WESTERN AUSTRALIAN PLANNING COMMISSION and HOGAN - [2018] WASAT 25

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION:   WESTERN AUSTRALIAN PLANNING COMMISSION and HOGAN [2018] WASAT 25
MEMBER:   JUDGE D PARRY, DEPUTY PRESIDENT
HEARD:   DETERMINED ON THE DOCUMENTS
DELIVERED          :   16 APRIL 2018
FILE NO/S:   DR 359 of 2017
BETWEEN:   WESTERN AUSTRALIAN PLANNING COMMISSION
Applicant
AND
TERRY HOGAN
Respondent

Catchwords:

Review by judicial member of determination of Tribunal upon a matter involving a question of law under s 244 of the Planning and Development Act 2005 (WA) - Subdivision - Tribunal set aside refusal by Western Australian Planning Commission of two lot subdivision of Rural zoned land and granted conditional subdivision approval - Whether Tribunal erred in law - Whether Tribunal misconstrued meaning of term 'strategy or scheme' in State Planning Policy 2.5 - Rural Planning and Development Control Policy 3.4 - Subdivision of rural land - Whether 'strategy or scheme' includes local planning policy - Whether, by misconstruing meaning of term 'strategy or scheme' in State Planning Policy 2.5 - Rural Planning and Development Control Policy 3.4 - Subdivision of rural land, Tribunal did not apply those policies, but something else - Whether Tribunal had regard to irrelevant consideration - Whether provision of local planning policy which is inconsistent with State planning policy or Development Control Policy of Western Australian Planning Commission is irrelevant consideration in subdivision assessment - Weight to be given to local planning policy which is inconsistent with State planning policy or Development Control Policy of Western Australian Planning Commission in subdivision assessment - Split planning system in Western Australia between subdivision control and assessment and development control and assessment under which subdivision is under exclusive authority of Western Australian Planning Commission (and not local governments)

Legislation:

Planning and Development (Development Assessment Panels) Regulations 2011 (WA)
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2 (deemed provisions), cl 3(1), cl 3(3), cl 3(5)
Planning and Development Act 2005 (WA), s 4(1), s 26, s 26(1), s 26(2), s 26(3), s 27, s 28, s 29, s 29(1), s 87(4), s 135, s 135(1), s 138(1), s 138(2), s 142, s 142(1), s 142(2), s 143, s 143(1), s 241(1), s 244, s 244(2)(b), s 244(3), s 251(1)
Shire of Plantagenet Town Planning Scheme No 3, cl 1.6, cl 7.6
State Administrative Tribunal Act 2004 (WA), s 3(1)
State Administrative Tribunal Rules 2004 (WA), r 10

Result:

Tribunal's determination set aside
Matter remitted to Tribunal (as originally constituted) for reconsideration in accordance with these reasons

Summary of Tribunal's decision:

The Western Australian Planning Commission sought review by a judicial member upon a matter involving a question of law of a determination by the Tribunal when constituted without a legally qualified member. In the determination, the Tribunal set aside the Commission's decision to refuse subdivison approval for a two lot subdivision of land zoned Rural into lots of 66.5 hectares (containing an existing vineyard, irrigation infrastructure, cellar sales building and a small area of remnant vegetation) and 151.57…

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: [2018] WASAT 25
Decision Date: 16 APRIL 2018

CaseChat Overview and Summary

This case involves a review of a determination by the Western Australian Planning Commission (Commission) regarding the subdivision of rural land. The applicant, Hogan, sought to subdivide two lots of land zoned Rural. The Commission initially refused the application, but the Tribunal subsequently set aside the refusal and granted conditional subdivision approval. The Commission sought judicial review of the Tribunal's decision, arguing that it involved an error of law. The key legal issues before the court were whether the Tribunal had erred in law by misconstruing the term'strategy or scheme' in State Planning Policy 2.5 and Rural Planning and Development Control Policy 3.4, and whether the Tribunal had regarded irrelevant considerations in making its decision.

