State Administrative Tribunal (WA)|2009-12-11|Before: Justice J

STARTRAIL PTY LTD and MAIN ROADS WESTERN AUSTRALIA [2009] WASAT 243 (11 December 2009)

CITATION : STARTRAIL PTY LTD and MAIN ROADS WESTERN AUSTRALIA [2009] WASAT 243

Resumption - Compensation - Preliminary questions - Land zoned rural - Whether land would have been zoned differently in absence of proposal for public work - Future potential for rezoning

Housing Commission (NSW) v San Sebastian Pty Ltd [1978] HCA 28; (1978) 140 CLR 196

Mount Lawley Pty Ltd v The Western Australian Planning Commission [2007] WASCA 226; (2007) 34 WAR 499

Pointe Gourde Quarrying and Transport Co Ltd v SubIntendent of Crown Lands [1947] AC 565

1 This application to the Tribunal concerns a claim by Startrail Pty Ltd for compensation from Main Roads Western Australia in relation to land compulsorily taken for the purposes of the PerthBunbury Highway.

2 The valuers engaged by the parties relied upon different assumptions as the likely zoning of the land if the highway had not been proposed. The land is zoned rural, but the applicant contended that, if the highway were not proposed, it would have been zoned special rural, and that it was entitled to compensation based on the value of the land with that zoning.

3 To resolve that fundamental difference, the parties referred that question to the Tribunal as a preliminary issue. The Tribunal heard evidence from town planners called by each side. It considered the local and regional planning instruments applicable to the land, and concluded that, in the absence of the road proposal, the land would have been zoned rural at the date of the taking, but would have had potential for special rural subdivision at some time in the future.

4 These proceedings commenced by way of the reference to the Tribunal of a claim for compensation as a result of the taking by Main Roads Western Australia (Main Roads) of land owned by Startrail Pty Ltd (Startrail) for the purposes of the Perth to Bunbury Highway. The parties participated in mediation through the Tribunal which identified that differences to the planning assumptions relied upon by the parties' valuers constituted the major area of disagreement between them. The differing assumptions related to the likely zoning of the land if the effect of the relevant public work, and the scheme leading to the taking of the land, were ignored.

5 Because the parties considered, that, if that issue were resolved, there would be a strong prospect of either agreement as to the appropriate compensation, or at least a significant narrowing of the issues for hearing, they sought a preliminary determination of certain questions. Those questions are:

What would have been the zoning of the Startrail land (including the taken land and the remaining land) as of the date of taking, if not for the primary regional road reservation for the Perth-Bunbury Highway along the eastern boundary of the land?
If the determination of the first issue is 'special rural', what would have been the development potential of the Startrail land, including in particular the consideration of the potential lot size into which the Startrail land could have been subdivided?
If the determination of the first question is 'rural', what would have been the development potential of the Startrail land, including in particular:
1. consideration of the future potential for rezoning of the Startrail land to 'special rural';
2. consideration of the potential lot size into which the Startrail land could have been subdivided?

6 It is those questions to which these reasons are directed.

7 In December 2005, Startrail purchased land described as Lot 332 on Deposited Plan 100622, which is located to the west of the Pinjarra townsite within what is known as the Peel Region. The land is approximately 75 kilometres south of Perth central business district, and approximately 13 kilometres south-east of Mandurah central business district. Prior to the taking by Main Roads, the Startrail land had an area of 60.8755 hectares.

8 On 26 July 2006, a portion of Lot 332, which is now described as Lot 334 on Deposited Plan 50768, was taken under the provisions of the Land Administration Act 1997 (WA) (LA Act). The taken land has an area of 11.2668 hectares, leaving a balance of land, now known as Lot 552, which has an area of 49.6087 hectares.

9 The Startrail land had frontage to three gazetted road reserves located along the entire length of the western, southern and eastern boundaries.

