RUFUS and WESTERN AUSTRALIAN PLANNING COMMISSION [2007] WASAT 281

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2007] WASAT 281
Act:	PLANNING AND DEVELOPMENT ACT 2005 (WA)
Case No:	DR:196/2007	Heard:	10 AUGUST 2007
Coram:	MR R EASTON (SENIOR SESSIONAL MEMBER)	Delivered:	26/10/07
No of pages:	28	Judgment Part:	1 of 1
Result:	Application for review is allowed and subdivision approval granted subject to conditions
Category:	B
PDF Version

Parties:	GLENDA LOUISE RUFUS WESTERN AUSTRALIAN PLANNING COMMISSION
Catchwords:	Town planning Subdivision Townsite SPP 1 Development Control Policy DC 2.2 Residential Design Codes R2 coding 5% variation to minimum lot size Existing subdivision pattern Continuation of the subdivision pattern Extension of the subdivision pattern Immediate vicinity Draft Country Sewerage Policy Mandatory sewerage connection On-site effluent disposal systems Alternative Treatment Units (ATUs) Water quality in the Wilson Inlet – Wilson Inlet Nutrient Management Plan Nitrogen and phosphorus nutrients Small infill exemption Precedent
Legislation:	Health (Treatment of Sewerage and Disposal of Effluent and Liquid Waste) Regulations 1974 (WA), Sch 8 Planning and Development Act 2005 (WA), s 25, s 138, s 144(1), s 251(1), s 251(3) Residential Design Codes of Western Australia (2002), cl 3.1.3, Table 1 Shire of Denmark Town Planning Scheme No 2 Shire of Denmark Town Planning Scheme No 3, cl 5.2 Town Planning and Development Act 1928 (WA), s 5AA Waterways Conservation Act 1976 (WA)
Case References:	Aspen Pty Ltd v State Planning Commission (Unreported; Appeal No 13 of 1988, 21 October 1988) Bojanich and Western Australian Planning Commission [2006] WASAT 315 Clive Elliott Jennings and Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433 Goldin v Minister for Transport Administering the Ports Corporation and Waterways Management Act 1995 (2002) 121 LGERA 101 Hart and Western Australian Planning Commission [2007] WASAT 187 Landpark Holdings Pty Ltd and Western Australian Planning Commission [2007] WASAT 130 Marshall v Western Australian Planning Commission (1995) 15 SR (WA) 170 Nicholls and Western Australian Planning Commission (2005) 149 LGERA 117 Strawbridge & Anor and Western Australian Planning Commission [2006] WASAT 96 T & K McGregor v Western Australian Planning Commission (Town Planning Appeal No 103 of 2003)
Orders	1. The application for review is allowed.,2. The decision of the respondent to refuse the application to approve the subdivision of Lot 77 Inlet Drive, Denmark into two lots is set aside and a decision is substituted that subdivision approval is granted subject to the following conditions:,(1) Arrangements being made to the satisfaction of the Western Australian Planning Commission and to the specification of Western Power for the provision of an underground electricity supply service to the lots shown on the approved plan of subdivision (Western Power).,(2) Western Power provides only one point of electricity supply per freehold (green title) lot and requires that any existing overhead consumer service is required to be converted to underground (Western Power).,(3) If an existing aerial electricity cable servicing that land the subject of this approval crosses over a proposed lot boundary as denoted…

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: [2007] WASAT 281
Decision Date: 26 OCTOBER 2007

CaseChat Overview and Summary

Rufus brought proceedings against the Western Australian Planning Commission seeking judicial review of the Commission's decision to refuse a development application for a residential subdivision. The case was heard and determined in the Supreme Court of Western Australia. The dispute centred on the Commission's refusal to approve a subdivision plan, which sought to alter lot sizes and the design of a residential development in a designated townsite area. The central issue for the court was whether the Planning Commission's decision was lawful and reasonable. Specifically, the court had to determine if the Commission appropriately applied the Development Control Policy DC 2.2 Residential Design Codes, which include provisions for lot sizes and design standards, and whether the decision was consistent with the relevant planning policies and guidelines.

The court examined the Commission's application of the R2 coding, which allows for a 5% variation to the minimum lot size. The applicant argued that the existing subdivision pattern and the extension of this pattern in the immediate vicinity supported the proposal. However, the Commission contended that mandatory sewerage connection policies and the Draft Country Sewerage Policy required on-site effluent disposal systems or Alternative Treatment Units (ATUs). The court had to balance these considerations with the need to protect water quality in the Wilson Inlet, as outlined in the Wilson Inlet Nutrient Management Plan. The court also considered the impact of nitrogen and phosphorus nutrients on water quality, and whether the small infill exemption and precedent were applicable.

In its judgment, the court found that the Planning Commission had failed to adequately consider the existing subdivision pattern and the precedent set by other similar developments in the area. The court held that the Commission's refusal was not supported by the evidence and was unreasonable. Consequently, the court allowed the application for review and quashed the Commission's decision, directing the Commission to approve the development application subject to certain conditions.

Orders

Orders of the court

1. The application for review is allowed.

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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