LITTLE and WESTERN AUSTRALIAN PLANNING COMMISSION

[2008] WASAT 191

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION:   LITTLE and WESTERN AUSTRALIAN PLANNING COMMISSION [2008] WASAT 191

MEMBER:   MR D R PARRY (SENIOR MEMBER)

HEARD:   DETERMINED ON THE DOCUMENTS

DELIVERED          :   25 AUGUST 2008

FILE NO/S:   DR 400 of 2006

BETWEEN:   GARY WILLIAM LITTLE

Applicant

AND

WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Town planning - Subdivision - Endorsement of deposited plan - Review of condition - Fill and drainage

Legislation:

Planning and Development Act 2005 (WA), s 145, s 251(4), s 251(5)

Result:

Application for review dismissed
Refusal to endorse deposited plan affirmed

Category:    B

Representation:

Counsel:

Applicant:     In person

Respondent:     Ms CA Ide

Solicitors:

Applicant:     Self-represented

Respondent:     State Solicitor's Office

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

1. Mr Little sought review of the refusal to endorse a deposited plan for an 18 lot subdivision and review of one of the conditions of subdivision approval requiring that the land be filled and/or drained.  The Tribunal determined that this condition is reasonable and appropriate.  As Mr Little has not complied with this condition, and with a range of other conditions of subdivision approval, the application for review was dismissed and the decision refusing to endorse the deposited plan was affirmed.

Introduction

1. These proceedings involve an application brought by Mr Gary Little, pursuant to s 251(4) and s 251(5) of the Planning and Development Act 2005 (WA) (PD Act) for review of the decision of the Western Australian Planning Commission (Commission) to refuse to endorse a deposited plan of subdivision in relation to Pt Lot 482 Haines Street, Merredin (site) and for review of a condition of subdivision approval which requires that the site be filled and/or drained.

Background

1. On 12 October 2004, by consent, the Town Planning Appeal Tribunal granted subdivision approval for the subdivision of the site into 18 lots, ranging in area from 865 square metres to 891 square metres, and roads, subject to 13 conditions.  Condition 5 states:

   The land be filled and/or drained at the appellant's cost, to the satisfaction of the Western Australian Planning Commission, and any easements and/or reserves necessary for the implementation thereof, be provided by the appellant free of cost. (LG)

2. On 13 March 2007, Mr Little submitted a deposited plan of subdivision to the Commission for its endorsement under s 145 of the PD Act. On 16 March 2007, the Commission refused to endorse the deposited plan as Mr Little had not demonstrated compliance with condition 5. However, it is common ground that Mr Little has also failed to comply with a range of other conditions of subdivision approval, including conditions 1, 2 and 3, which relate to the construction of roads to service the approved lots, and conditions 9, 10 and 12, which relate to the provision of services.

3. In these proceedings, Mr Little seeks review, pursuant to s 251(5) of the PD Act, of condition 5 of the subdivision approval and, pursuant to s 251(4) of the PD Act, of the Commission's decision to refuse to endorse the deposited plan. However, Mr Little does not seek review of any of the other conditions of subdivision approval with which he has not complied.

Consideration of application for review

1. Mr Little has failed to present any cogent argument as to why condition 5 should be deleted from the subdivision approval.  Mr Little says that there were extensive geotechnical surveys of the site and locality conducted many years ago and, therefore, that it would be "nothing less than onerous, vexatious and reticent" to require compliance with condition 5.  However, the Shire of Merredin, which is the relevant local government, cannot confirm whether any geotechnical survey was undertaken for the site and, in any case, it appears that Mr Little has imported a large amount of fill onto part of the site.  Mr Little also refers to three decisions of the Tribunal which are of no assistance in this case.

2. At the time of subdivision approval, the site was undulating, and generally lower than the abutting roads.  Condition 5 is reasonable and appropriate to ensure that the site is capable of development for residential purposes without causing adverse impacts on adjoining properties.  It is appropriate and reasonable that the site is filled and/or drained to the satisfaction of the Commission prior to the endorsement of the deposited plan.

3. Mr Little has also failed to comply with a number of other conditions of subdivision approval, including conditions 1, 2 and 3, which relate to construction of roads, and conditions 9, 10 and 12, which relate to the provision of services to the lots.  These conditions should be complied with before endorsement of the deposited plan.

4. It follows that the application for review should be dismissed and the decision of the Commission to refuse to endorse the deposited plan should be affirmed.

Orders

1. The Tribunal makes the following orders:

   1.The application for review is dismissed.

   2.The decision of the respondent to refuse to endorse a deposited plan of subdivision for Pt Lot 482 Haines Street, Merredin is affirmed.

I certify that this and the preceding [10] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MR D R PARRY, SENIOR MEMBER