Wattleup Road Development Co Pty Ltd v State Administrative Tribunal [No 2]

Wattleup Road Development Co Pty Ltd brought an application for judicial review of a decision of the State Administrative Tribunal (SAT). The application sought to overturn the SAT's decision to refuse the applicants' application for a planning recommendation to the Minister for Planning. The application was for approval of a planning proposal to subdivide a 10.7 hectare site into approximately 100 residential lots. The SAT's decision was based on the finding that the proposed subdivision would not adequately protect the amenity of future residents from dust from neighbouring properties. The applicants argued that the SAT had erred in concluding that the dust monitoring was inadequate and that it should have applied the precautionary principle in their favour. The court had to decide whether the SAT had erred in concluding that the dust monitoring was inadequate and in failing to apply the precautionary principle in the applicants' favour. The court also had to determine whether the SAT had erred in finding that the proposed subdivision would not adequately protect the amenity of future residents from dust from neighbouring properties.

The court found that the SAT had not erred in concluding that the dust monitoring was inadequate. The court held that daily monitoring for total suspended particulates was necessary for an adequate monitoring program given the proximity of the site to the neighbouring dust sources and the nature of the proposal. The court also found that the SAT had not erred in finding that the proposed subdivision would not adequately protect the amenity of future residents from dust from neighbouring properties. The court held that the evidence suggested that had the dust monitoring been undertaken for the full year or close to it, exceedances of the amenity standard would have been observed. The court further held that the SAT had not erred in refusing to apply the precautionary principle in the applicants' favour. The court held that the precautionary principle was not an irrelevant consideration but that it did not apply in the circumstances of this case.

The SAT's decision was affirmed. The applicants' application for judicial review was dismissed with costs.