Town planning - Subdivision application - Preliminary issue - Validity of condition - Conditions imposed on subdivision - Two lot subdivision - Abattoir on rural land - Four residences on parent lot - Land use conflict between abattoir and residences - WAPC approved subdivision - WAPC imposed condition on title warning prospective purchaser of one lot of potential land use conflicts - Whether other condition imposed adjusting boundary between lots to ameliorate land use conflicts was permissible - Condition followed environment protection licensing instrument's boundary - Buffer zone effect of adjusted boundary - Adjusted boundary expanded size of one lot - Adjusted boundary effectively grouped two closest residences with abattoir - Adjusted boundary grouped two furthest residences away from abattoir - Whether condition imposed for a valid planning purpose - Tribunal upholding validity of condition

Planning and Development Act 2005 (WA)

Preliminary question resolved in respondent's favour

The Tribunal was asked to rule on whether a condition could be imposed on the subdivision of certain rural land which adjusted the boundary of the proposed subdivision to take into account potential land use conflicts flowing from the presence of four existing residences established near an abattoir located on rural land.

The applicants had not challenged an accompanying condition requiring a notice on the title of one of the lots (Lot B, proposed to contain two residences, those furthest away from the abattoir) alerting prospective owners of potential land use conflicts arising from the abattoir's odour, noise, dust and light emissions, matters which might affect amenity. The applicants had conceded that effectively there were already land use conflicts occurring as between the abattoir and residential premises.

The Western Australian Planning Commission had approved the subdivision of the land into two lots but had partly used a licence boundary found in an environment protection licensing instrument (regulating the abattoir's operations) to create, in effect, a buffer between the abattoir and two associated residences on one lot (Lot A) and the other two residences on the other subdivided lot (Lot B).

The effect of the applicants' proposed boundary would be to keep only one residence associated with the abattoir, the three other residences (including one close to the abattoir) going to the larger Lot B. The Commission's condition would have the effect of expanding the size of Lot A.

The Tribunal upheld the validity of the disputed condition. The Tribunal did not accept the applicants' argument to the effect that drawing a line on a map would not solve any existing land use conflicts and would disproportionately harm the applicants' economic interests. The Tribunal also did not accept the applicants' arguments that future land use conflicts could be regulated by development control and the warning on title given to prospective purchasers of Lot B.

The Tribunal considered that it was a long­established principle that the act of creating a separate title to land, in and by itself, entitled the regulator to impose, effectively at the point of the creation of a title, conditions ameliorating potential land use conflict. Land use conflicts caused by or arising out of a change in ownership could be mitigated by adjusting the boundary. Here, the adjusted boundary had a rational basis in the environment protection licensing instrument's boundary buffer zone effect.

The matter was remitted to further mediation in tandem with a related matter in the Tribunal.

Carter & Anor and Western Australian Planning Commission [2006] WASAT 138

Downs-Stoney and Western Australian Planning Commission [2008] WASAT 178

Fairborn and Western Australian Planning Commission [2012] WASAT 181

Madeo and Western Australian Planning Commission [2008] WASAT 281

Price and Western Australian Planning Commission [2007] WASAT 26

Schofield and Western Australian Planning Commission [2012] WASAT 135

Williamson and Western Australian Planning Commission [2011] WASAT 94

1 This morning the Tribunal has heard oral argument based upon extensive written material already filed by the parties on an important, but apparently novel, point concerning the validity of a condition imposed in connection with a proposed subdivision of land associated with the Beaufort River Meats Abattoir.

The preliminary question to be determined by the Tribunal is confined to whether the proposed condition can be validly applied to the subdivision.

3 The respondent Western Australian Planning Commission (respondent or WAPC) has imposed two conditions on the approval of the applicants' subdivision application, namely:

1. The subdivision being in accordance with the plan dated 5 November 2012 (attached), including the redline changes placed thereon requiring the entirety of the EPA [Environmental Protection Act 1986 (WA)] licence area (Licence: L6826/1994/12) being included within proposed Lot A. (Western Australian Planning Commission)
2. A notification pursuant to Section 165 of the Planning and Development Act 2005 is to be placed on the certificate(s) of title of proposed lot B advising of the existence of a hazard or other factor. Notice of this notification is to be included on the diagram or plan or survey (deposited plan). The notification is to state as follows: 'This lot is in close proximity to an existing abattoir and has the potential to be adversely affected by odours, noise, dust and/or light emission that are associated with the continued operation of that land use'. (Western Australian Planning Commission)

4 In short, the applicants contend that condition 1 (see above) may not be imposed by the WAPC or, on review, by the Tribunal as a matter of planning law. This is essentially for the reason that any supposed land use conflicts in this particular case do not engage or attract any power to impose condition 1. Condition 2 has not been challenged by the applicants.

