Allsure Pty Ltd and Western Australian Planning Commission

Allsure Pty Ltd sought judicial review of a decision by the Western Australian Planning Commission to grant approval for the subdivision of a parcel of land in Waroona, but subject to conditions. The primary condition was that part of the land required for a proposed highway bypass be shown as a separate lot and that the balance of the four proposed lots and the proposed internal cul-de-sac be redistributed and/or relocated. This condition reflected the Commission’s refusal to approve the subdivision in its entirety. The court had to determine whether the Commission’s decision to approve the subdivision subject to conditions was lawful, whether the statutory declaration that established a planning control area over the land required for the proposed highway bypass invalidated the development approval, and whether the preparation and submission of the plan of road intersection constituted "carrying out" of the development under the relevant legislation.

The court examined the statutory framework governing the approval of the subdivision and the creation of the planning control area. It considered whether the planning control area declaration invalidated the development approval and whether the preparation and submission of the road intersection plan constituted "carrying out" of the development. The court concluded that the control area declaration did not invalidate the development approval because the development was not "lawfully being carried out" immediately before the declaration. The court also found that the preparation and submission of the road intersection plan did not constitute "carrying out" of the development. The court further determined that it was unlikely that development approval for the lots in the planning control area would be obtained, and that allowing the subdivision as proposed would be contrary to the sustainable use and development of land. The court held that the Commission had erred in law by not giving sufficient weight to the highway bypass proposal in its planning assessment.

The court set aside the decision of the Commission to grant approval for the subdivision subject to conditions and refused the subdivision as proposed. The court's decision emphasised the importance of considering the imminence and degree of certainty of a proposed highway bypass in planning assessments and the need to avoid contrary planning decisions.