NOSTREBOR HOLDINGS PTY LTD and SHIRE OF DENMARK [2014] WASAT 64

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2014] WASAT 64
Published:	10/06/2014
Act:	PLANNING AND DEVELOPMENT ACT 2005 (WA)
Case No:	DR:76/2014	Heard:	14 MAY 2014
Coram:	JUDGE D R PARRY (DEPUTY PRESIDENT)	Delivered:	14/05/14
No of pages:	15	Judgment Part:	1 of 1
Result:	Respondent has power to vary the density code in relation to the development application
Category:	B
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Parties:	NOSTREBOR HOLDINGS PTY LTD FRENESI PTY LTD SVEN JAMES ROBERTSON SHIRE OF DENMARK
Catchwords:	Town planning Mixed use commercial and residential development Preliminary issue Interpretation of planning scheme Whether there is power to vary density code designated or Scheme Map under provision of local planning scheme stating that '[w]here Residential development is proposed in conjunction with other development in the Commercial zone, Council shall determine the appropriate density code to apply for development requirement purposes'
Legislation:	Interpretation Act 1984 (WA), s 5, s 56(2) Shire of Denmark Town Planning Scheme No 3, cl 3.1.3, cl 3.2.1, cl 5.2.1, cl 5.2.3, cl 5.3.1, cl 5.3.2, cl 5.3.3 State Planning Policy 3.1 Residential Design Codes
Case References:	AB v State of Western Australia & Anor [2011] HCA 42; (2011) 244 CLR 390; (2011) 85 ALJR 1233 LandCorp and City of Stirling [2011] WASAT 202
Orders	On the application heard before Deputy President, Judge Parry on 14 May 2014, it is ordered that:,1. The preliminary issue is answered as follows:,The respondent has power to vary the density code in relation to the development application under cl 5.3.3 of the Shire of Denmark Town Planning Scheme No. 3. ,2. The matter is referred to mediation at the respondent's office on a date to be set.,3. By 16 May 2014 the applicant is to advise the Tribunal of mutually available dates for a one day mediation.
Summary	The Tribunal was called upon to determine whether the Shire of Denmark has power to vary the density code designated on the Scheme Map under the Shire of Denmark Town Planning Scheme No 3 (TPS 3) in relation to a development application proposing mixed use development on land zoned Commercial under TPS 3.,Clause 5.3.3 of TPS 3 states:,'Where Residential development is proposed in conjunction with other development in the Commercial Zone, Council shall determine the appropriate density code to apply for development requirement purposes'.,The Tribunal determined that, on its proper interpretation, cl 5.3.3 of TPS 3 authorises and requires the Shire of Denmark to determine the appropriate density code to apply for a mixed use, including residential development when a development application is made for such development in the Commercial zone, even if the Scheme Map designates a particular density coding for the land.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : NOSTREBOR HOLDINGS PTY LTD and SHIRE OF DENMARK [2014] WASAT 64 MEMBER : JUDGE D R PARRY (DEPUTY PRESIDENT) HEARD : 14 MAY…

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 NOSTREBOR Holdings Pty Ltd and Shire of Denmark

Details

AGLC: NOSTREBOR HOLDINGS PTY LTD and Shire Of Denmark [2014] WASAT 64
Case: [2014] WASAT 64
Decision Date: 14 MAY 2014

CaseChat Overview and Summary

The case involved NOSTREBOR Holdings Pty Ltd, the applicant, and the Shire of Denmark, the respondent. The dispute centred around the interpretation and application of the local planning scheme in relation to a proposed mixed-use commercial and residential development. The matter was heard in the Supreme Court of Western Australia. The applicant sought clarification and a determination on the respondent's authority to alter the density code for the proposed development, particularly in light of a clause in the planning scheme that provided Council the discretion to set the appropriate density code when residential development is proposed in conjunction with other commercial developments.

The central legal issue before the court was whether the Shire of Denmark possessed the power to vary the density code for the proposed development under the specific provision of the local planning scheme. This required an examination of the statutory language, the planning scheme's context, and the legislative intent behind the provision in question. The court had to determine whether the phrase 'determine the appropriate density code' granted the Council discretion to adjust the density code or if it was merely advisory.

In its decision, the court found that the phrase 'determine the appropriate density code' indicated a discretionary power vested in the Council. The court concluded that the language of the provision clearly granted the respondent the authority to vary the density code as per the circumstances of the proposed development. This interpretation aligned with the legislative intent to provide flexibility in zoning decisions, particularly in mixed-use developments. Consequently, the court ruled that the Shire of Denmark had the power to alter the density code in relation to the development application. The court's reasoning was based on a literal and contextual interpretation of the statutory language and the planning scheme's objectives.

The final order of the court was that the respondent, the Shire of Denmark, had the power to vary the density code in relation to the development application as proposed by the applicant. This decision provided clarity on the scope of the Council's discretion under the planning scheme and affirmed the Council's ability to determine the appropriate density code in cases involving mixed-use developments.

Orders

Orders of the court

Respondent has power to vary the density code in relation to the development application

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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