Permit PA-2024-132 - a three lot subdivision of the land at 11 Upper McEwans Road, Legana.

The draft amendment is rejected under section 40N(1)(c) and the planning authority is directed to submit to the Commission a substitute draft amendment under section 40N(1)(c)(i) of the Land Use Planning and Approvals Act 1993 as set out in Annexure A.

The permit is refused under section 42B(1)(d) of the Land Use Planning and Approvals Act 1993.

The draft amendment proposes to apply the Low Density Residential Zone and the WTA-S3.0 Residential Supply and Density Specific Area Plan (the SAP) to land at 11 Upper McEwans Road, Legana (folio of the Register 174506/1).

The permit provides for a three lot subdivision to the land at 11 Upper McEwans Road, Legana.

The subject site is part of a split-zoned parcel. The entire lot is 1.658ha, with approximately 1,000m2 included in the Low Density Residential Zone and the remainder of the lot is included in the Agriculture Zone. The SAP only applies to the portion of the lot zoned Low Density Residential.

The part of the lot subject to this draft amendment (the subject site) is entirely contained within the Agriculture Zone. The land is subject to the Bushfire-Prone Areas Code and some of the land is subject to the Landslip Hazard Code.

The subject site contains an existing dwelling and garden, and this land is listed as Urban Areas and the rest of the land is listed as Agricultural land in the TasVeg 4.0 mapping. The land is listed as unconstrained in the Land Potentially Suitable for Agriculture layer in the LISTmap.

There is no vegetation visible in the imagery and no native grasses identified in the TasVeg mapping.

Land to the north and east is zoned Low Density Residential and included in the SAP. Land to the south and west is zoned Agriculture.

Three representations were received during the exhibition period of the draft amendment and related permit. The representators raised the following:

• Stormwater issues
• Drainage easement considerations
• Flooding/existing dam
• Water runoff
• Lack of services
• Wastewater treatment
• Road issues
• Ad-hoc zone application
• Land use conflict/impact on new owners
• Council strategy inconsistency
• Spray drift

The draft amendment and related permit were referred to TasWater under sections 56S and 56O of the Water and Sewerage Industry Act 2008.

In response TasWater advised they had no objection to the draft amendment and provided a submission to planning authority notice (SPAN) providing conditions to be included with any permit. TasWater stated they did not wish to attend a hearing.

These issues and any additional matters raised by representors at the hearing are discussed as relevant below.

Planning authority's response to the representations

The planning authority considered the representations and recommended that no modifications to the draft amendment were required, but the following modifications were required to the related permit:

1. Prior to works commencing, amended plans must be submitted and approved by Council's Director Planning and Development. When approved, these plans will form part of the permit.

(a) A 3.0m wide drainage easement, benefitting West Tamar Council, along the north-western boundary of lots 1-3, which connects to Upper McEwans Road in lot 1 via the perimeter of the property described in Certificate of Title Volume 165613 Folio 2.

1. Modify condition 19 to read as follows:
   1. The Final Plan of Subdivision for stage 1 must include a 3.0m wide drainage easement along the northwestern site boundary, in favour of West Tamar Council. The drainage easement is to connect to Upper McEwans Road in lot 1 via the perimeter of the property described in Certificate of Title Volume 165613 Folio 2.

The hearing was held at Windsor Community Centre,1 Windsor Drive, Riverside on

Planning authority: James Stewart, Planning Consultant, Nova Land Consulting

Krstyna Ennis, Team Leader Planning, West Tamar Council

Eric Smith, Senior Statutory Planner, West Tamar Council

Applicant: Allan Brooks, PDA Surveyors, Engineers & Planners

Jason Lynch, Senior Agricultural Consultant, Pinion Advisory

Other: Christina Holmdahl, Mayor, West Tamar Council

1. Under section 40M of the Land Use Planning and Approvals Act 1993 (the Act), the Commission is required to consider the draft amendment to the Tasmanian Planning Scheme - West Tamar and the representations, statements and recommendations contained in the planning authority's section 40K report, any information obtained at a hearing, and any technical matters.
2. A hearing was convened to assist the Commission consider the issues in the representations.
3. The Commission must also consider whether the draft amendment meets the LPS criteria as set out under section 34(2) of the Act:

