The finality of planning approvals: when can approvals be amended or reconsidered?

Planning approvals and consents are of fundamental importance to our society.  Finality and certainty is important, but so is flexibility to adapt to changed circumstances.  It is therefore imperative to know whether, once a decision is made, it can be amended, and if so, in what circumstances and to what extent.

While conventional wisdom says that there is no power to revoke or vary a planning approval once it is made,[1] there are now express powers for local governments and development assessment panels (DAPs) to amend development approvals.  In this post I will review those powers and consider what potential there is to amend planning approvals.

PLANNING APPROVALS GENERALLY

The most common planning approvals are for subdivision and development.  I will quickly review how these approvals are made.

Subdivision approval

The Western Australian Planning Commission (WAPC) considers applications for the subdivision of land and may approve (conditionally or otherwise) or refuse each application.[2]  If the WAPC refuses an application, an applicant may within 28 days request reconsideration.[3]  On receiving a notice requesting reconsideration, the WAPC may approve (conditionally or otherwise) or refuse to approve the plan of subdivision.[4]  The WAPC can also reconsider conditions it imposes on a subdivision approval.[5]  An applicant who requests a reconsideration but is dissatisfied with the outcome may apply to the State Administrative Tribunal (SAT) for a review of a decision of the WAPC.[6]

 Development approval

While there are some developments that require approval by the WAPC,[7] most are approved under local planning schemes.  This means approval by local governments and DAPs.  However, the approval power is essentially the same (subject only to additional requirements of some regulations for the DAPs).[8]  Section 252 of the Planning and Development Act 2005 (WA) (PD Act) confers jurisdiction on the SAT to review discretionary decisions under local planning schemes, including decisions to approve or refuse development.

POWERS TO AMEND SUBDIVISION APPROVALS

The Western Australian Town Planning Appeals Tribunal in 1994 had to consider the question of whether the Tribunal, standing in the shoes of the predecessor to the WAPC, the State Planning Commission, could vary or delete some or all conditions of a subdivision approval.[9]  The Tribunal considered the South Australian decisions of Adelaide Pistol Club, Remove all Rubbish, and The Queen v Berri, then observed that the Planning Appeals Tribunal of South Australia stated that to grant the application to vary conditions it had to be satisfied as to two matters:[10]

  • The variation sought must not be one that strikes at the heart of the determination. In short, it must be one that is truly a variation in detail in order to accommodate the fundamental purpose of the decision.
  • The variation must be one the need for which arises in circumstances that have changed, by which it apprehended that the variation must relate to a situation that could not reasonably have been foreseen at the time that the consent in question was issued.

The WA Tribunal applied these requirements to the decision before it.[11]

However, in neither case was there reference to the provisions of the Interpretation Act 1984, and how such provisions might provide legislative authority.  Therefore, I contend that the Supreme Court of Western Australia has not yet determined the question of whether the Interpretation Act read with the PD Act provides a power to revoke a planning decision and substitute a new decision.  I will consider this further in a subsequent post.

For the present, it is worth considering the authorities quoted by Roberts-Smith J in Aznavour in support of the proposition that in the absence of legislative authority a planning approval cannot be revoked or varied. [12]

At first instance, White J in Berri was unwilling to infer that a local government had the ability to vary a condition requiring that work commence by a particular date.[13]  The decision was overturned by the Full Court of the Supreme Court of South Australia.  The Full Court found that the power did exist, but this finding was based upon the construction of the specific provisions of the planning legislation.[14]  The Berri decisions therefore offer little assistance.

In the Remove case the operator of a waste depot applied to a planning authority to vary a condition to its development approval so as to extend its hours of operation.  The first instance judge, Jacobs J, referred to the decision of Adelaide Pistol Club Inc v Munno Para District Council,[15] noting that in that case Wells J considered that the Planning Appeals Board had power to vary a condition, at least before the approved proposal had been carried into effect, if the original condition was found to be inexpedient and impeded or prevented implementation of the proposal.[16]  Jacobs J quoted a passage from Wells J to the effect that the Board’s function could be frustrated without that power of variation.[17]  Jacobs J found that a planning authority imposing a condition may subsequently vary the condition provided such variation does not in any relevant sense change the use of the subject land.

