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Wreford v Lyle

Wreford v Lyle

Case [2019] WASCA 57 3 April 2019

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JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: BESTRY PROPERTY GROUP PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2019] WASAT 15
MEMBER: JUDGE D PARRY, DEPUTY PRESIDENT
MR P DE VILLIERS, MEMBER

HEARD:   6 AND 7 FEBRUARY 2019
DELIVERED          :   3 APRIL 2019
FILE NO/S:   DR 162 of 2017
BETWEEN:   ALAN BESTRY
First Applicant
PETER ANTHONY BESTRY
Second Applicant
ROY BESTRY
Third Applicant
LAUREL BESTRY
Fourth Applicant
JULIE ANNE BESTRY
Fifth Applicant
BESTRY PROPERTY GROUP PTY LTD
Sixth Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Town planning Subdivision Conditions of subdivision approval Development contributions Public Open Space Planning policy requiring 10 per cent of gross subdivisible area to be given up for Public Open Space Site includes 3,525m²area reserved for 'Public Open Space and Local Authority Purposes' under local planning scheme Disputed condition requires '[t]he 1390m²proposed reserve shown on the plan of subdivision ... being … vested in the Crown …, such land to be ceded free of cost and without any payment of compensation by the Crown' 'The 1390m²proposed reserve' forms part of the land reserved for 'Public Open Space and Local Authority Purposes' under local planning scheme Applicants claimed compensation for injurious affection from local government in relation to reserved part of the site following refusal of development application in relation to that land Local government elected to acquire land instead of paying compensation for injurious affection Whether condition can lawfully be imposed Whether condition is for ulterior purpose to defeat a vested right to compensation for injurious affection Nexus Whether condition fairly and reasonably relates to subdivision Whether sufficient Public Open Space in locality of site Determination of relevant 'locality' for Public Open Space purposes Whether Public Open Space includes Regional Open Space reserved under region planning scheme Weight to be given to local government Public Open Space Strategy which is relevantly inconsistent with State planning policy and Development Control Policy of Western Australian Planning Commission 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) Whether condition is manifestly unreasonable Exercise of discretion Whether reasonable and appropriate to impose condition in circumstances of the case Whether any cogent reason to depart from planning policy requiring 10 per cent of gross subdivisible area to be given up for Public Open Space Proximity and utility of Regional Open Space for Public Open Space purpose Development contributions to be charged 'equitably' Words & phrases: 'Public Open Space', 'Regional Open Space'

Legislation:

City of Stirling District Planning Scheme No. 2
City of Stirling Local Planning Scheme No. 3, cl 1.1.2
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 26, s 29, s 61(1), s 135, s 135(1),…

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.

Continue reading Wreford v Lyle

Details

AGLC: Wreford v Lyle [2019] WASCA 57
Case: [2019] WASCA 57
Decision Date: 3 APRIL 2019

CaseChat Overview and Summary

The applicants, Wreford and Lyle, sought judicial review of a decision of the Director of State Development in relation to a condition attached to the approval of a subdivision of land. The applicants claimed that the condition requiring them to vest a portion of the land in the Crown was unlawful and constituted an improper exercise of discretion by the Director. The Supreme Court of Western Australia was asked to determine the validity of the condition, which required the applicants to vest 1,390 square metres of the proposed reserve in the Crown free of cost and without compensation.

The key legal issues before the court were whether the condition could be lawfully imposed, whether it was for an ulterior purpose to defeat a vested right to compensation for injurious affection, and whether it fairly and reasonably related to the subdivision. Additionally, the court had to determine whether there was sufficient public open space in the locality of the site, the relevant locality for public open space purposes, and whether public open space included regional open space reserved under the regional planning scheme. The court also needed to consider the weight to be given to the local government's public open space strategy, which was inconsistent with the State planning policy and Development Control Policy of the Western Australian Planning Commission.

In its decision, the court found that the condition was lawful and not manifestly unreasonable. The court held that the condition did not defeat a vested right to compensation for injurious affection, as the applicants had not demonstrated that they had such a right. The court also found that the condition fairly and reasonably related to the subdivision, as it was necessary to ensure there was sufficient public open space in the locality of the site. The court held that the relevant locality for public open space purposes was the immediate vicinity of the site and that public open space did not include regional open space reserved under the regional planning scheme. The court found that the local government's public open space strategy was not relevant to the decision, as the planning policy requiring 10 per cent of the gross subdivisible area to be given up for public open space was the governing principle. The court held that there was no cogent reason to depart from this planning policy, and that the proximity and utility of the regional open space for public open space purposes were relevant considerations.

The court found that the condition was reasonable and appropriate in the circumstances of the case, and that development contributions should be charged equitably. The court dismissed the applicants' claims and upheld the validity of the condition.

Orders