Making good planning decisions

Most planning proposals can be determined easily and quickly. However, planning is not always clear cut, and some proposals require decision-makers to balance a range of competing issues before arriving at a decision. Most planning instruments include scope to vary requirements or standards where certain conditions are met. Examples of this include:

• reducing the required number of car parking bays where a development is close to public transport or includes bicycle parking or
• variations to height and setback requirements where the building has special design features like frosted windows or lattices that would prevent overlooking

Many planning policies, including the Residential Design Codes (known as the R-Codes, which apply to all dwellings) include ‘deemed to comply’ and ‘performance based’ standards. For example, the development intent is to achieve visual and acoustic privacy, and the deemed to comply standard might be a two-metre separation from a boundary. Taking into account the intent – privacy - it may be possible to design a building so that it achieves the same outcome, while being closer to a boundary. The ability to apply discretion means that there is greater flexibility for sites that may have design challenges due to their location, size or shape.

Where discretion may be applied by a decision-maker, there needs to be a good planning reason to depart from the standard, and the planning instrument needs to give the decision-maker scope to apply discretion in the first place. Some planning frameworks do not have any scope for discretion for example, where a zone in a scheme says a land use is prohibited, such as a panel beater in a residential zone. 

The term ‘orderly and proper planning’ is used frequently in the planning system. In broad terms, orderly and proper planning relates to a proposal’s consistency with the established planning framework for an area, including instruments such as State planning policy, planning strategy or planning scheme. Use of the term depends on the context of the site, location and planning framework in question.

This term is linked to the exercise of discretion by decision-makers. While there is generally scope to depart from the established planning framework where there is good reason to do so, there are limits to the extent of that departure, and that’s where orderly and proper planning applies. It ensures a decision, if made, would not be far removed from what would be orderly or proper.

“Due regard” is another term used frequently in the planning system and means that decision-makers are required to consciously consider a range of matters set out in legislation. For example, all decision-makers in Western Australia including local governments, WAPC, the Minister and the State Administrative Tribunal are required to have due regard to State planning policies. If a decision-maker is required to have due regard to a certain matter, it needs to be demonstrated that the matter has been considered, and if a decision is to be in variance of that matter, there needs to be a compelling reason to depart from the standard.

Legislative reference Planning and Development Act 2005, Planning and Development (Local Planning Schemes) Regulations 2015

Planning policies are used extensively throughout the planning system as a basis to assess and determine planning proposals in a consistent manner. There are different types of policies that apply to different types of proposals. State planning policies are the most powerful polices in Western Australia, and there are other policies (such as development control policies and local planning policies) that apply to subdivision and development. Local governments may also adopt local planning policies.

While policies provide important guidance, the individual merits of a planning proposal must be considered.  As policies are flexible instruments, the purpose and intent of a policy needs to be applied to proposals that may vary from policy standards. 

Further reading

State planning policies

Development control and operational policies

Advertising proposals is a key part of the Western Australian planning system and gives the community and public agencies a way to have their views known and responded to.  For example, the WAPC calls for submissions on proposals through its community consultation hub WA DPLH - Citizen Space. Likewise, local governments provide options for community engagement and comment online through their home pages.

Public submissions must be given due regard by decision-makers, and typically comments or submissions will be upheld (supported), partially upheld, dismissed (not supported) or noted (where the submission does not relate to a planning matter or is out of scope). Public consultation is an important element in planning decision-making, but the popularity (or otherwise) of a proposal is not the only factor to consider. Public submissions are most effective where they focus on planning issues, and the impact a proposal may have on the affected person.

The planning system allows decision-makers to request and consider a range of technical advice from expert organisations. This may include officers from within a determining organisation (like delegated officers of the WAPC), external agencies (like Water Corporation, Western Power, Departments of Primary Industry and Regional Development, Water and Environmental Regulation) and/or specialist town planning, environmental or engineering consultancies. Where technical advice is provided by referral agencies, decision-makers are required to have due regard to it. Comments or submissions are not binding, however if a decision-maker doesn’t follow the advice given, it’s important to give reasons for not taking that advice.

