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
ApplicantsAND
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…
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- Case
- [2014] WASAT 170
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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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
Established by: MR J
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