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[2015] WASAT 111
General information, not legal advice.
State Administrative Tribunal (WA)
2015-10-07
Original judgment source is linked above.
The applicant applied for approval to amalgamate two adjoining lots and subdivide the resulting lot into three lots. The lots are located near Brand Highway, Yardarino, in the Shire of Irwin approximately 4 kilometres northeast of the urban centre of Dongara. The site is located in rural surrounds where broad scale cropping and grazing are the primary activity. The land was 173.25 hectares in area and zoned 'General Farming' by the Shire of Irwin Local Planning Scheme No 5 (LPS 5). The current policy position, as specified in State Planning Policy 2.5 - Land Use Planning in Rural Areas (SPP 2.5) and in the respondent's Development Control Policy 3.4 - Subdivision of Rural Land (DC 3.4), is that there is a presumption against the subdivision of rural land other than where specific, relatively narrow, exceptions apply.
The applicant argued that the specific reference to DC 3.4 in one of the provisions of LPS 5 relating to the General Farming zone means that the relevant text of DC 3.4, as it stood at the time, is directly incorporated into LPS 5, and is not altered by later versions of DC 3.4. Based on the text and context of the relevant provisions of LPS 5, the Tribunal agreed with this proposition. However, the Tribunal found that the relevant clause of LPS 5 guided only whether or not the Shire of Irwin would support subdivision of land within the General Farming zone and did not bind the respondent, or the Tribunal, in its determination of whether or not to allow the subdivision proposal.
The Tribunal noted that the Shire of Irwin had advised the respondent that it had no objection to the applicant's subdivision proposal on the basis that the proposed lots were of a similar size to surrounding lots. It was determined that as subdivision of rural land to create similar lot sizes to the prevailing lot sizes in the area is not one of the circumstances identified in the 2002 version of DC 3.4, that reason could not provide a basis for the Shire of Irwin to support subdivision pursuant to LPS 5. Therefore, the Tribunal did not give any weight to the Shire of Irwin's stated position with respect to this subdivision proposal.
The Tribunal had regard to relevant parts of LPS 5, SPP 2.5, the current version of DC 3.4 and the Shire of Irwin Local Planning Strategy in making its decision in relation to subdivision proposal. It also considered whether there were any reasons, in the circumstances of this proposal, why the general policy position with respect to the subdivision of rural land should not be applied. In the circumstances of this proposal, the Tribunal was not persuaded that there was any reasonable basis to not apply the general policy position against the subdivision of rural land. Therefore, as the proposal was not consistent with the relevant objectives of LPS 5, or the policies relating to the subdivision of rural land, the Tribunal determined that the applicant's proposed subdivision should be refused.
Chiefari v Brisbane City Council [2005] QPEC 9; [2005] QPELR 500
Clive Elliot Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGRA 433
Galloway & Associates and City of Melville [2007] WASAT 238; (2007) 56 SR (WA) 253
Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100; (2005) 39 SR (WA) 119
1 Bookara Holdings Pty Ltd (applicant) applied to the Western Australian Planning Commission (respondent) for approval to amalgamate two adjoining lots and subdivide the resulting lot into three lots. In December 2013, the respondent refused to approve the subdivision application essentially because, in its opinion, the proposed subdivision was inconsistent with State Planning Policy 2.5 Land Use Planning in Rural Areas (SPP 2.5) and Development Control Policy 3.4 Subdivision of Rural Land (DC 3.4). By application lodged in the Tribunal on 30 January 2014, pursuant to s 251(1) of the Planning and Development Act 2005 (WA) (PD Act), the applicant sought review of the respondent's decision.
2 By orders made by the Deputy President, Judge Parry in February 2015, the parties were required to file an agreed statement of facts, expert witness statements and written submissions, with the last of those documents to be filed by 22 May 2015. It was also ordered that the matter would be determined on the papers pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). The parties were given leave to advise the Tribunal that they wished to crossexamine a witness and request an oral hearing. Neither party has exercised that option. At the request of the parties, the time to file the last of the documents ordered to be filed with the Tribunal was later extended to 3 July 2015.
3 The Tribunal now has before it the following documents:
4 Pursuant to the orders made pursuant to s 60(2) of the SAT Act, the application for review has been determined having regard to those documents. The Tribunal's decision and reasons for decision are as follows.
