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The Politics of Refusal

Sometimes a Development Application approvals process is just pure politics, affirming how defective the process is. We’ll discuss this here from a recent experience. 

The Laminar Triplex was approved last month in the Land and Environment Court (LEC). It was a project we went to a great deal of trouble to ensure that it not only complied with Council’s Controls – and it did for all but a single Development Control Plan (DCP) “Density Control”. We also worked very hard to minimise the proposal’s impact on the neighbours – Council’s Planners resoundingly agreed it did. The Councillors were not so sure but ultimately the approach and design quality was vindicated in the LEC process.

To get to the crux of this post it’s not necessary to go into the detail, but there are a few important points. The first is that Council’s planners fully endorsed the proposal and recommended the DA for approval. The second is that none of the objectors (6 in total) to the proposal thought it objectionable enough to come to the Council meeting where the Councillors were to vote on it – Redshift attended to speak in favour. The Councillors were predisposed to refuse anything that didn’t comply with the DCP density control irrespective of any other merits or compliance.
Note: for those that aren’t familiar with Council controls, the DCP is not a Statutory Control and full compliance is not necessarily required for approval, it is at Council’s discretion.

It is probably pretty obvious how the refusal played out – it is after all implied by the title. The DA was refused by the Councillors on the grounds of the “loss of amenity to adjoining neighbours.” This was in spite of the fact that the “loss of amenity” was very minimal. The arguments presented in our application were not even listened to or taken in to account. This was a decision based not on merits but on politics. This is not an uncommon predicament, whereby Councillors refuse to be accountable for any decision to approve (good or bad). Instead they prefer if the Application is to be approved, that the LEC is responsible. An attitude that creates an avoidable and substantial cost in time and money to both Council and Applicants.

We were aware that the Councillors would be difficult but had expected a fairer hearing and potentially an Approval as a consequence – a naive expectation perhaps. As already stated, a massive effort had been put in to make the Application as reasonable a modest as possible when submitted to Council. By the time it got to court, the Application was pretty much bulletproof. By the time the Council had been sacked and Council’s Administrator reviewed the proceedings, their case crumbled and Approval was a formality. This, however, was not before tens of thousands of dollars had been spent (& wasted) on the proceedings. In our view it is outrageous that the DA process can be corrupted by inane politics. It makes us furious that our client’s time and money are being wasted in this way. The DA system is broken and must be fixed.

A good friend of ours does have a suggestion for making some repairs to this aspect of the vandalised DA process:
Any case taken to the Land And Environment Court with a recommendation for approval by Council’s Planners but lost by Council, should require that Council pay costs. No costs are currently awarded in the LEC, except in rare and exceptional circumstances. Should awarded costs come into play then just perhaps Councillors may think twice about specious DA refusals… or we’d like to think that they would be more hesitant!

Anyone else have anything to add?

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