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.

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