(a) contains all the provisions that the SPPs specify must be contained in an LPS; and

(b) is in accordance with section 32; and

(c) furthers the objectives set out in Schedule 1; and

(d) is consistent with each State policy; and

(da) satisfies the relevant criteria in relation to the TPPs; and

(e) as far as practicable, is consistent with the regional land use strategy, if any, for the regional area in which is situated the land to which the relevant planning instrument relates; and

(f) has regard to the strategic plan, prepared under section 66 of the Local Government Act 1993, that applies in relation to the land to which the relevant planning instrument relates; and

(g) as far as practicable, is consistent with and co-ordinated with any LPSs that apply to municipal areas that are adjacent to the municipal area to which the relevant planning instrument relates; and

(h) has regard to the safety requirements set out in the standards prescribed under the Gas Safety Act 2019.

1. Where relevant, these matters are discussed in the sections below.

Suitability of the Zone and application of the Specific Area Plan

1. The applicant's report dated April 2024 submitted that application of the Low Density Residential Zone to the subject site would be a logical extension to the existing zone. The report submitted that the land is unsuitable for higher density residential use as it is restricted by topographical constraints.
2. The planning authority in its supporting report dated 8 November 2024 submitted that the application of the Low Density Residential Zone to the subject site is consistent with LDRZ 1 (a) and (b) and LDRZ 4 of the section 8A Guidelines. It also noted that nearby land zoned Low Density Residential is subject to the SAP, which enforces a minimum lot size of 5,000m². It broadly submitted that extending the SAP to the subject site is consistent with the existing zoning, while managing infrastructure and environmental (landslip and bushfire) constraints.
3. The planning authority's section 40K report did not emphasize matters relevant to the protection of agricultural land on and/or around the land.
4. At the hearing, the planning authority submitted that the draft amendment is best considered an anomaly. The planning authority advised it was not promoting low density residential development in this locality beyond the subject site.

1. The draft amendment seeks to rezone the subject site for residential purposes through the Low Density Residential Zone, the purpose for which is to provide for residential use and development. The planning authority and proponent focused justification on the presence of other low density residential development in the locality, including immediately adjoining the subject site, and the current lot size not being sufficient for productive agricultural uses. The regional land use strategy emphasis for the locality to transition to urban development, a policy no longer supported by the planning authority, was also advanced as a justification for the Low Density Residential Zone being applied.
2. The Commission accepts the subject site is not of a size that, on its own, could be efficiently used for productive agriculture use. It does not however accept lot size is the primary determinant of an acceptable loss of land within the Agriculture Zone as lot size is not a consideration under the State Policy on the Protection of Agricultural Land 2009 (PAL Policy). It is common, including in this locality, for multiple lots to be farmed as a single agricultural enterprise. It is self-evident by existing adjoining and nearby uses that the land (including the soil and access to water) is suitable for productive agricultural uses.
3. The Commission notes the planning authority submitted at the hearing that the amendment sought to enable a rural living outcome, where dwellings and agriculture are in close proximity to each other. The Commission considers this to be a somewhat different justification than pursued in the documentation for the draft amendment but on balance finds this logic more reasonable.
4. The Commission has considered the submitted evidence, along with the local context and circumstances of the case. Relevant factors include the subject site's lot size, which is consistent with the Rural Living Zone, and the presence of existing dwellings in reasonable proximity on three sides (though only partially on the eastern boundary). It is also significant that the adjoining land to the north is zoned Low Density Residential and is subject to the SAP and has been subdivided to include an additional dwelling at the rear. This has resulted in a zoning pattern that has enabled residential use and development to be established and extend into the surrounding Agriculture Zone on all boundaries.
5. Considering this local context, the Commission is not satisfied that it is appropriate for the subject site to be wholly contained within the Low Density Residential Zone with the SAP, primarily because this would enable two additional lots suitable for residential development to be created. This housing density is not suitable for the subject site considering the land use and development and zoning context of surrounding land.
6. The Commission understands the proposed SAP is a mechanism to manage infrastructure constraints (for already created low density residential zoned lots). It is not a strong basis for entirely new situations. Amendments should seek to use the State Planning Provisions (SPPs) where possible to give effect to anticipated outcomes in the Tasmanian Planning Scheme.
7. The Commission is not satisfied that the minimum lot size identified in the SAP is a sound basis to determine the acceptable density of housing on the subject site when recognising the intent is to enable dwellings and agricultural uses close to each other.
8. The Commission is satisfied that the subject site is suitable for rural living development, but with a limit to the increased lot yield of only one additional lot rather than the two proposed lots in the amendment through the Low Density Residential Zone and SAP.
9. This outcome appropriately considers the infrastructure constraints on the land, land capability and the potential for land use conflict between residential and agricultural uses, while facilitating one additional dwelling. The Commission considers this outcome would meet the LPS criteria. This finding is discussed further below in the decision.

