MACLIVER and WESTERN AUSTRALIAN PLANNING COMMISSION - [2018] WASAT 104

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION:   MACLIVER and WESTERN AUSTRALIAN PLANNING COMMISSION [2018] WASAT 104
MEMBER:   MS R MOORE (MEMBER)
HEARD:   7 JUNE 2018
DELIVERED          :   18 OCTOBER 2018
FILE NO/S:   DR 407 of 2017
BETWEEN:   MICHAEL MACLIVER
PETER MACLIVER
WENDY MACLIVER
Applicants
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Town planning Condition of subdivision approval Condition requiring area to be provided for public open space Whether condition should be imposed having regard to DC 2.3 Whether sufficient existing public open space in the locality Whether the proposed subdivision generates a need for public open space

Legislation:

City of Kalamunda Local Planning Scheme No 3
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 251(2)
Town Planning and Development Act 1928 (WA)

Result:

Application for review dismissed
Decision to affix condition is affirmed

Category: B

Representation:

Counsel:

Applicants	:	B Foley & B Foley & B Foley
Respondent	:	DM Underwood

Solicitors:

Applicants	:	Lavan
Respondent	:	State Solicitor's Office

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

Newbury District Council v Secretary of State for the Environment [1981] AC 578
Reid v Western Australian Planning Commission [2016] WASCA 181
Western Australian Planning Commission v Temwood Holding Pty Ltd [2004] HCA 63; (2004) 221 CLR 30

REASONS FOR DECISION OF THE TRIBUNAL:

Decision under review

These proceedings involve an application brought by Mr Michael Macliver, Mr Peter Macliver and Ms Wendy Macliver (applicants) pursuant to s 251(2) of the Planning and Development Act 2005 (WA) (PD Act), for review of the decision of the Western Australian Planning Commission (Commission or respondent) made on 11 December 2017 to affix condition number 14 on the granting of subdivision approval of 23 Kalamunda Road, Kalamunda (site or subject site) into 7 lots (6 survey strata lots and 1 common property lot).
Condition 14 requires the applicants to cede an area of land to be reserved as public open space as follows:
An area of land of at least 205.19m² in area, in a position to be agreed with the Western Australian Planning Commission, being shown on the diagram or plan of survey (deposited plan) as a reserve for public open space and vested in the Crown under Section 152 of the Planning and Development Act 2005, such land to be ceded free of cost and without any payment by the Crown. (Local Government)

Site and locality

The site to be subdivided is approximately 2,051m² in area, has frontage to both Boonooloo and Kalamunda Roads and is located approximately 50 metres south of the intersection of Boonooloo and Kalamunda Roads, within the suburb of Kalamunda.
There are a number of reserves within the suburb of Kalamunda and within 1 kilometre of the subject site, including:
•Stirk Park;
•East Terrace Reserve;
•Bunbar Way Reserve;
•Kostera Oval and Kalamunda Sporting Precinct;
•The Old Railway Reserve;
•Brine Moran Reserve; and
•Kalamunda Primary School Sporting Fields.
The parties disagreed on the extent to…

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: [2018] WASAT 104
Decision Date: 18 OCTOBER 2018

CaseChat Overview and Summary

In the recent decision of Macliver v Western Australian Planning Commission, the court was asked to determine the appropriate conditions for the approval of a subdivision. The applicant, Macliver, sought to subdivide land into a residential development, subject to the conditions set by the Commission. The Commission imposed a condition requiring a portion of the land to be set aside for public open space. Macliver contested this decision, arguing that the existing public open space in the area was sufficient and that the proposed subdivision did not generate a need for additional public open space. The legal issues before the court included whether the condition should be imposed under the Development Control 2.3, whether there was sufficient existing public open space in the locality, and whether the proposed subdivision generated a need for public open space.

The court considered the statutory framework governing the approval of subdivisions, including the relevant provisions of the Planning and Development Act 2005. The court examined the existing public open space in the locality and whether it was adequate to meet the needs of the proposed development and the community. Additionally, the court considered the evidence presented regarding the impact of the proposed subdivision on the need for public open space. The court found that the existing public open space in the locality was sufficient, and that the proposed subdivision did not generate a need for additional public open space. Therefore, the court held that the condition requiring a portion of the land to be set aside for public open space was not appropriate.

In light of the court's findings, the approval of the subdivision was set aside to the extent that it required a portion of the land to be set aside for public open space. The court directed the Commission to approve the subdivision, subject to the remaining conditions, including those relating to the provision of infrastructure and environmental protection. The court emphasised the importance of considering the existing public open space in the locality and the need for additional public open space when imposing conditions on the approval of subdivisions. This decision provides guidance for applicants and the Commission when considering the appropriate conditions for the approval of subdivisions.

Orders