Castledine Gregory Law and Mediation

Supreme Court gives guidance on ‘orderly and proper planning’

Content

A recent decision of the Supreme Court of Western Australia has provided the first judicial discussion in Western Australia of the commonly used planning phrase ‘orderly and proper planning’.

 

The Court in Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 rejected a challenge against the Metropolitan Redevelopment Authority’s (MRA) approval of a development application submitted by the Public Transport Authority (PTA) for the PTA’s Claisebrook rail car depot in East Perth.

 

In ruling that the MRA had satisfied the requirements of orderly and proper planning, the Court emphasised the fact that the MRA had been able to provide substantial written evidence of its decision-making process. The existence and the content of this written evidence supported the conclusion that the MRA had made an orderly decision and a proper decision, and further allowed the MRA to demonstrate that it had taken steps to address the other requirements of the redevelopment scheme.

 

Background

 

The PTA’s proposed development was for the extension of the ‘stow roads’ at the Claisebrook rail car depot in East Perth. To the south, this depot was bordered by a residential development in which the applicants lived. The applicants opposed the PTA’s proposed development on the basis of concerns about noise pollution, and how this would affect the amenity and value of their properties.

 

The Claisebrook railcar depot is located within the Central Perth Redevelopment area under section 47 of the Metropolitan Redevelopment Authority Act 2011 (WA). In overseeing the redevelopment of this area, the MRA is required to ‘have due regard for’ or ‘have regard for’ a number of matters listed in the Central Perth Redevelopment Scheme vision and principles, including the requirements of orderly and proper planning.

 

The requirements of orderly and proper planning

 

In the absence of any prior judicial authority, the Court provided this interpretation of the phrase ‘orderly and proper planning’ at paragraph [179]:

 

‘[T]o be orderly and proper, the exercise of a discretion within the planning context should be conducted in an orderly way – that is, in a way which is disciplined, methodical, logical and systematic, and which is not haphazard or capricious’.

 

The Court further stated at paragraph [182]:

 

  • an ‘orderly’ decision must be an objective one; and
  • a discretionary decision will be orderly where the planning principles identified as relevant to an application are not ‘lightly departed from without the demonstration of a sound basis for doing so, which itself is grounded in planning law or principle’.

 

The decision

 

The MRA was found to have satisfied the requirement of orderly and proper planning.

 

The evidence available to the Court showed that the MRA had commissioned a report which addressed a broad range of issues, such as background information relating to the location of the railcar depot; whether the proposed development was consistent with the principles of the Central Perth Redevelopment Scheme; whether the proposed development was consistent with other relevant policies such as those relating to sound attenuation; the issues raised during the public consultation process and by the City of Perth; and the issues raised by an independent sound attenuation report.

 

Although the report did not refer explicitly to the principle of orderly and proper planning, the Court was satisfied that the commissioning of this report demonstrated that the MRA’s development approval was an orderly decision. As stated above, the fact that the MRA had been able to provide substantial written evidence of its decision-making process was seen as a key demonstrator that the MRA had made an orderly and proper decision, and this written evidence further helped to demonstrate that the MRA had satisfied the other requirements of the redevelopment scheme.

 

The Court found that the evidence demonstrated that the MRA had considered those matters it was required to consider in assessing the development approval by seeking out information and guidance. The Court stated that it was not the Court’s role to assessing the merits of the development approval, but only to judge whether the correct procedures had been followed, and the evidence demonstrated that the MRA had followed proper procedures.

 

The judgment can be found at [2015] WASC 226.

 

For further information contact Mark Gregory at Castledine Gregory on (08) 9486 7665 or m.gregory@cglawmediation.com.au.