On 26 March 2014, Lavan Legal commented on the potential implications of the decision of the Court of Appeal in the Supreme Court’s decision in The Match Group v Metropolitan South West Joint Development Assessment Panel  WASCA 50 (Match Group), which raised questions about the ability of the State Administrative Tribunal (SAT) to deal with questions of interpretation under planning schemes, especially in the context of preliminary issues.
The Supreme Court has now published a highly relevant new decision which considers the implication of the decision in Match Group directly.
Macri v Western Australian Planning Commission  WASC 153 (Macri) involved an appeal of a decision of SAT in relation to a preliminary issue. In particular, the issue in dispute in this case was whether the Western Australian Planning Commission (WAPC) could validly impose a condition to shift and redraw the proposed dividing boundary between two proposed lots.
An issue arose at the hearing of the appeal before Kenneth Martin J in Macri as to whether, by virtue of any implication of Match Group, it was even open for SAT to consider and determine such a preliminary question (although, it is noted that SAT’s original decision – published in Macri and Western Australian Planning Commission  WASAT 157 – occurred well before judgment in Match Group was handed down). While both parties contended “yes”, this crucial issue required judicial consideration in order to enable the appeal hearing to proceed.
His Honour Justice Kenneth Martin responded decisively at :
I do not read the Court of Appeal's decision in Match Group as suggesting SAT lacks power to determine a preliminary issue. Rather, I read the reasons, particularly at  as an endorsement of a principle as stated by Judge Chaney, as his Honour then was, in Dunbar v Commissioner of Police  WASAT 90 . His Honour had there observed it was 'not open to the SAT to exercise some other discretion vested in the decision maker where a decision in the exercise of that discretion is not the subject of the review'. The Match Group reasons (particularly  – ) expose that in that matter there had been no underlying decision by the Panel about the correct construction of sch 12 in relation to the Development Contribution Area (DCA) 13. Hence in Match Group the formulation of the preliminary issues (see ) was problematic since the Panel had never dealt with the point attempted to be resolved by SAT as a preliminary issue.
While this particular finding is useful in the sense in that it provides a clear statement from the Court that SAT is still able to hear a proper preliminary issue, fundamental difficulties remain for proponents of development seeking to challenge a condition of development approval, particularly one imposed by a decision-making authority such as a Development Assessment Panel (DAP).
DAPs are specialist panels comprised of technical experts and local government members with the power to determine specified (major) applications for development approval. DAPs were established by the Approvals and Related Reforms (No.4) (Planning) Act 2010 (WA) and effectively usurp the role of the relevant local government which would previously have been responsible for determining such applications.
However, as prescribed by statute, the role of the DAP is limited to that of decision-maker only. DAPs are not vested with responsibility for administering planning approvals and in particular a DAP does not undertake the important function of clearing of conditions of planning approval, which is a responsibility properly conferred upon to the relevant local government authority. In fact it is most often the case that a condition of approval imposed by a DAP expressly states that a matter is to be addressed “to the satisfaction of the [local government].”
If the implication of Match Group is such that a development proponent cannot validly commence an application for review of a condition which confers a discretion, or responsibility for clearance, upon a local government, then the effect would be to fundamentally undermine a proponent’s review right enshrined at s 252(1)(c)(ii) of the Planning and Development Act 2005 (WA) (PD Act) to review a condition of approval imposed in the exercise of a discretionary power under a planning scheme. Similar such problems would appear to arise in relation to conditions of subdivision regularly imposed by the WAPC which require certain works to be undertaken “to the satisfaction of” external agencies such as the Water Corporation or Western Power. The position of the WAPC is slightly different in that the PD Act confers ultimate authority to the WAPC to clear conditions. However, in a practical sense, it is often a difficult task to persuade the WAPC to exercise that authority.
The alternative that a development proponent faces in that circumstance (as a consequence of the decision in Match Group) is that the only avenue for review in relation to a condition which confers a discretion to a third party is by way of application to the Supreme Court for a declaration or an order quashing the decision made. This is of course a more rigorous avenue for appeal, which is as a consequence significantly more expensive and operates as a disincentive in circumstances that the developments costs won’t allow such additional expense.
One possible answer to the possible conundrum that lies in the discussion above is that an application for review to SAT of a condition which involves a third party agency must join that agency as a party to the SAT proceeding (for example, a local government in the case of conditions imposed by a DAP). This would, however, certainly go against the overriding sentiment expressed in decisions of SAT since DAPs were established, for example Challenger Listed Investments Ltd and Metropolitan North-West Joint Development Assessment Panel  WASAT 51, which suggests that the legislative intent behind the creation of DAPs was clearly to replace local governments with DAPs in the entire approvals framework, which includes as the respondents to applications for review.
The decisions in Match Group and Macri have changed the manner in which conditions and indeed the right of review should be considered by a development proponent. If you have similar issues arising in respect of your development, we would be happy to discuss the implications of these decisions with you.