Town planning - Subdivision of rural land - Land dissected by rural road - Application of policies regarding subdivision of rural zoned land - Exception to policy - land divided by 'significant physical division' - Ad hoc fragmentation of a rural land

Planning and Development Act 2005 (WA)

State Administrative Tribunal Act 2004 (WA), s 24

In June 2015 Darren and Lynette Martin applied to the Western Australian Planning Commission to subdivide Lot 17 Manear Road, Rosa Brook, in the Shire of Augusta­Margaret River into two new lots.

In August 2016 the Commission refused the subdivision application and Mr and Mrs Martin applied to this Tribunal to review that decision and argued that, if the subdivision was approved, the planning situation does not alter and, in addition, Manear Road should be considered a 'significant physical division' such as to be an exception to the relevant policy.

Having considered all of the evidence, the Tribunal was not satisfied that Manear Road was a 'significant physical division' to qualify as an exception to the policy and, as no other evidence was put forward to support the subdivision which was contrary to the respondent's evidence, the Tribunal affirmed the Commission's decision and dismissed the application for review as it was of the view that the subdivision would be a clear divergence from long­standing and well­established policies.

Bookara Holdings Pty Ltd and Western Australian Planning Commission [2015] WASAT 111

Fewster and Western Australian Planning Commission [2007] WASAT 79

Halden & Anor and Western Australian Planning Commission [2005] WASAT 323

Ingram & Anor v Western Australian Planning Commission [2003] WASCA 77

Marshall v Metropolitan Redevelopment Authority [2015] WASC 226

Marshall v Town Planning Appeal Tribunal of Western Australia [2004] WASCA 202

Mitchell and City of Subiaco [2008] WASAT 230; (2008) 59 SR (WA) 198

Musitano and Western Australian Planning Commission [2010] WASAT 92

Niroda Holdings Pty Ltd and Western Australian Planning Commission [2017] WASAT 57

Re Romato; Ex parte Mitchell James Holdings Pty Ltd [2001] WASCA 286

West & Anor and Western Australian Planning Commission [2005] WASAT 326

Zampatti v Western Australian Planning Commission [2010] WASCA 149

1 On 15 June 2015 Darren and Lynette Martin (applicants) applied to subdivide Lot 17 (213) Manear Road, Rosa Brook (Lot 17 or subject land), in the Shire of Augusta­Margaret River (Shire) and create two new lots of 11.3 hectares and 11.5 hectares respectively (proposed subdivision).

2 On 26 August 2016 the respondent refused the subdivision application for the following reasons:

1. The proposed subdivision is inconsistent with the 'Priority Agriculture' zoning objectives and lot size requirements as set out by the Shire of Augusta­Margaret River Local Planning Scheme No.1. The objective of the Scheme is to retain existing large rural lots for broad­acre and traditional forms of farming. Subdivision in the manner proposed does not demonstrate that the proposed lots have suitable land and water capability to support subdivision.
2. The proposed subdivision, with respect to the existing approved dwellings, is inconsistent with clause 4.16.2 (b) of the Shire of Augusta­Margaret River Local Planning Scheme No.1. The relevant clause excludes consideration of existing approved dwellings as justification for subdivision of rural land.
3. The proposed subdivision is inconsistent with the rural subdivision policies and lot size requirements as set out by the Shire of Augusta­Margaret River Local Planning Strategy. The purpose and intent of this policy is to ensure that fragmentation of agricultural land is not supported without a demonstrated rural industry need and justified land capability. Subdivision in the manner proposed would create lots which are not a suitable size to carry out sustainable agriculture.
4. The proposed subdivision, with respect to the proposed 11 and 12ha lots, introduces rural­residential and rural­smallholding type development/land use into the locality, which is inconsistent with Development Control Policy 3.4 Subdivision of Rural Land. The policy requires that subdivision of rural and agricultural land for closer settlement be properly planned through the preparation of regional and local planning strategies and provided for in Local Planning Schemes.
5. The proposed subdivision, with respect to the presence of Manear Road, is inconsistent with the 'Significant physical divisions' guidelines contained in Development Control Policy 3.4 Subdivision of Rural Land which would not generally include commonly crossed rural roads or creeks, as a significant physical division.
6. The proposed subdivision is not consistent with the objectives and policies of Statement of Planning Policy No. 2.5 'Agricultural and Rural Land Use Planning' which seeks to prevent the adhoc fragmentation of rural land; requires rural residential subdivision to be permitted only on land which is appropriately zoned; and avoid land use conflict from adjoining incompatible rural living uses.
7. Approval to the subdivision would set an undesirable precedent for the further subdivision of surrounding lots.

3 On 20 September 2016 the applicants filed an application with this Tribunal to review the respondent's refusal and stated as their grounds that:

The land is approximately 23.78 ha and is currently divided by a public road known as Manear Road. There are currently two existing dwellings on the land, which are located on either side of Manear Road. Being comprised of two district parcels of land separated by a public road, with one house on each parcel, no change in the planning outcome will be brought about by the fact of the subdivision. On the merits, the subdivision of the land should be approved regardless of the policies referred to in refusal reasons 1 to 6 (inclusive). As to the refusal reason 7, the subdivision does not give rise to a change to the planning outcome and as such does not set an undesirable precedent.