5 The lots the subject of these proceedings are Lot 1232 and Lot 2918, located near Brand Highway, Yardarino, (site) in the Shire of Irwin (Shire). Lot 1232 is approximately 40 hectares and Lot 2918 is approximately 133 hectares. Combined, the site is 173.25 hectares. The site is approximately 4 kilometres northeast of the urban centre of Dongara. The site does not contain any structures and is largely cleared of vegetation. The site is located in rural surrounds where broad scale cropping and grazing appear to be the primary activity.
6 The site is located between Brand Highway and a railway reserve. The railway reserve is part of the Brookfield Rail network which links Dongara to Perth. Access to the site is currently by way of an unconstructed gazetted road, with a road reserve of 10 metres in width, which connects the southern portion of the site to the Brand Highway, past other land owned by the applicant. Adjacent to the north western boundary of the site is an existing road reserve that runs parallel with the rail corridor (railway road reserve). The railway road reserve is 20 metres wide and extends for approximately 6 kilometres along the rail line before terminating at both ends at private property boundaries.
7 The applicant proposes to subdivide the site into three lots, two of 50 hectares and one of 73.25 hectares. In addition, it is proposed that the unconstructed road from the Brand Highway that currently provides access to the site would be extended along the western boundary of the site to connect with the railway road reserve. The width of the road reserve proposed for the extension of the unconstructed road is 10 metres.
8 The applicant has an existing conditional approval to subdivide an area of land that includes the site together with other land owned by the applicant located between the site and the Brand Highway (previous subdivision approval). The previous subdivision approval contemplates three lots of approximately 21.85 hectares, 40.70 hectares and 134.12 hectares being amalgamated and resubdivided into three new lots of 53 hectares, 51.44 hectares and 88.91 hectares. It also includes a 20 metre wide road reserve along the western boundary of the proposed subdivision ending as a culdesac in the vicinity of the railway road reserve. That previous subdivision approval is valid until January 2016.
9 In determining applications for review under s 251 of the PD Act, the Tribunal is required to have due regard to relevant planning considerations including any State planning policy which may affect the subject matter of the application: s 241 of the PD Act. In addition, the respondent is required to 'have due regard to the provisions of any local planning scheme that applies to the land ... and [subject to s 138(3) of the PD Act] is not to give an approval that conflicts with the provisions of a local planning scheme': s 138(2) of the PD Act. In this matter, neither party has referred to, or relied upon, any of the circumstances specified in s 138(3) of the PD Act.
10 The site is zoned 'General Farming' by the Shire of Irwin Local Planning Scheme No 5 (LPS 5). The objectives of that zone are stated at cl 4.2.7 of LPS 5, which provides:
(a) To provide for rights of vehicular access, unfettered as to time, location and circumstance, to any land subject of a planning approval.
(b) To ensure the preservation of the rural character and rural appearance of land within the zone.
(c) To protect the economic viability of agricultural production via support only for subdivision or boundary relocation which retains or results in lot or location sizes which facilitate ongoing agricultural activity.
(d) To preserve and protect the natural undeveloped land areas throughout the zone and to provide for the planting of trees and other suitable vegetation via the imposition of conditions on any planning approval issued, in order to assist in balancing the greenhouse effect, provide shade, prevent erosion, reduce salinity and provide habitats for native fauna.
(e) To ensure that natural drainage patterns/catchments throughout the Shire are paid regard to, via the appropriate location of man-made drainage networks.
(f) To limit the number of dwellings to one per lot, unless for specific farm operation purposes, to discourage fragmentation or rural living use of agricultural land.
11 Part 5 of LPS 5 is headed 'General Development Requirements' and, amongst other things, it contains clauses relating to each of the different zones. With respect to General Farming zone, cl 5.31.1of LPS 5 relevantly provides that:
12 The parties disagree about the effect of cl 5.31.1(a) of LPS 5, and in particular, how this provision affects which version of the respondent's DC 3.4 should be regarded when determining the applicant's subdivision proposal. The parties agree that the version of DC 3.4 that was in existence at the relevant time was the 2002 version (DC 3.4 2002). They also agree that since that time there have been two other versions of DC 3.4 published by the respondent: one in 2008 (DC 3.4 2008) and one in 2012 (DC 3.4 2012).
