Ongoing uncertainties regarding the extent of the planning review process must be resolved
In the ACAT’s recent decision of Sladic & Anor v ACT Planning and Land Authority; Charter Hall Retail REIT & Ors v ACT Planning And Land Authority*, the Tribunal found that the development proposal for a new mixed-use development in Dickson, which had been approved by the ACT Planning and Land Authority (ACTPLA), breached a number of mandatory planning rules. As a consequence, the Tribunal overturned the approval and refused the development application.
This decision doesn’t simply highlight issues with the development approval process, however. A core issue in the appeal was the meaning of section 121 of the ACT Planning Act, which addresses the right of review applicable to development proposals in the merit track. Each party to the appeal put forward a slightly different interpretation of the legislation, ranging from a wide interpretation giving rise to broad review rights, to a narrow reading that severely limited the Tribunal’s powers of review.
Indeed, the differences of opinion did not end with the parties. The Tribunal itself has, over the years, reached a number of different conclusions – with varying degrees of inconsistency – as to the extent of its powers of review, with the recent Dickson decision representing a departure from its previously adopted broader interpretation of the legislation. In this case, the Tribunal decided the scope of its review was limited such that it was only able to consider whether the proposed development met the requirements of applicable planning codes.
In so limiting the scope of its review powers, the Tribunal was unable to consider a number of matters which ACTPLA – the original decision maker – is required to consider, including the probable impact of the proposed development, the suitability of the land for the proposed development and advice given and representations made by third parties. As the review authority, the Tribunal would ordinarily be given the full powers of the original decision maker, effectively standing in their shoes to remake the decision. With a narrower interpretation favoured in this case, the fact that the Tribunal’s decision may limit the scope of future planning appeals is troubling and could result in the Tribunal having to approve a development proposal even though it thinks it will have a substantial adverse impact if that impact doesn’t result from a failure to comply with relevant code requirements
The Tribunal was equally troubled by the fact that the legislation it deals with lacks clarity, stating:
It is on any view an entirely unsatisfactory state of affairs that, more than a decade after the Planning Act was enacted, there is no certainty as to what is involved in review by the Tribunal of decisions on merit track applications. Review of this aspect of the Planning Act should be given the highest priority.
The Tribunal’s decision as regards section 121 has some serious implications for planning law in the Territory. The Tribunal is correct in calling for an urgent review of the legislation. The full decision can be found here.
[*BAL Lawyers acted for Charter Hall REIT in the appeal].
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