4 Following an initial directions hearing the matter was programmed through to final hearing which took place on 22 February 2017.

5 Lot 17 is within the locality of Rosa Brook­Rosa Glen in the Shire of Augusta­Margaret River and is approximately 13 kilometres east of the Margaret River town centre.

6 Lot 17 has a total area of 23.8 hectares, and is divided into two portions by Manear Road. There is a 12.3 hectare portion on the northern side of Manear Road and 11.5 hectare portion on the southern side. There are two dwellings and associated outbuildings within each portion.

7 The locality is rural, with current productive agricultural activity including dairy, sheep grazing, viticulture and tree plantations. The road network from Margaret River is principally via Rosa Brook Road and Rosa Glen Road, which are sealed single lane rural roads. Manear Road is accessed via Low Road. Both Manear Road and Low Road are unsealed rural roads. The area has a variety of lot sizes, with the subject land being amongst the smallest.

8 At that hearing the applicant called two witnesses, Mr Darren Martin (Mr Martin), one of the applicants, and Mr George Herwig (Mr Herwig) an engineering surveyor.

9 The respondent called one witness, Ms Katina Marchbank (Ms Marchbank), a senior town planner with the Department of Planning.

10 Although there was no statement of issues, facts and contentions prepared in the matter nor did either party make an opening statement, the agent acting on behalf of the applicants shortly before the first witness gave evidence stated:

The primary case for the applicant is that if it's approved the planning situation doesn't alter the extent where refusal is warranted. In addition there is an exception in the policy regarding dividing roads. (T:5; 22.02.17)

11 Based on that explanation and the submissions and evidence received during the hearing there are two issues to be determined.

Should Manear Road, which divides the applicant's current holding and which is an unsealed rural road, be considered a significant physical division, as described in the Development Control Policy 3.4 - Subdivision of rural land (DC 3.4), such as to be considered an exceptional circumstance?

Should the proposed subdivision be approved in any event regardless of the policies referred to in the respondent's reasons for refusal 1 to 6 (inclusive)?

12 Ms Marchbank was the only witness with town planning qualifications who gave evidence. As part of her evidence Ms Marchbank outlined the planning instruments relevant to this application which evidence was not challenged and which the Tribunal accepts.

13 At paragraphs 19 to 44 of her statement of evidence Ms Marchbank summarised the relevant policies as follows:

State Planning Policy No 1 ­ State Planning Framework Policy (SPP 1);

1. SPP 1 is the overarching statement of planning policy and guides the way future planning decisions are to be made by bringing together the State and regional policies and plans which apply to land use and development in Western Australia.
2. Clause 3 of SPP 1 provides that:

'...the Commission and local governments must have due regard to the provisions that form part of this Framework in ... making decisions on planning matters.'

1. Under Part B of SPP 1, the State Planning Framework includes Statements of Planning Policy and Operational Policies, as follows:

Statements of Planning Policy are prepared and adopted by the Commission under the statutory procedures ... (and) are as follows: ...

SPP 2.5 Agricultural and Rural Land Use Planning ...

Operational policies are largely subdivision and development control policies which have been adopted by the Commission to guide its decision-making on subdivision and development applications. Operational policies adopted by the Commission are as follows:

State Planning Policy No. 2.5 ­ Agricultural and Rural Land Use Planning (SPP 2.5)

1. The current version of SPP 2.5 ... was approved under s 29 of the Act and was published in the Gazette on 2 December 2016. I note the subdivision application was determined by the Respondent when the previous (May 2012) version of SPP 2.5 ... was in effect. However, in my assessment of the May 2012 and current versions of SPP 2.5,1 do not consider there to be any changes between the versions of the policy which have a bearing on the determination of the application.
2. As stated in clause 3.1, SPP 2.5 applies to land zoned for rural or agricultural purposes in a local or region planning scheme. The subject land is zoned "Priority Agriculture" under TPS 1, and SPP 2.5 therefore applies to the subject land.
3. Clause 3.3 further states that SPP 2.5 applies to subdivisions of rural zoned land, together with Development Control Policy 3.4 ­ Subdivision of Rural Land ... .
4. The objectives of SPP 2.5, set out in clause 4 include:

(a) support existing, expanded and future primary production through the protection of rural land, particularly priority agricultural land and land required for animal premises and/or the production of food; ...

(d) provide a planning framework that comprehensively considers rural land and land uses, and facilitates consistent and timely decision- making; ...

(f) promote sustainable settlement in, and adjacent to, existing urban areas; and

1. Section 5.1 of SPP 2.5 states that:

'...creation of new rural lots through ad hoc, unplanned subdivision is inconsistent with the objectives of this policy,'

1. A key relevant policy measure in SPP 2.5 is the 'Protection of rural land and land uses', which provides for the protection of rural land, including in the following ways:

(b) retaining land identified as priority agricultural land in a planning strategy or scheme for that purpose; ...

(e) creating new rural lots only in accordance with the circumstances under which rural subdivision is intended in Development Control Policy 3.4: Subdivision of rural land;...