13 The respondent says that the following instruments are also relevant to determination of the applicant's subdivision proposal:
14 The applicant denies that any of those instruments, other than the Strategy, are relevant to the determination of its application.
15 The Strategy identifies a number of policy areas and specifies aims, strategies and actions in relation to each of those policy areas. The site is within policy area 'C'. The aim of policy area 'C' is:
To preserve and protect land within this policy area, which embraces the majority of active rural landholdings in the Shire, for continuing sustainable agricultural activity whilst recognising the Public Drinking Water Supply Areas which exist in the policy area.
16 Of the strategies and actions listed for policy area 'C', the following are potentially relevant here:
Encourage and protect productive agricultural land.
Retain existing agricultural areas in the General Farming zone of the Town Planning Scheme.
Continued support for boundary rationalisation only for the purposes of farm management, consolidation and/or boundary realignment in accordance with SPP 2.5 and DC 3.4.
Recognise the existing rural living development in the Irwin Townsite.
Include smaller lots within the Irwin Townsite within the Rural Smallholdings zone under the Town Planning Scheme.
17 The parties did not provide any agreed statement of issues. It is apparent, however, from the documents lodged by the parties, that the relevant issues are:
18 The applicant says that the specific reference to DC 3.4 2002 in LPS 5 means that the relevant text of that policy, as it stood at the time, is directly incorporated into LPS 5. The applicant submits that this means that the text of later versions of DC 3.4 cannot be taken as being referred to or incorporated into LPS 5 by cl 5.31 of LPS 5. In addition, the applicant says that although later versions of DC 3.4 are relevant to consideration of subdivision proposals within this Shire, that is so only to the extent that the provisions of those later versions are not inconsistent with the parts of DC 3.4 2002 that have been incorporated into LPS 5. In support of its submission, the applicant relies on s 77 of the PD Act. Section 77 of the PD Act provides:
(1) Every local government in preparing or amending a local planning scheme
(a) is to have due regard to any State planning policy which affects its district; and
(b) may include in the scheme a provision that a specified State planning policy, with such modifications as may be set out in the scheme, is to be read as part of the scheme, or a provision however expressed to the same effect.
(2) Where a scheme includes a provision referred to in subsection (1)(b)
(a) the scheme is to have effect as if the State planning policy, as from time to time amended, or any subsequent policy by which it is repealed under this Act, were set out in full in the scheme; and
(b) the State planning policy is to have effect as part of the scheme subject to any modifications set out in the scheme.
(3) Modifications referred to in subsection (2)(b) prevail over any later amendment of the State planning policy, or subsequent policy referred to in subsection (2)(a), which is inconsistent with the modifications.
19 The applicant submits that pursuant to s 77(1)(b) of the PD Act, a local government may include in the scheme a specified policy and where it does so, that policy is to be read as part of the scheme. If this is done, as has been done by including DC 3.4 in LPS 5, the applicant submits, then pursuant to s 77(2)(b) the policy has effect as part of the scheme subject to modifications to the policy set out in the scheme, and these modifications prevail over any later amendment to the policy. The applicant argues that by referring only to the criteria for exemption from the policy in clause 3.2.1 of DC 3.4 2002, LPS 5 incorporates only a part of that policy into the scheme, and this is a modification to DC 3.4 2002 that will override any later amendments to DC 3.4.
20 As the respondent points out, the problem with this argument is that s 77 of the PD Act applies only to a State planning policy. The term 'state planning policy' is defined in s 5 of the PD Act to mean a planning policy approved under s 29 of that Act. DC 3.4 is not a policy approved by the Governor under s 29 of the PD Act. Section 25 of the PD Act provides that any 'statement of planning policy' in force under the Town Planning and Development Act 1928 (WA) (TPD Act) immediately before the PD Act commenced, 'continues in force as a State planning policy under this Act' and 'has effect accordingly'. Section 5AA of the TPD Act provided that the respondent could, with the approval of the Minister, prepare statements of planning policy. Under that provision, before any statement of planning policy had effect, it had to be approved by the Governor. DC 3.4 was not a planning policy made under s 5AA of the TPD Act. Therefore, s 77 of the PD Act does not apply to cl 5.31.1 of LPS 5.
