CHEEMA and WESTERN AUSTRALIAN PLANNING COMMISSION [2014] WASAT 104

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2014] WASAT 104
Act:	PLANNING AND DEVELOPMENT ACT 2005 (WA)
Case No:	DR:346/2013	Heard:	DETERMINED ON THE DOCUMENTS
Coram:	MS L EDDY (MEMBER)	Delivered:	26/08/14
No of pages:	14	Judgment Part:	1 of 1
Result:	Application unsuccessful
Category:	B
PDF Version

Parties:	DIDAR SINGH CHEEMA WESTERN AUSTRALIAN PLANNING COMMISSION
Catchwords:	Town planning Subdivision application Preliminary issues Proposed two lot subdivision in Yunderup 'Special Rural' zone Scheme Prohibits further subdivision Whether subdivision proposal conflicts with provisions of Shire of Murray Town Planning Scheme No 4 Whether any exceptions in s 138(3) of the Planning and Development Act 2005 (WA) apply
Legislation:	Peel Region Scheme, cl 12(e) Planning and Development Act 2005 (WA), s 68, s 138(2), s 138(3), s 251(1) Residential Design Codes of Western Australia (2002) Shire of Murray Town Planning Scheme No 4 Shire of Murray Town Planning Scheme No 4, cl 2.1, cl 2.2, cl 6.4.5, Pt VI State Administrative Tribunal Act 2004 (WA), s 27(1), s 27(2)
Case References:	Landpark Holdings Pty Ltd and Western Australian Planning Commission [2007] WASAT 130
Orders	On the application determined by Member Lisa Eddy, on 26 August 2014 it is ordered that: ,1. The proceeding is adjourned to a further directions hearing at 4 pm on Thursday, 4 September 2014.
Summary	The application was for review of a decision of the respondent to refuse to grant approval to subdivide land located at No 6 (Lot 13) Murray River Drive, South Yunderup, into two lots. The site was zoned 'Special Rural Zone 3' in the Shire of Murray Town Planning Scheme No 4. The scheme provided that there would be no further subdivision of lots within Special Rural Zone 3. The Tribunal considered, as a preliminary issue, whether the subdivision proposal was capable of approval. This required consideration of the application of s 138 of the Planning and Development Act 2005 (WA) and, in particular, whether the proposal was in conflict with the provisions of the scheme and, if so, whether any of the exceptions in s 138(3) of the Planning and Development Act 2005 applied.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : CHEEMA and WESTERN AUSTRALIAN PLANNING COMMISSION [2014] WASAT 104 MEMBER : MS L EDDY (MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 26 AUGUST 2014 FILE NO/S : DR 346 of 2013 BETWEEN : DIDAR SINGH CHEEMA

Applicant

AND

WESTERN AUSTRALIAN PLANNING COMMISSION

Respondent

Catchwords:

Town planning Subdivision application Preliminary issues Proposed two lot subdivision in Yunderup 'Special Rural' zone Scheme Prohibits further subdivision Whether subdivision proposal conflicts with provisions of Shire of Murray Town Planning Scheme No 4 Whether any exceptions in s 138(3) of the Planning and Development Act 2005 (WA) apply

Legislation:

Peel Region Scheme, cl 12(e)

Planning and Development Act 2005

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: [2014] WASAT 104
Decision Date: 26 AUGUST 2014

CaseChat Overview and Summary

The case involves a dispute between Cheema and the Western Australian Planning Commission regarding a subdivision application. Cheema proposed a two-lot subdivision in Yunderup, which is within a 'Special Rural' zone. The Shire of Murray Town Planning Scheme No 4 prohibits further subdivision in this area. The court had to determine whether the subdivision proposal conflicted with the provisions of the Scheme and if any exceptions in section 138(3) of the Planning and Development Act 2005 (WA) applied. The key legal issues were the interpretation of the Scheme's prohibition on further subdivision and whether any statutory exceptions permitted the proposed subdivision. The court found that the subdivision proposal indeed conflicted with the provisions of the Scheme and that no applicable exceptions in section 138(3) existed to permit the subdivision. Consequently, the application was unsuccessful.

Orders

Orders of the court

Application unsuccessful

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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