WESTERN AUSTRALIAN PLANNING COMMISSION and RUFUS - [2008] WASAT 20

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: WESTERN AUSTRALIAN PLANNING COMMISSION and RUFUS [2008] WASAT 20

MEMBER: JUSTICE M L BARKER (PRESIDENT)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 5 FEBRUARY 2008

FILE NO/S: DR 410 of 2007

BETWEEN: WESTERN AUSTRALIAN PLANNING COMMISSION
Applicant
AND
GLENDA LOUISE RUFUS
Respondent

Catchwords:

Review by the President of determination of Tribunal upon a matter involving a question of law under Planning and Development Act 2005 (WA), s 244 - Whether any question of law raised

Legislation:

Planning and Development Act 2005 (WA), s 244, s 251(3)
Shire of Denmark Town Planning Scheme No 3, cl 5.2.3
State Administrative Tribunal Act 2005 (WA), s 3(1)

Result:

Application for review dismissed
Determination of Tribunal in DR 196 of 2007 affirmed

Category: B

Representation:

Counsel:

Applicant: Ms KL Pope
Respondent: Self-represented

Solicitors:

Applicant: State Solicitor's Office
Respondent: Self-represented

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

Clive Elliot Jennings and Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433
Hart and Western Australian Planning Commission [2007] WASAT 187
Landpark Holdings Pty Ltd and Western Australian Planning Commission [2007] WASAT 130
Lawson and Shire of Mundaring [2005] WASAT 1; (2005) 41 SR (WA) 67
Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117
Rufus and Western Australian Planning Commission [2007] WASAT 281
Williams and Western Australian Planning Commission [2005] WASAT 10

REASONS FOR DECISION OF THE PRESIDENT:

Summary of President's decision

The Western Australian Planning Commission sought review by the President of a determination of the Tribunal in which it granted subdivision approval for a two lot subdivision. However, the application for review did not raise any question of law concerning the determination. The application for review was dismissed and the determination of the Tribunal was affirmed.

Application for review by President

The Western Australian Planning Commission (Commission) has applied under s 244 of the Planning and Development Act 2005 (WA) (PD Act) for review by the President of a determination made by the Tribunal on 26 October 2007 in which the Tribunal granted subdivision approval for a two lot subdivision at Lot 77 Inlet Drive, Denmark (site) ‑ see Rufus and Western Australian Planning Commission [2007] WASAT 281.
Section 244 of the PD Act enables the President to review a determination upon a "matter involving a question of law" that was made by the Tribunal when constituted without a legally qualified member, as defined in s 3(1) of the State Administrative Tribunal Act 2004 (WA). The determination in question was made by the Tribunal when constituted by Senior Sessional Member Mr R Easton, who is not a legally qualified member. However, no question of law concerning the determination is raised in the review. What the Commission appears to ultimately seek is a factual or merits redetermination. As I said in Lawson and Shire of Mundaring [2005] WASAT 1; (2005) 41 SR (WA) 67 at [10], I…

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 20
Decision Date: 5 FEBRUARY 2008

CaseChat Overview and Summary

The case before the court involved the Western Australian Planning Commission and Rufus, a property owner, regarding a dispute over a planning determination. The matter was brought before the court for review under the Planning and Development Act 2005 (WA), section 244, which allows for a review of a tribunal's determination if a question of law is raised. The Tribunal had previously made a determination in DR 196 of 2007, which Rufus sought to have reviewed.

The primary legal issue for the court was whether any question of law was raised in the Tribunal's determination that warranted a review. The court needed to assess whether the Tribunal had correctly applied the law in making its decision. This involved examining the evidence presented, the application of relevant statutory provisions, and the interpretation of the planning laws and regulations.

In its reasoning, the court found that the Tribunal had not erred in its application of the law. The court examined the evidence and legal arguments presented and concluded that the Tribunal's determination was sound and properly made. As a result, the court dismissed the application for review and affirmed the Tribunal's decision made on 26 October 2007 in DR 196 of 2007.

The final orders of the court were to dismiss the application for review and affirm the determination of the Tribunal. This decision ensures that the planning determination made by the Tribunal remains in place, and Rufus's appeal was unsuccessful.

Orders

Orders of the court

1. The application for review is dismissed. 2. The determination of the Tribunal made on 26 October 2007 in DR 196 of 2007 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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