ZAMPATTI and WESTERN AUSTRALIAN PLANNING COMMISSION
[2009] WASAT 70
•17 APRIL 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: ZAMPATTI and WESTERN AUSTRALIAN PLANNING COMMISSION [2009] WASAT 70
MEMBER: MR L GRAHAM (SENIOR SESSIONAL MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 17 APRIL 2009
FILE NO/S: DR 356 of 2008
BETWEEN: LLOYD ZAMPATTI
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Town planning - Application for subdivision of 'Agriculture' zoned lot - Land capability - Rural landscape significance - Undesirable precedent - Travel route corridor - Fragmentation of rural land
Legislation:
Planning and Development Act 2005 (WA), s 25, s 87, s 241, s 250(1)
Shire of Busselton District Planning Scheme No 20, cl 103, Table 1, Table 2
State Administrative Tribunal Act 2004 (WA), s 27, s 47(1)(a)
Town Planning and Development Act 1928 (WA), s 5AA
Result:
The application for review is dismissed.
The application for costs is dismissed.
Category: B
Representation:
Counsel:
Applicant: N/A
Respondent: N/A
Solicitors:
Applicant: N/A
Respondent: N/A
Case(s) referred to in decision(s):
Aydogan and Town of Cambridge [2007] WASAT 19
Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433
Goldin v Minister for Transport (2002) 121 LGERA 101
Nicholls and Western Australian Planning Commission [2005] WASAT 40
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The application for review was lodged against a decision of the Western Australian Planning Commission to refuse an application for subdivision of a single 'Agriculture' zoned lot of 32.9 hectares into two lots of 14.66 hectares and 18.27 hectares at Lot 51, Eagle Bay Road, Busselton.
In undertaking this review, the Tribunal examined the respective positions of the parties, the background to the proposal, the legislative and policy provisions and matters relating to the subdivisional proposal itself, land capability, rural landscape significance and undesirable precedent. An application for costs was examined and dismissed.
The Tribunal determined that there was no relevant policy provision that would support the proposal, other than a circumstance where subdivision would represent an opportunity to diversify or intensify the agricultural use of the land. That opportunity did not present itself in this case, due to the limited capability of the land for productive agriculture.
The Tribunal also determined that although the proposed subdivision was an attempt to find a reasonable solution to the circumstances surrounding this case, the relevant planning policy objectives would not be advanced by it, and there was more than a mere chance or possibility that other nearby landowners of similar sized or larger lots would be unnecessarily encouraged to subdivide if this proposal was approved.
The application for review was dismissed.
Introduction
The application for review was lodged on 22 September 2008 by Hardy Bowen Lawyers on behalf of Mr Lloyd Zampatti (applicant) against a decision of the Western Australian Planning Commission (respondent or WAPC) on 25 August 2008 to refuse an application for subdivision of a 32.9 hectare lot into two lots of 14.66 hectares and 18.27 hectares at Lot 51, Eagle Bay Road, Eagle Bay, in the Shire of Busselton.
The application for review was lodged under the provisions of s 250(1) of the Planning and Development Act 2005 (WA) (PD Act).
The reasons for refusal of the subdivision by the respondent were:
1.The proposal does not comply with the objectives and policies of the 'Agriculture' zone in Council's Town Planning Scheme. The purpose and intent of this zoning is to conserve the productive potential of rural land and to ensure that land is not withdrawn from production or that the potential for land to be productive is not diminished. Subdivision in the manner proposed would create the potential for two agriculturally unsustainable lots, which would be in conflict with the zoning objectives.
2.The proposal is inconsistent with the Eagle Bay Structure Plan which requires that subdivision of the subject land is to be limited to 'low impact rural subdivision' with a minimum lot size of 40ha.
3.The proposal does not comply with the Shire of Busselton's endorsed Local Rural Planning Strategy in that the proposed lot sizes are not suitable for sustainable agricultural use.
4.The proposal does not comply with the policies and objectives of State Planning Policy 2.5 which seek to prevent adhoc [sic] fragmentation of rural land.
5.The proposal is inconsistent with State Planning Policy 6.1 where the objective of the 'Agriculture and Rural Landscape' designation for the subject land is to conserve the productive agricultural potential of the land. The proposed lots are of a size which are not of a suitable size for sustainable agriculture.
6.The proposal is inconsistent with the objective of Development Control Policy 3.4 to retain 'Agriculture' zoned land in sufficiently sized lots for sustainable agricultural use
7.Approval to the subdivision would create an undesirable precedent for the further subdivision of other lots of a similar size in the Agriculture Zone of this locality.
