CORNHILL and WESTERN AUSTRALIAN PLANNING COMMISSION [2008] WASAT 208

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2008] WASAT 208
Act:	PLANNING AND DEVELOPMENT ACT 2005 (WA)
Case No:	DR:94/2008	Heard:	10 JULY 2008
Coram:	MR L GRAHAM (SENIOR SESSIONAL MEMBER)	Delivered:	11/09/08
No of pages:	25	Judgment Part:	1 of 1
Result:	Application for review dismissed
Category:	B
PDF Version

Parties:	MICHAEL CORNHILL WESTERN AUSTRALIAN PLANNING COMMISSION
Catchwords:	Town planning Application for subdivision to consolidate light industrial use Orderly and proper planning Undesirable precedent Fragmentation of rural land The distinction between 'use' and 'subdivision'
Legislation:	Interpretation Act 1984 (WA), s 32(1), s 32(2) Metropolitan Region Scheme Planning and Development Act 2005 (WA), s 138, s 251(1) Shire of Serpentine-Jarrahdale Town Planning Scheme No 2, cl 3.2.2, cl 5.4.2(c), cl 5.10.1, cl 5.10.3(c), cl 5.11, Table 1
Case References:	Aspen Pty Ltd v State Planning Commission (Unreported; Appeal No 13 of 1988, 21 October 1988) Cornhill and Western Australian Planning Commission [2001] WATPAT 20
Orders	The application for review is dismissed
Summary	The application for review was lodged against a decision of the Western Australian Planning Commission to refuse an application for subdivision of a 46.2313 hectare rural zoned property at Lot 394 Jarrah Road, Hopelands, into two lots of 3.2 hectares and 43.0313 hectares. The smaller of the proposed lots contains an existing light industrial use.,In undertaking this review, the State Administrative Tribunal examined the respective arguments of the parties, the background to the proposal, the relevant legislative and policy provisions and matters of orderly and proper planning and precedent. A previous decision of the former Town Planning Appeal Tribunal with respect to the subject land was also examined.,The State Administrative Tribunal determined that to support the consolidation of an existing non-rural use, for no public benefit, on part only of a rural property by way of a separate lot for that non-rural use would be contrary to orderly and proper planning as enunciated in the Rural Strategy and relevant State policy documents.,The State Administrative Tribunal also determined that to uphold the application for review would establish an undesirable precedent which could lead to the eventual fragmentation of the rural zone and loss of rural character within the Rural Policy Area of the Shire of Serpentine-Jarrahdale.,The application for review was dismissed.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : CORNHILL and WESTERN AUSTRALIAN PLANNING COMMISSION [2008] WASAT 208 MEMBER : MR L GRAHAM (SENIOR SESSIONAL MEMBER) HEARD : 10 JULY 2008 DELIVERED : 11 SEPTEMBER 2008 FILE NO/S : DR 94 of 2008 BETWEEN : MICHAEL CORNHILL

Applicant

AND

WESTERN AUSTRALIAN PLANNING COMMISSION

Respondent

Catchwords:

Town planning - Application for subdivision to consolidate light industrial use - Orderly and proper planning - Undesirable precedent - Fragmentation of rural land - The distinction between 'use' and 'subdivision'

Legislation:

Interpretation Act 1984 (WA), s 32(1), s 32(2)

Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 138, s 251(1)
Shire…

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: [2008] WASAT 208
Decision Date: 11 SEPTEMBER 2008

CaseChat Overview and Summary

In Cornhill and Western Australian Planning Commission, the court was asked to determine whether a proposed subdivision of land could be approved under the Western Australian planning laws. The applicant sought to consolidate light industrial uses on the land, which was originally zoned for rural purposes. The Planning Commission had refused to approve the subdivision, prompting the applicant to seek a review of that decision.

The legal issues before the court included whether the proposed subdivision would lead to the orderly and proper planning of the land, and whether approving the subdivision would set an undesirable precedent. The court also had to consider whether the proposed subdivision would result in the fragmentation of rural land. A key aspect of the court's consideration was the distinction between 'use' and 'subdivision' under the planning laws, and whether the proposed changes would be consistent with the existing zoning.

The court found that the proposed subdivision did not align with the principles of orderly and proper planning. It held that the fragmentation of rural land would be detrimental to the surrounding area and set an undesirable precedent. The court emphasised the importance of maintaining the integrity of rural zoning and rejected the argument that the changes were merely a matter of use rather than subdivision. As a result, the application for review was dismissed, and the Planning Commission's decision to refuse the subdivision was upheld.

Orders

Orders of the court

The application for review is dismissed

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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