ZIMMERMAN and WESTERN AUSTRALIAN PLANNING COMMISSION
[2006] WASAT 99
•20 APRIL 2006
ZIMMERMAN and WESTERN AUSTRALIAN PLANNING COMMISSION [2006] WASAT 99
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 99 | |
| TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) | |||
| Case No: | DR:611/2005 | 16 FEBRUARY 2006 | |
| Coram: | MR L GRAHAM (SESSIONAL MEMBER) | 20/04/06 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | The application for review is dismissed | ||
| B | |||
| PDF Version |
| Parties: | DL ZIMMERMAN WESTERN AUSTRALIAN PLANNING COMMISSION |
Catchwords: | Private right-of-way – Average lot size – Undesirable precedent – Easement – Steepness of the terrain – Development plan – Natural landscape resource – In consonance with – Seriously entertained planning proposal |
Legislation: | Town Planning and Development Act 1928 (WA), s 5AA, s 61(1)(a) Shire of Toodyay Town Planning Scheme No 1, cl 3.8.1, cl 3.8.6 Shire of Toodyay Draft Town Planning Scheme No 4 |
Case References: | Aspen Pty Ltd v State Planning Commission (Unreported; Appeal No 13 of 1988; 21 October 1988), Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117 Lloyd Sales Pty v Subiaco City Council (Unreported; Appeal No 50 of 1981; 22 June 1982), Tang v City of Stirling (1982) 5 APA 161 Nil |
Orders | 1. The application of the review is dismissed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) CITATION : ZIMMERMAN and WESTERN AUSTRALIAN PLANNING COMMISSION [2006] WASAT 99 MEMBER : MR L GRAHAM (SESSIONAL MEMBER) HEARD : 16 FEBRUARY 2006 DELIVERED : 20 APRIL 2006 FILE NO/S : DR 611 of 2005 BETWEEN : DL ZIMMERMAN
- Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Private right-of-way – Average lot size – Undesirable precedent – Easement – Steepness of the terrain – Development plan – Natural landscape resource – In consonance with – Seriously entertained planning proposal
Legislation:
Town Planning and Development Act 1928 (WA), s 5AA, s 61(1)(a)
Shire of Toodyay Town Planning Scheme No 1, cl 3.8.1, cl 3.8.6
Shire of Toodyay Draft Town Planning Scheme No 4
(Page 2)
Result:
The application for review is dismissed
Category: B
Representation:
Counsel:
Applicant : Selfrepresented
Respondent : Mr MJ Algeri
Solicitors:
Applicant : N/A
Respondent : N/A
Case(s) referred to in decision(s):
Aspen Pty Ltd v State Planning Commission (Unreported; Appeal No 13 of 1988; 21 October 1988),
Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117
Lloyd Sales Pty v Subiaco City Council (Unreported; Appeal No 50 of 1981; 22 June 1982),
Tang v City of Stirling (1982) 5 APA 161
Case(s) also cited:
Nil
(Page 3)
Summary of Tribunal's decision
1 The application for review by Mr DL Zimmerman arises from a decision of the Western Australian Planning Commission to refuse the subdivision of a 22.9 hectare rural zoned lot into two lots of 10.6 hectares and 12.3 hectares.
2 The review required an analysis of established State policy on rural land and relevant existing and proposed local statutory scheme provisions. The question of whether there is a justified planning reason for the subdivision was examined as well as the matter of precedent.
3 In summary, the Tribunal concludes that it can see no valid planning reason why the subdivision should be allowed to proceed on the basis of the current zoning under the Shire of Toodyay Town Planning Scheme No 1. Again, with respect to "draft" Town Planning Scheme No 4 and the "draft" Local Planning Strategy, it is the view of this Tribunal that it needs to arrive at a judgment in consonance with those documents which seek an average lot size significantly higher than that proposed by the applicant.
4 Accordingly, the application for review is dismissed.
Introduction
5 The application for review by Mr DL Zimmerman (applicant) on 24 October 2005, results from a decision letter of the Western Australian Planning Commission (respondent), dated 5 October 2005, to refuse the proposed subdivision of a 22.9859 hectare rural zoned lot (subject land) into two lots of 10.25 hectares and 11.79 hectares with an associated right-of-way. The application for subdivision was lodged with the respondent on 12 August 2005.
