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

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

Application for review by President

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…

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: [2007] WASAT 31
Decision Date: 7 FEBRUARY 2007

CaseChat Overview and Summary

The case involved a review by the President of a determination made by the Western Australian Planning Tribunal (the Tribunal) concerning a two-lot subdivision of rural zoned land. The applicant, Mr. Kimber, had applied for a subdivision, which was refused by the Tribunal. The applicant sought a review of the Tribunal's decision, arguing that the Tribunal failed to properly consider certain planning documents and the environmental character of the site, thus committing an error of law.

The primary legal issue was whether the Tribunal had erred in law by not giving proper, genuine, and realistic consideration to the draft land use management strategy, a local planning policy, and the existing pattern of development, as well as the environmental character of the site. Mr. Kimber contended that the Tribunal's failure to adequately consider these factors constituted a legal error. The court was required to determine whether the Tribunal's decision contained any legal errors warranting review.

In assessing the Tribunal's determination, the court found that the Tribunal had indeed given proper, genuine, and realistic consideration to the draft strategy, as well as the other planning documents and environmental factors. The court concluded that the Tribunal's assessment of the draft strategy was comprehensive, acknowledging its importance but ultimately determining that it did not warrant significant weight in the context of the application. The court held that it was reasonably open to the Tribunal to consider site-specific circumstances, such as the presence of a wetland and associated vegetation, in weighing the relevance of the draft strategy. Consequently, the court found no error of law in the Tribunal's determination.

The court dismissed the application for review, affirming the Tribunal's decision. The Tribunal's determination that the subdivision application should be refused was upheld, and the application for review was dismissed without any further orders.

Orders

Orders of the court

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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. 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. 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]. 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.