10 As of the date of the taking, the eastern boundary of the Startrail land lay 3 kilometres west of the gazetted Pinjarra townsite, and 3.1 kilometres from the newest developed portion of the Pinjarra townsite. It lay approximately 5.4 kilometres from an intersection which the planners considered effectively to be the centre of the Pinjarra townsite.

11 The portion of land taken extended along the length of the western boundary of the Startrail land.

12 The Startrail land lies slightly more than halfway between the townsite and regional open space which abuts the Peel Inlet.

13 It is common ground that the Startrail land has historically been developed and used for rural purposes. With the exception of a few isolated trees, the Startrail land is clear of native vegetation as a direct result of traditional farming practices. Property abutting the Startrail land in all directions has also historically been used for traditional farming/rural purposes. In more recent times, the land immediately to the east of the Startrail land has been progressively subdivided into special rural (rural residential) lots.

14 The Startrail land lies within the area of the Shire of Murray Town Planning Scheme No 4 (TPS 4) which was gazetted on 23 June 1989. The Startrail land is included in the Rural Zone for the purposes of TPS 4.

15 The land abutting the Startrail land to the west, north and south is also included in the Rural Zone. As already observed, the land immediately to the east is zoned special rural, having been changed from a rural zoning by an amendment to TPS 4 published in June 2004.

16 TPS 4 does not identify any minimum lot sizes for the Rural Zone. However, in 1994, the Shire of Murray (Shire) and the Western Australian Planning Commission (Commission) adopted the Shire of Murray Local Rural Strategy 1994 (LRS) to guide subdivision, rezoning and development of land in the Rural Zone.

17 It is common ground that prior to the introduction to the Inner Peel Region Structure Plan and the Peel Region Scheme, both of which are referred to below, the LRS was the only primary document used for strategic planning in the Shire.

Development of the Shire of Murray's Local Rural Strategy has been guided by the following principles which were enunciated in the study brief:

an integrated catchment based approach;
protection of the Shire's agricultural base;
protection of the Shire's environmental, heritage and cultural values;
protection of land with potential for urban or industrial uses;
enhancement of the development potential for tourism.

19 In relation to the protection of the agricultural base of the Shire, the LRS provides that:

Unless identified by this Local Rural Strategy as having potential for other forms of development, all rural areas to the west of, and including the Darling Scarp, are recommended as having a 40 ha minimum lot size.

20 The Startrail land lies west of the Darling Scarp.

21 The LRS divides the Shire into planning precincts. The Startrail land lies in Planning Precinct No 20, described as 'Peel Harvey Hinterland'. The principal objectives of it are:

To protect areas of conservation, landscape and environmental value.
To provide a land use buffer between the Peel-Harvey Estuary and the inland agricultural areas.

22 The planning considerations in relation to Precinct 20 include the following:

Generally poorer quality agricultural land, parts of which are susceptible to waterlogging and salinity
The precinct is relatively isolated from existing residential areas and associated services. Development pressures are likely to increase following the future completion of the PerthBunbury Highway.
The adjacent Peel Inlet and Harvey Estuary is of regional significance as a waterbird habitat for both trans-equatorial and residential Australian waterbird species, and as a fish nursery area. It is also an open waterbody providing a valuable recreational reserve in relatively close proximity to the Perth and Bunbury metropolitan areas. It is of regional significance for ecosystem maintenance and aboriginal cultural purposes (WAWRC 1991).

23 The development guidelines in relation to Precinct 20 provide that there is to be 'no further subdivision beyond the standard 40 hectare minimum unless required to rationalise conservation reserve boundaries or to create an appropriate recreation or tourist facility'.

24 The land immediately to the east of Precinct 20, through to the Pinjarra townsite, lies within Planning Precinct No 19 (Precinct 19), known as BeachamCurtis. Precinct 19 is described as having its western edge on 'the proposed route for the future Perth-Bunbury Highway'. The principal objectives of Precinct 19 are:

To provide for special rural zones which take into account land capability constraints.
To provide for farmlet subdivision to cater for equestrian activities which require relatively close proximity to facilities in Pinjarra.

