Re Honor and Secretary, Department of Family and Community Services [2003] AATA 179; (2003) 73 ALD 272

Tilbrook v Western Australian Planning Commission [2004] WATPAT 100

Wilson v Western Australian Planning Commission [2004] WATPAT 215.

1 This review concerned a proposal to turn a small underused section of broadacre farming land (arising from and using the "boundary division" caused by a gravel road on the land) into a small farm holding with an accompanying dwelling house.

2 Such a proposal, in the form of a proposed subdivision, faced considerable difficulties as it was arguably the very type of development that the extensive regulatory policies of the Western Australian Planning Commission (the Commission) were expressly designed to prevent, particularly as regards potential rural-residential use. The main rationale of these long-established policies was found by the Tribunal to be the prevention of the ad hoc fragmentation of otherwise productive agricultural land.

3 Here, the local government for the area (the Shire) supported the proposal, but arguably such approval was inconsistent with the Shire's own planning strategy.

4 The policies of the Commission did permit, in some cases, subdivision if a particular road was a "significant man-made" feature. Here, the Tribunal ruled that the road in question did not meet the test for it to be treated as a "significant" feature. In particular, gravel roads of this nature were very common in such rural areas.

5 The Tribunal applied the policies, consistently with both the practice of the Commission and previous Tribunal decisions applying and interpreting them, to dismiss the application.

6 This was so notwithstanding the potential merits, standing alone, of the particular small farm proposal. However, such matters were largely irrelevant to the regulatory planning regime established by consistent adherence to the policies; these instruments took a wider strategic view of preserving agricultural land from unplanned breakup.

Introduction: the subject land and issues for determination

7 The subject land of this review is described as Victoria Location 10667, Pen Road, Warradarge in the Shire of Coorow (the Shire). The land is approximately 60 hectares in size. The Certificate of Title for the land shows that the applicants have been the registered joint tenants of the subject land since 1992. Those details can be found in Certificate of Title Volume 1767 Folio 983. The respondent relevantly describes the land as:

"[R]ural land, located on the Coorow-Greenhead Road, approximately twenty-seven kilometres east of the town of Greenhead and twelve kilometres west of the intersection of that road and the Brand Highway."

8 The applicants describe the land as approximately 300 kilometres north of Perth and situated 30 kilometres inland from Greenhead and 14 kilometres west of the Brand Highway.

9 The subject land is "divided" into two parts by a road. One part, the larger part to the west is approximately 56 hectares, and the other lying east of Pen Road is approximately 3.5 hectares. That division caused by Pen Road is central to this review, as subdivision using the road as a boundary has been sought by the applicants and refused by the respondent.

10 It is convenient, for the purposes of these reasons to divide the issues for consideration into two. First, the Tribunal will consider the general planning issues associated with the applicants' proposal for subdivision. Then the Tribunal will consider whether Pen Road is a significant man-made feature that might permit subdivision on that basis in certain circumstances.

11 It should be noted here that references throughout these reasons to the applicants includes a reference to the intended purchaser of the smaller lot, Ms Congdon, who was given leave to make submissions in the matter and who appeared as a witness for the applicants: see s 62 of the Town Planning and Development Act 1928 (WA).

12 Ms Congdon's plans for the smaller lot included setting up a stud farm for the breeding of Australian miniature goats. Apparently, no such stud currently exists in Western Australia. Later, Ms Congdon plans to specialise in organic produce to the Jurien/Greenhead-Leeman areas. She is interested in supplying tropical fruits for that area. All of these activities are intended to take place on the smaller lot, which she intends to purchase from the applicants after approval for subdivision has been given. Ms Congdon intends to live on the smaller lot.

13 In October 2004, the respondent refused the proposed subdivision for three reasons. First, the proposal was said to be inconsistent with the rural zoning of the land in the local authority's town planning scheme (TPS 2 - see below). It was argued that the purpose and intent of that zoning was to preserve the area's current rural use and density of development. It was said that there was the potential for additional building development and the introduction of non-rural activity in conflict with the zoning objectives.

