Riley and Western Australian Planning Commission - [2014] WASAT 40

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: RILEY and WESTERN AUSTRALIAN PLANNING COMMISSION [2014] WASAT 40

MEMBER: MR J JORDAN (MEMBER)

HEARD: 18 DECEMBER 2013

DELIVERED : 28 MARCH 2014

FILE NO/S: DR 266 of 2013

BETWEEN: IAN JOHN RILEY
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Town planning Subdivision Refusal Two lots of 3 hectares and 3.7 hectares respectively Site within Swan Valley Area B of Swan Valley Planning Act 1995 (WA) Objectives for Area B Potential for agricultural activity Soils Impact of vineyards Land use in locality Lot size pattern Control of subdivision Application of policy Precedent

Legislation:

City of Swan Local Planning Scheme 17, cl 4.2.19(d)
Planning and Development Act 2005 (WA), s 134, s 251(1)
Swan Valley Planning Act 1995 (WA), s 3, s 4, s 6, s 7, s 8, s 9

Result:

The application for review is dismissed

Summary of Tribunal's decision:

Proposed was subdivision to create a 3 hectare and a 3.7 hectare lot in what is defined as Area B under the Swan Valley Planning Act 1995 (WA). Lots of less than 4 hectares proposed within Area B are required to be weighed against a list of particular objectives.
The Tribunal found that the proposed subdivision would be inconsistent with sufficient key objectives for Area B to warrant refusal. The Tribunal concluded that the size and soil type of the proposed lots was not sufficient to support departure from objectives for Area B.
In respect to precedent, on a narrow view, the subdivision would not be a concern, but in respect to consideration of lot size and use in Area B, the Tribunal has concluded that an undesirable precedent would be set.
The Tribunal decided to dismiss the application and endorse the refusal of the proposed subdivision.

Category: B

Representation:

Counsel:

Applicant: Mr P Webb (Acting as Agent)
Respondent: Ms S Grebe (Acting as Agent)

Solicitors:

Applicant: Peter D Webb and Associates
Respondent: Department of Planning

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

Downs‑Stoney and Western Australian Planning Commission [2008] WASAT 178
Johnston and Western Australian Planning Commission [2013] WASAT 94
Nichols and Western Australian Planning Commission [2005] WASAT 40

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

These proceedings involve an application brought by Mr Ian John Riley (applicant) pursuant to s 251(1) of the Planning and Development Act 2005 (WA) (PD Act) for review of the decision by the Western Australian Planning Commission (Commission or respondent) to refuse an application for approval to subdivide No 8001 (Lot 117) West Swan Road, Henley Brook (site).

Site and locality

The site has an area of 6.704 hectares with frontage of 222 metres to West Swan Road at the eastern end and a common boundary with the reserve along St Leonards Creek at the western end. A house on the site is set back about 42 metres from West…

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: [2014] WASAT 40
Decision Date: 28 MARCH 2014

CaseChat Overview and Summary

The case of Riley and Western Australian Planning Commission involves a dispute regarding the refusal of a subdivision application. The applicant, Riley, sought to subdivide two lots, one of 3 hectares and the other of 3.7 hectares, located within the Swan Valley, an area designated under the Swan Valley Planning Act 1995 (WA). The primary concern was whether the proposed subdivision aligned with the objectives set out for Area B in the Act, specifically focusing on the potential for agricultural activities, the characteristics of the soils, the impact of vineyard establishments, and the overall land use pattern in the locality. The Western Australian Planning Commission rejected the application, citing policy and precedent considerations.

The central legal issues revolved around the interpretation and application of the Swan Valley Planning Act 1995 (WA), particularly in relation to the objectives for Area B. The court had to determine if the proposed subdivision adhered to the legislative intent regarding agricultural potential and land use. Additionally, the court assessed whether the Commission's refusal was justified under the relevant policies and whether there were relevant precedents that should be considered in making the decision.

The court examined the objectives for Area B under the Swan Valley Planning Act 1995 (WA) and found that the proposed subdivision did not adequately support the potential for agricultural activities. The assessment of soil quality, the impact of vineyards, and the overall land use pattern in the locality were key factors in this determination. The Commission's decision was also influenced by existing policies and precedents that supported the control of subdivision in the area. The court upheld the decision of the Commission, affirming that the refusal was consistent with the legislative objectives and policy considerations.

The final orders of the court were to affirm the decision of the Western Australian Planning Commission, rejecting the application for subdivision. The court's ruling underscored the importance of aligning subdivision applications with the legislative intent and policy frameworks established to manage land use in sensitive areas such as the Swan Valley.

Orders