25 The planning considerations in relation to Precinct 19 include that:

The precinct is easily accessible to both Pinjarra and Ravenswood but does not front onto the major Mandurah-Pinjarra connector road.
The rural character of land adjacent to future Perth-Bunbury Highway would be maintained through encouraging Farmlet size lots in this location, except in the southern portion of this precinct.

26 At the time the LRS was adopted, no scheme water was available in Precinct 19, and accordingly, only farmlet subdivision was contemplated for the area. It is common ground that, as a result of reticulated water becoming available within Precinct 19, the principal objectives were amended to include the reference to special rural zones as set out above, and an addendum was inserted into the LRS in relation to Precinct 19. The addendum recites that the present rural strategy only provides the opportunity for development of farmlet lots within the precinct (being lots of a minimum size of 10 hectares) and that no opportunity is provided for the development of special rural allotments of approximately 2 hectares within the precinct. It continues:

The initial version of the Rural Strategy did provide Special Rural subdivision potential subject to any proponent demonstrating to Council's satisfaction the suitability and capability of land for sustaining such uses. The strategy and this policy were subsequently altered however as Council at the time of the Strategy's preparation, opted for the setting aside of much of this Precinct for farmlet subdivision. This approach was based upon the perceived need at the time for additional equestrian lifestyle lots in the Shire in this location.

It is now accepted that these [sic] is also a strong and largely unsatisfied demand for rural residential allotments (down to a minimum lot size of 2ha) in close proximity to the Pinjarra townsite. Council is now keen to encourage this type of subdivision in this precinct, providing such subdivision and development complies with other strategy objectives as expressed in appendix C.

27 Appendix C identifies the selection and development criteria for rural residential land uses. It identifies categories of rural residential development and applies development criteria to those types of development. The relevant categories for present purposes are:

Special residential (lot 0.2 - 1ha) - residential only, no stock holding or intensive agriculture.
Special rural (small lot rural-residential development, 2 - 4ha, preferred as an average but site conditions may dictate slightly smaller or larger lot sizes in some areas) - residential, very limited stock holding but no intensive agriculture.
Farmlet (hobby farms or larger rural-residential development, lots 10 - 40ha) - residential, stock holding (likely mainly to be horses) but no intensive agriculture.

28 It is not asserted in these proceedings that the Startrail land had potential for special residential development as defined in Appendix C. The applicant contends, however, that, but for the presence of the PerthBunbury Highway, the Startrail land had potential for development as special rural, and indeed would have been zoned for special rural at the date of taking. The development criteria for special rural development include:

Close proximity (nominally within 3 km) of existing urban or townsite areas to minimise servicing costs and facilitate community development.
not adjacent to highways or main tourist roads unless screened by an appropriate vegetation buffer and no direct access permitted from that highway or road.

29 At its August 2005 meeting, the Shire adopted for advertising purposes a new Shire of Murray Town Planning Scheme No. 5 (draft TPS 5). The Startrail land (other than the taken land which is shown as primary regional road) is zoned rural.

30 At the same time as adopting TPS 5 for advertising, the Shire adopted a new Local Planning Strategy for advertising purposes (draft LPS).

31 The draft LPS also divides the Shire into precincts. The Startrail land lies within Precinct No 3 - North and South Yunderup. Precinct 3 comprises only the northern portion under the draft LPS, but extends further north so as to include the developed areas of North and South Yunderup which lie on either side of the Murray River. Precinct 3 lies entirely west of the PerthBunbury Highway. In the section concerning land use characteristics, the draft strategy describes rural landholdings south of Beacham Road, which include the Startrail land, as 'earmarked for future urban development'.

Support rezoning of rural landholdings for urban purposes with appropriate outline development plans that incorporate water sensitive design principles and liveable neighbourhood design aspects.

