Supreme Court clarifies the availability of judicial review

A recent decision of the Supreme Court has clarified the extent to which a recommendation made by the State Administrative Tribunal in a planning or subdivision context is capable of being challenged by way of judicial review.

In Wattleup Road Development Company Pty Ltd v State Administrative Tribunal [2016] WASC 11, The Lavan Legal team successfully argued that the Supreme Court is able to quash (i.e. invalidate) a recommendation made to the Minister of Planning (Minister) by the State Administrative Tribunal (SAT) pursuant to the “call in” power under section 246 of the Planning and Development Act 2005 (WA) (PD Act).

By way of background, if a planning or subdivision matter before the SAT raises issues of State or regional importance, then section 246 of the PD Act provides that the Minister may “call in” the matter to be determined by the Minister personally.  In doing so, the Minister has the option of directing the SAT to first hear the matter (without determining it) and to refer the matter with recommendations to the Minister for final determination.

The SAT judgment in Wattleup Road Development Company Pty Ltd and Western Australian Planning Commission [2014] WASAT 159 constituted a recommendation to the Minister pursuant to section 246 of the PD Act.  As part of its judgment, the SAT recommended to the Minister that it should refuse the applicant’s application for subdivision approval.  The applicant subsequently commenced judicial review proceedings in the Supreme Court, seeking a writ of certiorari to quash the SAT’s recommendation to the Minister.

Disclaimer – the information contained in this publication does not constitute legal advice and should not be relied upon as such. You should seek legal advice in relation to any particular matter you may have before relying or acting on this information. The Lavan team are here to assist.