14 Next, it was argued that the subdivision would result in the creation of a lot of a much smaller size than those already existing in the locality and therefore approval would set an undesirable precedent in terms of further subdivisions in that area.

15 The final reason was that the proposed subdivision did not comply with Commission Policy DC 3.4 "Subdivision of Rural Land" (see further below), by reason of Pen Road not constituting a significant man-made feature dividing the land which, were it otherwise, might have permitted the subdivision of the land.

16 After further information was supplied, this decision was reconsidered and the proposal was again refused in February 2005. The applicants applied to this Tribunal in late February 2005 for a review of the decision, and the matter was heard and finally concluded in late July 2005.

17 Much of the case against the applicants initially proceeded on the basis that what was intended by the subdivision was a rural-residential use area. There is some basis for this assumption by reason of the existence of a file note dated 22 October 2004, recording the tenor of a conversation between an officer of the respondent and the applicants' then agent, a surveyor (Mr Longley). However, it is clear from the applicants' evidence that what is proposed now is a rural use, which as already appears above, is not to be rural-residential (except as to the residence of the owner).

18 This issue will be returned to below.

19 The relevant planning and policy instruments determining this review are as follows:

• The "Agricultural and Rural Land Use Planning" policy (SPP 2.5)

20 The effect of SPP 1, SPP 2.5 and DC 3.4 are all summarised in previous decisions of the Tribunal, including Fehlauer and Western Australian Planning Commission [2005] WASAT 222 at [17] - [23] and it is unnecessary to repeat that information again, as subject to one matter, reference may be readily had to that decision for details of these instruments.

21 In this review, the respondent has not sought to rely upon DC 1.1 "Subdivision of Land - General Principles" and so references in those paragraphs of Fehlauer and Western Australian Planning Commission to that policy may be disregarded.

22 The respondent has, however, sought to rely upon a draft policy, namely SPP 3 "Urban Growth and Settlement" which is not dealt with in that previous decision of the Tribunal.

23 The Tribunal has carefully considered SPP 3 and its status, and for the reasons given in Nicholls and Western Australia Planning Commission [2005] WASAT 40 at paragraphs [39] - [47], the draft proposal ought to be considered as a "seriously-entertained planning proposal" and regard should be had to it by the Tribunal in this review.

24 Much of draft SPP 3 is directed at regulating or managing rural-residential growth. It is aimed at minimising the potential for conflict within compatible activities associated with productive rural uses, and giving preference to locations near existing settlements which have services and facilities available in order to support a local community, and which would avoid demands for costly infrastructure extensions. In the respondent's view, the proposed subdivision is contrary to that policy measure as it would have the potential to introduce lifestyle-residential/rural uses inconsistent with the current broadacre farming prevalent in the vicinity of the subject land. Further, the respondent says that the nearest existing service centre is some 27 kilometres from this potential rural-residential lot.

25 In particular, the respondent relies upon cl 3.1.1 of DC 3.4 and cl 4.1.1 of DC 3.4. Clause 3.1.1 provides a general presumption against the subdivision of rural land unless the subdivision is specifically provided for in a town planning scheme, a local planning strategy endorsed by the WAPC or a local rural strategy endorsed by the WAPC.

26 Clause 4.1.1 provides that the Commission will only approve the subdivision of rural land for rural-residential and rural small holdings where it is has identified and endorsed a local planning strategy or local rural strategy and the land is appropriately zoned.

27 The respondent links those clauses with the Shire of Coorow's Town Planning Scheme, namely TPS 2. In particular, the respondent relies upon cl 4.2 of that scheme which states that the rural zone's objective is to "[p]rovide for a range of rural pursuits such as broadacre and diversified farming which are compatible with the capability of the land and [which would] retain the rural character and amenity of the locality".

28 Next, the respondent relies upon the local planning strategy (LPS). Clause 6.2.5(a) of the LPS provides the following objective:

"[T]o ensure the continuation of the basic rural use within the zone, encouraging where appropriate, the retention and expansion of present agricultural activities." (Emphasis added.)

