KIMBER and WESTERN AUSTRALIAN PLANNING COMMISSION

[2007] WASAT 31

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION:   KIMBER and WESTERN AUSTRALIAN PLANNING COMMISSION [2007] WASAT 31

MEMBER:   JUSTICE M L BARKER (PRESIDENT)

HEARD:   DETERMINED ON THE DOCUMENTS

DELIVERED          :   7 FEBRUARY 2007

FILE NO/S:   DR 3 of 2007

BETWEEN:   GEOFF KIMBER

Applicant

AND

WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Review by President of determination of Tribunal upon a "matter involving a question of law" under Planning and Development Act 2005 (WA), s 244 - Two lot subdivision of rural zoned land - Subdivision application refused by Tribunal - Whether failure to give proper, genuine and realistic consideration to draft land use management strategy, local planning policy or existing pattern of development - Whether consideration of environmental character of site involved legal error - No error of law disclosed in determination - Application for review dismissed

Legislation:

Planning and Development Act 2005 (WA), s 244
State Administrative Tribunal Act 2004 (WA), s 3(1)

Result:

Application for review dismissed
Determination of Tribunal affirmed

Category:    B

Representation:

Counsel:

Applicant:     Ms C Richards (Acting as Agent)

Respondent:     Mr T Sharp

Solicitors:

Applicant:     Greg Rowe & Associates (Planning Consultants)

Respondent:     State Solicitor's Office

Case(s) referred to in decision(s):

Bojanich and Western Australian Planning Commission [2006] WASAT 315

Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291

Kimber and Western Australian Planning Commission [2006] WASAT 354

Williams and Western Australian Planning Commission [2005] WASAT 10

Williams v Minister for the Environment and Heritage (2003) 74 ALD 124

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

1. Mr Geoff Kimber, who was unsuccessful in seeking review by the Tribunal of the refusal of a subdivision application, sought review of the Tribunal's determination by the President upon a matter involving a question of law.

2. The President determined that the Tribunal had given proper, genuine and realistic consideration to a draft planning strategy, a local planning policy and the existing pattern of development.  The President also determined that the Tribunal's consideration of the environmental characteristics of the site did not involve any legal error.

3. The application for review was dismissed and the determination of the Tribunal was affirmed.

Application for review by President

1. On 4 January 2007, Mr Geoff Kimber filed an application under s 244 of the Planning and Development Act 2005 (WA) (PD Act) for review by the President of a determination made by the Tribunal on 6 December 2006 in which it refused Mr Kimber's application for the subdivision of an 8.1772 hectare rural zoned lot in Karoborup Road, Carabooda in the City of Wanneroo into two lots of 4.027 hectares and 4.1502 hectares: see Kimber and Western Australian Planning Commission [2006] WASAT 354. Section 244 enables the President to review a determination upon a "matter involving a question of law" that was made by the Tribunal when constituted without a legally qualified member as defined in s 3(1) of the State Administrative Tribunal Act 2004 (WA). The determination in question was made by the Tribunal when constituted by Sessional Member Mr L Graham who is not a legally qualified member.

2. Mr Kimber raises the following four grounds for review:

   "1.The applicant is of the view that the Tribunal has not given due consideration to the [Draft East Wanneroo Land Use and Water Management Strategy (draft strategy)] as a 'seriously entertained planning proposal'.

   2.The applicant is of the view that the Tribunal has not given due consideration to the City of Wanneroo's local planning policy regarding the subdivision of rural zoned land and places greater importance on the provisions of general State‑wide policies and planning documents developed by the respondent.

   3.The applicant is of the view that the Tribunal has given inappropriate weight to the site's environmental characteristics and made inaccurate assumptions regarding the suitability of subdivision contrary to the advice of the Department of the Environment and Conservation.

   4.The applicant is of the view that the Tribunal has not given due consideration to the existing pattern of development in the immediate area."

3. I will consider each of Mr Kimber's grounds for review in turn.  Grounds 1, 2 and 4, in effect, involve contentions that the Tribunal did not give proper, genuine and realistic consideration (Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 (Gummow J); Williams v Minister for the Environment and Heritage (2003) 74 ALD 124 (Wilcox J)) to the draft strategy, a local planning policy and the existing pattern of development. It is unclear what, if any, question of law is said to be involved in relation to ground 3. For the reasons set out below, I consider that there is no error of law disclosed in the determination of the Tribunal. The determination of the Tribunal is affirmed.

Consideration of the draft strategy

1. It is clear from Sessional Member Graham's reasons for decision that he gave proper, genuine and realistic consideration to the draft strategy and that he did not commit any error of law in relation to his assessment of it. It is apparent from par [12(b)], [30] and [41] of his reasons that the member accepted that the draft strategy was a seriously entertained planning proposal, and therefore a relevant matter for consideration in the exercise of planning discretion. Indeed, the member considered that the draft strategy was of "importance in the consideration of this matter": at [30]. It is apparent from par [31] and [32] that the member appreciated the nature, effect and relevance of the draft strategy. It is apparent from par [14(c)], [14(h)], [14(i)], [38], [39] and [60] and from par [13(e)], [33], [40] and [58] that the member gave consideration to both Mr Kimber's and the Western Australian Planning Commission's (Commission) arguments in relation to the weight to be given to the draft strategy in the circumstances of the case.

