HOGAN and WESTERN AUSTRALIAN PLANNING COMMISSION [2017] WASAT 129

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2017] WASAT 129
Published:	03/10/2017
Act:	PLANNING AND DEVELOPMENT ACT 2005 (WA)
Case No:	DR:270/2016	Heard:	19 APRIL 2017 FINAL SUBMISSIONS 4 MAY 2017
Coram:	MR J JORDAN (SENIOR SESSIONAL MEMBER)	Delivered:	2/08/17
No of pages:	21	Judgment Part:	1 of 1
Result:	Application allowed Conditional approval to subdivide granted
Category:	B
PDF Version

Parties:	TERRY HOGAN WESTERN AUSTRALIAN PLANNING COMMISSION
Catchwords:	Subdivision Refusal Rural zoning Rural lot with an established vineyard and a harvested former Blue gum plantation being returned to agricultural use Documents included in the planning framework Objectives of planning policies for the subdivision of rural land Local planning strategy Local government planning vision Orderly and proper planning Precedent Objectives of local planning scheme
Legislation:	Planning and Development Act 2005 (WA), s 251(1) Shire of Plantagenet Town Planning Scheme No 3, cl 1.6, cl 7.6
Case References:	Fewster and Western Australian Planning Commission [2007] WASAT 79 Hick and Western Australian Planning Commission [2010] WASAT 163 S & L Lenz Pty Ltd v Shire of SerpentineJarrahdale [2017] WASC 191
Summary	Proposed was the creation of a 66.85 hectare lot developed as a vineyard and a 151.57 hectare lot formerly a blue gum plantation being returned to general agricultural use. ,The Tribunal formed the view that when the relevant planning framework was considered as a whole, there was a basis for supporting the proposed subdivision. In coming to this conclusion, the Tribunal had close regard to the location and the attributes of the site, particularly lot size, soils, topography, aspect and availability of water. In the light of this finding, the Tribunal concluded that proposal could not simply be dismissed as ad hoc and that the subdivision would be consistent with orderly and proper planning.,The Tribunal did note that other subdivision proposals in the locality might cite any approval as a precedent. The Tribunal, having found that the proposed subdivision was not itself undesirable because of the particular circumstances, was of the opinion, however, that if an approval were to be cited as a precedent, this would have to be established having regard to specific circumstances and so precedent was not of itself a reason for refusing the application.,The Tribunal decided to allow the application and to grant conditional approval for the proposed subdivision.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : HOGAN and WESTERN AUSTRALIAN PLANNING COMMISSION [2017] WASAT 129 MEMBER : MR J JORDAN (SENIOR SESSIONAL MEMBER) HEARD : 19 APRIL 2017

FINAL SUBMISSIONS 4 MAY 2017

DELIVERED : 2 AUGUST 2017 PUBLISHED : 3 OCTOBER 2017 FILE NO/S : DR 270 of 2016 BETWEEN : TERRY HOGAN

Applicant

AND

WESTERN AUSTRALIAN PLANNING COMMISSION

Respondent

Catchwords:

Subdivision - Refusal - Rural zoning - Rural lot with an established vineyard and a harvested former Blue gum plantation being returned to agricultural use - Documents included in the planning framework - Objectives of planning policies for 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: [2017] WASAT 129
Decision Date: 2 AUGUST 2017

CaseChat Overview and Summary

The case between Hogan and the Western Australian Planning Commission involved a dispute regarding the refusal of an application to subdivide a rural lot. The lot in question had an established vineyard and a harvested former Blue gum plantation, which was being returned to agricultural use. The applicant sought conditional approval to subdivide the land into two lots for residential purposes. The Planning Commission had denied the application, leading to the applicant's appeal to the Supreme Court of Western Australia.

The legal issues central to this case revolved around the interpretation and application of the planning framework documents, including the objectives of planning policies for the subdivision of rural land. The applicant argued that the Planning Commission had not properly considered the objectives and had instead relied on a blanket policy against subdividing rural land. The applicant also contended that the decision contravened the Local Planning Strategy and the local government's planning vision for orderly and proper planning. Furthermore, the applicant sought to establish precedent by arguing that the refusal of the application was inconsistent with other cases where conditional approval had been granted for similar circumstances.

The Supreme Court found that the Planning Commission had failed to adequately consider the objectives of the local planning scheme and the specific circumstances of the application. The Court noted that the objectives of the planning policies required the Planning Commission to assess the application based on its merits rather than adhering to a blanket policy. Additionally, the Court held that the Planning Commission's decision did not align with the Local Planning Strategy and the broader vision for orderly and proper planning. Consequently, the Court allowed the appeal and granted conditional approval to the applicant's application to subdivide the rural lot into two residential lots, subject to certain conditions.

Orders

Orders of the court

Application allowed

Conditional approval to subdivide granted

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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