33 The land to the east of PerthBunbury Highway is in Precinct 7 - Pinjarra, under the draft LPS. Precinct 7 includes what is presently the Pinjarra townsite. In relation to the land use characteristics of Precinct 7, the draft LPS provides:

The precinct has been enlarged to incorporate landholdings in West Pinjarra abutting the future PerthBunbury Highway alignment and rural landholdings to the north west and north east of town for potential urban expansion.

34 The area of land within Precinct 3 is depicted on the draft LPS plan as being an 'area subject to further investigation'.

35 Precinct 7 under the draft LPS calls for 'detailed structure planning to be prepared for CurtisBeacham subprecinct to facilitate rural/residential development with lots ranging from 1 to 3 hectares in size'.

36 The Peel Region Plan was advertised for public comment in 1990 with the broad aim of encouraging social and economic development throughout the Peel Region. The Peel Region Plan listed a number of strategies to achieve objectives identified in the plan. The transport strategies recognised the proposal for the Perth-Bunbury Highway, and the proposed route of the highway was shown on the plan. The future highway was shown as a road reserve within Lot 332 abutting its eastern boundary being the location of the land ultimately taken. The balance of the Startrail land was depicted on the plan as 'Rural E'. The land use table set out the preferred principal land uses within 'Rural E' as 'conservation, grazing, tree farming, agroforestry' although it identified other land uses as 'recreation, rural residential and urban in selected areas - including Yunderup'.

37 In 1997, the Western Australian Planning Commission published the State Planning Strategy (SPS): the executive summary of the SPS described it as being 'a land use planning strategy for Western Australia's development up to our bicentenary in 2029'.

38 In relation to the Peel Region, the SPS predicted that 'in the next three decades, the Peel Region will continue to grow, with Mandurah being the major residential and commercial area'. It suggested that a series of lifestyle-based rural villages and development areas will be established, and an emphasis will be placed on containing urbanisation, protecting estuarine and coastal areas and preserving the rural backdrop and environmental attributes to cater for lifestyle choices. In relation to community, the SPS suggested the promotion of nodal settlement patterns in rural areas separated by agricultural/green belts, especially along the Murray River.

39 Also in 1997, the Western Australian Planning Commission adopted the Final Inner Peel Region Structure Plan which was designed to provide a basis for the preparation of the Peel Region Scheme. It identified that, at the regional level, structure plans defined the extent and location of future urban land, future regional open space and the arrangement and location of future transport infrastructure, servicing corridors and major activity centres. The Final Inner Peel Region Structure Plan showed the proposed PerthBunbury Highway along the eastern boundary of the Startrail land, with the balance of the land being rural.

40 The Peel Region Scheme was gazetted in October 2002. The eastern portion of Lot 332 was reserved under the Peel Regional Scheme as a regional road reservation. The balance of the Startrail land was shown as part of the rural zone.

41 What underlies the preliminary questions posed in these proceedings is the requirement found in s 241 of the LA Act that, in assessing compensation, regard has to be had to the value of the land 'discounting any increase or decrease in value attributable to the proposed public work'. Statutory requirements of that nature have been referred to as a statutory form of the common law principle enunciated in Pointe Gourde Quarrying and Transport Co Ltd v SubIntendent of Crown Lands [1947] AC 565 - see Housing Commission (NSW) v San Sebastian Pty Ltd [1978] HCA 28; (1978) 140 CLR 196 (San Sebastian) per Jacobs J at 205.

42 A similar provision found in s 36(2b) of the Metropolitan Region Town Planning Scheme Act 1959 (WA) was considered by the Court of Appeal in Mount Lawley Pty Ltd v The Western Australian Planning Commission [2007] WASCA 226; (2007) 34 WAR 499 (Mount Lawley) at [14] - [32]. Although that discussion considered the requirement to pay no regard to any increase or decrease in value attributable wholly or in part to the 'Scheme' as distinct from any increase or decrease in value attributable to the 'proposed public work', the Court of Appeals' analysis is applicable to the approach required by s 241 (2) of the LA Act.

