WA PLANNING COMMISSION IN THE SUPREME COURT
It would be reasonable to expect that the Western Australian Planning Commission
(WAPC) would apply planning laws and policies fairly and accurately in all
cases. Unfortunately, there are several recent cases in which the Supreme
Court of Western Australia has found that the WAPC and its predecessor the
State Planning Commission have failed to get it right. Some of these
cases are summarised below.
1. Temwood Holdings Pty Ltd -v- Western Australian Planning
Commission [2002] WASCA 10
The Metropolitan Region Scheme (MRS) reserved a strip of land 200 metres
deep running the length of the foreshore frontage for parks and recreation
on land at Singleton, north of Mandurah. In an attempt to avoid paying
compensation to the developer/landowner, the WAPC approved applications for
subdivision but imposed a condition that the 200 metre strip had to be “ceded”
(i.e. transferred or relinquished) to the government free of cost and without
any payment of compensation by the government.
The three Supreme Court judges found that there was
“no planning purpose identified” and that the WAPC had imposed the condition
for financial reasons instead of planning purposes. All three judges
agreed that the WAPC had not exercised its powers in good faith for a legitimate
planning purpose.
2. Western Australian Planning Commission -v- Erujin
Pty Ltd [2001] WASCA 139
The landowner applied to subdivide land at Wungong into two lots with the
smaller lot to include the Wungong Brook and its foreshore reserve.
The WAPC imposed a condition that the smaller lot was to be relinquished
to the government free of cost and without any payment of compensation.
The landowner won its appeal to the Town Planning Appeal Tribunal against
the imposition of that condition. The WAPC then appealed to the Supreme
Court. The Supreme Court dismissed the various
grounds of appeal raised by the WAPC. The judge agreed that “there
is an air of unreality” about the WAPC’s approach. The judge found
that “proper planning principles could not justify that result”.
3. Ex Parte Helena Valley/Boya Association (Inc); State
Planning Commission and Beggs (1989) 2 WAR 422
Substantial alterations to the Metropolitan Region Scheme (MRS) could only
be made when certain requirements were followed. The three Supreme
Court judges found that the Metropolitan Planning Council, to whom the State
Planning Commission purported to delegate its authority, did not have the
power to form the opinion as to whether or not the amendment was substantial.
Also, one of the judges (with whom a second judge agreed) referred to certain
important factors which should have been taken into account in arriving at
the decision and said “I consider it most surprising that there is no record
of any discussion concerning them in the minutes of the Council’s meeting”.
The judge found that the Council, as the Commission’s
delegate “did not properly apply its mind” to the question.
4. Ingram -v- Western Australian Planning Commission
[2003] WASCA 77
The WAPC rejected the application of two landowners for approval to subdivide
their land at Serpentine. The landowners appealed to the Town Planning
Appeal Tribunal which also refused to approve the subdivision. The Supreme Court found that the main factor which had to
be considered under the planning policies had not been properly considered.
5. Re Western Australian Planning Commission; Ex Parte
Leeuwin Conservation Group Inc [2002] WASCA 150
The Supreme Court found that “the power of approval pursuant to section 20
has not been validly exercised in this case”. Despite the fact that
the WAPC had failed to comply with the statutory procedure the Court weighed
up the various factors and ultimately decided not to interfere with the decision.
6. Conclusion
Sadly, the above cases show that the WAPC has failed to apply proper planning
principles on more than one occasion. This record is unsatisfactory,
particularly as 4 of these 5 cases have been decided in the last two years.
People should not have to end up in the Supreme Court to ensure that the
WAPC is doing its job properly. The above cases plus the fact that
the WAPC failed to apply the 100 metres at South Beach at the MRS stage in
the face of overwhelming submissions suggests that a proper planning decision
is unlikely to be made at the South Beach subdivision stage. Unfortunately,
Supreme Court involvement may once again be necessary.
Back to home page