The recent decision of Judge Parry and Member Connor of the State Administrative Tribunal (SAT) in ALH Group Property Holdings Pty Ltd and Presiding Member of the Metro Central JDAP1 provides an excellent example of the importance of using an appropriately qualified and experienced expert on appeal, and conversely, the consequences of seeking to rely on the opinion of a non-expert in respect of matters which require it.
In that case, ALH Group Property Holdings Pty Ltd (ALH) sought review by the SAT of the decision of the Metro Central Joint Development Assessment Panel (JDAP) to refuse ALH's application to amend a development approval so as to extend the period within which the approved development must be substantially commenced.
A key matter to be considered by the SAT was whether the development would likely receive approval based on the planning framework that applied at the time of the application to renew (as per the test set out in Kapila and City of Stirling2 at [39]). Relevantly, the underlying planning framework applicable in this matter had changed such that the use applied for was no longer capable of approval and was in fact now prohibited.
With respect to that consideration, the JDAP submitted that the developer was not likely to receive development approval on a merit assessment, because of a change in the planning framework, but also due to comments from Main Roads WA (MRWA) that there has been a significant change in road geometry which adversely affects traffic flow in the locality.
The SAT found in relation to the land use in question, that a more specific land use definition of “liquor store (large)” prevails over the more general “tavern” definition, and due to the fact that it was now a prohibited use agreed that it would not now receive development approval (see [72]). That said, the SAT determined that due to the fact that the planning framework had changed after the application to extend the approval had been made and efforts to implement the approval had been made by the applicant, the correct and preferable decision would be to approve the application. This is a significant decision in the circumstances and demonstrates the breadth of the discretion available to the SAT in such circumstances.
As outlined above, the basis for refusal also included the evidence from MRWA regarding the impact of the development on the traffic now in the locality. In this regard expert evidence as to that impact became pivotal. Relevantly, the SAT did not accept any of the matters put forward by MRWA and found in the Applicant’s favour.
The basis for this decision was the weight that the Tribunal placed on the Applicant’s evidence as a result of the qualifications and experience of the Applicant’s witness.
There is a strong lesson in this decision for future litigants, to ensure that their chosen expert witnesses are appropriately qualified, experienced and well prepared. The role of an expert can effectively determine the outcome of a review and careful consideration is required to be given to the appropriate witness in any given circumstances.
Please contact Lavan's Planning and Environment Team if you have any comments or questions in relation to this case or the choice of appropriate expert witness in SAT proceedings.