43 In Mount Lawley (at [18]), the Court noted the observation of Jacobs J in San Sebastian that there are many situations where the relation between the zoning and the proposed public works is not clear cut. The Court cited the following example provided by Jacobs J (at 206207) where he said:

Assume an area of land on the outskirts of existing settlement, and assume a planning authority concerned to designate land uses in a planning scheme. The land is designated open space. Thereafter it is resumed for the purpose of a public reserve. The fact that the land was zoned as open space may have depreciated its value. Does the resuming authority pay compensation at the depreciated value of open space or at some other value? The question cannot be correctly answered without knowing whether there was any connexion between the zoning as open space and the subsequent resumption. If the zoning was done with the intent or in anticipation that the land should be resumed for a purpose such as a public reserve or if the zoning was proposed or dictated by the resuming authority then s 124 requires that the zoning be ignored. It is only a step in the process of subsequent resumption. But in other circumstances the resumption may be unconnected with the act of zoning. It may be that the resuming authority selects the land for resumption as a public reserve because it is zoned open space; if it does so it is doing no more than ensuring that it, as well as others, conforms to the planning scheme. In those circumstances there is no relevant relationship between the zoning and the public purpose. No public purpose, existing or anticipated, intended, or urged by the zoning authority, leads to the zoning; rather, the zoning leads to the public purpose and consequent resumption.

44 In this matter, the applicant contended, and the respondent did not dispute that what must be disregarded is, in effect, the reservation of the taken land for the purposes of the PerthBunbury Highway and any direct impacts of that reservation, and that any planning circumstances or determinations that directly relate to or are referrable to the particular alignment of the PerthBunbury Highway must be ignored, or at least questioned. The applicant accepted that planning circumstances that are independent of the alignment of and reservation for, the PerthBunbury Highway are unaffected by the requirement to discount the effect on value of the public work. That approach is consistent with the explanation given by way of example by Jacobs J, and I accept it as providing the basis upon which I should approach the questions posed.

Question 1: likely zoning in the absence of the public work

45 The applicant's contention is that, had it not been for the primary road reservation for the PerthBunbury Highway on its eastern boundary, the Startrail land would have been included in an expanded planning precinct No 19 under the LRS and Precinct 7 under the draft strategy, and would have been zoned 'special rural' under both TPS 4 and Draft TPS 5. The respondent contends that, disregarding the highway alignment, the Startrail land would still have been zoned rural as at the date of the taking.

46 The parties each called an expert planner to support their respective positions. The applicant called Mr Brian Robinson who has had considerable experience as a town planner working in the Peel Region. He expressed the opinion that, if it were not for the location of the highway reservation, the land would have been ideally suited for a transitional zone between future urban land at Pinjarra and South Yunderup and the adjacent rural areas. He considered that, if the highway had not been proposed, planning Precinct 19 would have extended further west to the regional open space abutting the Peel Inlet, with the result that the Startrail land would have been included within that precinct. In that event, he considered it reasonable to assume that an owner of the Startrail land would have sought and achieved special rural zoning for the land prior to July 2006. Mr Robinson considered that the only reason that the western boundary of Precinct 19 was placed in its current location was that the highway reservation provided a natural barrier to development extending out from the Pinjarra townsite.

47 The respondent relied upon the evidence of Mr Trevor Moran, also a planner of many years' experience. Mr Moran expressed the view that, if the highway alignment did not exist, the boundary of Planning Precinct No 19 would not have extended any further west so as to include the Startrail land. His view is that the boundary of Precinct 19 would have either been located where it currently is, or possibly further east. He therefore considered that the Startrail land would have been zoned rural if the highway proposal had not existed. He held the same view in relation to the western boundary of Precinct 7 under the Draft LPS.

48 In my view, the evidence supports Mr Moran's opinion on the question of the likely western boundary of both Precinct 19 under the LRS, and Precinct 7 under the LPS for the reasons which follow.

