Thomason v Regional Joint Development Assessment Panel - [2021] WASC 380

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   THOMASON -v- REGIONAL JOINT DEVELOPMENT ASSESSMENT PANEL [2021] WASC 380
CORAM:   SMITH J
HEARD:   8 OCTOBER 2021
DELIVERED          :   5 NOVEMBER 2021
FILE NO/S:   CIV 1496 of 2021
BETWEEN:   BRADLEY THOMAS THOMASON
First Applicant
NORMA ELIZABETH THOMASON
Second Applicant
RICHARD WALTER PRITCHARD FARRIS
Third Applicant
SHARMAN LEE FARRIS
Fourth Applicant
AND
REGIONAL JOINT DEVELOPMENT ASSESSMENT PANEL
Respondent
A & R DEVELOPMENT HOLDINGS PTY LTD
Other Party

Catchwords:

Administrative Law - Application for judicial review - Application for writ of certiorari - Decision of Joint Development Assessment Panel to grant development approval under local planning scheme - Whether power to approve a development comprising a building that contained a building height of more than two storeys

Statutory construction of modifications to State Planning Policy 7.3 Residential Design Codes Volume 2 - Apartments effect of provisions as modified read into the local planning scheme - Planning and Development Act 2005 (WA)

Statutory construction - force and effect of provisions of a State planning policy where the specified provisions are to be read as part of the local planning scheme

Statutory construction - Specified provisions of to State Planning Policy 7.3 Residential Design Codes Volume 2 - Apartments to be construed as amended from time to time

Legislation:

Planning and Development (Development Assessment Panels) Regulations 2011 (WA)
Planning and Development (Local Planning Schemes) Regulations
Planning and Development Act 2005 (WA)

Result:

Application refused

Category: B

Representation:

Counsel:

First Applicant	:	PG McGowan
Second Applicant	:	PG McGowan
Third Applicant	:	PG McGowan
Fourth Applicant	:	PG McGowan
Respondent	:	No appearance
Other Party	:	P McQueen

Solicitors:

First Applicant	:	Kyle & Company
Second Applicant	:	Kyle & Company
Third Applicant	:	Kyle & Company
Fourth Applicant	:	Kyle & Company
Respondent	:	State Solicitor's Office
Other Party	:	Lavan

Case referred to in decision:

2 Thomas Road Pty Ltd v Shire of Serpentine-Jarrahdale [2021] WASC 339

Table of Contents

1.0 Introduction

2.0 The evidence

3.0 LPS 21 and the legislative framework

3.1 Principles of construction - general principles - a purposive approach to the construction of local planning schemes

3.2 The operative effect of provisions of the Residential Design Codes (as modified) when read as part of local planning schemes

3.3 The relevant provisions of LPS 21 and State Planning Policy 7.3 Residential Design Codes Volume 2 - Apartments as modified, and to be read into LPS 21

3.4 The relevant provisions of State Planning Policy 7.3 Residential Design Codes Volume 2 - Apartments

4.0 Is jurisdictional error established?

SMITH J:

1.0 Introduction

Pursuant to regs 6 and 7 of the Planning and Development (Development Assessment Panels) Regulations 2011 (WA), the Other Party elected to have an application for development approval for a mixed-use development, on Lots 26 and 28 Geographe Bay Road and Lots 23 and 25 Lorna Street, Dunsborough (the subject property), determined by a development assessment panel.
On 23 February 2021, the Regional Joint Development Assessment Panel (JDAP)…

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: [2021] WASC 380
Decision Date

CaseChat Overview and Summary

The applicants sought judicial review of a decision of the Regional Joint Development Assessment Panel (JDAP) to grant development approval for a four-storey mixed-use development at Dunsborough, Western Australia. The applicants argued that the JDAP had no power to approve the development because it comprised a building containing more than two storeys and exceeded the height of 9 metres where land was within 150 metres of the mean high water mark. The applicants claimed that the JDAP had committed jurisdictional error by approving the development.The court considered the principles of statutory construction and the legislative scheme, which required the Residential Design Codes to be read as part of the local planning scheme. The court held that the default building height for the subject property was four storeys, and the JDAP had the discretion to approve a building height that exceeded the default height if satisfied that the building height was consistent with the Element Objectives of the Residential Design Codes. The court found that the JDAP had not committed jurisdictional error in approving the development, and the application for judicial review was dismissed.

Orders