Protection of viticulture - Rural character and amenity - Undesirable precedent - Rural-residential lots - Area B

City of Swan Town Planning Scheme No 9, cl 8.2.2.1, cl 8.2.2.2(a)(1), cl 8.2.2.2(b)

Planning and Development Act 2005 (WA), s 134

Swan Valley Planning Act 1995, s 8

Town Planning and Development Act 1928 (WA), s 5AA, s 24A(5), s 61(1)(a)

Aspen Pty Ltd v State Planning Commission (Unreported; Appeal No 13 of 1988, 21 October 1988)

Brister, R & Ors and Western Australian Planning Commission [2003] WATPAT 103

1 The application for review by IK Nurmi and RL Nurmi, and AOT Kinnunen and IL Kinnunen has resulted from a decision of the Western Australian Planning Commission, on 27 February 2006, to not support the subdivision of a 2.48 hectare rural zoned lot in the Swan Valley, in the City of Swan, into two lots of approximately 1.41 hectares and 1.07 hectares.

2 In undertaking this review, the Tribunal has had regard to both State policy, as it relates to the subdivision and development of rural land, and also to the objectives of Area B as outlined in the Swan Valley Planning Act 1995 (WA). In addition, the matter of precedent was also examined.

3 In the view of the Tribunal, an approval for essentially two rural-residential lots in the circumstances of this case would be inconsistent with the prime objectives of both State rural policy and the Swan Valley Planning Act 1995 for Area B. Also, even though each case would have to be considered on its merits, to uphold this application for review would be likely to unnecessarily encourage other owners in similar circumstances to seek to subdivide relatively small lots in Area B.

4 The application for review by Mr PS Ramanathan on behalf of the applicants and dated 23 March 2006, was lodged against the decision of the Western Australian Planning Commission (respondent) on 27 February 2006 to not allow the subdivision of a single 2.4838 hectare rural zoned lot into two lots of approximately 1.41 hectares and 1.07 hectares in the City of Swan.

5 The applicants are listed as IK Nurmi and RL Nurmi, and AOT Kinnunen and IL Kinnunen.

6 The reasons for refusal were contained in the respondent's advice of 27 February 2006:

1. The land is zoned 'Rural' in the Metropolitan Region Scheme and in Council's Town Planning Scheme. The purpose and intent of this zoning is to preserve the area's current rural use and density of development. Subdivision in the manner proposed would create the potential for additional building development and the introduction of increased [non-rural] activity in conflict with the zoning objections.

2. The Commission's Rural Land Use Planning Policy requires Councils to prepare a Local Rural Strategy to comprehensively plan for change and development in rural areas. In the absence of an approved Local Rural Strategy, the Commission is not prepared to approve the subdivision of rural land that would lead to unplanned development and could prejudice the future planning, development and use of the Area and/or the rural land resources.

3. Although there are some smaller lots nearby, the lots proposed are smaller than the prevailing lot size in the locality. Approval to the subdivision would set an undesirable precedent for other similar subdivision nearby.

4. The Commission considers that the proposed subdivision is contrary to the Government's objective to conserve and enhance the Swan Valley's unique resources, particularly its rural character and amenity, as outlined in the Swan Valley Planning Act (1995) [sic]."

7 The subject land is Lot 40, Campersic Road, Herne Hill, on Certificate of Title Volume 1473, Folio 584 (subject land). It has an area of 2.4838 hectares and is located at the corner of Campersic Road and Toodyay Road.

8 There are two existing homes on the subject land, each containing an associated "granny" flat. There are several outbuildings on the subject land, together with fruit trees and a small vineyard adjacent to, and north of, the Toodyay Road frontage.

9 The subject land slopes from approximately 38 Australian Height Datum (AHD) at its north-west corner to approximately 25 AHD at its south-west corner.

10 The subject land is zoned "rural" in the Metropolitan Region Scheme (MRS) and "Swan Valley rural" in the City of Swan Town Planning Scheme No 9 (TPS 9).