5 Soon after the hearing, the Tribunal delivered short oral reasons on the preliminary point, in effect upholding the validity of condition 1. What follows is taken from the transcript of those reasons and has been formally revised and edited for publication.

6 The location of the subject land and the essentials of the planning framework are set out in the witness statement of Mr Jason Gordon, a senior planner employed by the WAPC. Mr Gordon, in his statement, adopted the facts detailed in the respondent's statement of issues, facts and contentions (SIFC). These matters are, so far as is material, common ground and Mr Gordon was, properly, not cross­examined on any of this material. So far as is relevant, the following facts may be stated, drawn from the respondent's SIFC:

1. On 22 August 2012, the Applicant applied for subdivision of Lot 5164 Leggoe Road, Beaufort River ('the subject land') into two lots of 38.4 hectares ('proposed Lot A') and 123.4 hectares ('proposed Lot B') ... - 'the proposed subdivision').
2. The subject land currently contains ...:
   1. an abattoir (Beaufort River Meats Abattoir) including three waste water treatment ponds, which is classified as a licensed premises under the Environmental Protection Act 1986; and
   2. four existing residences with ancillary structures.
3. The EPA licence for the abattoir covers an area which includes the affected residence ... [that is, the residence located in the south­west corner of proposed Lot B].
4. The proposed subdivision would separate the abattoir, waste water treatment ponds and the existing residence located approximately 150 metres to the south of the abattoir, which is the abattoir's manager residence (within proposed Lot A), from the three other existing residences on the subject land (within proposed Lot B) ...
5. It is understood this is to facilitate the sale of the abattoir business.
6. The balance of the land (proposed Lot B) will continue to be used for grazing purposes.
7. On 16 September 2012 the Respondent received an objection to the proposed subdivision from the Department of Environment and Conservation ('DEC') ... The objection raises concern over a potential odour impact on future purchasers of proposed Lot B and the existing residence located in the south[­]west corner of proposed Lot B (referred to as the 'affected residence'), which is adjacent to the abattoir.
8. The objection further states that the Environmental Protection Authority ('EPA') Guidance Statement recommends a separation distance for abattoirs of between 500 to 1000 metres.
9. The affected residence is located approximately 400 metres from the processing plant and 250 metres from the waste water treatment ponds.
10. The DEC's opinion is that maintaining an adequate buffer distance will not be possible given the existing location of the affected residence.
11. On 2 October 2012 the Respondent received an objection to the proposed subdivision from the Shire of Woodanilling ('the Shire') on the basis that the reduction in buffer distance between the abattoir and the affected residence and the potential land use conflict is contrary to [State Planning Policy 4.1] and [Town Planning Scheme No 1] ...
12. On 8 November 2012, the proposed subdivision was approved by the Respondent subject to the following conditions ... [not reproduced, see conditions set out above].
13. Attached to the approval letter is a plan of the proposed subdivision which shows a 'redline' amendment to the proposed lot boundary between proposed Lot A and proposed Lot B ... which places the affected residence within proposed Lot A. The 'redline' amendment is accompanied by an annotation which states:

'Adjust Lot A boundary to include all of EPA licence area and dwelling.'

...

7 Thus, the subject land has four existing residences built upon it. The two eastern side residences are some distance from both the existing abattoir and the other two residences. The applicants propose a second lot in the subdivision, that is, Lot B, containing three of these houses.

8 The WAPC proposes, in effect, that Lot B should contain only the two houses on the eastern side of the subject land. The lot boundary is to follow, in part, a Department of Environment and Conservation EPA licence boundary as, speaking generally, a de facto buffer zone between the abattoir and two of the houses (on Lot A) and the two remaining houses (on Lot B).

9 There is no dispute that the abattoir is a noxious industry that produces land use conflict, as that term is commonly understood in a planning context. Indeed, the applicants concede that there is, factually, what may be described as a land use conflict existing at the present time with respect to residential premises.

10 However, critically, the applicants submit that a line on the ground, that is, in effect, the alternative subdivision boundary proposed by the respondent (condition 1) says nothing relevant about that existing land use conflict and does not change that situation, but rather, if imposed, will disproportionately and adversely impact upon the owners' economic interests.

11 The applicants properly concede the power of the respondent and, on review, the corresponding power of this Tribunal, to vary a subdivision boundary line for a proper planning purpose. But here, the applicants submit, the respondent's proposed boundary line is tantamount to a refusal. If this were so, then the matter would proceed to a full review on the merits in this Tribunal.