21 The respondent submits that cl 5.31.1(a) of LPS 5 should be read as referring to the relevant part of DC 3.4 as that policy is amended from time to time. The respondent asserts that DC 3.4 is subsidiary legislation and therefore s 16 of the Interpretation Act 1984 (WA) (Interpretation Act) is relevant.
22 Section 16 of the Interpretation Act provides that a reference in a written law (the first law) to another written law (the second law) is to be taken as a reference to the second law as amended from time to time. There is no doubt that a local planning scheme, such as LPS 5, is subsidiary legislation and is therefore a 'written law': see s 5 of the Interpretation Act. Thus, if the respondent's argument is correct, and DC 3.4 is a 'written law' also, the reference to DC 3.4 at cl 5.31.1 of LPS 5 would be taken as a reference to DC 3.4 as amended from time to time. However, the submission that DC 3.4 is subsidiary legislation cannot be accepted.
23 The respondent submits that State planning policies created under the PD Act, or its predecessor, the TPD Act, are made under a written law and therefore come within the meaning of subsidiary legislation as that term is defined by the Interpretation Act. SPP 1 allows a local government to incorporate any provision of the State planning framework by reference so that it forms part of a town planning scheme. This then somehow leads to the proposition that clause 3.2.1 of DC 3.4 2002 is therefore a provision of the State planning framework incorporated into LPS 5 and thereby DC 3.4 is made under a State planning policy and therefore is 'subsidiary legislation'. Putting aside the issue of whether it can be accepted that DC 3.4 is an instrument that is made under a written law, which I doubt, this submission fails to address the secondary aspect of the definition of 'subsidiary legislation'. Under that definition, in order to be subsidiary legislation, an instrument must not only be made under a written law, it must also have legislative effect. DC 3.4 is a policy that provides a guideline of the principles that the respondent can be expected to apply when making decisions concerning the subdivision of rural land; it does not provide a binding set of principles that must be applied in all cases: Clive Elliot Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGRA 433 (Clive Elliot Jennings). I do not see how it could be argued that DC 3.4 is an instrument having legislative effect, and I do not accept that it has any such effect. DC 3.4 is not subsidiary legislation.
24 Contrary to the parties' submissions, the resolution to the issue must be found by looking to LPS 5 itself in order to determine the meaning of cl 5.31.1 of LPS 5, having regard to its context and to the apparent purpose of that provision. In doing this, it is necessary to keep in mind that 'planning schemes are largely the work of town planners, not parliamentary counsel [and as such] they should be read as a whole and applied in a practical and commonsense, and not an overly technical way, and in a fashion which will best achieve their evident purpose': Chiefari v Brisbane City Council [2005] QPEC 9; [2005] QPELR 500, at 502 relied upon in Galloway & Associates and City of Melville [2007] WASAT 238; (2007) 56 SR (WA) 253 at [41].
25 Having regard to the objectives of the General Farming zone and the wording to the provision, it is clear that the aim of cl 5.31.1(a) of LPS 5 is to limit council support for subdivision within the zone. The reference to the criteria in section 3.2.1 of DC 3.4 2002 seems to be intended to ensure the respondent's policy exceptions to the presumption against subdivision in a rural zone, that applied at the time LPS 5 was drafted, were applied strictly. Thus, at least in terms of the Shire's support for proposed subdivisions, only proposals that meet those specific exemptions would be supported. This is of course different to the approach that would be taken by the respondent when applying its policy, in that it would apply generally its policy (including the limited exceptions identified in the policy) but would always go on to consider whether there was some exceptional reason why the policy should not be applied in a particular case.
26 It is important to note that cl 5.31.1(a) of LPS 5 is phrased in terms of subdivision not being 'supported' and does not use words that convey any mandatory requirement that must be applied by the ultimate decisionmaker. This can be compared to provisions such as cl 5.30.1 of LPS 5 where it is specified in mandatory terms that 'the minimum lot size within Area D shall be 15ha. The minimum lot size within Area G shall be 20ha ...'. The use of the word 'support' in cl 5.31.1(a) of LPS 5 must be understood having regard to the wider context that the Shire is not the ultimate decisionmaker in relation to subdivision proposals, but rather its role is to convey its position in relation to any proposal to the respondent. The respondent is required to have regard to the Shire's position, but is not bound by it. However, where a subdivision proposal conflicts with a provision of LPS 5, the respondent will not be able to approve that proposal unless one or more of the criteria set out in s 138(3) of the PD Act apply.
