Loxton & Anor and City of Fremantle

The case involved Loxton and another applicant, who were appealing a decision by the City of Fremantle regarding a condition of approval for their development. The dispute centred around the requirement to increase the setback to the southern wall of the living/dining room and the requirement to reduce the wall plate height of bed 3. The applicants argued that these conditions were unreasonable and unnecessary, as they did not contribute to the overshadowing of the adjoining property. They also claimed that the accuracy of the plans was not in question. The court was tasked with determining whether the exceedance of a deem-to-comply requirement was an appropriate measure for assessing whether the development satisfied the relevant objective or demonstrated compliance with relevant design principles.

The court examined the statutory framework governing town planning and development in Western Australia. It considered the relevant legislation and guidelines, as well as the specific circumstances of the case. The court found that the City of Fremantle had not adequately demonstrated how the conditions imposed on the applicants' development were necessary to achieve the objectives of the planning scheme or to comply with relevant design principles. The court also noted that the accuracy of the plans was not disputed, and that the overshadowing of the adjoining property was not a significant issue. As a result, the court concluded that the conditions imposed by the City of Fremantle were unreasonable and not an appropriate measure for assessing compliance with the planning scheme.

In light of the above findings, the court allowed the application for review and varied the decision of the City of Fremantle. The court determined that the conditions imposed on the applicants' development were not necessary to achieve the objectives of the planning scheme or to comply with relevant design principles. The court emphasised that the accuracy of the plans was not in question and that the overshadowing of the adjoining property was not a significant issue. The final orders of the court reflected its determination that the conditions imposed by the City of Fremantle were unreasonable and not an appropriate measure for assessing compliance with the planning scheme. The court varied the decision of the City of Fremantle and allowed the application for review.