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Perth, WA, 6000
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Planning and Environment Law Firm Perth. 

Blog

GLEN MCLEOD CHAIRS PROPERTY LAW UPDATE

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It was a pleasure to have Glen McLeod chair the Law Society’s ‘Property Law Update’ on 20 March 2019.

The seminar included an engaging presentation by Linda Widdup on the interaction between the Personal Property Securities Act 2009 and the general law, an update on the 2018 Joint Form General Conditions for the Sale of Land by Paul Donovan, and a session on strata law by Rachel Cosentino.

RECOGNITION IN DOYLES GUIDE 2019

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Glen McLeod Legal is pleased to have been recognised as a first tier planning and environment firm in Western Australia.

Glen McLeod, Principal of Glen McLeod Legal has also been recognised as a preeminent planning and environment lawyer.

It is an honour to be acknowledged by our clients and peers, and we look forward to continuing our close relationships in the year to come.

The full Doyle’s Guide can be accessed here.

Accrued rights and use classification in Western Australia

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In a recent case a Developer, thinking the planning framework had been clear enough, had applied for development approval for a petrol station and accompanying convenience store (Development Application) only to find their application refused by the Southern Joint Development Assessment Panel (JDAP). In review at the State Administrative Tribunal (Tribunal) the JDAP’s decision was reversed and the Development Application approved. The Tribunal’s decision was upheld on appeal to the Supreme Court of Western Australia (Supreme Court) and then subsequently reversed by the Court of Appeal.

This all revolved around a land use classification dispute in Busselton, in particular whether the use was a ‘Service Station’ or ‘Convenience Store’ under the applicable town planning scheme (Scheme).

At a preliminary hearing the Tribunal decided that the proper classification of the use was ‘Convenience Store’ (Preliminary Decision). This use was permitted under the Scheme.

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The planning authorities (a local government and Western Australian Planning Commission) rushed through an amendment to the Scheme which redefined ‘Service Station’ to include the ‘sale of goods of an incidental or convenience nature.’ Because of this change, the proposed use was classified as ‘not permitted unless the [local government] has exercised its discretion by granting planning approval’ (Amendment). The Tribunal, standing in the shoes of the local government in the review proceedings, ignored the Amendment and approved the application.

The Supreme Court at first instance held that the classification of the use at the preliminary hearing gave the Developer an ‘accrued right’ to have the application determined in accordance with the Preliminary Decision

On appeal to the Court of Appeal it was held that the Preliminary Decision did not have binding effect because at the preliminary hearing it is not the role of the Tribunal to make a binding legal determination.

The decision is consistent with the well-established principle of Australia planning law: a planning application is to be determined on the basis of the law as it stands at the time of the determination, whether by an original decision maker, on review in the Tribunal or on appeal to a court.[1]

To read a brief summary and overview of the Court of Appeal’s decision, please click here.

[1] Miller v City of Stirling [2007] WASAT 247; Benton Pty Ltd v City of South Perth [No 2] (1982) 4 APA 108; Carcione Nominees Pty Ltd & Anor v Western Australian Planning Commission & Ors (2005) 30 WAR 97.

Presiding Member of the Southern Joint Development Assessment Panel v DCSC Pty Ltd [2018] WASCA 213

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In late 2015 the Southern Joint Development Assessment Panel (JDAP) refused to grant development approval to DCSC Pty Ltd (DCSC) for its proposed petrol station in the City of Busselton (Proposed Development). In early 2016 DCSC applied to the State Administrative Tribunal (Tribunal) for review of the JDAP’s decision.

The Tribunal made orders that it was to first determine the proper use classification of the Proposed Development under the City of Busselton Local Planning Scheme No. 21 (LPS 21). In August 2016 the Tribunal determined that the Proposed Development was properly classified under LPS 21 as a ‘convenience store’ rather than a ‘service station’ (Preliminary Decision). ‘Convenience store’ was a permitted use under LPS 21 whereas ‘service station’ was a discretionary use.

The review application was heard by the Tribunal in early February 2017 (Hearing). Both parties proceeded on the basis that the Proposed Development was classified as a ‘convenience store’. After the Hearing but before the Tribunal delivered its decision, an amendment to LPS 21 came into force which changed the definition of ‘service station’ (Amendment). The Proposed Development would not have been properly characterised as a ‘convenience store’ under LPS 21 as a result of the Amendment.

In August 2017 the Tribunal granted conditional approval for the Proposed Development (Final Decision). The JDAP appealed the Final Decision to the Supreme Court and argued that the Tribunal should have had regard to the Amendment when deciding to grant conditional approval. The appeal to the Supreme Court was dismissed (Primary Decision). The JDAP then appealed the Primary Decision to the Court of Appeal.

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The first ground of appeal was that the primary judge erred in holding that the Preliminary Decision was binding on the parties and the Tribunal. The JDAP contended that the primary judge should have held that, despite the Preliminary Decision, the Tribunal was required to make the correct and preferable decision on the law applicable at the time of the Final Decision.

The second ground of appeal was that the primary judge erred in holding that DCSC had an accrued right to have the review application determined in accordance with the Preliminary Decision. The JDAP contended that because DCSC did not have an accrued right to have its review application determined under the provisions of LPS 21 before the Amendment, the law applicable to the review application was LPS 21 as amended. 

The Court of Appeal held that the Preliminary Decision did not have a binding effect so as to preclude the Tribunal from considering the effect of the Amendment in making the Final Decision. It was not part of the Tribunal’s function in exercising an executive power to make any final or binding determination as to the legal effect of a planning scheme. In any event, the Preliminary Decision determined no more than the classification of the Proposed Development under LPS 21 as it stood prior to the Amendment and did not address the proper classification of the Proposed Development under LPS 21 following the Amendment.

The Court of Appeal held that DCSC did not have an accrued right to have the Tribunal determine the review application under the provisions of LPS 21 prior to the Amendment. Rather, the Tribunal was required to have due regard to the provisions of LPS 21 as it stood at the time of its determination of DCSC's review application.