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[2007] WASAT 8
General information, not legal advice.
State Administrative Tribunal (WA)
2007-01-15
Original judgment source is linked above.
I certify that this and the preceding [57] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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19 The expression "residential development", which is used in each of the first two paragraphs of cl 3.4 of the Scheme, is not defined in the Scheme or in the Residential Design Codes of Western Australia (2002) (Codes). Clause 1.9.3 of the Scheme provides that words and expressions used in the Scheme, but not defined in Sch 1, elsewhere in the Scheme or in the Codes, shall have their normal and common meanings. The adjective "residential" is relevantly defined in The Macquarie Dictionary (4th ed, Macquarie, Sydney, 2005) at page 1024 as "of or relating to residence or residences". The noun "residence" is relevantly defined as "the place, especially the house, in which one resides; dwelling place; dwelling". The verb "reside" is relevantly defined as "to dwell permanently or for a considerable time; have one's abode for a time: he resided in Box Hill. - phrase". The noun "abode" is relevantly defined at page 3 as "a dwelling place; a habitation". The words "dwelling place" and "habitation" are defined at page 445 and page 639, respectively, as "a place of residence or abode" and "a place of abode; dwelling". The normal and common meaning of "residential development" is, therefore, development in which people dwell permanently or for a considerable time, or where people have their abode for a time. Similarly, in Derring Lane Pty Ltd v Port Phillip City Council (No 2) [1998] VSC 269, the Victorian Supreme Court, having referred to the dictionary definition of "residential" in the Oxford English Dictionary, concluded that:
20 Having set out this quotation from Derring Lane Pty Ltd v Port Philip City Council (No 2), the State Administrative Tribunal determined in The Owners of Strata Plan 18449 and City of Joondalup [2006] WASAT 101 at [23] as follows:
53 I addressed the issue of adverse planning precedent in detail in Nicholls and Western Australian Planning Commission [2005] WASAT 40 at [71] [77]. At [74], I adopted the criteria stated by Lloyd J in the Land and Environment Court of New South Wales in Goldin v Minister for Transport [2002] NSWLEC 75; (2002) 121 LGERA 101 as to the circumstances in which precedent is a relevant consideration in a planning assessment, namely:
(2002) 121 LGERA 101