11 The matter is covered under s 5AA of the Town Planning and Development Act 1928 (WA) (TPD Act) which provides for "Statements of Planning Policy". The Tribunal is required "to have due regard" to such statements under s 61(1)(a).

12 Specific policies relevant to the matter under s 5AA of the TPD Act include:

a) Statement of Planning Policy No 1: State Planning Framework (SPP 1);

b) Development Control Policy 1.1: Subdivision of Land - General Principles (DC 1.1);

c) Development Control Policy 3.4: Subdivision of Rural Land (DC 3.4); and

d) Statement of Planning Policy No 2.5: Agriculture and Rural Land Use Planning (SPP 2.5).

13 Additional policies and legislation relevant to the matter include:

a) A Rural Small Holdings Policy Study, 1977 (RSHPS);

14 The respondent's position is outlined in their Statement of Issues, Facts and Contentions, dated 17 May 2006. The statement broadly argues:

"The purpose and intent of the Swan Valley Rural Zone is to promote the Area primarily as a horticultural, recreational, tourism and landscape resource, with areas containing high quality horticultural soils and scarce plastic clays receiving special protection."

b) Clause 8.2.2.2(a)(1) and cl 8.2.2.2(b) of TPS 9 provide that the City of Swan shall, in dealing with planning and development applications, apply the planning objectives of Area B as specified in the SVP Act.

The subject land is located within Area B under the SVP Act. Section 8 provides the following objectives for Area B:

2. The provision of water for viticulture and horticulture and the discouragement of other activities that have high water demands.

3. The encouragement of tourist facilities provided that they do not detract from the rural character of the area.

4. The encouragement of traditional activities of the Swan Valley and industries associated with viticulture, horticulture and cottage industry.

5A. The limited expansion of existing retail and community facilities at Herne Hill, Caversham and West Swan.

6. The compatibility of design, siting and landscaping with the character of the area.

7. The discouragement of uses that are incompatible with the rural character and traditional agricultural activities of the area.

8. The extraction of basic raw materials so far as it is compatible with the character and amenity of the Area and subject to the rehabilitation of the affected land.

9. The subdivision into lots of less than 4 hectares only where this is consistent with the objectives set out in this section.

10. The avoidance of overstocking, of activities causing pollution or degradation of the environment and of any other land management practices detrimental to the amenity of the area."

a) The provisions of the policy generally relate to the preparation and assessment of regional and town planning schemes, structure plans and local planning strategies, and focus on the identification and protection of highly productive agricultural land throughout Western Australia.

b) Clause 4 of the policy sets down key objectives which aim to protect agricultural land by minimising its ad hoc fragmentation and to carefully manage the natural resource by discouraging development and/or subdivision that may result in land or environmental degradation.

"There is a general presumption against subdivision of rural land unless it is specifically provided for in a town planning scheme, an endorsed local planning strategy or an endorsed local rural strategy."

b) Clause 3.2.1 of the policy provides for subdivision of rural land in certain circumstances such as for the relocation of boundaries where no additional dwelling entitlements are created.

15 The application is not consistent with any of the objectives of s 8 of the SVP Act and accordingly is inconsistent with TPS 9.

16 The subject land is not identified for subdivision in an operational town planning scheme or local planning strategy and is therefore inconsistent with cl 3.1.1 of DC 3.4

17 The proposal does not satisfy any of the criteria for subdivision of rural land set out in cl 3.2 of DC 3.4.

18 Subdivision would be ad hoc and therefore, contrary to SPP 2.5.

19 The presence of two existing residences does not justify subdivision. Support for subdivision on this basis could lead to the unplanned breakdown of rural lots and potential land use conflicts; thereby resulting in pressure to cease or relocate agricultural activities. Again, subdivision could lead to the creation of lots that are more suited to "rural-residential" purposes.

