Australia: Thou shalt not pass … even though conditional approval says you can!

Lord of the Rings puns aside, we understand that security concerns are a major issue for our community. Nevertheless, conditions imposed by local governments on development approvals are generally imposed for good reason, and it may take some compelling change in circumstances in order to have them varied or set aside.

In Cumming and Town of Cambridge [2018] WASAT 65 the Applicant obtained planning approval from the Metro West Joint Development Assessment Panel (DAP) for the construction of 19 multiple dwellings. There were to be 24 onsite car parking bays, 5 of which were to be allocated for visitor parking, located closest to the street, and were to be the first 5 bays on entry.

Condition 7 of the planning approval provided:

Notwithstanding this condition, the Applicant constructed a metal vehicular gate and a metal pedestrian gate at the entry of the premises, which gates could only be operated on entry of a code or by pressing one of two buttons on a fob.

The Applicant then sought development approval for the installation of the gates. The Town's assessing officer recommended approval of the development as constructed. The Town had approved a Strata Plan for the complex, which differed from that approved by DAP, which showed the visitor car parking bays distributed throughout the complex.

The Town then resolved not to approve the gates on the basis that the security gate would impede access to the visitor bays and result in displacement parking on the surrounding streets. As street parking in the area was only permitted by residents who had a parking permit, this would result in increased unlawful street parking.

Also, the relevant 'deemed-to-comply' would also not be satisfied. Clause 6.3.4 C4.2 of the Residential Design Codes (R-Code) provides:

• marked and clearly signposted as dedicated for visitor use only, and located close to or visible from the point of entry to the development and outside any security barrier; and
• provide an accessible path of travel for people with disabilities."

It was common ground between the parties that the development did not meet the 'deemed-to-comply' R-Code provision, but the Applicant submitted that the development nevertheless conformed to the corresponding R-Codes design principle, which provides:

The Tribunal considered that not only was the relevant deemed-to-comply provision not met, but the relevant design principle was also not met.

Why could the Tribunal not approve the development?

1. THE DEVELOPMENT COULD NOT BE "CONVENIENTLY ACCESSED", AS REQUIRED BY THE RELEVANT R-CODE DESIGN PRINCIPLE.

• The gates provided a physical barrier.
• There was no intercom located on the gate.
• The visitor car bays were not visible from the gate.
• There was no signage indicating onsite visitor car bays were available. Even if a visitor knew that car bays existed, they were not accessible unless a resident was contacted by phone or text, or the visitor knew this code. Where a visitor was given the code, this would likely undermine security at the development.
• The visitor car bays spread throughout the development were likely to be monopolised by residents.
• In order for vehicles to pass at the location of the gate, it would be necessary and undesirable for a vehicle entering the development to move out into the street or onto a pedestrian path, in order to allow a vehicle to exit the development.
• Imposing a condition that the gates remain open from 7am to 6pm would not conform with the design principle.

2. TO APPROVE THE DEVELOPMENT WOULD BE CONTRARY TO THE PRINCIPLES OF ORDERLY AND PROPER PLANNING.

The Tribunal considered that there had been no change in the applicable planning framework and there had also been no substantial change in circumstances.

The purpose of the condition was to prevent on-street parking by visitors, and that remained unchanged from the time when the development approval was granted. The Applicant had an opportunity to challenge the condition in its earlier application to SAT for review of the DAP approval, but chose to accept the condition and construct the gates without approval.

Local Governments on development approvals conclusion

Conditions imposed by local governments on development approvals are generally imposed for good reason, and it may take some compelling change in circumstances in order to have them varied or set aside.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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