The recent decision of the Supreme Court of Western Australia (Court) in Sanders v City of South Perth1 (Sanders) offers reassurance to those who have implemented a development approval believed to be valid at the time of approval and implementation, but later challenged.
The applicant landowners in Sanders applied to the Supreme Court for judicial review of the City of South Perth’s (City) decision to grant a development approval to their neighbouring landowners to construct a new home overlooking the Canning River. The Applicant’s alleged that the City failed to appropriately consider the impact of the new home on neighbouring views, thereby rendering the City’s decision invalid due to legal error.
The Court disagreed and held that it was not satisfied that the City’s opinion on the matter of views could not have been reached by proper reasoning.
Ultimately the Court was unconvinced of legal error on the City’s part and dismissed the application for judicial review. The Court additionally provided comment on the principles governing the discretion to grant relief, if it was held that there had been a legal error in the City’s decision.
Principally, this involved a consideration of the utility and prejudice pertaining to an order of certiorari quashing the development approval and rendering it invalid. Quinlan CJ noted there may be utility in quashing the decision if an order would potentially enliven the City’s power to issue the respondent with a s214 notice under the Planning and Development Act 2005 (WA) (PD Act).
In such a case, quashing the development approval could have the retrospective effect that the respondent’s house to have been constructed without appropriate planning approval. The City could then theoretically have the power to issue a s214 notice ordering the landowners to remove the development.
Quinlan CJ did not make a conclusive finding as to the scope of s214 of the PD Act in these circumstances and proceeded on the basis that issuance of a s214 notice in such a case would be possible – however, he accepted that the argument against the validity of such a s214 notice is very strong, finding much force in the argument that s214 does not apply where a development approval had been in place but issued on the basis of legal error.
This is especially true in circumstances where the building is already substantially completed by the time the applicants commenced proceedings to challenge the development approval.
The Court noted that the financial losses and liabilities that would be incurred by the innocent neighbour (expected to be substantial) in such a case, was a consideration in granting any relief.
The Court also noted that the exercise of discretion to issue orders should also take account of matters such as third parties (purchasers, contractors etc) who would be prejudiced by the quashing of an approval decision.
The decision in Sanders reaffirms that the Court exercises a wide discretion in judicial review to withhold relief, where there are equitable considerations on the impacts on the affected parties and third parties. The Court will have regard to the conduct of the respective parties, matters such as delay and the utility of granting relief. Although the application in Sanders was dismissed on grounds that the applicants had not made out a case of legal error on the part of the City, prospective applicants need to be aware of the risk and uncertainties of pursuing such proceedings, even where a prima facie case of legal error could be made out.
If you have any questions on this case or other matters of concern please contact Brian McMurdo on 9288 6893.
[1] [2019] WASC 226
