Miller and City Of Stirling

The matter between Miller and the City of Stirling was before the court, which considered the refusal of a development application for aged persons' housing. The dispute centred on whether the special provision for aged persons' dwellings, which was deleted from the City of Stirling District Planning Scheme No 2 after the development application was lodged but before it was determined, should apply to the proceedings. The court had to decide whether the special provision continued to apply and whether the applicant had an accrued right or power to have the application determined on the basis of the deleted special provision.

The legal issues involved interpreting the effect of the deletion of the special provision on the proceedings. The court considered whether the deletion of the special provision from the scheme had the effect of extinguishing any accrued right or power the applicant may have had to have the application determined on the basis of the deleted special provision. The court also needed to determine whether the special provision continued to apply in the determination of the proceedings.

The court held that the deleted clause 2.2.8 of the City of Stirling District Planning Scheme No 2 did not continue to apply in the determination of these proceedings. The court found that the deletion of the special provision had the effect of extinguishing any accrued right or power the applicant may have had to have the application determined on the basis of the deleted special provision. The court further held that the aged persons' dwellings development was not capable of approval as the minimum and average site areas for the dwellings were less than the minimum and average site areas prescribed by the Residential Design Codes of Western Australia (2002). The court adjourned the proceedings to a directions hearing to enable the applicant to consider whether to seek leave to amend the proposed development so that it is capable of approval having regard to the housing density provisions of the Residential Design Codes of Western Australia (2002).