Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission

Clive Elliott Jennings & Co Pty Ltd, the appellant, sought approval for a residential subdivision, which was refused by the Western Australian Planning Commission. Dissatisfied with this decision, the appellant appealed to the Town Planning Appeal Tribunal, which also dismissed the appeal. The appeal to the Supreme Court focused on whether the Tribunal erred in considering the 1999 Airport Master Plan for Perth International Airport, which had predicted noise impacts from the airport expansion, as determinative of the appeal. The appellant argued that the Master Plan should not have been given determinative weight and that the Tribunal failed to adequately weigh the merits of the subdivision proposal against the predicted noise impacts.

The legal issues before the court were whether the Tribunal was entitled to regard the Airport Master Plan as a relevant factor where the airport runway expansion option was speculative, and whether the Tribunal inflexibly applied the Master Plan in its decision-making. Additionally, the court had to determine if a "question of law" was involved in the appeal. The appellant's primary contention was that the Tribunal treated the Master Plan as determinative of the decision on the subdivision appeal, which constituted an error of law. The appellant relied on the principle from Falc, which held that a planning tribunal must consider all relevant planning considerations before making a decision, including those that may militate against a proposal.

The court examined the Tribunal's reasoning and found that it had indeed considered the Master Plan as a relevant factor in its decision. The court noted that a relevant policy, provided it is not ultra vires, may be one relevant consideration which the administrator is effectively bound to take into account. However, the court also emphasised that the Tribunal is entitled to independently consider and assess the propriety of the policy. In this case, the court found that the Tribunal had not inflexibly applied the Master Plan but had instead considered it as one of many relevant factors. The court concluded that the Tribunal had not erred in law and dismissed the appeal.