RAR tampering
We have a new twist to the Development Assessment Panel (DAP) Secretariat’s handling of Responsible Authority Reports. They can change them without notice to the Responsible Authority nor the public.
The City of Subiaco provided an RAR to the DAP Secretariat for the DAP Applications at 208-212 Bagot Road, Subiaco and 263-277 Hay/17-19 Olive Street, Subiaco. The DAP Agenda dated 14 December 2012 did not publish the RAR in its entirety as required in Regulation 39(1).
DAP Regulation 12(2) states that a Responsible Authority must provide a report in a form approved by the CEO. That regulation has no provisions to change the content of the Report. On what grounds do you say that the DAP Secretariat had to tamper with the RAR provided and not publish the RAR as provided by the City of Subiaco in its entirety? That’s a question for Minister John Day.
Who is a Responsible Authority? The DAP regulations are not clear on the matter. Therefore we must refer to the Planning and Development Act and the Local Government Act as a reference source.
- DAP Regulation 12(2) provides for a “responsible authority” to give a report to the DAP known as a Responsible Authority Report (RAR)
- The “responsible authority” is not defined in the Regulations so we must look for a definition in the P&D Act.
- Section 4 of the Act provides a definition that the “…local government responsible for the enforcement of the observance of the scheme..” is a responsible authority.
- So what is a local government? Section 2.5(2) of the Local Government Act provides that a local government is a body corporate with perpetual succession
- Section 2.5(3) of the LG Act provides that a local government has the capacity of a natural person.
- The corporate name of a local government (e.g. City of Subiaco) is the combination of its district designation and name (see sections 2.5(5) and (6)).
- Section 2.6(1) of the LG Act provides that each local government is to have an elected council as its governing body.
- Section 2.7(1)(a) of the LG Act provides that the council governs the local government’s affairs.
- Like a company, a local government is a fiction – a creature of statute. A company’s governing mind or personality is expressed through its directors. A local government’s personality is found in its council which is formed by elected members, just like directors form a company.
- There is only one legal entity that exists. The “City of Subiaco” is the name of the local government, not a separate thing.
- The role of the Department of Planning’s CEO is to approve the form of the RAR, not to circumvent the role of Council and allocate the function of the RAR to a planning officer, preventing Council from providing the RAR itself.
- The RAR is meant to contain technical information prepared by a planning officer for which the elected Council may rely on in making its recommendations to the DAP.
The DAP training notes clause 4.5.3(b) claim that “if the local government wishes to make a statement regarding an application for a DAP, it should do so by making a submission“. This is a divisive claim, not part of any legislation, that tries to usurp power from the elected Mayor and Councillors to make conflicting statements against its own planning staff who work cooperatively together on the majority of DAs before it.
So my conclusion is that the Responsible Authority is the elected members, not a qualified planning officer. The RAR should contain the planning officer’s report and contain the recommendations by the elected members as resolved in meeting with delegated powers.
Every Western Australian council should review any DAP application and make their own recommendations in the responsible authority report. Otherwise how can elected members respond to the residents and ratepayers who elected them regarding development approvals within their jurisdiction?
