WILLIAMSON and WESTERN AUSTRALIAN PLANNING COMMISSION - [2011] WASAT 94

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: WILLIAMSON and WESTERN AUSTRALIAN PLANNING COMMISSION [2011] WASAT 94

MEMBER: MR J JORDAN (MEMBER)

HEARD: 6 APRIL 2011

DELIVERED : 23 JUNE 2011

FILE NO/S: DR 2 of 2011

BETWEEN: ROSS WILLIAMSON
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Town planning - Subdivision - Refusal - Proposed creation of 27 lots of approximately 4,000 square metres plus new road - Subdivision site and surrounding lots zoned General Rural - Draft local planning scheme to rezone site to residential and allow lot sizes proposed - Weight to be given to draft local planning scheme - Requirement for structure plan in draft local planning scheme - Impact of subdivision on neighbouring land use potential - Impact of subdivision on future subdivision of neighbouring lots - Precedent - Orderly and proper planning

Legislation:

Environmental Protection Act 1986 (WA)
Environmental Protection (Noise) Regulations 1997 (WA)
Environmental Protection Regulations 1987 (WA)
Planning and Development Act 2005 (WA), s 138, s 138(3), s 138(3)(a), s 138(3)(e), s 253(3)
Residential Design Codes of Western Australia (2010), Table 1
Shire of Chapman Valley Town Planning Scheme No 1, Zoning and Development Table, Appendix 5A
State Administrative Tribunal Act 2004 (WA), s 31
Transfer of Land Act 1893 (WA), s 70A

Result:

The application for review is dismissed
The refusal of the subdivision application is affirmed

Category: B

Representation:

Counsel:

Applicant: Selfrepresented
Respondent: Mr P Spragg

Solicitors:

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

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

Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522
Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

This matter involved an application for review of the refusal by the Western Australian Planning Commission to approve the subdivision of a rural zoned lot at Buller, a locality immediately to the north of Geraldton into 27 lots of about 4,000 square metres. The lot is in an area known as the Richards Road cell.
Relevant to the consideration of the matter was a recently advertised draft local planning scheme that included the site and neighbouring lots in a residential zone. Raised as an issue was whether the residential use of the proposed lots would result in a potential land use conflict with neighbouring rural zoned lots. Also considered was the weight to be afforded the draft local planning scheme and whether the preparation of a structure plan, referred to in the draft local planning scheme, was necessary before subdivision into residential lots could be considered.
The Tribunal formed the view that the likelihood of uses incompatible with residential subdivision being developed on lots neighbouring the site was minimal. This of itself was not considered sufficient, however, to support the creation of residential sized lots in a rural zone. For subdivision to be considered more was required. In this matter a relevant consideration was the draft…

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.

Keep reading for free

Create a free CaseChat account to read WILLIAMSON and WESTERN AUSTRALIAN PLANNING COMMISSION and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2011] WASAT 94
Decision Date: 23 JUNE 2011

CaseChat Overview and Summary

In the matter of Williamson and the Western Australian Planning Commission, the court was called upon to determine the legality of the Planning Commission's refusal to approve a subdivision proposal. The applicant, Williamson, sought to create 27 lots on a property zoned General Rural, with a proposed road. The surrounding land was also zoned General Rural. The dispute centred on the Commission's refusal to approve the subdivision, which included considerations of a draft local planning scheme that proposed rezoning the site to residential and permitting the lot sizes Williamson had suggested. The case required the court to decide the weight to be given to the draft local planning scheme, the necessity of a structure plan as per the draft scheme, and the impact of the proposed subdivision on the use potential of neighbouring land and the future subdivision of adjacent lots. Additionally, the court had to consider the precedent set by previous cases and the overarching principle of orderly and proper planning.

The court considered several legal issues. Firstly, it had to assess the significance of the draft local planning scheme in the decision-making process of the Planning Commission. This involved determining whether the draft scheme could influence the Commission's refusal of the subdivision proposal and how much weight should be attributed to it. Secondly, the court examined the requirement for a structure plan, as stipulated in the draft local planning scheme, and its relevance to the approval of the subdivision. Thirdly, the court evaluated the impact of the proposed subdivision on the neighbouring properties, including the potential effect on the use of those lands and the feasibility of future subdivisions. Lastly, the court looked at relevant precedent and the overarching principle of orderly and proper planning to guide its decision.

The court found that the Planning Commission's refusal to approve the subdivision was not unreasonable. It held that the draft local planning scheme carried significant weight in the decision-making process, particularly in relation to the proposed rezoning and lot sizes. The court also determined that the requirement for a structure plan, as outlined in the draft scheme, was relevant and necessary for the approval of the subdivision. Regarding the impact on neighbouring land, the court concluded that the proposed subdivision would negatively affect the use potential of adjacent properties and the future subdivision of those lots. The court further noted that the precedent set by previous cases supported its decision and that the principle of orderly and proper planning reinforced the Commission's refusal. Consequently, the court upheld the Planning Commission's decision to refuse the subdivision proposal.

Orders