Courts place limits on the power of Local Government bodies
At a time when the State is centralising and, in some respects, relaxing planning laws, a recent Supreme Court decision is an important reminder that the courts will place limits on the power of decision-making bodies. This is an aspect of the rule of law.
A Local Government went beyond power when it purportedly approved its own development application for a so-called ‘Operations Centre’: Reid v City of Gosnells and Western Australian Planning Commission (Gosnells Case) [1]. There is an associated case, which was heard with the action against the City of Gosnells (City): Reid v Western Australian Planning Commission and the City of Gosnells (WAPC Case)[2].
A number of important planning and administrative law concepts were examined by Justice Archer in her detailed decisions. While the Gosnells case is now on appeal, the Judge’s comments and rulings are important and even if they do not survive on appeal, they may become relevant in the future.
Because of the decision, the City’s planned ‘Operations Centre’, on rural land within 500 metres of the rural residential home of Jim Reid (Applicant), will not proceed, at least for the time being.
This case, in a sense, is about the integrity of a local town planning scheme and the strategic planning direction of an area at a State level. The Applicant’s arguments included that the City’s proposal was at variance with the local and strategic planning for the area.
The City’s proposed ‘Operations Centre’ is on a former rubbish tip owned by the City. The area of the development, including landscaping and open space, covered 49.19 hectares and is comprised of proposals for: a waste transfer station; dog pound; green waste shredding facility for ‘prunings’ from trees on property for which the City is responsible; a workshop and general stores building with a wide range of equipment to support the maintenance of the City’s properties; motor vehicle servicing for the City’s fleet; chemical mixing for the City’s fertiliser requirements; and vegetated ‘buffers’.
In its development application to itself of June 2020, the City referred to the uses comprising the Operations Centre as a ‘Civic Use’, ‘Use Not Listed’ and ‘Waste Transfer Station’. The City argued that this collection of proposed developments was a ‘composite use’ that it had power to approve.
Significantly, the land is zoned ‘General Rural’ under the City’s Town Planning Scheme No. 6 (TPS 6) and ‘Rural’ under the Metropolitan Region Scheme (MRS). These zonings have not changed in a proposed new local scheme, the City’s draft Local Planning Scheme No. 24, which has been forwarded to the Minister for Planning for approval.
Individually, the waste transfer station, green waste grinding and dog pound uses are prohibited in the rural zone under TPS 6 and cannot be approved at the discretion of the City. The MRS works differently primarily because of its more ‘board brush’ zoning, in which there are no prohibited uses and a wide range of uses could theoretically be approved by the Western Australian Planning Commission (WAPC).
Usually, MRS development applications are determined by the local government in whose area they are situated, under a delegated authority from the WAPC, but because this development was considered to be of State or Regional importance, the WAPC decided in October 2020 that it should, in the public interest, make the MRS determination [3]. That meant there were two decision making authorities which had to determine the City’s development application: the City and the WAPC.
The Local Government and WAPC Approvals
The City approved its own application in January 2022.
The WAPC, through its Statutory Planning Committee (SPC), initially refused the application, in line with a report prepared by its professional officers, for the reasons stated in the report, that is:
The proposed land use is inconsistent with the ‘Urban Expansion’ designation in the South Metropolitan Peel Sub-Regional Planning Framework because it would be incompatible with future urban development of the site and the broader locality.
The proposed development is inconsistent with the Western Australian Planning Commission Development Control Policy 1.2: Development Control – General Principles because it would limit planning options for the future urban development of the area.
The City applied to the State Administrative Tribunal (SAT) for a review of the SPC’s decision. The SAT proceedings went to mediation. The City’s application was, after mediation, referred back to the WAPC, for a reconsideration of its decision. The reconsideration resulted in an approval by the SPC. Precisely why the SPC came to the opposite conclusion to its original decision is not clear.