(f) preventing the creation of new or smaller rural lots on an unplanned or ad-hoc basis, particularly for intensive or emerging primary production land uses;

1. The December 2016 version contains a new policy measure at section 5.4: 'Rural lots that may be created under the exceptional circumstances of Development Control Policy 3.4: Subdivision of rural land', which states:

'Many rural lots in Western Australia were created prior to planning legislation and policy ... as a result there is a vast array of rural lot sizes, including many small rural lots that are incapable of supporting primary production. Although these lots are small ... they remain rural lots.

1. the form of subdivision must be capable of approval under the exceptional circumstances and requirements of Development Control Policy 3.4: Subdivision of rural land; ...'

1. The December 2016 version contains new implementation guidance, and in relation to subdivision, clause 6.5 says:

It is the view of the WAPC that there are sufficient, suitably sized and located rural lots to cater for intensive and emerging primary production land uses. Creation of new rural lots through ad-hoc, unplanned subdivision will not be permitted.

In contemplating subdivision proposals on rural land, WAPC policy is:

(g) the creation of new or smaller rural lots will be by exception and in accordance with Development Control Policy 3.4: Subdivision of rural land;

(h) the creation of new or smaller rural lots by exception may be provided for in other State Planning Policies and/or a local planning strategy or scheme;

Development Control Policy 3.4 - Subdivision of Rural Land (DC 3.4)

1. DC 3.4 is an operational policy which sets out the principles used in determining subdivision of rural land to achieve the objectives and policy measures of SPP 2.5.
2. The subdivision application was determined when the May 2012 version of DC 3.4 was in effect ... A new version of DC 3.4 ... was released with the gazettal of SPP 2.5 on 2 December 2016, and this new version is the current policy that applies to the assessment of the subdivision application.
3. The general policy measures of DC 3.4 when determining subdivision proposals on rural land provide as follows:

(a) the creation of new or smaller lots will be by exception;

(b) proposals will be considered against strategies and schemes;

(c) adequate buffer distances for sensitive and/or incompatible land uses can be achieved; and

(d) proposals will be assessed against any relevant State planning policies and/or operational policies.

1. The exceptional circumstances for rural subdivision, set out in section 6 are:

(a) to realign lot boundaries with no increase in the number of lots, where the resultant lots will not adversely affect rural land uses;

(b) to protect and actively conserve places of cultural and natural heritage;

(c) to allow for the efficient provision of utilities and infrastructure and/or for access to natural resources;

(d) in the Homestead lot policy area (Appendix 2), to allow for the continued occupation of existing homesteads when they are no longer used as part of a farming operation; and

(e) for other unusual or unanticipated purposes which, in the opinion of he WAPC, do not conflict with this and other relevant policies and are necessary to the public interest.

1. Section 6 says that 'although the WAPC seeks to minimise the creation of new or smaller lots, there are some circumstances where subdivision may be appropriate ...', and identifies six policy standards:

(iii) property rationalisation to improve land management;

(iv) conservation of heritage buildings and places;

(v) conversation of biodiversity and natural heritage; and

1. Of these standards, I consider the only two with potential relevance for the proposed subdivision are significant physical divisions and subdivision for other purposes.
2. In relation to significant physical divisions, section 6.1 of DC 3.4 states:

The existing physical division of a lot by a significant natural or constructed feature may be formalised through subdivision. The physical division in itself however, does not warrant the creation of additional or smaller lots. A significant physical division would include, but not be limited to, a controlled access highway or a river but would not generally include minor barriers such as rural roads or creeks that are commonly crossed for farm management purposes.

The WAPC may support boundary realignment where a rural property comprises multiple small titles and there is scope to resolve the physical division by rationalising multiple lots in one ownership through boundary realignments, without creating additional lots.

Lot boundaries that result in encroachments may be corrected through minor boundary realignments, provided the realignments do not adversely affect environmentally sensitive areas or create additional or smaller lots.

1. In relation to subdivision for other purposes, section 6.2 states:

New lots for existing or proposed land uses such as recreation facilities, public utilities, rehabilitation of degraded land, extractive industries, or uses necessary to the rural use of the land, such as abattoirs and processing works (including buffers), may be created through subdivision. The WAPC may approve subdivision for these purposes if a development approval has been granted, or where development of the intended land use has substantially commenced. Where appropriate the WAPC may preclude sensitive land uses on the new lot(s).

The existence or approval of an ancillary dwelling, aged persons' dwelling or farm workers' dwelling is not a satisfactory justification for subdivision, except as provided for in clause 6.6.

Shire of Augusta-Margaret River Local Planning Scheme No. 1 (2010) (TPS 1)

1. TPS 1 ... was made under Part 5 of the Act and came into effect upon its gazettal on 24 September 2010, and pursuant to s 87(4) of the Act has the force and effect of law.
2. The subject land is zoned 'Priority Agriculture' in TPS 1, as shown on the Scheme Map ... .
3. The relevant purposes and objectives of the 'Priority Agriculture' zone, as set out at clause 4.2.2 of TPS 1, are as follows:

(a) To identify and protect land within the Scheme area having high production capability for all agriculture in the Shire with such other incidental, compatible and complementary non-rural activities in accordance with the provision of the Statement of Planning Policy 2.5 - Agricultural and Rural Land Use Planning and the Local Planning Strategy...

