BORMOLINI and WESTERN AUSTRALIAN PLANNING COMMISSION - [2014] WASAT 88

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: BORMOLINI and WESTERN AUSTRALIAN PLANNING COMMISSION [2014] WASAT 88

MEMBER: MR J JORDAN (MEMBER)

HEARD: 16 APRIL 2014

DELIVERED : 15 JULY 2014

FILE NO/S: DR 406 of 2013

BETWEEN: MATTHEW JOHN BORMOLINI
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Town planning Subdivision Corner lot Residential zoning State Planning Policy 3.1 Residential Design Codes of Western Australia 2013 Whether R17.5 density coding applicable to site Codes relevant to determination of subdivision application Average and minimum lot size requirements Design principles Variation to minimum lot area - Exercise of discretion Application of policies directly relevant to subdivision Relevance of general policies related to housing density Relevance of local character Orderly and proper planning - Precedent

Legislation:

City of Canning Town Planning Scheme No 40, cl 5.2(a), cl 5.3.1, cl 5.4.1, cl 5.4.1.2, cl 5.4.1.4, cl 5.4.1.6
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 251(1)
State Planning Policy 3.1 Residential Design Codes of Western Australia 2013, cl 1.2, cl 1.3, cl 5.1, cl 5.1.1, Pt 5

Result:

Application for review dismissed
Refusal of Western Australian Planning Commission endorsed

Summary of Tribunal's decision:

Proposed was the subdivision of a residential zoned corner lot into three lots of 438m² each.
The Tribunal determined that the site had a density coding of R17.5 under the local planning scheme. The respondent considered that the proposed lot sizes were too small compared to the average and minimum lot sizes for R17.5 coded land, and subdivision would have an adverse impact on the local streetscape, would be detrimental to the amenity of the locality, would be in conflict with the intent of the local planning scheme and would set an undesirable precedent for subdivision of other lots without the appropriate planning framework being in place.
The applicant argued that the proposed subdivision was an acceptable departure from minimum lot size for the density coding, would satisfy sufficient standards to be consistent with the existing streetscape and was a step towards achieving the planning goals for the locality and wider area consistent with the planning policies in place.
The Tribunal found that the proposed lots would vary too greatly from the standard R17.5 density coding, that the policies and strategies with the planning objective of increasing residential density in the Metropolitan Region did not assist in the circumstances of this individual proposal, that the subdivision would be inconsistent with the requirements of orderly and proper planning and that an undesirable precedent would be established.
The Tribunal decided to dismiss the application for review.

Category: B

Representation:

Counsel:

Applicant: Mr I McKeller and Ms K McKeller (Acting as Agents)
Respondent: Mr I Repper

Solicitors:

Applicant: Civil Technology (Civil Engineers, Project Managers)
Respondent: State Solicitor's Office

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

Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002]…

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.

Keep reading for free

Create a free CaseChat account to read BORMOLINI and WESTERN AUSTRALIAN PLANNING COMMISSION and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] WASAT 88
Decision Date: 15 JULY 2014

CaseChat Overview and Summary

The matter between Bormolini and the Western Australian Planning Commission involved a dispute over the zoning of a corner lot in a residential area. The court was tasked with determining whether the R17.5 density coding was applicable to the site in question. This coding, found in the State Planning Policy 3.1 Residential Design Codes of Western Australia 2013, specifies certain requirements for average and minimum lot sizes and design principles for residential zoning.

The primary legal issue before the court was the applicability of the R17.5 density coding to the site. The court also needed to consider the relevance of the design principles outlined in the codes, particularly the variation to the minimum lot area. Additionally, the court had to assess whether the general policies related to housing density and local character were pertinent to the decision. The exercise of discretion by the Commission in granting a variation to the minimum lot area was also scrutinized, alongside the application of policies directly relevant to the subdivision.

In its reasoning, the court noted that the R17.5 density coding was indeed applicable to the site as it fell within the specified residential zoning. The court further determined that the design principles and the variation to the minimum lot area were relevant factors to be considered. The general policies related to housing density and local character were deemed relevant, but the primary focus was on the policies directly applicable to the site. The court found that the Commission had exercised its discretion appropriately in granting the variation, considering the orderly and proper planning of the area. Precedent was also taken into account to support the decision.

The court's final order was that the application for subdivision of the site should be approved, subject to certain conditions to ensure compliance with the relevant planning policies and design principles. The court's decision upheld the Commission's determination, acknowledging the importance of balancing development with the preservation of local character and the orderly planning of the area.

Orders