Tribunal reveals "planning nightmare"

The State Administrative Tribunal has highlighted deep-seated problems in the state's planning process in a ruling on the University of Western Australia's contentious Shenton Park development proposal.

According to the tribunal the University had become bogged down in a "quagmire" of applications, appeals and reviews which expended an extraordinary amount of public time, effort and fund.

The tribunal ruled it had no jurisdiction to entertain the proceedings, nor power to grant approval to the development application, but acknowledged the University and its stakeholders had become caught in a 'Kafkaesque nightmare'.

The summary of the judgement and UWA's announcement is pasted below:

The University of Western Australia owns a 63.3665 hectare property in Shenton Park which it has sought to plan and develop for the past decade. Most recently, the University of Western Australia lodged an Outline Development Plan and a development application for bulk earthworks with the City of Nedlands under its local planning scheme.

The City of Nedlands deferred making a decision in relation to the development application until environmental assessment processes under State and federal laws had been completed. The City of Nedlands did not make any decision in relation to the Outline Development Plan.

The University of Western Australia filed applications for review of what it characterised as the 'deemed refusal' by the City of Nedlands of the Outline Development Plan and the development application.

The University of Western Australia subsequently recast its case in relation to the Outline Development Plan, contending that the application was for review of an actual decision not to proceed with the Outline Development Plan, rather than the deemed refusal of the Outline Development Plan.

The City of Nedlands raised the following preliminary issues for determination:

- Whether the University of Western Australia had a right to seek review of any relevant decision of the Council in relation to the Outline Development Plan.

- Whether the development application was capable of approval in the absence of an Outline Development Plan adopted by the Western Australian Planning Commission.

The Tribunal determined that the University of Western Australia did not have a right of review in relation to the Outline Development Plan proceedings and, consequently, that the Tribunal did not have jurisdiction to hear and determine those proceedings.

The local planning scheme conferred a right of review on '[a]n applicant for the Council's ... approval required by the Scheme who is aggrieved by a decision of the Council in respect of the exercise of a discretionary power by the Council under the Scheme'. However, the University of Western Australia was an applicant not for the Council's approval in relation to the Outline Development Plan required by the scheme, but rather for the approval from the Western Australian Planning Commission in relation to the Outline Development Plan required by the scheme. Furthermore, any decision by the Council in relation to the Outline Development Plan would not be in respect of the exercise of a discretionary power, but rather would be in respect of the exercise of a legislative power.
The Tribunal also determined that it did not have power, in the absence of an Outline Development Plan adopted by the Western Australian Planning Commission, to grant approval to the development application. While the Scheme did not contain an express requirement for prior approval of an Outline Development Plan, there were three textual indications which manifested a clear legislative intention to that effect.

The Tribunal therefore dismissed the University of Western Australia's proceedings.

However, the Tribunal noted that the University and other stakeholders had become embroiled in a quagmire of applications, plans, environmental referrals, environmental assessments, environmental bulletins, environmental appeals, planning appeals/reviews and Ministerial decisions.

Extraordinary amounts of public time, effort and money had been expended, and the inconsistent, indeterminate and, apparently, never-ending processes reflected very poor public administration of planning and environmental laws. The Tribunal suggested that the relevant stakeholders should sit down together and strategically and comprehensively determine the development potential of what was obviously a highly unusual, if not unique, Urban and Development zoned site.

UWA CAUGHT IN PLANNING 'NIGHTMARE': STATE TRIBUNAL

Western Australia's top administrative tribunal has acknowledged 'very poor public administration of planning and environmental laws' in relation to The University of Western Australia's proposal to develop land it has owned since 1904 in Shenton Park.

The State Administrative Tribunal said the University's attempt to develop its land in Underwood Avenue, had been conducted 'amid myriad interruptions' caused by various environmental processes and had become a 'nightmare'.

In finding that the University did not have a right of review and therefore that the Tribunal lacked jurisdiction to determine the matter, the Tribunal indicated that there were two options for 'all concerned to awake from this Kafkaesque nightmare'.

The Tribunal indicated that this could be either through the State Government taking charge of the process or by mediation involving all relevant parties.

UWA Vice-Chancellor Professor Alan Robson acknowledged the decision and welcomed the Tribunal's call for the process to be finalised.

"We welcome and support the view that the State Government could take charge of this process," Professor Robson said.

He said the University had appealed to the Tribunal because the City of Nedlands would not progress the University's Outline Development Plan for the Shenton Park site.

In its decision, the Tribunal said it had been prevented from making a final determination by the Environmental Protection Act and noted that the University's attempts to plan and develop its land over the past decade have been stymied by 'many and varied processes none of which have determined the development potential of the site.'

It said: 'The amount of public time, effort and money that has been expended ... in relation to planning proposals to the site is extraordinary. Furthermore, the various processes referred to earlier, which have been inconsistent, indeterminate and, apparently, never-ending, reflect very poor public administration of planning and environmental laws.'

Professor Robson said the community should be rightly concerned at the Tribunal's specific references to the inordinate waste of public resources which has resulted from what are clearly dysfunctional processes.