(c) To provide that development activities that generate incompatible land use proposals are not permitted; and

(d) To establish that the local government will not support applications for the subdivision of land within the Zone unless it is consistent with the provisions of 4.16.5.

(a) To provide for a strong sustainable agricultural industry that is sufficiently flexible in response to changing industry circumstances by protecting the long term availability of suitable land for a diverse range of agricultural purposes;

(b) To oppose subdivision proposals which would adversely affect the utility of existing agricultural land for productive purposes through specific subdivision criteria to ensure long term agricultural sustainability and appropriate lot sizes;

(c) To manage land use changes so that the rural productivity and the rural character and amenity of land within the zone is preserved; ...

1. The provisions relating to subdivision of land in the 'Priority Agriculture' zone are set out at Clause 4.16.5 of TPS 1:

Subdivision in Priority Agriculture and General Agriculture Zones.

(a) In the absence of the planned provision of closer settlement and more intensive agricultural uses, existing large rural lots are to be retained for broad acre and traditional forms of farming and the fragmentation of rural land and loss of rural character through piecemeal, unplanned subdivision is not permitted.

(b) Notwithstanding clause 4.16.5(a), subdivisions proposing lot sizes of 80 hectares or more will be considered.

(c) Subdivisions proposing lots of less than 80 hectares will not be supported except where the lot is a minimum of 40 hectares and all of the following criteria are met:

(i) an agronomist's report or similar demonstrates that each new lot will contain a minimum of 30 hectares of land with high capability rating (class 1 or 2) for annual or perennial horticultural production;

(ii) a hydrologist's report or similar demonstrating that each new lot has long term secure access to a supply of water of sufficient quantity and quality as applicable to the potential agricultural production on the land, and the Department of Water is prepared to agree that the capture of that water is within the limits of an endorsed water allocation management plan or is within the sustainable yield for that sub-catchment;

(iii) the total lot area incorporates the minimum area of 30 ha of high capability of land, plus the water capture and/or storage area (as necessary), plus an area for farm infrastructure and buildings with sufficient setback from adjoining properties so as not to restrict potential agricultural productivity on those properties, setbacks from watercourses and wetlands. Plus the retention of any remnant vegetation that should be protected from clearing;

(iv) in order to demonstrate agricultural sustainability and suitability of a proposed lot (i.e. adequate water and soil provision), the applicant will need to demonstrate that the lot can accommodate a wide range of crops.

(v) Applicants should address the matters raised in the Western Australian Planning Commission's Development Control Policy DC 3.4 Subdivision of Rural Land, Section 6 "Additional Information to Support Subdivision" where applicable.

(d) For proposals located within the area covered by the LNRSPP, due regard shall be given to the relevant objectives and specific policies of the SPP. Notwithstanding, the minimum rural lot sizes and subdivision criteria prescribed by the Scheme shall prevail. (Note. The subject site is not within the Leeuwin-Naturaliste Ridge SPP area).

(e) Minimum lot sizes are subject to the constraints and capability of the land, and larger lot sizes may be required to ensure the ongoing agricultural sustainability of the lots.

(f) Notwithstanding 4.16.5 (a) subdivisions will be considered where the significant conservation values of land are protected in perpetuity through conservation covenants consistent with criteria set out in an applicable Policy endorsed by Council and the Western Australian Planning Commission.

1. There are further relevant provisions for the 'Priority Agriculture' zone, in relatin to dwellings, set out at clause 4.16.2 of TPS 1, which includes the following:

(b) The fact that approval may have been sought and obtained for more than one dwelling on any lot shall not be regarded by the local government or the Western Australian Planning Commission as justification for support for the subdivision of the land.

Shire of Augusta-Margaret River Local Planning Strategy

1. The subject land is shown on the LPS Land Use Strategy Map 1 within the Priority Agriculture Land Use Category. The 'Planning Rationale' for Priority Agriculture areas, in section 3.2 includes:

"The protection of prime agricultural land for productive agricultural pursuits is considered to be particularly important and can be achieved by:

• Discouraging land use unrelated to agriculture from locating on agricultural land;
• Minimising the ad hoc fragmentation of rural land; ...

Areas identified as Priority Agriculture are rural holdings protected for long term rural pursuits whereas General Agricultural areas are for short term rural pursuits with longer term opportunity for urban/residential uses." ... .

1. The Rural and Agriculture Policies, set out at clause 3.2.1, also set out a general presumption against subdivision of rural land[.]

Should Manear Road, which divides the applicants' current holding and which is an unsealed rural road, be considered a significant physical division, as described in the DC 3.4, such as to be considered an exceptional circumstance?

14 It was clear from Mr Martin's evidence before the Tribunal that the division of the property by Manear Road was his primary reason for wishing to subdivide the land.

15 In answer to the question 'what is the reason for subdivision?', Mr Martin confirmed, 'just the division of the property access from one to the other' and when it was put to him 'so and really the only reason is the boundary or the crossing between them?', the applicant answered, 'that's correct' (T:76­77; 22.02.17).

16 The applicants' contention was that Manear Road is such a significant physical division that it should be formalised through subdivision. Mr Herwig was called principally for this reason and in his evidence dealt with four issues.

