ACTPLA loses bid to revoke development approval

The ACT Planning and Land Authority has lost a case in the ACT Supreme Court where the Applicant, Capital Recycling Solutions, sought an order that a decision to revoke planning approval was void ab initio – or for most of us that aren’t familiar with Latin – had at no time legal validity. This is a decision of public importance, and one that was referred from the ACT Civil and Administrative Tribunal (ACAT) to the Supreme Court as a result of the significance of the matter.

Briefly, the Applicant obtained development approval for construction of a structure and associated works in April 2017. Almost 18 months later in August 2018, ACTPLA reviewed the decision and issued a second decision purporting to change the initial approval. As a result of the new decision the development application was refused.

The Applicant argued that ACTPLA had no power to reverse its decision under the Planning and Development Act 2007 (ACT). ACTPLA threw a number of arguments in defence including:

  • relying on the Legislation Act 2001 (ACT) to argue that the Planning and Development Act allowed the Authority to reverse its decisions; and
  • arguing that the initial decision was null the proposed use was prohibited and therefore could not have been approved, or in the alternative that the decision failed to take account of a relevant consideration.

In a succinct judgement, Supreme Court Associate Justice McWilliams, rejected ACTPLA’s defence on the basis that:

  • the Legislation Act was displaced by a clear contrary intention in the Planning and Development Act;
  • the framework for decision making in the Planning and Development Act did not allow for a previous decision to be ignored; and
  • the initial decision was not null as it was within power and the initial decision maker had not failed to take into account relevant considerations.

The significant issue in the decision is the reality that the Authority was not entitled to ignore its previous decisions. The Judgement was clear that the manifest intention of the approval regime set out in the Planning and Development Act was certain, subject of course to review or appeal processes. The intention was also considered consistent with the nature of the decision making with Associate Justice McWilliams acknowledging:

A development approval has such significant consequences that finality and certainty are essential for the planning scheme to work.  Owners, buyers, developers, builders, financiers, valuers and law enforcement bodies all rely on the certainty of development approvals in their dealings with land. 

ACTPLA has no power to ignore a development approval of its own volition. In this instance, the original development approval now remains in place and ACTPLA was ordered to pay the Applicant’s costs. We expect there will be other instances which will benefit from this judgement with ACTPLA no longer able to ignore its own decisions.

You can read the decision here.

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