Preliminary points – Court's discretion
– properly made application – non-compliance
with mandatory obligations under SPA – interpretation
– ss. 260(1)&(3), 264 and 440 of the Sustainable
Planning Act 2009 – s. 14 of the Sustainable Planning
Regulation 2009 – IDAS Form 1 and Form 5
Facts: This was an application by the submitter
Appellants seeking the determination of preliminary points of law.
The Third Respondent ("ATV") had
received an approval from the First Respondent Council for a
material change of use for a tourist activity for quad bike and
four wheel drive adventure tours.
On 27 June 2011 the Court held that the development application
was not a properly made application because, among other things, it
was not accompanied by all the required supporting material
pursuant to section 260(1)(c) of the Sustainable Planning Act 2009
(SPA), and was not supported by evidence of State
resource allocations. The Could then adjourned the appeal to allow
the parties to provide written submissions with respect to excusal
of non-compliance pursuant to section 440 of the SPA.
The present issue requiring determination by the Court was how
to reconcile its discretionary power to deal with a matter were
non-compliance arises due to a failure to comply with an obligation
under SPA which is mandatory.
Despite the broadening of the Court's discretion in the SPA,
matters identified as relevant to the exercise of the discretion
pursuant to section 4.1.5A of the repealed Integrated Planning Act
1997 continue to remain relevant. The following questions were
what was the breach;
what are the consequences of the breach;
was the breach wilful;
what is the reason for the breach;
is there an material profit from the breach;
has the developer suffered detriment because of the
would the exercise of the discretion in favour of the
development be likely to shut out a submitter who has a legitimate
case to put;
what would the position be in the proceeding if there had been
compliance with the legislation; and
would the exercise of the discretion in favour of the party
give that party a significant advantage it would not have enjoyed
had they complied with the legislation.
Decision: The Court held that:
The Court will have regard to any prejudice which is likely to
be occasioned to the submitter Appellants and the local community
as a result of non-compliances in determining whether to use its
discretion to grant an excusal.
As the development application was premised on only being an
intensification of an existing use, whereas in fact there was no
existing use approved, the Court considered that the opportunity
for the local community to make submissions was substantially
In the circumstances it was held that the assessment manager
had failed to fulfil its statutory function to have properly
considered submissions under section 294 of SPA in the correct
context as an application for a new use.
The Court should not use its discretion to excuse the
non-compliances in cases where the failure relates to
non-compliance with mandatory requirements in section 260, 261 and
264 of the SPA, and where the non-compliances have prejudiced the
submitter Appellants and the wider community.
The development application required supporting evidence of
resource entitlement relating to a State-controlled road and water
resource, however no such evidence was provided with the
application. The failure to comply with section 264 of SPA should
not be excused pursuant to section 440 of SPA.
No order should be made under section 440 of SPA to excuse the
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