Clark and Western Australian Planning Commission - [2014] WASAT 170

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: CLARK and WESTERN AUSTRALIAN PLANNING COMMISSION [2014] WASAT 170

MEMBER: MR J JORDAN (MEMBER)

HEARD: 15 MAY, 21 AUGUST AND 15 SEPTEMBER 2014

DELIVERED : 15 DECEMBER 2014

PUBLISHED : 19 DECEMBER 2014

FILE NO/S: DR 382 of 2013

BETWEEN: HERBERT HORSLEY CLARK
EVELYN FRANCES CLARK
Applicants
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Town planning - Subdivision - Refusal - General Agriculture zoning under local planning scheme - Zoning is 'Rural Land' under State Planning Policy 2.5 Proposed creation of 7 hectare lot and 37.95 hectare lot - Lot size pattern in locality - 'Core' area of smaller lots - Outer area of lots up to about 40 hectares around 'core' - Perceived use made of rural zoned lots, rural use and rural living uses - Local strategy for locality - State Planning Policy 2.5 - Rural land use planning - Development Control Policy 2.3 Subdivision of rural zoned land Relationship between definitions for zones and uses - Uses permitted in zones - Tests for suitability of land for proposed use - Application of policy

Legislation:

City of Albany Planning Scheme No 1, cl 4.2.20, cl 5.5.16.4
Planning and Development Act 2005 (WA), s 252(1)

Result:

1. The application for review is dismissed
2. The decision of the Western Australian Planning Commission dated 11 September 2013 to refuse the application to subdivide Lot 19 Puls Road, Torbay is affirmed

Summary of Tribunal's decision:

This matter involved an application for review of the refusal of a proposal to subdivide a lot in a rural zone currently used for rural living into a 7 hectare lot and a 37.95 hectare lot.
The Tribunal determined that the provisions of the Western Australian Planning Commission's policies State Planning Policy 2.5 and Development Control Policy 3.4 that guide rural subdivision were applicable.
The Tribunal considered the proposed subdivision in the context of the objectives for the rural zoning of the site and locality under the local planning scheme and the classification of the site and lots in the locality for continued rural land use under the adopted planning strategies.
The Tribunal concluded that the subdivision would not be consistent with orderly and proper planning because it would be inconsistent with the intent of the planning instruments and the policies that guide the subdivision of rural land. The Tribunal further found that the subdivision would be ad hoc because it was not satisfied there was a sound planning basis for the proposed lot size or location and that the subdivision would set an undesirable precedent because it would not be distinguishable from any later application in this locality while the current planning controls remain in place.
The Tribunal decided to dismiss the application.

Category: B

Representation:

Counsel:

Applicants: Mr I McKellar with Ms K McKellar (Acting as Agents)
Respondent: Ms S Grebe (Acting as Agent)

Solicitors:

Applicants: Civil Technology Pty Ltd (Civil Engineers and Project Managers)
Respondent: Western…

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.

Keep reading for free

Create a free CaseChat account to read Clark and Western Australian Planning Commission and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] WASAT 170
Decision Date: 15 DECEMBER 2014

CaseChat Overview and Summary

The case between Clark and the Western Australian Planning Commission involved a dispute over the refusal to approve a subdivision of land zoned for General Agriculture. The applicants sought to subdivide their rural property into two lots, one of 7 hectares and the other of 37.95 hectares. The property was located in a locality with a pattern of smaller lots in a 'core' area and larger lots up to about 40 hectares in an outer area. The applicants argued that their proposed subdivision was consistent with the local strategy and the State Planning Policy 2.5 for rural land use planning. The Commission, however, refused the application, citing concerns about the impact on the character of the locality and the suitability of the land for the proposed use.

The primary legal issues before the court were the interpretation and application of the relevant planning policies, particularly State Planning Policy 2.5 and Development Control Policy 2.3. The applicants contended that the proposed subdivision was permissible under the policies, while the Commission argued that it did not align with the local strategy and was not suitable for the intended use. The court had to determine whether the proposed subdivision complied with the planning policies and whether it was suitable for the intended rural use.

The court found that the proposed subdivision did not align with the local strategy, which favoured the retention of larger rural lots in the locality. The court also concluded that the applicants had not demonstrated that the 7-hectare lot would be suitable for rural use, as required by the policies. The court emphasised the importance of considering the pattern of lot sizes in the locality and the intended use of the land when assessing the suitability of a proposed subdivision. The court upheld the Commission's decision to refuse the application, finding that it was not unreasonable or unlawful.

The court's decision was that the Planning Commission's refusal to approve the subdivision was valid, as it was consistent with the relevant planning policies and the local strategy. The court did not order any specific action beyond upholding the Commission's decision.

Orders