Bormolini and Western Australian Planning Commission

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.