17 The first two dealt with the issue of stock crossing Manear Road and the safety issue that raised.

18 The third issue Mr Herwig dealt with was the traffic count along Manear Road and the fourth issue Mr Herwig addressed was whether, in his opinion, Manear Road is a significant physical division for the purpose of Policy DC 3.4.

19 Mr Herwig stated that he had not observed any point along Manear Road where it traversed Lot 17 where stock appeared to commonly cross. However, he did confirm in oral evidence that he had seen vehicular crossings off Manear Road.

20 This matter was however not put to Mr Martin who gave no evidence in respect of any particular issue he had with Manear Road.

21 Using a traffic count from 2005, Mr Herwig explained that a maximum of eight vehicles per hour was recorded at that time which he believed was a reasonable amount of traffic and he stated, 'It should be noted that these figures are likely to have increased by 2017 as this information is now about 12 years old'.

22 However, when taken to a more recent traffic count for Manear Road carried out between the dates 6 January 2017 and 1 February 2017, Mr Herwig confirmed that the average vehicles per hour that it recorded was 2.8 with up to 3.7 vehicles per hour during the busiest period.

23 Although Mr Herwig had not observed any points where stock commonly crossed Manear Road, he was of the opinion that permitting stock to cross the road may raise a safety issue as he explained at paragraph 23 of his statement where he stated:

It is therefore clear that the horizontal geometry of Manear Road where it fronts Lot 17 fails to provide sufficient stopping sight distance to a driver of a vehicle negotiating this horizontal curve at its permissible speed limit, indeed at a speed much lower than the permissible limit. This suggests that adding the driving of stock across or along this road would add hazard to an already hazardous situation.

24 It was principally for that reason together with the gravel surface of the road that Mr Herwig believed Manear Road would, in his opinion, be a 'significant physical division'. Ms Marchbank's evidence in respect of that issue was contained at paragraphs 58 through to 67 of her statement of evidence.

25 At paragraph 60, Ms Marchbank commented on recent policy amendments in respect of physical division in DC 3.4 and at paragraph 61 stated:

This progressive amendment of the provisions relating to physical division indicates that the intent of the policy is to clarify the instances when a physical division is considered to justify subdivision. The current policy, in referring to the examples of a 'controlled access highway' or river, provide guidance as to when a road or natural feature will be considered to constitute a 'significant physical division'.

The Applicant's subdivision application states: '...the two lots are located in close proximity to the bend in Manear Road. As such it is considered too dangerous to cross stock etc. across the road in this particular location'[.]

Ms Marchbank stated at paragraph 63 of her statement:

... I do not consider this statement is relevant in determining whether Manear Road is a significant physical division. Manear Road is an unsealed rural road, servicing a rural area, and under the current version of DC 3.4, a rural road is not generally considered a significant physical division.

Section 6 of DC 3.4 is headed 'Circumstances under which rural subdivision may be considered' and under the heading 6.1 titled 'Significant physical divisions' DC 3.4 states:

The existing physical division of a lot by a significant natural or constructed feature may be formalised through subdivision. The physical division in itself however, does not warrant the creation of additional or smaller lots. A significant physical division would include, but not be limited to, a controlled access highway or a river but would not generally include minor barriers such as rural roads or creeks that are commonly crossed for farm management purposes[.]

26 The issue of what is a significant physical division for the purposes of DC 3.4 has come before the Tribunal on a number of previous occasions.

27 In Halden & Anor and Western Australian Planning Commission [2005] WASAT 323 (Halden) the Tribunal at [59] considered the meaning of 'significant' and in the context of a road had found that 'composition of the road surface, (whether it is sealed or not), its size, maintenance and traffic movements all contribute to answering the question whether the road is relevantly "significant"; namely whether it is "not unimportant or trivial" or "sufficiently large to be important"'.

28 In Halden at [61] the Tribunal went on to state that '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'. See also West & Anor and Western Australian Planning Commission [2005] WASAT 326.

29 In Musitano and Western Australian Planning Commission [2010] WASAT 92 at [56] the Tribunal found that the road in that case was 'a typical narrow rural road with low traffic volumes and the Tribunal finds it would be inconsistent with the policy to regard [the road in that case] as a significant physical division'.

30 The traffic count carried out between 6 January 2017 and 1 February 2017 shows very low volumes of traffic using Manear Road and indeed when compared with the 2005 traffic count referred to by Mr Herwig showing a maximum of eight vehicles per hour during busy periods would appear on its face to show an actual reduction of peak hour traffic in the 12 years since to 3.7 vehicles per hour, not an increase.

31 Mr Martin confirmed in oral evidence that this is the third subdivision application that he has made in respect of his land.

32 The first application was in 1995/96 when approval was given for 12.54 hectares to be subdivided off for a pet food manufacturing business.

33 The second application was in 2000/01 when a further 21.19 hectares was subdivided off for the purposes of a horticultural business, which business Mr Martin confirmed never commenced. This application is the third application.

