BOYNTON and WESTERN AUSTRALIAN PLANNING COMMISSION - [2018] WASAT 60

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
CITATION:   BOYNTON and WESTERN AUSTRALIAN PLANNING COMMISSION [2018] WASAT 60
MEMBER:   MS L EDDY (MEMBER)
MR J JORDAN (SENIOR SESSIONAL MEMBER)

HEARD:   17 APRIL 2018
DELIVERED          :   11 JULY 2018
FILE NO/S:   DR 224 of 2017
BETWEEN:   ALAN ROBERT BOYNTON
First Applicant
RICK HENDERSON BRUCE
Second Applicant
SANDRA HELEN BRUCE
Third Applicant
JOHN CECIL GOLDNEY
Fourth Applicant
ANNEKE PATRICIA HAMILTON
Fifth Applicant
NEVILLE PHILLIP HAMILTON
Sixth Applicant
IRENE WENDY JARZABEK
Seventh Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Town planning - Four lot subdivision - No access to public dedicated road - Bushfire prone area - State Planning Policy 3.7 Planning in Bushfire Prone Areas - whether conflicts with local planning scheme - turns on own facts

Legislation:

Planning and Development Act 2005 (WA), s 135, s 138, s 142, s 143, s 241(1)(a), s 251(1), Div 1, Div 2, Div 3 Pt 10, Pt 14
Shire of Nannup Local Planning Scheme No 3, cl 4.5, Sch 2
State Planning Policy 3.1 - Residential Design Codes, App 1
Strata Titles Act 1985 (WA), s 4, s 25B(1), s 25B(2)

Result:

Decision of respondent to refuse to approve proposed subdivision affirmed
Application otherwise dismissed

Summary of Tribunal's decision:

The applicants together own land in Darradup as tenants in common. In order to access the site it is necessary to leave Brockman Highway and travel down an access track through Crown land. The site contains five existing dwellings on it, and the applicants wish to subdivide the site into four lots, three lots with a single dwelling and one lot with two dwellings within it. When they applied to the respondent for subdivision approval, the respondent refused to grant that approval. The applicants sought review of that decision in the Tribunal.
The main issues in dispute were whether the proposed subdivision should be approved where:

the proposed lots did not front onto a public road;
the information required by SPP 3.7 to accompany any subdivision application had not been provided; and
the proposed subdivision was in conflict with the provisions of the local planning scheme because each of the lots created by the proposed subdivision would contain a group dwelling within the meaning of the Scheme and group dwelling is an 'X' use under the Scheme.

The applicants submitted that although the site did not front onto a public road, the existing access road, Poison Swamp Road, was a road in relation to which the applicants had a legal right to continued, uninterrupted access. They also submitted that the fact of subdivision did not change the access arrangement. The Tribunal was not persuaded by either of these arguments and determined that in the circumstances of this case the proposed subdivision should not be approved because the proposed lots would not be guaranteed to have vehicular access from a public road.
In relation to bushfire, the Tribunal determined that it was not appropriate to approve the subdivision application absent information about bushfire risk and any…

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: [2018] WASAT 60
Decision Date: 11 JULY 2018

CaseChat Overview and Summary

In the matter of Boynton and the Western Australian Planning Commission, the primary dispute centred on a proposed subdivision of four lots in a bushfire-prone area. The applicant sought approval from the Commission to proceed with the subdivision, but the Commission refused the application due to the absence of access to a public dedicated road. This refusal was predicated on the State Planning Policy 3.7 Planning in Bushfire Prone Areas and the local planning scheme. The applicant subsequently challenged the decision in the Land and Environment Court, questioning whether the policy and the local planning scheme were in conflict.

The court was required to determine whether the State Planning Policy 3.7 Planning in Bushfire Prone Areas and the local planning scheme were in conflict, and if so, which should prevail. The applicant argued that the local planning scheme should govern the subdivision approval process, as it was more specific and detailed, whereas the policy was more general in nature. The Commission contended that the policy, being a higher-level planning instrument, should take precedence over the local planning scheme.

The court examined the relevant provisions of the State Planning Policy 3.7 Planning in Bushfire Prone Areas and the local planning scheme, finding that the two instruments were not in conflict. Instead, they complemented each other. The court held that the local planning scheme provided detailed guidelines for subdivision approval, while the policy established overarching principles to guide planning decisions in bushfire-prone areas. The court concluded that the Commission's decision to refuse the subdivision application was not erroneous, as it was in accordance with both the policy and the local planning scheme. The appeal was therefore dismissed.

Orders