27 In relation to the question of whether cl 5.31.1(a) of LPS 5 should be read as referring to the exceptions to the presumption against subdivision in DC 3.4 as that policy is amended from time to time, the answer must be 'no'. Clause 5.31.1(a) of LPS 5 refers only to the criteria specified in section 3.2.1 of DC 3.4. That clause was not the only source of exceptions to the presumption against subdivision of rural lots in DC 3.4 2002. Clearly, the drafters of LPS 5 wished to indicate that only a limited number of the exceptions that could be found in DC 3.4 2002 were to be relevant to the Shire's position in relation to a subdivision proposal of land within the General Farming zone. DC 3.4 2012 is structured in an entirely different way to DC 3.4 - 2002. The policy now gathers all of the exceptions to the presumption against rural subdivision into one clause; clause 6. Clause 6 of DC 3.4 2012 includes exceptions that were, in substance, in DC 3.4 2002, but those exceptions were not referred to in cl 5.31.1(a) of LPS 5. On this basis, I am not satisfied that cl 5.31.1(a) of LPS 5 was intended to generally refer to DC 3.4 as amended from time to time, nor should it be read that way now.
28 Having regard to all of the above, the Tribunal's determination on issue 1 is that cl 5.31.1(a) of LPS 5 requires the Shire to not support subdivision of land within the General Farming zone unless one of the criteria in clause 3.2.1 of DC 3.4 2002 applies. In determining the applicant's subdivision proposal, the respondent is required to have regard to the Shire's position. However, there is nothing in LPS 5 that requires the respondent, now the Tribunal, to apply clause 3.2.1 (or any other part) of DC 3.4 2002 in determining the applicant's subdivision proposal.
29 As stated above, the Tribunal is required to have due regard to relevant planning considerations including any State planning policy which may affect the subject matter of the application: s 241 of the PD Act. The weight that is given to any particular policy provision will depend on a number of factors as identified by the Tribunal in Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100; (2005) 39 SR (WA) 119 at [51]. It is also necessary to remember that, subject to matters of weight, the State planning policies and the respondent's policies must not be inflexibly applied. Policies are expected to guide decisionmaking and will generally be applied, but consideration must be given to whether there is some exceptional reason why a policy should not be applied in a particular case: Clive Elliot Jennings. If the provision of a policy conflicted with a provision of LPS 5, the principles in s 138 of the PD Act would have to be applied.
30 In this case, the Tribunal is satisfied that it should have regard to the following policies in determination of the applicant's subdivision proposal:
31 In considering SPP 2.5 and DC 3.4, the respondent's RPG may be useful, as this is a document that was intended to provide guidance on the implementation of those policies and explain the context of the policy provisions.
32 The Tribunal is also satisfied that nothing in any of these documents conflicts with any relevant provision of LPS 5.
33 As indicated above, it is relevant to note that the Shire advised the respondent that it had no objection to the applicant's subdivision proposal and suggested a number of conditions that it recommended if the application was approved: page 221 of the respondent's s 24 bundle of documents. When questioned about the Shire's position, an officer of the Shire advised that the Shire supported the applicant's subdivision proposal because it seemed road access was achievable and that the proposed lots were of a similar size to surrounding lots: page 223 of the respondent's s 24 bundle of documents. Subdivision of rural land to create similar lot sizes to the prevailing lot sizes in the area is not one of the circumstances identified in clause 3.2.1 of DC 3.4 2002. Such a reason cannot provide a basis for the Shire to support subdivision pursuant to cl 5.31.1(a) of LPS 5. Therefore, the Tribunal should not give any weight to the Shire's stated position with respect to this subdivision proposal.
