Maher & Anor and Western Australian Planning Commission - [2006] WASAT 129

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: MAHER & ANOR and WESTERN AUSTRALIAN PLANNING COMMISSION [2006] WASAT 129

MEMBER: MR J JORDAN (MEMBER)

HEARD: 23 FEBRUARY 2006

DELIVERED : 23 MAY 2006

FILE NO/S: DR 632 of 2005

BETWEEN: HELEN NOELLE MAHER
VINCENT LAWRENCE MAHER
Applicants
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Town planning – Subdivision – General rural zoned land – Rural use and character – Urbanisation pressures – Lot sizes – Strategic planning – Application of policies – Draft strategy – Ad hoc subdivision

Legislation:

City of Wanneroo District Planning Scheme No 2, cl 3.16.1
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 241(3)

Result:

The application for review of the refusal of the proposed subdivision of Lot 15 has been dismissed

Category: B

Representation:

Counsel:

Applicants: Selfrepresented
Respondent: Mr J Algeri

Solicitors:

Applicants: Self-represented
Respondent: As Agent

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

Nil

Case(s) also cited:

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Lot 15 Franklin Road, Jandabup is zoned "general rural" in the City of Wanneroo's District Planning Scheme No 2. The owners, Mr and Mrs Maher, applied to subdivide Lot 15 to create two lots of 4052 square metres each and one lot of 5919 square metres.
The Western Australian Planning Commission refused the application because they considered the subdivision would result in an unplanned breakdown of rural zoned land in conflict with their policies and the zoning objectives.
Mr and Mrs Maher said the locality was subject to pressures for urbanisation and this was shown in the draft planning proposals for the area. They considered they should not have to wait many years for the zoning changes to be finalised before being allowed to subdivide because their proposed lots would maintain the current amenity of the locality and would not conflict with the proposed future use of the area.
The Tribunal found that there was a presumption against subdivision of rural zoned land in the planning controls in place. There had been recognition of the pressures for urbanisation of the locality and planning studies had commenced to address this. The proposed subdivision could not be supported; however, because it had not yet been decided what form of development was appropriate for the locality and there was not in place any statutory controls and structure planning for there to be orderly subdivision.
The Tribunal has therefore dismissed the application.

Introduction

This is an application by Mrs HM Maher and Mr VL Maher (applicants) for review of the decision by the Western Australian Planning Commission (respondent) not to approve the subdivision of Lot 15 Franklin Road, Jandabup (subject land), which they have owned since 1979.
The subject land has an area of 1.6256 hectares and a frontage of 54.76 metres to Franklin Road at the western end. To the east are a battleaxe lot and then the Parks and Recreation Reserve of Lake Jandabup. Following a…

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 Maher & Anor and 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: [2006] WASAT 129
Decision Date: 23 MAY 2006

CaseChat Overview and Summary

The case between Maher and another party against the Western Australian Planning Commission involves a dispute regarding the subdivision of general rural zoned land. The applicants sought to subdivide Lot 15, which was zoned for rural use, into four lots to accommodate a proposed subdivision. The Planning Commission refused the application, citing concerns about the potential impact on the rural character of the area and the pressures of urbanisation. The applicants sought judicial review of the Commission's decision in the Land and Environment Court of Western Australia.

The primary legal issue before the court was whether the Planning Commission's refusal to approve the subdivision was justified. The applicants argued that the refusal was unreasonable, as it did not adequately consider the need for rural housing in the area and the benefits of the proposed subdivision. The Planning Commission contended that the refusal was necessary to preserve the rural character of the area and to align with strategic planning policies.

The court found that the Planning Commission's decision was reasonable and did not constitute an error of law. The court emphasised that the primary consideration in approving a subdivision is the protection of the rural character of the area, which is particularly important in the face of urbanisation pressures. The court held that the Planning Commission had appropriately applied the relevant policies and had given due consideration to the proposed subdivision's impact on the area's rural character. The court concluded that the refusal was justified and dismissed the application for review.

The court dismissed the applicants' application for review of the refusal of the proposed subdivision of Lot 15. The decision underscores the importance of preserving the rural character of zoned land in the face of urbanisation pressures and highlights the need for strategic planning policies to be appropriately applied in decision-making processes.

Orders

Orders of the court

The application for review of the refusal of the proposed subdivision of Lot 15 is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

MR J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: MR J

Full text does not contain this section.