Yearly Archives: 2017

My article on this topic appeared in “The Practitioner: Journal of the Law Society of the Northern Territory”.

You can read it here https://gallery.mailchimp.com/31d3b75c7fc73eff18d472f2c/files/Citizenship_Amendment_article_29_March_2016.pdf

In planning law there are many circumstances in which decision-makers are required to “have due regard” to certain things.  This post explores what this obligation entails.

 

To do so, I will note:

• which planning legislation which requires decision-makers to “have due regard”; and
• in which cases those provisions have been applied.[1]

 

Two key decisions of the Supreme Court show that in a planning context, “to have due regard” to particular matters means that decision makers must give “active and positive” consideration or “proper, genuine and realistic consideration” to those matters.

 

I also observe, as an aside, that this question is more important than it used to be, because there appear to be growing number of applications for judicial review of planning decisions.  In addition to the Marshall and ALH decisions discussed below, allegations as to the failure to have sufficient regard to certain policies featured in the grounds advance in Nairn v Metro-Central Joint Development Assessment Panel.[2]  The issue was also central to the recent Beeliar decisions,[3] those these related to a challenge to an environmental approval not a planning decision in the strict sense.  This (at least perceived) increase may well be due to the significant restriction on third party review rights in Western Australia,[4] with the associated perception that relevant policies are not always being considered.

 

The legislation

In Western Australian planning law,[5] the phrase is found in the:

• the Planning and Development Act 2005 (WA) (PD Act)
• the Swan Valley Planning Act 1995 (WA); and
• the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regs).

 

Planning and Development Act: ss 77(1)(a), 80, 124(4), 134(7), 137(2), 241(1) & (2)(d)

In preparing or amending a local planning scheme, the PD Act requires every local government to have due regard to:

• any State planning policy which affects the local government district (s 77(1)(a));[6]
• any management programme in a strategic document in force under the Swan and Canning Rivers Catchment Act 2006, Part 4 if it relates to land or waters within or abutting the local government district (s 89); and
• the purpose and planning objectives of the region planning scheme or amendment to the region planning scheme, if a region scheme exists in the area (s124(4)).

 

In exercising its subdivision powers, the Western Australian Planning Commission (WAPC):

• subject to Ministerial approval to disregard the Committee’s advice, is to determine an application under ss135 or 136 to subdivide in land in the Swan Valley after having due regard to the advice of the Swan Valley Planning Committee (s134(7));
• is to not to determine an application under ss135 or 136 to subdivide land to which s78b of the Heritage of Western Australia Act 1990 applies, unless regard has been had to any advice received by the Heritage Council (s137(2));[7] and
• is, subject to the exceptions in subs(3), to have due regard to the provisions of any local planning scheme that applies to the land under consideration and is not to give an approval that conflicts with the provisions of a local planning scheme (s138(2)).

 

In determining a review application, the State Administrative Tribunal (SAT) is to have due regard to relevant planning considerations (s241(1)), including:

• any State planning policy which may affect the subject matter of the application; and
• any management programme for the development control area in force under the Swan and Canning Rivers Catchment Act 2006, Part 4 that may affect the subject matter of the application.

In addition, in the case of an application that relates to land to which the Heritage of Western Australia Act 1990 applies, and whether or not a State planning policy provides for the conservation of that land, the SAT is to refer the matter to the Heritage Council for advice, may receive and hear submissions on behalf of the Heritage Council, may join the Heritage Council as a party, and is to have due regard to the objects of the Heritage of Western Australia Act (s241(2)).

 

Swan Valley Planning Act: s 15(4)

Section 15(4) is similar to s134(7) of the PD Act, in that it requires the City of Swan to have due regard to the advice of the Swan Valley Planning Committee with respect to a development application in the Swan Valley, but the City may determine the application otherwise than in accordance with the Committee’s advice (s15(4)).

 

Local Planning Schemes Regs: sched 1, cl 18(7), sched 2, cls 27(1), 43(1), 51(c), 56(1) & 67.

The provisions of Schedule 1 do not have immediate substantive effect, but instead comprise model scheme provisions.  Part 3 of the Model Scheme relates to zones and use of land.  Within Part 3 cl 18 provides for interpretation of the zoning table (cl 16).  Clause 18(7) provides that:

If the zoning table does not identify any permissible uses for land in a zone the local government may, in considering an application for development approval for land within the zone, have due regard to any of the following plans that apply to the land —

(a) a structure plan;

(b) an activity centre plan;

(c) a local development plan.