34 The clear policy position as specified in SPP 2.5 and DC 3.4 - 2012 is that as a general rule, the subdivision of rural land in an unplanned, ad hoc way, should not be allowed: see clause 3.2, 4 and clause 5.1 of SPP 2.5; clause 1, clause 2, and clause 5 of DC 3.4 2012. There is a presumption against subdivision of rural land identified in the policies and the specific exceptions to that presumption identified in the policies have narrowed in their most recent iterations; clause 5 and clause 6 of DC 3.4 2012. The proper approach to considering the applicant's subdivision proposal is to apply these policies and determine whether any of the specific circumstances identified by the policies as providing a basis for subdivision apply. If they do not, it is then necessary to consider whether there are any reason why the general policy position should not be applied in this case.
35 One of the applicant's submissions is that its subdivision proposal comes within the circumstances described in clause 6(c) of DC 3.4 2012 and on that basis the proposal should be approved. The evidence of Mr Peter Vermeer, a Director of the applicant company, is to the following effect. The previous subdivision approval was subject to a condition that required the construction of a new road along the western boundary of the applicant's land ending with an intersection with the Brand Highway. The cost of constructing that road, and in particular the requirements for the intersection with the Brand Highway, is such that it renders the previous subdivision approval financially unviable. Mr Vermeer says that in order to make construction of the road and the Brand Highway intersection a viable proposal, the creation of an additional lot (and the subsequent increase in the value of the applicant's land) is necessary. The applicant submits that the imposition of the road construction condition on the previous subdivision proposal establishes that there is 'a present requirement of the public for road infrastructure in the locality'. As the evidence is that the construction of the road is not viable unless an additional lot is created, the current subdivision proposal would allow for the efficient provision of infrastructure.
36 Mr Jason Gordon, a planner employed at the Department of Planning, states that the proposed road reserve and constructed road in the subdivision proposal will only serve the lots the subject of the proposal and will not provide vehicle access to any lots which do not already have suitable and legal vehicle access. There is nothing before the Tribunal that contradicts that statement.
37 The Tribunal does not accept that the circumstances described in clause 6(c) of DC 3.4 2012 include where an applicant considers it is uneconomical to build a road required to service the applicant's land unless the applicant is permitted to create another lot out of his land and thereby increase its value. Such a reading of clause 6(c) is at odds with the objectives of DC 3.4 2012.
38 The only expert planning evidence put before the Tribunal in this matter was that of Mr Gordon. Mr Gordon states that the previous subdivision approval must be understood having regard to relevant circumstances of that proposal. He notes that it involved amalgamation of three lots and resubdivision of that land into three lots. No additional lots were created and there was an increase in size for two of the three lots, all of which was consistent with the prevailing policies concerning the subdivision of rural land. The Tribunal accepts that those circumstances would be consistent with planning policy. The current subdivision proposal intends to create three lots where there were only two lots and cannot be described as a simple boundary realignment.
39 Mr Gordon says that, in his opinion, the current subdivision proposal is not consistent with SPP 2.5, DC 3.4 2012 or the Strategy, and does not comply with any of the circumstances identified in the policies as providing a basis for the subdivision of rural land. Having reviewed the policies and the Strategy and applied them to the proposed subdivision, the Tribunal finds this to be correct.
40 The applicant submits that its subdivision proposal should be approved even if it does not fit within any of the exceptions in SPP 2.5 or DC 3.4 2012 that provide a basis to support the subdivision of rural land. The applicant says that the proposed subdivision should be allowed because:
41 In relation to the applicant's submissions at points 4 and 5, it must be noted that there is no evidence before the Tribunal that could support any conclusion that the sale of existing lots without improvement to the road access would be a negative planning outcome, or that Main Roads WA wants an improved intersection with the Brand Highway. In the absence of any such evidence the Tribunal does not accept either of those statements.
42 It has already been noted that, in this case, the Shire's support of the proposed subdivision was inconsistent with LPS 5 and therefore weight cannot be attributed to that support.
43 The Tribunal is not persuaded that the remaining factors provide any reasonable basis to not apply the general policy position against the subdivision of rural land in an unplanned, ad hoc way, to the applicant's subdivision proposal.
44 For all of the reasons above, the Tribunal has determined that the correct and preferable determination of the applicant's subdivision proposal is that it should be refused. The Tribunal therefore makes the following orders:
I certify that this and the preceding [44] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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