State Administrative Tribunal (WA)|2019-07-25

This matter had an usual set of circumstances particularly in respect of Issue 1 given the nature of surveystrata and how it is dealt with on termination. However, the applicants, as the Tribunal has found, are entitled to have their proposal considered not as 'nesting' as contended by the respondent but rather under the principles set out in cl 5.1.1 P1.2 of the RCodes and due to that finding consideration of Issue 2 was unnecessary.
However, the Tribunal was then obliged as a matter of orderly and properly planning to consider Issue 3 and whether the proposed subdivision meets the criteria in cl 5.1.1. P1.2 of the RCodes to support a variation to the average lot size requirements for R20 coded land.
In exercising its discretion and applying the criteria in cl 5.1.1 P1.2 of the RCodes which is a state planning policy, the Tribunal is cognisant that it should not slavishly apply policy as many cases have pointed out, but rather is tasked with measuring the proposed application against the relevant planning principles.
In Bormolini and Western Australian Planning Commission [2014] WASAT 121 at [30], the Tribunal observed:

And in Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 at [182], the Supreme Court stated:

While the exercise of discretion will involve a judgment about what is suitable, appropriate, or apt or correct in a particular case, that judgment must (if it is to be 'orderly') be an objective one. If the exercise of discretion is to be an orderly one, the planning principles identified as relevant to an application should not be lightly departed from without the demonstration of a sound basis for doing so, which basis is itself grounded in planning law or principle. A broad range of considerations may be relevant in that context.

In the present case, after carefully considering all of the evidence and for the reasons set out above, the Tribunal is not satisfied that any of the criteria set out in cl 5.1.1 P1.2 of the RCodes apply and as a matter of orderly and proper planning, the Tribunal can find no cogent reason why, in the particular circumstances of the present case, a variation to the average lot size should be allowed and the subdivision applied for approved.
In the circumstances, the respondent's decision to refuse the subdivision application will be affirmed, albeit for entirely different reasons to those for which the respondent refused it, and the application for review will be dismissed.

The respondent's decision dated 6 April 2018 to refuse the proposed subdivision is affirmed.
The application for review is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

Development Regulations 2009

Development Act 2005

DE ABREU and WESTERN AUSTRALIAN PLANNING COMMISSION [2019] WASAT 57 (25 July 2019)

Bormolini and Western Australian Planning Commission [2014] WASAT 121

Crugnale and Commissioner of State Revenue [2019] WASAT 8

Marshall v Metropolitan Redevelopment Authority [2015] WASC 226

DE ABREU and WESTERN AUSTRALIAN PLANNING COMMISSION [2019] WASAT 57 (25 July 2019)

At a glance

Court

Decision date

Source

Judgment (7 paragraphs)

Legislation Cited (5)

Cases Cited (4)

DE ABREU and WESTERN AUSTRALIAN PLANNING COMMISSION [2019] WASAT 57 (25 July 2019)