The Full Court of the Supreme Court of South Australia found, by majority, that there was no express or implied general power under the Planning Act 1982 (SA) for a planning authority to review or revise consent conditions imposed on a planning approval.  Cox J (with whom King CJ agreed) did not exclude the possibility that some power to vary could exist for minor or uncontentious matters.[18]  On the facts of the case, the same majority found that the condition as to hours of operation was an integral part of the planning consent originally granted.[19]  Bollen J, in dissent, found that the power to grant consent subject to conditions must connote the existence of a power to vary those conditions.  His Honour approved the obiter remarks of Wells J in Adelaide Pistol (supra) referring to variations necessary to accommodate the fundamental purpose of the approval decision.[20]

In summary, there are mixed views amongst the judges of the South Australian Supreme Court as to whether the power to grant consent subject to conditions must connote the existence of a power to vary those conditions.[21]  Ultimately, it is a question of statutory interpretation.

It is certainly open to conclude, as the Western Australian Town Planning Appeals Tribunal did in 1994, that there is power to vary subdivision approval conditions so long as:[22]

  • The variation sought does not strike at the heart of the determination. In short, it must be one that is truly a variation in detail in order to accommodate the fundamental purpose of the decision.
  • The variation relates to a situation that could not reasonably have been foreseen at the time that the consent in question was issued.

 POWERS TO AMEND DEVELOPMENT APPROVALS

The amendment powers should be considered by reference to the respective decision-makers, as there are amendment powers limited only to DAPs.

New express powers for DAPs to amend development approval

Since 2011 an owner of land in respect of which a development approval has been granted by a DAP has been able to apply under regulation 17 of the Planning and Development (Development Assessment Panel) Regulations 2011 (WA) to make application to the DAP:

  • to amend the approval so as to extend the period within which development approved must be substantially commenced;
  • to amend or delete any condition to which the approval is subject;
  • to amend any aspect of the development approved which, if amended, would not substantially change the development approved;
  • to cancel the approval.

The DAP is then seized of the power to approve an application for amendment of an approval with or without conditions, or to refuse that application.

Until very recently a development approval granted by a DAP could only be amended by the DAP.  However, regulation 17(7) was deleted so from 1 February 2017, applicants have had a choice – they can elect to request that an amendment be made by the DAP or by the relevant local government.

Amendment powers in local planning scheme

Amendment powers exist in local planning schemes by one of 3 mechanisms:

  • Express provision in the scheme text;
  • Provision via deemed amendments to the scheme provisions, as effected by the Planning and Development (Local Planning Schemes) Regulations 2015 (WA);[23] or
  • Possibly via implication.
Express provision

There is no scope in this post to consider all local planning schemes.  I have therefore considered two schemes by way of example.

City of South Perth

The City of South Perth Town Planning Scheme No. 6 includes:

  • at clause 7.9(6) a power to amend or revoke planning approval for Home Occupation or Student Housing after notice is given and certain conditions are met; and
  • at clause 7.9(7) a power to vary the conditions of the approval or extend the period of validity without the need for a new planning application to be lodged.
City of Stirling

The City of Stirling Local Planning Scheme No. 3 includes, at clause 8.3.1, a power for the Council to revoke or amend a planning approval prior to       the commencement of the use or development subject of the planning approval, on application of the owner of the land.  It also includes, at clause       8.3.2, a power to rescind certain approvals of home uses when certain conditions are met.

Express powers to amend approvals vary considerably across schemes.  However, this is of less importance now since the inception of the Planning and Development (Local Planning Schemes) Regulations 2015.