34 When questioned as to why he had not applied for the present subdivision at the same time as the 2000/01 application as the same issue with Manear Road would have been present then, Mr Martin responded 'I didn't apply for it then because I was just doing my normal farm practices' (T:76; 22.02.17). In answer to a follow­up question 'so have you stopped your normal farm practices?' Mr Martin replied, 'I've just sold the last lot of cattle because cattle prices are a bit dear at the moment'.

35 It appears therefore that Mr Martin has been cattle farming both portions of his property up to very recently, but he gave no evidence that that there had ever been a safety issue crossing Manear Road by either stock or vehicles during all of the years he did so. There was no evidence of even a single incident during all of Mr Martin's years of cattle farming to support the safety concerns of Mr Herwig, who by his own admission, had only visited the site on one occasion for approximately 40 minutes.

36 The Tribunal accepts that the issue of a bend such as the one in Manear Road might be an issue that needs to be considered where there is evidence of an ongoing problem, although the Tribunal notes that the Shire of Augusta­Margaret River has adopted a policy to control stock on local roads, a copy of which was not however before the Tribunal.

37 On a road where at worst the traffic volume approaches four cars per hour and with no evidence of any dangerous situation ever having occurred through many years of use, to accept the applicants' argument would mean that every unsealed rural road with low traffic volumes with a significant bend could be regarded as a 'significant physical division' for the purposes of DC 3.4. That, in the Tribunal's opinion, would create a situation as stated in Halden 'which would otherwise greatly undermine the balance of the policy containing this proviso'.

38 Based on the evidence before it, the Tribunal is not in any way satisfied that Manear Road is a 'significant physical division' as referred to in DC 3.4 such that it would create exceptional circumstances where the normal policies guiding subdivision of rural land should not apply.

Should the proposed subdivision be approved in any event regardless of the policies referred to in the respondent's reasons for refusal 1 to 6 (inclusive).

39 Apart from Mr Herwig who gave evidence solely in relation to Issue 1 the only other witness called on behalf of the applicants was Mr Martin. Although the matter involved the application of a large number of statutory planning instruments as set out earlier, the applicants called no planning evidence.

40 The Tribunal notes that when the initial application was lodged with the respondent it was supported by a report dated June 2016 from Halsall & Associates, Town Planning Consultants (Halsall Report) and a copy of that report was included in the bundle of documents filed with the Tribunal by the respondent in compliance with its obligations under s 24 of the State Administrative Tribunal Act 2004 (WA).

41 However, in the hearing before the Tribunal which is a hearing de novo little or no reference was made to the Halsall Report and nobody was called to introduce, support, talk to or be tested on that report. In the circumstances the Tribunal is not willing to give the Halsall Report any weight.

42 A statement of evidence dated 25 January 2017 filed on behalf of Mr Martin contained 27 paragraphs. Paragraphs 1 to 20 set out the background to the application and explained what was on the northern and southern portions of Lot 17.

43 Paragraph 21 under heading 'Horticultural Report' stated:

When my wife and I subdivided the original SL 2833 we engaged Nick Macpherson Viticultural Services to develop Preliminary Horticultural Report (dated March 2001; the Horticultural Report).

A copy of that report was attached to Mr Martin's statement and Mr Martin referred to parts of that report at paragraphs 21 to 24 of his statement.

44 At paragraphs 25 and 26 under the heading 'Water Supply Report' Mr Martin referred to parts of that report which he could locate and stated:

When my wife and I subdivided the original SL 2833, we engaged the agricultural consultancy, Slade Ag Tech, to develop a report as to the water supply potential of SL 2833 to support the SL 2833 subdivision (dated 20 March 2001; the Water Support Report).

The Water Supply Report is attached hereto as Attachment DM6. Please note, I could not locate the entire Water Supply Report and I have attached the pages of the Water Supply Report that I could find.

45 What the applicants were attempting to show by referring to those historical reports appears to have been alluded to when Mr Martin's evidence was being introduced. Mr Martin stated in respect of both the northern and southern portions that 'they're viable' and when it was put to him 'They're good for horticulture. Is that what you're saying?', Mr Martin confirmed, 'Yes' (T:77; 22.02.17).

46 However, as is clear from both the Horticultural Report and the Water Supply Report, they are both nearly 16 years old and were prepared for the 2000/01 subdivision application referred to earlier.

47 Again, neither of the authors of those reports was called to introduce, support, talk to, or be tested on them. Nor was there any update or expert evidence as to what may or may not have changed in the intervening 16 years. Mr Martin did state at paragraph 27 of his statement of evidence that 'the southern parcel of Lot 17 has a much better water supply and soils than the northern parcel and is more suited to water intensive agricultural than the northern parcel', but what the Tribunal was to make of that evidence was not made clear.

48 In such circumstances, as with the Halsall Report, the Tribunal is not willing to give either of those reports any weight or rely on them in any way.

49 The only planning evidence before the Tribunal in respect of Issue 2 was called on behalf of the respondent, through Ms Marchbank. At paragraphs 109 to 119 of her statement of evidence under the heading 'Approval of the proposed subdivision will result in a change in the planning outcome for the subject land and the locality' Ms Marchbank dealt with the relevant planning issues and at paragraphs 109 and 110 stated:

The applicant contends that there would be no change in planning outcome brought about by the fact of subdivision and that the subdivision application would merely formalise the existing development.

