Case: Happ and City of Busselton

In the case of Erland Francis Happ and Roslyn Happ and City of Busselton [2024] WASAT 76, the City issued two Direction Notices to Mr & Mrs Happ for unauthorised construction of three tourist chalets, requiring the development to stop, the removal of the chalets and restoration of the land. The Happs sought a review in the Tribunal. Following mediation, the Happs applied for development approval for construction of seven chalets, which the City refused. The Happs also sought a review of that decision in the Tribunal.

As part of its deliberations, the Tribunal considered the City’s Local Planning Policy 2.4 Rural Tourist Accommodation (LPP 2.4), which applied to the subject site. The Tribunal noted setback provisions in LPP 2.4 were inconsistent with development standards for setbacks in the City’s Local Planning Scheme No. 21 (LPS 21).

The Tribunal observed that planning policies should be consistent with the prevailing Scheme, citing Stock and Shire of Victoria Plains [2005] WASAT 347 (Stock), and noted the axiomatic principle expressed by the Tribunal in Kakulas and City of Stirling [2013] WASAT 168 (Kakulas) that a written policy cannot by itself fetter a statutory discretion or impair a legislative instrument, because policy must conform to any law.

The Tribunal considered whether the development complied with the setback requirements in LPS 21 and determined it did not. However, the Tribunal found the setbacks could be varied under LPS 21 since the land abutted a vegetated bushland reserve which would assist in screening the development.

The Tribunal dismissed the applications for review for other reasons and affirmed the City’s decision to issue the Direction Notices and to refuse the development application.

Case: Stock and Shire of Victoria Plains

In Stock, the Tribunal considered whether a house relocation on a residential lot required planning approval. The Shire’s Scheme did not require planning approval, but a Shire policy required planning approval for moveable buildings.

The Tribunal made reference to "Planning Appeal Casenotes". In Part 4 General Legal Principles Applying to Planning Review at para 4.40.6:

"The power of a responsible authority to issue a permit derived from s.47 of the Planning and Environmental Act 1987 (Vic) can only be exercised when a planning scheme requires that a permit be obtained. Urban design guidelines not incorporated in a planning scheme and purporting to require a permit are invalid: Cernobrivec v City of Williamstown [1993] 12 AATR 54."

The Tribunal noted other legal authority:

• citing Kanther v State Planning Commission (1987) 5 SR (WA) at 151:

  “This policy is of course only a policy. It is not part of the positive law in the sense that it is not part of the text of the town planning scheme itself. I think it is trite to say that to the extent that any planning policy would be inconsistent with the text of a town planning scheme, then the policy cannot prevail”

• in Re Drake and the Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640 it was held that "of course, a policy must be consistent with the statute".

The Tribunal held that no planning approval was required. The policy had not been incorporated into the Scheme and the policy requirement for planning approval was therefore invalid. The policy was also inconsistent with the Scheme.

Case: Kakulas and City of Stirling

The Tribunal in Kakulas considered whether a condition of development approval (for additions to a commercial building) requiring payment of a cash-in-lieu car parking contribution prior to the commencement of development was mandatory under the City’s Scheme.

The Tribunal considered the relationship between the Scheme (the source of the power to impose planning conditions, including cash-in-lieu parking contributions) and the City’s policy on parking and access (Policy 6.7), which set out parking standards.

Relevant Scheme provisions, when read with the policy, suggested certain mandatory outcomes in the calculation of necessary parking and amounts to be paid for any shortfall. The requirements were ultimately referenced to Policy 6.7.

The Tribunal observed “a written policy cannot by itself, and no matter how clear its terms, fetter a statutory discretion, or for that matter, alter, detract from, or impair a legislative instrument. This is because policy must conform to any law” and also cited the public law maxim “the spring cannot rise higher that its source”.

The parking policy that is the “spring”, as a subsidiary instrument, receives its operational validity by being issued under and being recognised by the Scheme, which is the “superior source”.

The Tribunal held that the cash-in-lieu parking contribution requirements were not mandatory. The cash-in-lieu requirements in the Scheme ultimately flowed from the application of Policy 6.7, and it was open to the Tribunal, as decision-maker, to depart from the application of the policy if a satisfactory planning case was made out on the merits.

The proportion of required parking was capable of being adjusted to produce the correct and preferable cash-in-lieu contribution outcome.

The Tribunal held that clear legislative authority would be needed to elevate the policies to controlling instruments which effectively supplanted the Scheme.