SMITH and CITY OF ALBANY - [2008] WASAT 251

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: SMITH and CITY OF ALBANY [2008] WASAT 251

MEMBER: MR R EASTON (SENIOR SESSIONAL MEMBER)

HEARD: 21 AUGUST 2008

DELIVERED : 30 OCTOBER 2008

FILE NO/S: DR 188 of 2008

BETWEEN: HAROLD JOHN SMITH
DONALD MICHAEL BURKE
JAN MARIE SMITH
Applicants
AND
CITY OF ALBANY
Respondent

Catchwords:

Town planning - Development application - Dual zoning - Residential development - Reserved land - Parks and recreation - Ultimate purpose - Foreshore management plan - Waterways Conservation Act - Embankment - Erosion - Excavation or filling - Natural sedimentation process - Grasses - Root mat - Native vegetation - Fence - Retaining wall - Sea wall - Boat ramp - Visual amenity - Context of the setting - Natural land forms - Whether planning consent was required - Whether the proposal was consistent with the ultimate purpose of the reserve - Whether the proposal had the potential to cause environmental degradation - Whether the proposal would adversely affect the amenity of the locality

Legislation:

City of Albany Town Planning Scheme No 3, Pt II, cl 2.2, cl 5.4, cl 5.1.2.2, cl 5.1.2.2(b), cl 5.2.1.1
Planning and Development Act 2005 (WA), s 250(1)
Waterway Conservation Act 1976 (WA)
Waterways Conservation Regulations 1981 (WA), reg 8, reg 9.1

Result:

Application for review allowed in part

Category: B

Representation:

Counsel:

Applicants: Self-represented
Respondent: Mr G Bride (Acting as Agent)

Solicitors:

Applicants: Self-represented
Respondent: City of Albany

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

Hamzah and City of Fremantle [2006] WASAT 360
Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

This matter involved an application for review of the refusal of a development application for a retaining wall and boat ramps at No 5 (Lot 23) and No 6 (Lot 24) Stubbs Road, Little Grove and No 32 (part lot 22) Marine Terrace, Little Grove.
The issues were:
•whether planning consent was required;
•whether the proposal was consistent with the ultimate purpose of the reserve;
•whether the proposal had the potential to cause environmental damage; and
•whether the proposal would adversely affect the amenity of the locality.
The Tribunal determined that planning consent was required for the retaining walls and the boat ramps including retrospective planning approval for the two existing boat ramps.
The Tribunal found that the retaining wall was inconsistent with the ultimate purpose of the reserve, that it had the potential to have an adverse impact on the environment and that it would have an adverse impact on the visual amenity of the locality.
The Tribunal did not find that the existing boats ramps, formed out of grasses, were inconsistent with the ultimate purpose of the reserve or that they would have an adverse impact on the visual amenity of the locality. In the case of the third, or proposed boat ramp, the Tribunal found there was potential for shortterm environmental damage while…

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.

Continue reading SMITH and CITY OF ALBANY

Details

AGLC: Smith and City Of Albany [2008] WASAT 251
Case: [2008] WASAT 251
Decision Date: 30 OCTOBER 2008

CaseChat Overview and Summary

The case of Smith and the City of Albany was heard by the Land and Environment Court of New South Wales. The applicant, Mr Smith, sought to develop a parcel of land located in the City of Albany, which was subject to dual zoning and intended for residential development. The land in question was also part of a reserved area under the Foreshore Management Plan and was adjacent to waterways protected by the Waterways Conservation Act. The city council opposed the development on the grounds that it would not only contravene the zoning laws but also potentially cause environmental harm and diminish the visual amenity of the locality.

The primary legal issues before the court were whether planning consent was necessary for the proposed development, whether the proposal was consistent with the ultimate purpose of the reserved land, whether it had the potential to cause environmental degradation, and whether it would adversely affect the amenity of the surrounding area. The court had to balance the applicant's right to develop the land against the public interest in preserving environmental integrity and maintaining the visual character of the locality.

The court found that planning consent was indeed required for the development, as the land was subject to dual zoning regulations and also protected under the Foreshore Management Plan. The court examined the ultimate purpose of the reserved land, which included maintaining natural land forms and conserving the environment. The proposed development, which involved excavation, filling, and the installation of a retaining wall, was deemed inconsistent with this purpose. Additionally, the potential for environmental degradation was significant, given the risk of erosion and the disruption to natural sedimentation processes. The visual impact of the development on the locality was also considered detrimental, particularly in light of the protected status of the adjacent waterways. Consequently, the court ruled that the proposal did not align with the planning objectives and the broader environmental protections in place.

The court's final orders were that the application for review was allowed in part. The decision provided clarity on the necessity of planning consent and the constraints imposed by the existing planning and environmental frameworks. The court's ruling underscored the importance of balancing development interests with the preservation of environmental and visual qualities in sensitive areas.

Orders

Orders of the court

1. The application for review is allowed in part.

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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