The recent decisions of two different judges of the Supreme Court of Western Australia (Court) in respect of legal challenges by a landowner (Humich Nominees Pty Ltd) to decisions of a JDAP and of the Commissioner of Main Roads WA (MRWA) impacting the traffic access to the landowners property will have implications for landowners who may have their planning approvals frustrated by decisions of MRWA over issues of traffic access.
Humich had obtained planning approval in 2013 from the Metro -East JDAP for the re-development of a property (Lot 196) near the intersection of Thomas Road and Nicholson Road Oakford for a service station, convenience store and liquor store.
The conditions of the 2013 JDAP approval allowed for full movement access (including a right turn across Thomas Road) onto the Humich property. In January 2018 the JDAP approved an application for extension of the period for commencement of the 2013 approval to January 2020.
In October 2018 the Metro -East JDAP approved an application by the landowners of a property (Lot 12 Thomas Road) directly opposite to the Humich property for a service station and ancillary uses. The conditions of the Lot 12 approval required an unbroken median strip on Thomas Road (preventing right-turn access onto the Humich property). These conditions were based on recommendations by Main Roads. Humich commenced judicial review proceedings in the Supreme Court to challenge the validity of the Lot 12 approval by the JDAP.
In November 2018 the Metro-East JDAP considered an application to amend the Humich approval and a condition proposed by Main Roads that the plans only allow for left-in/left out access (preventing right turn access into the Humich property).The JDAP ruled that it did not have power to impose this new condition on the Humich approval.
In April 2019 the Shire forwarded to Main Roads a copy of an application on behalf of the Humich parties (made under the relevant local government regulations) for the approval of construction of crossovers to Thomas Road (including a full movement crossover) consistent with the Humich JDAP approval. Main Roads failed or refused to approve the crossover applications and the Humich parties commenced a judicial review application in the Supreme Court for relief.
In relation to Humich’s challenge to the Lot 12 Approval, Smith J delivered judgment on 14 June 2019 in Humich Nominees Pty Ltd v Metro East Joint Development Assessment Panel1 holding that the decision of the JDAP was legally unreasonable in that the condition requiring an unbroken median strip was not reconcilable to the Humich approval which allowed for full movement access to the Humich property. Smith J accordingly made orders quashing the Lot 12 Approval.
In the proceedings against Main Roads the Humich parties sought to argue that the discretionary powers of Main Roads was constrained by the terms of the Humich JDAP approval so as to conform to the terms of that JDAP approval and approve the crossover application submitted by Humich. Allanson J delivered judgment on 15 August 2019 in Humich Nominees Pty Ltd v Commissioner of Main Roads2 rejecting that argument and held that the authority of the JDAP approval did not extend to the road reserve, and that Main Roads was not constrained by the JDAP approval.
Allanson J also held that the position of Main Roads was justified having regard to the current status of Thomas Road and planned changes for that road, and dismissed the application against Main Roads. Allanson J further held that the approval of Main Roads was a pre-condition to the power of the Shire under the Regulations to approve the cross-over application, and in the absence of such approval the proceedings against the Shire also had to be dismissed.
The decision of Smith J in quashing the Lot 12 Approval was based on the approach that the Planning and Development Act 2005 required consistency in decision- making, and that in this case the decision of the JDAP in the Lot 12 Approval was wholly irreconcilable with the terms of the Humich approval.
On the other hand, Allanson J’s decision appears to have affirmed that the decisions by Main Roads are not constrained by any existing planning approval, notwithstanding that the decision by Main Roads to withhold agreement may frustrate the planning approval that has been given.
The different outcomes in these two Supreme Court decisions raise questions over the consistency of decision making and the degree to which planning approvals may be relied upon, where contrary decisions of another authority (Main Roads) may frustrate such approvals.
It is understood that an appeal is on foot in respect of Allanson J’s judgment; the outcome of such an appeal will be awaited for further judicial comment on he standing of planning approvals and the powers of Main Roads that may impact such approvals.
If you have any questions on this case or other matters of concern please contact Brian McMurdo on 9288 6893.
[1] [2019] WASC 200
[2] [2019] WASC 293