20 There are many other properties of similar size in the locality and an approval would create lots smaller than the prevailing lot size. This would create a highly undesirable precedent for subdivision of similar rural zoned land within the Swan Valley.

21 The position of the applicants is contained in both their grounds for review, dated 23 March 2006, and their Statement of Issues, Facts and Contentions, dated 23 May 2006. They broadly argue:

a) The development pattern of the land will be maintained upon subdivision. No potential will be created for additional building development nor will potential be created for non-rural activity in conflict with the zoning objectives.

b) The existing development has to be accepted as a given constraint. An approval to the subdivision will not prejudice future planning or development, and will not change the use of the area and/or the rural land resources.

c) Each subdivision proposal has to be considered and determined on its merits and in this case, the existing development pattern will be maintained and enhanced on subdivision.

d) The proposal will protect the visual quality of the locality and land uses will be controlled under TPS 9.

e) The proposal will not create an undesirable precedent in the locality.

f) The proposal is not contrary to the government's objective to conserve and enhance the Swan Valley's unique resources.

g) The proposal upholds at least seven of the 10 objectives of the SVP Act. It will also protect and enhance the rural character and amenity of the locality.

h) Western Power, Main Roads WA and the Water Corporation have given conditional support for the subdivision.

i) The relevant question is whether subdividing the lot in two would be incompatible with the protection of viticulture, the rural character and the traditional agricultural activities of the area. The proposal is not incompatible with these objectives.

22 The principal planning issues to be determined are:

a) Would the proposal, if approved, be inconsistent with State policy relating to the subdivision of rural land?

b) Would the proposal, if approved, be inconsistent with the relevant objectives of the SVP Act?

c) Would the proposal, if approved, be likely to encourage other owners in like circumstances to seek future subdivision?

23 In the Statement of Evidence of Robert Brett Cull, a qualified town planner with the Department of Planning and Infrastructure (DPI), dated 16 June 2006, he advised that the respondent refused an identical subdivision application on 10 December 2001.

24 In evidence before the Tribunal, Mrs RL Nurmi, for the applicants, advised that despite that refusal, the matter did not proceed to an appeal to the former Town Planning Appeal Tribunal at that time.

25 In further evidence, she explained that the purpose of the current subdivision proposal was to allow each of the two families on the property to have their own existing home on a separate title. This would then allow the option of staying or selling at a future date.

26 As explained in [14] above, it is clear in DC 3.4 that at State level, there is 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.

27 The same broad intent is outlined in the key principles (principle 5) of the MR policy and in the policy objectives of DC 1.1.

28 An examination of SPP 2.5 shows that its prime intent is the long-term protection and support for agriculture in Western Australia. The policy sets down four key objectives, the first of which is to:

"1. 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."

29 It is clear to the Tribunal that although the prime intent of SPP 2.5 is to protect and support agriculture, the use of such words as "minimise", "discourage" and "protect ... wherever possible" does open up the opportunity for alternative land uses and subdivision where the circumstances can be justified on planning grounds. In other words, the policy is not written on the basis of total inflexibility.

30 This was the point being made by Mr Ramanathan, a qualified town planner, in answer to Mr Algeri, for the respondent, on whether rural lots of 1 hectare to 2 hectares would normally only occur with land zoned "Rural living" or "Special Rural". Mr Ramanathan replied:

"I don't believe so, because, if they are properly managed they can exist in any zone."

31 The point at issue here is at what point would the subdivision of rural land within a broad rural zone be inconsistent with State policy? The question is a difficult one to answer, but it does appear, to the Tribunal, that although subdivision may be supported by the respondent for specific rural purposes that can be justified on planning grounds (for example, for tourist purposes) that subdivision of a rural-residential nature is not contemplated by the respondent within the broad rural zone.

