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[2008] WASAT 227
State Administrative Tribunal (WA)
2008-09-26
Original judgment source is linked above.
I certify that this and the preceding [130] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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93 Second, Mr Hotchkin relies on the decision of the former Town Planning Appeal Tribunal in Australian Real Estate Investment Ltd and Western Australian Planning Commission [2004] WATPAT 51 in which the Town Planning Appeal Tribunal said in relation to the floorspace guide in SPP 4.2, at [61], that the 'district centre retail floorspace cap can be no more than a guide' and, at [64], that the cap is 'at best indicative and in no way determinative and should give way as a primary measure to the question of functionality'.
121 As determined earlier in these reasons, the proposal is materially inconsistent with the strategic and statutory planning framework. However, as Barker J held in Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433 at [24], a policy will be expected to guide the exercise of planning discretion, but may not replace discretion in the sense that it is to be inflexibly applied regardless of the merits of the particular case. Nevertheless, the relevant consideration in many applications will be why the policy should not be applied or 'why the planning principles that find expression in the "policy" are not relevant to the particular application'.
(2002) 122 LGERA 433