Subject land
The subject land is described on Certificate of Title Volume 1493, Folio 461 as being Lot 51 on Diagram 53490. It has an area of 32.9108 hectares with a frontage to Eagle Bay Road of 314.77 metres, a northern boundary of 605.7 metres, a rear boundary of 587 metres and an indented southern boundary totalling 882.25 metres (603.69 metres plus 278.56 metres).
The subject land is located some 7 kilometres north of the Dunsborough Town Centre and some 1.5 kilometres south of the Eagle Bay coastline. The adjoining lot to the north (used for grazing) is some 14.7 hectares and is a residual lot from the Eagle Farm special residential estate. The land immediately to the east (Reserve 21529) is part of the Meelup Reserve, whilst that adjoining the southern boundary is used as a rural lifestyle lot (winery, table grapes, tree plantation and olive grove). The land to the west on the opposite side of Eagle Bay Road is a 230 hectare lot used for broad acre farming.
The subject land is predominantly flat with an ironstone ridge running east‑west through the middle of the lot with laterite outcrops at the surface and shallow gravelly sands over laterite on the slopes. Approximately two‑thirds of the site is used for grazing, with the remainder being natural vegetation to the west along with on‑stream dams associated with an intermittent creek line.
There is an existing shed/dwelling on the subject land which has access to above ground power, telecommunication services and a sealed road (Eagle Bay Road). The site utilises its own on‑site water supply.
Legislative and policy framework
The subject land is zoned 'Agriculture' under the Shire of Busselton District Planning Scheme No 20 (DPS 20 or Scheme).
Of relevance are the following planning documents:
a)the Shire of Busselton Rural Planning Strategy 2007 (RPS);
b)the Leeuwin‑Naturaliste Ridge Statement of Planning Policy 6.1 (LNRSPP);
c)the WAPC Agriculture and Rural Land Use Planning Statement of Planning Policy No 2.5 (SPP 2.5);
d)the WAPC Development Control Policy 3.4 - Subdivision of Rural Land (DC 3.4); and
e)the Eagle Bay Structure Plan 2007 (EBSP).
Respondent's position
The position of the respondent is outlined in an amended statement of issues, facts and contentions (SIFC) dated 28 November 2008. The respondent contends:
a)the subject land is 'Rural' rather than 'Agriculture' in character;
b)the LNRSPP identifies the land as having 'rural landscape significance' and Eagle Bay Road is designated as a 'travel route corridor with rural landscape significance';
c)policy LUS 4.0 of the LNRSPP provides that landscape values are the principal criterion in considering subdivision of the subject land;
d)policy (d) of the 'Agriculture' zone in TPS 20 contemplates subdivision of rural land into allotments of 40 hectares. The proposed lots at 14.6 hectares and 18.2 hectares are inconsistent with this policy;
e)policy DC 3.4 discourages the closer settlement of rural land in the absence of appropriate planning. The policy seeks to avoid the fragmentation of rural land and loss of rural character. The proposed subdivision will result in the unplanned fragmentation of rural land; and
f)the proposed subdivision is inconsistent with Policy 12 of the EBSP as it proposes lots smaller than 40 hectares.
Applicant's position
The position of the applicant is outlined in an SIFC dated 10 November 2008. The applicant contends:
a)the subject land has no viable agricultural uses to which it can be put, and Scheme or policy provisions which seek to preserve the subject land for agricultural uses have no proper or relevant application to the subject land;
b)although identifying the land as having 'rural landscape significance', the proposed subdivision cannot be said to prejudice that significance, nor in any other way affect landscape values;
c)although the subject land abuts Eagle Bay Road, only 25% approximately of the land is visible from the road;
d)the proposed building envelopes are not visible from Eagle Bay Road, and it would not be possible for any dwelling built on the proposed building envelopes to be seen from Eagle Bay Road;
e)no dwelling constructed on the subject land in the manner proposed would be visible from the Cape Naturaliste lighthouse;
f)no portion of the subject land is visible from any part of Meelup Bay Road. Further, and in any event, the 'no development zone' indicated on the plan of subdivision is suitable for revegetation which will affirm the desired nature of the landscape and assist in providing a visual buffer from the Meelup Regional Reserve;
g)the respondent has not particularised how the proposed subdivision will adversely affect the rural landscape values of the subject land; and
h)a two‑lot subdivision does not constitute unacceptable fragmentation of rural land or loss of rural character. Other than in relation to agricultural capability, the proposed lot sizes are relevant only if, as a consequence of subdivision, there is a prejudicial impact on landscape values. Leaving aside the broad approaches contained in the policy documents, there is no evidence to support the proposition that the subdivision of the land will impact on rural landscape values or produce a poor planning outcome.