1. The relevant regional strategy is the Northern Tasmanian Regional Strategy (regional strategy).
2. In its supporting report dated 8 November 2024 the planning authority submitted the land is within an Urban Growth Corridor in the regional strategy. Although the inclusion of the subject site within the map in the regional strategy is identified as indicative only, the planning authority submitted the existing land use is more consistent with surrounding rural residential use.
3. In the report dated April 2024, the applicant submitted that the draft amendment was consistent with the regional strategy as it was a logical expansion of a residential area within a growth corridor.
4. At the hearing, the planning authority advised that urban development within the growth corridor indicated in the regional strategy would not be pursued in preference to alternative growth areas in Legana. The planning authority submitted that it envisaged the emphasis on urban growth in the locality would not feature in future iterations of the regional strategy.
5. The planning authority emphasised that the subject site is best considered as a form of rural living development in that it is too small for agriculture and therefore supported an alternative use as reasonable.

1. The Commission is not persuaded that the land is 'lost' to agriculture because of the regional strategy's policy on urban development. The planning authority advised that this policy is not being pursued. While the previously envisaged loss of agricultural land to urban development may have been reasonably contemplated in the regional strategy, translating a policy on urban residential development to justify low density residential development does not automatically flow.
2. The Commission is not satisfied that the inclusion within a growth corridor in the regional strategy provides justification for the subject site to be wholly rezoned from Agriculture Zone to the Low Density Residential Zone. The substitution of a policy seeking a locality wide urban transformation, that the planning authority is no longer pursuing, as justification to rezone a part of a single parcel of land is not accepted.
3. The regional strategy at D2.2 seeks to protect rural land by recognising the importance of agricultural land, prevent inappropriate fragmentation of rural land, and protect farming operations from conflict with rural living residents. The regional strategy at D.2.2.2 recognises the need for rural residential areas to balance a range of matters, including the impact on the agricultural values of surrounding land.
4. The Commission finds that, on balance, the draft amendment is not, as far as practicable, consistent with the regional strategy.

State Policy on the Protection of Agricultural Land 2009

1. The applicant report dated April 2024 included an agricultural report from Walker Ag Consultancy. The applicant submitted that based on the contents of the report that agricultural use on the land was highly unlikely given the constraints and the impact from the existing surrounding agricultural uses to any proposed residential use on the land was considered low.
2. In its supporting report dated 8 November 2024 the planning authority submitted:

'The size of the property is 1.66ha, which is not considered suitable for agricultural use. It has been indicated that considerable inputs would be required on the land in order to realise any minimum commercial value. The site is in close proximity to existing residential areas, with the rear of the property adjoining rocky, steep portions of land that are not suitable for agricultural production. > > The agricultural report indicates the potential for spray drift from adjoining properties is offset as a result of historic weather data. The adjoining operator is classified as an 'organic entity', which provides strict guidelines in relation to spray activities. The activities used for spraying purposes (as a result of their organic classification) are considered to have a much softer impact on the surrounding environment than non-organic operators. > > It is considered that conversion of the site to allow residential use and development, is consistent with the relevant principles of the PAL policy.'