While a decision-maker is not obliged to be guided by previous decisions, the general consistency of decision-making is a fundamental principle of a healthy planning system, so that all involved have clear expectations. The consistency of planning decisions is a key consideration for matters considered by the State Administrative Tribunal and a finding in the case of Riede and Town of Vincent SAT 209, 2007 is “In circumstances where the planning framework is the same the circumstances have not changed in any substantial way; it is in the interests of orderly and proper planning that planning decisions in relation to a site are made consistently.”

In a practical sense, this means that a previously approved application may not always be approved again years later if there has been a legislative or policy change. Similarly, decision-makers need to be conscious that some decisions do not establish a precedent for other similar proposals.  

‘Amenity’ is another term that’s used frequently in the planning system, and its meaning can be used in different ways depending on the context of a site. Amenity is defined, as: “... all those factors which combine to form the character of an area and include the present and likely future amenity;” (Planning and Development (Local Planning Schemes) Regulations 2015). The notion of amenity may vary from place to place, for example, a person living in the inner city could expect more background noise than a person living in a small country town.

In considering the role amenity plays in decision-making it is worth referring to some State Administrative Tribunal statements:

• The sum of the expectations of the residents concerning the quality of their residential environment as determined by the character of the area, its appearance and the land uses. (Cipriano and City of Perth SAT 20 1979) 
• Amenity can involve the existing amenity, and likely future amenity (Sunbury Development's Pty Ltd and Shire of Kalamunda SAT 74 2006)
• The likelihood of a proposed activity causing a nuisance is one way of testing whether or not a given activity will have a detrimental effect on the amenity of the locality. (Rajneesh Foundation of Australia and the Shire of Manjimup SAT 2 1985)
• Must distinguish between what people perceive as impacts and the reality of the impacts and must be satisfied that there is a factual or realistic basis to fears about impacts on amenity (applied Woolworths and the City of Joondalup SAT 41 2009)

Amenity is a subjective standard, as different people have different tolerance to changes in their environment. The key measure is whether a change to amenity would be reasonable, given the context of a site or area. It is generally unreasonable to expect there would be no change to an area at all.

Planning decisions sometimes need to consider public interest; this can involve:

• assessment of a proposal’s desirability for the whole community and not just part of it
• assurance that a proposal can demonstrate a community benefit
• making sure decisions are not biased or unreasonable

Decision-makers do not have any authority to act or make decisions as individuals. The expectation is that when decision-makers exercise planning discretion to determine an application they act in a similar manner to that of a tribunal (judge-like manner). This judge-like manner is known as a quasi-judicial role when a decision is made that directly affects a person's right and interests. The judicial character arises from the obligation to abide by the principles of natural justice. Examples of quasi-judicial authority include town planning applications, building permits, applications for other permits/licences (e.g. under Public Health Act 2016, Dog Act 1976 or local laws (laws made under the auspices and scope of the Local Government Act 1995)) and other decisions that may be appealable to the State Administrative Tribunal.

The quasi-judicial role requires the application of relevant facts to the statutory planning controls to judge the merits of individual applications for approval.  This process is subject to the principles of natural justice and administrative law. The highest levels of integrity are required, and any actual or perceived conflicts of interest need to be identified and managed. Planning decision-makers operate in the knowledge that their decisions may be of public interest, may be made public and may also be subject to review by independent parties.

Preparation of planning instruments can occur over an extended period (more than two years), and while new instruments are being prepared, planning decisions need to keep being made. Decision-makers need to consider is what weight to give draft planning proposals, where there is a good likelihood the planning framework will change in the future. In the Tribunal case (Nicholls vs WAPC 2005 WASAT 40), the following criteria were used to determine the weight which should be given to draft planning instruments when assessing proposals:

• the degree which it addresses the specific development application
• the degree to which it is based on sound planning grounds
• the degree to which the ultimate adoption of the draft could be regarded as certain and 
• the degree to which the draft could be regarded as imminent

From that perspective, a planning policy or strategy which has been drafted, advertised for public comment and is nearing finalisation is normally given more weight than a draft document which hasn’t been advertised but less than a formally endorsed and current instrument.