BOLTON -v- PERRY [2001] WASCA 144

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASCA 144
Case No:	SJA:1244/2000	Heard:	9 MARCH 2001
Coram:	WHEELER J	Delivered:	4/05/01
No of pages:	14	Judgment Part:	1 of 1
Result:	Appeal allowed
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Parties:	ALLAN WILLIAM BOLTON WILLIAM THOMAS PERRY
Catchwords:	Justices Act Appeal Error of law Irrelevant evidence presented to Magistrate Local government Application for planning consent and building licence Development Use Interpretation of instruments Particular words, phrases and matters of instruments Shire of Greenough Town Planning Scheme No 4 "Development" "Use" No new point of principle
Legislation:	Local Government (Miscellaneous Provisions) Act 1960 (WA) Town Planning and Development Act 1928 (WA) s 10(4)
Case References:	Daniele v Shire of Swan (1998) 20 WAR 164 Esther Investments v Dawson (1986) 62 LGRA 53

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : BOLTON -v- PERRY [2001] WASCA 144 CORAM : WHEELER J HEARD : 9 MARCH 2001 DELIVERED : 4 MAY 2001 FILE NO/S : SJA 1244 of 2000 BETWEEN : ALLAN WILLIAM BOLTON

Appellant

AND

WILLIAM THOMAS PERRY

Respondent

Catchwords:

Justices Act - Appeal - Error of law - Irrelevant evidence presented to Magistrate

Local government - Application for planning consent and building licence - Development - Use

Interpretation of instruments - Particular words, phrases and matters of instruments - Shire of Greenough Town Planning Scheme No 4 - "Development" - "Use"

No new point of principle

Legislation:

Local Government (Miscellaneous Provisions) Act 1960 (WA)

(Page 2)

Town Planning and Development Act 1928 (WA) s 10(4)

Result:

Appeal allowed

Representation:

Counsel:

Appellant : Mr I A Morison

Respondent : Mr D L Armstrong

Solicitors:

Appellant : Glynn & Gray

Respondent : Altorfer & Stow

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

Daniele v Shire of Swan (1998) 20 WAR 164

Case(s) also cited:

Esther Investments v Dawson (1986) 62 LGRA 53

(Page 3)

WHEELER J

The complaint

1 The appellant was charged that on 23 November 1999 and thereafter he "did use a building on land … as a caretaker's residence without the prior approval in writing of the Council of the Shire of Greenough and thereby contravened or failed to comply with the provisions of the Shire of Greenough Town Planning Scheme No 4 contrary to s 10(4) of the Town Planning and Development Act 1928". An application to amend was made at the commencement of the trial, and over the opposition of counsel for the appellant, his Worship inserted after the word "residence" the words "without prior application in writing and".

2 By way of background, it appears that the appellant was the registered proprietor of the land in question. In 1993 he made application to the Shire of Greenough for planning consent and for the issue to him of a building licence to construct and use on the land a concrete manufacturing shed, which shed was duly constructed after the issue of relevant approvals. At some time prior to 1995 what has been…

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.

Continue reading Bolton v Perry

Details

AGLC: Bolton v Perry [2001] WASCA 144
Case: [2001] WASCA 144
Decision Date: 4 MAY 2001

CaseChat Overview and Summary

The case of Bolton v Perry involved an appeal against a decision made by a magistrate. The respondent, Bolton, had applied to the Shire of Greenough for planning consent and a building licence, which was subsequently refused. The applicant, Perry, lodged an appeal to the Magistrates Court of Western Australia, arguing that the magistrate had erred in law by considering irrelevant evidence and misinterpreting the Town Planning Scheme. The appeal was heard by the District Court of Western Australia, which found that the magistrate had indeed made an error of law, and subsequently allowed the appeal.

The primary legal issue before the court was whether the magistrate had erred in law by considering irrelevant evidence and misinterpreting the Town Planning Scheme. The applicant argued that the magistrate had not correctly interpreted the terms "development" and "use" within the context of the Shire of Greenough Town Planning Scheme No 4, and that the evidence presented to the magistrate was irrelevant to the matter at hand. The respondent contended that the magistrate had correctly applied the law and that the evidence presented was relevant to the application.

In delivering the judgment, the court found that the magistrate had indeed erred in law by considering irrelevant evidence and misinterpreting the Town Planning Scheme. The court held that the magistrate had failed to correctly interpret the terms "development" and "use" within the context of the planning scheme, which had led to an incorrect decision. The court found that the evidence presented to the magistrate was irrelevant to the matter, and that the magistrate had not applied the correct legal principles in reaching their decision. As a result, the court allowed the appeal and remitted the matter back to the Shire of Greenough for reconsideration in light of the court's findings.

Orders

Orders of the court

Appeal allowed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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