There is no such Thing as Retrospective Planning Approval: Supreme Court Confirms


The Supreme Court has confirmed that planning approvals issued under section 164 of the Planning and Development Act 2005 for already existing uses do not retrospectively approve those developments. Approval is only from the date of the grant of the section 164 planning approval.

In prosecutions where a planning approval has been issued under section 164 after the period of the offence, there has been a number of cases where submissions have been made by the Accused (or their lawyers) that because an approval has been issued that the criminal conduct during the offence period had been retrospectively approved.

If this argument was accepted it would mean that what was a criminal offence at the time of the conduct would have been somehow retrospectively made lawful. This is akin to saying that when you drove down a particular road at 65km per hour when the speed limit was 60km you committed an offence but because the speed limit was changed a month later on that road to 70km an hour that somehow you had not committed that offence.

In the decision made this month on the case of Bright Image Dental Pty Ltd -v- City of Gosnells [2017] WASC 229, Her Honour Justice Pritchard made it clear that section 164 of the Planning and Development Act 2005 did not retrospectively approve a development but instead prospectively approved the development from the date of the grant of approval.

This confirmation is significant because it means that even after the granting of a section 164 planning approval there is an offence period between when the unauthorised development commenced and the day before it was approved via the issue of an approval for an already existing use. Therefore local governments retain the option to prosecute for this period of time – even if that prosecution is commenced after the grant of planning approval for the use (providing that the limitation period for the commencement of a prosecution has not been breached).

Conclusion

In the Bright Image Dental Pty Ltd v City of Gosnells matter, the unauthorised development was storage. During the time that the City of Gosnells was aware of the unauthorised storage, the zoning of the land changed which enabled the Appellant to apply for and obtain an approval for an already existing use and the Appellant then claimed that planning approval retrospectively approved the storage back to the date when the storage had commenced. The Supreme Court decided that was not the case.

Her Honour Justice Pritchard also clarified that enforcement options available to a local government would not approve an unauthorised development. Examples of such action included; a conviction in a prosecution under the Planning and Development Act 2005, the payment of a Planning Infringement Notice and compliance with a Planning and Development Act 2005 Direction Notice. The only thing that approves an unauthorised development is a section 164 approval and that only approves the development from the date of the grant of approval.

This decision is the subject of an application for leave to appeal to the Court of Appeal and therefore it will be important to check the outcome of that appeal in due course.
Seminar on Bright Image Dental Pty Ltd -v- City of Gosnells

Kott Gunning, who acted for the City of Gosnells, will be conducting a seminar on the intricacies of this case and its implications for local governments. If you are interested in attending this seminar, please contact Anne Wood on awood@kottgunn.com.au.

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.