JOHNSTON and WESTERN AUSTRALIAN PLANNING COMMISSION - [2013] WASAT 94

JOHNSTON and WESTERN AUSTRALIAN PLANNING COMMISSION [2013] WASAT 94

Last Update: 26/07/2013

JOHNSTON and WESTERN AUSTRALIAN PLANNING COMMISSION [2013] WASAT 94
Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2013] WASAT 94
Published:	21/06/2013
Act:	PLANNING AND DEVELOPMENT ACT 2005 (WA)
Case No:	DR:283/2012	Heard:	5 MARCH 2013
Coram:	MR J JORDAN (MEMBER)	Delivered:	15/03/2013
No of Pages:	11	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	SHELAH JOHNSTON WESTERN AUSTRALIAN PLANNING COMMISSION
Catchwords:	Town planning Subdivision Refusal Swan Valley Planning Act 1995 (WA) Area B within Swan Valley Planning objectives for Area B Protection of viticulture Encouragement of tourist facilities consistent with maintaining rural character Original lot less than 4 hectares Subdivision proposed to facilitate tourist development Capacity for viticulture Impact of local environment
Legislation:	City of Swan Local Planning Scheme No 17, cl 4.2.19(d) Metropolitan Region Scheme Planning and Development Act 2005 (WA), s 251(2) State Administrative Tribunal Act 2004 (WA), s 79 Swan Valley Planning Act 1995 (WA), s 4, s 8
Case References:	SinAusBell Pty Ltd v Western Australian Planning Commission [2006] WASAT 266
Orders:	On the application heard before Member James Jordan on 15 March 2013, it is ordered that: 1. The application for review is dismissed. 2. The decision of the Western Australian Planning Commission dated 18 July 2012 to refuse the application for approval to subdivide Lot 23 Neuman Road, Herne Hill is endorsed.
Summary:	The site is located at the eastern margin of Area B within the Swan Valley as defined by the Swan Valley Planning Act 1995 (WA). The site has on it a house and buildings and is used for grazing. Proposed was the creation of a lot of 8,706m2 containing a house and outbuildings and a lot of 1.627 hectares. The purpose of the subdivision was stated to be to facilitate the development of tourist related activities and accommodation. This was because of the marginal suitability of the site for viticulture, the lack of such facilities in the locality, the adverse environmental impacts on residential use because of the nearby quarry and use of local roads by heavy vehicles. The objectives for Area B within the Swan Valley are directed to protecting viticulture, maintaining the rural character and also to encourage tourist facilities that do not detract from these objectives. The objectives also provide that subdivision into lots of less than 4 hectares is only to be considered where consistent with the Area B objectives. The Tribunal determined that the protection of viticulture referred not only to not removing sites from viticulture use, but also to the effect other uses that might be allowed would have on existing neighbouring viticulture. The Tribunal found that the proposed subdivision had the potential to impact on local rural character and was not necessary before consideration might be given to what tourist uses might be compatible with viticulture. The application for…

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 94
Decision Date: 15 MARCH 2013

CaseChat Overview and Summary

The case involved Johnston, the applicant, and the Western Australian Planning Commission, the respondent. The dispute centred on the refusal by the Commission to approve a subdivision of a lot in Area B of the Swan Valley, as designated by the Swan Valley Planning Act 1995 (WA). The applicant sought to subdivide the lot to facilitate a tourist development, despite the lot being less than 4 hectares, which is generally below the threshold for subdivision in this area. The primary concern was whether the proposed subdivision aligned with the planning objectives for Area B, particularly those relating to the protection of viticulture and the encouragement of tourist facilities that maintain the rural character of the region.

The central legal issue was whether the proposed subdivision complied with the Swan Valley Planning Act 1995 (WA) and the associated planning objectives. Specifically, the court needed to determine whether the subdivision would adversely affect the capacity for viticulture in the area and whether it would disrupt the rural character essential for maintaining the region's appeal as a tourist destination. The court also had to consider the potential impact of the subdivision on the local environment and whether these impacts were consistent with the planning objectives for Area B.

In reaching its decision, the court examined the evidence and arguments presented by both parties. It concluded that the proposed subdivision would likely compromise the capacity for viticulture and potentially disrupt the rural character of the area. Furthermore, the court found that the environmental impacts of the subdivision were not in line with the planning objectives for Area B. Consequently, the court dismissed the application, upholding the Commission's decision to refuse the subdivision. The court's decision was based on the need to protect the viticultural and rural character of Area B, in accordance with the statutory planning objectives.

Orders

Orders of the court

Application dismissed

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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