Planning issues
The principal planning issues are:
a)Does the proposal accord with the intent of the relevant planning documents?
b)Would the proposed subdivision, if approved, be likely to affect the rural landscape significance of the subject land?
c)Would the proposal, if approved, be likely to create an undesirable precedent?
Assessment of the proposal
Background
An application for subdivision, dated 7 April 2008, was lodged by Planning South West Pty Ltd with the WAPC on behalf of the applicant. The proposal was referred to a number of government agencies and the Shire of Busselton.
The response from the government agencies (Fire and Emergency Services of Western Australia (FESA), Western Power and Department of Environment and Conservation) was on the basis of imposing specific conditions should the subdivision proceed. However, the Shire responded on 24 June 2008 as follows:
The Shire of Busselton's Local Rural Planning Strategy states that the Shire would support a minimum subdivided lot size of 30 hectares for horticultural use, this is only on the proviso that the predominant land unit contained within each subdivided lot is capable of supporting horticultural activity. The subject application clearly does not comply with this requirement with proposed lot sizes of 14.66 ha and 18.27 ha and therefore it cannot be supported.
Following an assessment in accordance with the provisions of the Shire of Busselton District Town Planning Scheme No. 20 ("the Scheme") and pursuant policy please be advised that the Shire is not prepared to support the proposed subdivision for the following reasons:
a)The proposed subdivision is inconsistent with Clause 5.1.3 of the Shire of Busselton Local Rural Planning Strategy which recommends minimum lots sizes for commercial farming purposes on lots zoned 'Agriculture' under the Scheme which are 40 hectares of arable land for broad acre purposes and 30 hectares of arable land for horticulture/viticultural pursuits. The proposed smaller lot sizes of 14.66ha and 18.27ha are well below the recommended arable area as required by the Shire of Busselton.
b)The proposed subdivision is inconsistent with objective (i) of the 'Agriculture' Zone pursuant to the Scheme whereby the Shire in the consideration of an application for subdivision is to conserve the productive potential of rural land. The proposed lots are below the recommended minimum as required by the Shire of Busselton.
c)The proposed subdivision is inconsistent with objective (iii) of the 'Agriculture' Zone pursuant to the Scheme whereby the Shire, in the consideration of an application for subdivision is required to regulate the subdivision of agricultural lands to ensure that land is not withdrawn from production or the potential for land to be productive is not diminished. The proposed subdivision will result in creation of lots below the recommended minimum for commercial farming required by the Shire of Busselton.
d)The proposed subdivision is inconsistent with Policy (c) of the 'Agriculture' Zone pursuant to the Scheme whereby the Shire, in the consideration of an application for subdivision is to apply restrictions whereby an allotment proposed to be created shall contain a minimum area of land that is actually usable for commercial farming. The proposed lots are well below the recommended minimum arable area as required by the Shire of Busselton.
e)The proposed subdivision is identified as Agriculture and Rural Landscape and is therefore inconsistent with LUS 4.10 of the Leeuwin Naturaliste Ridge Statement of Planning Policy Report, whereby conserving productive agricultural potential may be compromised.
f)Approval to the subdivision will create an undesirable precedent for further subdivision of surrounding lots which is not recommended in the interest of orderly and proper planning.
On 25 August 2008, the respondent issued its refusal in terms of [8] above.
Legislative and policy provisions
District Planning Scheme No 20
Under the Scheme, the subject land is zoned 'Agriculture'.
The 'Agriculture zone' objectives and policies are outlined in Table 1 and include:
(i)To conserve the productive potential of rural land;
(ii)To provide for new forms of agricultural development (particularly agroforestry) and changing patterns of existing agricultural development;
(iii)To regulate the subdivision of agricultural lands within this zone to ensure that land is not withdrawn from production or that the potential for land to be productive is not diminished;
(iv)To enable the development of land for other purposes where it can be demonstrated by the applicant that suitable land or buildings for the proposed purposes are not available elsewhere and that such purposes will not detrimentally affect the amenity of any existing or proposed new development;
…
(vi)To exclude urban development. (Any such land adjacent to existing urban areas and identified as generally suitable for urban expansion may be used for urban development after it has been suitably rezoned);
…
(viii)To discourage ribbon development along Caves Road and other tourist roads and maintain the rural ambience of transport corridors generally;
…
(xi)To control the clearing of trees and encourage generally the retention of vegetation and vegetation corridors concomitant with the agricultural use of the land.
