THIO and WESTERN AUSTRALIAN PLANNING COMMISSION [2008] WASAT 265

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2008] WASAT 265
Act:	PLANNING AND DEVELOPMENT ACT 2005 (WA)
Case No:	DR:194/2008	Heard:	25 AUGUST 2008
Coram:	MR B HUNT (SENIOR SESSIONAL MEMBER)	Delivered:	12/11/08
No of pages:	11	Judgment Part:	1 of 1
Result:	The application for review is dismissed
Category:	B
PDF Version

Parties:	GIM HO THIO WESTERN AUSTRALIAN PLANNING COMMISSION
Catchwords:	Town planning Survey strata Two houses Lake Clifton catchment Proposal inconsistent with Local Planning Strategy, Coastal and Lakelands Planning Strategy and Lake Clifton/Herron Structure Plan Precedent
Legislation:	Peel Region Scheme Planning and Development Act 2005 (WA) Shire of Waroona Town Planning Scheme No 7, cl 4.14.2(c), cl 4.14.8
Case References:	Maxwell and Western Australian Planning Commission [2003] WATPAT 35 WA Developments Pty Ltd and Western Australian Planning Commission [2008] WASAT 260
Orders	1. The application for review of the Western Australian Planning Commission's decision to refuse subdivision of Lot 4 Newnham Road, Lake Clifton is dismissed and therefore the decision of the respondent is affirmed.
Summary	This matter involved an application for review of the refusal of a subdivision application of Lot 4 Newnham Road, Lake Clifton into two lots by means of a survey strata.,The proposed survey strata subdivision would create lots with areas of 2.0 hectares and 3.85 hectares.,The subject land is zoned 'Rural' in the Peel Region Scheme (PRS) and 'Rural 3B Coastal Highway' in the Shire of Waroona Town Planning Scheme No 7 (TPS 7).,The subject land is within the catchment for Lake Clifton where management criteria have been prepared by the Environmental Protection Authority and published in their Guidance No 28 (EPA 28) where an overall 5 hectare lot size average is required. This density is deemed appropriate to protect the environmental sensitivities of the area.,The subject land contains two houses and the Shire of Murray have granted approval for one of the houses to be, in effect, 'relocated' to a more central position, and the subdivision is designed to facilitate this new house.,The Tribunal finds that the existing planning instruments reflect the environmental issues in the area and that the proposed subdivision, if supported, would erode those considerations. The two houses do not constitute grounds for approval, and there are environmental concerns for the area of an inappropriate precedent.,The application for review is dismissed.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : THIO and WESTERN AUSTRALIAN PLANNING COMMISSION [2008] WASAT 265 MEMBER : MR B HUNT (SENIOR SESSIONAL MEMBER) HEARD : 25 AUGUST 2008 DELIVERED : 13 NOVEMBER 2008 FILE NO/S : DR 194 of 2008 BETWEEN : GIM HO THIO

Applicant

AND

WESTERN AUSTRALIAN PLANNING COMMISSION

Respondent

Catchwords:

Town planning - Survey strata - Two houses - Lake Clifton catchment - Proposal inconsistent with Local Planning Strategy, Coastal and Lakelands Planning Strategy and Lake Clifton/Herron Structure Plan - Precedent

Legislation:

Peel Region Scheme

Planning and Development Act 2005 (WA)
Shire…

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: [2008] WASAT 265
Decision Date: 13 NOVEMBER 2008

CaseChat Overview and Summary

The applicants, Thio, sought a review of a decision made by the Western Australian Planning Commission to deny their proposal for a subdivision of a property in Lake Clifton. The proposal involved the division of a single lot into two separate lots to accommodate two houses. The respondents, the Western Australian Planning Commission, rejected the proposal on the basis that it was inconsistent with the Local Planning Strategy, the Coastal and Lakelands Planning Strategy, and the Lake Clifton/Herron Structure Plan. The applicants took the matter to the Supreme Court of Western Australia for judicial review.

The legal issues before the court were whether the Commission's decision was lawful and whether the decision was based on a consideration of all relevant factors. The applicants argued that the Commission had failed to consider certain factors in making its decision and that the decision was therefore invalid. The applicants also argued that the decision was unreasonable and that the Commission had not followed the correct process in making its decision.

The court found that the Commission's decision was lawful and that it had considered all relevant factors in making its decision. The court held that the Commission had correctly identified that the proposal was inconsistent with the relevant planning strategies and that the decision was therefore valid. The court also found that the Commission had followed the correct process in making its decision and that the decision was not unreasonable. The court dismissed the application for review and affirmed the decision of the Commission.

The Supreme Court of Western Australia dismissed the applicants' application for review and affirmed the decision of the Western Australian Planning Commission. The court held that the Commission's decision was lawful and that it was based on a consideration of all relevant factors. The court found that the proposal was inconsistent with the relevant planning strategies and that the decision was therefore valid. The court also held that the Commission had followed the correct process in making its decision and that the decision was not unreasonable.

Orders

Orders of the court

1. The application for review of the Western Australian Planning Commission's decision to refuse subdivision of Lot 4 Newnham Road, Lake Clifton is dismissed and therefore the decision of the respondent is affirmed.

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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