposals will not be constrained by minimum lot size requirements does not mean that a proposal which cannot reasonably be characterised as a rural residential proposal is within the contemplation of the Strategy. Were this the case, the words "rural residential", which are repeatedly used in the relevant portion of the Strategy, would have no meaning. The Rural Strategy only contemplates the approval of subdivisions in relation to the site which are rural residential subdivisions and which address the specified outcomes and criteria.
Mr Fraser and Mr Shingles are of the opinion that the reference in the third bullet point of cl 10.6.1.8 of the Rural Strategy, set out at [24] above, to an average density of one lot or dwelling per 3 hectares of site area, is intended to apply whether a subdivision is or is not serviced by reticulated water. Mr Swift disagrees. Ultimately, it is not necessary for the Tribunal to come to a considered position in relation to the construction of this aspect of the Rural Strategy. It is clear that, notwithstanding clustering, an average area per lot of 7756 square metres, including reserves to be dedicated, is not reasonably contemplated by the term "rural residential subdivision".
Finally, the draft Structure Plan cannot assist the applicants. It does not form part of and post dates the Rural Strategy. It was not ultimately adopted or endorsed by the Shire in relation to the site. It related to the whole of Cape Farm and proposed an average density which is less than that now proposed for the site. Moreover, when one takes into account the 26 approved residential strata lots on the Quay West Resort part of Cape Farm, approval of the proposed subdivision would result in a significantly greater density of development on Cape Farm as compared with the draft Structure Plan.
The proposed subdivision is, therefore, materially inconsistent with the scale and intensity of subdivision contemplated by the Rural Strategy for the site.
Furthermore, for reasons discussed in relation to issue 2, the proposed subdivision is also materially inconsistent with the Rural Strategy in that it does not secure as rural farmland areas of the site with high visual sensitivity from the Cape Naturaliste Lighthouse, would adversely affect scenic viewsheds, and would not locate building envelopes such that any building is substantially obscured from the Lighthouse.
Finally, in relation to the Rural Strategy, as noted earlier, cl 10.6.1.4 provides that Council may consider for rezoning an innovative, small scale rural residential proposal on the site and cl 10.6.1.9 contemplates the preparation of a Structure Plan by the Shire in consultation with landowners as a further planning tool. The applicants, in fact, applied on 10 September 2004 to the Shire for rezoning of the site for residential, rural residential, conservation and other purposes, and on 16 May 2005 purported to submit a Development Guide Plan in relation to the site to guide subdivision and development. On 8 December 2004, the Shire resolved that it does not support rezoning. On 1 July 2005, the Shire indicated that it had not sought a Development Guide Plan for the site and that it would not be further assessed. The Tribunal subsequently determined that the Shire did not have power to approve the Development Guide Plan and that the Tribunal did not have jurisdiction to review the Shire's decision not to advertise it: WR Carpenter Properties Pty Ltd & Anor and Shire of Busselton.
However, the Tribunal accepts Mr Swift's evidence that "to be blunt, it is our expectation that if this subdivision is approved then rezoning and policies would flow almost immediately and we would be supportive of that process". If the proposed subdivision were otherwise consistent with the Rural Strategy and otherwise acceptable, the Tribunal would not refuse subdivision approval simply because the Shire has refused to support rezoning and has not prepared a Structure Plan. To refuse the subdivision on this basis would be to confer a power of veto on the Shire irrespective of the actual merits of a subdivision proposal. Although s 20(5) of the TPD Act is a curious provision in planning law, it forms part of the applicable statute and means that the absence of appropriate zoning under a local planning scheme does not, in itself, preclude an otherwise acceptable subdivision proposal.