6 An earlier application for the subdivision of the subject land into six lots ranging from 2.51 hectares to 4.76 hectares had been withdrawn by the applicant due to the prohibitive cost of the requirement for underground power.
7 At a directions hearing on 16 November 2005, the applicant was requested to lodge an amendment to the current application to show the removal of the private right-of-way, resulting in a proposed Lot 1 (10.6 hectares) and a proposed Lot 2 (12.3 hectares) with direct access to a public right-of-way. This public right-of-way adjoins, and is
(Page 4)
- immediately south of, the so-called Donkey Crossing which is a local road traversing the Standard Gauge Railway line.
8 In its letter of 5 October 2005, the respondent advised:
"The reasons for WAPC refusal are:
1. The proposed subdivision is contrary to Commission Policy DC 3.4 – Subdivision of Rural Land, a provision of Statement of Planning Policy No.1, by reason that the subdivision is located in a rural zone where there is a general presumption against further subdivision.
2. The proposal does not meet the criteria in Clause 3.2 (Subdivision for Specific Purposes) of Commission Policy DC3.4 [sic] – Subdivision of Rural Land to warrant an exemption from the general presumption against subdivision of rural land as the paved access easement shown on the plan of subdivision is not considered to form a significant barrier to the use of the land as a single entity.
3. The proposed subdivision is inconsistent with the 'Rural' zoning of the land, the principal purpose of which is to preserve its rural use and density of development. The subdivision, if permitted, would result in an unplanned breakdown of land holdings.
4. Approval to the subdivision would set an undesirable precedent for the further subdivision of surrounding lots.
5. Approval to the subdivision would result in the creation of a lot not having frontage to a constructed and gazetted road."
9 In the view of the Tribunal, the amendment to the current application as outlined in [7] above, automatically invalidates the respondent's reasons for refusal numbers (2) and (5) as the private right-of-way has been removed and proposed Lot 1 and Lot 2 are now intended to front a public right-of-way.
(Page 5)
Subject land
10 The subject land is described as Lot 1 on Certificate of Title Volume 1901, Folio 560 on Plan Number 17338. It has an area of 22.9859 hectares.
11 The subject land is located approximately 4 kilometres south-east of Toodyay in the Shire of Toodyay (the Shire), and is accessed from the Northam-Toodyay Road via Donkey Crossing. The northern boundary of the subject land abuts the Standard Gauge Railway line which must be crossed in order to immediately access the subject land.
12 The subject land occupies the north-west area of Windmill Hill, the second highest hill in the Shire. It is traversed by an easement which provides bituminised road access from the lowest point of the property at the public right-of-way to the top of the hill. There are magnificent valley views across rural land and the Avon River, and the easement provides access to the applicant's home near the top of the hill and a neighbour's property (Lot 71) on the crest of the hill. There are some outbuildings on the property.
Legislation framework
13 The subject land is zoned "Rural 5 – Resource Conservation" under the Shire of Toodyay Town Planning Scheme No 1 (TPS 1).
14 At the time of the hearing on this matter, neither the "draft" Town Planning Scheme No 4 ("draft" TPS 4), nor the "draft" Local Planning Strategy ("draft" LPS) had been finalised, but, although for the purposes of this review the matter will be assessed from a local perspective against the provisions of TPS 1, the relevant provisions of the "draft" documents will also be taken into account.
15 From a State-wide perspective, the provisions of s 5AA of the Town Planning and Development Act 1928 (WA) (TPD Act) are relevant. The provision requires the Tribunal "to have due regard" to such statements under s 61(1)(a) of the TPD Act.
16 Specific policies relevant to this matter include:
• Subdivision of Land – General Principles (DC 1.1);
• Statement of Planning Policy No 2.5 – Agricultural and Rural Land Use Planning (SPP 2.5); and
• Rural Land Use Planning (DC 3.4).
