Sara Commisso and City Of Gosnells and Anor

Sara Commisso has brought a challenge against the City of Gosnells and others before the Western Australian Civil and Administrative Tribunal (WCAT). The dispute concerns the scope of a referral made by a Minister under the Town Planning and Development Act 1928 (WA). Specifically, the applicant contests whether the Minister's referral to WCAT exceeded the power granted under the Act, by addressing issues outside the scope of the representations made by the applicant. The central legal issues revolve around the interpretation of the Act and the scope of the Minister's referral to WCAT. The court had to determine whether the Minister correctly identified and limited the scope of the representations, and whether the referral to WCAT was beyond the power granted under the Act.

The court examined the relevant provisions of the Town Planning and Development Act, which outline the process for referrals to WCAT following representations by an aggrieved person. It considered the principle that evidence must be logically or rationally probative to be considered by the Tribunal, as per the Tribunal Act. The court found that the Minister had referred matters to WCAT that were outside the scope of the representations made by the applicant. This exceeded the lawful scope of the referral and was beyond the power granted under the Act. The Minister's referral to WCAT was not limited to the representations made by the applicant, but rather included issues not raised in those representations. The court concluded that the Minister's referral to WCAT was beyond power as it included matters that were not part of the applicant's representations.

The court held that the Minister's referral to WCAT was beyond power as it included matters not raised in the applicant's representations. The court's reasoning was based on the principle that the Minister could only refer matters that were part of the representations made by the applicant. By including issues not raised in the representations, the Minister had exceeded the lawful scope of the referral. The court found that the applicant's representations were fundamentally concerned with the alleged failure of the City of Gosnells to enforce its town planning scheme consistently with the Ministerial order, and not with the scope of non-conforming use rights in relation to Lot 36. Consequently, the Minister's referral to WCAT to revisit the question of non-conforming use rights in relation to Lot 36 was beyond power. The court did not find it necessary to address the question of abuse of process as the scope of the referral was found to be beyond power. The court did not specify the final orders in its judgment.