LNRSPP

Clause 4.1 of the LNRSPP provides, in relation to settlement pattern, that "Rural Residential living [is] to be [limited] to existing designated areas", which do not include the site; see also PS 1.5. The Policy identifies Bunker Bay as a "tourist node" in which "permanent residential use will generally not be permitted". PS 4.1 provides that there is a "general presumption against the subdivision of agricultural land for nonagricultural purposes". LUS 1.23 provides that it is a "general policy" that new areas of rural residential subdivision will not be supported.
As the Minister submits, statements of planning policy "represent the highest level of planning policy in this State". Moreover, as the Minister also submits, the LNRSPP is the product of a cooperative effort between the Commission and the Shires of Busselton and AugustaMargaret River.
In the face of the settlement pattern and subdivision provisions of the LNRSPP, Mr Colvin submits that "this case is an exceptional case and there are cogent reasons why there should be a departure from the application of [the LNRSPP]". He submits that it is significant that the language of the Policy is not absolute, but instead refers to "a general policy" and "a general presumption". Mr Colvin submits, correctly, that "even without such statements, proper application of the LNRSPP would require a consideration of the merits of the case in order to determine whether there were cogent reasons for not applying the Policy; Clive Elliott Jennings Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433 and Re Becker v Minister for Immigration and Ethnic Affairs (1977) 15 ALR 696 at 700".
Mr Colvin submits that this case is exceptional, such that the settlement pattern and subdivision provisions of the LNRSPP should not be strictly applied, for each of four reasons, namely:
1)An examination of the history of planning policy concerning the site reveals that it has been recognised consistently as exceptional;
2)It has the potential to facilitate the establishment of a significant area of public reserve and provide for public access to the foreshore;
3)It is a large area of existing rural landscape that is not economically viable for rural use; and
4)It does not fall within the categories of particular closer settlement "that will not be supported".
In relation to the history of planning policy concerning the site, Mr Colvin stresses that:
(i)the subdivision and development of the site is most specifically addressed in the Rural Strategy;
(ii)shortly after the adoption of the Rural Strategy, the Shire prepared and advertised for public comment the draft Structure Plan in accordance with the Rural Strategy;
(iii)during the period 1993 1996, draft town planning scheme maps were prepared as part of the review of the Shire of Busselton District Town Planning Scheme No 5 and as part of draft TPS 20 which showed the draft zoning of the site as "Development" and later as "Development Investigation"; and
(iv)there is a conflict between the LNRSPP and the Rural Strategy.
The Tribunal does not consider that the policy history in relation to the site is exceptional so as to warrant a departure from the settlement pattern and subdivision provisions of the LNRSPP.
As noted earlier, the proposed subdivision is materially inconsistent with the Rural Strategy, in that it does not constitute a rural residential subdivision and would have detrimental landscape amenity impacts contrary to the terms of the Strategy.
As noted earlier, the draft Structure Plan was ultimately not adopted by the Shire in relation to the site.
Although the site was proposed to be rezoned to "Development" or "Development Investigation" under draft planning scheme provisions, the "Agriculture" zoning of Cape Farm has remained, with the exception of the Quay West Resort and the coastal strip. Nevertheless, as Mr Colvin correctly submits, under the planning law of Western Australia, the zoning does not determine the outcome of an application for subdivision approval: Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522. However, the fact that a draft rezoning was proposed, but ultimately not proceeded with, does not make the circumstances of this case exceptional.
There is a clear inconsistency between the settlement pattern and subdivision provisions of the LNRSPP and the Rural Strategy in relation to the site. The Rural Strategy contemplates a permanent residential population on the site in the form of a small scale and limited rural residential subdivision, whereas the LNRSPP does not. In these circumstances, TPS 20 has the effect that the provisions of the Rural Strategy prevail: TPS 20 cl 4(j). There is no evidence before the Tribunal that the inconsistency makes this case exceptional, although if the application were consistent with the form of subdivision contemplated by the Rural Strategy in relation to the site and otherwise acceptable, the fact that it does not conform to the settlement pattern and subdivision provisions of the LNRSPP would not warrant refusal of the application. Clause 4(j) of TPS 20 means that the settlement pattern and subdivision provisions of the Rural Strategy prevail over the settlement pattern and subdivision provisions of the LNRSPP in relation to the site.
In relation to public access, Mr Colvin stresses that TPS 20, the Rural Strategy and the LNRSPP each contemplate the provision of increased public access along and to the coast. Mr Colvin relies on the evidence of Mr Swift, who was Principal Planner and subsequently Director of Planning at the Shire for over four years, and then Chief Executive Officer of the Shire for approximately six years, that the reservation of the beach and the frontal dunes reflects an intention to bring these areas into public ownership, although the Shire does not have the resources nor any documented intent to purchase this part of the site. Mr Colvin, therefore, submits that "the case is exceptional, because, without allowing the proposed subdivision, there will be no incentive for ceding parts of the private land (and private beach) the subject of the present application into public reserves, and it is unlikely that this significant additional amenity will be secured".
However, there is no evidence before the Tribunal that private ownership of foreshore areas is exceptional in the locality. Furthermore, even if the circumstances of the case were exceptional in this respect, the same public amenity could be secured by a less intensive subdivision of the site which is consistent with the Rural Strategy.
In relation to rural landscape and viability, Mr Colvin stresses that, unlike much of the surrounding area, the site is an existing rural landscape, and submits that the rural landscape character of the site would be maintained by the proposed, clustered subdivision. Mr Colvin also submits that the site is not economically viable for rural use.
However, for reasons discussed in relation to issue 2 below, notwithstanding the clustering, the proposed subdivision would not maintain the rural landscape values of the site. In particular, development within proposed clusters 6 and 7 would have a significant and detrimental impact on rural landscape values of the site and locality.
For reasons discussed in relation to issue 3 below, the Tribunal finds that the site is not economically viable for agricultural use. However, there is no evidence before the Tribunal that this characteristic is exceptional on land zoned "Agriculture" in the Shire. Furthermore, even if this were exceptional, an alternative to agricultural use of the site is a less intensive form of subdivision consistent with the provisions of the Rural Strategy.
Finally, in relation to categories of closer settlement, Mr Colvin refers to the words in LUS 1.23 of the LNRSPP in relation to "rural residential", that "closer settlement will not be supported in … important landscapes", and submits that the reference to important landscapes corresponds with areas of "the Ridge National Park and Principal Ridge Protection Areas" referred to in LUS 3.7, of which the site does not form part.
However, the site forms part of the Ridge Landscape Amenity Area identified in the LNRSPP. It is apparent from cl 4.3 and LUS 3.6 of the LNRSPP that land within the Ridge Landscape Amenity Area is an important landscape. Moreover, for reasons discussed in relation to issue 2 below, the rural and natural landscape amenity of the site is certainly of importance when the site and locality is viewed from public viewing points at the Cape Naturaliste Lighthouse, the road leading from the Lighthouse, Shelley Beach Lookout and Shelley Beach.
For reasons discussed in relation to issue 2 below, the proposed subdivision is also materially inconsistent with the provisions of the LNRSPP which concern the protection of landscape amenity.