(Page 6)
Respondent's position
17 The respondent's position is broadly outlined in its Statement of Issues, Facts and Contentions, dated 13 January 2006. It argues:
a) The proposed subdivision is inconsistent with SPP 2.5 and DC 3.4 as it is not specifically provided for in any town planning scheme, endorsed local planning strategy or endorsed local rural strategy;
b) There is no information to demonstrate that the proposed lots are of sufficient size to be environmentally and economically viable and sustainable for any agricultural enterprise, and that they could be approved on this basis pursuant to the provisions of cl 6.41.1(b) of DC 3.4;
c) An approval will result in closer subdivision and an ad hoc fragmentation of rural land with an undesirable settlement pattern. This would be at variance with cl 2 of DC 3.4 and cl 4(1)(b) of SPP 2.5;
d) The respondent is unaware of the existence of a development plan or subdivision guide plan covering the subject land and nearby properties, the existence of which would assist in ensuring orderly and proper subdivision of land and help prevent the ad hoc fragmentation and unplanned breakdown of the land.
e) The proposed subdivision does not achieve any of the objectives for rural zoned land as set out in cl 3.8.1 of TPS 1;
f) It is likely to be difficult to use or develop a large part of proposed Lot 2 for certain of the permitted uses as specified at cl 3.8.6 of TPS 1 due to the steep topography that characterises proposed Lot 2;
g) Whilst the "draft" TPS 4 and "draft" LPS designate the land for "Rural Living" purposes, the proposed subdivision does not achieve the average lot size requirement of between 15 hectares and 20 hectares.
h) Approval of the subdivision would constitute an undesirable precedent for the further subdivision of other lots in the locality;
(Page 7)
- i) None of the lots cited by the applicant, apart from Lot 2 "Windmill Hill", are sufficiently similar to the subject land to create any precedent;
j) Notwithstanding any similarities between the proposed subdivision and the lots that were created when Lot 2 "Windmill Hill" was subdivided in 2002, the respondent contends that the subdivision was refused by the respondent and allowed in exceptional circumstances pursuant to an appeal and mediation process. It would be undesirable for the proposed subdivision to be approved on the basis of that subdivision; and
k) The proposed subdivision should be considered on its merits.
Applicant's position
18 The position of the applicant is explained in the witness statement of the applicant, dated 2 February 2006. He broadly argues:
a) On the question of DC 3.4 and the general presumption against further subdivision in a rural zone, there are over 60 lots within an 800 metre circle from the boundary of the subject land.
b) The respondent is rightfully concerned about land holdings that are agriculturally valuable or viable and should not be broken down into smaller lots. However, the subject land is of no use for farming or grazing of any kind, due to both the quality of the soil and the steepness of the terrain.
c) The newest subdivision in Toodyay of 17 lots, average less than 2 hectares and are within the 800 metre circle of the subject land. These lots occupy some of the best growing soil in the Shire.
d) On the question of precedent, a next door neighbour who shares the top of "Windmill Hill", subdivided his Lot 2 into Lots 71 and 72. Lot 71 measures 9.62 hectares and would border the proposed Lot 2 at 12.31 hectares. In placement, soil and other characteristics the lots are identical.
e) The recent amendment to the site plan, following the directions hearing of 16 November 2005, has provided both of the proposed lots with frontage to a constructed gazetted road.
(Page 8)
- f) There was no opposition to the proposed subdivision from the Shire, the Water Corporation, Western Power, the Department of Environment or the Department of Industry and Resources.
g) The "draft" TPS 4 and "draft" LPS have yet to be approved and cannot be used as law or policy.
h) It has been argued by the respondent that the proposed subdivision is not supported in a town planning scheme, local planning strategy or rural strategy. If no schemes are available, then precedence should allow the approval of the subdivision.
i) The respondent has argued that much of the subject land is located on the face of "Windmill Hill" and is readily visible from the main highway. Both proposed lots have existing buildings with proposed Lot 2 containing the existing residence. Only one corner of the house can be seen from the highway and the building site for proposed Lot 1 cannot be seen from the highway.
Planning issues
19 The principal planning issues are whether the subdivision proposals would be contrary to established State policy and, existing and proposed local statutory provisions. Again, the matter of whether there is a justified planning reason for the subdivision needs to be examined, as well as the issue of precedent.
State policy
20 The relevant provisions of DC 1.1 are contained in s 2 (Policy Objectives) and include:
"…
• To ensure that all lots created have regard to the provisions of the relevant local government town planning scheme.
…
• To ensure that the subdivision is consistent with orderly and proper planning and the character of the area."
(Page 9)
21 One of the four key objectives of SPP 2.5 is to protect agricultural land resources wherever possible by:
"(a) discouraging land uses unrelated to agriculture from locating on agricultural land;
(b) minimising the ad hoc fragmentation of rural land; and
(c) improving resource and investment security for agricultural and allied industry production."
