Retrospective Approval – “A Misnomer”


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 (Act).

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 subsequent approval.

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 Scheme.

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 offence period.

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.
Conclusion

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 superfluous.

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 carried out’.

Recommendation

We recommend avoiding the term “retrospective approval” and instead use the term “approval for an existing development”.

The information published in this paper is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.