JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: JOHNSON -v- THE MINISTER FOR PLANNING [2018] WASC 334
CORAM: SMITH J
HEARD: 6 & 7 AUGUST 2018
DELIVERED : 2 NOVEMBER 2018
FILE NO/S: CIV 3049 of 2017
BETWEEN: IAN FREDERICK JOHNSON
Applicant
AND
THE MINISTER FOR PLANNING
First Respondent
CITY OF KALAMUNDA
Second Respondent
Catchwords:
Administrative law - Application for judicial review - Application for writ of certiorari and declaration - Planning and Development Act 2005 (WA) - Decisions of Minister for Planning to approve amendment of local planning scheme - Whether criteria specified in cl 5.16.1 of LPS3 to create a special use zone mandatory - Whether criteria specified in cl 5.16.1 a manner and form provision - Whether criteria specified in cl 5.16.1 inconsistent with Planning and Development Act and Regulations - Whether local government authority failed to consider or misconstrued the criteria in cl 5.16.1 - What constitutes 'locality' 'need' and 'amenity' considered - Minister not obliged to consider when approving an amendment to a local planning scheme whether the local government authority was satisfied the criteria specified in cl 5.16.1 had been satisfied - No jurisdictional error demonstrated
Legislation:
Environmental Protection Act 1986 (WA), s 48A
Interpretation Act 1984 (WA), s 43(1), s 43(3)
Local Government (Administration) Regulations 1996 (WA), reg 11, reg 11(d), reg 11(da)
Local Government Act 1995 (WA), s 5.70(1)
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), reg 45, sch 1 cl 16, sch 1 cl 21
Planning and Development Act 2005 (WA), s 69, s 69(1), s 69(1)(b), s 71, s 72, s 74, s 75, s 76, s 77A, s 77, s 78, s 79, s 80, s 81, s 83, s 84, s 85, s 86, s 87, s 87(1), s 87(2), s 87(2)(a), s 87(2)(b), s 123, s 123(1), s 256(1), s 256(5)(a), s 257A, s 257A(2), s 257A(3), s 257B, sch 7 cl 6
Shire of Kalamunda Local Planning Scheme, cl 1.3, cl 1.5(a), cl 1.6(a), cl 1.6(b), cl 2.2, cl 4.1.1, cl 4.3.1, cl 4.7, cl 5.2.3, cl 5.5.2, cl 5.5.3, cl 5.4.1, cl 5.9, cl 5.16.1, cl 5.16.1(a), cl 5.16.1(b), cl 5.16.1(c), cl 5.16.2, cl 7.1.1, cl 10.2(j), cl 10.2(n), cl 10.2(o), cl 10.2(q), cl 11.1.1(b), cl 11.2.1, cl 11.4(b)
Town Planning Regulations 1967 (WA), reg 13(2), reg 16, reg 17(1), reg 17(2), reg 18, reg 18(1), reg 25(1), reg 25(2), reg 25(2)(h), reg 25(2)(k), reg 25(2)(l), reg 25(2)(m), reg 27, Appendix B cl 4.7.1, Appendix B cl 4.7.2, Appendix B sch 4
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Applicant | : | Mr M C Hotchkin |
| First Respondent | : | Ms F B Seaward & Mr I A Repper |
| Second Respondent | : | Mr A J Power |
Solicitors:
| Applicant | : | Hotchkin Hanly Lawyers |
| First Respondent | : | State Solicitor for Western Australia |
| Second Respondent | : | City of Kalamunda |
Case(s) referred to in decision(s):
Attorney‑General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1
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- AGLC
- Johnson v Minister for Planning [2018] WASC 334
- Case
- [2018] WASC 334
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether the criteria specified in clause 5.16.1 were mandatory or discretionary, whether they constituted a manner and form provision, and whether they were inconsistent with the Planning and Development Act 2005 (WA) and associated regulations. Additionally, the court had to determine whether the local government authority failed to consider or misconstrued the criteria in clause 5.16.1, and what constituted 'locality', 'need', and 'amenity' in the context of the proposed special use zone.