29 The respondent also relies upon cl 7.2 of the LPS which provides, importantly, as follows:

"The Shire should avoid subdividing productive agricultural land for small rural lots (hobby farms). This form of 'lifestyle' rural residential [use] should be investigated in the existing townsites to help build up the town populations."

The respondent's case on the first issue in relation to the planning framework

30 The respondent says that the applicants propose a small rural lot within an area of productive agricultural land, although it concedes that at the moment the land is not being used for such purposes. It is common ground that the subject land is not close to an existing town site or service centre and the respondent argues that it would not relevantly help build up the population of any town within the Shire. The respondent says the surrounding area is a predominantly broadacre farming area and the proposal has the potential to lead to rural-residential development.

The applicants' reply to the respondent's arguments on the first issue

31 First, the applicants draw attention to the definition of rural pursuit in TPS 2, which includes activities broadly consistent with those proposed by the applicants. The applicants further say that the thrust of the LPS is consistent with these concepts in TPS 2. As to cl 7.2 of the LPS, the applicants say that this would "seem" to refer to a Shire-initiated proposal for subdivision. Next, the applicants note that the zoning and development control of the land would not change after any subdivision and the land would remain rural.

32 The applicants say that SPP 2.5, in dealing with the protection of the State's primary agricultural land resources, does not apply to the applicants' circumstances, as the subject land is not within a priority agricultural zone and thus does not need protection within the terms of that policy.

33 As to cl 4(a) of SPP 2.5, the applicants point to the use of the land for agricultural purposes in their proposals; secondly, as to cl 4(b), dealing with the minimisation of ad hoc fragmentation of rural land, the applicants refer to the fact that fragmentation of the land has already come about by the construction of Pen Road. In any event, the applicants point to the fact that an aim of that policy is to provide rural settlement for the benefit and support of existing communities. The applicants point out that the Shire of Coorow's population has decreased in the relevant census period and they have produced statistics to that effect. The applicants say that allowing the intended purchaser to go ahead with their proposal would support the community.

34 Finally, the applicants draw attention to the fact that the general presumption against the subdivision of rural land, unless it is specifically provided for in a town planning scheme, endorsed local planning strategy or endorsed local rural strategy - as appears from cl 3.1.1 of DC 3.4, is only that: a presumption; decision-makers, they say, ought to recognise that there are individual circumstances that warrant approval. The applicants say that their case is such a case.

Tribunal's findings and discussions of the case on the first issue: the general issue of subdivision

35 Putting to one side for the moment the question of subdivision, the Tribunal does not disagree that if the applicants' intended proposals were carried through, they would be relevant rural pursuits and matters that could be approved of as part of the current planning regime. This is the position of the Shire. Whether they would relevantly benefit the community is another matter, but one may assume that benefits would flow to the local Shire and that there might be some small population increase from increased activity on the proposed smaller lot.

36 The Tribunal also finds that there is no current intent for rural-residential development on the land and the respondent's arguments, so far as they centred around rural-residential use concerns, ought strictly be confined to the possibility only that rural-residential development might take place, and then sometime in the future. This was effectively conceded by the respondent's witness, Mr Hurley.

37 Notwithstanding these two matters in their favour, the applicants do face three significant hurdles. The first is that LPS cl 7.2 which counsels or cautions the Shire to avoid subdividing productive agricultural land - which this clearly is - for small rural lots (hobby farms). Clause 7.2 says that such matters should be investigated. The Tribunal does not agree that cl 7.2 is limited to Shire-initiated proposals for subdivision as was suggested by the applicants. Clause 7.2 is not limited to subdivisions by the Shire, but naturally reads as a policy document where the Shire is involved in subdivision at any level. Although this particular clause appears in that document as a recommendation, it may be inferred that this is the position of the Shire as it is consistent with the tenor of the other instruments and no evidence has been produced suggesting otherwise. The Shire's expressed support for the application does not, in the Tribunal's view, mean that their published policy is being departed from generally.

