O'CONNOR and TOWN OF VICTORIA PARK

In the case of O'Connor and Town of Victoria Park, the dispute arose from the refusal of a development application for a funeral parlour by the Town Planning Appeal Tribunal. The applicant sought an extension of time to commence a review of this refusal under the Town Planning and Development Act 1928 (WA), section 66. The primary issue before the court was whether the commencement of a section 66 review constituted the "commencement of a proceeding" and if so, whether the court should exercise its discretion to extend the time for initiating the review. Additionally, the court needed to determine if the refusal was based on a jurisdictional fact, specifically whether the proposed funeral parlour use was consistent with the objectives and purposes of the relevant zone.

The Court of Appeal, led by Spigelman CJ, examined the relevant legislation, including the Town Planning and Development Act 1928 (WA) and the Town Planning Scheme No 1 (TPS1). Spigelman CJ noted the confusion in terminology surrounding 'jurisdiction' and 'jurisdictional facts', and referred to the authoritative High Court decision in Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135. The Chief Justice held that the characterisation of a proposed development in an environmental planning instrument is not necessarily a jurisdictional fact unless it mandates a particular outcome. In this case, the finding that the funeral parlour use was not consistent with the purpose of the Local Centre Zone was not a jurisdictional fact but rather an adjudication made during the inquiry.

The court concluded that the refusal to approve the development application was not based on a jurisdictional fact and that the time for initiating the review could be extended. The reasoning followed from the construction of TPS1, which indicated that the consistency of an unlisted use with the objectives and purposes of the relevant zone was not a jurisdictional determination. Instead, it was a fact that was adjudicated upon during the inquiry.

The final orders of the court would need to be examined for specific details, but it is clear that the court granted the extension of time for the commencement of the review and clarified the nature of the jurisdictional fact in the context of the Town Planning and Development Act 1928 (WA).