The court held that the criteria in clause 5.16.1 were not mandatory but rather discretionary, meaning the Minister was not required to consider whether the local government authority was satisfied that the criteria had been met. The court also found that the criteria did not constitute a manner and form provision, and were not inconsistent with the relevant legislation or regulations. Furthermore, there was no evidence to suggest that the local government authority failed to consider or misconstrued the criteria in clause 5.16.1. The court concluded that the Minister’s decision did not demonstrate a jurisdictional error.
The court dismissed the application for judicial review, finding no error in the Minister's decision to approve the amendment to the local planning scheme. The court held that the Minister was not obliged to consider whether the local government authority was satisfied that the criteria in clause 5.16.1 had been met and that there was no evidence of a failure to consider or misconstrue those criteria. The applicant's challenge to the Minister's decision was therefore unsuccessful.
Orders
Orders of the court
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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
In his report to council on 20 April 2015, Mr Fowler‑Tutt directly addressed the criteria in cl 5.16.1 of LPS3 as follows:[49][49] Fowler‑Tutt Affidavit, pages 951 ‑ 953.STATUTORY AND LEGAL CONSIDERATIONS…9.Under the Scheme a Special Use zoning may be considered to accommodate a specific use with special conditions on land where the provisions of the zoning table are not sufficiently sensitive or comprehensive to achieve the same objective.10.In considering a Special Use zoning, the Council shall only make special provision by creating the Special Use zone where it considers it:(i)Will satisfy a specific need(s) in the locality where the subject land situated;(ii)Would enhance the amenity and the interest of the orderly and proper planning of the locality; and(iii)Would be specifically appropriate or desirable.11.In respect to the specific considerations required to be taken into account when considering a Special Use amendment, the following comments are made:Satisfying a specific need in the locality.It is considered that the term 'locality' should be interpreted as the district of the Shire of Kalamunda and not specifically the rural area of Wattle Grove. It is well demonstrated that the Shire of Kalamunda requires aged persons' accommodation, particularly high end care, to serve the current and future needs of the community.This issue is further expanded upon in the Independent Review of the proposal.Enhance the amenity and the interest of the orderly and proper planning of the locality.The amenity of the area would be enhanced by the prospect of developing such a facility in an area identified as an urban investigation thus ensuring the proper and orderly planning of the area.Would be specifically appropriate or desirable.The Local Planning Strategy adopted by the Shire and WA Planning Commission, amongst other matters, identified sites considered to present the best opportunity to deliver aged accommodation. The subject site was identified as having an opportunity to be considered for this purpose. As such, given this strategic basis, the amendment is considered appropriate and desirable.This issue is further expanded upon in the Independent Review of the proposal [the independent consultant's report].POLICY CONSIDERATIONS12.The Shire of Kalamunda Aged Accommodation Strategy notes the significant shortfall of residential care in the community.…STRATEGIC COMMUNITY PLANStrategic Planning Alignment17.Kalamunda Advancing: Strategic Community Plan to 2023OBJECTIVE 1.2 - To ensure the ageing population has housing choice.Strategy 1.2.1 - Collaborate with residential care providers to increase the number of residential care places within the Shire.Strategy 1.2.2 - Advocate and facilitate large parcels of land within the Shire to be established for aged care facilities.OBJECTIVE 4.2 - To effectively plan for the diverse range of housing stock that will be required to meet the social and economic needs of the Shire's changing demographicsStrategy 4.2.2 - Facilitate the delivery of suitable housing options for the aged population and people with special needs through a range of smaller and affordable homes and unit dwellings.SUSTAINABILITYSocial Implications18.If the Amendment is adopted by Council and subsequently approved by the Minister for Planning it will create the statutory environment to allow for development of Residential Aged Care. This will be of particular benefit to those residents of the Shire wishing to stay in the locality and to live in this type of facility.19.Objections from nearby land owners cite impacts on amenity, including traffic, noise and visual impact.Economic Implications20.Development of the site will inject a significant capital investment into the locality and will lead to local employment opportunities.Environmental Implications21.Environmental issues in respect to clearing and effluent disposal are largely resolved and are addressed in the Independent Review. It is noted that as the site is mostly cleared, there will be minimal impact on endemic vegetation.22.The Applicant has prepared a Local Water Management Strategy which has been approved by the Department of Water. The Strategy confirms the capability of the land to manage the onsite disposal of effluent associated with the future development of the site for integrated aged care.