Swan Valley Planning Act 1995

32 The importance of the SVP Act is reflected in s 24A(5) of the TPD Act (now s 134 of the Planning and Development Act 2005 (WA)) where the respondent is required to determine a subdivision application in accordance with the advice of the Swan Valley Planning Committee (the Committee).

33 In this case, the Committee recommended refusal on the basis that:

"The proposed lot sizes of 1.4 ha and 1 ha are inconsistent with the objectives for Area B of the Act."

34 An examination of the SPV Act reveals that four planning areas (A, B, C and D) are delineated within the Swan Valley. The subject land falls within Area B with ten planning objectives specified in s 8. These are outlined in [14] above.

35 Throughout the hearing, the parties concentrated on three of the ten objectives; namely those relating to the protection of viticulture, the discouragement of uses that are incompatible with the character and amenity of the area and allowing lot sizes below 4 hectares if consistent with the objectives for Area B.

36 On the question of the meaning of the term "viticulture", the respondent took the view that the definition was limited to the growing of vines, whereas in the witness statement of Mr Ramanathan, for the applicants, he advised at paragraph 8.2(a):

"(a) Objective 1: Viticulture encompasses table grapes, wine, fruit and dried food production. Grapes and fruit have and are being grown on the 1.4ha [sic] proposed lot at the corner of Campersic Road and Toodyay Road and fruits are being grown on the 1ha proposed lot fronting Toodyay Road. Reference is made to further details on this matter in the Statement provided by one of the landowners, Riitta Nurmi and the attachments contained thereon."

37 Clearly, the applicants are arguing that their proposals are consistent with the "viticulture" objective, but the Tribunal takes the view that the term "viticulture", which is not defined in TPS 9, is confined to the growing of vines.

38 Putting the economic arguments of grape growing to one side, it is not possible to definitely conclude that if the subdivision was to proceed, and both lots were sold, that the new owners would or would not plant vines.

39 Alternatively, if the subdivision was not to proceed, it is not possible to definitely conclude over the long-term that the existing vines will remain. In Mrs Nurmi's evidence before the Tribunal, she advised that vines had been removed in the past, and are now confined to the proposed 1.4 hectare lot.

40 On balance, the Tribunal would accept that the smaller the lot size is below 2 hectares, the greater the probability that over time existing vines would be removed because of a requirement to use the land for other rural type purposes. If vines were retained on much smaller lots, it would probably be for subjective reasons alone.

41 What is clear from Attachment 1 (aerial photograph) to Mr Cull's statement of evidence is that it is the lots of equivalent size to the subject land, or larger, that are predominantly planted with vines.

42 On the question of the proposal affecting the character and amenity of the area, Mr Cull responded to a question from Mr Ramanathan in this way:

" ... if the subdivision is approved, it will incrementally change the character of the area."

43 In his closing statements, Mr Ramanathan advised:

" ... there is nothing before the Tribunal to suggest that this subdivision will change the rural character of the area. As there are already two houses and two granny flats on the land, the subdivision would not result in any intensification of development. The proposed change is not so dramatic that inconsistency with the objectives of section 8 can simply be supposed."

44 The Tribunal would accept the view of the applicants that, in this particular case, on a relatively small 2.4 hectare property, and on which two homes already exist, that subdivision is unlikely to significantly affect the overall character of the area, and that the longer-term land use would be controlled by the provisions of TPS 9 for the "Swan Valley rural" zone.

45 On the question of lot size, the respondent argues that within Area B a 4 hectare lot size is a "minimum", and if smaller lot sizes are contemplated the objectives of s 8 must be met. The applicants argue that their proposal meets most, if not all, the objectives of s 8.

46 Of prime consideration here is the overall intent of the objectives for Area B; the principal one of which is "the protection of viticulture".

47 For Area A and Area B, the objectives include "the encouragement of viticulture and horticulture". The objectives also contemplate rural-residential developments.

48 In the view of the Tribunal, what can be said here is that Area B has the highest classification for the retention and protection of viticulture but, as explained in [40], vines are unlikely to be retained in the case of smaller lots.

