State Administrative Tribunal (WA)|2009-04-17

The applicant's application for costs of Mr Kaesehagen's fees should be dismissed.

71 The matter of costs is covered under s 87 of the PD Act wherein, under s 87(1), the parties are expected to bear their own costs in a proceeding before the Tribunal.

72 However, costs can be awarded in certain circumstances and this matter was addressed in part in Aydogan and Town of Cambridge at :

The making of a costs application in relation to review proceedings which concern a genuine dispute as to planning merit normally involves unreasonable conduct warranting an order that the applicants for costs compensate the other party or parties for having had to defend the application ...

73 In this case, the Tribunal needs to determine whether the material presented in the witness statement of Mr Kaesehagen was in fact of assistance in helping to produce the correct and preferable decision in terms of s 27 of the SAT Act.

74 The application for review was lodged against a decision of the WAPC to refuse an application for subdivision of a 32.9 hectare lot zoned for 'Agriculture' into two lots of 14.66 hectares and 18.27 hectares at Lot 51 Eagle Bay Road, Eagle Bay.

75 In undertaking the review, the Tribunal examined the respective position of the parties, the background to the proposal, the legislative and policy provisions and matters relating to the subdivisional proposal itself, land capability, rural landscape significance and undesirable precedent. An application for costs was also examined in relation to the work done by Mr D B Kaesehagen on behalf of the applicant.

76 The first matter to be determined is that of land capability, and the Tribunal accepts the evidence of Mr T Johnston; in particular, that the property as a single management unit is not a viable grazing operation and, due to the large amount of exposed laterite, has no agricultural potential.

77 Some supporting evidence to this effect was provided in a statement at Appendix 2 (Personal Grounds For Subdivision From Owner) to Mr S L Hall's witness statement wherein it advises:

The farm on the land is not economically sustainable and produces losses at the rate of $20,000 to $25,000 per annum.

78 This situation stands in contrast to the adjoining property to the south on which the Wise Winery operates. That property produces both grapes and olives.

79 In terms of the proposed subdivision, the Tribunal also accepts that every effort has been made to minimise the visual effects of the subdivision on the rural landscape. This is achieved by positioning the building envelopes on proposed Lot 1 and proposed Lot 2 so that they are not prominent or obtrusive when viewed from Eagle Bay Road and other strategic locations (for example, Cape Naturaliste lighthouse) and by way of restrictive covenants aimed to protect the existing vegetation. The evidence of Mr Kaesehagen was helpful in this regard.

80 However, if minimising the visual effects of subdivision on the rural landscape was all that it took to achieve an approval, then other rural lots in Busselton and elsewhere could progressively be broken down into smaller lots. What is also needed is an examination of the policy and statutory context which affects the subject land.

81 At the State level, the provisions of SPP 2.5 and DC 3.4, when read in conjunction with one another, present the policy position that the subdivision of rural land should be properly planned through the preparation of local planning strategies and that these strategies should be effected by way of a local planning scheme prior to subdivision. It is suggested that rural smallholdings should range from 4 hectares to 40 hectares.

82 What is also advocated is that the fragmentation of rural land and loss of rural character through piecemeal, unplanned subdivision should not be permitted.

83 These policies are underpinned by the LNRSPP, wherein there is a strong emphasis on preserving the landscape and to establish appropriate buffers (such as exists between Dunsborough and Eagle Bay) to avoid the coalescence of settlements.

84 At the local level, the EBSP suggests that land between Eagle Bay Road and Cape Naturaliste Road be limited to small scale tourism opportunities and low impact subdivision.

85 Under the RPS, rural smallholdings in Precinct 7 (Naturaliste), which encompasses the subject land, are identified as 'undesirable'. However, the Scheme does indicate that the Shire will, where environmental conditions allow, positively consider subdivision into allotments comprising a minimum of 40 hectares. In this case, the Shire did not support the proposed subdivision.