Deemed scheme powers

From 19 October 2015 all local planning schemes have now been amended by the introduction of the deemed provisions.  Thus clause 77 of schedule 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 has effect and may be enforced as part of each local planning scheme.[24]  This clause provides a power for local governments to amend planning approvals that is similar in scope to that given to DAPs by regulation 17 of the Planning and Development (Development Assessment Panels) Regulations 2001.  Thus local governments now have powers to extend times, amend conditions, amend any aspect not substantially changing the development or cancelling the approval.  SAT similarly gains this power as part of its review jurisdiction.[25]

Implied scheme powers?

Where a local scheme did not include an express power to amend approvals questions arose as to whether an implied power existed.  The Western Australian Town Planning Appeals Tribunal (L A Stein and C F Porter) found that such a power did exist.  The Tribunal’s reasons are of interest, and so two paragraphs are extracted:[26]

      The need to vary an approval or conditions, which form part of the approval, is in practical terms an important aspect of town planning.        During construction, a change in circumstance could require modifications or it may be better to carry out a feature of the building with a minor       modification which could have the effect of reducing the impact on adjoining residences.

      …

      The local authority and the Tribunal has [sic] a power to vary an approval in certain circumstances.  That power arises from the due       administration of town planning in the absence of any provision in the Act or a Scheme.  However, as this power is one of administration, it only       applies to modifications or variations of a minor nature which arise not because the developer has had a change of mind but rather because of       changed circumstances.

However, when the question was raised in the Supreme Court in 2002 in the Aznavour decisions it was assumed that, in the absence of an express power to revoke or vary a development approval, the approval is final.[27]  The propositions arising from the Aznavour decisions are:

  1. In the absence of legislative authority a planning approval cannot be revoked or varied.[28]
  2. There is no provision in the PD Act that allows the revocation or variation of planning approvals.[29]
The present position of SAT

Notwithstanding that the point was assumed, and not argued, in Aznavour, SAT took its cue from the Aznavour decisions rather than from Esther (despite acknowledging that the latter’s finding was “sensible”).[30]  Thus the SAT’s present position is that:

      a planning authority, including this Tribunal, cannot, absent express legislative authority, alter, vary, modify, revoke, withdraw or otherwise       relevantly affect planning approval when it has been formally given.

HOW ELSE ARE PLANNING APPROVALS AMENDED?

Planning approvals are routinely amended:

  • In the SAT’s review jurisdiction;
  • By the original decision-maker being invited to reconsider its decision pursuant to an order under section 31 of the State Administrative Tribunal Act 2004;
  • By consent after the commencement of SAT proceedings pursuant to section 26(d) of the State Administrative Tribunal Act 2004; or
  • By the fresh exercise of discretion after the Supreme Court has quashed a decision and ordered that the power be re-exercised according to law.

While interesting, I will also defer for now the question of whether a planning decision-maker can re-open a decision once a judicial review of another decision has shown that the decision was made on the basis of a mistaken view of the law.

FURTHER AMENDMENT POWERS – THE UNEXPLORED IMPACT OF THE INTERPRETATION ACT 1984

Finally, “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”.[31]

Hence, the next statute to consider is the Interpretation Act 1984 (WA).  In a subsequent post I plan to explore the potential for planning authorities to:

  • exercise ‘slip rule’ type powers; and
  • amend subdivision approvals made in reliance upon information that it subsequently discovers to be materially inaccurate, incomplete or misleading.

[1] After all, planning decisions are just a species of administrative decisions.  As to the position for administrative decisions generally see the detailed analysis by Enid Campbell in her article “Revocation and Variation of Administrative Decisions” (1996) 22 Monash University Law Review 30.

[2] Planning and Development Act 2005 (WA), section 143.

[3] Planning and Development Act 2005 (WA), section 144(1).

[4] Planning and Development Act 2005 (WA), section 144(2).

[5] Planning and Development Act 2005 (WA), section 151.

[6] Planning and Development Act 2005 (WA), section 251(3).

[7] Generally matters the subject of a region scheme.

[8] Planning and Approval (Development Assessment Panel) Regulations 2011 (WA).