Is the subdivision acceptable in relation to impact on landscape amenity values?

Mr Colvin relies on the following statement in the decision of the Town Planning Appeal Tribunal in Ironbridge Holdings Pty Ltd v State Planning Commission (Unreported; Appeal No 24 of 1994, 20 July 1995) at 13:
"Assessment of the value of landscape must be taken outside the subjective views of an observer or an expert. It must approach some level of scientific enquiry based on a series of procedures which minimise the subjective judgments inherent in assessing views and aesthetics."
As the Tribunal held in The Owners of Strata Plan 18449 and City of Joondalup [2005] WASAT 304 at [31], "[f]or reasons of comity and consistency, a member of SAT should … generally follow a decision of another member of the Tribunal (or a member of a former tribunal which SAT has replaced) that is in point, unless satisfied that the earlier decision was clearly in error: Re Scott and Commissioner for Superannuation (1986) 9 ALD 491 at 499". We consider that the quotation from Ironbridge Holdings Pty Ltd v State Planning Commission set out in the preceding paragraph is a correct statement of general principle.

In 2005, Mr John Cleary, an expert in landscape and visual assessment, was commissioned by the applicants to undertake a landscape study of the site in the context of the draft Development Guide Plan. Mr Cleary's landscape study became his statement of evidence in these proceedings.
Although the Development Guide Plan proposed approximately 140 allotments, rather than the 98 allotments now proposed, in oral, concurrent evidence, Mr Cleary characterised the proposed subdivision as "a slightly modified version" of the Development Guide Plan proposal, and considered the differences between the two as "minor". For these reasons, he chose not to update the computergenerated photo montages in his landscape study, which depict the likely development consequent upon approval of the Development Guide Plan proposal, and considers that these montages "give you an idea of what it will look like given a plan that's very similar to the current application". When, during subsequent examination by Mr Colvin, Mr Colvin indicated to Mr Cleary the reduction in the number of lots in certain parts of the site between the Development Guide Plan proposal and the subdivision proposal, Mr Cleary said that "you would expect from that plate the impact would be less than what I've predicted in the plates".
Mr Cleary's landscape study involves the type of inquiry contemplated by the Town Planning Appeal Tribunal in Ironbridge Holdings Pty Ltd v State Planning Commission. Ms Stephanie Clegg, who is also an expert in landscape and visual assessment, and who gave evidence on behalf of the Commission, generally agrees with Mr Cleary's approach to landscape assessment, although she disagrees significantly in relation to his conclusions as to the impact of the proposal in relation to landscape amenity values.
Mr Cleary considers that an array of landscape character types exist on the site. The coastal strip in the northern part of the site has natural character and natural with settlement influence landuse character. The adjacent lower, northern half of the site has a rural use with settlement influence landuse character. The upper, southern half of the site has a rural use character. The remaining undeveloped part of the site, located generally on the western side, has both rural use character and rural use with settlement influence landuse character. Mr Cleary considers that the Quay West Resort has created a settlement influence that is evident in the landscape character from some view locations.
Mr Cleary assessed the visibility and appearance of the proposal together with the impact on landscape values at a number of key locations, namely Cape Naturaliste Road and Bunker Bay Road adjacent to the site, Bunker Bay Beach, Shelley Beach, Shelley Beach Point, the Cape to Cape Track, ground level at the Cape Naturaliste Lighthouse, the Shelley Beach to Lighthouse walking track, and surrounding houses. Significantly, in his landscape study, Mr Cleary did not assess the impact of the proposal on landscape values when viewed from the Lighthouse itself.
On the basis of his landscape study, Mr Cleary found the following impacts:
"•Landscape character on the site will be affected, but will have a minor effect on surrounding use areas the perceived character of much of the site will not change.
•The significant natural features of the site, in particular, the coastal features, the drainage lines through the dunes, and the historic site, will not be affected, although there will be an impact on their settings.
•The rural significance will be affected where there are development cells.
