WESTERN AUSTRALIAN PLANNING COMMISSION and DIGGINS [2008] WASAT 9

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2008] WASAT 9
Act:	PLANNING AND DEVELOPMENT ACT 2005 (WA)
Case No:	DR:342/2007	Heard:	DETERMINED ON THE DOCUMENTS
Coram:	JUSTICE M L BARKER (PRESIDENT)	Delivered:	28/01/08
No of pages:	13	Judgment Part:	1 of 1
Result:	Application for review allowed Determination of Tribunal in DR 153 of 2007 revoked and determination substituted that subdivision approval is refused
Category:	B
PDF Version

Parties:	WESTERN AUSTRALIAN PLANNING COMMISSION SEAN KEENAN DIGGINS
Catchwords:	Review by President of determination of Tribunal upon a matter involving a question of law under Planning and Development Act 2005 (WA), s 244 Tribunal granted subdivision approval for battleaxe rural residential subdivision Current lot configuration generally consistent with and created pursuant to development guide plan Local planning scheme states that no further subdivision will be permitted of lots created pursuant to development guide plan Whether Tribunal erred in law Whether subdivision is incapable of approval Whether approval of subdivision conflicts with provision of local planning scheme Whether statutory exception established to enable approval notwithstanding conflict Whether hardship enables approval
Legislation:	Planning and Development Act 2005 (WA), s 138, s 241(3), s 244 Shire of Busselton District Town Planning Scheme No 20, cl 85 State Administrative Tribunal Act 2004 (WA), s 3(1) State Administrative Tribunal Rules (WA), r 10 Town Planning and Development Act 1928 (WA), s 20(5)
Case References:	Landpark Holdings Pty Ltd and Western Australian Planning Commission [2007] WASAT 130 Rocca & Anor and Western Australian Planning Commission [2007] WASAT 110
Orders	1. The application for review by the President in relation to the determination made on 11 September 2007 in proceedings DR 153 of 2007 is allowed.,2. The decision and orders made by the Tribunal on 11 September 2007 in proceedings DR 153 of 2007 are revoked.,3. The application for review of the decision of the Western Australian Planning Commission to refuse subdivision approval of Lot 204 Autumn Rise, Yallingup into two lots is affirmed.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : WESTERN AUSTRALIAN PLANNING COMMISSION and DIGGINS [2008] WASAT 9 MEMBER : JUSTICE M L BARKER (PRESIDENT) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 29 JANUARY 2008 FILE NO/S : DR 342 of 2007 BETWEEN : WESTERN AUSTRALIAN PLANNING COMMISSION

Applicant

AND

SEAN KEENAN DIGGINS

Respondent

Catchwords:

Review by President of determination of Tribunal upon a matter involving a question of law under Planning and Development Act 2005 (WA), s 244 - Tribunal granted subdivision approval for battleaxe rural residential subdivision - Current lot configuration generally consistent with and created pursuant to development guide plan - Local planning scheme states that no further subdivision will be permitted of lots created pursuant to development guide plan - Whether Tribunal erred in law - Whether subdivision is incapable of approval - Whether approval of subdivision conflicts with provision of local planning scheme - Whether statutory exception established to enable…

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: [2008] WASAT 9
Decision Date: 29 JANUARY 2008

CaseChat Overview and Summary

The case involves the Western Australian Planning Commission and Diggins, where the dispute pertains to the approval of a subdivision. The parties appeared before the President of the Civil and Administrative Tribunal (C&AT) of Western Australia, who was reviewing a decision made by the Tribunal regarding the approval of a subdivision. The Tribunal had granted approval for the subdivision of Lot 204 Autumn Rise, Yallingup into two lots, which was contested by the Planning Commission.

The central legal issues in this case were whether the Tribunal had erred in law in granting the subdivision approval, whether the subdivision was incapable of approval, whether the approval conflicted with the local planning scheme, whether a statutory exception existed that would allow for the approval despite the conflict, and whether any hardship would enable the approval. The Planning Commission argued that the local planning scheme did not permit further subdivision of lots created under the development guide plan, which was the case for Lot 204.

In its decision, the President of the C&AT found that the Tribunal had indeed erred in law. The President concluded that the local planning scheme did not permit the further subdivision of lots created under the development guide plan. Furthermore, the President held that there was no statutory exception that would allow for the approval despite the conflict with the local planning scheme. The President also determined that no hardship was demonstrated that would enable the approval of the subdivision. Consequently, the decision of the Tribunal was revoked, and the Planning Commission's refusal to approve the subdivision was affirmed.

The final orders of the President were to allow the application for review by the President in relation to the Tribunal's determination, to revoke the decision and orders made by the Tribunal, and to affirm the Planning Commission's decision to refuse subdivision approval of Lot 204 Autumn Rise, Yallingup into two lots.

Orders

Orders of the court

1. The application for review by the President in relation to the determination made on 11 September 2007 in proceedings DR 153 of 2007 is allowed. 2. The decision and orders made by the Tribunal on 11 September 2007 in proceedings DR 153 of 2007 are revoked. 3. The application for review of the decision of the Western Australian Planning Commission to refuse subdivision approval of Lot 204 Autumn Rise, Yallingup into two lots is affirmed.

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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