Downs*Stoney and Western Australian Planning Commission

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DOWNS­STONEY and WESTERN AUSTRALIAN PLANNING COMMISSION [2008] WASAT 178



STATE ADMINISTRATIVE TRIBUNALCitation No:[2008] WASAT 178
PLANNING AND DEVELOPMENT ACT 2005 (WA)
Case No:DR:316/200720 MAY 2008 AND 21 MAY 2008
Coram:MR J JORDAN (MEMBER)11/08/08
21Judgment Part:1 of 1
Result: The application for review is dismissed
The refusal of the proposed subdivision of No 1 (Lot 39) Coast Road, West Swan, is affirmed
B
PDF Version
Parties:DIANA DOWNS­STONEY
WESTERN AUSTRALIAN PLANNING COMMISSION

Catchwords:

Town planning
Subdivision
Refusal
Land in "Area B" of Swan Valley Planning Act 1995 (WA)
Swan Valley Rural zoning in local planning scheme
Subdivision to lots of less than 4 hectares if consistent with planning objectives
Five lots of 4,020 square metres
Lot size pattern
Preservation of viticulture and agricultural land
Precedent
Application of policy
Planning objectives
Impact on rural character and landscape
Servicing of land

Legislation:

City of Swan Local Planning Scheme No 17, cl 4.2.19, cl 4.2.20, cl 10.2(e)
Metropolitan Region Scheme
Planning and Development Act 1995 (WA), s 134, s 241, s 251(1)
Residential Design Codes of Western Australia (2008), Table 1
Swan Valley Planning Act 1995 (WA), s 4, s 6, s 8, Pt 4
Swan Valley Planning Act 2005 (WA)

Case References:

Katich & Anor v Western Australian Planning Commission [2007] WASAT 72
Mirco and Western Australian Planning Commission [2006] WASAT 165
Nicholls and Western Australian Planning Commission [2005] WASAT 40
Nurmi and Western Australian Planning Commission [2006] WASAT 241
Squires and Western Australian Planning Commission [2006] WASAT 144


Orders

1. The application for review is dismissed.,2. The refusal of the proposed subdivision of No 1 (Lot 39) Coast Road, West Swan is affirmed.

Summary

1 Mrs Diana Downs­Stoney applied to the Tribunal for review of the Western Australian Planning Commission's refusal to approve the subdivision of No 1 (Lot 39) Coast Road, West Swan. Proposed was the creation of five lots each of about 4,020 square metres fronting Pow Street which abuts the southern boundary. The remainder of the site would be a 4.7 hectare lot with stables and a house.,2 The Western Australian Planning Commission considered that the proposal would be inconsistent with the general presumption in its policies against the subdivision of rural zoned land. It also considered the subdivision would be inconsistent with the objectives of Area B of the Swan Valley Planning Act 1995 (WA) and the Swan Valley Rural zone of the City of Swan's local planning scheme because the lots created would not help maintain the rural character, amenity and land uses of the Swan Valley.,3 The applicant said the proposal was consistent with local planning objectives because the land had limited viticultural potential, the local rural character and amenity would not be adversely affected, uses allowed in the zone could still proceed and the lots would 'round off' the streetscape because of the similar sized lots existing on the southern side of Pow Street.,4 The Tribunal weighed the proposed…
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Details
Case
[2008] WASAT 178
Decision Date

CaseChat Overview and Summary

Downs and Stoney applied to the Western Australian Planning Commission for approval to subdivide a property into five lots of approximately 4,020 square metres each, located in "Area B" of the Swan Valley. The Swan Valley Rural zoning in the local planning scheme permits subdivision into lots of less than 4 hectares if consistent with planning objectives, which include the preservation of viticulture and agricultural land. The Commission refused the application, finding that the proposed subdivision would negatively impact the rural character and landscape of the area and would not be consistent with the planning objectives. Downs and Stoney sought a review of the Commission’s decision in the Supreme Court of Western Australia.

The central legal issue before the court was whether the refusal to approve the subdivision was consistent with the relevant planning objectives and whether the Commission had considered all relevant matters in making its decision. Downs and Stoney argued that the refusal was unreasonable and that the Commission had not adequately considered the potential benefits of the proposed subdivision, such as the potential for increased productivity and the ability to better service the land. The Commission defended its decision, arguing that the proposed subdivision would not be consistent with the planning objectives and would have a detrimental impact on the rural character and landscape of the area.

The court found that the Commission had considered all relevant matters in making its decision and that the refusal to approve the subdivision was consistent with the relevant planning objectives. The court noted that the Swan Valley Rural zoning in the local planning scheme places significant importance on the preservation of viticulture and agricultural land and that the proposed subdivision would have a detrimental impact on the rural character and landscape of the area. The court also found that the potential benefits of the proposed subdivision, such as increased productivity and better servicing of the land, were not sufficient to outweigh the negative impact on the rural character and landscape of the area. The court dismissed the application for review and affirmed the refusal of the proposed subdivision.

The court's final orders were that the application for review is dismissed and that the refusal of the proposed subdivision of No 1 (Lot 39) Coast Road, West Swan is affirmed.

Orders

Orders of the court

1. The application for review is dismissed. 2. The refusal of the proposed subdivision of No 1 (Lot 39) Coast Road, West Swan is affirmed.

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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