Goyder and Walsh - [2009] WASAT 108

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: GOYDER and WALSH [2009] WASAT 108

MEMBER: JUSTICE J A CHANEY (PRESIDENT)

HEARD: 14 MAY 2009

DELIVERED : 2 JUNE 2009

FILE NO/S: DR 140 of 2009

BETWEEN: RICHARD GOYDER
JANINE GOYDER
DAVID THOMAS
RACHEL THOMAS
Applicants
AND
TERENCE WILLIAM JOSEPH WALSH
CHELSEA REBELLE WALSH
First Respondents
SHIRE OF PEPPERMINT GROVE
Second Respondent

Catchwords:

Town planning - Review by President of decision by nonlegally qualified member - Proposal to construct residence - Recently subdivided lot - Proposed house adjacent to house of heritage significance - Impact on heritage value - Relevance and weight to be attached to earlier subdivision of land - Whether Tribunal erred in taking account of consequences of subdivision - Whether permissible to have regard to relative impact of any other reasonable development of the land - Whether denial of procedural fairness

Legislation:

Planning and Development Act 2005 (WA), s 135, s 138(2), s 244
Residential Design Codes of Western Australia (2008), cl 6.3.2
Shire of Peppermint Grove Town Planning Scheme No 3, cl 5.1.1, cl 5.1.2, cl 5.1.3, cl 5.1.4, cl 6.3.2
State Administrative Tribunal Act 2004 (WA), s 3(1), s 27(2), s 36(1), s 37(3)

Result:

Application for review dismissed

Category: B

Representation:

Counsel:

Applicants:     Mr P McQueen and Ms M J Palmer
First Respondents         :     Self-represented
Second Respondent      :     Dr SJ Willey and Mr RJ Mascarenhas

Solicitors:

Applicants:     Lavan Legal
First Respondents         :     Self-represented
Second Respondent      :     Minter Ellison

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

Boulter and City of Subiaco [2007] WASAT 71
Freeman and City of Subiaco [2009] WASAT 89
SPB (Australia) Pty Ltd and Town of Claremont [2003] WATPAT 138
Walsh and Shire of Peppermint Grove [2009] WASAT 46

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Mr and Mrs Goyder and Mr and Mrs Thomas applied, under s 244 of the Planning and Development Act 2005 (WA), for a review by a judicial member of a decision by the Tribunal constituted by two non‑legally qualified members. The decision in question granted an approval of a residential development proposed by Mr and Mrs Walsh of land on the corner of Irvine Street and Venn Street, Peppermint Grove.
The applicants contended that the Tribunal had erred in law by having regard to, or giving too much weight to, the earlier subdivision of the land. The land on which the development was proposed was formally the area of the front garden of a house which was on the Shire of Peppermint Grove's heritage list. The effect of the proposed development would be to obscure the view of the heritage house from Irvine Street.
The applicants had been given leave to intervene in the original proceedings for a limited purpose. Mr and Mrs Walsh contended that they had no standing to seek a review under s 244. That contention was rejected.
The President of the Tribunal examined the approach that had been taken by the…

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: [2009] WASAT 108
Decision Date: 2 JUNE 2009

CaseChat Overview and Summary

Goyder and Walsh involved a dispute over a town planning decision. The applicants, Goyder, sought review of a decision made by the President of a planning tribunal concerning a proposal by Walsh to construct a residence on a recently subdivided lot. The proposed house was adjacent to a house of heritage significance, and the issue at hand was whether this proximity would impact the heritage value of the neighbouring property. The central legal questions centred on the relevance and weight to be given to the earlier subdivision of the land, the permissibility of considering the consequences of that subdivision, and whether the tribunal erred in taking these factors into account. Additionally, the applicants argued that they were denied procedural fairness.

The court examined whether the tribunal was correct in its assessment of the relative impact of the proposed development compared to any other reasonable development of the land. The applicants argued that the tribunal erred in considering the consequences of the subdivision and in assessing the impact of the proposed development. The court also considered whether the applicants were denied procedural fairness due to the tribunal's approach. In its reasoning, the court found that the tribunal had not erred in its assessment and had correctly considered the relevant factors. The court determined that the tribunal was entitled to take into account the impact of the proposed development in relation to the heritage significance of the neighbouring property, and that the applicants had not been denied procedural fairness. Consequently, the application for review was dismissed.

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

JUSTICE J

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Ratio Decidendi

Legal Principle Established

Established by: JUSTICE J

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