Ex Parte & Ors v Mark Anthony Conlan

(1999) 101 LGERA 284; [1998] WASCA 339

Western Australia Court of Appeal

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For Australian Law.

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Interrogate

Catchwords

1. Building Control and Town Planning
2. › Development applications
3. › Local authority determination
4. › Incidental use to predominant use
5. › Whether determination of incidental use is factual decision or exercise of discretionary power
6. › Town Planning and Development Act 1928 (WA), s 8A, s 37, Pt V
1. Building Control and Town Planning
2. › Development applications
3. › Right of appeal to Minister
4. › Appeal against decision exercising discretionary power
5. › Whether appeal lies where decision involves both discretionary and non-discretionary elements
6. › Town Planning and Development Act 1928 (WA), s 8A
1. Building Control and Town Planning
2. › Development applications
3. › Multiple uses on single site
4. › Whether council may grant partial approval
5. › Whether refusal of non-permitted use requires refusal of entire application
1. Prerogative Writs
2. › Prohibition
3. › Jurisdictional error
4. › Minister for Planning
5. › Whether Minister would exceed jurisdiction by entertaining appeal from non-discretionary decision

Quick Take

A local council's determination that a proposed use is not incidental to the predominant use under a town planning scheme is a factual decision, not the exercise of a discretionary power, and is not itself appealable to the Minister for Planning. However, where a development application involves both discretionary and non-discretionary uses, the council's refusal of the entire application gives rise to a right of appeal in respect of the discretionary component. Councils may grant partial approval, excising the non-permitted use, rather than refusing the entire application.