Macri v Western Australian Planning Commission - [2014] WASC 153

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: MACRI -v- WESTERN AUSTRALIAN PLANNING COMMISSION [2014] WASC 153

CORAM: KENNETH MARTIN J

HEARD: 20 MARCH 2014

DELIVERED : 9 MAY 2014

FILE NO/S: GDA 13 of 2013

MATTER :An appeal and application for leave to appeal pursuant to Order 65 of the Rules of the Supreme Court

BETWEEN: ANNA MACRI
First Applicant
GUISEPPE MACRI
Second Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

ON APPEAL FROM:
Jurisdiction              :  STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram  :MR P McNAB (SENIOR MEMBER)
Citation  :MACRI and WESTERN AUSTRALIAN PLANNING COMMISSION [2013] WASAT 157
File No  :DR 402 of 2012

Catchwords:

Appeal - Planning law - Preliminary issue decided by State Administrative Tribunal - Subdivision of rural land with abattoirs - Conditional approval by planning authority to subdivision - Objection to conditions - SAT holds conditions valid and permissible - Applicants seek leave to challenge asserted error of law in SAT

Legislation:

State Administrative Tribunal Act 2005 (WA), s 105

Result:

Leave to appeal refused

Category: B

Representation:

Counsel:

First Applicant              :     Mr M Hotchkin
Second Applicant          :     Mr M Hotchkin
Respondent:     Mr I A Repper

Solicitors:

First Applicant              :     Hotchkin Hanly
Second Applicant          :     Hotchkin Hanly
Respondent:     State Solicitor for Western Australia

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

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Dunbar v Commissioner of Police [2007] WASAT 90
Macri v WAPC [2013] WASAT 157
Paridis v Settlement Agents Supervisory Board of Western Australia [2007] WASCA 97; (2007) 33 WAR 361
The Match Group v Metropolitan South West Joint Development Assessment Panel [2014] WASCA 50
Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30

KENNETH MARTIN J: This is an application for leave to appeal a decision of the State Administrative Tribunal (Senior Member P McNab).
In brief summary, the West Australian Planning Commission (WAPC) gave conditional approval to a subdivision application by the applicants on 20 August 2012 seeking the subdivision of the single lot 5164 Leggoe Road, Beaufort River, into two lots of 38.4 (Lot A) and 123.4 (Lot B) hectares respectively.
Currently situated on lot 5164 is the Beaufort River Meats abattoir, which includes three waste water treatment ponds. The abattoir is classified as licensed premises under the Environmental Protection Act 1986 (WA). There are also four existing residences with ancillary structures on the lot.
Lot 5164 is zoned regional rural under the Shire of Woodanilling Town Planning Scheme No 1.
The proposed subdivision as sought by the applicants would separate abattoir waste water treatment ponds and the abattoir manager's residence (all on proposed Lot A) from three other existing residences on the residue of the subject land.
It is not controversial that the purpose of the subdivision application by the Macris was to facilitate the sale of their abattoir business upon the proposed, discrete Lot A.
The executory contract of sale embodying a proposed conditional contract of…

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.

Keep reading for free

Create a free CaseChat account to read Macri v Western Australian Planning Commission and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] WASC 153
Decision Date: 9 MAY 2014

CaseChat Overview and Summary

Macri and others appealed against a decision of the State Administrative Tribunal of Western Australia, which had determined that the Western Australian Planning Commission had not erred in law in imposing conditions on the subdivision of their rural property. The applicants sought leave to appeal against the SAT’s decision, contending that the SAT had erred in law by holding that the conditions imposed on the subdivision were valid and permissible. The applicants’ rural land was zoned for agriculture and was proposed to be subdivided for the purpose of establishing abattoirs. The Western Australian Planning Commission granted conditional approval to the subdivision, which the applicants subsequently objected to. The SAT determined that the conditions imposed were valid and permissible, leading the applicants to seek leave to challenge this decision.

The court was required to decide whether the SAT had erred in law in finding that the conditions imposed by the Western Australian Planning Commission on the subdivision of the applicants’ rural property were valid and permissible. This involved examining the legal framework within which the SAT had exercised its jurisdiction and whether it had applied the correct principles in reaching its decision. The applicants contended that the SAT had failed to properly consider the legal standards applicable to the imposition of conditions on the subdivision and had thus erred in law.

The court found that the SAT had applied the correct legal principles and had not erred in law in finding that the conditions imposed on the subdivision were valid and permissible. The court held that the SAT had considered the relevant statutory provisions and had applied them correctly in determining that the conditions were within the powers of the Western Australian Planning Commission. The court also held that the SAT had properly exercised its discretion in upholding the conditions imposed. Accordingly, the applicants’ application for leave to appeal was dismissed, and the decision of the SAT was upheld.

The court dismissed the applicants’ appeal and affirmed the decision of the SAT. The applicants were not granted leave to appeal against the SAT’s determination that the conditions imposed on the subdivision of their rural property were valid and permissible. The court held that the SAT had correctly applied the relevant legal principles and had not erred in law in reaching its decision. The applicants’ appeal was dismissed with costs.

Orders