2. Having correctly determined that the draft strategy is a relevant matter for consideration, the weight to be given to the provisions of the draft strategy in the circumstances of the case was a matter entirely within the province of the member to determine for himself:  Williams and Western Australian Planning Commission [2005] WASAT 10 at [17]. It was reasonably open to the member not to give significant weight to the draft strategy in the circumstances of the case, because of his consideration that the extent of a wetland and associated vegetation "will be highly likely to influence the final recommendations of the Land Use and Water Management Strategy affecting the subject land and the adjacent property": at [4], [41] and [42].

3. In a subdivision review concerning a site which was also within the area of the draft strategy heard by Senior Member Mr D Parry on 4 and 5 October 2006 and determined ex tempore by the senior member on 5 October 2006 - that is after the hearing, but before the determination which is the subject of this review - the Tribunal similarly considered that, although the draft strategy was a seriously entertained planning proposal, it "cannot currently be given sufficient weight to warrant approval of the subdivision application in the exercise of planning discretion":  Bojanich and Western Australian Planning Commission [2006] WASAT 315 at [49]. In particular, the senior member considered that the endorsement and approval of the site in question being identified for rural living was not sufficiently certain or imminent as at the date of the Tribunal's determination to "enable the current planning controls to be put aside". At [50], the senior member observed that the Tribunal did not have the considered position of any of the endorsement and approval authorities in relation to the draft strategy before it as to whether they agree to the designation of the site in question, including a part of the site which was a Priority 2 groundwater source protection area, as possible rural living under the finally adopted strategy. Similarly, in the present case, it was reasonably open for the sessional member to consider a site specific circumstance, namely the presence of a wetland and associated vegetation, in relation to the weight to be given to the draft strategy.

4. The first ground for review does not disclose any error of law in the determination. 

Consideration of local planning policy

1. It is clear from the member's reasons for decision at [13(d)], [14(d)], [24], [25], [37], [57], [59] and [61] that he gave proper, genuine and realistic consideration to the local government's local planning policy. The relative weight to be given to the local planning policy and to the Commission's State‑wide policies and planning documents in the circumstances of the case was a matter for the sessional member. The conclusions to which he came were reasonably open to him and disclose no error of law.

Consideration of site's environmental characteristics

1. The sessional member found at [34] that 6.8 hectares out of the site's total area of 8.1772 hectares "is categorised as 'wetland' and would qualify as an 'environmentally sensitive area'".  Contrary to Mr Kimber's submission, it is apparent from [63] of the sessional member's reasons for decision that he was aware of and took into consideration the fact that the Department of Environment did not object to the subdivision.  The sessional member considered that this was "presumably on the basis that such activities as filling, clearing of vegetation or development proposals affecting the wetland could be controlled by the City of Wanneroo".  Nevertheless, the sessional member concluded at [64] as follows:

   "However, from the perspective of the Tribunal, and from photographic evidence available to it, the extent of the wetland and associated vegetation affects other adjacent lots and beyond, to the north and south of the subject lands.  Its presence is highly likely to influence the final recommendations in the [draft strategy] and there is no planning argument of sufficient weight at this time to support an ad hoc subdivision that could pre‑empt these proposals."

2. It was open to, and in fact incumbent upon, the sessional member to form an independent judgment as to whether the proposed subdivision was acceptable in light of all relevant environmental planning considerations.  The presence of an environmentally sensitive wetland over a large proportion of the site was self‑evidently an important matter for consideration.  It was reasonably open to the sessional member to conclude that the presence of the wetland and associated vegetation was highly likely to influence the final recommendations of the draft strategy and, therefore, to warrant refusal of the subdivision application at the date of determination.

3. Finally, although it is correct, as Mr Kimber submits, that the existence of the wetland was not identified as a specific issue in the Commission's statement of issues, facts and contentions in the proceedings, as the Commission submits, the wetland was clearly placed "in issue" to the extent that both the Commission's statement of issues, facts and contentions and the witness statement of Mr Damien Giudici discussed its existence and how that affected the suitability of the site for the proposed subdivision.

Consideration of existing pattern of development

1. It is apparent from [2], [13(b)], [14(b)], [14(k)], [43]‑[47], [56], [59] and [61] of his reasons that the sessional member identified the question of the prevailing lot size in the general locality as an issue for consideration, took into account the conflicting evidence and considered the arguments of each party in relation to the consistency of the proposed subdivision with the prevailing lot size. Plainly, therefore, he gave proper, genuine and real consideration to the existing pattern of development in the area.

Conclusion

1. Mr Kimber's grounds for review do not disclose any error of law in the determination of Sessional Member Graham.  Rather, they question the non-legal merits of the member's decision.  The determination of the Tribunal is, therefore, affirmed.

Orders

1. The Tribunal makes the following orders:

   1.The application for review is dismissed.

   2.The determination of the Tribunal Kimber and Western Australian Planning Commission [2006] WASAT 354 is affirmed.

   I certify that this and the preceding [17] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

   ___________________________________

   JUSTICE M L BARKER, PRESIDENT