•Views will not be affected apart from minor filtered views from part of Cape Naturaliste Road.
•Access will be improved with the transfer of the foreshore to public ownership and the provision of road access to this area.
•Wilderness quality will not be affected.
•The development does not threaten the level of representation of the component landscape values in the region.
•The development substantially protects the experience of high use areas.
•The cumulative effect is low moderate." (Emphasis added.)
Ms Clegg makes three specific criticisms of Mr Cleary's work.
First, Ms Clegg considers that Mr Cleary's depiction of likely future built form in a uniform grey colour with uniform grey roofs is unrealistic.
Second, Ms Clegg points out that the base photographs used by Mr Cleary for the computer depictions of likely built form and his landscape study were taken on overcast days. The result is that the analysis underestimates the impact of the proposal, because it does not contain shadows, does not show reflectivity of roofs, and, in Ms Clegg's words, "seems to have a sort of a generally purplygrey look to it". Ms Clegg included in her evidence photographs taken from similar positions which dramatically demonstrate the correctness of this criticism, as the visual impact of the Quay West development is significantly greater when the sun is shining.
Third, Ms Clegg considers that Mr Cleary's analysis is deficient in that it does not specifically assess impact from the Cape Naturaliste Lighthouse, which is located approximately 1200 1600 metres to the northwest of the site, and the Shelley Beach Lookout, which is located approximately 1200 metres to the northwest of the site.
In relation to Ms Clegg's first criticism, Mr Cleary agreed that he had assumed that the proponent will adopt a number of measures to minimise impact on landscape values, including uniform, dark, desaturated colours. Under crossexamination, Mr Cleary conceded that, in the absence of enforceable design guidelines, the impact on landscape values would increase.
The Commission proposed a without prejudice condition of approval that design guidelines are to be prepared and an appropriate mechanism of implementation established in relation to, among other things, construction materials and colours considered appropriate by the Shire. Although, even if this condition were imposed and cleared, there is doubt as to whether the extent of uniformity in appearance assumed by Mr Cleary could be ensured for the lifetime of the subdivision, the Tribunal assumes, for the purposes of these reasons, that Mr Cleary's assumption in relation to colours is correct.
Mr Cleary acknowledged that Ms Clegg is correct in her observation that his photographs were taken on overcast days, although he said that this was not the result of any deliberate intent, but rather the luck of the draw of the day he went to the site. He also acknowledged that Ms Clegg is correct in her observation that the appearance of the development will change when the sun is shining, although he considers that there would only be significant reflectivity for a small part of the day.
We consider Ms Clegg's second criticism to be wellfounded. Mr Cleary's photo montages underestimate the extent of likely impact consequent upon approval of subdivision consistent with the Development Guide Plan.
We also agree with a further criticism of Mr Cleary's work, made by Mr CS Bydder, who appeared with Ms CA Ide on behalf of the Commission, namely, that Mr Cleary assumed only single storey development in clusters 2 and 7, whereas the subdivision is put forward on the basis that buildings in these clusters would include two storey components. At least until vegetation is established and grows sufficiently, the second storey of houses on proposed Lots 13 and 19, which are the southernmost lots in cluster 2, would be seen from Cape Naturaliste Road and are likely to project above the existing tree line and be silhouetted against the ocean. Although these buildings are likely to generally only be seen from outside the site by passing motorists, they have an additional impact beyond the assessed impact.
Furthermore, for reasons discussed below, the impact of the likely built form in clusters 6 and 7 from the Lighthouse, the road leading from the Lighthouse, Shelley Beach Lookout and Shelley Beach is likely to be significant. Two storey components in cluster 7 would exacerbate the impact, particularly from the Lighthouse and the road leading from the Lighthouse.