38 The Shire's LPS clause 6.2.5 sets out a basic objective for the rural zone, namely the retention and expansion of present agricultural activities. The present agricultural activities, albeit on the balance of the subject land, is broadacre.

39 Finally, the fact that the LPS recommends, in effect, locating small rural lots (hobby farms) or lifestyle rural-residential development within or near to existing town populations is broadly consistent both with the notion of orderly planning and a focus on maintaining agricultural land in large holdings for the protection of the land's status as such.

40 This interpretation or application of all of the above policies is wholly consistent with the discussion in both Fehlauer and Western Australian Planning Commission and the cases therein cited at paragraphs [32] - [35]. To these authorities may be added, Wilson v Western Australian Planning Commission [2004] WATPAT 215, a case cited by the respondent. This decision of the President of the former Town Planning Appeal Tribunal found that the subdivision of property into two lots of approximately 9 hectares and 13 hectares ought to be refused notwithstanding that the Tribunal identified a significant man-made feature, namely a drainage easement, which already physically divided the proposed lots.

41 The Tribunal there described the proposal as an ad hoc fragmentation of rural land that would create an undesirable precedent for future applications. (The Tribunal will return to this case below.) So too, Martin v Western Australian Planning Commission [2003] WATPAT 118 at paragraph [52].

42 On the other hand, there is the decision of Tilbrook v Western Australian Planning Commission [2004] WATPAT 100, a case cited by the applicants, where the former Tribunal set aside a decision not to approve a subdivision in the City of Wanneroo which was to create two lots of approximately 2 hectares each. There, the Tribunal was critical of the assumption made by the WAPC to the effect that the proposed subdivision would result in the creation of lots for rural-residential purposes. However, crucial to that case was the finding of the Tribunal that the small lot sizes proposed were consistent with the surrounding lot patterns near the subject land of the review. Here, as appears below, the lot pattern evidence indicates that this subdivision would be very much the exception. The Tribunal turns to this issue.

43 The applicants maintain that there are four lots of 4 hectares or less in approximate size within a 20 kilometre radius of the subject land. A number of other lots were mentioned ranging from approximately 7 hectares through to 33 hectares, again it is alleged within approximately 20 kilometres of the subject land. However, a map of the immediately surrounding lots shows that they range from 1768 hectares down to 410 hectares. It is clear in terms of the immediate vicinity of the subject land that the creation of a small lot as proposed of less than 4 hectares would be out of character with the surrounding pattern of lot sizes.

44 To the extent that the applicants have discovered some isolated smaller lots within a 20 kilometre radius, it needs to be stressed that the history of these lots has not been provided by the applicants and it is likely that in any event they were approved before the more recent strategy that this review is concerned with. Such was the evidence of Mr Hurley. That strategy is aimed at preventing the very thing that the applicants claim as an already established precedent.

Conclusions of the Tribunal on the first issue of the correct planning principles to be applied

45 The applicants produced substantial evidence concerning Ms Congden's qualifications, her plans, her research, her connection with the area and the proposal generally (including its source of finance) and its favourable reception by neighbours and, indeed, by the Shire itself.

46 There is no question that, standing alone, the proposals for the land make sense. It makes this small parcel of land perhaps more productive and useful and allows an owner to alienate it to somebody who has a practical use and vision for it. It is apparently difficult to fully utilise now as a broadacre pursuit because of such matters as its history, location, size and the mechanics of crossing Pen Road (see further below).

47 However, such an endorsement by the Tribunal is not the present task. Rather the present task is to consider - putting to one side for the moment the extent (if any) of the physical divide caused by the road - the matter from a planning point of view.

48 And, as the Tribunal has endeavoured to do, from a planning point of view, consistent with the relevant policies, correctly interpreted, and past decisions of this Tribunal (which have been referred to above), to allow the review would be - in this particular location - an unprecedented, ad hoc decision leading to the fragmentation of existing perfectly usable agricultural land into a comparatively very small holding, with the attendant dangers of conversion of its status, and then in a sea devoid of any specific planning framework regulating that process.

