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WESTERN AUSTRALIAN PLANNING COMMISSION and CPP PTY LTD

WESTERN AUSTRALIAN PLANNING COMMISSION and CPP PTY LTD

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WESTERN AUSTRALIAN PLANNING COMMISSION and CPP PTY LTD [2006] WASAT 379

Last Update :21/12/2006

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2006] WASAT 379
Published:
Act:	PLANNING AND DEVELOPMENT ACT 2005 (WA)
Case No:	DR:331/2006, DR:332/2006	Heard:	DETERMINED ON THE DOCUMENTS
Coram:	JUSTICE M L BARKER (PRESIDENT)	Delivered:	21/12/2006
No Pages:	23	Judgment Part:	1 of 1
Result:	The decisions made 31 August 2006 is affirmed The review applications made under s 244(3) of the Planning and Development Act 2005 (WA) are dismissed
Category:	A

Parties & CatchwordsOrders

Judgment

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : WESTERN AUSTRALIAN PLANNING COMMISSION and CPP PTY LTD [2006] WASAT 379 MEMBER : JUSTICE M L BARKER (PRESIDENT) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 22 DECEMBER 2006 FILE NO/S : DR 331 of 2006 BETWEEN : WESTERN AUSTRALIAN PLANNING COMMISSION

Applicant

AND

CPP PTY LTD

Respondent

FILE NO/S : DR 332 of 2006 BETWEEN : WESTERN AUSTRALIAN PLANNING COMMISSION

Applicant

AND

SEATTLE BAY PTY LTD

Respondent

(Page 2)

Catchwords:

Planning and development - Repeal of s 20(5) of the Town Planning and Development Act 1928 (WA) - Whether s 20(5) continues to apply in review proceedings commenced in Tribunal before repeal operative - Whether s 138(2) Planning and Development Act 2005 (WA) applies

Legislation:

Acts Interpretation Act 1901 (Cth), s 8, s 8(c), s 8(e)
Acts Interpretation Act 1958 (Vic), s 7(2)
Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth)
Compensation (Commonwealth Government Employees) Act 1971 (Cth)
Environmental Protection Act 1986 (WA)
Interpretation Act 1984 (WA), s 5, s 36, s 36(a), s 36(b), s 36(c), s 36(d), s 36(e), s 37, s 37(1)(c)
Planning and Development (Consequential and Transitional Provisions) Act 2005(WA), s 4, s 17, First Schedule
Planning and Development Act 2005 (WA), s 4, s 135, s 136, s 138, s 138 (1), s 138(2), s 138(3), s 138(4), s 244(3),
Residential Design Codes 2002 (WA), Table 1
Shire of Busselton Town Planning Scheme No 20, cl 6(3), cl 61(1)
Social Security (Budget and Other Measures) Legislation Amendment Act 1993 (Cth)
Social Security Act 1991 (Cth), s 1237
State Administrative Tribunal Act 2004 (WA), s 27(2)
Town Planning and Development Act 1928 (WA), s 20, s 20(1), s 20(5), First Schedule

Result:

The decisions made 31 August 2006 is affirmed
The review applications made under s 244(3) of the Planning and Development Act 2005 (WA) are dismissed

(Page 3)

Category: A

Representation:

DR 331 of 2006

Counsel:

Applicant : Ms C Ide

Respondent : Mr P McQueen

Solicitors:

Applicant : State Solicitor's Office

Respondent : Lavan Legal

DR 332 of 2006

Counsel:

Applicant : Ms C Ide

Respondent : Mr P McQueen

Solicitors:

Applicant : State Solicitor's Office

Respondent : Lavan Legal

Case(s) referred to in decision(s):

ACI Pet Operations Pty Ltd v Comptroller-General of Customs (1993) 118 ALR 114
Attorney General (NSW) v World Best Holdings Limited (2005) 63 NSWLR 557
Attorney…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] WASAT 379
Decision Date: 22 DECEMBER 2006

CaseChat Overview and Summary

Western Australian Planning Commission and CPP Pty Ltd came before the court in a matter involving the interpretation and application of certain sections of the Town Planning and Development Act 1928 (WA) and the Planning and Development Act 2005 (WA). The dispute centred around the application of section 20(5) of the older Act and whether it continued to apply in review proceedings that had been initiated in the Tribunal before the repeal of that section, as well as the applicability of section 138(2) of the newer Act.

The primary legal issue before the court was to determine whether section 20(5) of the Town Planning and Development Act 1928 (WA) continued to apply to review proceedings that had been commenced in the Tribunal prior to the repeal of that section. Additionally, the court had to consider whether section 138(2) of the Planning and Development Act 2005 (WA) was applicable to the proceedings. The court was required to interpret the statutes and determine the appropriate legal framework for the review proceedings in question.

In delivering the judgment, the court found that section 20(5) of the Town Planning and Development Act 1928 (WA) did not continue to apply in the review proceedings that had been initiated in the Tribunal before its repeal. The court held that the repeal of section 20(5) had the effect of removing it from the legal framework applicable to the proceedings, and that section 138(2) of the Planning and Development Act 2005 (WA) was the appropriate section to apply in this context. The court confirmed the decisions of Member Jordan made on 31 August 2006 and dismissed each review application made under section 244(3) of the Planning and Development Act 2005 (WA).

Orders

Orders of the court

1. The decisions of Member Jordan made 31 August 2006 are confirmed; and 2. Each review application made under s 244(3) of the Planning and Development Act 2005 (WA) is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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