The SAT rules on extending development approvals in a Development Assessment Panels context

The State Administrative Tribunal in Georgiou Property 2 Pty Ltd and Presiding Member of the Metro West Joint Development Assessment Panel¹ has overturned a decision by a Development Assessment Panel (DAP) to refuse a Form 2 application to extend the term of a development approval.

This decision is of great relevance, because although the Tribunal has previously addressed extensions in the context of local government development approvals, this would appear to be the first occasion on which the Tribunal has made a determination regarding the exercise of discretion by a DAP in relation to a Form 2 application to extend a development approval under the Planning and Development (Development Assessment Panels) Regulations 2011 (WA).

The proponent in this matter held a development approval to carry out a 6 storey residential apartment development in an inner-city location with a standard condition requiring substantial commencement within 2 years.  As is common in the current Western Australia property market, the proponent was unable to achieve substantial commencement within the standard 2 year development approval timeframe.  A further period of 1 year, which had been granted by the DAP previously was also close to expiring.

The proponent had applied to the DAP for a further 2 year extension to the development approval, but the DAP refused this request.  The DAP refused the extension request because of an interim change to a local planning policy (that purported to reduce the development potential of the subject land) and because the DAP considered that the proponent had not done enough in terms of progressing the development.

The Tribunal on review rejected the approach taken by the DAP and resolved to grant the proponent a further 2 year extension to the development approval.

The Tribunal in making this decision considered:

1. whether the planning framework had changed substantially since the development approval was granted
2. whether the development would likely receive approval now
3. whether the proponent had actively and relatively conscientiously pursued the implementation of the development approval

The Tribunal found in favour of the proponent on all three of these points.  In relation to the planning framework, although a number of minor changes had occurred in the interim, collectively, there had been no substantial change to the planning framework since the development approval was first granted and the Tribunal accordingly found that development approval would likely still be granted if applied for today.  The Tribunal also found that the proponent had properly pursued implementation by actively marketing the development and taking steps to clear conditions.

The Tribunal also raised a number of new points that inform the question of whether a development approval should be extended, including:

• if one or more of the primary three considerations to be taken into account on an extension application (as outlined above) are not satisfied, it does not mean that the application must be refused²
• where a development approval has been extended or amended previously, an extension application must be assessed from the date of the most recent extension or amendment, rather than from the date of the original development approval³
• a substantial change to one particular planning instrument (such as a local planning policy) does not necessarily represent a substantial change to the planning framework as a whole⁴
• a local planning scheme provision that purports to elevate a local planning policy to being part of the local planning scheme is invalid and inconsistent with the Deemed Provisions⁵ 
• the overall period of an extended development application is a relevant consideration, but on the facts of this case at least, a total substantial commencement period of 5 years is not unreasonable⁶

This decision of the Tribunal should be taken into account in all future applications to extend development approvals.

Lavan is proud to have represented the proponent in this particular Tribunal proceeding which effectively establishes the position with regard to considerations of applications to extend time, especially in a DAP context. 

If you require advice in relation to an extension application or require representation at a DAP meeting for that purpose, please do not hesitate to contact Lavan's Planning, Environment and Land Compensation team.