RE CAPOBIANCO; EX PARTE CASTELLI [1999] WASCA 218
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [1999] WASCA 218 | |
| THE FULL COURT (WA) | |||
| Case No: | CIV:2053/1998 | 17 MAY 1999 | |
| Coram: | MALCOLM CJ IPP J STEYTLER J | 22/10/99 | |
| 28 | Judgment 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
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.
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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