In planning appeals before the State Administrative Tribunal (SAT), developers and local governments often ask the SAT to determine ‘preliminary issues’. This is particularly the case when an issue has arisen which is preventing the parties from progressing their without prejudice discussions.
Earlier this year, the validity of this practice was thrown into doubt by The Match Group v Metropolitan South West Joint Development Assessment Panel  WASCA 50. However, the Court of Appeal has confirmed in the recent case of Macri v Western Australian Planning Commission  WASCA 153 that the SAT has jurisdiction to determine appropriately formulated preliminary issues.
In Match Group, the Development Assessment Panel (DAP) approved a development with conditions, one of which required developer contributions to be paid to the satisfaction of City of Cockburn. The Applicant commenced SAT proceedings challenging the DAP’s decision, and asked the SAT to determine a preliminary issue as to how the contributions should be calculated by interpreting of the local planning scheme.
On appeal of the SAT’s determination in Match Group, the Court of Appeal held that the SAT had no jurisdiction to determine the preliminary issue. The basis of the Court of Appeals decision was, in short, that the SAT has no jurisdiction in planning appeals to determine a matter which was not determined by the original decision maker. In this instance, there had been no decision by the DAP about the correct construction of the local planning scheme to determine the calculation of developer contributions; the only decision it made was to approve the development with conditions. Hence, the SAT could not attempt to resolve a point that the DAP had never addressed.
Following the Match Group decision, the Court of Appeal in Macri considered the types of preliminary issues the SAT could determine and confirmed that Match Group did not mean the SAT lacked power to determine preliminary issues generally. Rather, the SAT in Match Group had erred in allowing the parties’ particular formulation of the preliminary issue. In Court of Appeal in Macri went on to uphold the SAT’s determination of a preliminary issue, which related to whether a condition imposed by the WAPC requiring the adjustment of a lot boundary was a valid condition.
The lessons for developers and local governments from Match Group and Macri are:
- The SAT is able to determine a properly constructed preliminary issue, which must be directly related to the original decision under review.
- As a general rule, when challenging a condition of approval which hinges on a separate discretion of power (as was the case in Match Group), parties should take care to frame the preliminary issue to focus on the validity of the condition, and not how the discretion referred to in the condition should be exercised.
- Failing to properly formulate preliminary issues can result in both parties incurring unnecessary costs and delay, and thereby diminish the ability of the parties to invoke the SAT’s power to determine preliminary issues to assist in the resolution of a dispute.
For further information, contact Castledine Gregory.