BILECKI and WESTERN AUSTRALIAN PLANNING COMMISSION - [2019] WASAT 26

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION:   BILECKI and WESTERN AUSTRALIAN PLANNING COMMISSION [2019] WASAT 26
MEMBER:   MS L EDDY, SENIOR MEMBER
HEARD:   22 JANUARY 2019
DELIVERED          :   9 MAY 2019
FILE NO/S:   DR 106 of 2018
BETWEEN:   EDWARD MICHAEL BILECKI
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Town planning - Subdivision - Review of condition requiring provision of public open space - Land to be subdivided within larger structure plan area - Relevant locality for calculation of whether sufficient public open space already exists - Whether condition valid - Whether condition sufficiently certain - Whether any reason to depart from policy in this case

Legislation:

Greater Bunbury Regional Scheme
Planning and Development Act 2005 (WA), s 138(2), s 138(3), s 143, s 241(1), s 251(2), Pt 14
Shire of Dardanup Local Planning Scheme No 3
State Administrative Tribunal Act 2004 (WA), s 31

Result:

Application allowed in part

Summary of Tribunal's decision:

The applicant sought review of a number of conditions imposed by the respondent in giving approval to the subdivision of land in Burekup into 31 lots. Only one condition remained in dispute by the time the matter came for hearing. The condition in dispute was a requirement that the applicant show on the diagram or plan of survey an area of land of at least 10% in area as a reserve for public open space and vested in the Crown, such land to be ceded free of cost without payment of any compensation.
The applicant argued that the condition did not fairly and reasonably relate to the proposed subdivision and should not be imposed because there already existed 10% public open space in the locality of the site. The Tribunal determined that, because there was an endorsed structure plan that contemplated a greenfield subdivision of a large area of land, part of which included the site, in circumstances where the strategic planning contemplated by the structure plan remained the local authority's current strategy, the relevant locality to consider, in determining if there already existed sufficient public open space, was the structure plan area. The structure plan contemplated the provision of 10% of public open space within the area to be subdivided and equal contribution to provision of that public open space by all of the owners of the land within the structure plan area. Currently there is no public open space within that area. The Tribunal determined that the condition in question had a proper planning purpose, did fairly and reasonably relate to the proposed subdivision and was not unreasonable. The Tribunal found also that the condition was sufficiently certain. The Tribunal was not satisfied that there was any reason to depart from the policy position arising from the planning framework in this case.

Category: B

Representation:

Counsel:

Applicant	:	Mr I McKellar (as agent)
Respondent	:	Ms B Loftus and Mr J Misso

Solicitors:

Applicant	:	Civil Technology
Respondent	:	State Solicitor's Office

Case(s) referred to in decision(s):

Bestry…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] WASAT 26
Decision Date: 9 MAY 2019

CaseChat Overview and Summary

The case between Bilecki and the Western Australian Planning Commission revolved around the subdivision of land in an area designated for future development within a larger structure plan. The central dispute was the validity of a condition imposed by the Commission, requiring the provision of public open space as part of the subdivision. The parties contested whether the locality for calculating the sufficiency of existing public open space was correctly defined and whether the condition was sufficiently certain to be enforceable. Additionally, they debated whether there were any grounds to depart from established policy in this specific case.

The key legal issues before the court were whether the condition imposed by the Commission was valid, whether it was sufficiently certain to be enforceable, and whether there were any reasons to deviate from the policy in this instance. The court had to interpret the relevant statutory provisions and policies concerning public open space requirements in the context of the larger structure plan area. The court also needed to consider whether the Commission's decision was within its statutory powers and whether it adhered to the principles of natural justice.

In its decision, the court found that the condition imposed by the Commission was valid and sufficiently certain. The court reasoned that the locality for calculating the sufficiency of public open space was appropriately defined and aligned with the statutory requirements and policies. The court concluded that the Commission's decision was within its statutory powers and adhered to the principles of natural justice. The court held that there were no grounds for departing from the established policy in this case. As a result, the condition requiring the provision of public open space was upheld.

Orders