Planning approval conditions – are they valid?

Planning approval conditionsThe recent decision of Deputy President, Judge Parry, of the State Administrative Tribunal in Prosser v City of Bunbury [2018] WASAT 41 reminds us of the importance for developers to scrutinise the planning approval conditions imposed, as one or more of the conditions may be unlawful.

Local Government may impose various types of planning approval conditions, including a requirement to cede land free of cost and / or a requirement to pay a monetary contribution towards a particular type of works.

In Prosser, the Tribunal was required to consider the validity of a condition in the following terms:

Before the development commences, the developer shall contribute $6,240 towards the upgrading of the Spencer Street footpath located adjacent to the Boundary of the lot/development site.”

Ultimately, Judge Parry found that the condition could not be validly imposed. The focus of this case note is upon the Tribunal’s consideration of the application of the common law test for validity of planning approval conditions, which is also known as the “Newbury” test.

Summary

Mr Prosser sought development approval for the construction of a building in Bunbury, which comprised two showrooms, with a gross floor area of 2,108 m2, and 43 car parking bays. A portion of the proposed development fronts Spencer Street, which is identified in the City’s Local Planning Strategy as the “Spencer Street Activity Corridor”. Judge Parry found that “the Council’s planning vision for the Spencer Street Activity Corridor includes an increase in pedestrian traffic and the servicing of that corridor by public transport, footpaths and cycle paths”.

The existing footpath adjacent to the site on Spencer Street is 1.5 metres wide, with certain defects. The condition in dispute was premised upon the upgrade of the existing footpath to a two metre wide footpath.

The Court applied the “Newbury” test for assessing the validity of the condition in dispute. The test was succinctly summarised by his Honour Justice Callinan in Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63 as follows:

… that a condition must be for a planning purpose and not for any ulterior purpose, must fairly and reasonably relate to the proposed development, and, thirdly must not be so unreasonable that no reasonable planning authority could have imposed it

Each of the three requirements are separate and distinct. For a condition to be lawful, it must satisfy each requirement.

The primary focus of the Tribunal in Prosser was on whether the condition in dispute fairly and reasonably relates to the proposed development.

In his reasons for decision, Judge Parry stated that he was “not satisfied that the proposed development would in fact involve any greater use of the footpath by pedestrians generated by the development on the site than the current use of the site, and indeed may well involve less pedestrian use of the footpath adjacent to the site than the current use of the site” and that there was “on the evidence before the Tribunal, a lack of sufficient nexus between the proposed development and the condition in dispute”.

To support the validity of the condition, the Council also submitted that when a new development is proposed it is appropriate for there to be a condition requiring the upgrade of a footpath which is otherwise due to be “renewed”. Judge Parry rejected that argument. Relevantly, he said that “the condition of the footpath is a current issue for the Council, the Council having the care, control and management of the footpath. If it considers that the footpath should be ‘renewed’ as part of its maintenance program, then that is a matter for the Council”.

Implications

Planning approval conditions can impose significant costs upon developers, which may not necessarily be limited to direct monetary costs. It is important to carefully review each condition imposed on any planning approval and consider whether the condition, amongst other things, fairly and reasonably relates to your proposed development.

If you consider that a condition has been imposed on your planning approval that may be unlawful and you want to know your rights, please contact Bushra Tariq.

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