A curving facade of windows

There are generally no third-party appeal rights in relation to planning decisions in Western Australia. Only the applicant for planning approval or a person to whom a direction or notice is given by a planning authority may appeal to the State Administrative Tribunal (SAT). In some limited circumstances it may also be possible to seek judicial review of the planning decision.

  1. Can I become involved in State Administrative Tribunal planning proceedings as a third party?

Involvement in SAT planning proceedings as a third party can occur in limited circumstances. Third parties may become involved by intervening under section 37(3) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).

The third party will need to seek the SAT’s leave to intervene in the proceedings. Whether the SAT will grant leave will depend on a number of factors, such as demonstrating a ‘sufficient interest’ in the matter or assisting the SAT in reaching the ‘correct and preferable decision’. These factors have been the subject of recent judicial commentary. We recommend seeking legal assistance to prepare written or oral submissions to seek the leave of the SAT.

In some circumstances, where a third party is not given leave to intervene, it may nonetheless be possible for the third party to make submissions in respect of a planning application under section 242 of the Planning and Development Act 2005 (WA). It is also necessary to apply for the SAT’s leave to do so.

  1. Can I be involved in a SAT mediation as a third party?

Usually, mediation is a confidential process only involving the parties to the proceedings. In some circumstances it is possible to obtain the SAT’s and the parties’ agreement for a third party to participate in the mediation usually only to a limited extent. Leave to participate in a mediation should generally be sought at a directions hearing.

  1. What rights does a third party have if it is allowed to intervene in SAT proceeding?

If the SAT grants leave for a third party to intervene in proceedings, then that third party acquires the same rights and responsibilities as the other parties. This generally means that the intervening party can give evidence, call witnesses and ask questions of the witnesses. The SAT may impose conditions or restrictions on what an intervening party can or can’t do.

  1. Seeking judicial review of planning decisions

In some limited circumstances it may be possible to seek judicial review of a planning decision in the Supreme Court of Western Australia. Judicial review requires the identification of a legal error and cannot stray into the merits of the planning decision.

  1. Guidance – Legal issues

If you want to become involved SAT proceedings as a third party it is advisable to seek legal advice. A lawyer will be able to assist you with submissions to seek leave to be joined as a party or to intervene. This is because the submissions should address the legal principles that guide whether a person can be joined or intervene. A lawyer can also assist you with making submissions, attend the mediation with you or on your behalf or help you prepare your case for a final hearing.

It is also advisable to seek legal advice to consider whether it is possible to seek judicial review of a planning decision. This is because there is a higher bar for seeking judicial review than there is for review proceedings in the SAT.

Our capability statement (view here) provides further details of the types of matters where we have assisted with challenging planning decisions. If you would like to discuss your ability to become a third party in SAT proceedings, please contact us by telephone on (08) 6460 5179 or by email admin@glenmcleodlegal.com.