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What does it mean to have ‘due regard’ to a relevant planning policy?

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A recent decision of the Supreme Court of Western Australia has provided guidance on the standard of ‘due regard’ required to be had by the decision maker when assessing planning approval applications.

 

The Court in City of South Perth v ALH Group Property Holdings Pty Ltd [2016] WASC 141 dismissed an application by the City of South Perth (the City) for judicial review of a decision by the Metro Central Joint Development Assessment Panel (JDAP) to approve an application for a development by ALH Group Property Holdings Pty Ltd (ALH).

 

Background

 

In May 2014, ALH submitted a development application in respect of the land at the intersection of Canning Highway and South Terrace, on which the Como Hotel is located, to demolish the existing bottle shop, construct a larger bottle shop, refurbish the existing hotel and upgrade the carpark (the development application).

 

ALH elected to have the development application assessed by the JDAP. Regulations 8 and 16 of the Planning and Development (Development Assessment Panels) Regulations 2011 (WA) require the JDAP to determine the development application as if it were the City and by reference to the relevant Town Planning Scheme.

 

The JDAP had previously refused the development application on two separate occasions. In March 2015, ALH submitted a further modified development application.

 

On 17 April 2015, the JDAP approved the modified development application. The case concerned judicial review of this decision.

 

The City contended that the JDAP erred in law by failing to have due regard to a Western Australian Planning Commission (WAPC) policy, specifically the Development Control Policy 5.1 (DCP 5.1), and thereby acted outside of its jurisdiction. In its application for judicial review, the City sought to have the decision set aside and a declaration made by the Court.

 

The framework

 

In considering the development application, clause 7.5 of Town Planning Scheme No. 6 provided that the Council shall have due regard to and may impose conditions with respect to any policy of the WAPC that is, in the opinion of the City, relevant to the proposed use or development.

 

In this case, DCP 5.1 related to the control of development adjacent to regional roads, stating that regional roads were principally for traffic movement and ideally there should be no vehicular access to properties abutting those roads. Canning Highway is classed as a regional road and has a crossover providing access to the Como Hotel site. The proposed development would increase the use of this crossover, which was seen as incompatible with DCP 5.1 and contributed to a recommendation by the City that the development application be refused.

 

The obligation to have ‘due regard’

 

In order to succeed with a claim of excess of jurisdiction due to a failure to take a relevant consideration into account, the decision maker must be bound to take that consideration into account. Although what is required to satisfy the duty to take into account relevant considerations differs in various cases, in this case the Court highlighted that a proper, genuine and realistic consideration was required.

 

The decision

 

The Court was not satisfied that the JDAP failed to have due regard to DCP 5.1. As the ground for review was not made out, the application for judicial review was dismissed.

 

Justice Martino found as follows:

 

  • The JDAP was obliged to have due regard to DCP 5.1.

 

  • The reference to ‘due regard’ in clause 7 obliged the JDAP to give ‘proper, genuine and realistic consideration’ to matters identified in the clause as relevant, such as DCP 5.1.

 

  • A declaration by all members of the JDAP that they had duly considered the meeting’s documents did not necessarily mean on the facts of this case that, in making the decision to approve the development application, the members had due regard to DCP 5.1.

 

  • Although a conflict with DCP 5.1 is a valid reason to refuse the development application, a development application may be approved notwithstanding this conflict.

 

  • The JDAP meeting minutes indicated that the members of the JDAP were aware that the development application conflicted with DCP 5.1. Despite the conflict, the majority of the members of the JDAP considered the report recommendations (which included reference to the conflict with DCP 5.1) were not sufficient reason to refuse the development application and the refusal could not be sustained under the relevant Town Planning Scheme.

 

  • The JDAP approved the development application, without referring to the increased use of the crossover, and deleted a proposed condition that the existing crossover be closed. Martino J found that the JDAP’s reasons for deleting the condition did not demonstrate that it failed to give proper, genuine and realistic consideration to DCP 5.1.  Furthermore, the fact that JDAP had refused the development application at two previous meetings did not establish that the JDAP failed to have due regard to DCP 5.1 at the meeting on 17 April 2015. As such, the City’s application for judicial review was dismissed.

 

The decision reinforces the principle that a planning authority may make decisions which conflict with relevant planning policies. Provided that the authority gives proper consideration to the terms of the policy, its decision will not be able to be legally challenged on this basis.

 

Disclaimer: The information contained in this update is not advice and should not be relied upon as legal advice. Castledine Gregory recommends that if you have a matter in relation to which legal advice is required, you consult with your legal adviser.

 

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