The finality of planning approvals – Part2: the unexplored impact of the Interpretation Act 1984

Planning approvals are important, so it is imperative to know whether, once a decision is made, it can be amended, and if so, in what circumstances and to what extent.

It is a well-established principle of administrative law that a power can be exercised again where reconsideration of a statutory decision is open given the construction of a particular statute”.[1]

In an earlier post I explored whether, on the proper construction of the Planning and Development Act 2005 (WA) (PD Act) read with a local planning scheme:

  1. a local government (or a development assessment panel as its surrogate) is empowered to vary or set aside its decision on a development application and make yet another decision.
  2. the Western Australian Planning Commission (WAPC) is empowered to vary or set aside its decision on a subdivision application and make yet another decision.

These re-considerations could be at the request of an applicant, or at the instigation of the planning decision-maker.

What further reconsideration powers exist?

In this post, I argue that:

  • some ‘slip rule’ type powers are exercisable by planning authorities; and
  • the WAPC has the power to amend subdivision approvals made in reliance upon information that it subsequently discovers to be materially inaccurate, incomplete or misleading.

Question not answered by functus officio

At first glance the doctrine of functus officio suggests that after a decision-maker has made a decision the decision-maker then has no jurisdiction and is therefore precluded from re-exercising the power.  However, the general proposition must yield to the legislation under which a decision-maker is acting.  In any event, the doctrine of functus officio is nowhere near as confining as it is often characterised: Minister for Immigration  & Multicultural Affairs v Bhardwaj.[2]

 The relevant sections of the Interpretation Act 1984

Section 3(1) of the Interpretation Act 1984 (WA) applies the provisions of that Act to every written statute unless in relation to a particular written law:

  • express provision is made to the contrary; or
  • the intent and object of the Act or something in the context of the Act is inconsistent with such application; or
  • in the case of subsidiary legislation, the intent and object of the Act under which that subsidiary legislation is made is inconsistent with such application.

Section 48 of the Interpretation Act provides that statutory powers may be exercised from time to time as the occasion requires.  Section 5 defines ‘power’ to include any privilege, authority or discretion.

Section 50(2)(c) of the Interpretation Act provides that where a written law confers power to grant an approval, such power includes power to withdraw that approval.  Section 50(3) provides that this applies, subject to section 3(3), to laws passed after the commencement of the Interpretation Act.

Section 55 of the Interpretation Act provides that where a written law confers a power to do any thing of an administrative or executive nature, the power or duty may be exercised or performed as often as is necessary to correct any error or omission in any previous purported exercise or performance of the power or duty, notwithstanding that the power or duty is not in general capable of being exercised or performed from time to time.  For example, as the act of issuing a warrant was administrative, a court can rely on s 55 to re-issue a warrant to correct an error.[3]  One limitation of s 55 is that it does not apply where the power is spent (and thus can no longer be exercised).[4]  Most critically though, this provision cannot be invoked when all relevant facts and circumstances are before the decision-maker and he or she simply changes his mind.[5]

Inconsistency

Express provisions

There is no provision of the PD Act which is expressly inconsistent with the applicability and operation of sections 50(2) (read with section 48) and 55 of the Interpretation Act.

Other inconsistency

Local planning schemes are made pursuant to the PD ActTherefore, the critical question of ‘other inconsistency’ is whether the intent and object, subject matter or context of the PD Act are inconsistent with the applicability and operation of sections 50(2) (read with section 48) and 55 of the Interpretation Act.

Section 55 of the Interpretation Act

This section enables the correction of errors or omissions.  The interesting question in its application to planning approvals is what constitutes an error or omission.  I contend that the scope of this power should be consistent with the statutory ‘slip rule’ power given to the State Administrative Tribunal (SAT) in section 83 of the State Administrative Tribunal Act 2004 (WA) to rectify a clerical mistake, an error arising from an accidental slip or omission, a material miscalculation or a defect in form.[6]  That is to say:

  • the WAPC ought to be taken to have the power to amend subdivision approvals so as to correct clerical mistakes (including omissions), miscalculations or defects in form; and
  • local governments (including development assessments panels as surrogates) ought to be taken to have the power to amend development approvals to correct clerical mistakes (including omissions), miscalculations or defects in form.

In my view, this power should be considered to be discretionary (non-compellable), and must be exercised consistently with good administrative practice.  However, this power should only be able to be exercised within a reasonable (presumably short) time from the making of the decision.[7]  While the Rules of the Supreme Court in WA require applications for judicial review to be made within 6 months,[8] a longer period is justified in that case as it is necessary for legal advice to be obtained and evidence to be prepared.[9]  This error-correction power should only be exercisable within a shorter period.

Section 50(2)(c) (read with section 48) of the Interpretation Act

Section 50(2)(c), read with section 48, of the Interpretation Act appears to give planning approval bodies the power to withdraw an approval from time to time as the occasion requires.

