Thio and Western Australian Planning Commission - [2009] WASAT 88

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: THIO and WESTERN AUSTRALIAN PLANNING COMMISSION [2009] WASAT 88

MEMBER: JUSTICE J A CHANEY (PRESIDENT)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 7 MAY 2009

FILE NO/S: DR 14 of 2009

BETWEEN: GIM HO THIO
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Review by judicial member of determination of Tribunal upon a matter involving a question of law - Town planning - Two lot survey strata subdivision - Tribunal refused survey strata subdivision application - Whether Tribunal erred in law by failing to give reasons in accordance with s 77 of the State Administrative Tribunal Act 2004 (WA) - Whether Tribunal erred in law in consideration of adverse planning precedent - Whether Tribunal failed to afford procedural fairness by raising and relying on precautionary principle in determination without giving parties opportunity to be heard in relation to it

Legislation:

Planning and Development Act 2005 (WA), s 244
Shire of Waroona Town Planning Scheme No 7, cl 4.14.2(c)
State Administrative Tribunal Act 2004 (WA), s 3(1), s 9(c), s 32(1), s 77, s 77(1), s 77(2), s 105, s 117(3)(b)

Result:

Application for review of Tribunal's determination allowed and determination set aside
Matter referred back to Tribunal for re-determination

Category: A

Representation:

Counsel:

Applicant: In person
Respondent: Ms S Keeley

Solicitors:

Applicant: Self-represented
Respondent: State Solicitor's Office

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

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Cornhill and Western Australian Planning Commission [2009] WASAT 9
Goldin v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 (2002) 121 LGERA 101
Kioa v West (1985) 159 CLR 550
Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117
Re Carey; Ex parte Exclude Holdings Pty Ltd (2006) 32 WAR 501
Thio and Western Australian Planning Commission [2008] WASAT 265
WA Developments Pty Ltd and Western Australian Planning Commission [2008] WASAT 260
Williams and Western Australian Planning Commission [2005] WASAT 10
Winten Property Group Ltd v North Sydney Council (2001) 130 LGERA 79

REASONS FOR DECISION:

Summary of Tribunal's (judicial member's) decision

Mr Gim Ho Thio, who was unsuccessful in seeking review by the Tribunal of the refusal of a two lot survey strata subdivision, sought to challenge the decision before a judicial member on the basis that it was affected by errors of law.
The President determined that the Tribunal erred in law in three material respects.
First, the Tribunal failed to give legally adequate reasons for its decision as required by s 77 of the State Administrative Tribunal Act 2004 (WA). While great care must be taken to read the expression of reasons in the context of the decision as a whole, and having regard to the background and qualifications of the author, in this case the Tribunal made bald findings which did not enable an evaluation of the process of reasoning. The Tribunal also failed to address key…

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: [2009] WASAT 88
Decision Date: 7 MAY 2009

CaseChat Overview and Summary

Thio sought review of a decision of the Western Australian Planning Commission which refused approval for a strata subdivision of two lots. The dispute was heard and determined in the Supreme Court of Western Australia. The applicant argued that the Tribunal had erred in law by not giving reasons in accordance with s*77 of the State Administrative Tribunal Act 2004 (WA), had erred in law in considering adverse planning precedent and had failed to afford procedural fairness by raising and relying on the precautionary principle in its determination without giving the parties an opportunity to be heard in relation to it. The Court was required to determine whether the Tribunal had erred in law in making its determination, and whether procedural fairness had been afforded to the parties. The Court held that the Tribunal had indeed erred in law in not giving reasons in accordance with s*77 of the Act, and in not affording procedural fairness to the parties by raising and relying on the precautionary principle in its determination without giving the parties an opportunity to be heard in relation to it. The Court found that the Tribunal had failed to give adequate reasons for its decision, and had not afforded the parties procedural fairness in raising and relying on the precautionary principle. Accordingly, the Court allowed the application for review and set aside the determination of the Tribunal. The Court remitted the matter to the Tribunal differently constituted for re-determination and listed the matter for a directions hearing to programme the matter for final hearing.

Orders

Orders of the court

1. The application for review is allowed and the determination of the Tribunal made in proceedings DR 194 of 2008 on 13 November 2008 to refuse survey strata subdivision approval of Lot 4 Newnham Road, Lake Clifton into two lots of 2 hectares and 3.85 hectares, is set aside. 2. Proceedings DR 194 of 2008 is remitted to the Tribunal differently constituted for re-determination. 3. Proceedings DR 194 of 2008 is listed for a directions hearing at 10.30 am on 22 May 2009 in order to programme the matter for final hearing.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

JUSTICE J

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Ratio Decidendi

Legal Principle Established

Established by: JUSTICE J

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