MACRI and WESTERN AUSTRALIAN PLANNING COMMISSION - [2013] WASAT 157

MACRI and WESTERN AUSTRALIAN PLANNING COMMISSION [2013] WASAT 157

Last Update: 01/10/2013

MACRI and WESTERN AUSTRALIAN PLANNING COMMISSION [2013] WASAT 157
Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2013] WASAT 157
Published:	25/09/2013
Act:	PLANNING AND DEVELOPMENT ACT 2005 (WA)
Case No:	DR:402/2012	Heard:	13 AUGUST 2013
Coram:	MR P McNAB (SENIOR MEMBER)	Delivered:	13/08/2013
No of Pages:	10	Judgment Part:	1 of 1
Result:	Preliminary question resolved in respondent's favour
Category:	B
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	GUISEPPE MACRI ANNA MACRI WESTERN AUSTRALIAN PLANNING COMMISSION
Catchwords:	Town planning Subdivision application Preliminary issue Validity of condition Conditions imposed on subdivision Two lot subdivision Abattoir on rural land Four residences on parent lot Land use conflict between abattoir and residences WAPC approved subdivision WAPC imposed condition on title warning prospective purchaser of one lot of potential land use conflicts Whether other condition imposed adjusting boundary between lots to ameliorate land use conflicts was permissible Condition followed environment protection licensing instrument's boundary Buffer zone effect of adjusted boundary Adjusted boundary expanded size of one lot Adjusted boundary effectively grouped two closest residences with abattoir Adjusted boundary grouped two furthest residences away from abattoir Whether condition imposed for a valid planning purpose Tribunal upholding validity of condition
Legislation:	Planning and Development Act 2005 (WA)
Case References:	Carter & Anor and Western Australian Planning Commission [2006] WASAT 138 Downs-Stoney and Western Australian Planning Commission [2008] WASAT 178 Fairborn and Western Australian Planning Commission [2012] WASAT 181 Madeo and Western Australian Planning Commission [2008] WASAT 281 Price and Western Australian Planning Commission [2007] WASAT 26 Schofield and Western Australian Planning Commission [2012] WASAT 135 Williamson and Western Australian Planning Commission [2011] WASAT 94
Summary:	The Tribunal was asked to rule on whether a condition could be imposed on the subdivision of certain rural land which adjusted the boundary of the proposed subdivision to take into account potential land use conflicts flowing from the presence of four existing residences established near an abattoir located on rural land. The applicants had not challenged an accompanying condition requiring a notice on the title of one of the lots (Lot B, proposed to contain two residences, those furthest away from the abattoir) alerting prospective owners of potential land use conflicts arising from the abattoir's odour, noise, dust and light emissions, matters which might affect amenity. The applicants had conceded that effectively there were already land use conflicts occurring as between the abattoir and residential premises. The Western Australian Planning Commission had approved the subdivision of the land into two lots but had partly used a licence boundary found in an environment protection licensing instrument (regulating the abattoir's operations) to create, in effect, a buffer between the abattoir and two associated residences on one lot (Lot A) and the other two residences on the other subdivided lot (Lot B). The effect of the applicants' proposed boundary would be to keep only one residence associated with the abattoir, the three other residences (including one close to the…

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: [2013] WASAT 157
Decision Date: 13 AUGUST 2013

CaseChat Overview and Summary

The matter involved an appeal by Macri against the Western Australian Planning Commission. The dispute centered around the validity of certain conditions imposed on a subdivision approval granted by the Commission. The specific condition in question involved an adjustment to the boundary between two lots, intended to mitigate potential conflicts between the use of an abattoir on one lot and residential use on the other. The State Administrative Tribunal (SAT) had previously upheld the validity of the condition, and the SAT's decision was the subject of appeal before the court.

The court was required to determine whether the condition imposed by the Western Australian Planning Commission was permissible under the relevant planning legislation. The central issue was whether the boundary adjustment condition served a valid planning purpose and whether it was within the Commission's authority to impose such a condition. The court had to consider the potential land use conflicts and the impact of the boundary adjustment on these conflicts, as well as whether the condition aligned with relevant environmental licensing requirements and the overarching objectives of the planning legislation.

The court found that the condition imposed by the Western Australian Planning Commission was valid. The boundary adjustment effectively managed the potential conflicts between the abattoir and the residential properties by aligning with the buffer zone stipulated in an environmental protection licensing instrument. The adjusted boundary expanded the size of one lot and grouped the two closest residential properties with the abattoir, while the two furthest residences were grouped away from the abattoir. This boundary adjustment served to mitigate the land use conflicts and was deemed a valid planning measure. The court held that the condition was within the Commission's authority and served a legitimate planning purpose.

The court's decision resolved the preliminary question in favour of the Western Australian Planning Commission, affirming the validity of the condition imposed on the subdivision. The tribunal's earlier decision was upheld, and the appeal was dismissed. The court's ruling confirmed that the boundary adjustment condition was a permissible measure to address land use conflicts and aligned with the relevant environmental and planning objectives.

Orders

Orders of the court

Preliminary question resolved in respondent's favour

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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