The policies of the zone are also contained in Table 1 and include:
a)To permit land included within the zone and shown by close investigation in consultation with Agriculture Western Australia not to be prime agricultural land to be utilised for other purposes not incompatible with adjacent uses;
…
c)… As a general guide, the total allotment size for a commercial farm that will be recommended by Council to the WA Planning Commission is 30ha for viticultural pursuits and 20ha for horticultural pursuits …;
d)To otherwise, where environmental conditions allow, positively consider subdivision of rural land into allotments comprising a minimum of 40 hectares;
…
f)To implement and adhere to the adopted recommendations and outcomes of the Shire of Busselton Rural Strategy as endorsed by the WA Planning Commission.
Under Table 2 (Zoning Table) a limited number of non‑agricultural uses are permitted within the 'Agriculture' zone (that is, caravan parks, camping and chalets) with the special approval of Council.
Clause 103 of the Scheme provides the power for the Shire to make policies.
Rural Planning Strategy 2007
The subject land falls within Precinct 7 (Naturaliste). The vision for the precinct is outlined at cl 7.7.5:
Retain and conserve the natural environment, landscape values and character of the area in balance with limited tourist development.'
The objectives for the precinct at cl 7.7.6 include:
(a)maintain and protect the rural land and natural character and landscapes and existing land use mosaic as a priority;
(b)limit development to existing nodes and within existing planning parameters to ensure the high values of the area are not impacted upon; and
(c)to ensure that the planning in this precinct is consistent with the LNRSPP and Scheme provisions.
Under cl 7.7.7, rural/residential, rural smallholdings and urban development are identified as 'undesirable' land uses (other than in zoned areas) within the precinct.
Leeuwin-Naturaliste Ridge Planning Policy
The LNRSPP was prepared by the WAPC under the provisions of s 5AA of the Town Planning and Development Act 1928 (WA) (as amended). Those provisions continue in force and effect as provided for under s 25 of the PD Act.
Under s 241 of the PD Act, the Tribunal is required to have due regard to relevant planning considerations within any State planning policy such as the LNRSPP.
The overall objectives of the policy include:
•conserve and enhance the special benefits arising from landscape elements that form the fabric of the region;
•respect and conserve its natural and cultural heritage and environmental values;
…
•protect agricultural land for its economic, landscape, tourism and social values; [and]
•encourage a mix of compatible land uses while separating conflicting land uses;
…
In Figure 5 (Land Use Strategy Plan) the subject land is classified as 'agriculture and rural landscape', whilst in Figure 3 (Landscape Classes Map) Eagle Bay Road is classified as a 'travel route corridor with rural landscape significance'.
The document includes a statement of intent and various policies in relation to settlement, nature conservation, landscape, agriculture, tourism, cultural heritage and resources.
In regard to 'settlement', the policies include:
…
PS 1.4Appropriate buffers will be established to avoid coalescence of any settlements.
PS 1.5Rural Residential development may be permitted in the designated areas identified in the Land Use Strategy Plan.
In regard to 'Landscape', the statement of intent advises:
This is an extraordinary landscape which is part of the nation's heritage. Its unique values will be conserved by land use strategies and development assessment processes …
The 'Landscape' policies include:
…
PS 3.4In areas of Natural Landscape Significance, including where they are in Travel Route Corridors, the significant natural characteristics will be protected and provide adequate development setbacks …
…
PS 3.6In areas of Rural Landscape Significance, as identified in Figure 3, development or change of use should protect the rural character of the land.
…
In regard to 'Agriculture', the policies include under 'subdivision':
PS 4.1There is a general presumption against the subdivision of agricultural land for non‑agricultural purposes.
PS 4.2Notwithstanding PS 4.1, subdivision of land designated as Agricultural Protection will be considered under the following circumstances -
•where the proposed subdivision does not detract from the viability of the land for agricultural use; and
•where the proposed subdivision provides an opportunity to diversify or intensify the agricultural use of the land.