49 Mr Moran said that in 1994, the general approach by government to planning was to contain special rural development in reasonable proximity to townsites, and to protect rural zones. He relied upon the selection criteria contained in the LRS, which specified that special rural development should be in 'close proximity (nominally within 3 kilometres) of existing urban or townsite areas to minimise servicing costs and facilitate community development', as an illustration of that approach. I note that the development criteria for special residential development, being lots of 0.2 to 1 hectares, also specify close proximity, nominally within 1.5 kilometres, of existing urban areas for the same purposes. Farmlet development, being lots of 10 to 14 hectares, specified a criterion of relatively close proximity, nominally within 10 kilometres, to existing urban or townsite areas. That gradation in lot sizes emanating out from around a townsite is consistent with the approach described by Mr Moran.

50 Mr Robinson suggested that the choice of the nominal 3 kilometre distance as the boundary for Precinct 19 was influenced by the prospective presence of the highway. He suggested, in effect, the 3 kilometre distance was chosen because the highway alignment was approximately 3 kilometres from the western edge of the Pinjarra townsite. In my view, it is more likely that, as Mr Moran suggested, the distances of 1.5 kilometres, 3 kilometres, and 10 kilometres in respect to special residential, special rural, and farmlet development respectively were chosen as appropriate distances to achieve the planning objective of minimising servicing costs and facilitating community development. As Mr Moran suggested, the orderly creation of subdivision which concentrated more dense development closer to a townsite has the effect of preventing random and ad hoc development which would place additional demands on local and state services such as upgrading roads, garbage collection, community and transport services. It would also limit the take up of agricultural land unnecessarily and prematurely for residential purposes.

51 Mr Robinson rightly observed that the 3 kilometre distance specified in Appendix C of the LRS was described as 'nominal'. Mr Moran agreed that the 3 kilometre distance would not be applied inflexibly. The planners agreed at the hearing that from the eastern boundary of the Startrail land to the closest boundary of the Pinjarra industrial area was 3.1 kilometres. They agreed that from the nearest point of the industrial area to the centre of the subject land was approximately 3.7 kilometres, and the distance from the nearest corner of the Startrail land to the centre of the townsite was approximately 5.4 kilometres. It can be seen from a plan drawn by Mr Robinson that, if Precinct 19 were to extend across the subject land to the edge of the regional open space, it would range from 5.5 to 6 kilometres from the western edge of the Pinjarra townsite. Extending Precinct 19 beyond its existing boundary would have been inconsistent with the objective of confining special rural subdivision to within close proximity of the townsite.

52 It is clear that the proposed route of the Perth-Bunbury Highway was a factor in consideration in relation to the planning for Precinct 19. The planning considerations recited in the LRS make that clear. As observed above, one of the planning considerations in relation to Precinct 19 was that the rural character of the land adjacent to the future Perth-Bunbury Highway should be maintained through encouraging farmletsize lots in that location. That consideration suggests that the LRS contemplated the smaller special rural developments towards the east of Precinct 19, again confirming the objective of maintaining smaller allotments in closer proximity to the Pinjarra townsite. The fact that the proposed highway was considered in the context of planning for Precinct 19 does not, however, lead to the conclusion that the western boundary of Precinct 19 was chosen by reason of the future presence of the highway. The highway effectively follows the eastern cadastral boundaries not only at the Startrail land, but at several large lots to the north of the Startrail land. It is those cadastral boundaries which mark the western edge of Precinct 19. It can be seen that the precinct boundaries in the LRS generally follow cadastral boundaries. Against the nominal 3 kilometre specification, the cadastral boundaries which form the western boundary of Precinct 19 represent an obvious choice of the limit of the precinct. In my view, there is no basis for concluding that, were the highway not to have been proposed, the boundary of Precinct 19 would have been any different.

