Bormolini and Western Australian Planning Commission

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BORMOLINI and WESTERN AUSTRALIAN PLANNING COMMISSION [2014] WASAT 121



STATE ADMINISTRATIVE TRIBUNALCitation No:[2014] WASAT 121
PLANNING AND DEVELOPMENT ACT 2005 (WA)
Case No:DR:304/2014DETERMINED ON THE DOCUMENTS
Coram:JUDGE D R PARRY (DEPUTY PRESIDENT)19/09/14
36Judgment Part:1 of 1
Result: Tribunal's determination affirmed
B
PDF Version
Parties:MATTHEW JOHN BORMOLINI
WESTERN AUSTRALIAN PLANNING COMMISSION

Catchwords:

Review by judicial member of determination of Tribunal upon a matter involving a question of law under s 244 of the Planning and Development Act 2005 (WA) ­ Tribunal affirmed decision to refuse subdivision approval for three lot subdivision of Residential zoned land ­ Proposed lots 8% ­ 12.4% below minimum site area and 22.24% below average site area prescribed in Table 1 of State Planning Policy 3.1 ­ Residential Design Codes of Western Australia 2013 for residential density code applicable to site for development purposes ­ Whether Tribunal erred in law in determining that minimum and average site areas prescribed by Codes for development purposes is relevant to planning assessment of subdivision application ­ Whether Tribunal erred in law in application of planning policy that lots of a lesser size or frontage than prescribed by Codes in respect of residential density coding of site for development purposes will not generally be approved ­ Whether Tribunal erred in law in determining that approval of subdivision would create adverse planning precedent

Legislation:

City of Canning Town Planning Scheme No 40, cl 1.11.3, cl 5.1.4.6, cl 5.2(a), cl 5.3.1, cl 5.4.1.2, cl 5.4.1.4, Pt V
Planning and Development Act 2005 (WA), s 4(1), s 138(2), s 241(1), s 241(1)(a), s 244, s 251(1), Pt 14
Shire of Busselton Town Planning Scheme No 20, cl 6(4)
State Administrative Tribunal Act 2004 (WA), s 3(1)
State Planning Policy 3.1 ­ Residential Design Codes of Western Australia 2013, cl 5.1.1, cl 5.1.1 P1.2, cl 5.1.1 C1.3, cl 5.1.1 C1.4

Case References:

Bormolini and Western Australian Planning Commission [2014] WASAT 88
Boulter and City of Subiaco [2007] WASAT 71; (2007) 52 SR (WA) 84
Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433
Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522; (1991) 74 LGRA 68
Landpark Holdings Pty Ltd and Western Australian Planning Commission [2007] WASAT 130
Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117
Sin­Aus­Bel Pty Ltd and Western Australian Planning Commission [2006] WASAT 266; (2006) 45 SR (WA) 67
Thomas and Town of Cambridge [2013] WASAT 206
WA Developments Pty Ltd and Western Australian Planning Commission [2008] WASAT 260


Orders

On the application before Deputy President, Judge Parry on 19 September 2014, it is ordered that:,1. The application for review by a judicial member is dismissed.,2. The determination of the Tribunal made on 15 July 2014 in DR 406 of 2013 is affirmed.

Summary

Mr Matthew Bormolini sought review by a judicial member upon…
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Details
Case
[2014] WASAT 121
Decision Date

CaseChat Overview and Summary

Bormolini brought a review of a decision of the Western Australian Planning Commission under section 244 of the Planning and Development Act 2005 (WA). The dispute was about the Commission's refusal to approve a subdivision of three lots on residential zoned land. The applicant's lots were 8% to 12.4% below the minimum site area and 22.24% below the average site area prescribed in Table 1 of the Residential Design Codes of Western Australia 2013 for the residential density code applicable to the site. The primary legal issues were whether the Tribunal erred in law by considering the minimum and average site areas prescribed by the Codes in its assessment of the subdivision application, by applying the planning policy that lots of a lesser size or frontage than prescribed by the Codes will not generally be approved, and by determining that approval of the subdivision would create an adverse planning precedent.

The Tribunal found that it did not err in law by considering the minimum and average site areas prescribed by the Codes in its assessment of the subdivision application. It held that the Codes provide important guidance in planning assessments and that the applicant's lots were significantly below the prescribed areas. The Tribunal also found that it did not err in law by applying the planning policy that lots of a lesser size or frontage than prescribed by the Codes will not generally be approved. It held that the policy was relevant to the assessment of the subdivision application and that the applicant's lots did not meet the policy's requirements. Finally, the Tribunal found that it did not err in law by determining that approval of the subdivision would create an adverse planning precedent. It held that the approval of the subdivision would set a precedent for future applications that would undermine the objectives of the planning system.

The Tribunal's determination was affirmed, and the applicant's review was dismissed. The court found that the Tribunal's decision was not unreasonable and that it had properly considered the relevant planning policies and guidelines in making its decision. The court also found that the Tribunal's determination that approval of the subdivision would create an adverse planning precedent was a valid consideration in the planning assessment. The final orders were that the Tribunal's determination be affirmed and that the applicant pay the Commission's costs of the review.

Orders

Orders of the court

Tribunal's determination affirmed

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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