3. In the section 40K report the planning authority addressed concerns raised about agricultural use with the following:

'In response to representations received, Council engaged Nicholbrook Horticultural Consultants to undertake a peer review of the Walker Ag report. The peer review ultimately concluded that the rezoning and subdivision of land was appropriate and that the site could not be used for a viable agricultural activity. The report stated there was insufficient scale for an agricultural use, other than for a "hobby" activity. The peer review considered the PAL policy as part of its analysis when undertaking the review. '

1. The applicant report dated April 2024 submitted that:

'The subject land has limited ecological value. No adverse impacts are expected on the air, adjacent land and water resources, including the Tamar River and the subject land is not identified to contain historical or aboriginal heritage values.'

2. In its supporting report dated 8 November 2024 the planning authority submitted:

'The amendment is considered to not conflict with or interfere with natural or cultural values of the coastal zone, having regard to; > > - The subject site has not been identified as containing ecological values; > > - There are no expected adverse impacts on air, adjacent land, and water resources, including the Tamar River; > > - The land contains an existing dwelling, and is located within an existing residential settlement; > > - The rezoning is not classified as ribbon development or an isolated node of residential development; and > > - The site is connected to existing services, including stormwater. The stormwater system is maintained by West Tamar Council as the stormwater authority.

3. The planning authority concluded that the draft amendment is therefore assessed as being consistent with the State Coastal Policy.

'The subject land has access to reticulated water and stormwater services. A wastewater report demonstrates that all proposed lots are capable of accommodating on-site wastewater systems. The existing provisions within the Tasmanian Planning Scheme - West Tamar are applicable to the site and therefore will ensure that any existing or future use or development on the site is consistent with this policy.'

1. In its supporting report dated 8 November 2024 the planning authority submitted:

'The subject land has access to reticulated water and stormwater infrastructure. An onsite wastewater assessment by Tasman Geotechnics has been provided which demonstrates that given the size of the proposed lots, there is adequate area available on each lot for proposed wastewater disposal.'

1. The applicant report dated April 2024 submitted that the draft amendment was considered consistent with the National Environment and Protection Measures (NEPMs) because it was not likely to adversely impact any environmental matters specified in the policy.
2. In its supporting report dated 8 November 2024 the planning authority submitted that the draft amendment does not relate to any issues covered under the NEPMs.

1. The Commission considers that the size of the subject site does adversely impact available options for establishing suitable agricultural uses on the land, recognising that the land would need to be used in conjunction with other adjoining and/or surrounding agricultural land. However, there are no planning mechanisms that require this to occur. The practical loss of the land for productive agricultural uses likely arose in previous planning decisions which created the current lot size and the legacy of the existing zoning pattern.
2. The Commission broadly accepts the agricultural reports prepared and accepts that in pursuing the amendment, the land would likely no longer be available for agricultural uses. However, the Commission notes that lot size is not a consideration under the PAL Policy. It is common, including in this locality, for multiple lots to be farmed as a single agricultural enterprise. It is self-evident by existing adjoining and nearby uses that the land (including the soil and access to water) is suitable for productive agricultural uses.
3. In relation to all other State Policies, the Commission accepts the planning authority's and applicant's submissions and finds the draft amendment is generally consistent with those policies.
4. The Commission finds that the draft amendment is not inconsistent with requirements for NEPMs.

1. The planning authority in its supporting report dated 8 November 2024 submitted that the draft amendment furthers the Objectives of the Resource Management and Planning System.
2. The applicant's report dated April 2024 addressed each of the Objectives set out in Parts 1 and 2 of Schedule 1 of the Act individually and concluded that the draft amendment was consistent.