 

Schedule 2 of the LPS Regs contains provisions that are deemed to amend existing local planning schemes, overriding them to the extent of any inconsistency.[8]  When an area is covered by:

• a structure plan that has been approved by the WAPC, decision-makers for development or subdivision approvals must have due regard to, but are not bound by, the structure plan when deciding the application (cl 27(1));[9]
• an activity centre plan that has been approved by the WAPC, decision-makers for development or subdivision approvals must have due regard to, but are not bound by, the activity centre plan when deciding the application (cl 43(1)); and
• a local development plan that has been approved by a local government, the local government must have due regard to, but is not bound by, the local development plan when deciding an application for development approval (cl 56(1)).

 

When a local government is preparing a local development plan it is to have due regard to the matters set out in clause 67 to the extent that, in the opinion of the local government, those matters are relevant to the development to which the plan relates (cl 51(c)).

 

Similarly, in considering an application for development approval the local government is to have due regard to the matters set out in cl 67 to the extent that, in the opinion of the local government, those matters are relevant to the development the subject of the application (cl 67).

 

The case authorities

 

A good starting point is the Tribunal’s broad statement that:[10]

[a]s a matter of orderly and proper planning, as well as by means of s 138(2) of the PD Act, in the exercise of planning discretion, the Commission and the Tribunal on review must give due regard to” the relevant provisions of the local planning scheme.

In effect, decision-makers must “give due regard” to certain things “as a matter of orderly and proper planning” in exercising planning discretion even if the legislation does not explicitly require it!

 

But what does it mean?  It is pretty apparent that the phrase “have regard to” is capable of different meanings, depending upon its context.[11]  It could simply mean to give consideration to something, rather than treat the things as fundamental elements in the decision-making process.[12]

 

In Zampatti v WAPC Ken Martin J held that the fact that s241(1) expressly refers to State planning policies as relevant planning considerations to which due regard must be given does not elevate State planning policies to a superior weighting.[13]  Nevertheless, this does not provide an inflexible legal rule of construction as to the weight to be accorded, as the precise provision under consideration and the particular circumstances in which it is being applied may require a different result.[14]

 

In Tah Land Pty Ltd v WAPC Simmonds J noted that:

• the phrase “due regard to” requires more than mere advertence to the relevant matter;[15] and
• where the matter to which due regard was to be had was a policy instrument there will have been a failure to have due regard to that matter if the decision-maker misunderstood the policy.[16]

 

Until very recently the Supreme Court of Western Australia had not very explicitly addressed the question of the core content of the obligation to give due regard in a planning context.[17]  This was addressed by:

• her Honour Pritchard J in Marshall v Metropolitan Redevelopment Authority (Marshall); and
• his Honour Martino J in City of South Perth v ALH Group Property Holdings Pty Ltd (ALH).[18]

These cases therefore deserve more focused consideration (see below).

 

Before considering the two decisions separately though, it is worth remarking that in each case the court:[19]

• first refers to the divergent lines of authorities on the question of what is required to satisfy a different question – the duty to take into account relevant considerations; and
• then observes that the preponderance of authority in this State favours the requirement that the duty requires proper, genuine and realistic consideration of the relevant matter.

 

Marshall v Metropolitan Redevelopment Authority

 

The Court here was considering the Metropolitan Redevelopment Authority’s obligation to “have regard to” the matters listed in s66(1) of the Metropolitan Redevelopment Act 2011 and to “have due regard to” the matters in cl 5.22 of the Central Perth Redevelopment Scheme.  Pritchard J held that there is no material difference in the meaning and effect of the differently worded obligations to “have regard’ and “have due regard”.[20]

 

The Court found that the phrases “have regard to” and “have due regard to” required the Metropolitan Redevelopment Authority (MRA) to take into account, or give consideration to, the matters listed in the relevant provisions, but that the words must be construed in their statutory context.[21]

 

Pritchard J found that the matters set out in s66(1) of the Metropolitan Redevelopment Act are not of a substantive or measurable kind – they do not require the MRA to be satisfied of the existence of particular facts, criteria or effects, for example.[22]  The provision also required due regard to be had to submissions from referral agencies, and to planning instruments which typically set out broad guidelines or objectives, leaving considerable discretion for a decision-maker.  The Court observes that the matters in s66(1) are not matters which can necessarily be applied, or complied with, when the MRA makes a decision on a development application.[23]  Her Honour concludes that s66, and the Metropolitan Redevelopment Act more generally, as a statutory context suggest that the words “have regard to” in s66(1) and “to have due regard” in cl 5.22 of the Central Perth Redevelopment Scheme give rise to something less than a requirement that the MRA must apply or must act in compliance with, all of the matters listed.[24]