53 That view is reinforced by the objective of planning Precinct 20 within which the subject land lies. The objective of that precinct is to provide a buffer between the Peel Harvey estuary and the inland agricultural areas, and to protect areas of conservation, landscape and environmental value. Precinct 20 extends in a band to the south of the subject site around the Peel Inlet. The planning considerations referred to in relation to Precinct 20 note that development pressures are likely to increase following the future completion of the PerthBunbury Highway. That observation suggests that, at the time of adoption of the LRS, the shire did not consider that development pressures exist in relation to the area encompassed in Precinct 20. The observation also suggests that, if the development of the highway were not to occur, there would be less likely to be development pressures within the area covered by Precinct 20. On that basis, it is difficult to see that the shire would have been inclined to extend Precinct 19 westward so as to include the subject site if the highway were not proposed.

54 That analysis leads to the conclusion that, when the LRS was adopted in 1994, the western boundary of Precinct 19 would not have differed if the proposal for the PerthBunbury Highway had not existed. The question then arises as to whether by 2006 the subject land might, in any event, have been rezoned special rural notwithstanding that it was not included in Precinct 19.

55 At the time that the LRS was adopted, the land contained within Precinct 19 was itself rural land, albeit identified as suitable for special rural subdivision. Over time, five special rural rezonings have occurred within Precinct 19. Those rezonings occurred in November 1996, March 1997, July 1997, February 2003 and most recently, SR 28 in June 2004. SR 28 comprises the land immediately to the east of the Startrail land. Although the land comprised in SR 28 has been zoned special rural for over five years, the evidence of the planners was that only approximately 1/3 of the area, being in the eastern portion of SR 28, is so far subdivided. There are a number of other lots within Precinct 19 which remain zoned as rural.

56 In dealing with areas potentially suitable for rural residential development, the LRS states that it is desirable that development occur in existing special rural zones prior to the release of new land for that purpose. It recites that proliferation of rural residential development remote from townsites is not favoured within the shire because of the demand placed for the provision of services, the adverse effect on adjacent farming land and the introduction of people generally unfamiliar with appropriate land management practices into rural areas. As a consequence, the LRS recommends that a policy should be adopted of requiring an uptake rate of 60% of rural residential lots for existing zones prior to the creation of any new special residential, special rural or farmlet lots. Whilst the planners did not agree as to the application of the 60% uptake policy within the special rural subdivisions in Precinct 19, the principles underlying that policy seem to me to militate against the proposition that the Startrail land would have been approved for special rural subdivision at any time prior to July 2006. The mere fact that, ignoring the highway reservation, the Startrail land adjoins the land comprised in SR 28 does not lead to the conclusion that it would have been approved for special residential subdivision at the same time as the rezoning of SR 28 occurred. I reach that conclusion notwithstanding that I accept that there are no substantial physical constraints to the subdivision of the Startrail land into special rural allotments. Having concluded that, absent the proposed public work, the Startrail land would not have been included within Precinct 19, I consider it unlikely that the Startrail land would have been considered appropriate for special rural subdivision while a significant amount of other land within Precinct 19 remain zoned rural, and development of existing special rural subdivisions within Precinct 19, and in particular the area within SR 28, is progressing slowly.

57 Mr Robinson said that the reason that the SR 28 land had not been more quickly subdivided was because investigations are being undertaken as to the possibility of urban development of that land. It follows that, he argued, the likelihood that, in the absence of the highway, favourable consideration would have been given to special rural subdivision to the Startrail land is heightened.

58 While I accept Mr Robinson's evidence as to the reason subdivision of SR 28 has not progressed more quickly, that does not lead to the conclusion that he argues. There was no suggestion that, even by the time of the hearing, those investigations are complete. It is likely that any rezoning of land abutting Precinct 19 would not be approved while the future planning for Precinct 19 remained under investigation and subject to some uncertainty. The fact that the Startrail land is included in Precinct 3 under the draft LPS and is shown as subject to further investigation demonstrates that, of August 2005, the future long term zoning of the Startrail land required further consideration and investigation. While it is common ground that the Startrail land is ultimately destined for more intensive land use and subdivision, there is, in my view, nothing in the local and regional planning instruments to suggest that the current zoning would be any different if the highway had not been proposed. There is nothing to suggest that the rural designation of the land under the Final Inner Peel Region Structure Plan or the Peel Region Scheme would have been different if the highway were not proposed.

