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Court orders a thorough reassessment

The pertinent policies were changed in the interim period and the proposal was now in conflict with the new policies contained in the Local Plan

robert_musumeci
Robert Musumeci
25 December 2015, 8:00am
An outline permit was issued prior to the introduction of the Local Plans which were issued in August of 2006. Subsequently, the applicant lodged a full development application in relation to the same site. The pertinent policies were changed in the interim period and the proposal was now in conflict with the new policies contained in the Local Plan. Now, as a general rule, the Local Plan automatically supersedes all previously approved policies, plans and other planning instruments which are deemed to be conflicting.

On the other hand, the “principles established in an outline development permit, as determined and approved in the decision in accordance with the description, prevail over the provisions of the local plan” on condition that the full development application is submitted within the period within which the outline permit is still valid. 

In this case, the full development application was submitted to the MEPA within the validity period and thus insisted that the new policies may not adversely affect any vested right which he may have acquired by reason of the outline permit. Subsequently, the full development application was assessed in the light of the principle/s approved by the outline permit and the permission was subsequently issued.

Following approval, a third party objector lodged an appeal before the Environment and Planning Tribunal, alleging that the permit ran counter to current policies. The Tribunal nonetheless concluded that the permit was valid, reiterating that the principles established in an outline development permit supersede any conflicting policy which may eventually take effect.

Further to the Tribunal’s decision, the objector lodged another appeal before the Court of Appeal (Inferior Jurisdiction). In his appeal submissions, the objector alleged inter alia that the Tribunal simply “rubber stamped” the full development application without probing into its merits.

In its assessment, the Court held that the Tribunal was correct to assert that the full development application was to be assessed in accordance with the parameters set out in the outline permit. But having said that, the Court noted that the Tribunal failed to undertake a thorough assessment as to whether the proposal was actually in line with the stated outline parameters. Against this background, the Court ordered the Tribunal to revisit the case.

robert_musumeci
Dr Robert Musumeci is a warranted advocate and a perit. He also holds a Masters Degree in ...
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