SHARP and WESTERN AUSTRALIAN PLANNING COMMISSION - [2010] WASAT 12

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)

CITATION: SHARP and WESTERN AUSTRALIAN PLANNING COMMISSION [2010] WASAT 12

MEMBER: MR P McNAB (MEMBER)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 27 JANUARY 2010

FILE NO/S: DR 253 of 2009

BETWEEN: TREVOR SHARP
JENNIFER SHARP
Applicants
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Town planning Subdivision of land Rural land Agricultural zoning Land in 'Development Investigation Area' Proposed lots to be 'superlots' Whether proposal contrary to planning framework Proposal inconsistent with objectives of the Town Planning Scheme Proposal inconsistent with Busselton Urban Growth Strategy Proposal inconsistent with Local Rural Planning Strategy Proposal consistent with Shire's Development Guide Plan (DGP) Rezoning refused by Minister DGP refused approval by Western Australian Planning Commission (WAPC) Status of Shire's 'Business Plan' Whether structure planning for future urban development jeopardised Smaller lot lacking direct physical frontage to public road Whether carriageway easement a sufficient substitute Route of Busselton outer bypass yet to be determined Whether unplanned or ad hoc break up of agricultural land Whether approval would be inconsistent with orderly and proper planning Whether an ad hoc decision or de facto zone change by Tribunal Role of precedent Decision following other Tribunal decisions Decision on merits should not ignore policy or precedents Tribunal not a statutory planning or land management authority Tribunal holding that subdivision approval would subvert the planning framework Application for review dismissed

Legislation:

Shire of Busselton Town Planning Scheme No 20, cl 25, cl 25(1), cl 25(2)

Result:

Application for review dismissed

Category: B

Representation:

Counsel:

Applicants: Mr S Hall (Representative)
Respondent: Mr F Scibilia (Representative)

Solicitors:

Applicants: Planning South West Pty Ltd
Respondent: Western Australian Planning Commission

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

Bojanich and Western Australian Planning Commission [2006] WASAT 315
Hawkins v Western Australian Planning Commission [2004] WATPAT 16
Hawkins v Western Australian Planning Commission [2004] WATPAT 46
Madeo v Western Australian Planning Commission [2008] WASAT 281
Maher & Anor v Western Australian Planning Commission [2006] WASAT 129
Smith v the Western Australian Planning Commission [2007] WASAT 261
Waddell and Western Australian Planning Commission [2007] WASAT 82
Werner v Shire of Nannup [2007] WASAT 148

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The applicants, Mr and Mrs Sharp, were the owners of certain land in Ambergate, located near the town of Busselton. The land was zoned Agricultural, but was located in a Development Investigation Area.
The owners proposed subdividing their land into two 'superlots', which would apparently conform to local expectations of rural residential development reflected, so they thought, in the Shire of Busselton's approval of a Development Guide Plan. A rezoning of the land had, however, been refused by the Minister, and the Development Guide Plan had been refused approval by the Western Australian Planning Commission, the respondent 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: [2010] WASAT 12
Decision Date

CaseChat Overview and Summary

The applicants, Mr and Mrs Sharp, sought a review of the Western Australian Planning Commission's (WAPC) refusal to approve their proposal to subdivide their agriculturally zoned land in Ambergate, Busselton, into two lots. The WAPC had refused the proposal on the basis that it was inconsistent with the planning framework, including the Shire of Busselton Town Planning Scheme No 20, the Shire of Busselton Local Rural Planning Strategy, and the Shire of Busselton Urban Growth Strategy (2006). The WAPC was concerned that the proposed subdivision would jeopardise structure planning for future urban development and the selection of the Busselton outer bypass route, which was yet to be determined. Additionally, the smaller of the two lots lacked direct physical frontage to the public road network, and the WAPC would not accept a carriageway easement as a sufficient substitute. The Tribunal found that the proposed subdivision would be inconsistent with the planning framework and the evident aims and goals of orderly and proper planning. The Tribunal dismissed the application for review and affirmed the WAPC's decision.

Orders