The Supreme Court Action
The Applicant’s Supreme Court case, briefly, was that the City’s Approval was invalid because the waste transfer station, green waste grinding and dog pound developments are prohibited under TPS 6. Grouping them together cannot remedy their prohibition.
The City’s case essentially rested on two propositions. First, that separate prohibited uses became permissible under the town planning regime if they are considered together as a ‘composite’ use. The City’s second proposition was that the development should be classed as a ‘public work’ and did not need approval, despite being at variance with the City’s town planning scheme and the applicable strategic planning framework.
The considerations under the MRS for the WAPC were different because zoning under the MRS is broad brush, that is general, in nature. This includes the MRS Rural zone. The Supreme Court accordingly held that the development could be approved by the WAPC and therefore the WAPC Approval is valid. This comes as no surprise. The MRS potentially allows for a wide range of uses to be approved in its zones. It leaves the detailed planning to local schemes, like TPS 6. The WAPC approval therefore stands.
The City’s alternative argument in favour of validity was that the proposed development is a ‘public work’ and did not need approval. The Supreme Court did not accept the City’s argument and decided that the development was not a public work.
The State Parliament has recently passed an amendment to the definition of ‘public work’, which may assist the City if it were to try to rely on the ‘public work’ exemption in the future. At the time of writing the new definition was not law because the Act providing for it has not been proclaimed and therefore has no effect.
Legalities and Planning Principles
It is important to understand that both decisions were about the legalities of the decisions made, as opposed to the planning merits. This means that if the decision making process were to be started again and the previous decision making errors were avoided, it is possible that the development could be approved. In this case it is difficult to see how this could happen without TPS 6 being amended to make the prohibited uses lawful in the rural zone or the City being able to shelter under the ‘public works’ exemption.
Justice Archer set out a comprehensive review of the general planning law framework and applicable planning law principles. This included an overview of the process for creating local planning schemes, the role of regional planning schemes and the requirements in the Deemed Provisions [4], including the matters to which a decision maker is to have regard.
Notably, Justice Archer also affirmed the principle that ‘development’, in relation to the Planning and Development Act 2005 (WA), means the process of a development and not the product. It is well-established in Western Australian planning law, as set out in University of Western Australia v City of Subiaco [5], that the two components encompassed in the term ‘development’ are the use of the land, which includes activities done in or on the land, and the activities that result in a physical alteration of the land. This case has been cited in a number of decisions, including Bright Image Dental Pty Ltd v City of Gosnells [6], to which her Honour referred.
Another well-established definition in Western Australian planning law is ‘the requirements of orderly and proper planning’ in clause 67(2)(b) of the Deemed Provisions. Justice Archer affirmed the definition of ‘orderly and proper planning’ as established in Marshall v Metropolitan Redevelopment Authority [7] by her Honour Justice Pritchard, where her Honour stated:
…If the exercise of discretion is to be an orderly one, the planning principles identified as relevant to an application should not be lightly departed from without the demonstration of a sound basis for doing so, which basis is itself grounded in planning law or principle.[8]
It is within the above framework and principles that development applications are properly approved. Any approval that does not comply with this structure runs the risk of being unlawfully made.
Conclusion
Local governments are provided with a relatively broad power to determine development applications in Western Australia. As we have demonstrated, there are limits to that power. A local government does not have a ‘free pass’ to approve whatever development it would like. Any development application decision must be made lawfully within the Western Australian planning law framework. If not, as was decided in the Supreme Court recently, the approval will be found to be unlawful and set aside, and the development will not be able to proceed.
For transparency, we note that Glen McLeod Legal acted for Jim Reid in the above action. Senior Counsel was Ken Pettit SC.
[1] [2023] WASC 48
[2] [2023] WASC 110
[3] Pursuant to clause 32 of the MRS
[4] Schedule 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA)
[5] (1980) 52 LGRA 360
[6] [2018] WASCA 134
[7] Marshall v Metropolitan Redevelopment Authority [2015] WASC 226
[8] Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 at [182], see more broadly [179]-[182]