Marshall v The Town Planning Appeal Tribunal of Western Australia

Case •

[2003] WASC 175

•

25 AUGUST 2003

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   MARSHALL & ANOR -v- THE TOWN PLANNING APPEAL TRIBUNAL OF WESTERN AUSTRALIA [2003] WASC 175

CORAM:   MCKECHNIE J

HEARD:   25 AUGUST 2003

DELIVERED          :   25 AUGUST 2003

FILE NO/S:   CIV 1792 of 2003

BETWEEN:   INGRID MARSHALL

RAYMOND MARSHALL
Applicants

AND

THE TOWN PLANNING APPEAL TRIBUNAL OF WESTERN AUSTRALIA
Respondent

Catchwords:

Town planning - Zoning - True copy of Scheme showing zoning - Prerogative writs - Lengthy delay - Turns on own facts

Legislation:

Nil

Result:

Application for leave refused

Category:    B

Representation:

Counsel:

Applicants:     In person

Respondent:     Mr R M Mitchell

Solicitors:

Applicants:     In person

Respondent:     State Crown Solicitor

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

Marshall v Minister for Planning and Infrastructure [2003] WASCA 67

Case(s) also cited:

Nil

  1. MCKECHNIE J:  This is an application by the applicants in person for a notice of originating motion for writ of certiorari on various grounds.  They seek to challenge a decision of the Town Planning Appeal Tribunal made on 24 November 1995 in Appeal No 14 of 1995.

  2. The applicants, as an alternative, seek leave to appeal against that decision.  The respondent who, by direction of Pullin J, was served with this application does not, in terms, take any point as to the correct procedure.  The applicants also would seek to add to their grounds, Ground 4: "That there has been jurisdictional error by the Town Planning Appeal Tribunal."

  3. In a number of actions over the years the applicants have proceeded in relation to what they assert to be the zoning of their land.  Their lot falls within the City of South Perth and they assert that at the relevant time it was not covered by a zoning.

  4. In Marshall v Minister for Planning and Infrastructure [2003] WASCA 67, the Full Court considered specifically the question of the appropriate zoning and, without quoting, it is sufficient to say that Parker J analysed what was then put before the Court as to what the zoning was. What he said is the factual foundation the applicants advance for the view that there had been an error concerning the zoning of the land under the City's Town Planning Scheme No 5. Parker J delineated the various matters in relation to the evidence before the Full Court before concluding at [27]:

    "For the reasons given it has not been demonstrated on the material before this Court there is reason to conclude that the land is zoned other than Residential - R by TPS5, or that there is an adequate basis on which that view is arguable."

  5. The applicants seek to set aside or to challenge the determination of the Tribunal on 24 November 1995 where the Tribunal concluded:

    "… the commission can properly rely on the table in the R Codes as the basis for subdivision.  As well, the policy of departure as an acceptable guideline to the exercise of discretion by the commission, the R Codes can be relied upon as the fundamental basis for establishing subdivision patterns in residential areas, and the commission is entitled to exercise their discretion to depart sparingly to maintain the integrity of an existing subdivision pattern which reflects the R Coding."

  6. The challenge which is now mounted has as its fundamental basis that there was no "R" Coding and indeed no zoning in relation to the land. 

  7. There are a number of general matters before I come to the evidence.  As I pointed out to the applicants in oral argument, the prospects of succeeding on an application for a writ of certiorari after such a delay are zero, in part because time has marched on, and there is now indeed a new town planning scheme.  The prospects for an application for leave to appeal may be slightly more hopeful, but only slightly, after such a time.  There would have to be cogent evidence explaining why there was such a delay and why the decision of the tribunal was wrong.

  8. This morning counsel for the Minister for the Planning Commission has put into evidence two sets of plans: first, what is asserted to be the Scheme Map, City of South Perth Town Planning Scheme No 5; and, secondly, the latest Town Planning Scheme No 6.  The tender of these plans was opposed by the applicants who point out that there are three official maps.  However, they are properly certified and of their own force become evidence.

  9. Turning to Town Planning Scheme No 5, the residential zones are shown as a bold colour with a heavy outline.  That colour, together with the marking "R15", is shown on the Town Planning Scheme map as encompassing the applicants' land.

  10. Although the applicants make the point that there may be other plans that show something different, I am entitled to accept, and I do accept, the evidence put before me, because it is certified that it is a true copy of the scheme, final approval to which was endorsed by the Minister for Planning and Infrastructure on 27 August 1986.

  11. As I say, that true copy clearly shows without any doubt to my mind that the land the subject of the application is within the area zoned "R15".  Having observed that document I reach the same conclusion as Parker J did, with respect, in relation to the documents before the Full Court. 

  12. My conclusion is that there is simply no arguable case of error and the application should therefore be refused. 

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