The DAP
The Development Assessment Panel (DAP) came into existence on 1 July 2011. Since then Councils and their elected members lost control of any development with a “value” of $2million or more.
In the first 18 months the DAP approved six development in secret:
- 125-135 Railway Road, Subiaco dated 21 March 2012
- Lot 603, 66 and 10 Great Eastern Highway, Midland dated 14 June 2012
- Mineral Lease ML244SA – Ore Body 24, East Pilbara dated 27 July 2012
- Lot 12 McCoy Street, Melville dated 13 August 2012
- 110 Cambridge Street, West Leederville dated 21 August 2012
- Lot 806 Injune Way, Joondalup dated 29 August 2012
That is, there is no published agenda, responsibly authority report (RAR), or minutes of meeting released for public scrutiny of these decisions. I recommended Subiaco Council take legal action to stop these secret approvals, and it did. The practice of secret approvals by the DAP has curbed significantly.
However, there is still the matter of secret negotiations with developers and the DAP coming from the State Administrative Tribunal (SAT). It’s very easy for developers to get what they want in FIVE EASY STEPS:
- Put in an ambit claim (to build 87 units zoned for 24 units in ALFRED COVE)
- Get a refusal from the DAP and Council
- Go to the State Administrative Tribunal (SAT)
- Mediate an outcome in secret (build 84 units instead of 87 units)
- The DAP holds a public meeting and approves the non-complying development.
But there’s more.
The DAP rules say that every development application must go to the Responsible Authority (local council) for a Responsible Authority Report (RAR). DAP training notes claim that the RAR is to come from a planning officer, NOT the council. So far no council has challenged the DAP training notes allowing the planning officer to write what ever they like, and not what the council wants. Mr Denis McCleod, a local government lawyer, said this has got to change and issued the challenge at the July DAP hearings. Even though the council might agree with the report from a planning officer, it should be the council as the responsible authority that makes the final recommendation to refuse or approve in the RAR.
But there’s even more…
A DAP panel is made up of FIVE members. Three appointed by the state government and two from the local council. The majority of DAP applications which break planning rules have been approved by the three state government members using their majority vote and discretionary clauses* from the local planning scheme. They are unaccountable for their decisions, especially when a qualified planning officer has recommended refusal and provided a 10 plus page report to support their recommendation.
The majority of three use DAP standing orders to approve anything they wish, even if the development breaks all the rules. Let’s say the ambit claim is at STEP 5 ( of the FIVE EASY STEPS) and the council RAR recommends a refusal. One of the state government’s panel members will move a motion to approve without any prior notice to the public. The DAP standing orders allow this to happen this way:
- Standing Order 3.1 requires the Agenda of the DAP meeting to be published at least 5 days before a DAP meeting. This standing order is weak because it does not address how the public will received information on possible amendments to council’s RARs or Alternate Motions. It is not proper process to simply ambush the public meeting with an Alternative Motion to approve a development which breaks the rules without public scrutiny.
- Standing Order 3.3 requires the panel member to review the RAR AND ASSOCIATED MATERIAL (which could include Alternate Motions) and seek further information if required. Standing Order 3.1 requires the DAP secretariat to publish the meeting agenda on the DAP website. Why wouldn’t this process extend to amendments and alternate motions? Would a reasonable person receiving an Alternative Motion, which is a SUBSTANTIAL departure from the RAR recommendation, hours before the DAP meeting be able to meet Standing Order 3.3 to seek further information before making a decision?
- Standing Order 5.5 says that alternate motions and amendments must be put in writing to the presiding member only. It makes no requirement to publish alternate motions before the meeting so that the public can change their submissions if required.
Finally there is no certainty the DAP will have ALL meetings in public to determine a DAP application (Reg 40(2)). See the six DAP development application decisions in the localities of the Shire of East Pilbara, City of Swan, City of Joondalup, City of Subiaco and Town of Cambridge. All approved in secret.
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