Under the land use strategy provisions, agricultural land is divided into principal agriculture (viticulture and grazing), principal agriculture (horticulture and grazing) and agriculture and rural landscape. The subject land falls into the last category which is described in cl 5.4 as:
Land in the Agriculture and Rural Landscape category comprises less Prime Agricultural Land than the Principal Agriculture categories but is recognised by the Strategy for its important contribution to the economic, social and environmental values of the policy area.
The policies relating to 'agriculture and rural landscape' include:
LUS 4.10In areas designated Agriculture and Rural Landscape, conserving productive agricultural potential and rural landscape values will be the principal criterion used in assessing subdivision applications and proposed changes of land use, to ensure that these values continue to predominate.
…
Eagle Bay Structure Plan 2007
The subject land falls within an area designated '12' on the structure plan. The relevant statement advises:
Development of intervening rural land between Eagle Bay and Cape Naturaliste roads to be limited to small scale tourism opportunities (eg guest houses) and low impact rural subdivision (min lot size 40ha).
The adjoining land to the north is designated '4' on the structure plan. The relevant statement advises:
No further subdivision of remnant portion of Pt Lot 50 Eagle Bay Road.
WAPC Statement of Planning Policy 2.5 (Agriculture and Rural Land Use Planning)
This policy, made under the provisions of s 5AA of the Town Planning and Development Act 1928 (WA) (as amended), applies to the planning of all rural and agricultural land in Western Australia and should be read in conjunction with Policy No DC 3.4 (Subdivision of Rural Land).
The policy objectives (cl 4) include:
…
(b)minimising the ad hoc fragmentation of rural land.
…
Under cl 5.3.1 (General Scheme Provisions for Rural Settlement) the policy advises:
(i)Land identified in the local planning strategy as being suitable for closer settlement in rural areas should be zoned 'Rural ‑ Residential' for a residential use in a rural environment, or 'Rural Smallholdings' for a residential use in association with a rural pursuit …
The policy suggests under cl 5.3.3 (Additional Scheme Provisions for the Rural Smallholding Zone) that in areas zoned for 'Rural Smallholdings', lot sizes should range from 4 hectares to 40 hectares.
In this matter under review, the proposed subdivision, at 14.66 hectares and 18.27 hectares, falls within the rural smallholding lot size criteria, but the land is not zoned for that purpose.
WAPC Policy No DC 3.4 (Subdivision of Rural Land)
The general policy requirement is explained under cl 3.1:
It is WAPC policy that the subdivision of rural and agricultural land for closer settlement (rural ‑ residential and rural smallholdings) and more intensive agricultural uses should be properly planned through the preparation of regional and local planning strategies and provided for in local planning schemes prior to subdivision.
Clause 4.1 further explains:
It is WAPC policy that, in the absence of the planned provision for closer settlement and more intensive agricultural uses, existing large rural lots be retained for broadacre and traditional forms of farming and that the fragmentation of rural land and loss of rural character through piecemeal, unplanned subdivision not be permitted.
The matter of the proposed subdivision
In the application for subdivision, a comprehensive report was prepared for the applicant by Planning South West Pty Ltd. It advised:
a)That proposed Lot 1 (northern lot) of approximately 14.6 hectares would have a frontage of some 145 metres to Eagle Bay Road and that all development would be contained within an indicative 2,000 square metre building envelope. Also, a restrictive covenant on the new title would preclude development within 100 metres of the Meelup Reserve and would prohibit clearing of vegetation within some 300 metres from Eagle Bay Road.
b)That proposed Lot 2 (southern lot) of approximately 18.3 hectares would have a frontage to Eagle Bay Road of approximately 170 metres and that all development, including the existing shed, would be contained within an indicative 2,000 square metre building envelope. Also, a restrictive covenant on the new title would preclude development within 100 metres of the Meelup Reserve and would prohibit clearing of vegetation within 100 metres of the Meelup Reserve and the clearing of vegetation within some 120 metres from Eagle Bay Road and centrally within the site.
As part of the submission, a so‑called visual impact analysis was displayed in photographic form. The photograph was taken on 18 February 2008 from the Cape Naturaliste lighthouse looking towards the subject land and shows that the existing vegetation would effectively screen the intended building envelopes on proposed Lot 1 and Lot 2.
The matter of land capability
In June 2006, a submission was lodged with the Shire by the consulting firm of Koltasz Smith on behalf of the applicant. The submission was in relation to the then 'draft' local rural strategy and included earlier written statements in relation to the potential of the subject land for viniculture, beef stocking rates and the viability of these enterprises. The overall conclusion from ND Veitch & Associates, Certified Practising Accountants, on 13 December 1991, was:
As this property is not commercially viable, it would seem to be in your best financial interests to dispose of the property.