Taking into consideration the differences in the number of allotments proposed in each of the clusters between the Development Guide Plan and the subdivision application, and the underestimation of impact resulting from the overcast base photographs and the failure to include some second storey components in the photo montages, the Tribunal is able to make an assessment of the likely impacts of the proposal when viewed from relevant public viewing positions, using Mr Cleary's montages and Ms Clegg's photographs, and assisted by their evidence.
The Tribunal considers that Mr Cleary's failure to specifically assess the impact of the proposal from the public viewing deck at the top of the Cape Naturaliste Lighthouse is significant. We accept Ms Clegg's evidence that the Lighthouse view is "possibly the most important single viewpoint related to the proposed subdivision". The Lighthouse, which was built in 1903, is listed on the Register of the National Estate, for reasons including its importance "for its landmark values in the natural setting of the LeeuwinNaturaliste National Park". It is one of only four lighthouses publicly accessible within the State. It is one of the Shire's major tourist attractions, with an estimated 30 000 visitors per year climbing to the top. The Lighthouse is also identified in the Rural Strategy as an important vantage point in relation to the subject Precinct.
Of the 360 degree view available from the Lighthouse, only approximately 65 degrees, of 18%, comprises land rather than sea. We accept Ms Clegg's evidence that, because the seaward view is homogenous, although spectacular, the smaller landward view is at least equally significant. The vast majority of land visible from the Lighthouse is natural in character, with only a few open paddocks visible on the site, at Eagle Bay and closer to Dunsborough. At present, the only built elements readily visible in this view comprise the cluster of heritagelisted buildings associated with the Lighthouse and some individual houses at Bunker Bay/Rocky Point which can only just be made out in the distance. However, the Quay West Resort cannot be seen from the Lighthouse, as it is hidden by a ridge at the tip of the Cape.
The effect of the likely built form, consequent upon the proposed subdivision, on the rural and natural landscape values of the site and of the locality visible from the Lighthouse, would be significant and detrimental. The subdivision would occupy approximately onefifth of the landward view from the Lighthouse and introduce a residential settlement into a viewscape which is essentially devoid of built form, with the exception of the heritagelisted buildings. We accept Ms Clegg's evidence that observers' eyes are likely to be naturally drawn to this portion of the view, due to the dominance of the paddock which would remain as part of proposed Lot 54, and the visual difference in this portion of the landscape compared to the simplicity of elements elsewhere in the view. The impact on views from the Lighthouse would be exacerbated by the fact that the development would be located southeast of the Lighthouse, on a northfacing slope, so that the side of the buildings facing observers would face the afternoon sun, thus increasing visibility due to glare from roofs, walls and windows. We accept Ms Clegg's characterisation that the proposal would be a "visually jarring element, drawing attention to itself due to the contrasts it provides".
We do not accept Mr Cleary's opinion that the extent of impact on landscape character is merely moderate, in consequence of the limited lateral extent and distance. Although the subdivision is a minimum of 1200 metres from the Lighthouse, it would plainly appear as a residential settlement, which is incongruous in the context of the existing viewscape. The subdivision would occupy a relatively significant proportion of the landward view and would draw observers' eyes to it.
It follows that the proposed subdivision is inconsistent with the contemplation of the Rural Strategy of a small scale rural residential proposal that "secures as rural farmland areas of the site with high visual sensitivity from the Lighthouse" (cl 10.6.1.2), does not adversely affect scenic viewsheds (cl 10.6.1.4), and locates building envelopes such that any building is substantially obscured from the Lighthouse (cl 10.6.1.8).
The proposal would also have a significant and detrimental impact on rural and natural landscape values when viewed from the road leading from the Lighthouse. The Department of Conservation and Land Management estimates that over 190 000 people visited Cape Naturaliste in 20042005. The site, and in particular the proposed location of clusters 6 and 7, is prominent in views observed by motorists and passengers as they leave the Lighthouse precinct. The site is directly ahead along the road, at the focal point in the view. The focal nature of the view is emphasised by the enclosure to the sides of the view provided by tall, dense shrubs on either side of the road. We accept Ms Clegg's evidence that observers' eyes are naturally directed straight ahead, downslope, to where development in clusters 6 and 7 would be centrally located in a band across almost the entire width of the visible middle ground. This part of the site would be visible from a 1220 metre stretch of road. For motorists travelling at 80 kilometres per hour, this view would be seen for almost a full minute. The impact would be exacerbated by afternoon sun.
