Martin v Western Australian Planning Commission - [2018] WASC 42

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: MARTIN -v- WESTERN AUSTRALIAN PLANNING COMMISSION [2018] WASC 42

CORAM: CHANEY J

HEARD: 16 JANUARY 2018

DELIVERED : 13 FEBRUARY 2018

FILE NO/S: GDA 12 of 2017

BETWEEN: DARREN OWEN MARTIN
First Appellant
LYNETTE DOREEN MARTIN
Second Appellant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

ON APPEAL FROM:
Jurisdiction              :  STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram  :MR M SPILLANE (SENIOR MEMBER)
Citation  :MARTIN and WESTERN AUSTRALIAN PLANNING COMMISSION [2017] WASAT 102
File No  :DR 288 of 2016

Catchwords:

Planning and development - Subdivision - Priority agricultural land - Significant physical division - Rural road - State planning policies - Whether inflexible application of policy

Legislation:

Nil

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

First Appellant              :     Mr P G McGowan & Ms L E Rowley
Second Appellant          :     Mr P G McGowan & Ms L E Rowley
Respondent:     Dr S J Willey & Mr J M Misso

Solicitors:

First Appellant              :     Rowley Legal
Second Appellant          :     Rowley Legal
Respondent:     State Solicitor for Western Australia

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

Bookara Holdings Pty Ltd and Western Australian Planning Commission [2015] WASAT 111
Fewster and Western Australian Planning Commission [2007] WASAT 79
Marshall v Metropolitan Redevelopment Authority [2015] WASC 226
Martin and Western Australian Planning Commission [2017] WASAT 102
Re Romato; Ex parte Mitchell James Holdings Pty Ltd [2001] WASCA 286

CHANEY J: On 15 June 2015, the appellants applied to subdivide Lot 17 (213) Manear Road, Rosa Brook (Lot 17) into two lots. The respondent refused the subdivision application on 26 August 2016. The appellants lodged an application for review with the State Administrative Tribunal (Tribunal) pursuant to s 251(1) of the Planning and Development Act 2005 (WA) (PD Act). On 21 July 2017, the Tribunal, comprised of a senior member, dismissed the application for review and affirmed the respondent's decision to refuse the subdivision application.[1] The appellants then sought leave of this court, pursuant to s 105(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), to appeal against the Tribunal's decision. On 29 September 2017, Martino J ordered that the application for leave to appeal be heard together with the appeal.
[1] Martin and Western Australian Planning Commission [2017] WASAT 102.
Although the appeal notice set out two grounds of appeal, the second proposed ground of appeal was not pursued by the appellants, and after leave to amend the first ground of appeal was given at the hearing of the matter, the sole ground of appeal was that 'the Tribunal erred in law in inflexibly applying Development Control Policy 3.4 resulting in a dismissal of the application for review'.
For the reasons which follow, there is no merit in the proposed ground of appeal, leave to appeal should be refused and the appeal dismissed.

The application for subdivision

The Tribunal described the subject land and the locality as follows:
Lot 17 is within the locality of Rosa BrookRosa Glen…

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] WASC 42
Decision Date: 13 FEBRUARY 2018

CaseChat Overview and Summary

In the matter of Martin versus the Western Australian Planning Commission, the court was called upon to determine whether the Commission acted within its authority when it denied a subdivision application on priority agricultural land. The applicant, Martin, sought to divide a property located in a rural area, but the Commission refused the application based on state planning policies regarding the preservation of priority agricultural land. The dispute was heard in the Supreme Court of Western Australia.

The legal issues before the court involved the interpretation and application of state planning policies, specifically those related to the protection of priority agricultural land. The primary question was whether the Commission's decision to deny the subdivision application was an inflexible application of policy, or whether it was a reasoned decision based on the specific circumstances of the case. Additionally, the court had to consider the extent to which the physical division of the land, including the presence of a rural road, influenced the decision.

In delivering the judgment, the court examined the state planning policies and the evidence presented by both parties. It was determined that the Commission's decision was not an inflexible application of policy, but rather a reasoned decision based on the particular circumstances of the case. The court found that the presence of a rural road and the overall impact on the surrounding area were significant factors in the Commission's decision. The court upheld the decision of the Western Australian Planning Commission, affirming that it was made in accordance with the applicable planning policies and the evidence presented.

As a result of the court's decision, Martin's application for subdivision of the priority agricultural land was dismissed. The court's ruling confirmed the Commission's authority to consider the specific circumstances of a case when applying state planning policies, and highlighted the importance of the physical division of the land and the impact on the surrounding area in such decisions.

Orders