CLARK and WESTERN AUSTRALIAN PLANNING COMMISSION [2015] WASAT 44

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2015] WASAT 44
Act:	PLANNING AND DEVELOPMENT ACT 2005 (WA)
Case No:	DR:20/2015	Heard:	DETERMINED ON THE DOCUMENTS
Coram:	JUDGE D R PARRY (DEPUTY PRESIDENT)	Delivered:	22/04/15
No of pages:	25	Judgment Part:	1 of 1
Result:	Tribunal's determination affirmed
Category:	B
PDF Version

Parties:	HERBERT HORSLEY CLARK EVELYN FRANCES CLARK WESTERN AUSTRALIAN PLANNING COMMISSION
Catchwords:	Review by judicial member of determination of Tribunal upon a matter involving a question of law under s 244 of the Planning and Development Act 2005 (WA) Tribunal affirmed decision to refuse to grant subdivision approval for two lot subdivision of General Agriculture zoned land into 7 hectare lot and 37.9 hectare lot Whether Tribunal erred in law Whether Tribunal erred in determination that subdivision application conflicts with State Planning Policy 2.5 Land Use Planning in Rural Areas Whether Tribunal erred in law in determination that proposed subdivision involves creation of new rural lots through ad hoc, unplanned subdivision Words and phrases: 'ad hoc, unplanned subdivision'
Legislation:	City of Albany Local Planning Scheme No 1, cl 4.2.20, cl 5.5.16.4 Planning and Development Act 2005 (WA), s 241(1), s 241(1)(a), s 244, s 251(1) State Administrative Tribunal Act 2004 (WA), s 3(1)
Case References:	AB v State of Western Australia & Anor [2011] HCA 42; (2011) 244 CLR 390; (2011) 85 ALJR 1233 Clark and Western Australian Planning Commission [2014] WASAT 170 Clive Elliot Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433 Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522 Thomas and Town of Cambridge [2013] WASAT 206
Orders	On the application determined by Deputy President, Judge Parry on 22 April 2015, it is ordered that:,1. The application for review by a judicial member is dismissed.,2. The determination of the Tribunal made on 15 December 2014 and for which written reasons were published on 19 December 2014 in DR 382 of 2013 is affirmed.
Summary	Mr and Mrs Clark sought review by a judicial member upon a matter involving a question of law of a determination by the Tribunal when constituted without a legally qualified member. In the determination, the Tribunal affirmed the decision of the Western Australian Planning Commission to refuse subdivision approval for the subdivision of land zoned General Agriculture into two lots with areas of 7 hectares and 37.95 hectares. Mr and Mrs Clark contended that the Tribunal erred in law in its interpretation and application of State Planning Policy 2.5 - Land Use Planning in Rural Areas including in relation to the policy measure in cl 5.1 of SPP 2.5 that '[c]reation of new lots through ad hoc, unplanned subdivision is considered to be inconsistent with, or contrary to, the objectives of this policy'.,The judicial member determined that the Tribunal did not err in law in its interpretation and application of SPP 2.5. The policy measure in cl 5.1 of SPP 2.5 is relevant to…

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: [2015] WASAT 44
Decision Date: 22 APRIL 2015

CaseChat Overview and Summary

The matter before the court involved Clark and the Western Australian Planning Commission. The dispute centred on the Planning Commission's refusal to grant approval for the subdivision of Clark's General Agriculture zoned land into two lots, one of 7 hectares and another of 37.9 hectares. The Tribunal upheld the Commission's decision, and Clark sought judicial review of this decision under section 244 of the Planning and Development Act 2005 (WA). The primary legal issue was whether the Tribunal erred in law when affirming the Planning Commission's decision. Specifically, Clark argued that the Tribunal was incorrect in finding that the proposed subdivision conflicted with State Planning Policy 2.5, which pertains to land use planning in rural areas. Additionally, Clark contended that the Tribunal wrongly determined that the proposed subdivision constituted an ad hoc, unplanned subdivision, thereby creating new rural lots.

The court examined whether the Tribunal's decision was legally sound, focusing on whether the Tribunal correctly interpreted and applied the relevant planning policies. The court considered the evidence and arguments presented to the Tribunal, including the State Planning Policy 2.5, which emphasises the need to protect rural areas from inappropriate or unplanned subdivision. The court found that the Tribunal's interpretation of the policy was reasonable and that it appropriately applied the policy to the facts of the case. Furthermore, the court held that the Tribunal's finding that the proposed subdivision was ad hoc and unplanned was supported by the evidence and did not constitute an error of law.

In light of the court's findings, the Tribunal's determination was affirmed. The court upheld the Planning Commission's decision to refuse the subdivision approval, concluding that the Tribunal did not err in law. The court found that the proposed subdivision conflicted with the relevant planning policy and constituted an ad hoc, unplanned subdivision. Consequently, the orders of the Tribunal were upheld, and Clark's application for review was dismissed.

Orders

Orders of the court

Tribunal's determination affirmed

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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