Cornhill and Western Australian Planning Commission - [2009] WASAT 9

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: CORNHILL and WESTERN AUSTRALIAN PLANNING COMMISSION [2009] WASAT 9

MEMBER: JUSTICE M L BARKER (PRESIDENT)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 22 JANUARY 2009

FILE NO/S: DR 385 of 2008

BETWEEN: MICHAEL CORNHILL
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Review by judicial member of determination of Tribunal upon a matter involving a question of law - Town planning - Subdivision - Rural zone - Severance of 3.2 hectares containing approved light industrial development, leaving 43.0313 hectares for continuation of low level grazing - Whether Tribunal erred in law in its consideration of planning framework - Whether Tribunal failed to consider relevant matter - Crossapplication for review - Whether Tribunal erred in law in interpretation of local planning scheme - Whether Tribunal erred in consideration of adverse planning precedent - Whether judicial member should refer matter back to Tribunal for redetermination or substitute determination

Legislation:

Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 135, s 138, s 244, s 251(1)
Shire of Serpentine-Jarrahdale Town Planning Scheme No 2, cl 5.1.1, cl 5.4.2(c), cl 5.8, cl 5.9, cl 5.12
State Administrative Tribunal Act 2004 (WA), s 3(1)

Result:

Application for review allowed
Subdivision approval granted subject to conditions

Category: B

Representation:

Counsel:

Applicant: Mr J C W Skinner
Respondent: Ms C A Ide

Solicitors:

Applicant: Jackson McDonald
Respondent: State Solicitor's Office

Case(s) referred to in decision(s):

Aspen Pty Ltd v State Planning Commission [1988] WATPAT 18
Cornhill and Western Australian Planning Commission [2008] WASAT 208
Cornhill v Western Australian Planning Commission [2001] WATPAT 20
Goldin v Minister for Transport Administering the Ports Corporations and Waterways Management Act 1995 (2002) 121 LGERA 101
Ingram v Western Australian Planning Commission [2003] WASCA 77
Landpark Holdings Pty Ltd and Western Australian Planning Commission [2007] WASAT 130
Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117
Williams and Western Australian Planning Commission [2005] WASAT 10
Wilson v Western Australian Planning Commission [2007] WASC 39

REASONS FOR DECISION:

Summary of Tribunal's (judicial member's) decision

Mr Michael Cornhill applied for review by a judicial member of a determination of the Tribunal in which it refused to grant subdivision approval of a 46.2313 hectare rural zoned property into lots of 3.2 hectares and 43.0313 hectares. The proposed smaller lot contains a historic, current and lawful light industrial development.
The President determined that the Tribunal erred in law in two respects. First, it failed to take into account a relevant matter for consideration, namely, whether the proposed subdivision would result in the maintenance or loss of land having productive capacity for agricultural production. Secondly, the Tribunal failed to take into consideration one of two established criteria as to the circumstances in which precedent is a relevant consideration in a planning assessment, namely, that there is more than a mere chance or possibility that there may be later undistinguishable applications.
The President…

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 Cornhill 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: [2009] WASAT 9
Decision Date: 22 JANUARY 2009

CaseChat Overview and Summary

Cornhill applied for approval to subdivide Lot 394 Jarrah Road, Hopelands into two lots, one of 3.2 hectares for light industrial use and the other of 43.0313 hectares for low level grazing. The Western Australian Planning Commission refused the application. Cornhill applied to the Civil Appeal Tribunal to review the Commission's decision. The Tribunal dismissed Cornhill's application and Cornhill then applied to the Supreme Court for judicial review of the Tribunal's decision. The court had to decide whether the Tribunal erred in law in its consideration of the planning framework, whether the Tribunal failed to consider a relevant matter, whether the Tribunal erred in its interpretation of the local planning scheme, and whether the Tribunal erred in its consideration of adverse planning precedent. The court held that the Tribunal had erred in law in its consideration of the planning framework and in its interpretation of the local planning scheme. The court also held that the Tribunal had failed to consider a relevant matter. The court set aside the Tribunal's decision and remitted the matter to the Tribunal for re-determination of the application on the basis of the parties' submissions and without an oral hearing. The court also made orders regarding the filing of draft conditions and submissions by the parties.

Orders

Orders of the court

1. The application for review is allowed and the determination of the Tribunal in Cornhill and Western Australian Planning Commission [2008] WASAT 208 on 11 September 2008 to refuse subdivision approval for the subdivision of Lot 394 Jarrah Road, Hopelands into two lots of 3.2 hectares and 43.0313 hectares is set aside. 2. Subdivision approval is granted for the subdivision of Lot 394 Jarrah Road, Hopelands into two lots of 3.2 hectares and 43.0313 hectares subject to conditions to be determined by another judicial member nominated by the President entirely on the basis of the parties' submissions and without an oral hearing. 3. For the purposes of s 145 of the Planning and Development Act 2005 (WA), the 'prescribed period' shall commence on the publication of the judicial member's determination in relation to the conditions subject to which subdivision approval is granted. 4. By 30 January 2009, the applicant must file with the Tribunal and give to the respondent a statement setting out the respondent's without prejudice draft conditions as amended in its document dated and filed on 11 July 2008, identifying any condition that is objected to by the applicant and containing submissions in support of any objection. 5. In the event that the applicant objects to any of the respondent's without prejudice draft conditions, the respondent must file and provide to the applicant its submissions in relation to any disputed condition by 13 February 2009. 6. By 20 February 2009, the applicant may file with the Tribunal and give to the respondent any submissions in reply.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.