Residents, Ratepayers and Planning Appeals - Leveling the Playing Field

I have often been asked whether ratepayers or residents have any right to appeal against a planning approval for another property that adversely affects their amenity or lifestyle. The answer is, unfortunately, 'Not in Western Australia', although why WA should be different from other states has not been satisfactorily explained.

The response when the question is raised usually (see, for example, Janet Woollard's question in Parliament in May last year - below) rests on three things:

1) the danger of frivolous or vexatious appeals - which doesn't appear to be a problem elsewhere. Are WA people likely to be more frivolous or vexatious than others? On the basis of my 12 years in local government, I seriously doubt it - and frankly we should be outraged by any such suggestion.

2) the fact that residents and ratepayers may have some rights when an appeal is raised by others. However, this can only be the case when a developer or property owner appeals against a Council refusal or against a condition of approval. In the latter case, the State Administrative Tribunal will only consider the specific condition the local government seeks to apply and which is being appealed, not whether the development should have been approved at all.

3) the democratic process, which means that the community can express a view on the performance of individual councillors by voting or by standing for Council. However, this is no comfort to those who are adversely and irremediably affected by specific development approvals. In any case, not everyone has the time or inclination to be a local government councillor, which requires long term commitment to be effective.

Vincent, in fact, goes further than any other local government, where Council overturns a planning officer recommendation for approval of a development, with our practice of being represented at such appeals by an independent planner, an elected member and one or more members of the local community - not by our planning staff, who would have extreme difficulty defending a decision that was in direct conflict with their professional advice.

However, Council cannot empower local residents/ratepayers to initiate appeals against its decision to approve a development.

Even the 'best' of Councils will occasionally not get it right. Rather than just say that disadvantaged residents or ratepayers can express a view every two years or even phone us to let off steam after the decision, we should have the integrity and courage to allow direct redress - provided there is a reasonable basis for doing so.

The current planning system is biased in favour of the developer (whether an individual or a large-scale company) who can respond to a refusal by either an appeal or resubmitting the application (with or without amendment). The developer only needs to get the answer he/she wants once - other affected property owners need to get that every time.

This imbalance means that Councils should, if anything, err on the side of caution where there is any doubt about whether a development application should be approved. There is a parallel here with the Westminster convention on the use of the casting vote:

In the House of Commons the casting vote is held by the Speaker or the chairman of a committee. The convention is that the Speaker’s casting vote always gives the House another chance to discuss the subject before any final decision is taken.

It's time to level the playing field - and a Private Member's Bill likely to be introduced into the WA Parliament this year aims to do just that.

Third Party Appeal Rights and the WA Parliament

On 17 May, 2007, the Member of Alfred Cove, Dr Janet Woollard asked the Minster for Planning and Infrsatructure:

In Victoria, third party participation in the planning appeal process has been in place since 1963, and the process is not considered frivolous, costly or irrelevant.

(1) Will the minister explain why Western Australia remains the only state in Australia in which, other than when a local council and a developer disagree on a development application, there is no right for a third party to become a party to a state appeal process?

(2) Does the minister agree that members of the community should be given the opportunity to contribute, or object, to planning applications at a tribunal level?

(3) Will the minister ask the State Administrative Tribunal to provide this Parliament with an analysis of the cost effectiveness of third party appeals, perhaps based on the Victorian model?

The Hon Minister, Alannah MacTiernan replied, in part:

Third party appeals is a very vexed issue. It is not true to say that in Western Australia there is no right to appeal, or, indeed, be joined in a matter. However, there is no right for a third party to actually initiate an appeal. I guess we need to make a judgement about what is in the best interests of the community. Certainly at this point in Western Australia’s history, the idea that we would divert precious planning resources into appeals, many of which unfortunately will be, I think, judged frivolous, is not something that I believe could be justified. I point out that local government is elected by the community. Elections are held every two years. I urge people who are not happy with the sorts of planning decisions that are being made by their local governments to stand for council. It is really important, if people are concerned about these democratic processes, that people take the initiative to get involved, rather than just stand on the sidelines.