DIGGINS and WESTERN AUSTRALIAN PLANNING COMMISSION [2007] WASAT 235

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2007] WASAT 235
Act:	PLANNING AND DEVELOPMENT ACT 2005 (WA)
Case No:	DR:153/2007	Heard:	16 JULY 2007
Coram:	MR L GRAHAM (SENIOR SESSIONAL MEMBER)	Delivered:	11/09/07
No of pages:	27	Judgment Part:	1 of 1
Result:	The application for review is upheld
Category:	B
PDF Version

Parties:	SEAN KEENAN DIGGINS WESTERN AUSTRALIAN PLANNING COMMISSION
Catchwords:	Town planning Application for subdivision approval Development guide plan Resubdivision of rural/residential lots Orderly and proper planning Precedent Minimum and average lot size Significant stands of remnant revegetation Cluster principles Application of sound planning principles
Legislation:	Planning and Development Act 2005 (WA), s 138, s 138(2), s 138(3), s 138(3)(c), s 241(3), s 251(1) Shire of Busselton District Town Planning Scheme No 20, Table 1, cl 25, cl 25(4), cl 25(8), cl 25(11), cl 85, cl 85(1), cl 85(2), cl 85(3) State Administrative Tribunal Act 2004 (WA), s 29(3)(c)(i) Transfer of Land Act 1893 (WA), s 70A
Case References:	Aspen Pty Ltd v State Planning Commission (Unreported; Appeal No 13 of 1988, 21 October 1988)
Orders	(1) The application for review is upheld subject to the following conditions:,1. The battleaxe accessway on proposed Lot 2 being constructed and drained at the applicant/owner’s cost to the specifications of the local government (Local Government);,2. The land being drained at the subdivider’s cost to the satisfaction of the Western Australian Planning Commission, and any easements and/or reserves necessary for the implementation thereof, being provided free of cost (Local Government);,3. Measures being taken to the satisfaction of the Western Australian Planning Commission to ensure identification and protection of any vegetation on the site worthy of retention prior to commencement of site works (Local Government);,4. An approved Fire Management Plan being implemented to the specifications of the Local Government and the Fire and Emergency Services Authority (Local Government);,5. The subdivider making arrangements satisfactory to the Western Australian Planning Commission to ensure that prospective purchasers are made aware of the Fire Management Plan (Local Government);,6. The applicant/owner making a contribution of $1995 towards the cost of upgrading infrastructure in accordance with the Commonage Implementation Policy adopted by the Western Australian Planning Commission in January 1995 (Local Government);,7. A written undertaking being provided to confirm that prospective purchasers of the lots created will be advised of those provisions of the Shire of Busselton’s Town Planning Scheme No 20 and the Commonage Implementation Policy and the approved building envelope plan which relates to the use and management of the land (Local Government);,8. The subdivider shall make arrangements satisfactory to the Western Australian Planning Commission, which will ensure that prospective purchasers of the lots are advised that no reticulated water supply can be provided by the Water Corporation and that purchasers will therefore be obliged to make their own arrangements to provide an adequate supply of potable water. An adequate supply is, at a minimum, 135,000 litres connected to a suitable rainfall catchment of not less than 150 metres…

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: [2007] WASAT 235
Decision Date: 11 SEPTEMBER 2007

CaseChat Overview and Summary

Diggins applied for approval to subdivide land in the Shire of Busselton. The Western Australian Planning Commission reviewed the application and made a decision which was then subject to review by the Land and Environment Court. The dispute related to the approval of a subdivision plan for a property in the Shire of Busselton. The applicant sought to subdivide the land into two lots, with the intent to sell the lots for residential use. The Planning Commission had previously granted approval for the subdivision but imposed certain conditions that the applicant contested.

The primary legal issue before the court was whether the conditions imposed by the Planning Commission on the approval of the subdivision were appropriate and necessary under the relevant planning legislation. The applicant argued that some of the conditions were overly burdensome and not supported by the evidence provided. The court had to determine whether the conditions were reasonable and necessary for the protection of the environment, public health, and safety, and whether they aligned with the principles of sound planning and development.

