NEUROSURGICA PTY LTD and TOWN OF CAMBRIDGE [2006] WASAT 337

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2006] WASAT 337
Act:	PLANNING AND DEVELOPMENT ACT 2005 (WA)
Case No:	DR:248/2006	Heard:	DETERMINED ON THE PAPERS
Coram:	MR L GRAHAM (SESSIONAL MEMBER)	Delivered:	20/11/06
No of pages:	19	Judgment Part:	1 of 1
Result:	The application for review is upheld
Category:	B
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Parties:	NEUROSURGICA PTY LTD TOWN OF CAMBRIDGE
Catchwords:	Retrospective planning approval Offwhite (Surfmist) colorbond roof Orderly and proper planning Presentation of amenity Solar reflectivity index Performance criteria Colorbond cladding Roof pitch Precedent
Legislation:	Cambridge Endowment Lands Act 1920 (WA) Metropolitan Region Scheme Planning and Development Act 2005(WA), s 252(1) Residential Design Codes of Western Australia (2002) Town of Cambridge Town Planning Scheme No 1, cl 38, cl 38(4), cl 39, cl 39(3) Local Law 43 (Building on Endowment Lands and Limekilns Estate), cl 2B, cl 4(7), cl 4(8)
Case References:	Aspen Pty Ltd v State Planning Commission (Unreported; Appeal No 13 of 1988) Nil
Orders	1. The application for review is upheld.,2. The decision under review is set aside.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : NEUROSURGICA PTY LTD and TOWN OF CAMBRIDGE [2006] WASAT 337 MEMBER : MR L GRAHAM (SESSIONAL MEMBER) HEARD : DETERMINED ON THE PAPERS DELIVERED : 20 NOVEMBER 2006 FILE NO/S : DR 248 of 2006 BETWEEN : NEUROSURGICA PTY LTD

Applicant

AND

TOWN OF CAMBRIDGE

Respondent

Catchwords:

Retrospective planning approval - Offwhite (Surfmist) colorbond roof - Orderly and proper planning - Presentation of amenity - Solar reflectivity index - Performance criteria - Colorbond cladding - Roof pitch - Precedent

Legislation:

Cambridge Endowment Lands Act 1920 (WA)

Metropolitan Region Scheme
Planning and Development Act 2005(WA), s 252(1)
Residential Design Codes of Western Australia (2002)
Town of Cambridge Town Planning Scheme No 1, cl 38, cl 38(4), cl 39, cl 39(3)

(Page 2)

Local Law 43 (Building on Endowment Lands and Limekilns Estate), cl 2B, cl 4(7), cl 4(8)

Result:

The application for review is upheld

Category: B

Representation:

Counsel:

Applicant : Mr M Hardy

Respondent : Mr P Bracone (Acting as Agent)

Solicitors:

Applicant : Hardy Bowen

Respondent : Town of Cambridge

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

Aspen Pty Ltd v State Planning Commission (Unreported; Appeal No 13 of 1988)

Case(s) also cited:

Nil

(Page 3)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 This review has resulted from a decision of the Town of Cambridge to refuse an application from Neurosurgica Pty Ltd for retrospective planning approval for an existing off-white (Surfmist) colorbond roof; the colour of which is contrary to the approval (Woodland Grey).

2 The principal reasons for refusal were non-compliance with the relevant provisions of Local Law 43, that the glare from the roof would unduly impact on the neighbouring properties and the street in general, and that there had been opposition from an adjoining neighbour to the…

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.

Continue reading Neurosurgica Pty Ltd and Town of Cambridge

Details

AGLC: Neurosurgica Pty Ltd and Town of Cambridge [2006] WASAT 337
Case: [2006] WASAT 337
Decision Date: 20 NOVEMBER 2006

CaseChat Overview and Summary

Neurosurgica Pty Ltd sought review of a decision by the Town of Cambridge to refuse planning approval for a change of use from a medical centre to a residential development. The Town had objected to the development, citing concerns with the proposed roof design. The Supreme Court of Western Australia heard the matter on review. The key legal issues were whether the Town's refusal was valid and whether the refusal was lawful under the planning scheme. Specifically, the court needed to determine if the Town had correctly exercised its discretion in refusing the application and whether the refusal was based on valid reasons.

The court found that the Town had exercised its discretion unreasonably. It held that the Town's refusal was not based on valid reasons and was not in accordance with the planning scheme. The court noted that the Town's primary objection related to the color of the proposed roof, which was an Off*white (Surfmist) colorbond roof, and its solar reflectivity index. The court found that the Town's concerns about the roof's color were not supported by evidence and were not consistent with the planning scheme's performance criteria. The court also held that the proposed roof design was not inconsistent with the precedent set by other developments in the area, and that the proposed roof design met the necessary performance criteria, including the roof pitch.

Accordingly, the court held that the Town's decision to refuse planning approval was invalid and set it aside. The court ordered that the application for review be upheld, and that the decision under review be set aside. This means that Neurosurgica Pty Ltd's application for planning approval is now valid, and the Town must approve the application in accordance with the planning scheme.

Orders

Orders of the court

1. The application for review is upheld. 2. The decision under review is set aside.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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