24 August 2011
The recent success of legal challenges to planning approvals and rezoning has brought the total number of successful challenges to major decisions to eight over the last two years.
The list was topped off with the a High Court case earlier this month, which found that provisions inserted in the Ku-ring-gai Planning Scheme Ordinance in 2004 suspending restrictive covenants were ineffective, because the Department of Planning and failed to follow the proper internal government process when the amending local environment plan (Ku-ring-gai Local Environment Plan No 194) was gazetted. The court decision is here. This comes on top of the decision to strike down the Ku-ring-gai Town Centres LEP last month.
In our Member Alert on 12 July 2011, we told of you of the recent court decision to declare the rezoning of the Huntlee New Town proposal void. One reason for that decision was that the voluntary planning agreement finalised in late 2010 was held to be invalid. This then poisoned the subsequent rezoning (which was partly predicated on the agreement), which was found to be invalid too.
The voluntary planning agreement was found to be invalid because of a requirement under the legislation that every agreement must contain a provision for “the enforcement of the agreement by suitable means, such as a bond or guarantee”. In the case of Huntlee, there was a series of staged payments to be made by the developer some time after the rezoning was to be granted. The Court said that the law requires bonds, guarantees and other assurances of the same kind and none were included in the agreement in relation to the staged payments. There is some suggestion that other approvals, already issued, may be challenged on the same grounds.
The Urban Taskforce is concerned that there is too much uncertainty as to the legal status of planning approvals and rezonings already in place. Both in response to the specific court finding on voluntary planning agreements in the Huntlee case (which could still be reversed on appeal) and the more general problems revealed by the eight major losses suffered by the Department of Planning over the last two years.
We have made representations to government about our concerns, and explained why government should take action to protect existing approvals and rezoning from further legal challenge (our written submission is available here).