WESTERN AUSTRALIAN PLANNING COMMISSION and HOGAN

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.