Wilson v Western Australian Planning Commission - [2007] WASC 39

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: WILSON & ANOR -v- WESTERN AUSTRALIAN PLANNING COMMISSION [2007] WASC 39

CORAM: LE MIERE J

HEARD: 28 JULY 2006

DELIVERED : 23 FEBRUARY 2007

FILE NO/S: SJA 1050 of 2004

BETWEEN: GARY WILLIAM WILSON
DEBORAH JANE WILSON
Appellants
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

ON APPEAL FROM:
Jurisdiction              :  TOWN PLANNING APPEAL TRIBUNAL OF WESTERN AUSTRALIA
Coram  :MR J G JORDAN
Citation  :[2004] WATPAT 86

Catchwords:

Administrative law - Town planning - Appeal from WA Town Planning Appeal Tribunal - Whether Tribunal erred in law - Whether Tribunal fettered its discretion - Whether Tribunal gave proper reasons

Legislation:

State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA)
State Administrative Tribunal Act 2004 (WA), s 167
Town Planning and Development Act 1928 (WA), s 20, s 61

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellants: Dr J T Schoombee & Mr T Houweling
Respondent: Mr C S Bydder

Solicitors:

Appellants: Cornerstone Legal
Respondent: State Solicitor's Office

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

Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

LE MIERE J: The appellants are the registered proprietors of Lot 835 Rowe Road, Serpentine. Lot 835 has an area of 30.9 hectares, is located approximately 4.5 kilometres west of the Serpentine town centre and 44 kilometres south‑east of the Perth central area. The land is zoned Rural under the Metropolitan Region Scheme ("MRS") and the Shire of Serpentine‑Jarrahdale Town Planning Scheme No 2 ("TPS2"). The appellants applied to the respondent to approve subdivision of the land into three lots, each of 10.3 hectares with equal frontage to Rowe Road.
The respondent refused the application for the following reasons:
"1.The land is identified as Rural in the [MRS] and [TPS2] where the ad hoc subdivision of land that will adversely impact on the rural character and amenity is not supported.
2.Subdivision of this land would be contrary to the settlement strategy for the Shire of Serpentine‑Jarrahdale which seeks to protect the rural character of the area and use of land for productive agricultural activity within the area designated as 'Rural Policy Area'.
3.There is no nexus between the proposed lot size and the vector of subdivision and development in the locality.
4.A capability of the land to accommodate closer subdivision and development has not been demonstrated.
5.Approval to the subdivision would set an undesirable precedent for the further subdivision of surrounding lots."
The appellants appealed to the Town Planning Tribunal of Western Australia against the respondent's refusal to approve subdivision. The Tribunal dismissed the appeal. The appellants now appeal to this Court from the decision of the Tribunal.

The legislative framework

The application for subdivision and the appeal to the Tribunal were made under the Town Planning and Development Act 1928 (WA) ("the Act"). The appeal to this Court was made under the Act and instituted on 28 May…

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: [2007] WASC 39
Decision Date: 23 FEBRUARY 2007

CaseChat Overview and Summary

In the case of Wilson v Western Australian Planning Commission, the applicant sought review of a decision by the WA Town Planning Appeal Tribunal to refuse an appeal against the refusal of a planning permit. The primary dispute centred on the adequacy of the Tribunal's reasons for its decision, whether the Tribunal had fettered its discretion, and if it had considered irrelevant factors. The appeal was heard in the Supreme Court of Western Australia.

The central legal issues involved determining whether the Tribunal had erred in law by not providing sufficient reasons for its decision, whether it had fettered its discretion by allowing the decisions of others to influence its judgment, and if it had considered irrelevant factors in its assessment. Additionally, the court had to consider if the Tribunal had properly applied the planning policies and principles relevant to the case.

The Supreme Court found that the Tribunal had not erred in law. It held that the Tribunal's reasons were sufficient, noting that the reasons should inform rather than be overly scrutinised. The court rejected the contention that the Tribunal had fettered its discretion, clarifying that the Tribunal had not accepted the evidence that the land should have been included in the Shire's Farmlet Policy Area. Instead, the Tribunal had merely commented on the planning logic of selecting a single lot. The court also found that the Tribunal had not considered irrelevant factors in making its decision.

The court dismissed all grounds of appeal, affirming the decision of the Tribunal. The Tribunal's decision to refuse the appeal against the planning permit refusal was upheld.

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

In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271 – 272 and 291 the High Court said that the reasons of an administrative decision maker are meant to inform and not to be scrutinised upon over‑zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. That is the appropriate approach to the reasons for decision of the Tribunal. A court determining an appeal involving a question of law must be wary of reconsidering the merits of the decision in the sense of the findings of fact, the identification of appropriate planning policies and the application of those facts to the policies and principles. I am satisfied that the Tribunal identified the issue referred to by the appellants by reference to [77] and [78] of the judgment of Barker J in Ingram. The Tribunal specifically referred to the matter at [74] of its reasons. The Tribunal found that the "test" was not satisfied in this case because the productive use of the lots under the proposed subdivision could only be the subject of speculation. That is, according to the Tribunal, the evidence did not show that the land may well be used more intensively or more productively, or even as intensively and as productively, than it presently was being used. Grounds 1, 2 and 3 are not made out. Ground 4 of the appeal is that:"The Tribunal erred in law by fettering its discretion and taking into account the irrelevant consideration that the land ought to have been included by the Shire as part of a rural strategy allowing for closer subdivision of all surrounding lots of a similar size but that until that has been done in terms of a formal policy, subdivision should be refused." The appellants based this ground upon the assertion that the Tribunal accepted the evidence of Mr Dykstra that the land in question and all lots of a similar size in the locality should have been included within the Shire's Farmlet Policy Area. Within the Farmlet Policy Area, the guidelines for subdivision and development are more generous than those applied to the Rural Policy Area. The proposed subdivision would meet the guidelines applying in the Farmlet Policy Area that there should be a 10 hectare minimum lot size where the land generally has a lower capability for agriculture use. The appellants further submitted that the Tribunal fettered its discretion because it in effect permitted the decisions and actions of others to control the exercise of the discretion invested in the Tribunal – namely the decision of the Shire not to include the subject land or the surrounding area in the Farmlet Policy Area. This ground of appeal is misconceived. The Tribunal did not accept that the land in question and all lots of similar size in the locality should have been included within the Farmlet Policy Area. The Tribunal agreed with Mr Dykstra's view that it would have been a more appropriate approach to the planning of the locality if all lots similar in size to the subject land were included within the Farmlet Policy Area, rather than merely the subject land because "to select just one property from amongst all of these appears to have little planning logic". The Tribunal did not accept that the land in question and all lots of a similar size in the locality should have been included within the Shire's Farmlet Policy Area. The Tribunal merely stated that if lots were to be included it should not be one lot from amongst all the others.