The starting point for planning approvals must be that once an approval or refusal is given that the decision is final.[10]  Powerful arguments for finality, certainty and likely reliance by third parties can be derived from:

  • the PD Act’s stated purposes of providing for an efficient and effective land use planning system in the State and promoting the sustainable use and development of land in the State;[11] and
  • the subject matter and context of the PD Act.

Further, without a limit, some applicants may generate continual requests for reconsideration creating an additional administrative burden.[12]

A change of heart will not be sufficient – planning decisions cannot be revoked simply because the decision-maker decides it has changed its mind.[13]  However, the general need for finality in planning decisions need not completely exclude the operation of section 50(2).  What is determinative I suggest, is the fact that there are now express powers allowing local governments and Development Assessment Panels (DAPs) to amend development approvals.  Thus, in my view there is now little scope to find an additional amendment power based on the application of section 50(2) of the Interpretation Act.[14]

Subdivision approval is different.  I contend that there is scope for section 50(2)(c) of the Interpretation Act to allow the WAPC to revoke a subdivision approval and substitute a new decision if the WAPC becomes aware that its original decision was made in reliance upon information that it now knows to be materially inaccurate, incomplete or misleading.  The inaccurate, incomplete or misleading information could be from the applicant, but it could also come from a referral authority.[15]  However, as with applications for fresh evidence in appeals, the starting point ought to be that if the facts were available earlier but the omission is not attributable to the fault or neglect of the party, the planning authority should be hesitant to exercise its power.[16]

What further reconsideration powers exist?

I therefore conclude that, in addition to those discussed in my earlier post, there are two further species of reconsideration powers.  They are:

  • ‘slip rule’ type powers of error-correction exercisable by the WAPC, local governments and DAPs; and
  • the power for the WAPC to amend subdivision approvals made in reliance upon information that it subsequently discovers to be materially inaccurate, incomplete or misleading.

 

[1] Falkiner v Director-General of Planning NSW [2002] NSWLEC 159; (2002) 125 LGERA 138, 151 [60] (Pain J, after referring to section 65 of the Interpretation Act 1987 (NSW)).

[2] Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [5] to [8].  See also the observations of the Full Court in Mount Lawley Pty Ltd v Planning Commission (WA) [2004] WASCA 149; (2004) 29 WAR 273 at [58].

[3] De Alwis v State of Western Australia [2014] WASC 161 at [79]-[80].

[4] Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 at [58] (The Court).

[5] Venture Management Ltd v Commissioner of State Taxation (WA) (1991) 4 WAR 283, 295 (Franklyn J).

[6] This possibility was left open by the Full Court of the South Australian Supreme Court in Remove all Rubbish Co Pty Ltd v City of Munno Para (Minister for Environment and Planning intervening) (1991) 56 SASR 254, 259 (Cox J, with whom King CJ agreed).

[7] For discussion of a reasonable time to exercise a power of revoke a registration see Donovan v City of Sale [1979] VR 461.

[8] Rules of the Supreme Court 1971 (WA), Order 56 rule 1, definition of “limitation period”.

[9] Strict time limits on judicial review have long been accepted as necessary to protect the interests of those relying upon the validity of the approval: see for eg. R v Secretary of State for the Environment, ex parte Ostler [1977] QB 122.

[10] Sloane v Minister for Immigration, Local Government and Ethnic Affairs (1992) 37 FCR 429 at 443 [30] (French J); The Queen v Berri District Council; Ex parte H L Clark (Berri) PtyLtd (1984) 36 SASR 404, 406-7.  As to the finality being critical to good administration generally see Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [8].

[11] Planning and Development Act 2005 (WA), section 3(1)(b) and (c).  In Hamersley v Bartle Chaney J observes that a provision which enables amendment to an existing approval is clearly capable of assisting efficient and effective land use planning: [2013] WASC 191, [86].

[12] Sloane v Minister for Immigration (1992) 37 FCR 429 at 443 [30] (French J referred to the potential for endless requests for reconsideration);

[13] While the statutory context differs, the discussion of the Victorian Civil and Administrative Tribunal is instructive on this question – see Malvestuto Pty Ltd v Shire of Yarra Ranges [2001] VCAT 1788 at [5].

[14] Subsection 50(3) of the Interpretation Act applies section 50 to written laws, which includes regulations.  It would be nonsensical to infer the existence of a second review process alongside that created by the respective regulations.

[15] Agencies and bodies with a relevant interest who are invited to comment on applications such as utilities (water, power, telecommunications) or the Department of Health (such as for sewerage proposals).

[16] As to new evidence in appeals, see Mickelberg v The Queen [2004] WASCA 145; (2004) 29 WAR 13, [411] – [416].