22 A further key objective of SPP 2.5 is:
"4. [To] [c]arefully manage natural resources …"
23 The most relevant provision of DC 3.4 is cl 3.1 which contains a general presumption against the subdivision of rural land unless it is specifically provided for in a town planning scheme, an endorsed local planning strategy or an endorsed local rural strategy.
24 It is clear to the Tribunal that State policy treats rural land as both a natural and an agricultural resource, and that its ad hoc subdivision should be avoided. However, if subdivision is to occur, it should be in accordance with a relevant strategy or town planning scheme.
Local scheme and policy
25 The subject land is zoned "Rural 5 – Resource Conservation" under TPS 1 which provides under cl 3.8.1:
"Council's objective will be to ensure that land management within the zone is consistent with, and that any development will enhance the zone's status as a major scenic and recreation resource.
Council's Policy will therefore be to:
(a) retain and enhance tree and vegetation cover in order to assist against any deterioration of the zone's landscape and ecology.
(b) permit rural uses to continue in a manner consistent with good land management practice and with the enhancement of the zone's environment.
(Page 10)
- (c) exercise controls over the siting and design of buildings or works so as to enhance the visual character of the zone.
(d) assist in the obtaining of additional reserved land where this may be desirable to protect critical areas of landscape or recreational value.
(e) permit appropriate uses of a recreational nature subject to adequate controls on level of activity and siting of such uses."
26 The subject land is intended to be zoned "Rural Living" under "draft" TPS 4. The objectives of the zone are:
"(i) identify areas with convenient access to the Toodyay town site to take advantage of services provided in the area;
(ii) to provide for a range of lot sizes between 5 hectares to 40 hectares, with an average of 15 hectares to 20 hectares depending on topography and landscape;
(iii) allow for range of lifestyle opportunities including hobby farming, rural pursuits, cottage industry and intensive agriculture; and
(iv) provide for tourism related accommodation."
27 There is also provision in "draft" TPS 4 for the preparation of a development plan if required by Council to include a range of information on servicing, land capability and environmental considerations, as well as the integration of the proposed subdivision with surrounding development.
28 The "draft" LPS complements "draft" TPS 4 in terms of the range of lot sizes between 5 hectares and 40 hectares with an average of 15-20 hectares depending on land capability.
29 In the view of the Tribunal, TPS 1 seeks to enhance the "Rural 5 – Resource Conservation" zone as a major scenic and recreation resource whereas "draft" TPS 4 opens up the prospect of subdivision within the "Rural Living" zone under which the subject land would fall. However, the suggested average lot size of 15 hectares to 20 hectares is well above that currently sought by the applicant.
(Page 11)
Reasons for subdivision
30 In his final written submissions dated 21 February 2006, the applicant argues that the land cannot and will not be used for agricultural purposes, and the best and most logical use is for large lots on which upmarket homes could be built.
31 In his application for review, dated 24 October 2005, the applicant explained:
"The composition of the soil on Windmill Hill is sandy, composed of small granite or quartz type rocks and gravel. It is far too rocky to produce crops … and is not suitable for agricultural use. It is also too steep to farm and erosion is an ever present problem … Care has been taken with the siting of roadways and fire breaks to contain the run off. We tried agisting sheep for one year, but found they reduced the ground cover to such a degree that it caused major erosion ..."
32 In the final written submissions of the respondent, dated 18 February 2006, they argue that the proposal is contrary to the established planning framework and all the attendant planning instruments, and there are access issues in that the proposed lots (as well as some of the existing surrounding lots) have neither desirable, nor the most appropriate access to a public road.
33 The lot configuration and access arrangements were explained for the respondent in the witness statement of Mr Logan:
• When the subdivision that created the subject land and the adjacent Lot 2 (now Lots 71 and 72) to the south was approved, provision was made for Lot 2 to be accessed by way of a long battleaxe of some 395 metres in length.
• From a practical point of view, the battleaxe leg was unworkable because of the difficult topography, and vehicular access to Lot 2 was gained by traversing the subject land by way of the easement and its access road.
• When Lot 2 was subdivided in 2002, provision was made for the battleaxe leg to be split into existing Lots 71 and 72 with a "touch point" with the right of way extension off Donkey Crossing.
• It appears that the resulting battleaxe legs of Lots 71 and 72 could not be used for vehicular access because of the steep
- topography and both lots were reliant on the existing road that traverses the subject land along the easement.
