A recent decision handed down by the Armadale Magistrates Court
indicates that the term "retrospective approval" is
inappropriate when describing of the function and powers of s.164
of the Planning and Development Act 2005
Section 164 of the Act enables a responsible authority to grant
approval for development that has already been commenced or carried
out. The section is often mirrored, in a fashion, throughout many
regional and town planning schemes. Where a planning scheme
applies, it often specifies in greater detail, the procedure
through which unauthorised existing developments may seek
In City of Gosnells v Bright Image Dental Pty Ltd it
was alleged by the City that the Accused had breached the
applicable town planning scheme, by carrying out development,
without obtaining the prior approval of the City as required by the
Amongst other things, the Accused sought to defend the charge on
the basis that the approval which was subsequently granted by the
City 'retrospectively approved' the development from the
date of commencement of the development, thereby encompassing the
In addressing this submission, the Court viewed the provisions
of s.164 as a whole, and considered:
the power contained within s.164(1) of the Act enabled a
responsible authority to grant approval of a development on land
that had already been commenced or carried out without prior
approval under a planning scheme;
by virtue of s.164(3) of the Act, the offence provisions within
Part 13 of the Act were unaffected;
that unlawful development could only be made lawful upon the
grant of approval from the responsible authority; and
that the power to approve unlawful development was expressly
reserved to responsible authorities, and such approvals could not
be obtained by any other means.
The Court determined s.164 enables a responsible authority to
consider an application for approval of an unlawfully commenced or
carried out development, and does not 'retrospectively
approve' the development that has commenced or occurred.
Where subsequent approval of an unlawful development is granted,
it does not act as an immunity from prosecution. To adopt such an
interpretation would render s.164(3) and Part 13 of the Act
The Court considered that to adopt the Accused's
interpretation would be to undermine the legislative scheme which
provided 'a system for the orderly consideration of
developments by local authorities before they are commenced or
We recommend avoiding the term "retrospective
approval" and instead use the term "approval for an
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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