 

The Court finds the legislative purpose of the Metropolitan Redevelopment Act to be to ensure that when the MRA comes to determine a development application, it will have before it all of the information and sources of guidance which will enable it to make a sound planning decision, and that in reaching its decision, the MRA will use such of that information as it considers relevant to the application before it.[25]

 

Pritchard J concludes that when all these considerations are taken into account, the requirement to “have regard to” in s66(1) of the Act and the requirement to “have due regard to” in cl 5.22 of the Scheme means that the MRA must give active or positive consideration to the matters listed, to the extent they apply in a particular case.[26]

 

City of South Perth v ALH Group Property Holdings Pty Ltd

 

The parties to this litigation agreed that the decision-maker – a development assessment panel – was required “to have due regard” to a range of matters under the local planning scheme in determining a development application,[27] and that this required the DAP to give active and positive consideration to Development Control Policy (DCP) 5.1.[28]

 

Martino J endorsed the conclusion of Pritchard J that the content of the obligation on a decision-maker to take matters into account is to be determined by the context in which those words appear.[29]  His Honour then looked at the context of the words “have due regard” and concluded that there was a “clear desirability of ensuring consistent, proper and orderly planning within the City”.[30]  Martino J concluded that he preferred the phrase “proper, genuine and realistic consideration” to the phrase “active and positive consideration” because the words “positive consideration” “might suggest that the planning scheme created an obligation to reach a decision that was consistent with DCP 5.1” and that was not the Court’s intention.[31]

 

Conclusion

Australian courts have given a variety of descriptions for the quality of the assessment required of decision-makers.[32]  Therefore it was necessary to ask what qualitatively is required – what constitutes due regard – in a planning context.  The guidance from the Supreme Court of Western Australia is that, in a Western Australian planning context, “to have due regard” to enumerated matters requires that the relevant matters be given:

• “active and positive” consideration;[33] or
• “proper, genuine and realistic” consideration.[34]

 

Whether or not “proper, genuine and realistic” consideration has been given to a particular consideration requires close attention to be paid to such matters as the terms of any relevant statement of reasons and the nature and extent of the material before the decision-maker.[35]

 

[1] The term has been referred to in a vast number of cases, but I will focus on decisions where the content of the phrase is considered.

[2] Nairn v Metro-Central Joint Development Assessment Panel [2016] WASC 56.

[3] Save Beeliar Wetlands (Inc) v Jacob [2015] WASC 482; Jacob v Save Beeliar Wetlands (Inc) [2016] WASCA 126; 216 LGERA 201.  This was a challenge to the validity of an environmental approval.

[4] For a summary of the WA position compared to the remainder of Australia, see the Hon Judge Christine Trenorden, “Third-Party Appeal Rights: Past and Future” (18 November 2009) available online at www.sat.justice.wa.gov.au.  The Department of Planning confirmed in September 2013 that no reform to this area was being considered: “Planning makes it happen: phase two”, Planning Reform Discussion Paper (September 2013), p7.

[5] The phrase is also found in objects clauses of many Western Australian statutes.

[6] Leighton v  The Honourable Mr John Day [2014] WASC 164 at [61]; Coast Ward Ratepayers Association (Inc) v Town of Cambridge [2016] WASC 239 at [15] and City of South Perth v ALH Group Property Holdings Pty Ltd (2016) 216 LGERA 96; [2016] WASC 141 at [42].  Note too, that State Planning Policy No 1 extends this to require the WAPC and local governments to have due regard to the entire State Planning Framework.

[7] This is not a use of “due regard”, but the similarity to ss 134(7) and 138(2) is still striking, and given the conclusions of Pritchard J in Marshall, the different wording may not matter.

[8] The SAT explains the effect in Terra Spei Pty Ltd and Shire of Kalamunda [2015] WASAT 134 at [40] to [48].

[9] Hanham and Western Australian Planning Commission [2016] WASAT 28 at [74].

[10] Landpark Holdings Pty Ltd and WAPC [2007] WASAT 130 at [28].

