Castledine Gregory Law and Mediation

Reid v WAPC: when does a condition of approval fairly and reasonably relate to the development?

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The recent decision of the WA Supreme Court of Appeal in Reid v Western Australian Planning Commission [2016] WASCA 181 discusses the law surrounding one of the requirements for a valid condition of a development or subdivision approval – namely, that the condition must fairly and reasonably relate to the proposed development or subdivision.

 

The case concerned an appeal on a question of law following a decision of the State Administrative Tribunal (SAT) to dismiss an application for review of conditions imposed on an approval to subdivide a rural block of land into 2 lots. The conditions related to the provision of an underground electricity supply and the grant of a restrictive covenant to conserve a portion of the property and associated fire management plan.

 

In dismissing the review application, the SAT reasoned that because the planning framework directed attention to environmental matters and manifested a policy that the subdivision of rural land would not be approved unless an environmental benefit was provided as a ‘quid pro quo’ for the approval, the conditions imposed arose directly out of the fact of the subdivision itself.

 

In upholding the appeal and returning the matter for reconsideration by the SAT, the Court of Appeal:

 

  • confirmed that for a condition to fairly and reasonably relate to the development, there must be a connection or relationship between the planning purpose for which the condition has been imposed and the likely or possible consequences of the development;

 

  • clarified that such a connection or relationship will not be established merely because the application for approval provides an opportunity or occasion to impose a condition in the furtherance of a proper planning purpose or some wider ‘societal aim’; and

 

  • found that the SAT did not make any findings of fact regarding the likely or possible consequences of the proposed subdivision that would justify the imposition of the conditions.

 

This decision is of relevance to consent authorities and applicants for development and subdivision approvals as it provides guidance on when a condition may not fairly and reasonably relate to the development even if it seeks to achieve a proper planning purpose.

 

For further information, please contact Castledine Gregory.

 

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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