2 Thomas Road Pty Ltd v Shire of Serpentine-Jarrahdale

In this appeal, the appellant, 2 Thomas Road Pty Ltd, challenges the decision of the State Administrative Tribunal to dismiss its application for review of a decision of the respondent, the Shire of Serpentine-Jarrahdale, to refuse approval of a development application for a sand extraction operation on land located within the Rural Groundwater Protection Zone. The Tribunal found that the proposed development would involve excessive clearing of land contrary to cl 5.20.3 of the Shire of Serpentine-Jarrahdale Town Planning Scheme No 2 (TPS 2) and that the proposed development was therefore incapable of approval. The appeal raises two grounds: firstly, that cl 5.20.3 of TPS 2 only prohibits excessive clearing of land within the Rural Groundwater Protection Zone, rather than prohibiting clearing altogether; and secondly, that the Tribunal erred by finding that the assessment of whether clearing is 'excessive' is to be conducted by a quantitative assessment. The appeal was dismissed and leave to appeal refused. The court held that cl 5.20.3 of TPS 2 creates a prohibition on any use that involves clearing of land within the Rural Groundwater Protection Zone. The word 'excessive' does not qualify the restriction on clearing in cl 5.20.3 of TPS 2. The plain meaning of the words create a prohibition on the discretion to allow any of the uses prescribed in cl 5.20.2 where that proposed use constitutes a risk of damage to any on site native vegetation.