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.

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; Bonton 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.