The court examined the statutory framework for subdivision control and assessment in Western Australia, which places exclusive authority for subdivision assessment with the Commission, and not local governments. The court found that the Commission's first ground of review involved a question of law, as it concerned a serious misconstruction of the terms of a policy by the Tribunal. The court referred to the decision of the Full Court of the Federal Court in Minister for Immigration, Local Government and Ethnic Affairs v Gray, which held that a serious misconstruction of a policy by a decision-maker may constitute a failure to take into account a relevant factor and result in an improper exercise of statutory power. The court concluded that the Commission's first ground of review involved a question of law of the nature referred to in Gray, as it concerned a fundamental misconstruction of the meaning of the term'strategy or scheme' in the relevant policies.

The court also considered whether the provision of a local planning policy which is inconsistent with State planning policy or Development Control Policy of the Commission is an irrelevant consideration in subdivision assessment. The court noted that the split planning system in Western Australia between subdivision control and assessment and development control and assessment meant that local planning policies were not relevant considerations in subdivision assessment. The court found that the Tribunal had not erred in law by disregarding the inconsistent local planning policy, as it was not a relevant consideration in the assessment of the subdivision application.

In conclusion, the court found that the Commission's first ground of review involved a question of law and the Tribunal's determination was sought to be reviewed upon a matter involving a question of law. The court found that the Tribunal had not erred in law by disregarding the inconsistent local planning policy, as it was not a relevant consideration in the assessment of the subdivision application. The court dismissed the Commission's application for judicial review.

Orders

Orders of the court

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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

However, Mr Hogan submits that the first ground of review does not involve a question of law, because SPP 2.5 and DC 3.4 are 'policies' which '[do] not confer rights or impose duties that are legally enforceable'. In contrast, the Commission submits that a serious misconstruction of the terms of a policy, such as SPP 2.5 or DC 3.4, involves a question of law constituting a legally reviewable error. In support of this submission, the Commission refers to the following passage from the decision of the Full Court of the Federal Court of Australia (Neaves, French and Drummond JJ) in Minister for Immigration, Local Government and Ethnic Affairs v Gray [1994] FCA 1052; (1994) 50 FCR 189, 208:The question arises whether a misapplication or misconstruction of the ministerial policy by the Tribunal gives rise to error which is reviewable on appeal to this Court as an error of law. It must be accepted, as counsel for the Minister submitted, that ministerial policy is not to be construed and applied with the nicety of a statute. Policies are not statutory instruments. They prescribe guidelines in general, and not always very precise, language. To apply them with statutory nicety is to misunderstand their function. On the other hand, where the existence and content of such a policy is to be regarded as a relevant fact which the Tribunal is bound to consider, a serious misconstruction of its terms or misunderstanding of its purpose in the course of decisionmaking may constitute a failure to take into account a relevant factor and for that reason may result in an improper exercise of the statutory power. If a decisionmaker, not bound to apply policy, purports to apply it as a proper basis for disposing of the case in hand but misconstrues or misunderstands it so that what is applied is not the policy but something else, then there may be reviewable error. … (Emphasis added) In my view, the Commission's first ground of review involves a question of law of the nature referred to by the Full Court of the Federal Court in the final sentence of the quotation in the preceding paragraph. What the Commission contends, in essence, is that the Tribunal seriously and fundamentally misconstrued the meaning of the term 'strategy or scheme' in SPP 2.5 and DC 3.4, by interpreting it as including a local planning policy such as Planning Vision, in consequence of which the Tribunal did not apply the provisions of those policies, 'but something else'. This ground, therefore, involves a question of law and the Tribunal's determination is sought to be reviewed upon a matter involving a question of law. Before considering each of the Commission's grounds of review, it is instructive to refer to the statutory framework for subdivision control and assessment in Western Australia. Section 135 of the PD Act requires the approval of the Commission to subdivide land in this State. Section 135(1) of the PD Act states as follows:A person is not to (a)subdivide any lot; or(b)amalgamate any lot with any other lot, whether within the same district or otherwise; or(c)lay out, grant or convey a road,without the approval of the Commission.