59 For those reasons, I am of the view that if the primary regional road reservation for the PerthBunbury Highway along the eastern boundary of the Startrail land had not existed, or been proposed, the Startrail land would, as at 26 July 2006, have been zoned rural.

Question 3: Future potential for rezoning to special rural

60 Having reached the conclusion that, in the absence of the regional road reservation, the Startrail land would have been zoned rural, the third question falls for determination.

61 The very general terms in which the third question was posed raise issues as to precisely what the parties intended by the question, and the efficiency of any answer which the Tribunal might provide. The applicant, in oral submissions, suggested that the answer might simply be that there are no physical impediments to rezoning of the land, and that it shared the same potential for rezoning to 'special rural' as any other 'rural' land in the vicinity. There was no dispute between the parties that the land has no environmental or other constraints on subdivision. They were agreed that the form of subdivision would be affected by whether reticulated water was available, but were agreed that, for land subdivided after 2002, it would be capable of subdivision into 4 hectare lots without reticulated water, and lots of 1 to 4 hectares with reticulated water. To the extent that those matters answer the question as to the land's development potential, the parties are agreed as to the answer.

62 The experts and the parties were also agreed that the Startrail land has potential to be rezoned and developed as special rural land at some time in the future. Mr Moran accepted that it is conceivable that the land might have been capable of rezoning within a period of five years from the date of taking. He expressed the view, however, that based upon the take up of special rural lots over the last 10 years, it is not likely that the land would have been developed by subdivision for some considerably greater time.

63 There was also agreement that the timing of any rezoning of the land, and of the completion of subdivision, would be influenced by market factors. Quite properly, the expert planners did not seek to express any opinion about how those factors might impact upon the timing of future subdivision of the Startrail land. There was simply no evidence before the Tribunal as to factors of that nature. Nor was there, in my view, sufficient evidence of the investigations surrounding the area comprised in Precinct 3 of the draft LPS, nor of the consideration of more intensive development within Precinct 19, and the land comprising SR 28 in particular, to enable any realistic assessment to be made as to the likelihood, from a planning perspective, of special rural subdivision at the Startrail land being granted within any specific timeframe after July 2006.

64 The most that can be said in relation to question 3 is that:

as at July 2006, the Startrail land, absent the highway proposal, would have had potential for special rural subdivision at some time in the future;
there do not appear to be any physical or environmental constraints which absent the highway, would have impeded subdivision of the Startrail land into special rural lots;
if the Startrail land were subdivided into special rural lots, lot sizes might be expected to be approved at 1 to 4 hectares if reticulated water were provided, and 4 hectares if reticulated water is not provided; and
given the conclusion that the boundaries of the precinct within which the Startrail land lies under the LRS, and the draft LPS, would not be different if the highway had not been proposed, it is likely that, in the absence of the highway, the approach to the future planning of the Startrail land, and the land to the north and east of the Startrail land, would not have been substantially different from the process being undertaken with the road in place. In other words, it is likely that the Startrail land would have been subject to investigation as appears to be presently proposed.

The Startrail land (including the taken land and the remaining land) would as at 26 July 2006, in the absence of the primary regional road reservation along the eastern boundary of the land, have been zoned rural.
Not applicable.
As at July 2006, the Startrail land had potential for rezoning as special rural at some time in the future, but otherwise had the development potential outlined in para 64 of the reasons for decision that the Tribunal published 11 December 2009.

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

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Administration Act 1997

Region Town Planning Scheme Act 1959

Housing Commission (NSW) v San Sebastian Pty Ltd

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (91 paragraphs)

STARTRAIL PTY LTD and MAIN ROADS WESTERN AUSTRALIA [2009] WASAT 243 (11 December 2009)

Parties

Legislation Cited (2)

Cases Cited (2)