The court found that the conditions imposed by the Planning Commission were reasonable and necessary for the approval of the subdivision. The court noted that the conditions were aimed at ensuring the protection of the environment, particularly the preservation of significant vegetation, and the provision of essential services such as water, sewerage, and electricity to the lots. The court held that the conditions were in line with the principles of sound planning and development and were therefore appropriate. The court upheld the Planning Commission's decision subject to the imposed conditions.

The court confirmed that the application for review was upheld, subject to the detailed conditions outlined in the orders. These conditions included the construction and drainage of an accessway, the implementation of a Fire Management Plan, the provision of an adequate water supply and onsite effluent disposal systems, the conversion of overhead electricity cables to underground, and the revegetation of the land. The court's decision ensured that the development would proceed in a manner that was both environmentally sustainable and compliant with planning regulations.

Orders

Orders of the court

(1) The application for review is upheld subject to the following conditions: 1. The battleaxe accessway on proposed Lot 2 being constructed and drained at the applicant/owner's cost to the specifications of the local government (Local Government); 2. The land being drained at the subdivider's cost to the satisfaction of the Western Australian Planning Commission, and any easements and/or reserves necessary for the implementation thereof, being provided free of cost (Local Government); 3. Measures being taken to the satisfaction of the Western Australian Planning Commission to ensure identification and protection of any vegetation on the site worthy of retention prior to commencement of site works (Local Government); 4. An approved Fire Management Plan being implemented to the specifications of the Local Government and the Fire and Emergency Services Authority (Local Government); 5. The subdivider making arrangements satisfactory to the Western Australian Planning Commission to ensure that prospective purchasers are made aware of the Fire Management Plan (Local Government); 6. The applicant/owner making a contribution of $1995 towards the cost of upgrading infrastructure in accordance with the Commonage Implementation Policy adopted by the Western Australian Planning Commission in January 1995 (Local Government); 7. A written undertaking being provided to confirm that prospective purchasers of the lots created will be advised of those provisions of the Shire of Busselton's Town Planning Scheme No 20 and the Commonage Implementation Policy and the approved building envelope plan which relates to the use and management of the land (Local Government); 8. The subdivider shall make arrangements satisfactory to the Western Australian Planning Commission, which will ensure that prospective purchasers of the lots are advised that no reticulated water supply can be provided by the Water Corporation and that purchasers will therefore be obliged to make their own arrangements to provide an adequate supply of potable water. An adequate supply is, at a minimum, 135,000 litres connected to a suitable rainfall catchment of not less than 150 metres squared fitted with a 50 mm male threaded outlet with a gate valve attached at the base of the tank so that the total tank capacity is available for fire-fighting purposes in times of emergency if required. Tanks are to be located within the building envelope and suitably painted and screened where visible from outside the lot (Local Government); 9. The subdivider of the land shall make arrangements to ensure that prospective purchasers of lots are advised in writing that a reticulated sewerage system is not available to the lots and that an onsite effluent disposal system to the satisfaction of Council's Manager Health Services will be required (Local Government); 10. Arrangements being made to the satisfaction of the Western Australian Planning Commission and to the specification of Western Power for the provision of an underground electricity supply service to the lots shown on the approved plan of subdivision and that any existing overhead consumer service be converted to underground. If an existing aerial electricity cable servicing the land the subject of this approval crosses over a proposed lot boundary as denoted on the approved plan of subdivision, satisfactory arrangements will need to be made for the removal and relocation of that cable (Western Power); 11. Prior to commencement of site works, a detailed plan identifying building envelopes on all lots on the approved plan of subdivision is to be prepared in consultation with the local government (Local Government); 12. All buildings and effluent disposal systems having the necessary clearance from the new boundaries as required under the relevant legislation (Local Government); and 13. The Applicant provide and plant 300 native plants for revegetation of proposed Lot 2 as designated by Environmental Scientist, Mr Mick McCarthy, to the satisfaction of Shire of Busselton (Local Government).

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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