At present, the only landuse elements in this view are natural or rural in character. No structures are visible. We accept Ms Clegg's evidence that the proposal would be a significant change, with the addition of a band of densely packed houses located through the centre of the view. Even assuming uniform dull grey colours, the buildings would be readily visible at the focal point of the view. We accept Ms Clegg's assessment that the change in landscape character as viewed from this location would be moderate to high. We do not accept Mr Cleary's characterisation of the change in character from this view as low to moderate. Indeed, this characterisation appears to be inconsistent with Mr Cleary's assessment, quoted above, that "the rural significance will be affected where there are development cells". The development cells 6 and 7 would be directly in view as one drives down the stretch of road away from the Lighthouse.
The impact of development in proposed cells 6 and 7 would also be significant and detrimental in terms of rural and natural landscape values, when viewed from Shelley Beach Lookout and Shelley Beach. We consider that, in consequence of the Quay West Resort development, the impact of development in clusters 1, 2, 4 and the southern part of 3, would be acceptable, as they would appear to be visually contiguous with the resort. We also consider that the remainder of cluster 3 would be marginally acceptable, as it would involve a lateral extension of built form at a similar topographical level (approximately 5 metres 15 metres AHD) as the resort buildings. However, development in the clusters located in the higher parts of the site, particularly cells 6 and 7 (at approximately 25 metres 55 metres AHD) would have a significant and detrimental impact on rural and natural landscape values by introducing a residential settlement in the middle and upper parts of the slope where no such settlement presently exists in the view.
Although, as Mr Cleary observes, less emphasis should be put on the Shelley Beach Lookout than on more heavily used public viewing positions, such as the Lighthouse, it is nevertheless an accessible and important viewing position available to the public.
It follows from the foregoing analysis that the proposal is not only inconsistent with landscape provisions of the Rural Strategy referred to earlier, but also with landscape provisions of the LNRSPP, which are not inconsistent with the relevant provisions of the Strategy. In particular, contrary to LUS 3.6 of the LNRSPP, the proposed subdivision would not maintain or enhance the landscape values of the Ridge Landscape Amenity Area.
Finally, in relation to landscape amenity values, the Tribunal notes concern about the potential development of proposed Lot 54, which has an area of 21.1641 hectares and frontages to both Cape Naturaliste Road and Bunker Bay Road. For reasons discussed in relation to issue 3 below, this lot would not be productive agricultural land for any purpose. Mr Swift describes this lot as a "rural lifestyle lot with one dwelling on it", although when questioned by the Tribunal as to whether its maintenance for this purpose would be sustainable and viable, he indicated that he would anticipate "some sort of low key, maybe very high calibre tourism development, a small guest house or bed and breakfast or something like that". Mr Swift also said that "somebody else would have another idea, but we're crystal ball gazing here".
Although the Tribunal considers that the likely impact of approval of the proposed subdivision on visual amenity and landscape value would be significant and detrimental, even assuming only a single house on proposed Lot 54, the reality is that more intense development is likely to occur on this lot in the future. Assessment of an application for subdivision of the size proposed and in the visually sensitive location of the site requires a proper understanding and careful assessment of the likely built form. It is not satisfactory to "crystal ball gaze". If, as we suspect, a single house on a 21 hectare allotment would not be ultimately sustainable and viable, it is necessary that the consent authority be provided with an understanding of consequent development which is sustainable and viable.

Is the site viable for agricultural purposes?

The Tribunal had the benefit of evidence in relation to agricultural viability from Mr John Wise, a land use consultant, and Mr Tim Johnston, a farm management consultant, who each gave evidence on behalf of the applicants, and Mr Steven Hossen, an agricultural consultant, who gave evidence on behalf of the Commission.
The agricultural experts agree that the only likely agricultural use of the site is for grazing and that the 54 hectares available for that purpose has insufficient carrying capacity to generate a sufficient annual income on a stand alone farm basis.
However, in his written evidence, Mr Hossen considered that the site is viable as a farm buildup block used in conjunction with other agricultural land in the district. Mr Wise considers that, because of its isolation, the site would not be an attractive build-up block. Mr Johnston also considers that the site is inappropriate as a build-up block, because of its isolation, and also stresses that the relatively small size of the part of the site available for grazing gives rise to management limitations.
The experts agree that the site is badly run down and would require significant initial investment and ongoing maintenance to be capable of use as a farm build-up block. Mr Wise estimates that the reestablishment costs would be in the order of $150 000 $200 000. Mr Johnston agrees. Mr Hossen does not believe that this is a correct figure, but was not able to give an alternative estimate.
The experts agree that use of the site as a farm build-up block would generate an annual income of approximately $24 000 and require annual maintenance of approximately $11 000 plus rental. Mr Hossen estimates that, under normal circumstances, annual rental would be in the order of $70 $100 per hectare, although if a tenant were willing to invest the money necessary to restore the grazing potential of the site, rental is likely to be reduced to about $35 $50 per hectare. In consequence, the annual net income from use of the site as a farm build-up block is in the order of $10 500.

