Health Resorts Of Australasia Pty Ltd and Western Australian Planning Commission

Health Resorts of Australasia Pty Ltd (HRA) sought judicial review of a decision by the Western Australian Planning Commission (the Commission) that it required approval under cl 18 of the Peel Region Scheme for its proposed coastal development. The Commission had determined that the development exceeded the height restriction in the Scheme. The Supreme Court of Western Australia was tasked with determining whether the Commission had the jurisdiction to make this decision and whether the subsequent application for review of the decision was also made without jurisdiction. Additionally, the court had to consider the effect of an amendment to the Scheme on the right of HRA to proceed with the development.

The primary legal issue was whether the Commission had jurisdiction to determine that the proposed development required approval under cl 18 of the Peel Region Scheme. The court examined the relevant provisions of the Scheme and the legislative framework governing planning and development in Western Australia. It was noted that the Commission's approval was contingent on the height of the development, and whether this height exceeded the permitted limit under the Scheme. The court also considered the definition of "storey" and "mezzanine" in the context of the Scheme, as these terms were critical in determining the height of the proposed development.

The court held that the Commission lacked jurisdiction to approve the proposed development as the height restriction in the Peel Region Scheme did not apply to the proposed development. The amendment to the Scheme, which aimed to catch developments like the one proposed by HRA, did not affect the accrued right of HRA to proceed with the development without approval. The court found that the Commission's decision was made without jurisdiction and that the subsequent application for review of the decision was also made without jurisdiction. Consequently, the court granted the relief sought by HRA, declaring that it did not require approval for the proposed development under cl 18 of the Peel Region Scheme.

The court's decision resulted in a declaration that HRA did not require approval for the proposed development under cl 18 of the Peel Region Scheme. This outcome effectively allowed HRA to proceed with its development, free from the constraints imposed by the Commission's decision. The court's reasoning emphasised the importance of jurisdictional limits in planning and development decisions and highlighted the impact of legislative amendments on existing rights.