As part of this review, a witness statement, dated 12 November 2008, was submitted by Mr Tim Johnston of Bedbrook Johnston Williams on behalf of the applicant. Mr Johnston is qualified in agricultural science and is a practising Farm Management Consultant.
In his submission, Mr Johnston advises:
a)that approximately 21 hectares out of a total 33 hectares is suitable for grazing;
b)that based on a) above, the property could support the running of 44 ewes or 66 wethers. For cattle, this would equate to 4 cow and calf units, plus one heifer; and
c)that based on b) above, it would not be possible to cover the operating costs for such a small number of animals, nor make a contribution to fixed costs (fencing, rates, electricity etc) from the potential income which could be generated.
Mr Johnston also advised that usually a case can be made for a smaller block to be farmed as part of a larger operation close by (farm build-up). However, in this case, given the small area involved, its poor carrying capacity and remoteness from mainstream agricultural properties, that there was little scope for it to be considered as a farm build-up block.
It was concluded that:
Lot 51 is atypical for the area due to the large amount of exposed laterite on the property and has no productive agricultural potential.
This conclusion may explain the incongruity of the land capability of the subject land relative to the adjoining property to the south (Lot 53 and Lot 101) which operates as a winery (Wise Winery) and a small blue gum plantation.
The matter of rural landscape significance
This matter was principally addressed by Mr David Bruce Kaesehagen in his witness statement dated November 2008. Mr Kaesehagen is qualified in Biological and Environmental Science and is a Director of Ecoscape Australia Pty Ltd.
The analysis used was the so‑called Arc GIC computer program which is a conceptual desktop method best complemented by a site visit to confirm the results of a 'viewshed' analysis. A 'viewshed' analysis calculates the areas that are visible from an observation point using a set of user‑defined parameters such as height of observer, height of target (height of proposed building) and extent of the viewing area.
For his study, a 'viewshed' analysis was conducted from the proposed building envelope on proposed Lot 1 with the building height set at 10 metres. The observer eye height was set at 1.6 metres with the viewing extent encompassing:
•Eagle Bay Road;
•Eagle Bay townsite;
•Meelup Bay Road (including lookout);
•Meelup Reserve;
•Cape Naturaliste Lighthouse; and
•Cape to Cape walk track.
A second 'viewshed' was conducted from the Cape Naturaliste Lighthouse with the observer height set at 15 metres (the height of the lighthouse viewing platform) and the target height of 10 metres (height of proposed building).
The analysis found that although theoretically the building could be seen from the Eagle Bay Road lookout on Meelup Beach Road and the Cape Naturaliste lighthouse and parts of the Meelup Reserve, the analysis assumes the absence of trees and other solid structures.
However, in reality the proposed dwelling would be surrounded by the existing tall vegetation, including marri and jarrah trees. There are also tall trees in the Meelup Reserve and along Eagle Bay Road.
The overall conclusion was that the proposed dwelling would not be prominent or obtrusive from Eagle Bay Road, Cape Naturaliste lighthouse, Meelup Bay Road lookout, Meelup Reserve or the Cape to Cape lookout.
It was further concluded that:
a)the proposed subdivision would not be visually significant in comparison to 2 hectare, 3 hectare or 5 hectare lots;
b)additional tree planting with local indigenous tree species would help maintain the rural context;
c)the new road interface to the subject land could be managed to maintain the existing rural character (fencing styles, road surfaces, presence of livestock);
d)appropriate design guidelines on building form and materials would assist in maintaining the rural character;
e)protective covenants on the existing vegetation would ensure screening of the proposed dwellings and the maintenance of the rural character; and
f)the proposed subdivision would not adversely affect the values of the rural landscape character which can be retained through proper management and design processes.
The matter of undesirable precedent
This matter was raised by the respondent in its reasons for refusal (reason No 7) as shown at [8] above.
However, in the witness statement dated November 2008 of Simon Lindsay Hall, a qualified town planner and Director of Planning South West, he advises:
17.The lot sizes proposed by this application reflect the rural lifestyle lots immediately adjoining the land.
In its consideration of undesirable precedent, the Tribunal would not normally limit itself to the subdivisional lot size of those lots immediately adjacent to the subject land. Its consideration would be more broadly based.
