Review of planning decisions

Generally speaking, the Minister for Planning is not involved in subdivision and development matters, however, there are rare circumstances where the Minister may become involved:

• A person who believes a local government has failed to effectively enforce or implement its planning scheme may make a representation to the Minister who may refer the matter to the Tribunal for advice and may issue an order to the local government which has the same effect as if it were issued by the Supreme Court
• The Minister may call in certain applications made to SAT for a review, if it is considered that the application raises issues of State or regional importance
• Any body or organisation may write to the Minister and request advice or assistance on a land use planning matter; they may also request this advice directly from the WAPC

Legislative reference sections 211 and 246 of the Planning and Development Act 2005

Certain planning decisions can be reviewed by the State Administrative Tribunal, such as structure plans, subdivisions and development. Strategic planning and zoning decisions are not able to be reviewed. A right to review is provided for in planning legislation, and in planning schemes. The Act also says that if a right to a review of a decision is not expressly provided for in a local planning scheme, applicants still have that right in circumstances where a decision made involves an exercise of discretion by the responsible authority.

Applications for review typically involve situations where applications are refused (or deemed to be refused as they have not been determined within the statutory timeframe) or where an applicant wishes to have a condition attached to an approval reviewed.

Legislative reference Part 14 Planning and Development Act 2005, State Administrative Tribunal Act 2004

Further reading

Planning decisions (SAT)

An applicant can ask the WAPC to reconsider its decision on a subdivision application. This is different to a review by the State Administrative Tribunal, as it requires an applicant to provide additional information to warrant reconsideration of the decision, whereas an application to the Tribunal can be because the applicant disagrees with the decision.

Legislative reference section 144 Planning and Development Act 2005

Further reading 

Form 3A Request for Reconsideration of WAPC decision on freehold, survey-strata, leasehold, community titles scheme or community titles scheme subdivision

The first requirement is that a condition must have a planning purpose. The former Town Planning Appeals Tribunal in Ross M Love v WAPC (No. 68/98) observed that this has two aspects. The first is whether the condition bears a relationship to planning theory and policy. In this case TPAT concluded that the ceding of land for open space within a subdivision has a planning purpose because, among other things, it is WAPC policy and was contemplated under the Town Planning and Development Act 1928 (the act that preceded the current Act).

The second aspect is to determine whether the condition, in the context of the case, fulfils a proper planning purpose. Decision-makers need to evaluate whether approval would have to be refused if that condition were not imposed. If it would not, then the condition would need special and precise justification. The argument that a condition will do no harm is no justification for its imposition. As a matter of policy, a condition ought not to be imposed unless it is necessary to fulfil a planning purpose directly related to the proposal.

A condition which duplicates controls under separate legislation would not normally be necessary and may not fulfil a planning purpose. Where other controls are available, however, a condition may be needed to address the land use impacts of the proposed development. For example, a condition would not normally be required to control emissions from a development where it is controlled under the Environmental Protection Act but may be needed to address the impact of the emissions on land use (for example, separation distances) which are not controlled by the Environmental Protection Authority. A condition which conflicts with the jurisdiction of another agency is likely to be unreasonable.

The second test of validity is for a condition to fairly and reasonably relate to an application and have a direct link to the proposal and its effect on its surroundings. This is called the ‘need and nexus’ of a condition. Unless a condition fairly and reasonably relates to the proposal it may be beyond the powers of the decision-maker to apply it. For example, if subdivision approval is being granted subject to a condition requiring the upgrading of adjacent roads, then it would be necessary to demonstrate that the upgrading arises out of the effects of the subdivision or development rather than being a preferable outcome or one of wider public benefit.

When referral agencies request conditions, a key role of the decision-maker is to determine whether a condition (if applied) is required as a direct result of the proposal at hand.

The third test of the validity of a condition is for it to be reasonable or not unreasonable. The concept of reasonableness derives from a historic legal case (Associated Provincial Picture Houses Limited v Wednesbury Corporation (1947) 2 All ER 680). The so-called Wednesbury decision is used to determine whether a condition (if imposed) would be so unreasonable that no reasonable body or persons could have made the decision.

A condition may be unreasonable because it is unduly restrictive. A condition may in principle impose a continuing restriction on the use of land (providing there are good planning reasons for that restriction) but should not be imposed if the restriction effectively nullifies the benefit of the approval. For example, it may be reasonable to limit the hours during which an entertainment venue may be open so as not to affect the amenity of an area. However, it would be unreasonable to do so to such an extent as to make it impossible for the owner to run the business properly. If it appears that an approval could only be given subject to conditions that effectively remove the benefit of the approval, then the proposed development should be refused.

An unreasonable condition does not become reasonable because an applicant suggests it or agrees to its terms. As planning approvals run with the land (rather than the owner) they may still be operative if a property changes ownership.

Conditions should not be made where a condition relies on the applicant gaining the consent or authorisation of a third party such as a condition which requires an applicant to close a road or enter into an easement with an adjacent landowner or get approval from another authority. These are known as ambulatory conditions, as it may not be within the powers of the applicant to fulfil the condition.

Where a proposal requires road closures or easements or approval from other authorities, it may require the applicant to progress these arrangements prior to applying for subdivision or development.