In my opinion, approval of the subdivision has the potential to fundamentally change a number of planning outcomes. The change to the planning outcome extends well beyond the two existing dwellings.

50 Over the next number of paragraphs Ms Marchbank set out seven reasons as to why the subdivision application should be refused. A brief summary of these are:

First, if the subdivision was approved, it would change the planning outcome for the subject land by exacerbating the fragmentation of land[.]

Second, if the subdivision was approved, it would change the planning outcome for the subject land by sterilising priority agriculture land[.]

Third, if the subdivision was approved, it would change the planning outcome for the subject land as proposed land use changes may more readily achieve discretionary approval[.]

If the subject land is further fragmented, each lot on its own may not facilitate a particular rural pursuit, and an alternative non­rural commercial pursuit may be more attractive[.]

Fourth, approval of the proposed subdivision would change the planning outcome for the subject land as any proposed land use changes for each lot would be assessed and dealt with separately[.]

Fifth, if the subdivision was approved, it represents the ad hoc and unplanned introduction (or formalisation through subdivision) of rural living uses in the locality[.]

Sixth, if the subdivision was approved, it would change the planning outcome for the subject land, as an additional ancillary dwelling may achieve discretionary approval on each new lot[.]

Seventh, if the subdivision was approved, it has the potential to change the planning outcome for the broader locality[.]

Under the heading 'conclusion' Ms Marchbank stated:

... Not only is the locality not identified for rural living, it is identified as priority agriculture land. The proposed subdivision is ad hoc, unplanned subdivision of priority agriculture land and cuts at the core of the intent of SPP 2.5 and DC 3.4

Therefore, in my opinion the proposed subdivision is not consistent with planning instruments relating to the subdivision of rural land, and there is no basis to depart from these policies in the present case.

51 In Niroda Holdings Pty Ltd and Western Australian Planning Commission [2017] WASAT 57 at [40] the Tribunal confirmed that the respondent 'has the central role in managing the process by which individuals can subdivide land and acquire new titles' and as outlined earlier there are a large number of detailed, long­standing and well­established policies and planning instruments to guide both the respondent and this Tribunal when considering subdivision applications.

52 As stated by the Tribunal in Fewster and Western Australian Planning Commission [2007] WASAT 79 (Fewster) at [36]:

The planning framework that has been formulated in regards to the subdivision of rural land both at State and local level is soundly based on key principles and objectives to establish future planning direction which provides the context for decision-making. The overarching objective embodied in all of the planning instruments relevant to this matter underlines the protection of agricultural land by ensuring the continued use of rural land for productive agricultural purposes. The State planning policies advocate a general presumption against subdivision of rural land to safeguard against further fragmentation of rural land unless specifically planned for through the use of appropriate planning mechanisms to achieve co-ordinated development.

53 Also, bearing in mind the test articulated by his honour Barker J in Ingram & Anor v Western Australian Planning Commission [2003] WASCA 77 (Ingram), an important question in rural subdivision applications is whether the subject land which has productive capacity for agricultural production would be lost as a resource.

54 Furthermore, an inflexible approach to the application of policy without considering site specific factors would involve an error of law: Re Romato; Ex parte Mitchell James Holdings Pty Ltd [2001] WASCA 286 at [26] to [28]; Marshall v Town Planning Appeal Tribunal of Western Australia [2004] WASCA 202 at [41].

55 In Mitchell and City of Subiaco [2008] WASAT 230; (2008) 59 SR (WA) 198 the Tribunal stated at [34]:

... an adopted policy is expected to guide the exercise of discretion not replace discretion. Policy is not to be inflexibly applied. The relevant consideration is why the policy should not be applied: Clive Elliott Jennings and Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433 at [24].

56 In Bookara Holdings Pty Ltd and Western Australian Planning Commission [2015] WASAT 111 (Bookara) a matter also dealing with a small rural subdivision similar to the present matter, addressed the issue of planning policies and the weight to be afforded to them and at [29] stated:

... 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[.]

Further, at [34] in Bookara, in dealing with the two principal policies under consideration in this matter, although it is noted that it was the 2012 iteration of Policy DC 3.4 (which for the purposes of this matter is of no moment) the Tribunal stated:

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 reasons why the general policy position should not be applied in this case.

This Tribunal agrees with and adopts that approach in this matter.

57 Based on the Tribunal's findings in respect of Issue 1 namely that Manear Road is not a significant physical division so as to create exceptional circumstances under DC 3.4, the Tribunal must now look at whether the proposed subdivision should be approved in any event and whether there is any other reason why the general policy position should not be applied in this case. This is despite the fact outlined earlier that in answer to the question 'what are the reasons for subdivision?', Mr Martin confirmed, 'just the division of the property access from one to the other' (T:76; 22.02.17).

58 The applicants' agent submitted that, 'any decision of the Tribunal must be found within the evidence' (T:61; 22.02.17). The Tribunal entirely agrees with that statement and now turns to the evidence that was before it in this matter.

59 On more than one occasion the applicants' agent contended that nothing was being done that would change the use of the subject land and in relation to the relevant policies stated, 'It's about the loss of land to the rural base. We're not doing that' (T:124; 22.02.17).

