LEE and WESTERN AUSTRALIAN PLANNING COMMISSION [2008] WASAT 100

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2008] WASAT 100
Act:	PLANNING AND DEVELOPMENT ACT 2005 (WA)
Case No:	DR:406/2007	Heard:	DETERMINED ON THE DOCUMENTS
Coram:	MR D R PARRY (SENIOR MEMBER)	Delivered:	13/05/08
No of pages:	11	Judgment Part:	1 of 1
Result:	Approval of the proposed subdivision would conflict with cl 23 of the Shire of Greenough Town Planning Scheme No 3 – Waggrakine Development Scheme Proposed subdivision is not capable of approval unless local government has been given a copy of the plan of subdivision under s 142 of the Planning and Development Act 2005 (WA) and has not made any objection under that section
Category:	B
PDF Version

Parties:	RODNEY LEE WESTERN AUSTRALIAN PLANNING COMMISSION
Catchwords:	Town planning Subdivision application Preliminary issue Whether subdivision application is capable of approval Whether approval of subdivision conflicts with provision of local planning scheme Provision of local planning scheme precludes subdivision of unsewered land Sewer not available or feasible Whether condition requiring arrangement with local government for provision of sewer is appropriate and reasonable Whether approval is consistent with general intent of local planning scheme Whether local government has not made any objection
Legislation:	Planning and Development Act 2005 (WA), s 135, s 138, s 138(2), s 138(3), s 142, s 145(1), s 145(2), s 238(4), s 251(3) Shire of Greenough Town Planning Scheme No 3 - Waggrakine Development Scheme, cl 16, cl 23, cl 24, cl 41, cl 42
Case References:	Landpark Holdings Pty Ltd and Western Australian Planning Commission [2007] WASAT 130 Western Australian Planning Commission and Diggins [2008] WASAT 9
Orders	1. The preliminary issue is answered as follows:,"(1) Approval of the proposed subdivision would conflict with cl 23 of the Shire of Greenough Town Planning Scheme No 3 - Waggrakine Development Scheme.,(2) The circumstances in s 138(3)(a), (b), (c), (d) and (f) of the Planning and Development Act 2005 (WA) are not relevantly established such that an approval may be given under s 135 of the Planning and Development Act 2005 to the proposed subdivision that conflicts with cl 23 of TPS 3.,(3) The Tribunal is not satisfied, on the evidence presented to it, that the exception set out in s 138(3)(e) of the Planning and Development Act 2005 is established.",2. The proceedings are listed for a directions hearing at 9 am on 21 May 2008 in order to enable the respondent to establish whether the Shire of Greenough has objected to the proposed subdivision or, if that cannot be established, to require the respondent to forward a copy of the proposed plan of subdivision to the City of Geraldton-Greenough for objections and recommendations under s 142 of the Planning and Development Act 2005.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : LEE and WESTERN AUSTRALIAN PLANNING COMMISSION [2008] WASAT 100 MEMBER : MR D R PARRY (SENIOR MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED…

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: [2008] WASAT 100
Decision Date: 13 MAY 2008

CaseChat Overview and Summary

Lee brought a challenge against a decision of the Western Australian Planning Commission regarding a subdivision application. The application sought to subdivide land located within the Waggrakine Development Scheme, Shire of Greenough Town Planning Scheme No 3. The dispute centred on whether the proposed subdivision could be approved, whether it conflicted with provisions of the local planning scheme, and whether the local government had objected to the proposal. The Planning and Development Act 2005 (WA) was the primary legislation governing the planning process in this case.

The court was required to determine several legal issues. The first was whether the proposed subdivision was capable of approval under the Planning and Development Act 2005. Secondly, it needed to be established whether the approval of the proposed subdivision would conflict with a provision of the local planning scheme. Thirdly, the court had to decide whether the circumstances in section 138(3) of the Act applied to allow for an approval despite the conflict with the local planning scheme. The fourth issue was whether the proposed condition requiring an arrangement with the local government for the provision of a sewer was appropriate and reasonable. Finally, the court had to determine whether the approval of the proposed subdivision was consistent with the general intent of the local planning scheme and whether the local government had objected to the proposal.

The court found that the proposed subdivision would conflict with clause 23 of the Shire of Greenough Town Planning Scheme No 3. This clause precluded the subdivision of unsewered land. The court also found that the circumstances in section 138(3) of the Planning and Development Act 2005 were not established, so an approval could not be given under section 135 of the Act to the proposed subdivision that conflicted with clause 23 of the local planning scheme. The court was not satisfied that the exception set out in section 138(3)(e) of the Act was established. The court further directed that the proceedings be listed for a directions hearing to enable the respondent to establish whether the Shire of Greenough had objected to the proposed subdivision or, if that could not be established, to require the respondent to forward a copy of the proposed plan of subdivision to the City of Geraldton-Greenough for objections and recommendations under section 142 of the Planning and Development Act 2005.

The court's final orders were that the preliminary issue be answered as outlined above, and the proceedings be listed for a directions hearing to enable the respondent to establish whether the Shire of Greenough had objected to the proposed subdivision or to require the respondent to forward a copy of the proposed plan of subdivision to the City of Geraldton-Greenough for objections and recommendations.

Orders

Orders of the court

1. The preliminary issue is answered as follows: "(1) Approval of the proposed subdivision would conflict with cl 23 of the Shire of Greenough Town Planning Scheme No 3 - Waggrakine Development Scheme. (2) The circumstances in s 138(3)(a), (b), (c), (d) and (f) of the Planning and Development Act 2005 (WA) are not relevantly established such that an approval may be given under s 135 of the Planning and Development Act 2005 to the proposed subdivision that conflicts with cl 23 of TPS 3. (3) The Tribunal is not satisfied, on the evidence presented to it, that the exception set out in s 138(3)(e) of the Planning and Development Act 2005 is established." 2. The proceedings are listed for a directions hearing at 9 am on 21 May 2008 in order to enable the respondent to establish whether the Shire of Greenough has objected to the proposed subdivision or, if that cannot be established, to require the respondent to forward a copy of the proposed plan of subdivision to the City of Geraldton-Greenough for objections and recommendations under s 142 of the Planning and Development Act 2005.

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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