Tooth v City of Subiaco

The case involved Tooth, the appellant, and the City of Subiaco, the respondent. The dispute centred around the approval of a development application for a carport in an older suburb near the city, adjacent to a 1930s Californian bungalow. The appellant argued that the local council's written policies, intended to preserve the streetscape, were irrelevant and futile due to the existing despoliation or deterioration of the streetscape. The case reached the Supreme Court of Western Australia, where the appellant sought a review of the decision by the local council to approve the development.

The primary legal issues the court had to address were whether the local council's policies were rendered irrelevant and futile due to the existing state of the streetscape, and whether the council had materially departed from those policies in approving the development. The court also had to consider the Tribunal's role in applying the council's policies, and whether the Tribunal was correct in refusing to find that the policies were irrelevant or futile.

The court found that the local council's policies were made and issued having regard to the circumstances of the streetscape, and therefore still had preservation work to do. The court held that the appellant had not provided any evidence of a material or relevant departure from the policies by the council. The court further noted that the Tribunal's duty was not to undermine the regulatory regime established by the local council's policies. Therefore, the Tribunal was correct in applying the policies and refusing the appellant's application. The court dismissed the application for review and affirmed the decision to review.