HILL and WESTERN AUSTRALIAN PLANNING COMMISSION - [2013] WASAT 195

HILL and WESTERN AUSTRALIAN PLANNING COMMISSION [2013] WASAT 195

Last Update: 23/01/2014

HILL and WESTERN AUSTRALIAN PLANNING COMMISSION [2013] WASAT 195
Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2013] WASAT 195
Published:	28/11/2013
Act:	PLANNING AND DEVELOPMENT ACT 2005 (WA)
Case No:	DR:67/2013	Heard:	DETERMINED ON THE DOCUMENTS
Coram:	MR P McNAB (SENIOR MEMBER)	Delivered:	29/08/2013
No of Pages:	13	Judgment Part:	1 of 1
Result:	Preliminary issues determined in favour of respondent; subdivision refused
Category:	B
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	BENJAMIN DALLAS HILL CHARLES HILL WESTERN AUSTRALIAN PLANNING COMMISSION
Catchwords:	Town planning Subdivision application Preliminary issues Two lot subdivision in Albany Scheme states subdivision should not proceed unless it accords with an approved local structure plan No such local structure plan yet in existence Whether subdivision is capable of approval Whether clauses in scheme can be read down or construed to permit proposed subdivision Whether related clauses invalid Whether scheme amendment valid Tribunal holding intent of scheme clear and unambiguous Tribunal finding conflict between Planning and Development Act 2005 (WA) and proposed subdivision No jurisdiction to approve subdivision No jurisdiction to quash scheme amendment Application for review dismissed Observations on costs in unmeritorious cases
Legislation:	City of Albany Town Planning Scheme No 1A, cl 4.36H, cl 4.36I, cl 4.36N, cl 4.36O Planning and Development Act 2005 (WA), s 138, s 138(2), s 138(3) Residential Design Codes of Western Australia
Case References:	Landpark Holdings Pty Ltd v Western Australian Planning Commission [2007] WASAT 130 Rocca & Anor v Western Australia Planning Commission [2007] WASAT 110
Summary:	The applicants owned land in Yakamia in the City of Albany. They wished to subdivide their large lot into two smaller parcels for residential development. The City of Albany's town planning scheme said that land in the Future Urban Zone (as this land was) was not to be developed, used, or subdivided, otherwise than in accordance with an approved structure plan. No such plan yet existed in respect of this land. The Planning and Development Act 2005 (WA) did not permit the subdivision of land where to do so, as here, would conflict with the provisions of a local town planning scheme. Amongst other arguments, it was submitted by the applicants that the relevant scheme clauses could be read down or otherwise interpreted so as to permit the subdivision to take place. The Tribunal rejected the various arguments put forward on behalf of the applicants, describing them as fanciful and unmeritorious. The language, intent and effect of the scheme were plain and unambiguous. The combined effect of the scheme and the statute meant that the subdivision could not be approved. The application for review was therefore dismissed.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : HILL and WESTERN AUSTRALIAN PLANNING COMMISSION [2013] WASAT 195 MEMBER : MR P McNAB (SENIOR MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 29 AUGUST 2013 PUBLISHED : 28 NOVEMBER 2013

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] WASAT 195
Decision Date: 28 NOVEMBER 2013

CaseChat Overview and Summary

The case between Hill and the Western Australian Planning Commission involved a dispute regarding a subdivision application in Albany. The applicant sought to divide a property into two lots, but the proposed subdivision was subject to conditions set out in a scheme. The scheme specified that the subdivision should not proceed unless it conformed to an approved local structure plan, which was not yet in existence. The central issue before the court was whether the subdivision could be approved under the current circumstances, and if certain clauses in the scheme could be interpreted or amended to allow for the proposed subdivision. Additionally, the court had to determine if related clauses in the scheme were valid and whether a proposed amendment to the scheme was lawful.

The court examined the intent and language of the scheme, considering whether it could be read in a manner that would permit the subdivision despite the absence of an approved local structure plan. The Tribunal had previously found that the scheme's intent was clear and unambiguous, and that there was a conflict between the Planning and Development Act 2005 (WA) and the proposed subdivision. The court concluded that it did not have jurisdiction to approve the subdivision under the existing scheme conditions. Furthermore, the court found that it lacked jurisdiction to quash the amendment to the scheme. As a result, the application for review was dismissed, with observations made on the appropriateness of awarding costs in unmeritorious cases.

In summary, the court upheld the preliminary issues in favour of the respondent and refused the subdivision. The determination confirmed that the scheme's conditions could not be read down or construed to permit the proposed subdivision, and the amendment to the scheme was deemed valid. The final orders reflected these findings, with the preliminary issues resolved in favour of the Planning Commission, and the subdivision application denied.

Orders

Orders of the court

Preliminary issues determined in favour of respondent; subdivision refused

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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