[9] State Housing Commission v State Planning Commission (1995) 14 SR (WA) 117, 125.

[10] Schmidt v City of Happy Valley [No 2] (1987) 26 APA 366.

[11] State Housing Commission v State Planning Commission (1995) 14 SR (WA) 117, 125.

[12] In Aznavour Pty Ltd v The City of Mandurah [2002] WASCA 320; (2002) 124 LGERA 173, at [38] his Honour cited The Queen v Berri District Council; Ex parte H L Clark (Berri) Pty Ltd (1984) 36 SASR 404; Remove All Rubbish Co Pty Ltd v Munno Para City Council (1991) 56 SASR 254; 73 LGERA 258.

[13] The Queen v Berri District Council; Ex p Berri (1984) 36 SASR 404.

[14] The Queen v Berri District Council; Ex p Berri (1984) 36 SASR 404, 414 (Cox J, with whom King CJ agreed).  Cox J found it unnecessary to consider the alternative argument based upon section 37 of the Acts Interpretation Act (SA) (p423)See also Legoe J at 413.  Note that the decisions of White J and the Full Court are reported together.

[15] (1981) 28 SASR 186.

[16] Remove all Rubbish (1990) 55 SASR 160; 71 LGRA  333.

[17] Remove all Rubbish, ibid, quoting Adelaide Pistol Club Inc v District Council of Munno Para (1981) 45 LGRA 119; 28 SASR 186, 192-193.  The quote is also referenced in District Council of Munno Para v Remove all Rubbish Co Pty Ltd (1990) 55 SASR 160.

[18] Remove all Rubbish (1991) 56 SASR 254, 258-259.

[19] Remove all Rubbish (1991) 56 SASR 254.

[20] Remove all Rubbish (1991) 56 SASR 254 at 262.

[21] The decision of Wells J in Adelaide Pistol was also criticised by the Full Court of the Supreme Court of South Australia in Eastern Waste Management Authority Inc v Tea Tree Gully City (1996) LGERA 1 at 7-8 (Perry J, with whom Cox and Lander JJ agreed).

[22] State Housing Commission v State Planning Commission (1995) 14 SR (WA) 117, 125.

[23] Readers should keep in mind that Schedule 2 of the Local Planning Scheme regulations can amend local planning schemes through deemed amendments: see regulation 10(4) and section 257B of the PD Act.  See further Terra Spei Pty Ltd and Shire of Kalamunda [2015] WASAT 134.

[24] Planning and Development Act 2005 (WA), section 257B.  See also regulations 8 and 10(4) of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA).

[25] Baker Investments Pty Ltd and City of Vincent [2016] WASAT 115 at [45].

[26] Esther Investments Pty Ltd v Town of Mosman Park (1995) 15 SR (WA) 74, 82.

[27] Aznavour Pty Ltd v The City of Mandurah (2002) 128 LGERA 361, [55] (Roberts-Smith J) and Aznavour Pty Ltd v The City of Mandurah [2002] WASCA 320; (2002) 124 LGERA 173, [25] (Miller J) and [38] (Roberts-Smith J).  See also Hamersley v Bartle [2013] WASC 191, [88].  It appears that Esther Investments Pty Ltd v Town of Mosman Park was not drawn to the Court’s attention in either case.

[28] Aznavour v Mandurah (2002) 124 LGERA 173, [25] and [38]; Hamersley v Bartle [2013] WASC 191, [88].

[29] Aznavour v Mandurah (2002) 128 LGERA 361, [55]; Aznavour Mandurah (2002) 124 LGERA 173, [38]; Hamersley v Bartle [2013] WASC 191, [88].

[30] Coventry Square WA Pty Ltd and City of Bayswater [2013] WASAT 111, [16].  The Tribunal notes at [14] the previous decisions also applying Aznavour: Bakker and City of Nedlands [2005] WASAT 106 and Price and Shire of Gingin [2008] WASAT 210.

[31] 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)).