TIERNEY and WESTERN AUSTRALIAN PLANNING COMMISSION - [2011] WASAT 192

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: TIERNEY and WESTERN AUSTRALIAN PLANNING COMMISSION [2011] WASAT 192

MEMBER: JUDGE D R PARRY (DEPUTY PRESIDENT)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 1 DECEMBER 2011

FILE NO/S: DR 369 of 2011

BETWEEN: GARY TIERNEY
CHERYL TIERNEY
Applicants
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Review by judicial member of determination of Tribunal upon a matter involving a question of law - Tribunal affirmed condition of survey strata subdivision approval requiring public open space contribution of 10% of the area of the land being subdivided - Whether any error of law disclosed - SAT has no power or function in relation to when owner may pay cash in lieu of setting aside land for public open space or in relation to application of money received in lieu - Standard condition requiring public open space contribution is not vague or uncertain

Legislation:

Planning and Development Act 2005 (WA), s 146(3), s 153, s 154, s 154(2), s 155, s 244, s 251(3)
Residential Design Codes of Western Australia (2010), Table 1
State Administrative Tribunal Act 2004 (WA), s 3(1), s 29(1), s 31, s 32(2), s 77, s 83, s 83(1)(b), s 83(2)(b)
Town Planning and Development Act 1928 (WA), s 20C

Result:

Application for a review of Tribunal's determination dismissed

Category: B

Representation:

Counsel:

Applicants: Mr I McKellar (Agent)
Respondent: Ms B Allen with Mr D Jones

Solicitors:

Applicants: N/A
Respondent: State Solicitor's Office

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

Empire Securities Pty Ltd & Ors and Western Australian Planning Commission [2005] WASAT 98
Landpark Holdings Pty Ltd and Western Australian Planning Commission [2007] WASAT 130
Perrymead Investments Pty Ltd v Western Australian Planning Commission (1996) 16 SR (WA) 181
Phil Lukin Pty Ltd and Lowe Pty Ltd and Shire of Busselton [2006] WASAT 124
Tierney and Western Australian Planning Commission [2011] WASAT 153

REASONS FOR DECISION:

Summary of judicial member's decision

Mr and Mrs Tierney sought a review by a judicial member of a determination of the Tribunal, when constituted without a legally qualified member, in which the Tribunal affirmed the decision of the Western Australian Planning Commission to impose a condition on a survey strata subdivision approval requiring that 10% of the land area, in a position to be agreed with the Commission, is to be ceded as public open space.
The grounds of review generally involved challenges to findings of fact, which are not able to be reviewed by a judicial member, and/or were misconceived.
The judicial member confirmed that the Tribunal does not have any power or function in relation to when a land owner may pay cash in lieu of setting aside land for public open space or in relation to how money received in lieu can or should be applied. In particular, the Tribunal was not required to determine whether there was a need for cash to buy open space in the locality. Rather, the Tribunal's function…

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: [2011] WASAT 192
Decision Date: 1 DECEMBER 2011

CaseChat Overview and Summary

The dispute between Tierney and the Western Australian Planning Commission involved a review of a decision by the Tribunal concerning the approval of a survey strata subdivision. The matter was ultimately heard by the Supreme Court of Western Australia. The central issue before the court was whether the Tribunal had erred in upholding a condition of the approval that required a 10% contribution of the land area for public open space. Additionally, the court considered whether the standard condition for public open space was vague or uncertain.

The court held that the State Administrative Tribunal (SAT) did not have the power or function to determine when an owner could pay cash in lieu of setting aside land for public open space. Furthermore, it was confirmed that the SAT did not have a role in applying money received in lieu of the land contribution. The court found that the standard condition requiring a public open space contribution was not vague or uncertain, and therefore, the Tribunal's decision was upheld. The court determined that the Tribunal did not make any error of law in its determination.

As a result of the court's decision, the Tribunal's affirmation of the condition of survey strata subdivision approval requiring a public open space contribution of 10% of the area of the land being subdivided was upheld. The court found no error of law in the Tribunal's decision and confirmed that the standard condition was not vague or uncertain. The final orders of the court upheld the Tribunal's decision and maintained the condition for the public open space contribution.

Orders