The Supreme Court has recently affirmed a principle that where ‘accrued rights’ have arisen in State Administrative Tribunal (SAT) proceedings, the SAT will apply the law as it stood when the ‘accrued rights’ were vested, and not apply a subsequent change in the law such as an amendment to a planning scheme that would otherwise prohibit certain uses of land.
In Presiding Member of the Southern Joint Development Assessment Panel v DCSC Pty Ltd [2018] WASC 145 delivered 10 May 2018 (DCSC case), Smith AJ held that the applicant in SAT proceedings who had applied for a determination of a preliminary issue, had the accrued right to have the remaining matters in the SAT proceedings determined under the previous law, notwithstanding that a superseding scheme amendment had made the use applied for to be prohibited under the relevant amended local planning scheme.
The Supreme Court decision is significant for applicants for planning approval seeking review in the SAT, as they may now preserve their rights to have the application determined as the relevant law originally applied, and not be frustrated by subsequent changes to the law designed to extinguish the possible approval of such an application.
This is because it is not unusual for local governments and other planning authorities that are opposed to a pending planning application for a permissible use, to undertake a scheme amendment to make such use prohibited, so as to be no longer capable of being approved in SAT review proceedings. If applicants have proactively progressed an application in SAT, however, the opportunity may now arise to preserve rights to have the application determined under the previous legislation, and approved through the exercise of discretion by the SAT.
he applicant in the DCSC case sought planning approval for a proposed petrol station as a ’convenience store’ under the relevant local planning scheme. Under the local planning scheme, ‘convenience store’ was a permitted use, whereas ‘service station’ was a discretionary use. The application for planning approval was refused by the Southern Joint Development Assessment Panel (Southern JDAP) and the applicant then sought review of the Southern JDAP decision in the SAT.
The SAT determined as a preliminary issue that the proposed use was for a ‘convenience store’ under the original planning scheme provisions, and therefore a permitted use, and the SAT later made a final decision approving the application on that basis. Prior to the delivery of the final SAT decision, a scheme amendment had come into effect to amend the definition of ‘service station’, such that the proposed use was effectively prohibited.
Relevantly, when the Tribunal delivered its final decision, it observed in its reasons that an earlier decision of the Tribunal had determined as a preliminary issue the correct use classification of the application, the subject of the review. It was also observed that subsequent to determining the preliminary issue, the Southern JDAP had received revised plans in support of that application and had again refused the application.
It was on that basis that the SAT concluded that the application for development approval could be granted subject to the specified conditions on the basis that “convenience store” was a suitable use of the land and satisfied the zone objectives and policies for that zone.
The final decision of the SAT was subsequently appealed to the Supreme Court pursuant to section 105 of the State Administrative Tribunal1 (SAT Act).
A key consideration with regard to ground 1, was whether or not the decision made on a preliminary issue constituted a “final” decision. The importance of that question was fundamentally with regard to the question of whether or not anything other than a final decision could be the subject of an appeal to the Supreme Court pursuant to section 105 of the SAT Act.
The Supreme Court agreed with the submissions provided in the course of the hearing that a decision of a preliminary issue was not a “final decision” within the meaning of the SAT Act, and took the view that the fact that the decision was binding on the parties in the final determination of the application for review did not alter that fact.
Accordingly, the ground for appeal as stated, namely that the SAT erred in approving the development application on the basis of a land use classification determined as a preliminary issue was flawed and as much as the preliminary decision, not being a final decision, was determined not to be a matter open to challenge in the context of the appeal.
The issue in relation to ground 2 of the appeal proceedings dealt specifically with the accrued right.
Relevantly, Smith AJ commented (at [154] and [158]) that:
154 “Once it is accepted that a contrary intention to exclude section 37(1) of the Interpretation Act does not emerge from section 27 of the SAT Act, it follows from the observations in Esber, CPP Health Resorts and Shire of Augusta – Margaret River v Gray that where a decision has been made and determined by the Tribunal under the legality of the previous law as a preliminary issue, the respondent had a right to have the legality of the remaining matters determined in accordance with the decision on the preliminary issue made under the previous law.
…
158 “Consequently, the issues raised in proposed ground 2 of the appeal do not arise on this ground. Once it is accepted that the decision on the preliminary issue vested an accrued right in the respondent in respect of the use classification of the proposed use of the land, the Tribunal was bound to apply the decision on the preliminary issue in making a final determination as to whether an approval should be granted to the Respondent to develop the land.”
As a consequence ground 2 failed and the appeal was subsequently dismissed.
As outlined above, the Supreme Court decision in this matter is significant in circumstances that applicants for planning approval are in the process of seeking review in the SAT and seek to preserve their rights to have the application determined as the law applied and not to be frustrated by the subsequent changes to the law designed to extinguish the potential for approval to be granted in the future.
This is an important decision and outlines a clear mechanism for establishing certainty, with regard to the relevant planning framework to apply to review proceedings in the SAT. It is particularly relevant in circumstances that review proceedings are complex and are programmed to a resolution over a significant period of time, as it is in the context of those proceedings that the opportunity for amendment of planning framework exists.
If you have any queries in relation to any aspect of this decision and how it impacts on your review proceedings or ability to apply certainty to those proceedings, do not hesitate to contact the Lavan Planning team.
