DAP ignore Council resolution in Broome
It is astonishing how easy the DAP have made it for the Premier (and dictator) Colin Barnett to have his way in the Kimberley to approve Woodside’s gas plant.
Last year the Kimberley DAP overrode the Shire of Broome’s resolution to refuse a retrospective planning application by Woodside for investigative work at James Price Point. DAP member Shire President Graeme Campbell voted against the retrospective application (see p. 6 of DAP Minutes, 17/2/12)
The DAP are making it easy for Colin Barnett to get is way, that is to ignore community consultation, ignore local government and ignore orderly and proper planning to protect the amenity of locals and the culture of the area.
Now Woodside want to take the project further using the DAP to approve a ‘FIFO camp’ on Lot 283 Broome Road, Roebuck.
The Shire of Broome must prepare a Responsible Authority Report (RAR) to put before Council within the allocated time frame. The DAP must receive the RAR within 90 days from 7 January 2013 (Reg 12(3)(b)(ii). The Shire will advertise the application from 17 January 2013 for 21 days. All public submissions must be included in the RAR.
Don’t believe what you have heard that your elected Councillors have no say on the content of a RAR. It is unsubstantiated claim put out by the Department of Planning in its DAP training notes. There is no legislation that backs the claim.
The Council can use the RAR to remind the DAP of the following:
- Development approval cannot be granted based on the State Government’s planning strategies. There is a statutory process, which requires an opportunity for public comment to be given, to change the applicable planning scheme if necessary. The development application cannot be assessed on the basis of speculation about what might be the outcome of future processes to change the Shire of Broome’s Town Planning Scheme to accommodate such a development.
- Further, development approval cannot be granted based on speculation about what might be built in the locality in the future. A Town Planning Scheme is clear in directing that assessments must be undertaken by reference to existing circumstances and with a view to preserving present amenity into the future.
- The views expressed above accords with recent decisions of the State Administrative Tribunal (SAT) (see for example, Jakaby Pty Ltd v Shire of Mundaring  WASAT 159 and Castella Pty Ltd v City of Canning  WASAT 47) where the Town Planning Scheme took precident over any futuristic plans the State Govt might have. This case law cannot be ignored by the DAP or any so-called experts on the DAP.
- In a statement in Parliament the Minster for Planning (made 27 September 2012 in question time) said that: “The Development Assessment Panels make their decisions in accordance with the underlying planning framework, such as the relevant planning scheme or planning policies. The setting of the underlying planning framework at both local and state levels would have been subject to a separate planning process where community consultation would have been undertaken”.
- There is no entitlement in law for a land owner to receive a development approval for a building based on future imagined circumstances or a future imagined town planning scheme.
- Further, the development application cannot be approved by a DAP in a secret and/or confidential forum (whether at SAT mediation or if referred back to the DAP under section 31 of the SAT Act) because the DAP must meet in public when determining any development application: see DAP Regulation 40(2).
- If the DAP does not issue a notice of meeting, hold the meeting in public, and issue minutes for any meeting it holds, the DAP will not be properly constituted and the decision made would be invalid.