Reid v Western Australian Planning Commission - [2023] WASC 110

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   REID -v- WESTERN AUSTRALIAN PLANNING COMMISSION [2023] WASC 110
CORAM:   ARCHER J
HEARD:   14, 28 & 30 JUNE, 1 & 7 JULY 2022 & FURTHER SUBMISSIONS IN AUGUST & SEPTEMBER 2022
DELIVERED          :   5 APRIL 2023
FILE NO/S:   CIV 2277 of 2021
BETWEEN:   JIM REID
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
CITY OF GOSNELLS
Other Party

Catchwords:

Judicial review - Construction of planning legislation and planning schemes - Power to approve proposed development - Metropolitan Regional Scheme - Meaning of 'have regard to' - Jurisdictional condition or mandatory consideration - Must proposed development be 'consistent' with the MRS zone

Legislation:

Planning and Development Act 2005 (WA)

Result:

Application for judicial review dismissed

Category: A

Representation:

Counsel:

Applicant	:	K M Pettit SC & C M Fisher
Respondent	:	I A Repper & B Loftus
Other Party	:	DW McLeod

Solicitors:

Applicant	:	Glen Mcleod Legal
Respondent	:	State Solicitor's Office
Other Party	:	McLeods

Case(s) referred to in decision(s):

Aloi Holdings Pty Ltd v John Nominees Pty Ltd [2019] WASC 270
Bright Image Dental Pty Ltd v City of Gosnells [2018] WASCA 134
City of Canning v Avon Capital Estates (Australia) Ltd [2012] WASC 223
City of South Perth v ALH Group Property Holdings Pty Ltd [2016] WASC 141; (2016) LGERA 96
Foster v Aloni [1951] VLR 481
General Nominees Pty Ltd (ATF Family Trust Four) v The Metro Inner-North Joint Development Assessment Panel [2022] WASC 114
Huntingdale Village Pty Ltd (receivers and managers appointed) v Corrs Chambers Westgarth (a firm) [No 3] [2016] WASC 366
Marshall v Metropolitan Redevelopment Authority [2015] WASC 226
Marshall v The Honourable Alannah MacTiernan MLA Minister for Planning and Infrastructure [2002] WASCA 274
Milem Pty Ltd v Metro Central Joint Development Assessment Panel [2018] WASC 371
Reid v City of Gosnells [2023] WASC 48
S & L Lenz Pty Ltd v The Shire of Serpentine Jarrahdale [2017] WASC 191
Sanders v City of South Perth [2019] WASC 226
Stockland Development Pty Ltd v Townsville City Council [2013] QCA 210

Table of Contents

Introduction

The application for judicial review

The issue

Legal framework

Regulatory framework

Region and local planning schemes

Local scheme requirements

Development approvals

Analysis

The Planning and Development Act consistency requirement - content of

The MRS

The MRS Map

The MRS text content (or lack of content) as to zones

Clauses 21 and 25

WAPC submissions

Purpose of MRS zones

Contrast between TPS 6 and MRS

Consistency requirement

The applicant's submissions

The precision of the MRS Map

Clause 38 (and cl 39) of the MRS

The power to give approval under the MRS - clause 30

Non-rural uses may be approved in an MRS Rural Zone

Consistency is not a jurisdictional condition

Conclusion

ARCHER J:

Introduction

The City of Gosnells wants to replace a facility which it calls its 'works depot'. The existing facility is in Maddington, but its location is no longer suitable.
The City proposes developing land in…

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.

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Details

Case: [2023] WASC 110
Decision Date

CaseChat Overview and Summary

The applicant, Jim Reid, sought judicial review of the decision of the Western Australian Planning Commission (WAPC) to approve the City of Gosnells' proposed development of land in Wattle Grove (the Site) for various uses (the Proposed Development). The Site was zoned 'Rural' under the Metropolitan Region Scheme (MRS). The applicant contended that the WAPC did not have the power to approve the Proposed Development because several of the uses involved were inconsistent with the applicable MRS zone, because they were not rural uses. The applicant submitted that consistency with the zone was a jurisdictional condition to the WAPC's power under clause 30(1) of the MRS. The WAPC disputed this. The WAPC contended that each of the matters listed in clause 30 was a mandatory consideration in a discretionary decision, not a jurisdictional condition. The Supreme Court held that the WAPC's power to approve a proposed development was not limited to where the development was 'consistent' with the applicable MRS Zone. Accordingly, the application for judicial review was dismissed.

Orders