86 In considering a proposed subdivision, such as that contemplated in this case, the Tribunal is confronted with a range of State and local policies which must be assessed. However, as explained in Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433, Justice Barker noted at [24] that a policy is 'not intended to replace the discretion of the [administrator] in the sense that it is to be inflexibly applied regardless of the merits of the particular case before it'.

87 Again, at [24], His Honour noted that 'the relevant consideration in many applications will by why the "policy" should not be applied; why the planning principles that find expression in the "policy" are not relevant to the particular application'.

88 In the applicant's submissions of 16 December 2008, at [24] - [39], the argument is put at [25]:

... that the various statements of policy objectives are designed to achieve outcomes which themselves have become irrelevant as a consequence of the circumstances of the land and the inapplicability of the criteria which dominated the Respondent's original decision to refuse the application ...

Although rural residential[,] rural smallholding and urban development are perceived to be 'undesirable', no rationale is advanced to determine, first, why they are undesirable or, secondly, provide a comprehensive and cogent explanation of those factors leading to undesirability which can be distinguished or applied (as the case may be) in the present instance.

90 The Tribunal would acknowledge that the applicant's submissions in [88] and [89] are worthy of consideration. However, it is the case, as explained in [81] - [85] above, that there is no relevant policy provision that would support the proposal other than a circumstance where subdivision would represent an opportunity to diversify or intensify the agricultural use of the land as outlined in [37] above. That circumstance does not present itself in this case, due to the limited capability of the land for productive agriculture.

91 Also, it must be said that there is a measure of consistency in the relevant policy documents which effectively argue against isolated rural subdivision proposals of the size contemplated. In other words, an approval could be justifiably construed as being contrary to orderly and proper planning.

92 On the matter of undesirable precedent, the manner in which this should be assessed is advanced in Nicholls at [67] above.

93 In that respect, the Tribunal believes that the subdivision is 'not unobjectionable' in that it is contrary to orderly and proper planning and there is, in the view of the Tribunal, more than a mere chance or possibility that there may be other undistinguishable subdivisions.

94 An examination of the subdivisional pattern in the broad locality, and along Cape Naturalise Road in particular, shows a series of lots in the same order of size or bigger than the subject land where an approval in this instance could encourage those other landowners to unnecessarily attempt to subdivide.

95 In this specific case, although subdivision may understandably advance the objectives of the landowner, it would not advance the planning objectives of the area. It is only by retaining the existing lot sizes of 'Agriculture' zoned land along Eagle Bay Road that the communities of Eagle Bay and Dunsborough are effectively separated, and that the overall planning objectives for this locality are maintained at this point in time in the planning process.

96 On the matter of costs, the Tribunal supports the arguments of the respondent. It is the case that the applicant has used the arguments of Mr Kaesehagen to advance its position (as explained in the applicant's submissions of 16 December 2008 at [39] and elsewhere) and that the Tribunal was assisted by Mr Kaesehagen's work.

97 For the foregoing reasons, the orders of the Tribunal are as follows:

I certify that this and the preceding [97] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

Development Act 2005

Administrative Tribunal Act 2004

Planning and Development Act 1928

ZAMPATTI and WESTERN AUSTRALIAN PLANNING COMMISSION [2009] WASAT 70 (17 April 2009)

Aydogan and Town of Cambridge [2007] WASAT 19

Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433

Goldin v Minister for Transport [2002] NSWLEC 75; (2002) 121 LGERA 101

Nicholls and Western Australian Planning Commission [2005] WASAT 40

(2002) 122 LGERA 433

(2002) 121 LGERA 101

ZAMPATTI and WESTERN AUSTRALIAN PLANNING COMMISSION [2009] WASAT 70 (17 April 2009)

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (33 paragraphs)

Legislation Cited (3)

Cases Cited (7)

ZAMPATTI and WESTERN AUSTRALIAN PLANNING COMMISSION [2009] WASAT 70 (17 April 2009)