Paintessa Developments Pty Ltd and Town Of East Fremantle

The case involved Paintessa Developments Pty Ltd as the applicant and the Town of East Fremantle as the respondent. The dispute centred on whether the proposed development, which involved the demolition of an existing building and the construction of three two-storey dwellings, required approval under the Town of East Fremantle Town Planning Scheme No 3 (TPS 3). A part of the land in question was reserved as a 'Primary Regional Road' under the Metropolitan Region Scheme and was not reserved or zoned under the local planning scheme, while the remainder of the land was zoned under TPS 3. The applicant sought to determine if development approval was necessary under TPS 3 for the portion of the development located on the land reserved as a 'Primary Regional Road', given that TPS 3 stated that all development on land zoned and reserved under the scheme required prior approval from the local government. The Western Australian Planning Commission had already granted development approval under the Metropolitan Region Scheme, raising the question of whether this scheme was inconsistent with the local planning scheme.

The primary legal issue for the court to decide was whether the Metropolitan Region Scheme was inconsistent with TPS 3, and thus, whether development approval under TPS 3 was required for the part of the proposed development that fell on the land reserved as a 'Primary Regional Road'. The court needed to examine the relationship between the two planning schemes and determine if there was a conflict that necessitated development approval under TPS 3. Additionally, the court had to consider the implications of the Metropolitan Region Scheme's approval on the local planning scheme's requirements for development approval.

The court found that the Metropolitan Region Scheme did not explicitly state that development on land reserved as a 'Primary Regional Road' required local government approval, which was a requirement under TPS 3 for land zoned and reserved under the scheme. Given that the Metropolitan Region Scheme did not conflict with TPS 3 in this respect, the court concluded that development approval was required under TPS 3 for the part of the proposed development that was on the land zoned under TPS 3. The court's reasoning was based on the interpretation of the respective planning schemes and their provisions regarding development approval. The court held that the Metropolitan Region Scheme's approval did not override the need for local government approval under TPS 3 for the portion of the development on land zoned under TPS 3.

The court ordered that development approval was required under TPS 3 for the part of the proposed development that was upon land zoned under TPS 3. This decision clarified the relationship between the Metropolitan Region Scheme and TPS 3 and confirmed that local government approval was necessary for the development in question.