Local authorities who enforce planning policies that don’t exist

Local authorities who enforce planning policies that don’t exist

A recent extractive industry development approval in the Shire of Augusta-Margaret River has highlighted this behaviour of local planning officers asking for a road upgrade where no planning policy requiring applicants to upgrade a road exists.

Although not a new phenomenon, planning officers are becoming more brazen in their demands to impose costs on applicants than 20 years ago in my first year of practice. The Town Planning Scheme gives an option to applicants to either appeal to the Council or to the State Administrative Tribunal (SAT).

Our practice’s recent appeals experience demonstrates that shifting the venue to SAT offers far better outcome for appellants than asking local Councillors to re-consider their decision to refuse or amend the conditions imposed on a planning approval. This principal was demonstrated in a planning appeal to the City of Busselton Council against the planning condition to upgrade a road at the applicant’s cost of approximately $250,000. During the first appeal to Council, the Councillor’s simply reinforced the planning department’s recommendations and gave no merit to extractive industry precedence on the same road and that the City of Busselton had already levied ‘road upgrade contributions’ from five or six adjoining ratepayers. The ‘road upgrade contributions’ would have comfortably paid for the bitumen road upgrade but were removed from the ‘restricted asset fund’ and spent by the City. In fact, the City never gave the SAT an adequate explanation of where the ‘road upgrade contributions’ levies had been consumed. Generally, it seems Councillor’s are often reluctant to contradict planning officer recommendations and typically just reinforce bad planning.

Fortunately, the tribunal process and SAT judges recognise legal precedence (case law) and that planning policies are required to be advertised for validity in a SAT appeal setting. There is a more robust discussion throughout the mediation process with SAT session members and a wider perspective is taken than just local planner’s agendas. In our experience, changing the appeal jurisdiction to SAT and removing the decision making power from a local council is a prudent move. In fact, we enjoy 100% success rate at SAT against the City of Busselton whereby every local planning decision has been varied via SAT orders.

On 11 June 2015, there was a significant shift at SAT where the Tribunal put Local Government on notice about not treating the Tribunal with sufficient respect during proceedings and being obstinate and acting superior in their dealings with applicants. The City of Joondalup was order to pay costs of $14,880 to an appellant, which will hopefully have ramifications for the relationship between the development industry and local government and for the approach by both to future appeals.

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