[11] Singh v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 152 at 163 [54]; Re Dr Ken Michael AM; Ex Parte Epic Energy (WA) Nominees Pty Ltd [2002] WASCA 231; 25 WAR 511 at 528-529 [54]-[55].

[12] Singh, 163 [54].

[13] Zampatti v Western Australian Planning Commission [2010] WASCA 149; (2010) 176 LGERA 150 at [125], [132]-[137].  This passage was applied in Atlas Point Pty Ltd v Western Australian Planning Commission [2014] WASC 26 at [112]-[114].

[14] Warkworth Mining Limited v Bulga Milbrodale Progress Association Inc [2014] NSWCA 105; (2014) 86 NSWLR 527; 200 LGERA 375 at [226].

[15] Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 51 NSWLR 589 [72], [73], applied in Tah Land Pty Ltd v Western Australian Planning Commission [2009] WASC 196 at [58] (Simmonds J).

[16] Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189, 208 applied in Tah Land Pty Ltd v WAPC [2009] WASC 196 at [59] (Simmonds J).

[17] In Carcione Nominees Pty Ltd v Western Australian Planning Commission [2005] WASCA 56; (2005) 30 WAR 97 at [80]-[83] the Full Court (Murray, Steytler and McKechnie JJ) considered an argument that the provision that preceded s 77(1)(a) of the PD Act that used the phrase “have due regard” required ‘proper’ or ‘genuine’ consideration, but did not express a view on the construction proffered in the course of explaining that the argument was unpersuasive on the facts of that case.  In addition, the Court of Appeal has considered matters to which the Prisoners Review Board must have regard to (and give weight as fundamental elements in a decision), but this is quite a different statutory context: Prisoners Review Board v Freeman [2010] WASCA 166 at [129] (Pullin, Newnes and Murphy JJA).

[18] Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 at [106]–[116] (Pritchard J) and City of South Perth v ALH Group Property Holdings Pty Ltd (2016) 216 LGERA 96; [2016] WASC 141 at [40]-[50] (Martino J).

[19] A v Corruption and Crime Commissioner [2013] WASCA 288; 306 ALR 491 at [88]-[92] (Martin CJ and Murphy JA note that it was not necessary to prefer either line): see Marshall at [108] and ALH at [40]-[41].

[20] Marshall at [106].

[21] Marshall at [109], citing CIC Insurance Ltd v Bankstown Football Club [1997] HCA 2; (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey & Gummow JJ) and AB v Western Australia [2011] HCA 42; (2011) 244 CLR 390 at [10], [23]-[24], [36], [38] (French CJ, Gummow, Hayne, Kiefel & Bell JJ).

[22] Marshall at [110].

[23] Marshall at [111].

[24] Marshall at [112]-[113].

[25] Marshall at [114].

[26] Marshall at [115]-[116].  The phrase ‘active consideration’ is footnoted: cf Tobacco Institute of Australia Ltd v National Health & Medical Research Council (1996) 71 FCR 265, 277 (Finn J).

[27] ALH at [9].

[28] ALH at [43].

[29] ALH at [44], referencing Marshall at [109].

[30] ALH at [45].

[31] ALH at [46].

[32] Justice Alan Robertson, “What is ‘substantive’ judicial review?  Does it intrude on merits review in administrative decision-making? (2016) 85 AIAL Forum 24 at 32.

[33] Marshall at [115]-[116].

[34] ALH at [46].

[35] Roesner v Minister for Immigration and Border Protection [2015] FCAFC 132 at [36] (Allsop CJ, Flick and Griffiths JJ).

The Commissioner for Consumer Protection suffered a defeat on technical grounds in a recent application to the State Administrative Tribunal for seeking disciplinary sanction against a corporate licensee of a real estate agency.  The Commissioner alleged that the company (The King & I Pty Ltd) through its associates purchased and on-sold 6 properties without the original owners or the ultimate purchasers being aware of the on-sale.  Although it was a circumstantial case, the Tribunal was prepared to find several respondents in breach of the relevant Code of Conduct.  However, and this is the kicker, the Tribunal found that the corporate licensee, whose licence had expired, could not be punished because the Tribunal did not have jurisdiction to discipline a former licensee!  As the Tribunal acknowledges (at [310]), the curtailment of the Tribunal’s jurisdiction appears to be an oversight by the legislature.

See the report on Jade at https://jade.io/article/498062.

While it appears that justice has not been done, full credit must go to counsel James Healy and Culshaw Miller Lawyers for exploiting the technicality benefiting their client.

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)).