Development Assessment Panels (DAP) were introduced into planning legislation in Western Australia in 2011.

A DAP is an independent decision-making body which determines certain development applications in the place of the original decision maker, being the local government authority and/or the Western Australian Planning Commission. DAPs are comprised of independent technical experts and elected local government representatives.

The panels were introduced to improve the planning system by providing more transparency, consistency and reliability in decision-making on complex development applications.

Perhaps as an indication of their success, there have only been a handful of reviews of DAP decisions which have proceeded to a hearing in the State Administrative Tribunal, and only one to the Supreme Court.

Case Note - Hamersley v Bartle [2013] WASC 191

The Supreme Court recently handed down its decision in Hamersley v Bartle [2013] WASC 191, providing some useful guidance on DAP process and procedure.

Facts

On 8 March 2013, the Metro West Joint Development Assessment Panel (MWJDAP) granted conditional approval for the construction of a four-story office building in Subiaco (March Approval). Prior to the issue of the approval, the applicant lodged amended plans to address some initial concerns of the City of Subiaco.

Following the issue of the March Approval, an application was made and approved on 15 August 2012 by the MWJDAP, for a second set of amendments (August Approval).

The applicant sought a writ of certiorari and declarations that the March Approval and August Approval were invalid.

Grounds

The applicant contended that the March Approval and August Approval were made in excess of the MWJDAP jurisdiction on grounds that:

  1. the amendments were not advertised; and
  2. the actions of the MWJDAP (under regulation 17) were invalid, in that it exceeded the regulation-making power provided in the Planning and Development Act 2005 (PD Act).

Determination of the Court

The Applicant failed to make out any of its grounds

The Court found that the March Approval and August Approval were not invalid. A narrow construction of the City of Subiaco’s Town Planning Scheme was considered unacceptable. The Applicant’s construction would have resulted in considerable unnecessary inconvenience in the planning process; it would be inconsistent with the long-held position in Western Australia that it is open to a proponent to amend plans for a development after an application is lodged, but before a decision is made, provided that the amended plans do not constitute a different proposal in substance from the original application.

Regulation 17 is not invalid

The Court found no reason to conclude that a regulation made in order to provide for an efficient and effective land use planning system in the context of the operation of DAPs could not be made pursuant to the general power in s 263 of the PD Act.

Squire Sanders Comment

While this case provides some interesting and useful comments and guidance, DAP practice and procedure remains relatively unchallenged judicially. What is currently occurring in practice may be open to interpretation and challenge. The very nature of DAP matters means that substantial amounts of money are at stake.