Associated Provincial Picture Houses Ltd v Wednesbury Corporation - [2010] WASC 192 - WASC 2010 case summary — Zoe

[6]

A draft management statement has been submitted to the respondent.

At the time that this application for review was lodged there were, it appears, two current planning approvals each purporting to be valid in respect of the site: one for 34 units expiring in October 2008 and one for 32 units expiring in September 2009.

In February 2008, the Shire issued a building licence for an upgrade and extension to the existing building. The facilities proposed were consistent with the conditions of the 34 unit development approval and included a five-bed respite facility, community facilities, a doctor's room, a gymnasium, craft room, dining room and lounge.

In May 2008, the Shire granted approval for site works associated with the overall development of the site.

It is unnecessary in these proceedings to resolve any questions that may arise out of these apparently 'competing' approvals. For present purposes, it is sufficient to observe that no party suggests that any development approval (particularly, say, for the 34 lots reflected in the building licence) or support for a corresponding survey-strata, is somehow invalid administrative action on the part of the Shire.

Finally, we note that Mr AA Stewart, an expert planner appearing as a witness for the applicant, stated that he had visited the site and that he had observed these works under construction.

The proposed subdivision

The proposed subdivision is to create 34 survey-strata lots varying in size from 310 square metres to 479 square metres. This is in addition to the common property which will contain the facilities such as the access road and the central building.

The significant difference between this application and the earlier approval by the respondent in 2005, in respect of a built strata application, is that the survey-strata titles will enable the lots to be sold as vacant lots; that is, without any buildings on the individual lots.

The respondent's decision

The respondent received the application on 7 January 2005 but, as has been mentioned, deferred a decision until after the result of the Supreme Court action referred to above. On 18 March 2008, the respondent refused the application for the following three reasons:

"(1) The proposed survey-strata subdivision does not comply with the Commission's Policy DC 1.1, a provision of State Planning Policy No 1 (State Planning Framework) by reason of the proposal being inconsistent with orderly and proper planning. The development of the site in accordance with the Shire of Mundaring Town Planning Scheme No 3 is reliant on the coordinated development of the site as approved by the Shire of Mundaring.

(2) The creation of 34 vacant survey-strata lots could impact on the provision of the communal services required by the Shire of Mundaring's approval to commence development on site and have an adverse impact on the amenity of the [residents] of the proposed survey-strata scheme ...

(3) Approval to the strata title application would set an undesirable precedent for the further subdivision of surrounding lots."

The notice of refusal contained the following advice note explaining the respondent's position:

Parties

Applicant/Plaintiff:

Associated Provincial Picture Houses Ltd

Respondent/Defendant:

Wednesbury Corporation

Legislation Cited (6)

Administrative Tribunal Act 2004

Titles Act 1985

Development Act 2005

Land Act 1893

Development Regulations 2009

Information Act 1992

Cases Cited (33)

RE WESTERN AUSTRALIAN PLANNING COMMISSION; EX PARTE SOLOMON [2010] WASC 192 (11 June 2010)

Cazaly Iron Pty Ltd v The Honourable John Bowler MLA, Minister for Resources [2006] WASCA 282

Commercial Properties Pty Ltd and Western Australian Planning Commission [2008] WASAT 278

Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24

Perpetual Trustees WA Ltd v City of Joondalup [1999] WASCA 196

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

Re Application for a Writ of Certiorari against the State Administrative Tribunal; Ex parte Solomon [2009] WASC 116

Re Carey; Ex parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501

Re Carnarvon Shire; Ex parte Humphrey [2005] WASCA 182

Re MacTiernan; Ex Parte Coogee Coastal Action Coalition Incorporated [2004] WASC 264

Re Michael; Ex parte Epic Energy (WA) Nominees Pty Ltd [2002] WASCA 231; (2002) 25 WAR 511

Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59

Re Real Estate and Business Agent Supervisory Board; Ex Parte Cohen [1999] WASCA 47; (1999) 21 WAR 158

Re Shire of Mundaring; Ex parte Solomon [2007] WASCA 132

Stampalia v The Stewards of the Western Australian Trotting Association [1999] WASC 7

Weal v Bathurst City Council [2000] NSWCA 88; 20111 LGERA 181

Yallingup Residents Association (Inc) v State Administrative Tribunal [2006] WASC 52

In Inland Revenue Commissioners v National Federation of Self-Employed & Small Businesses Ltd [1981] UKHL 2; [1982] AC 617, Lord Diplock explained, at 642 - 644, the purpose of the order nisi stage of an application for a prerogative writ:

Some different formulations, in other cases, as to what constitutes an 'arguable case', are referred to by McLure J (as her Honour then was) in Re Anastas; Ex parte Welsby [2001] WASC 178 at [15] - [17]. Also see Re MacTiernan; Ex parte Coogee Coastal Action Coalition Incorporated [2004] WASC 264, where McLure J said, at [47]:

'The applicant must establish an arguable case. On any view that requirement will not be satisfied if the case is so clearly untenable that it cannot succeed (being the test in General Steel Industries Inc v Commissioner for Railways of New South Wales [1964] HCA 69; (1964) 112 CLR 125 at 130). I do not propose to reconsider the different formulations of the test applied in this Court to which I referred in Re Anastas; Ex parte Welsby [2001] WASC 178. I will apply the General Steel test suitably adapted to reflect the fact that there must be evidence to support the factual findings for which the applicant contends.'

(1986) 162 CLR 24

(1998) 194 CLR 355

(2006) 32 WAR 501

(2002) 25 WAR 511

(2003) 198 ALR 59

(1999) 21 WAR 158

(1994) 14 WAR 120

(1993) 9 WAR 215

(1964) 112 CLR 125

(2007) 34 WAR 342

(2001) 206 CLR 323

(1995) 184 CLR 163

(2000) 204 CLR 82

Associated Provincial Picture Houses Ltd v Wednesbury Corporation

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (99 paragraphs)

Parties

Legislation Cited (6)

Cases Cited (33)

RE WESTERN AUSTRALIAN PLANNING COMMISSION; EX PARTE SOLOMON [2010] WASC 192 (11 June 2010)