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.

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.