09/08/2005 - 22:00

High Court decision may affect approvals

09/08/2005 - 22:00

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Developers in Western Australia have been warned that a High Court decision late last year, which calls into question the status of planning approvals as a right that attaches to land, has the potential to affect development approvals.

Developers in Western Australia have been warned that a High Court decision late last year, which calls into question the status of planning approvals as a right that attaches to land, has the potential to affect development approvals.

The Hillpalm decision, which was an appeal from the NSW Court of Appeal, has created a situation that potentially overturns the planning principle where planning approvals attach to the land rather than as a specific right for the person who obtains the approval, and creates subdivision approval as a personal right.

Phillips Fox special counsel Belinda Moharich said the case had not been tested in Western Australia and that developers should be aware of the case and the potential ramifications it could have.

“The implications from this case are likely to come up in WA in the future, probably if the principles are applied by a bloody-minded local government,” Ms Moharich said.

“It is very unclear how to apply this case, and so far it has only created a ripple, not a tidal wave in the planning world, but it is very unusual for planning cases to go all the way to the High Court.”

Ms Moharich, a former member of the State Administrative Tribunal and a senior member of the Town Planning Appeal Tribunal, said she was advising clients purchasing land subject to development approvals to make enquiries with the local government, and if necessary, to draft transfers.

“Until such time as the position is clarified in relation to this case, applications for planning approval should seek legal advice, preferably prior to site acquisition and prior to the lodgement of their application for planning approval, to ensure that their development rights are protected throughout the life of the project,” she said.

Some states, including Queensland, have legislation expressly stating that approvals pass with the land, and Ms Moharich said such an amendment in WA would clarify the position and may be necessary.

“The Hillpalm decision poses more questions than it gives answers, and an amendment to legislation is the cleanest way of clarifying the position,” she said.

The High Court was clearly split over the decision, with justices Kirby and Callinan strongly dissenting.

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