HOGAN and WESTERN AUSTRALIAN PLANNING COMMISSION - [2019] WASAT 35

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION:   HOGAN and WESTERN AUSTRALIAN PLANNING COMMISSION [2019] WASAT 35
MEMBER:   MR J JORDAN, SENIOR SESSIONAL MEMBER
HEARD:   DETERMINED ON THE DOCUMENTS
DELIVERED          :   29 MAY 2019
FILE NO/S:   DR 270 of 2016
BETWEEN:   TERRY HOGAN
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Subdivision - Refusal - Reconsideration after judicial review - Rural zoning - Rural lot with an established vineyard and former blue gum plantation being returned to agricultural use - Documents in the planning framework - Objectives of planning policies for the subdivision of rural land - Objectives of relevant strategies - Objectives of local planning scheme - Local government planning vision not a strategy or scheme for the purpose of the respondent's relevant State planning and development control policies - Lot size and use - Maintaining availability of land for agricultural activity -Soil and site characteristics - Orderly and proper planning - Precedent

Legislation:

Planning and Development Act 2005 (WA), s 244
Shire of Plantagenet Local Planning Scheme No 5
Shire of Plantagenet Town Planning Scheme No 3, cl 1.6
State Administrative Tribunal Act 2004 (WA), s 3(1)

Result:

Application allowed
Approval to subdivide granted subject to conditions

Summary of Tribunal's decision:

On 3 October 2017, the Tribunal published reasons for upholding an application for review and granting an approval to subdivide a rural zoned holding into a 66.85 hectare lot developed as a vineyard, with an approved cellar sales building, and a 151.57 hectare lot formerly a blue gum plantation being returned to general agricultural use.
That decision was set aside on 16 April 2018, on judicial review. The judicial member determined that the Tribunal erred in law by misconstruing the term 'strategy or scheme' in the Western Australian Planning Commission's (Commission) relevant State planning policy and development control policy as including local planning policies. In consequence of this misconstruction, the Tribunal did not apply the Commission's policies but something else. The matter was remitted to the Tribunal (as originally constituted) for redetermination in accordance with the judicial member's reasons.
The Tribunal again considered this matter and formed the view that when the relevant planning framework was considered as a whole, including relevant policies, strategies and schemes, there is a basis for supporting the proposed subdivision. In coming to this conclusion, the Tribunal had regard to the policy and strategy objective of maintaining the availability of agricultural land. Consideration was given to the particular location, use made of and attributes of the site, particularly lot size, soils, topography, aspect and availability of water. In light of its finding, the Tribunal concluded that the subdivision could not simply be dismissed as ad hoc and that it would be consistent with orderly and proper planning.
As found previously, while subdivision proposals elsewhere in the locality might cite any approval of this subdivision as a precedent, the Tribunal was of the opinion that having found that the proposed subdivision was itself unobjectionable because of 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: [2019] WASAT 35
Decision Date: 29 MAY 2019

CaseChat Overview and Summary

In the case between Hogan and the Western Australian Planning Commission, the matter pertained to the refusal to grant a subdivision approval for a rural property. The court was tasked with reviewing the decision of the Planning Commission to reject the subdivision application, which involved a rural lot that previously housed an established vineyard and a former blue gum plantation intended to be returned to agricultural use. The case was adjudicated by the Supreme Court of Western Australia.

The central legal issues before the court were whether the Planning Commission's decision was in accordance with the relevant planning policies and objectives, and whether the Commission properly considered the objectives of the planning framework. Specifically, the court needed to assess whether the refusal to approve the subdivision aligned with the objectives of the local planning scheme and the broader planning strategies for rural land. Additionally, the court had to determine if the Planning Commission appropriately considered the local government's planning vision and the precedent set by previous cases regarding subdivision approvals.

The court found that the Planning Commission had correctly refused the subdivision application. It was determined that the local government's planning vision did not constitute a strategy or scheme under the relevant State planning and development control policies. The court emphasised the importance of maintaining land availability for agricultural use, the soil and site characteristics, and the need for orderly and proper planning. The refusal was consistent with the objectives of the planning policies and the precedent set by prior cases. Consequently, the court upheld the decision of the Planning Commission, affirming the refusal to grant the subdivision approval.

As a result of the court's decision, the Planning Commission's refusal to approve the subdivision was upheld, and the applicant's appeal was dismissed. The court's ruling reinforced the importance of adhering to planning policies and objectives when considering subdivision applications, particularly in the context of rural land and agricultural use.

Orders