- • An approval to the current application would be unsatisfactory and would continue the somewhat unsatisfactory access arrangements that have been made in the past.
34 In summary, the applicant sees subdivision of unproductive rural zoned land for essentially "lifestyle" purposes as the best use of the resource, whereas the respondent sees subdivision as contrary to existing and proposed planning instruments. However, if subdivision was to occur, the respondent believes it should be in context of a network of existing and likely future roads to support the future subdivision of other properties in the vicinity.
Precedent
35 A major argument advanced by the applicant, are the precedents created by numerous lots within an 800 metre circle from the subject land (area "H"). These are outlined in the application for review and include:
• A row of eight houses, each on a lot of about one-tenth of a hectare (area "A");
• A subdivision of Shire owned land into 25 small parcels for use as industrial lots (area "B");
• A new subdivision of 17 1 hectare to 1.2 hectare lots adjacent to area "B" and currently being prepared for sale (area "C");
• One lot of 6.5 hectares (area "D") and one lot of 17.8 hectares (area "K") to the west of Donkey Crossing;
• Three 4 hectare lots (area "E");
• A small lot created as a public right-of-way as an extension of Donkey Crossing (area "F");
• The subdivision of Lot 2 on "Windmill Hill" into Lots 71 and 72 (area "G").
36 The applicant argues that of the 61 lots within the 800 metre circle, 53 average about 2 hectares and only four match the size requirements of TPS 1 or "draft" TPS 4.
37 In his witness statement, Mr Logan argues that some of the lots were created as far back as the nineteenth century. He explains:
(Page 13)
- • area "A" – These housing lots were created many years ago. There are no records available;
• area "B" – The lots are zoned "Industry" in TPS 1;
• area "C" – the lots are designated "Special Site – Special Residential" in TPS 1;
• areas "D", "E", "F", "G" and "K" are all zoned "Rural 5" in TPS 1 and were created during the 1980's with the exception of area "G" which was allowed on appeal in 2002.
38 Based on the information before the Tribunal, it would appear that a large number of the lots within the applicant's 800 metre circle were created or zoned for specific purposes (areas "A", "B" and "C"). The creation of the right-of-way (area "F") as an extension to Donkey Crossing is irrelevant to the argument.
39 The creation of areas "D", "E", "G", "H" (the subject land) and "K" have all been the result of a gradual breakdown of the rural zone with the most recent (area "G") seeing the breakdown of former Lot 2 into Lots 71 and 72 on appeal to the then Town Planning Appeal Tribunal.
Assessment of proposal
40 The proposal before the Tribunal is to subdivide a rural zoned lot on the north-west site of "Windmill Hill" in Toodyay into two lots of 10.6 hectares and 12.31 hectares.
41 What can be said of the land after an on-site visit by the Tribunal and the parties on 16 February 2006 is, that at its highest point, the subject land has magnificent valley views and views across the Avon River.
42 As explained in the application for review, the subject land was part of an original 73 hectare property which was subdivided into three lots of approximately 24 hectares each; two of which were on "Windmill Hill" and the other on lower land to the west of Donkey Crossing. This last lot was subsequently subdivided into two lots of 6.5 hectares and 17.8 hectares as referred to in [35] above as area "D" and area "K".
43 Of the two lots on "Windmill Hill", Lot 1 is the subject land whilst Lot 2 was the subject of an application for subdivision. This application was refused by the respondent but subsequently allowed, on appeal, into two lots (Lots 71 and 72) in 2002 by the then Town Planning Appeal Tribunal. The current application for review is attempting to achieve a similar result.
(Page 14)
44 In assessing this review under State policy, and as explained in [24] above, it is clear that rural land is regarded as both a natural and agricultural resource in Western Australia and that ad hoc subdivision should be avoided. However, subdivision is possible as long as it is in accordance with an endorsed local planning strategy, an endorsed local rural strategy or provided for in a town planning scheme.
45 In the case of the subject land, it is certainly a natural landscape resource but, according to the applicant, it has little or no agricultural value. There is no reason for the Tribunal to doubt this claim and it is certainly not an issue between the parties.
46 A point to be made here is that there are many rural properties in the State where a portion of the land is unsuitable for agricultural purposes because of soil type or the steepness of the land. But that is not a reason to excise the non-productive land for subdivision.
