Where Preliminary Approval Granted — Where no appeal — Whether approval in conflict with the planning scheme — Whether no evidence of traffic impact or economic impact — Whether no consideration of relevant matters — Whether amended application was a minor change — Where assessment manager treated substantially different development as minor change — Whether to apply s 440 of the Sustainable Planning Act to excuse non-compliances in consequence of treating the amended application as a minor change.

Judicial Review Act 1991, ss 20(2), 23(b)

Sustainable Planning Act 2009, ss 241(1),242, 243, 267, 293, 314(2)(i), 329(1)(b), 350 (1)(d)(i), 351, 353, 355, 440, 456(1)(A)

Facts: This was a proceeding seeking declarations and orders pursuant to s 456 of the Sustainable Planning Act 2009 (SPA). The Applicant contended that Council made errors of law when deciding to approve a development application for a Major Neighbourhood Centre. The Applicant did not make a submission to Council about the development application and did not appeal the merits of the decision.

The development application involved a preliminary approval for a material change of use to a "Major Neighbourhood Centre" with a general floor area of 4,000 m2 on Council land zoned as "Local Neighbourhood Centres Proposed".

The Applicant owned land zoned as "Major Neighbourhood Centres Proposed" in the same area and had obtained preliminary approval for a material change of use for a Major Neighbourhood Centre with a gross floor area between 2,000m2 and 6,000m2.

The issues of the case were:

  1. whether there was conflict with the planning scheme;
  2. whether evidence of traffic impact was considered by council and whether Council failed to consider the traffic impact on the local and broader road network;
  3. whether there was probative evidence of economic impact and whether a reasonable assessment manager would have accepted the evidence;
  4. whether there was probative evidence about the impact on the viability of the centre proposed for the applicant's land and whether a reasonable assessment manager would have accepted the evidence; and
  5. whether changes to the application constituted a "minor change".

The Applicant argued that the approval was in conflict with the planning scheme which specifically provided that a shopping centre that exceeded 2,000m2 would constitute an undesirable development for the local retail and commercial zone. Further, the Applicant submitted that a change made to the development application resulted in a substantially different development from that originally proposed which did not fall within the definition of a 'minor change' for the purposes of s 350 of SPA. Additionally, the applicant submitted that, in the alternative, the development application did not include material concerning traffic and economic impacts and as such there was no evidence essential for proper consideration, or alternatively, that no reasonable assessment manager could have made a decision to approve the application.

The Respondent argued that prima facie conflict with the planning scheme in terms of the increase in GFA of the proposed development was justified by a social and economic impact assessment.

Decision: The Court held, in dismissing the Amended Originating Application:

  1. The assessment manager's decision was not in conflict with the planning scheme as it was a decision in reliance on the justifying social and economic impact assessment.
  2. The Court was not satisfied that Council had failed to take into account the impact of the traffic generated by the proposed development on the local or broader network or any consideration it was bound to consider before granting the preliminary approval.
  3. Council gave consideration to economic impacts in making its decision to approve the Application. To succeed on a Wednesbury unreasonableness ground it would be necessary to show that the decision was so unreasonable that no reasonable decision maker could have made it. It requires something overwhelming, or devoid of any plausible justification.
  4. Council failed to comply with s355(2) of the SPA as the change was not a minor change. Non-compliance in the circumstances was technical in nature and should be excused.

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.