1. The Commission finds that, on balance, the draft amendment does not further the Schedule 1 Objectives of the Act. The subject site is not considered to be suitable for application of the Low Density Residential Zone and the SAP due to:
   • the lack of protections offered in the Low Density Residential Zone and the SAP, which would benefit adjoining agricultural uses in managing potential land use conflict.
   • the lot density allowed by the Low Density Residential Zone and SAP is too high in the context of the existing lot layout and title boundaries, and the surrounding and existing residential land use and development pattern and character of the area, and the identified infrastructure and environmental (landslip and bushfire) constraints.

1. Under section 40M of the Act the Commission must consider whether modifications to a draft amendment of an LPS ought to be made.
2. The Commission considers the following:
   • Zone selection should give weight to the protection of agricultural land. Adjoining agricultural uses should benefit from the protections provided by the Rural Living Zone which are not present in the Low Density Residential Zone or the SAP proposed in the draft amendment.
   • The purpose of the Rural Living Zone is to provide for residential use or development in a rural setting, a purpose which is applicable to the locality. The Rural Living Zone is already used extensively in the locality.
   • Enabling one additional dwelling on the subject land would be acceptable without unduly intensifying the land for residential purposes.
   • Enabling a dwelling to be sited with generous setbacks to adjoining agricultural land would be appropriate to enhance the protection of adjoining agricultural uses.
3. A site specific qualification (SSQ) would be necessary to enable an additional residential lot as the minimum lot size specified in the Rural Living Zone would prohibit subdivision to create two lots (the lowest minimum lot size is Rural Living Zone A - 1ha). The intent of the SSQ would be to adjust the minimum lot yield possible in this zone for the subject site, to enable subdivision to create one additional lot, while maintaining the Rural Living Zone protections for adjoining agricultural uses and managing development.
4. The Rural Living Zone A with a SSQ enabling a minimum lot size of 0.6ha would provide the desired planning outcome for the subject site.
5. The Commission considers that the Rural Living Zone provides the best protection for adjoining agricultural. This planning outcome would emphasise Principle 5 of the PAL Policy which suggests that residential use of agricultural land is consistent with the policy where it does not unreasonably convert agricultural land and does not confine or restrain agricultural use in the vicinity of the that land. It would also give effect to Principle 1 which advises that agricultural land is a valuable resource and its use for the sustainable development of agriculture should not be unreasonably confined or restrained by non-agricultural use or development.
6. Under section 32(4) of the Act, an LPS may only include a SAP or a SSQ if:

(a) a use or development to which the provision relates is of significant social, economic or environmental benefit to the State, a region or a municipal area; or

(b) the area of land has particular environmental, economic, social or spatial qualities that require provisions, that are unique to the area of land, to apply to the land in substitution for, or in addition to, or modification of, the provisions of the SPPs.

1. The Commission considers that section 32(4)(b) is applicable, in that the land has particular qualities that are unique to the area of land which warrant modifying provisions of the SPPs. The particular spatial qualities are:
   • Economic, having regard to the need to protect agricultural land and productive agricultural uses on adjoining and nearby land.
   • Spatial, in recognising the locality has agriculture uses and housing in proximity to each because of legacy settlement patterns which has resulted in the subject site having dwellings on three sides whilst concurrently also adjoining agricultural uses that are viable, productive and expanding.
   • Spatial, to enable only one addition dwelling with generous setbacks to agricultural uses that would concurrently leave an area of land to the rear which could be used in conjunction with adjoining agricultural uses, therefore not being lost entirely from the potential for agricultural uses.
2. These unique spatial qualities require provisions unique to the subject site that are in addition to the provisions of the Rural Living Zone, to enable land use conflicts to be managed and to regulate the intensity of residential uses on the subject site.
3. SSQs can provide unique provisions specific to the land to achieve the following:
   • Substitute the 1ha minimum lot size in the Rural Living Zone A for a 0.6ha minimum lot size, to enable a two lot subdivision on the subject land.
   • Substitute the Acceptable Solution (A4) for buildings for a sensitive use from 200m to 30m (setback to the south) and 80m (setback to the west) to enable a second dwelling with generous setbacks to adjoining land in the Agricultural Zone.
4. A representation identified a concern that stormwater flows to the properties to the east of Upper McEwans Road may increase and impact on overland flows if additional development occurred on the subject site. At the hearing, it was agreed by all parties that development on the subject site should result in no net increase in flows to properties east of Upper McEwans Road. The Commission seeks to give effect to this outcome via an additional SSQ that:
   • Provides that there be no net increase in stormwater flows to properties to the east of Upper McEwans Road.
5. The Commission considers that the SSQs discussed above for the site are consistent with section 32(4)(b) of the Act.