In Nicholls and Western Australian Planning Commission [2005] WASAT 40 (Nicholls), the Tribunal discussed, among other things, the concept of adverse planning precedent in planning assessment, and said that for precedent to be a relevant planning consideration, each of the following two tests must be satisfied:
(1)That the proposed development or subdivision is not in itself unobjectionable; and
(2)That there is more than a mere chance or possibility that there may be later undistinguishable applications.
The Tribunal will use these same criteria which were earlier stated by Justice Lloyd in Goldin v Minister for Transport (2002) 121 LGERA 101.
The matter of costs
In the applicant's submissions, dated 16 December 2008, the following argument is put:
46.… the Respondent abandoned any substantive reliance upon visual impact on or shortly before the date fixed for the exchange of evidence. By that time, the Applicant had engaged Mr Kaesehagen to undertake an assessment of the visual impact of the subdivision. The Applicant seeks the costs thrown away with respect to Mr Kaesehagen's fees pursuant to section 47(1)(a) of the State Administrative Tribunal Act 2004, namely that the relevant element of the case for the Respondent in these proceedings lacked substance.
In the respondent's submissions in relation to costs, dated 17 March 2009, the following argument was put:
a)At the time that the original SIFC (dated 27 October 2008) was lodged with the Tribunal, the respondent genuinely considered that the proposed subdivision may have an adverse impact on the rural landscape values of the subject land and the locality.
b)On further investigation, the respondent determined that it would not press the issue of the impact on the rural landscape values and amended its SIFC (dated 28 November 2008) accordingly at its [21].
c)As an application for review before the Tribunal is of a de novo nature, the applicant was required to place before the Tribunal those matters it considered would assist in determining the matter in its favour. As such, the evidence of Mr Kaesehagen on rural landscape values may be of assistance to the Tribunal, and it ought not be suggested that the costs in relation to Mr Kaesehagen's report were wasted.
d)The applicant's application for costs of Mr Kaesehagen's fees should be dismissed.
The matter of costs is covered under s 87 of the PD Act wherein, under s 87(1), the parties are expected to bear their own costs in a proceeding before the Tribunal.
However, costs can be awarded in certain circumstances and this matter was addressed in part in Aydogan and Town of Cambridge [2007] WASAT 19 at [47]:
The making of a costs application in relation to review proceedings which concern a genuine dispute as to planning merit normally involves unreasonable conduct warranting an order that the applicants for costs compensate the other party or parties for having had to defend the application …
In this case, the Tribunal needs to determine whether the material presented in the witness statement of Mr Kaesehagen was in fact of assistance in helping to produce the correct and preferable decision in terms of s 27 of the SAT Act.
Conclusions
The application for review was lodged against a decision of the WAPC to refuse an application for subdivision of a 32.9 hectare lot zoned for 'Agriculture' into two lots of 14.66 hectares and 18.27 hectares at Lot 51 Eagle Bay Road, Eagle Bay.
In undertaking the review, the Tribunal examined the respective position of the parties, the background to the proposal, the legislative and policy provisions and matters relating to the subdivisional proposal itself, land capability, rural landscape significance and undesirable precedent. An application for costs was also examined in relation to the work done by Mr D B Kaesehagen on behalf of the applicant.
The first matter to be determined is that of land capability, and the Tribunal accepts the evidence of Mr T Johnston; in particular, that the property as a single management unit is not a viable grazing operation and, due to the large amount of exposed laterite, has no agricultural potential.
Some supporting evidence to this effect was provided in a statement at Appendix 2 (Personal Grounds For Subdivision From Owner) to Mr S L Hall's witness statement wherein it advises:
The farm on the land is not economically sustainable and produces losses at the rate of $20,000 to $25,000 per annum.
This situation stands in contrast to the adjoining property to the south on which the Wise Winery operates. That property produces both grapes and olives.
In terms of the proposed subdivision, the Tribunal also accepts that every effort has been made to minimise the visual effects of the subdivision on the rural landscape. This is achieved by positioning the building envelopes on proposed Lot 1 and proposed Lot 2 so that they are not prominent or obtrusive when viewed from Eagle Bay Road and other strategic locations (for example, Cape Naturaliste lighthouse) and by way of restrictive covenants aimed to protect the existing vegetation. The evidence of Mr Kaesehagen was helpful in this regard.
However, if minimising the visual effects of subdivision on the rural landscape was all that it took to achieve an approval, then other rural lots in Busselton and elsewhere could progressively be broken down into smaller lots. What is also needed is an examination of the policy and statutory context which affects the subject land.
At the State level, the provisions of SPP 2.5 and DC 3.4, when read in conjunction with one another, present the policy position that the subdivision of rural land should be properly planned through the preparation of local planning strategies and that these strategies should be effected by way of a local planning scheme prior to subdivision. It is suggested that rural smallholdings should range from 4 hectares to 40 hectares.
What is also advocated is that the fragmentation of rural land and loss of rural character through piecemeal, unplanned subdivision should not be permitted.
These policies are underpinned by the LNRSPP, wherein there is a strong emphasis on preserving the landscape and to establish appropriate buffers (such as exists between Dunsborough and Eagle Bay) to avoid the coalescence of settlements.
At the local level, the EBSP suggests that land between Eagle Bay Road and Cape Naturaliste Road be limited to small scale tourism opportunities and low impact subdivision.
Under the RPS, rural smallholdings in Precinct 7 (Naturaliste), which encompasses the subject land, are identified as 'undesirable'. However, the Scheme does indicate that the Shire will, where environmental conditions allow, positively consider subdivision into allotments comprising a minimum of 40 hectares. In this case, the Shire did not support the proposed subdivision.
In considering a proposed subdivision, such as that contemplated in this case, the Tribunal is confronted with a range of State and local policies which must be assessed. However, as explained in Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433, Justice Barker noted at [24] that a policy is 'not intended to replace the discretion of the [administrator] in the sense that it is to be inflexibly applied regardless of the merits of the particular case before it'.
Again, at [24], His Honour noted that 'the relevant consideration in many applications will by why the "policy" should not be applied; why the planning principles that find expression in the "policy" are not relevant to the particular application'.
In the applicant's submissions of 16 December 2008, at [24] ‑ [39], the argument is put at [25]:
… that the various statements of policy objectives are designed to achieve outcomes which themselves have become irrelevant as a consequence of the circumstances of the land and the inapplicability of the criteria which dominated the Respondent's original decision to refuse the application …
The argument is also advanced at [28] that:
Although rural residential[,] rural smallholding and urban development are perceived to be 'undesirable', no rationale is advanced to determine, first, why they are undesirable or, secondly, provide a comprehensive and cogent explanation of those factors leading to undesirability which can be distinguished or applied (as the case may be) in the present instance.
The Tribunal would acknowledge that the applicant's submissions in [88] and [89] are worthy of consideration. However, it is the case, as explained in [81] ‑ [85] above, that there is no relevant policy provision that would support the proposal other than a circumstance where subdivision would represent an opportunity to diversify or intensify the agricultural use of the land as outlined in [37] above. That circumstance does not present itself in this case, due to the limited capability of the land for productive agriculture.
Also, it must be said that there is a measure of consistency in the relevant policy documents which effectively argue against isolated rural subdivision proposals of the size contemplated. In other words, an approval could be justifiably construed as being contrary to orderly and proper planning.
On the matter of undesirable precedent, the manner in which this should be assessed is advanced in Nicholls at [67] above.
In that respect, the Tribunal believes that the subdivision is 'not unobjectionable' in that it is contrary to orderly and proper planning and there is, in the view of the Tribunal, more than a mere chance or possibility that there may be other undistinguishable subdivisions.
An examination of the subdivisional pattern in the broad locality, and along Cape Naturalise Road in particular, shows a series of lots in the same order of size or bigger than the subject land where an approval in this instance could encourage those other landowners to unnecessarily attempt to subdivide.
In this specific case, although subdivision may understandably advance the objectives of the landowner, it would not advance the planning objectives of the area. It is only by retaining the existing lot sizes of 'Agriculture' zoned land along Eagle Bay Road that the communities of Eagle Bay and Dunsborough are effectively separated, and that the overall planning objectives for this locality are maintained at this point in time in the planning process.
On the matter of costs, the Tribunal supports the arguments of the respondent. It is the case that the applicant has used the arguments of Mr Kaesehagen to advance its position (as explained in the applicant's submissions of 16 December 2008 at [39] and elsewhere) and that the Tribunal was assisted by Mr Kaesehagen's work.
Orders
For the foregoing reasons, the orders of the Tribunal are as follows:
1.The application for review is dismissed.
2.The application for costs is dismissed.
I certify that this and the preceding [97] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR L GRAHAM, SENIOR SESSIONAL MEMBER
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