60 Although the agent for the applicants stated in opening, 'the primary case for the applicant is that if, (the subdivision application) is approved the planning situation doesn't alter to the extent where a refusal is warranted' (Tribunal's emphasis). The difficulty for the Tribunal, is finding any evidence to support that contention.

61 Apart from Mr Herwig who dealt solely with Issue 1, Mr Martin was the only other person called to give evidence on behalf of the applicants.

62 As outlined earlier, apart from some brief oral evidence, Mr Martin's evidence was contained in a statement made up of 27 paragraphs, (the detail of which the Tribunal has referred to above). Under the general heading 'background' at paragraphs 13, 14 and 15, Mr Martin stated:

On 16 January 2017 my wife and I jointly as Lessor, executed a Land lease Agreement with Donald Robert Arthur as the Lessee for a lease over the northern parcel (the Lease).

The Lease has a term of 10 years with an option of 5 years plus 5 years.

The Lessee informs me that he will use the northern parcel for hay production.

63 The only other evidence contained in Mr Martin's statement was that referred to earlier being his references to the Horticultural Report and the Water Supply Report prepared in 2000/01 and his confirmation under the heading 'Background' of what was contained in the northern and southern portions of the subject land.

64 For the reasons set out earlier, the Tribunal is not willing to rely on or to give any weight to the Horticultural and Water Supply Reports and when Mr Martin was answering questions about those reports, the Tribunal stated: 'Well, we don't have any evidence of that, but that's his understanding' (T:78; 22.02.17). In addition, no planning evidence was called by the applicants.

65 On the other hand, Ms Marchbank who was called by the respondent specifically to give planning evidence, identified seven reasons (set out earlier) why in her expert opinion approval of the proposed subdivision could result in a change in the planning outcome for the subject land and the locality.

66 In cross­examination the applicants' agent challenged many of the points made by Ms Marchbank, but did not, in the Tribunal's view, disturb Ms Marchbank's evidence in respect of the majority of the points made by her and the Tribunal found Ms Marchbank's evidence to be clear, cogent and rational in respect of the possible planning outcomes.

67 Ms Marchbank was of the view that approval of the proposed subdivision has the potential to change a number of planning outcomes as outlined by her and the Tribunal is satisfied to rely on Ms Marchbank's evidence in this regard and the reasons she gave for not departing from long­established and sound planning policies in the present case, particularly when no evidence to the contrary was called.

68 As to the evidence of the subject land going forward, the Tribunal was limited to Mr Martin's evidence just referred to that the northern portion of the land had been leased and, in submissions relating to possible conditions (if the application was to be approved) the applicants offered a condition imposing a restrictive covenant in respect of any additional dwellings that might be applied for.

69 However, those matters only partly address the issues raised by Ms Marchbank as to why the subdivision should not be approved and did not, in the Tribunal's view, address several of the relevant planning issues raised by Ms Marchbank such as, if approved, the subdivision would be ad hoc unplanned subdivision of priority agricultural land which would exacerbate the fragmentation of land and risk possible changes to the planning outcomes of the subject land and the locality.

70 There was no evidence from the applicant, planning or otherwise, to support an application that appears to be a clear departure from long­established policies and the issues raised by Ms Marchbank are in the Tribunal's opinion, relevant and appropriate considerations.

71 As stated by Martin J in Zampatti v Western Australian Planning Commission [2010] WASCA 149 at [127]:

... So, the expressed disinclination that is found within these planning instruments against ad hoc fragmentation of rural land, or the loss of rural character through piecemeal unplanned rural subdivisions, were relevant, indeed understandable factors to be identified, then weighed in an overall context of the decision-maker's deliberations[.]

72 Further, as stated by Pritchard J in Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 at [182]

... If the exercise of discretion is to be an orderly one, the planning principles identified as relevant to an application should not be lightly departed from without the demonstration of a sound basis for doing so, which basis is itself grounded in planning law or principle[.]

... The State planning policies advocate a general presumption against subdivision of rural land to safeguard against further fragmentation of rural land unless specifically planned for through the use of appropriate planning mechanisms to achieve co-ordinated development.

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[.]

73 The applicants put no evidence before the Tribunal in the present case to either counter Ms Marchbank's evidence or to satisfy the Tribunal that there is any reason why the general policy position should not be applied in this case.

74 The issue of undesirable precedent was also raised by the respondent. However, that only becomes an issue as per Nicholls and Western Australian Planning Commission [2005] WASAT 40 if the proposed development or subdivision is not in itself unobjectionable. However, for the reasons outlined above that is not the position in the present case.

75 Therefore, where there is an overriding presumption in favour of minimising ad hoc fragmentation of rural land the Tribunal is not prepared to approve the proposed subdivision which is, in the Tribunal's view, on the evidence before it, a clear divergence from well­established and long­standing policies.

76 The Tribunal not being prepared to answer either Issue 1 or Issue 2 in favour of the applicants, the respondent's decision of 22 August 2016 refusing the applicants' subdivision application will be affirmed and the application for review will be dismissed.

1. The decision of the respondent dated 22 August 2016 is affirmed.
2. The application for review is dismissed.

I certify that this and the preceding [76] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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