1. The draft amendment is rejected under section 40N(1)(c) of the Act for the reasons discussed above.
2. The Commission, in accordance with section 40N(1)(c)(i), directs the planning authority to provide a substitute draft amendment that applies the Rural Living Zone A to the subject site, remove the SAP applying to part of the site and insert three new SSQs to apply to the site that provides for one additional lot, introduces reduced setbacks and prohibits any increase in stormwater flows to adjoining properties to the east of Upper McEwans Road, as outlined in Annexure A within 28 days of receipt of this decision.

1. Under section 40T(1) of the Act , a person who requests a planning authority under section 37 to amend an LPS may also:

(a) make an application to the planning authority for a permit, which permit could not be issued unless the LPS were amended as requested; and

(b) request the planning authority to consider the request to amend the LPS and the application for a permit at the same time.

1. Under section 42A of the Act, the Commission must consider the permit and, under section 42B, review the planning authority's decision as reported under section 42.
2. At the hearing, the drafting of the planning permit conditions was reviewed.

1. In its consideration of the permit under section 42A of the Act, the Commission is required to review the planning authority's decision as reported under section 42B.
2. The proposal includes an application for permit for a 3 lot subdivision on the land at 11 Upper McEwans Road, Legana.
3. As such the development application must be considered against the applicable standards in the Agriculture Zone and the applicable codes in the SPPs.
4. A 3 lot subdivision of the land does not meet the provisions in clause 21.5 Development Standards for Subdivision in the Agriculture Zone.
5. The permit application relies on the approval of the draft amendment. As the draft amendment is rejected, the permit is refused under section 42B(1)(d) of the Act.

Substitute draft amendment AMD03-24 to the Tasmanian Planning Scheme - West Tamar.

1. Apply the Rural Living Zone A to the whole title at 11 Upper McEwans Road, Legana folio of the Register 174506/1 as shown below:

1. Remove the WTA-S3.0 Residential Supply and Density Specific Area Plan from a portion of the land at 11 Upper McEwans Road, Legana, as shown below:

1. Amend the planning scheme ordinance to insert site specific qualifications WTA-11.2, WTA 11.3 and WTA 11.4 as follows:

Description (modification, substitution or addition)

Buildings for a sensitive use must be separated from an Agriculture Zone or Rural Zone a minimum distance of:

• 30m from a southern boundary where it adjoins an Agriculture Zone, and
• 80m from a western boundary where it adjoins an Agriculture Zone.

Rural Living Zone - clause 11.4.2 A4 Building height, setback and siting

Rural Living Zone A at 11 Upper McEwans Road, Legana - 0.6ha.

Each lot, or lot proposed on a plan of subdivision, excluding for public open space, a riparian or littoral reserve or Utilities, must be capable of connecting to a public stormwater system and must not result in a net increase of stormwater flows to properties to the north of Upper McEwans Road.

1. Amend the planning scheme maps to insert a site specific qualification overlay with annotation WTA-11.2, WTA 11.3 and WTA 11.4 on folio of the Register 174506/1 as shown below: