URBAN RESOURCES PTY LTD and CITY OF SWAN

Urban Resources Pty Ltd applied to the City of Swan for consent to undertake a proposed development, which the City refused. Urban Resources then applied for review of the City’s decision by a judicial member of the State Administrative Tribunal. The City of Swan opposed the application on the basis that there was no question of law identified in the decision of the non-legally qualified member that could be reviewed by the judicial member. The judicial member dismissed the application for review, finding that there was no question of law identified in the decision. Urban Resources appealed to the Supreme Court.
The issue before the Supreme Court was whether a demonstration of an error of law in the primary decision is required for a review by a judicial member of the decision of a non-legally qualified member. The Court found that a demonstration of an error of law in the primary decision is not required for a review by a judicial member of the decision of a non-legally qualified member. The Court held that s 244 of the Planning and Development Act 2005 requires a demonstration of a question of law, but not necessarily an error of law, in relation to the primary decision. The Court held that the requirement to demonstrate a question of law is met if there is some step taken by the member in arriving at its conclusion which involved a 'question' of law, and that the question of law identified must be really, and not colourably involved.

The appeal was dismissed. The Court found that the decision of the non-legally qualified member did not involve a question of law that could be reviewed by the judicial member. The decision was based on factual findings, which were not challenged by Urban Resources, and there was no demonstration of an error of law in the primary decision. The Court held that the decision was not open to review by the judicial member.