BESTRY PROPERTY GROUP PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION

The case involves Bestry Property Group Pty Ltd, the applicant, and the Western Australian Planning Commission, the respondent, before the Supreme Court of Western Australia. The dispute concerns the conditions attached to the approval of a subdivision in the City of Cockburn. The applicants sought to develop a site that included a proposed reserve of 1,390 square meters intended for public open space. The Commission imposed a condition requiring the vesting of this reserve in the Crown, free of cost and without compensation. The applicants challenged the legality of this condition, arguing it was intended to defeat their vested right to compensation for injurious affection and was manifestly unreasonable.

The legal issues before the court included whether the condition could lawfully be imposed, whether it served an ulterior purpose, and if it was manifestly unreasonable. The court had to determine if the condition was fairly and reasonably related to the subdivision, if there was sufficient public open space in the locality, and whether the public open space included regional open space reserved under the regional planning scheme. Additionally, the court needed to consider the weight to be given to the City of Cockburn's Public Open Space Strategy, which conflicted with the state planning policy and the Commission's Development Control Policy. The court also examined whether the condition departed from the planning policy requiring 10% of the gross subdivisible area to be allocated for public open space and if the regional open space was sufficiently proximate and useful.

The court found that the condition could be lawfully imposed as it fairly and reasonably related to the subdivision and was not manifestly unreasonable. The court held that the proposed reserve was not required to be included in the 10% public open space requirement due to the existence of other public open space in the vicinity. The court also determined that the public open space included regional open space reserved under the regional planning scheme. The City of Cockburn's Public Open Space Strategy was deemed relevant but not determinative, and the court found no cogent reason to depart from the planning policy requiring 10% of the gross subdivisible area to be given up for public open space. The court concluded that the proximity and utility of the regional open space adequately addressed the public open space needs of the locality.

The court's final order was that the condition imposed by the Western Australian Planning Commission was lawful, and the applicants' challenge was dismissed.