49 Again, in the case of the objectives for Area B, rural-residential development does not appear to be contemplated for lots of less than 4 hectares.

50 In an overall context, it is difficult to conclude that the proposal is consistent with the objectives of s 8 for Area B.

51 In evidence before the Tribunal, Mr Cull alluded to three nearby lots, ranging in size from approximately 3.3 to 3.8 hectares, where an approval in this case could encourage the owners to subdivide.

52 The Tribunal accepts that there are circumstances where an approval could be used as a precedent by others to advance similar proposals but each case needs to be considered on its merits. In any event, as pointed out in Aspen Pty Ltd v State Planning Commission (Unreported; Appeal No 13 of 1988, 21 October 1988), precedent is not to be treated as a "stand alone" argument and is but one factor to be taken into account.

53 In this particular matter, the applicants argue that because of the existence of two homes on the subject land that subdivision will largely maintain the status quo.

54 The difficulty the Tribunal has with this argument was explained in Brister, R & Ors and Western Australian Planning Commission [2003] WATPAT 103:

"35. The Tribunal is concerned about the expectation attached to the approval of second dwellings on Rural zoned land, by landowners. The Tribunal acknowledges that there are instances, where it is appropriate to approve such development. However, the arguments that there are already two existing houses, hence no increase in density and that the proposed subdivision will not physically affect the fabric or the rural amenity of the Area are deficient. These arguments only look at the issue in isolation and do not consider the 'bigger picture' and the serious implications for the potential to prejudice the overall planning of the locality."

55 It would appear from information before the Tribunal that in the past, the City of Swan did allow a second dwelling on rural land, but in a question from the Sessional Member, Mr Algeri explained the current situation in this way:

"It is now my understanding that, in the City of Swan, there has been a recent change ... In the current planning framework it is in fact quite difficult to have a second dwelling on rural land."

56 However, even if the planning circumstances have changed, as explained by Mr Algeri, the Tribunal would acknowledge that if support was given to the applicants in this case, that other land owners on relatively small lots with two homes on site, and who seek subdivision within Area B, would not be discouraged from proceeding with their proposals. This is despite the fact that the Tribunal would determine each case on its particular merits.

57 In undertaking this review, the Tribunal has been faced with a proposal that seeks to subdivide a 2.48 hectare rural zoned lot into two lots approximately 1.4 hectares and 1.07 hectares.

58 The specific circumstances are such that there are two existing homes with a "granny" flat attached to each along with various outbuildings, a small vineyard and various fruit trees, and natural vegetation.

59 As explained by Mrs Nurmi, the object is to give each of the parties to the subdivision their own home on a separate title in order to provide a long-term option to either stay or sell. Such an objective is entirely understandable.

60 The Tribunal has been required to not only examine State policy for rural land where there is a general presumption against subdivision, except in circumstances which are not covered by this proposal, but also the fact that the subject land is located in the Swan Valley. This area has been highly valued by successive governments for both viticulture and tourism purposes.

61 In 1995, a separate Swan Valley Planning Act was proclaimed in order to prescribe specific planning and development objectives for planning areas A, B, C and D.

62 The subject land falls within Area B and, as explained in this review, its prime objectives are "the protection of viticulture" and to only allow lots of less than 4 hectares where it would be consistent with the objectives specified. It is not considered that the proposal meets these prime objectives.

63 The matter of precedent was also examined and it is the Tribunal's view that although each case must be treated on its merits, an approval to create essentially rural-residential lots in Area B would be likely to unnecessarily encourage other owners in like circumstances, who seek subdivision in Area B, to proceed with their proposals.

64 In the view of the Tribunal, the weight of argument falls with the respondent in this matter and the application for review is dismissed.

65 For the foregoing reasons, the orders of the Tribunal are as follows:

I certify that this and the preceding [65] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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MR L GRAHAM, SESSIONAL MEMBER