Representing WESTERN AUSTRALIA PARTY
A Responsible Authority Report (RAR) contains a two recommendations from a local government. One from a planning officer and the other from the Council regarding a DAP application valued at $2 million or more.
The Development Assessment Panels (DAP) was introduced to Western Australia on 1 July 2011, for developments worth $3 million or more to replace planning decisions made by elected councillors and planning officers under delegated authority.
In 2015 the rules were changed to a lower value of $2 million or more. The mandatory value threshold increased to $10 million.
Under DAP Regulations 2011, Reg 12 a Responsible Authority must provide a report to the DAP in a form approved by the Director General. See the latest version here: Responsible Authority Report (RAR) template – Form 1 (1) 2017
These new DAP regulations referred to the term Responsible Authority but was silent on its meaning.
Many Mayors and elected councillors have been led by lawyers and CEOs to believe that they can no longer participate in the DAP decision making process because they are NOT a Responsible Authority, but I and many other Councils say they are!
The City of Subiaco threaten legal action against the Department of Planning if the elected members (Mayor and Councillors) were not recognised as the Responsible Authority on the following basis:
1. DAP Regulation 12(2) provides for a “responsible authority” to give a report to the DAP known as a Responsible Authority Report (RAR).
2. The “responsible authority” is not defined in the Regulations so we must look for a definition in the Planning & Development Act 2005.
3. 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.
4. 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
5. Section 2.5(3) of the LG Act provides that a local government has the capacity of a natural person.
6. 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)).
7. Section 2.6(1) of the LG Act provides that each local government is to have an elected council as its governing body.
8. Section 2.7(1)(a) of the LG Act provides that the council governs the local government’s affairs.
9. 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.
10. There is only one legal entity that exists. The “City of Subiaco” is the name of the local government, not a separate thing.
11. The role of the Department of Planning’s Director General 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.
12. The RAR is meant to contain technical information prepared by a planning officer for which this Council can rely on in making its recommendations to the DAP.
13. The DAP training notes 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 claim is not part of any legislation. It encourages conflicting statements between the elected Mayor and Councillors and its own planning staff who work cooperatively together on the majority of development applications before it.
In July 2012, the Director General issued DAP Practice Note 5 which confirms that:
Where elected members of a council have delegated their authority to a planning officer to prepare a RAR, a decision of Council can be made under the heading of Council Recommendation on page 4 of the RAR template.
Click here for a copy: Responsible Authority Report (RAR) template – Form 1 (1) 2017
Click here for a copy: DAP Practice Note 5 Regulation 12 RAR
Sometimes elected members are told they can’t include a Council Recommendation because of timing issues before a RAR is due at the DAP. This can easily be resolved by calling a Special Council meeting. A Special Council meeting is a great opportunity for the community to have a say and ensure their statements have planning merits to support or refuse the DAP application.
In summary, a responsible authority is the elected council. The elected council may give delegated authority for a planning officer to prepare a recommendation. The RAR can include both the planning officer and the Council’s recommendation. Grounds for refusal have more weight when using DAP Practice notes: Making Good Planning Decisions and decisions of the State Administrative Tribunal.
Enquires: Cr. Julie Matheson, East Ward Subiaco