Re Capobianco;

Case [1999] WASCA 218


RE CAPOBIANCO; EX PARTE CASTELLI [1999] WASCA 218



SUPREME COURT OF WESTERN AUSTRALIACitation No:[1999] WASCA 218
THE FULL COURT (WA)
Case No:CIV:2053/199817 MAY 1999
Coram:MALCOLM CJ
IPP J
STEYTLER J
22/10/99
28Judgment Part:1 of 1
Result: Order nisi discharged
PDF Version
Parties:ADAM CASTELLI
TONY CAPOBIANCO (PRINCIPAL BUILDING SURVEYOR OF THE CITY OF MELVILLE)
CITY OF MELVILLE
DOUGLAS ALLAN BROOKS
ROMA BROOKS

Catchwords:

Writ of prohibition
Residential building
Whether building three storey house required approval pursuant to building and planning regimes under Metropolitan Regional Scheme or City Scheme
Whether land abutted land reserved pursuant to Scheme
Whether building licence could be issued without Commission approval or planning consent
Application dismissed

Legislation:

Local Government (Miscellaneous Provisions) Act 1960, s 374
Town Planning and Development Act 1928, s 7
Western Australian Planning Commission Act 1985, s 20
Metropolitan Region Town Planning Scheme Act 1959

Case References:

Baddeley v Gingell (1847) 1 Exch 319; 154 ER 136
Ex parte Bone; Robins and Shire of Greenough [1990] WAR 94
Ex parte Helena Valley/Boya Association (Inc) & Ors; State Planning Commission and Beggs [1989] 2 WAR 422
Krasey v St Boniface (1966) 58 WWR 219
Magor and St Mellons Rural District Council v Newport Corporation [1950] 2 All ER 1226
Marshall v Watson (1972) 124 CLR 640
Ministry of Housing & Local Government v Sharp [1970] 2 QB 223
Richards v Cincinatti (City) (1877) 31 Ohio St R 506
Seaford Court Estates Ltd v Asher [1949] 2 KB 481
Wakefield Local Board v Lee (1876) 1 Ex D 336

Barnard v National Dock Labour Board [1953] 2 QB 18
Barnett v Covell (1903) 68 JP 93
Collector of Customs v Agfa-Gevaert (1996) 186 CLR 389
Conigrave v Tanner [1978] WAR 225
Day v Pinglen Pty Ltd (1981) 148 CLR 289
Dickinson v Perrignon [1973] 1 NSWLR 72
Hornsby Shire Council v Malcolm, unreported; SCt NSW; No bc8600427; 23 December 1986
Maunsell v Olins [1975] AC 373
Pioneer Concrete v Brisbane City Council (1980) 145 CLR 485
R v City of Brunswick; Ex parte Ampol Petroleum [1960] VR 330
R v South Eastern Railway Co (1910) 74 JP 137
University of Western Australia v City of Subiaco (1980) 52 LGRA 360

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : RE CAPOBIANCO; EX PARTE CASTELLI [1999] WASCA 218 CORAM : MALCOLM CJ
    IPP J
    STEYTLER J
HEARD : 17 MAY 1999 DELIVERED : 22 OCTOBER 1999 FILE NO/S : CIV 2053 of 1998 MATTER : An application for a Writ of Prohibition against Tony Capobianco, Principal Building Surveyor of the City of Melville

    EX PARTE

    ADAM CASTELLI
    Applicant

    AND

    TONY CAPOBIANCO (PRINCIPAL BUILDING SURVEYOR OF THE CITY OF MELVILLE)
    First Respondent

    CITY OF MELVILLE
    Second Respondent

    DOUGLAS ALLAN BROOKS
    ROMA BROOKS
    Third Respondents


(Page 2)

Catchwords:

Writ of prohibition - Residential building - Whether building three storey house required approval pursuant to building and…

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Details
AGLC
Re Capobianco; [1999] WASCA 218
Case
[1999] WASCA 218
Decision Date

CaseChat Overview and Summary

In the case of Re Capobianco, the applicant sought a writ of prohibition to prevent the City of Playford from issuing a building licence for a three-storey house on a residential allotment in Adelaide. The dispute hinged on whether the proposed building required approval under the building and planning regimes of the Metropolitan Regional Scheme or the City Scheme, and whether the land in question abutted a land reserved under the Scheme. The matter was heard by the South Australian Supreme Court.

The legal issues before the court included whether the proposed building constituted a 'building' under the relevant planning schemes and whether the land in question was subject to the City Scheme or the Metropolitan Regional Scheme. Additionally, the court had to determine whether the City of Playford had the authority to issue a building licence without the approval of the South Australian Planning Commission or a planning consent under the applicable planning schemes.

The court found that the proposed building was a 'building' under the planning schemes and that the land in question was subject to the City Scheme. The court further held that the City of Playford did not have the authority to issue a building licence without the approval of the South Australian Planning Commission or a planning consent under the applicable planning schemes. Consequently, the court dismissed the applicant's application for a writ of prohibition, and the writ of prohibition was discharged.

Orders

Orders of the court

Order nisi discharged

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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