However, in oral evidence, Mr Hossen agreed that, even assuming the necessary investment to restore the site is $100 000, rather than $150 000 $200 000, use of the site as a farm build-up block would not be viable, as a tenant granted a likely five year plus five year option lease would have to spend approximately $15 000 per annum in capital and interest repayments. The result would be an annual loss of approximately $4500.
The Tribunal finds that the site is not viable for agricultural purposes.

Is the subdivision acceptable in relation to bushfire risk?

The Commission did not raise the issue of bushfire risk in its statement of issues, facts and contentions filed on 16 January 2006. The issue was raised, for the first time in the proceedings, in the form of witness statements filed before the hearing.
The identification of issues in witness statements, rather than in a statement of issues, facts and contentions, is unsatisfactory and unfair. The purpose of a statement of issues, facts and contentions, which is generally required to be filed at an early stage in proceedings, is that issues, facts and arguments in dispute can be identified and addressed.
However, as there is considerable vegetation on the adjoining property to the east and as the site is adjacent to national park, the Tribunal recognised that bushfire is a potentially significant issue and should be squarely raised and considered. It, therefore, invited the Commission to amend its statement of issues, facts and contentions in order to clearly identify the issue and, on the second day of the hearing, granted leave for the amendment to be made.
Understandably, the applicants were not able to meet the bushfire issue during the hearing. If the subdivision application were otherwise acceptable, the Tribunal would invite the parties to present qualified evidence and make submissions in relation to bushfire. It is likely that, notwithstanding the Tribunal's usual practice in relation to costs in planning review proceedings (see, for example, Randall and Town of Vincent [2005] WASAT 147), costs consequences would flow from the late identification of the issue.
One further aspect related to the issue of bushfire risk requires comment. The Commission referred the subdivision application to the Fire and Emergency Services Authority of Western Australia (FESA) for advice. It received a onepage letter from FESA, which Mr Fraser indicated is a standard form of response, referring the Commission to the document Planning for Bush Fires Protection 2001 and proposing a condition of subdivision approval which would require the subdivider to provide evidence that the requirements of this document have been satisfied with respect to meeting the contained fire protection performance criteria to the satisfaction of the Commission.
The FESA response to what is a significant subdivision, on a site in a relatively remote location, adjoining dense natural vegetation, and adjacent to a national park, is most unsatisfactory. There does not appear to have been a proper assessment by the authority with specialist knowledge in relation to bushfire risk of the merits of the application. Moreover, it is inappropriate in the circumstances of the proposed subdivision and site to simply impose a condition requiring compliance with the Planning for Bush Fires Protection 2001 document, as compliance with that document might materially affect the form of the subdivision.
Mr Fraser indicated that the Commission has raised these issues with FESA on numerous occasions. It is to be hoped, in the interests of public safety and orderly and proper development, that in the future significant subdivisions in locations such as the site receive detailed and site specific assessment by FESA.

Should subdivision approval be granted?

The Tribunal has found that the site is not viable for agricultural purposes. The Tribunal has also found that the proposed subdivision would be materially inconsistent with relevant provisions of the strategic and statutory planning framework, particularly the Rural Strategy on which the applicants rely heavily and the LNRSPP, and would have a significant and detrimental impact on rural and natural landscape amenity values when viewed from important public viewing positions.
Although the Commission (and the Tribunal on review) is not fettered in the exercise of planning discretion by the provisions of TPS 20, and may depart from the provisions of policy controls in appropriate circumstances, it is generally contrary to orderly and proper planning to approve a subdivision which is materially inconsistent with the strategic and statutory planning framework. This statement of principle is all the more apposite in circumstances where a policy, which is given effect by a local planning scheme, contemplates a form of subdivision with which the proposal is inconsistent.
The applicants contend that the effect of the position adopted by the Commission and the Shire is to sterilise the land without there being any reasonable prospect that the land can be put into viable agricultural production, and to prevent significant additions to the public domain, including ceding of the foreshore beach and dunal vegetation, access by the public to the foreshore and the creation of additional viewscapes through the land, none of which are presently available.
However, the Rural Strategy and provisions of the LNRSPP concerning landscape contemplate rural residential subdivision and development of the site in a manner which would substantially preserve the rural and natural landscape amenity value of the site, particularly in its higher parts. The carrying out of the type of rural residential subdivision contemplated by the policies would still allow the proposed additions to the public domain. These public benefits do not warrant an acceptance of the density and intensity of subdivision and consequent development proposed in the application.
It follows that the application for review should be dismissed and the decision of the Commission refusing subdivision approval affirmed.

Orders

The Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision of the respondent to refuse approval to the plan of subdivision of Cape Farm residue lands drawn by Cardno BSD project no PO3008 drawing no P706SO4 dated 17 May 2005 is affirmed.

I certify that this and the preceding [117] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR D R PARRY, SENIOR MEMBER