Parties and practitioners in the State Administrative Tribunal (SAT) will now be required to exercise significant care in navigating the mediation and reconsideration process, following the recent decision of the SAT in Richardson and City of Swan [2022] WASAT 17.
The conventional wisdom in Western Australia has, arguably, been that once a local government Council, a Development Assessment Panel or similar body resolves to grant a development approval, then the decision is final and any development approval obtained is secure. This is especially so in circumstances where development approval is granted pursuant to a SAT ordered reconsideration process, following mediation. In particular, once a development application is before SAT on review, the development application is usually considered to have been taken out of the hands of the decision-maker, unless ordered otherwise.
His Honour Judge Jackson, in his first published decision following his appointment as Deputy President of the SAT, has however ruled differently, in a determination that is heavily informed by common law principles about development approval crystallising upon effective communication from the decision-maker to the proponent.
In particular, the conclusion of the SAT is that any development approval, whether granted at first instance or upon a SAT ordered reconsideration, is not final until such time that a formal decision notice has issued to the proponent. Further, in the case of local government at least, the SAT has concluded that it is open for a resolution to grant development approval to be formally revoked, even in a SAT ordered reconsideration context, so long as no decision notice has yet issued to the proponent.
This decision of the SAT will have very important practical consequences for SAT ordered reconsideration processes going forward. As identified by the SAT in its reasons, the usual practice of the SAT has historically been, following a successful mediation, to set a reconsideration timeframe that expires on the date of an already scheduled Council or Development Assessment Panel meeting date. Given that there is a usual lag of about one week between such a meeting happening and a formal decision notice issuing, in such matters, the formal decision notice would usually not be received by the proponent until some time after the expiry of the SAT ordered reconsideration timeframe. Any such reconsideration decision would strictly speaking be of no legal effect, because the development approval would not have been crystallised until some point after the expiry of the reconsideration period.
This means that going forward, following a successful mediation, parties will have to ask the SAT to make orders allowing a reconsideration timeframe that is long enough to cover both a meeting of the decision-maker and the subsequent issue of a determination notice. This reality will, inevitably, lead to modest delays to the final resolution of applications for review. It similarly remains to be seen whether the need to follow such processes may now embolden some decision-makers to more regularly attempt rescission motions, in relation to proposals before SAT that are controversial or contentious.
A further practical consequence of this SAT decision is that innumerable existing development approvals that have been obtained following SAT mediations may strictly speaking be legally invalid and subject to risk of challenge by way of judicial review in the Supreme Court, if the decision-maker has only issued a decision notice after the expiry of the SAT ordered reconsideration timeframe. The basic principle, based upon this decision of the SAT, is that a decision notice must have issued prior to the expiry of the reconsideration period, in order for a development approval granted via reconsideration to be legally valid.
This recent decision of the SAT will require some changes to the existing practices associated with mediation and reconsideration in applications for review of planning decisions, for which parties and practitioners would be wise to exercise significant care, especially where third-party objectors are monitoring proceedings with a view to isolating any potential grounds for collateral challenge.
Please feel free to contact us if you have any questions in relation to this SAT decision or its practical consequences going forward.
