TIERNEY and WESTERN AUSTRALIAN PLANNING COMMISSION

The matter before the court involved Tierney, who sought to challenge a condition imposed by the Western Australian Planning Commission regarding the subdivision of a lot into seven survey strata lots. The condition required a public open space contribution. The second Newbury test was used to determine whether the condition was fairly and reasonably related to the development. The court was required to decide whether the condition fairly and reasonably related to the development, whether the extent of public open space in the locality warranted such a condition, and whether the existing dwelling gave rise to a need for a public open space contribution. Additionally, the court needed to determine whether the amount of public open space contribution should be 10% or less.

The court considered the second Newbury test to assess whether the condition was fairly and reasonably related to the development. The test involved evaluating whether the condition was necessary for the development, whether it was reasonable in relation to the benefits to the public, and whether it was not unduly harsh or onerous. The court found that the condition was fairly and reasonably related to the development. The court also examined the extent of public open space in the locality and concluded that it warranted the imposition of the condition. Furthermore, the court determined that the existing dwelling did not give rise to a need for a public open space contribution. However, the court found that the amount of public open space contribution should be 10% or less.

The court dismissed the application for review and affirmed the subdivision approval condition 7. The court concluded that the condition imposed by the Western Australian Planning Commission was fairly and reasonably related to the development and was necessary in light of the extent of public open space in the locality. The court further held that the amount of public open space contribution should be 10% or less. As a result, the application for review was dismissed and the subdivision approval condition 7 was affirmed.