Decision to reverse a previously granted development approval set aside

Capital Recycling Solutions Pty Ltd v Planning and Land Authority of the ACT [2019] ACTSC 58 (15 March 2019)
In this ACT Supreme Court decision, Associate Justice Verity McWilliam set aside a secondary ‘review’ decision by the ACT Planning and Land Authority to reverse a previously granted development approval. The judgement stated that the initial approval (dated 7 April 2017) allowed for the construction of a hard stand structure in an IZ2 Industrial mixed use zone next to a railway line running through the Canberra Railway Station in Fyshwick.
The key pieces of legislation in question were section 180 of the Legislation Act 2001 (ACT) and section 189 of the Planning and Development Act 2007 (ACT). The Planning and Land Authority argued that there was a contrary intention between the two sections, as well as power conferred by section 162 of the later Act, to allow a secondary review of the initial approval decision. The Plaintiff argued that the Authority did not have the jurisdiction to make this unilateral decision, since they had made no changes to the initial proposal.
McWilliam AsJ considered leading cases of administrative law such as Project Blue Sky andBhardwaj, and found in favour of the Plaintiff stating that invalidity of a development approval is established only by judicial rather than administrative determination. It was deemed that the initial approval in 2017 was valid and no contrary intention existed that allowed unilateral revocation in the legislation. 
She found that the Planning and Development Act contained provisions that allowed the Planning and Land Authority to revoke a decision, and that any revocations are limited to the provisions within the relevant Act.
The case is important in ensuring procedural integrity for planning decisions and development in the ACT. The Court noted that if a decision maker could arbitrarily revoke an approval for development, this would risk undermining commercial certainty for developers and stakeholders, as well as accountability to community interests in the land use


connect

get updates