49 It is not the merits of Ms Congden's plans that are at issue - if they were, then she surely would have won "her" review - but rather the extent to which her perfectly sensible and rational proposal undermines, or has the effect of undermining, the broader governmental regulatory strategy already referred to.

50 Unfortunately for the applicants and Ms Congdon, the whole point of these policies and strategies is to prevent this very type of proposal from occurring. The only room for departure from such policies is the availability of evidence and other material showing that, from a planning point of view, on its particular merits, the policies have little relevance or application to the particular circumstances of the case, or that departure is otherwise relevantly justified. There is no such material available to the Tribunal here that would allow it to come to that conclusion. In particular, the Tribunal is not persuaded that there is anything of substance to show that the respondent has previously departed from its strategy in a truly analogous case. Indeed, the series of Tribunal decisions referred to already largely illustrates the opposite point of view.

The second issue: Pen Road as a significant man-made feature

51 I turn now to the second issue before the Tribunal which concerns whether Pen Road is a significant man-made feature which already physically divides the proposed lots.

52 Clause 3.2.1(a) of DC 3.4 states that a subdivision may be approved where "[a] significant natural or man-made feature already physically divides the proposed lots and an undesirable precedent would not be set".

53 As to Pen Road, the applicants say that this feature meets this standard; the respondent says otherwise, particularly relying on its status as in effect as a "nothing out of the ordinary" gravel country road.

54 There is video and photographic evidence available to the Tribunal which shows a reasonably wide, gently undulating, in parts, corrugated but otherwise apparently flat gravel road, typical of those seen at any turn-off from a sealed road in the WA country. The road does not look out of the ordinary.

55 It is common ground between the parties that the road is constructed of gravel, that it is approximately 10 metres wide, that it was "created" some 60 years or so ago (subject to later surveys); that it has an average of some 15-30 movements per day (that is, the lower and upper movements of traffic estimated by both parties), and that it is signposted and maintained by the Shire. The history of its creation or realignment is referred to in the evidence, but this issue is essentially irrelevant to the question to be determined today. Likewise, in respect of the difficulties of its use in terms of crossing cattle over it.

56 It is unnecessary to go further into these matters because of the conclusion that the Tribunal has reached as to the meaning of the word "significant" and the conclusion that follows from it.

57 First, the Tribunal adopts the following meaning of "significant" from the Australian Appeals Tribunal case Re Honor and Secretary, Department of Family and Community Services [2003] AATA 179; (2003) 73 ALD 272 at [31] - [33] where the Tribunal said:

"The definition of 'farmer' under [the legislation there under consideration] requires that the applicants derived 'a significant part' of their income from a farming enterprise. The [AAT] in Re Secretary, Department of Family and Community Services and QX01/2 [2001] AATA 1026; (2001) 67 ALD 509 considered the meaning of the term 'significant' in this context. The tribunal found, applying the reasoning of Foster J in ACI PET Operations Pty Ltd v Comptroller-General of Customs [1990] FCA 398; (1990) 26 FCR 531, that 'significant may be regarded as meaning sufficiently large [as] to be important'.

In ACI PET, the Federal Court was considering the meaning of the word 'significant' in relation to the Customs Act 1901 (Cth). Foster J stated:

'The word "significant" has acquired a number of shades of meaning in common parlance. For instance, it is not infrequently used as a substitute for "substantial". It is, however, clearly important that it be given as precise a meaning as possible in this legislative provision, as its use imports a major guiding consideration into the determination by the comptroller of whether goods serve "similar functions". I turn, therefore, to the dictionaries for guidance and find that the Oxford English Dictionary (2nd ed) defines the word (where relevant) as "full of meaning or import; important, notable; and having or conveying a meaning", and that the Macquarie Dictionary defines it as "important; of consequence; expressing a meaning; indicative".

I derive assistance also from considering that the word is the opposite of "insignificant" which word is defined in the Macquarie Dictionary as meaning "unimportant, trifling or petty" and as "too small to be important". Looked at from this point of view "significant" may be regarded as meaning "not unimportant or trivial" or as "sufficiently large to be important".

