The State Administrative Tribunal (SAT) has in recent times provided some clear guidance on local government involvement in SAT review proceedings in relation to decisions made by the Development Assessment Panel (DAP).
The guidance is that local governments are rarely likely to be able to meet the test to be granted leave to intervene in proceedings involving a review of a DAP decision.
In a recent SAT directions hearing, a lawyer representing local government in a matter between a DAP and a proponent queried how the local government can trust that the DAP (through the State Solicitors Office) will understand the local government’s interests and protect its interests. Senior Member Mr Peter McNab responded by referring back to earlier comments he had made in Challenger Listed Investments Ltd v Metropolitan North-West Joint Development Assessment Panel [2013] WASAT 51:
Where Parliament has very clearly displaced the local government as the decision maker and made the relevant DAP both the primary decision maker and the respondent in tribunal review in my view permitting a local government to too readily intervene in such circumstances as we are currently dealing with would significantly undermine the objects of the new statutory framework.
In other words, it is parliament’s intention that the statutory consultation and referral obligations built into the DAP decision making process should adequately deal with the local government’s interests.
The quandary now faced by local government has been highlighted in the SAT matter The Match Group v Metro South-West Joint Development Assessment Panel DR 215 of 2012 in which the construction of a Town of Cockburn (Town) local planning scheme provision was being ruled on by the SAT as a preliminary matter. Notwithstanding the Town’s obvious interest in the preliminary matter, the Town was unsuccessful in achieving intervention status.
The provision in question related to a development contribution plan, and in particular, the way in which contributions were being collected. The stakes were high as the outcome of the SAT’s decision could have a significant financial impact on the Town’s collection of contributions. Regardless, the Town was only granted leave to file submissions for the SAT’s consideration.
In the process of refusing the Town’s application for intervention, the SAT shed some light on the circumstances where it may be appropriate for local government to play a greater role in SAT proceedings involving DAP decisions. These were:
Where there is documentary evidence or correspondence indicating that the DAP disagrees with the local government’s position; and/or
Where the local government is able to advance an argument in a way that a DAP could not. However, Senior Member Mr Peter McNab noted that where the DAP is already using the resources of the local government to advance its case, through technical officer expert evidence or documentary evidence, this limb would be difficult to meet.
Lavan Legal comment
Lavan Legal recommends that where you may be challenging a DAP decision and the local government is seeking involvement as an intervening party, such an application should be opposed. This will ensure that the matter can be resolved between two parties, rather than three, keeping the complexity (and costs) down.
This is not to say that local governments cannot be of assistance in the resolution of a DAP matter in mediation. Indeed, the SAT is likely to encourage the attendance of local government technical officers to mediation to provide their expert opinion on relevant issues.
In relation to DAPs more generally, Lavan Legal's Planning and Environment Team is receiving mixed reports on proponents’ satisfaction with the DAP decision making model.
On the one hand, taking decision making power away from local government and its politics, and giving it to more the objective and pragmatic body that DAPs were intended to be, appears to be a godsend to clients. On the other hand, we are seeing some quite radical DAP decision making, such as two page long planning conditions, which is resulting in subsequent review proceedings in the SAT.
All in all, the power struggle between local government and DAPs seems to be reducing in intensity, which may be the calm before the storm that the next round of planning reforms reducing local government decision making power is bound to bring.
