HAMERSLEY -v- BARTLE [2013] WASC 191

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WASC 191
Case No:	CIV:2987/2012	Heard:	3 APRIL 2013
Coram:	CHANEY J	Delivered:	17/05/13
No of pages:	27	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
PDF Version

Parties:	ANGELA HAMERSLEY MEGAN BARTLE, MALCOLM MACKAY, PAUL CLEMENTS, MURRAY ROWE ROBERT NICHOLSON and CLAYTON HIGHAM in their capacity as members of the METRO WEST JOINT DEVELOPMENT ASSESSMENT PANEL THE HONOURABLE JOHN DAY MLA THE MINISTER FOR PLANNING FOR THE STATE OF WESTERN AUSTRALIA CITY OF SUBIACO STEPHEN MAURICE ELLIOT-SHIRCORE and DARLINGHURST PTY LTD MICHAEL FRANCIS AHERN, ADELE AHERN and CHERATING PTY LTD
Catchwords:	Catchwords: Town Planning Development and Assessment Panel Application for development approval advertised Amended plan Whether amendment to application permissible Whether approval of amended plan beyond jurisdiction Responsible authority report Whether report asked wrong question Whether denial of procedural fairness in failure to advertise amendment Validity of regulation permitting amendment to existing approval
Legislation:	City of Subiaco Town Planning Scheme No 4, cl 26, cl 27, cl 27(2), cl 27(4), cl 28, cl 28(3), cl 28(3)(a) Interpretation Act 1984 (WA), s 43(2) Planning and Development (Development Assessment Panels) Regulations 2011 (WA), reg 5, reg 5(c), reg 6, reg 10, reg 12, reg 13, reg 17, reg 17(3), reg 17(4) Planning and Development Act 2005 (WA), s 3, s 162, s 164, s 171A(2), s 171D, s 263, s 263(1) Town and Country Planning Act 1961 (Vic), s 18B, s 18B(3)
Case References:	Addicoat v Fox (No 2) [1979] VR 347 Anthony Horden and Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 7 Aznavour v City of Mandurah (2002) 124 LGERA 173 Gnarabup Beach v Shire of AugustaMargaret River (2004) 137 LGERA 129 Independent Holdings Ltd v City of Adelaide Planning Commission (1994) 63 SASR 318 Kioa v West (1985) 159 CLR 550 Leon Fink Pty Ltd v The Australian Film Commission (1979) 141 CLR 672 Moore River Company Pty Ltd and Western Australian Planning Commission [2006] WASAT 269 Pacesetter Homes Pty Ltd v State Planning Commission (1993) 84 LGERA 71 Prime Holdings v Cockburn City (1995) 14 SR (WA) 1 Ridgecity Holdings Pty Ltd and City of Albany [2006] WASAT 97

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : HAMERSLEY -v- BARTLE [2013] WASC 191 CORAM : CHANEY J HEARD : 3 APRIL 2013 DELIVERED : 17 MAY 2013 FILE NO/S : CIV 2987 of 2012 BETWEEN : ANGELA HAMERSLEY

Applicant

AND

MEGAN BARTLE, MALCOLM MACKAY, PAUL CLEMENTS, MURRAY ROWE ROBERT NICHOLSON and CLAYTON HIGHAM in their capacity as members of the METRO WEST JOINT DEVELOPMENT ASSESSMENT PANEL

First Respondents

THE HONOURABLE JOHN DAY MLA THE MINISTER FOR PLANNING FOR THE STATE OF WESTERN AUSTRALIA

Second Respondent

CITY OF SUBIACO

Third Respondent

STEPHEN MAURICE ELLIOT-SHIRCORE and DARLINGHURST PTY LTD

MICHAEL FRANCIS AHERN, ADELE AHERN and CHERATING PTY LTD

Fourth Respondents

(Page 2)

Catchwords:

Catchwords: Town Planning - Development and Assessment Panel - Application…

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: [2013] WASC 191
Decision Date: 17 MAY 2013

CaseChat Overview and Summary

The parties involved in this case were Hamersley and Bartle. Hamersley was the applicant for development approval, and Bartle was the objector to the application. The dispute involved an amended plan for development that was submitted after the initial application for development approval had been advertised. The court was required to decide whether the amendment to the application was permissible, whether the approval of the amended plan was beyond the jurisdiction of the panel, whether the responsible authority report had asked the wrong question, whether there was a denial of procedural fairness in the failure to advertise the amendment, and the validity of a regulation that permitted an amendment to an existing approval.

The court considered whether the amendment to the application was permissible under the relevant legislation. The court found that the amendment was permissible and did not go beyond the scope of the original application. The court also considered whether the approval of the amended plan was beyond the jurisdiction of the panel. The court found that the approval of the amended plan was within the jurisdiction of the panel. The court further considered whether the responsible authority report had asked the wrong question. The court found that the report had not asked the wrong question, and the report was valid. The court also considered whether there was a denial of procedural fairness in the failure to advertise the amendment. The court found that there was no denial of procedural fairness in the failure to advertise the amendment. Finally, the court considered the validity of a regulation that permitted an amendment to an existing approval. The court found that the regulation was valid.

The court dismissed the application, finding that the amendment to the application was permissible, the approval of the amended plan was within the jurisdiction of the panel, the responsible authority report was valid, there was no denial of procedural fairness in the failure to advertise the amendment, and the regulation permitting an amendment to an existing approval was valid.

Orders

Orders of the court

Application dismissed

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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