The tribunal [that is, the AAT] adopts this approach in relation to the meaning of 'significant'."

58 So too does this Tribunal, in this review.

59 In the Tribunal's view, the composition of the road surface (whether it is sealed or not), its size, maintenance and traffic movements all contribute to answering the question whether a road is relevantly "significant"; namely whether it is "not unimportant or trivial" or "sufficiently large to be important".

60 In the context that we are discussing, Pen Road is not relevantly capable of being regarded as "significant". In context, it simply is not objectively important or noteworthy enough whether in terms of its size, location or any other similar factor. The Tribunal agrees that from the owner of the land's point of view it is significant, and some tourists, transport operators and engineers might think it broadly significant, but the policies operate more objectively than that, and "significant" does have a reasonably clear legal and administrative meaning to which reference has just been made and which when applied here leads to the result just stated.

61 Further, the Tribunal accepts that there are many, many such roads in rural areas in WA analogous to the locality that we are presently concerned with. It may be safely assumed that the policies and rural strategies identified above were drawn up and promulgated by persons who well knew that this was the case. Thus, on the face of it, it would seem strange that any gravel road could potentially lead to a successful subdivision for the land traversed by that road; a situation which would otherwise completely undermine the balance of the policy containing this proviso. The respondent by its evidence has identified other like roads in the same locality, so this is more than a hypothetical issue.

62 The practice of the respondent to generally adopt sealed roads as making them sufficiently significant (which apparently explains some approved subdivisions alleged to be precedents) therefore makes sense, although the Tribunal should not be taken as saying that it agrees that every sealed road necessarily leads to that conclusion.

63 Even if the Tribunal were found to be wrong about these matters and the road is relevantly significant, in any event the Tribunal would follow the approach and reasoning - which is persuasive - of the President of the former Tribunal in Wilson v Western Australian Planning Commission. There, as already mentioned, the former Tribunal found that a Water Corporation drainage reserve 20 metres wide which bisected the subject property was a significant man-made feature which physically divided the proposed lots. However, the President went on to say:

"12. There was an attempt during the course of the hearing on the part of the Appellant to argue that provided they could identify what was involved was a significant feature and that it physically divide [sic] the proposed lots, and that an undesirable precedent would not be set, that subdivision as of right would follow.

13. That patently is not the way in which the policy reads or is to be understood.

14. The starting point necessarily in such a significant policy is to have regard to the policy objectives. Those policy objectives include:

'Protect agricultural land resources wherever possible by ...

(b) minimising the ad hoc fragmentation of rural land'.

15. There is then under general policy measures an indication of a general presumption against subdivision.

16. The Appellants at one stage attempted to suggest that what was contained in clause 3.2.1 was in some way an exception. Again that is not the way in which I would have construed this particular part of the policy. Rather it is a matter, which if satisfied, at best may go some way to either neutralising or minimising the general presumption [against subdivision] appearing in clause 3.1.1.

17. The application for subdivision will ultimately fall to be determined on the basis of a consideration of the policy objectives in Policy DC 3.4 as well as the [Shire's local rural strategy].

18. Counsel for the Respondent sought to argue that the use of the expression 'undesirable precedent' in clause 3.2.1(a) necessarily related to the planning and policy implications of such an approval.

19. It seems to me that the expression is to be understood in a much more narrow sense. Rather it is the replication of factual circumstances which provides the basis for the expression 'precedent'. It is that sense in my view that the expression is to be understood."

64 The President then went on to find that there would be an ad hoc fragmentation of rural land which was not supported by the local rural strategy and which would lead to an undesirable precedent being created.

65 All such factors are equally applicable to this case by reason of the findings made above.

66 Thus on the second issue the applicants have also failed.

67 For all of these reasons the Tribunal has decided that the review should not succeed and that the application must be dismissed and the decision under review affirmed.

I certify that this and the preceding [68] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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MR P McNAB, MEMBER