Many people consider that the State Administrative Tribunal just keep approving things. Unfortunately for them, incredibly powerful that they are, things don’t always go their way.
If an applicant doesn’t like a planning decision from either a local government or a Development Assessment Panel (DAP) they can simply go to SAT in an effort to have the decision changed. A lot of people think the SAT is the highest planning authority. It is not, the Supreme Court is higher. Unfortunately, very few local governments, much less concerned individuals, can afford to go to the Supreme Court, so SAT often get away with some dubious Decisions.
Some good news is that the Department of Planning took a SAT Decision to the Supreme Court and won. It was over a fairly innocuous issue, but still an important one.
For a 258 multiple dwelling development, the City of Melville officers recommended a planning condition which required a notification to be lodged on the relevant certificates of title to alert prospective buyers that the residences may be affected by transport noise and odours.
Due to the size of the development, the determining authority was not the City of Melville council, but the relevant DAP. The DAP agreed to keep the condition, albeit with modified wording.
The developer then went to SAT to have the condition removed, and the SAT Decision centered on 4 questions:
- Are DAP’s a ‘public authority’ within the meaning of s 70A of the Transfer of Land Act (TLA), so as to be able to lodge a notification under s 70A of the TLA with the Registrar?
The SAT found they are not.
- Can a ‘factor affecting the use or enjoyment of land’ could include something arising from another site that could cause a subjective loss of enjoyment in the land because of an impact on amenity?
The SAT found there is no reason, in principle, why a s 70A notification could not be lodged in relation to a factor that arises from activities off site.
- Can a local government, or public authority, compel a landowner, by way of a condition of development approval, to provide written consent to a notification on the owner’s title under s 70A of the TLA?
The SAT decided it “wasn’t appropriate” to determine this question partly because “determination of this question may require the Tribunal to consider whether a number of previous decisions of the Tribunal were ‘clearly wrong’ and should not be followed”. (This cause me great concern, and maybe SAT should be ascertaining whether previous decisions were wrong. )
- Does the condition, in the circumstances of the proposed development, have a proper planning purpose?
SAT found that it did not have a proper planning purpose.
And there the matter would have ended if the DAP wasn’t involved – something for anti-DAPers to reflect on. Because it is highly unlikely that the City of Melville would have gone to the Supreme Court; in my opinion most local government officers (wrongly) believe SAT is unassailable.
Fortunately the Department of Planning (as it was a DAP matter) decided to go to the Supreme Court. Kudos to them for this.
The Supreme Court Decision found that:
 A planning authority has power to impose, as a condition of development approval, a condition that the proprietor of the land consent to a notification on the title … if the condition is for a planning purpose and reasonably relates to the development approved.
 The Tribunal erred in law in finding that a condition requiring consent to notification to warn potential purchasers of an amenity impact cannot be a planning purpose.
 The Tribunal erred in taking too narrow a view of a planning purpose by requiring that the condition ameliorate or remove the negative impact on amenity rather than merely give notice to residents of the negative impact on amenity. That is an error of law
 … the Tribunal failed to have regard to those planning policies in determining whether condition 9 is for a planning purpose. Section 241(1) of the PDA required that the Tribunal have due regard to, among other things, relevant state planning policies.
One wonders how many SAT Decisions have been taken to the Supreme Court, and how often the SAT have been found to be wrong. It would be a great concern for our planning system if SAT are routinely making errors.
Lastly, something of great concern is in the conclusion:
 … the SAT Act provides that … any leave to appeal granted to the decision maker is to be granted on the condition that the costs of each other party are to be met by the decision maker, unless the court considers that it would be unjust or unreasonable to impose that condition …
How is that fair, and why should the default position be that the decision maker pays for both parties?
Power to the People
(Please be aware that these views are my own and have not been endorsed by the City of Bayswater)