Council Minutes - Town of Cambridge

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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. H:\CEO\GOV\COUNCIL MINUTES\12 MINUTES\AUGUST 2012\B DV.DOCX 63
COUNCIL MINUTES TUESDAY 28 AUGUST 2012 FINANCIAL IMPLICATIONS: There are no financial implications related to this report. STRATEGIC DIRECTION: Consideration of this application is consistent with the Town's Strategic Plan 2009-2020 for the priority area 'Planning for our Community'. COMMUNITY CONSULTATION: This matter has been assessed under the Community Consultation Policy. The requirements for consultation have been satisfied under the statutory provisions of the Town Planning Scheme. ATTACHMENTS: Nil. COUNCIL DECISION: (COMMITTEE AND ADMINISTRATION RECOMMENDATION) Moved by Cr MacRae, seconded by Cr Bradley That, in accordance with Section 31 (1) of the State Administrative Tribunal Act 2004 (WA) and orders received 2 August 2012 condition (ii) of the planning approval dated 2 May 2012 for additions and alterations to existing dwelling submitted by James Edwards at Lot 4 (No. 8) St Leonards Avenue, West Leederville is deleted. Carried 9/0 H:\CEO\GOV\COUNCIL MINUTES\12 MINUTES\AUGUST 2012\B DV.DOCX 64
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Council Minutes - Town of Cambridge

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