Council Minutes - Town of Cambridge

COUNCIL MINUTES
TUESDAY 28 AUGUST 2012
COMMENT:
In the directions hearing the SAT member referred to three previous SAT cases where the
reasonableness or fairness of conditions applied by local government authorities have been
considered. The three cases that are regarded as examples in terms of the reasonableness
of conditions are as follows:-
• Baumgartner and City of Joondalup [2005] WASAT 234;
• Kellett and Town of Vincent [2007] WASAT 155; &
• Booth and Town of East Fremantle [2008] WASAT 155.
In all three of these previous cases "The Newbury Tests" which are the recognised and
established tests for the reasonableness and validity of a condition applied in a Planning
Approval were referred to.
In Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221
CLR 30 at [57], McHugh J in the High Court of Australia endorsed the tests for the validity of
a condition of planning approval articulated by the House of Lords in Newbury District
Council v Secretary of State for the Environment [1981] AC 578 in the following terms:
"A condition attached to a grant of planning permission will not be valid therefore unless:
(1) The condition is for a planning purpose and not for any ulterior purpose.
(2) The condition reasonably and fairly relates to the development permitted.
(3) The condition is not so unreasonable that no reasonable planning authority
could have imposed it"
The second Newbury test considers whether a condition reasonably and fairly relates to
the approved development is applicable. As outlined by SAT in the above mentioned
cases, there must be a nexus between the subject condition and the variations applied
for. A condition of approval can be said to reasonably relate if it arises from changes
precipitated by the development.
In this case, the proposed works were located at the rear of the existing dwelling and off
the rear laneway. There were no works proposed to the original front portion of the
traditional style home or within the front setback area. It can be said therefore, that the
condition to remove or modify the existing solid front wall on St Leonards Avenue does
not fairly or reasonably relate to the variations applied for and therefore fails to meet the
second test for the validity of a condition as articulated above.
POLICY/STATUTORY IMPLICATIONS:
There are no policy or statutory implications related to this report. The proposal was
assessed against the provisions of the Residential Design Codes (R Codes), Town Planning
Scheme No.1, and the Town Planning Scheme Policy Manual.
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