47 The only difference in this case, is that the subject land has resulted from an earlier subdivision of a 73 hectare parcel which itself may have been the result of an earlier breakdown of rural land. In other words, what has been happening over time is a gradual breakdown of rural land into smaller lots.
48 With regard to local statutory provisions and policy, the subject land is zoned "Rural 5 – Resource Conservation" in TPS 1. In that respect, it must be said that the gradual breakdown of a natural landscape resource into essentially "lifestyle" lots is difficult to justify; particularly where there is no obvious intent within TPS 1 to support subdivision within the zone. Rather, the intent is more towards conservation and preservation in order to assist against any deterioration of the landscape.
49 Regarding the "draft" TPS 4 and the "draft" LPS, their progress is explained by Mr Logan in his witness statement in this way:
"26. The adopted Draft LPS together with Draft TPS 4 were advertised for public comment for a 90 day period ending on 27 November 2003, and 31 submissions were received. As a result modifications have been made to both Draft LPS and Draft TPS 4, and the modified Draft LPS will be tabled shortly for adoption by the Council. Draft TPS 4 was relevantly adopted by the Shire of Toodyay on 22 July 2004 and is currently being held in abeyance by the Respondent pending adoption of the
- revised version of the Draft LPS. This is expected to occur in February 2006."
50 As the applicant has dismissed the relevance of both draft documents, their importance to this matter must be assessed. The respondent's view is that "draft" TPS 4 is a seriously entertained planning proposal.
51 In Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117 at page 125 it states:
"It is important, in the public interest, that whilst the respondent council's local scheme is under consideration this Court should, in the exercise of its appellate jurisdiction … avoid, as far as possible, giving a judgment or establishing any principle which would render more difficult the ultimate decision as to the form the scheme should take. It is also important, in the public interest, that during that period this Court should, in the exercise of the jurisdiction referred to, arrive at its judgment, so far as possible, in consonance with town planning decisions which have been embodied in the local scheme in the course of preparation."
52 Again, in Tang v City of Stirling (1982) 5 APA 161 it stated:
" … where a scheme has been adopted by formal resolution of the council and transmitted to the Town Planning Board for consideration, it is a proposal which must be regarded as seriously entertained and relevant for consideration."
53 In Lloyd Sales Pty v Subiaco City Council (Unreported; Appeal No 50 of 1981; 22 June 1982), it argues that the weight to be given to the planning proposal will in each case depend on the degree of likelihood of the seriously entertained document being finally adopted.
54 In the case of the "draft" statutory TPS 4, it is clear to the Tribunal that it has reached a stage, as outlined in [49] above, where it must be considered as a seriously entertained planning proposal. To that extent, the subject land would fall within a "Rural Living" zone with a range of lot sizes between 5 hectares to 40 hectares with an average of 15 hectares to 20 hectares depending on topography and landscape.
(Page 16)
55 What seems to have happened in the shift from TPS 1 to "draft" TPS 4 is a shift in policy objective from resource conservation to one of constrained subdivision within clearly defined parameters.
56 On the question of precedent, it is a matter on which the applicant heavily relies; particularly the subdivision of adjacent Lot 2 "Windmill Hill" into Lots 71 and 72 in 2002.
57 As explained in Aspen Pty Ltd v State Planning Commission (Unreported; Appeal No 13 of 1988; 21 October 1988), precedent is not treated as a "stand alone" argument and is but one factor to take into account in assessing a proposal.
58 What can be said is that since 2002, when Lot 2 "Windmill Hill" was subdivided into Lots 71 and 72, "draft" TPS 4 has moved to a point where it was relevantly adopted by the Shire on 22 July 2004. It is now a seriously entertained planning proposal and its provisions need to be taken into account.
59 In summary, the Tribunal concludes that it can see no valid planning reason why the subdivision should be allowed to proceed on the basis of the current zoning under TPS 1 which is largely there for conservation and preservation of the land resource and to assist against any deterioration of the landscape. Again, with respect to "draft" TPS 4 and its complementary "draft" LPS, the Tribunal needs to arrive at a judgment in consonance with those documents. Both documents seek an average lot size of 15 hectares to 20 hectares which is not contemplated by the proposal.
Orders
60 For the foregoing reasons, the Orders of the Tribunal are as follows:
1. The application of the review is dismissed.
- I certify that this and the preceding [60] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR L GRAHAM, SESSIONAL MEMBER
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