12 The resolution of this issue, that is, the 'refusal' issue, is dependent upon the answer to the main preliminary issue. The critical issue is thus whether such a boundary line adjustment may be imposed in the circumstances of this case.

13 Ultimately, it seems to me that the case turns upon the possibility in itself of land use conflict that will flow from the mere fact that either lot might be, in the future, owned by persons other than the applicants, and that residences are built upon the land. That is at the core of the respondent's contentions.

14 In response, the applicants point to development controls as the regulating device to prevent existing land use conflict becoming, in effect, 'real' land use conflict in the future.

15 Further, the applicants say that a mere change in ownership, especially where the new owner has noticed or must be taken to have noticed potential land use conflict (see condition 2, accepted by the applicants, requiring notification on title of 'close proximity to an existing abattoir and [that there is] the potential to be adversely affected by odours, noise, dust [etc]'), does not justify the proposed restrictions flowing from the imposition of this condition.

16 In my view, the possibility of a change in ownership by reason of the creation of a separate lot with two or three existing residences upon that land is sufficient, in and of itself, to attract subdivision controls directed at ameliorating and otherwise regulating any potential land use conflict.

17 There appears to be no direct authority on this precise issue, and my own researches in the limited time available have not thrown any light on the point. However, the Tribunal has in a number of cases referred to this morning (cases located by the Tribunal and advised to counsel) recognised future incompatible development as a ground for refusal or modification of proposed subdivision proposals. These cases include the following:

18 Carter & Anor and Western Australian Planning Commission [2006] WASAT 138 at [60]:

... the respondent raised the prospect of possible land use conflicts between non­agricultural uses and agricultural uses, but the Tribunal sees little prospect of this occurring in the current circumstances ... where the users are transients and the respondent's own policies provide for tourist facilities ... in agricultural areas.

Price and Western Australian Planning Commission [2007] WASAT 26 at [52]:

... it remains a prudent requirement that a dwelling on the severed lot should achieve a sufficient setback to plantations to minimise the potential for land use conflict and to preserve the amenity of occupants.

Madeo and Western Australian Planning Commission [2008] WASAT 281 at [73]:

It is therefore conceivable that the interests of the likely rural residential uses resultant from the proposed subdivision could conflict with the agricultural interests identified for the Rural Resource zone ...

Downs-Stoney and Western Australian Planning Commission [2008] WASAT 178 at [28]:

It was common ground between the parties that established policy was not to permit subdivision of rural and agricultural land [amongst other reasons to] avoid land use conflicts ... Subdivision might be considered if provided for in appropriate regional and local planning strategies and in provisions in local planning schemes ...

... The new lots would change the outlook north ... and would result in lots with essentially a residential character having a common boundary with a larger rural lot rather than being separated by a road reserve with a resultant potential for future land use conflicts.

Williamson and Western Australian Planning Commission [2011] WASAT 94 at [96]:

... however remote conflicting land uses might be, the proposed subdivision would be in conflict with the objectives for the general farming zone.

Schofield and Western Australian Planning Commission [2012] WASAT 135 at [53]:

... although the risk of land use conflicts and the risk of potential loss of productive agricultural land are small risks, they remain as risks that would be contrary to the current and pending planning framework.

Fairborn and Western Australian Planning Commission [2012] WASAT 181 at [55]:

... the Tribunal agrees ... that the introduction of an extra dwelling entitlement has the potential to create land use conflict within the locality in the future. The argument from the applicant that the road and the disused railway land along with the adjacent properties ... provide a sufficient buffer to other agricultural properties does not convince the Tribunal that there will be no land use conflict in the future.

19 Even accepting, for the sake of argument, Mr Hotchkin's submission that all of these cases may be distinguished as they mostly dealt with real, clear or non­hypothetical land use conflicts that are unconnected with the circumstances of the case presently before the Tribunal, they establish, in my view, a principle wide enough to include the regulation at the point of subdivision of the effects that flow or might conceivably flow from the creation of a separate lot in itself in relation to the subject land.

20 Accordingly, I would hold that condition 1 has been imposed for a proper planning purpose and has, on its face, a rational and reasonable basis in the related EPA licence boundary. Otherwise, the proceeding should continue to be dealt with on its merits.

21 For the reasons given above, the Tribunal orders that:

1. Without prejudice to the applicants' right to seek or to continue with merits review on these matters, the Tribunal determines the preliminary issues as follows:

Condition 1 under review is in the circumstances of the case capable of being imposed as it pursues a proper planning purpose and, on its face, has a reasonable and rational basis to the extent that it has a boundary fixed by reference to an EPA licence boundary.

1. The matter is referred to mediation in tandem with related matter DR 412/2013, that is to say on 6 September 2013, at 11 am.

I certify that this and the preceding [21] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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