Court declares development application for telecommunications tower unlawful

In brief – The Planning and Environment Court made declarations that the assessment of a telecommunication facility was code and not impact assessable under the local government’s planning scheme, and consequently the decision of the local government to assess the application on the basis it was impact assessable was void and of no effect. This decision acts as a reminder to developers and local government that they are not able to agree to matters which have the effect of unlawfully changing the level of assessment of development.

Further, the local government and developer were ordered to pay the costs of the co-respondent on the basis that the local government and developer had failed to comply with the Act in improperly assessing the application.

Implications

• A planning scheme is a statutory instrument that, among other functions, determines the category of assessment for development (ie. accepted, code or impact assessment under the Planning Act 2016).
• A local government and developer cannot lawfully agree to apply a category of assessment to a development application that is contrary to the category of assessment prescribed by the planning scheme.
• The failure to apply the correct category of assessment is a ‘jurisdictional error’ and a decision by a local government which involves such an error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all.
• The improper assessment of an application in such circumstances also amounts to a failure to comply with the Act which may lead to an award of costs against the local government and application which occurred in this case.

Decision

The applicant made a development application for a high impact telecommunication facility on land owned by the local government. Under the planning scheme in force at the time of the application, the telecommunication facility was code assessable. However, the local government determined that the application should be treated as impact assessable as it was concerned about the reaction of the community despite the planning scheme prescribing that the development was code assessable. For commercial practicality reasons the applicant agreed to the change to the level of assessment of the application.

As a consequence, the local government provided its consent as owner of the land to the making of the application and the application was lodged by the applicant. A short time later, the local government introduced its new planning scheme and under this scheme the application would have been impact assessable.

The local government assessed and decided to refuse the application.

The applicant filed an appeal in the Court against the decision of the local government at which point a number of submitters who had made properly made submissions joined the appeal.

The Court made declarations that the:

• development application was code assessable under the planning scheme in force at the time of the application;
• decision of the local government was void and of no effect as the application had been wrongly assessed as being impact assessable when it was in fact code assessable;
• appeal by the applicant be struck out;
• applicant and local government pay the costs of submitters who had joined the appeal.

The Court also declined to exercise its discretion to return the application to the local government for a decision on a code assessable basis, as the applicant had agreed to the course proposed by the local government and it would deny the public rights to be heard on the matter.

This decision is an important reminder that all persons are bound by a planning scheme and parties cannot simply agree to unilaterally change the effect of a planning scheme, regardless of the perceived public benefit.

Further, assessing an application in a manner that is plainly in conflict with a planning scheme may result in adverse costs orders against the local government and applicant.