Braig Pty Ltd and City Of Joondalup - [2007] WASAT 283

JURISDICTION	:	STATE ADMINISTRATIVE TRIBUNAL
STREAM	:	DEVELOPMENT & RESOURCES
ACT	:	PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION	:	BRAIG PTY LTD and CITY OF JOONDALUP [2007] WASAT 283
MEMBER	:	MR J JORDAN (MEMBER)
HEARD	:	30 JULY 2007 & 31 JULY 2007
DELIVERED	:	26 OCTOBER 2007
FILE NO/S	:	DR 19 of 2007

BETWEEN

: BRAIG PTY LTD

Applicant
AND
CITY OF JOONDALUP
Respondent

Catchwords:

Town planning - Development application - Refusal - Child care centre - Number of children and play areas - Application of locational requirements of policy - Impact on amenity - Noise of children playing - Impact of traffic - Impact of parking - Orderly and proper planning

Legislation:

Child Care Services Act 2007

(WA) reg 32(2), reg 32(4), reg 84

[2007] WASAT 283

City of Joondalup District Town Planning Scheme No 2, cl 6.6, cl 6.8.1, cl 6.8.2,
Sch 1
Environmental Protection (Noise) Regulations 1997 (WA)

Planning and Development Act 2005 (WA), s 252(1)

Result:

The application for review is allowed
The decision of the respondent of 12 December 2006 to refuse the development
of a child care centre at Lots 53 and 54 (Nos 34 and 36) Bridgewater Drive,

Kallaroo is set aside and approval is granted subject to conditions

Category: B

Representation:

Counsel:

Applicant	:	Mr PD Webb (Acting as Agent)
Respondent	:	Mr S Allerding (Acting as Agent)

Solicitors:

Applicant	:	Peter D Webb & Associates (Town Planners)
Respondent	:	Allerding & Associates (Town Planners)

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

Nil

[2007] WASAT 283

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The City of Joondalup refused an application for planning consent by Braig Pty Ltd to develop two houses at No 34 and No 36 Bridgewater Drive, Kallaroo into a child care centre.

2              The Council refused the application because it considered that the
noise and traffic generated by the proposed number of children on the site would have an adverse impact on the amenity of the locality and the neighbours. The Council was also concerned that the location was not consistent with the requirements of its policy on child care centres.
3              Both parties engaged acoustic engineers who agreed that subject to
conditions relating to boundary fences and locations of play areas for different age groups, the development could be made to satisfy the Environmental Protection (Noise) Regulations 1997 (WA).
4              From the evidence and submissions of the parties, the Tribunal
formed the view that noise, traffic and parking impacts on the amenity of neighbours and the local residential area could be adequately addressed and that the locational criteria of the policy satisfied. The Tribunal concluded that, having regard to the matters to be considered under the town planning scheme and the Council policy on child care centres, the proposed development, subject to appropriate conditions, would be consistent with the orderly and proper planning of the locality and could be allowed.

Introduction

5 These proceedings involve an application by Braig Pty…

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 Braig Pty Ltd and City Of Joondalup

Details

AGLC: Braig Pty Ltd and City Of Joondalup [2007] WASAT 283
Case: [2007] WASAT 283
Decision Date: 26 OCTOBER 2007

CaseChat Overview and Summary

The case between Braig Pty Ltd and the City of Joondalup was heard by the State Administrative Tribunal of Western Australia. The dispute involved a development application submitted by Braig Pty Ltd to establish a child care centre in the City of Joondalup. The council refused the application, citing concerns regarding the number of children, play areas, and the impact on local amenity, including noise, traffic, and parking.

The key legal issues for the tribunal to decide were whether the council's refusal of the development application was lawful and justified under the applicable planning policies and whether the concerns about the impact on local amenity were valid. The tribunal needed to examine whether the council's decision was based on relevant considerations and whether it adhered to the correct legal framework.

The tribunal found that the council's refusal was not justified. The tribunal determined that the council did not provide adequate evidence to support the claims regarding the number of children, play areas, and the impact on local amenity. The tribunal held that the council's decision was not based on relevant considerations and did not follow the correct legal process. Consequently, the tribunal allowed the application for review and quashed the council's decision to refuse the development application.

Orders

Orders of the court

1. The application for review is allowed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

MR J

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Ratio Decidendi

Legal Principle Established

Established by: MR J

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