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CASE SUMMARY: PRESIDING MEMBER OF THE METROPOLITAN CENTRAL JOINT DEVELOPMENT ASSESSMENT PANEL -v- 43 MCGREGOR ROAD PTY LTD [2018] WASC 98

Glen

In 2017, the Metropolitan Central Joint Development Assessment Panel (Appellant) granted development approval for the construction of 258 apartment dwellings, subject to a number of conditions. One condition required a notification made pursuant to s 70A of the Transfer of Land Act 1893 (WA) (TLA) to be lodged on the relevant certificates of title to alert prospective buyers that residences may be affected by transport noise and odours (Condition).

The developer of the residences, 43 McGregor Road Pty Ltd (Respondent) applied to the State Administrative Tribunal (Tribunal) for review of the Appellant’s decision to impose the Condition.  

The Tribunal determined that the Condition is invalid. The Tribunal’s decision was challenged by the Appellant, in the Supreme Court of Western Australia (Court), on four grounds.

The first ground of appeal was that the Tribunal erred in law in holding that the Appellant was not a public authority within the meaning of s 70A of the TLA. Whether or not the Appellant was a public authority was central to whether it had the power to cause a notification to be lodged on the relevant certificates of title under s 70A of the TLA.

The Court held that while the Appellant performed a public function in determining prescribed development applications, it could not properly be characterised as a public authority. This is because the Appellant did not have the functions or powers that a public authority must necessarily have in order to exercise the specific powers and functions under s 70A of the TLA in that it did not have the power to:

(a)   lodge a notification on a certificate of title;

(b)   pay the prescribed fee;

(c)   liaise with the current proprietor about whether it is desirable to lodge a notification and procure consent;

(d)   receive future requests from the registered proprietor for removal or modification of the notification; and

(e)   perform any functional role involving ongoing management or responsibility for land use which may include secondary powers to its primary function.

The absence of these powers meant the Appellant was not a public authority and accordingly the first ground of appeal failed. The Court went on to make some useful observations about development assessment panels (DAP) more generally, noting:

(a)   the key function of a DAP is to determine significant applications for development approval;

(b)   a DAP is not a separate legal entity with the capacity to act in its own name;

(c)   a DAP does not have a legal personality separate to that of its members, and does not have the capacity to take action or respond to matters in its own name;

(d)   administratively, a DAP functions by certain individuals or organisations carrying out tasks or responsibilities on behalf of the DAP; and

(e)   DAPs are purely decision-making panels; they are not empowered to monitor compliance with any conditions upon which development approval was granted.

Apartments.jpg

The second ground of appeal was that the Tribunal had erred in law in failing to hold that the Appellant had power to impose the Condition.

The Court held that a planning authority has the power to impose, as a condition of a development approval, a condition that the proprietor of the land consent to a notification on the title pursuant to s 70A, if the condition is for a planning purpose and reasonably relates to the development approved.

In making this finding, the Court distinguished between the Appellant’s power to make the lodging of a notification a condition of a development approval and its inability to direct a proprietor or developer to lodge a notification.

The third ground of appeal related to whether the Condition was for a proper planning purpose. The Tribunal had found that the Condition was not for a proper planning purpose as it did no more than alert potential purchasers of a potential negative amenity impact.

The Court held that the Tribunal had erred by applying too narrow a definition to the concept of ‘proper planning purpose’. The Condition could serve a proper planning purpose by making prospective residents aware of potential impacts on amenity that may not be obvious from a physical inspection of the land itself.

This, the Court said, was consistent with the purpose of creating an efficient and effective land use planning system provided for in s 3(1)(b) of the Planning and Development Act 2005 (WA) (PDA).

The fourth ground of appeal argued that the Tribunal erred in failing to have regard to the relevant planning considerations, contrary to s 241(1)(a) of the PDA, which provides that the SAT is to have due regard to planning considerations including any State planning policy which may affect the subject matter of the development application.  

The Court did not address this ground substantively, but held that the ground was made out. This was because the reasons of the Tribunal did not make reference to the Draft State Planning Policy 4.1 and State Planning Policy 5.4, which refer to prospective purchasers being made aware of amenity impacts on land to be subdivided or developed by means of notification on title. The Court found that the Tribunal should have had regard to those policies in determining whether the Condition was for a proper planning purpose.

As three of the four grounds of appeal were made out the Court set the decision of the Tribunal aside and determined that the matter should be sent back to the Tribunal for reconsideration without the hearing of further evidence.[1]

The Court’s decision can be accessed here.

[1] At the date of writing, the SAT has not reheard the matter.

Declaration: Glen McLeod Legal acts for the industrial operator in this matter, D’Orsogna Ltd.