Fairborn and Western Australian Planning Commission - [2012] WASAT 247

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: FAIRBORN and WESTERN AUSTRALIAN PLANNING COMMISSION [2012] WASAT 247

MEMBER: JUDGE D R PARRY (DEPUTY PRESIDENT)

HEARD: 4 DECEMBER 2012

DELIVERED : 4 DECEMBER 2012

PUBLISHED : 21 DECEMBER 2012

FILE NO/S: DR 336 of 2012

BETWEEN: PUNITO FAIRBORN
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Review by a judicial member of determination of Tribunal upon a matter involving a question of law under s 244 of the Planning and Development Act 2005 (WA) Tribunal affirmed decision to refuse to grant approval for subdivision of land and assessed costs pursuant to a limited costs order Tribunal did not err in law in any of the respects alleged in the grounds for review Tribunal exercised planning discretion Tribunal had regard to applicable planning framework and evidence before it Tribunal assessed costs in accordance with usual practice

Legislation:

City of Albany Town Planning Scheme No 3
Planning and Development Act 2005 (WA), s 244, s 251(1)

Result:

Application for review of Tribunal's determination dismissed

Summary of Tribunal's decision:

Mr Punito Fairborn sought a review by a judicial member under s 244 of the Planning and Development Act 2005 (WA) of a determination of the Tribunal in which it affirmed the decision of the Western Australian Planning Commission to refuse approval for the subdivision of Mr Fairborn's land in Bornholm. Mr Fairborn provided a statement which outlined six grounds of review. The judicial member gave an oral decision in which he considered each of these grounds and decided that they did not disclose any error of law on the part of the Tribunal. The Tribunal exercised planning discretion, and had regard to the applicable planning framework and evidence before it. In assessing costs pursuant to a limited costs order, the Tribunal applied its usual approach and was entitled to have regard to its experience in such matters.
The application for review by a judicial member was dismissed. The Tribunal subsequently published written reasons based on the transcript with some minor edits made for the sake of clarity.

Category: B

Representation:

Counsel:

Applicant: Self-represented
Respondent: Mr B Nelson

Solicitors:

Applicant: N/A
Respondent: State Solicitor's Office

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

Fairborn and Western Australian Planning Commission [2007] WASAT 266
Fairborn and Western Australian Planning Commission [2012] WASAT 181
J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282 (S); (2006) 45 SR (WA) 242
Marvelle Investments Pty Ltd and Argyle Holdings Pty Ltd [2010] WASAT 125 (S)
Perth Central Holdings Pty Ltd and Doric Constructions Pty Ltd [2008] WASAT 302; (2008) 60 SR (WA) 194
Re Carey; Ex parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501
Squires and Western Australian Planning Commission [2006] WASAT 144
Williams and Western Australian Planning Commission [2005] WASAT 10

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

Mr Punito Fairborn has been trying to subdivide his land…

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: [2012] WASAT 247
Decision Date: 4 DECEMBER 2012

CaseChat Overview and Summary

Fairborn was the appellant, and the Western Australian Planning Commission was the respondent. The dispute centred around the refusal to grant approval for the subdivision of land, as determined by the Tribunal. This case was heard by the Supreme Court of Western Australia, where the appellant sought a review of the Tribunal's decision.

The central legal issue was whether the Tribunal erred in law when it refused to grant approval for the subdivision of the land. The appellant alleged that the Tribunal had not exercised its planning discretion, had not properly considered the applicable planning framework, and had improperly assessed costs. The respondent argued that the Tribunal had correctly exercised its discretion and considered all relevant factors, and had correctly assessed costs.

The court found that the Tribunal had properly exercised its planning discretion and had considered the applicable planning framework and evidence before it. The Tribunal had not erred in law, and had correctly assessed costs in accordance with usual practice. The court affirmed the decision of the Tribunal to refuse approval for the subdivision of the land and assessed costs pursuant to a limited costs order.

Orders