WA Plantation Resources Pty Ltd and City of Bunbury & Anor

The case involves a planning application by WA Plantation Resources Pty Ltd for the construction of a woodchip mill in Bunbury, which is contested by the City of Bunbury and another party. The core legal issue in this case is whether a planning application for development within a Development Investigation Policy Area can be approved in the absence of an adopted structure plan or development guide plan. The question also arises as to whether the approval of a structure plan by the Commission constitutes the adoption and endorsement of that plan by the Council, and if so, whether this is a prerequisite to approving the planning application. Additionally, the case examines whether the Tribunal has the power to adopt a structure plan during the review of a planning application determination, and whether the function and discretion to adopt such a plan can be exercised by the Council when making the reviewable decision.

The court addressed these issues by interpreting the relevant clauses of the Town Planning Scheme No 7 (TPS7). The court found that Clause 6.2.1.3 explicitly states that no development or subdivision is permitted in a Development Investigation Policy Area until a structure plan or development guide plan has been adopted by the Council and endorsed by the Commission. Given that the proposed development site falls within such an area, the court held that an adopted and endorsed structure plan is necessary before the planning application can be approved. The court rejected the argument that the terms of Clause 6.2.1 were limited to areas suitable for further investigation for urban development, emphasizing that the plain wording of the clause applies to all Development Investigation Policy Areas. The court also concluded that the adoption of a structure plan by the Commission does not constitute adoption by the Council and endorsement by the Commission, as these are separate and distinct actions.

The final outcome of the case is that the Tribunal does not have the power to adopt a structure plan in the context of reviewing a planning application determination. Moreover, the function and discretion to adopt a structure plan are to be exercised by the Council when making the reviewable decision. As the structure plan for the proposed development had not been adopted by the Council and endorsed by the Commission, the court ruled that the planning application could not be approved. Consequently, the Tribunal must dismiss the application for review.