On 29 May 2013, the Western Australian Supreme Court
handed down judgment in Aloi v Bertola  WASC 214.
The Court rejected the plaintiffs application for an injunction to
prevent the determination of a planning application for a Coles
On 10 April 2012, the Shire of Mundaring (The
Shire) entered into a contract with Morrison 232 Pty Ltd
(a subsidiary of Devwest) to sell two blocks of vacant land for
$5.75 million. A condition precedent of the contract required
Devwest to obtain planning approval to build a shopping centre on
the land within 180 days.
To satisfy this condition, Devwest lodged a Development
Application to construct a Coles shopping centre on the vacant
land. The proposed development had a value of $10 million, bringing
it under the jurisdiction of the Metro-East Joint Development
Assessment Panel (MEJDAP). The plaintiffs (operating a nearby IGA)
made submissions opposing this Development Application and
instituted Supreme Court proceedings against the MEJDAP.
IGA sought an injunction against the MEJDAP to prevent them from
hearing the application, alleging reasonable apprehension of bias.
The basis for the claim was that two members of the MEJDAP hearing
the application were also councillors from the Shire of Mundaring.
The Shire had a financial interest in the approval of the
Development Application as it stood to earn $5.75 million as
proceeds of the sale.
The Western Australian Government intervened in these
proceedings (through the Minister for Planning) due to the
importance of the issues raised concerning the constitution and
functionality of the new Development Assessment Panel
The primary issue to be determined by the Supreme Court was
whether the requirement for local government members to participate
in the MEJDAP gave rise to a reasonable apprehension of bias in
circumstances where the local council has a direct financial
interest in the outcome of the application.
The Supreme Court held that the decision of the local government
members of the MEJDAP not to withdraw from the review of this
Development Application did not give rise to a reasonable
apprehension of bias in this case. The Supreme Court held that
local government members of Development Assessment Panels can
discharge their duty to avoid a reasonable apprehension of bias
not participating in any decision in which they have a personal
considering each application on its merits; and
exercising their own individual judgment (independent of the
views of the local government body which they represent) in
relation to each Development Application.
REASONS FOR DECISON
The Supreme Court concluded that a fair minded person would not
hold local government members of a Development Assessment Panel to
the same standards of impartiality and detachment expected of a
judicial officer for the following reasons:
The statutory planning context intended that councils, as the
responsible authority administering a planning scheme, could
approve an application in which the council had a financial
The Development Assessment Panel Regulations (DAP
Regulations) explicitly require participation of local
government members in the decision making process. The DAP
Regulations contemplate that the local government members have an
association with the local government, and require that the local
government's views be taken into account.
The DAP Regulations regulate the conduct of members of a
Development Assessment Panel in relation to conflicts of interest.
The DAP Regulations require that all members declare conflicts of
interest and use their own independent judgement to consider each
Development Application on its merits.
The decision has answered questions relating to bias and the
proper role of local government members in the Development
Assessment Panel's assessment and approval process. By
clarifying the scope of a local government members duty to prevent
a reasonable apprehension of bias, this decision provides guidance
for Development Assessment Panels to manage conflicts of interest
and reduce potential legal challenges.
The decision also highlights the difficulties faced by third
party objectors who object to Development Applications under the
Planning and Development Act. Without a statutory right of
third party appeal, the opportunities for interested third parties
who may be adversely affected by a decision of a Development
Assessment Panel are extremely limited.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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