FRANOLICH and WESTERN AUSTRALIAN PLANNING COMMISSION [2006] WASAT 349

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2006] WASAT 349
Act:	PLANNING AND DEVELOPMENT ACT 2005 (WA)
Case No:	DR:202/2006	Heard:	DETERMINED ON THE DOCUMENTS
Coram:	MS M CONNOR (MEMBER)	Delivered:	29/11/06
No of pages:	15	Judgment Part:	1 of 1
Result:	Application for review dismissed The decision of the respondent is affirmed
Category:	B
PDF Version

Parties:	FULVIO FRANOLICH WESTERN AUSTRALIAN PLANNING COMMISSION
Catchwords:	Town planning – Subdivision refusal – General Rural zone – Subdivision contrary to existing planning framework – Adhoc fragmentation of land Whether planning merits of application support departure from State and local policies – Impact on the rural character of locality – Precedent – Consistency in decisionmaking – Hardship grounds
Legislation:	City of Swan Town Planning Scheme No 9, cl 8.1.3, cl 8.2.4.1, cl 8.2.4.2, cl 8.3.1, cl 8.3.2.2 Metropolitan Region Scheme Planning and Development Act 2005(WA) s 25, s 135, s 138, s 138(2), s 214(1)(a), s 241(3), s 252(1) State Administrative Tribunal Act 2004 (WA) Town Planning and Development Act 1928 (WA), s 5AA
Case References:	Aspen Pty Ltd v State Planning Commission (Unreported; Appeal No 13 of 1988, 21 October 1988) Dilatte v MacTiernan [2002] WASCA 100 at 61 Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522 Nil
Orders	The application for review is dismissed,The decision of the respondent is affirmed

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : FRANOLICH and WESTERN AUSTRALIAN PLANNING COMMISSION [2006] WASAT 349 MEMBER : MS M CONNOR (MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 29 NOVEMBER 2006 FILE NO/S : DR 202 of 2006 BETWEEN : FULVIO FRANOLICH

Applicant

AND

WESTERN AUSTRALIAN PLANNING COMMISSION

Respondent

Catchwords:

Town planning – Subdivision refusal – General Rural zone – Subdivision contrary to existing planning framework – Adhoc fragmentation of land - Whether planning merits of application support departure from State and local policies – Impact on the rural character of locality – Precedent – Consistency in decisionmaking – Hardship grounds

Legislation:

City of Swan Town Planning Scheme No 9, cl 8.1.3, cl 8.2.4.1, cl 8.2.4.2, cl 8.3.1, cl 8.3.2.2

(Page 2)

Metropolitan Region Scheme
Planning and Development Act 2005(WA) s 25, s 135, s 138, s 138(2), s 214(1)(a), s 241(3), s 252(1)
State Administrative Tribunal Act 2004 (WA)
Town Planning and Development Act 1928 (WA), s 5AA

Result:

Application for review dismissed

The decision of the respondent is affirmed

Category: B

Representation:

Counsel:

Applicant : Mr S Bain (Acting as Agent)

Respondent : Mr P Smit (Acting as Agent)

Solicitors:

Applicant : SJB Town Planning & Urban Design (Town Planners)

Respondent : Western Australian Planning Commission

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

Aspen Pty Ltd v State Planning Commission (Unreported; Appeal No 13 of 1988, 21 October 1988)
Dilatte v MacTiernan [2002] WASCA 100 at 61
Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522

Case(s) also cited:

Nil

(Page 3)

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: [2006] WASAT 349
Decision Date: 29 NOVEMBER 2006

CaseChat Overview and Summary

The case of Franolitch and the Western Australian Planning Commission arose from an application to the Supreme Court of Western Australia to review a decision by the Commission to refuse a subdivision of land in the General Rural zone. The applicant, Franolitch, sought to subdivide a parcel of land into smaller lots, contrary to the existing planning framework. The Commission's refusal was based on the argument that the proposed subdivision would fragment the land in an ad hoc manner, contrary to state and local policies. Franolitch argued that the planning merits of the application supported a departure from these policies, and that the refusal would cause undue hardship. The Commission contended that the subdivision would adversely impact the rural character of the locality, and that any hardship was not sufficient to warrant a departure from planning policies.

The primary legal issue before the court was whether the merits of the planning application could justify a departure from the existing planning framework. The court had to consider the impact of the proposed subdivision on the rural character of the locality, the consistency in decision-making, and the hardship caused to the applicant. The court also had to consider whether the precedent set by previous cases supported the Commission's decision. The court found that the proposed subdivision would indeed fragment the land in an ad hoc manner, contrary to the existing planning framework. The court also found that the impact on the rural character of the locality was significant, and that the precedent set by previous cases supported the Commission's decision. The court further found that the hardship caused to the applicant was not sufficient to warrant a departure from planning policies.

In light of the above findings, the court dismissed the application for review and affirmed the decision of the Commission. The court held that the merits of the planning application did not support a departure from the existing planning framework, and that the impact on the rural character of the locality was significant. The court also held that the precedent set by previous cases supported the Commission's decision, and that the hardship caused to the applicant was not sufficient to warrant a departure from planning policies. The court further held that any inconsistency in decision-making was not sufficient to warrant a departure from planning policies.

Orders

Orders of the court

The application for review is dismissed The decision of the respondent 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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