Certain preliminary issues arose for determination concerning the status of these applications for planning approval. The Tribunal decided that, based on the planning cases, an objective reading of the applications in the matrix of facts and circumstances that supplied the context to the application was the correct approach to the characterisation of the applications.

In respect of the Colorbond fence, the Tribunal characterised the application as one seeking retrospective approval. Indeed, the applicant had expressly sought the same. Such approval was permissible because the time period fixed for the temporary structure to remain had expired, and approval to regularise the development, by way of seeking permanent approval for the Colorbond fence, could be sought retroactively. The Tribunal observed that, based on the planning cases, generally speaking, multiple applications could be made for development over the same land but that inconsistent simultaneous approvals could not be relied upon.

However, as the pedestrian safety rail application was properly to be characterised as seeking a prospective variation and notwithstanding the earlier variation to approval made by the City of Bayswater (a matter not before the Tribunal), the law did not permit either the City or, on review, the Tribunal to entertain such an application. The highest court in Western Australia (the Court of Appeal) had held that a Local Government could not, absent statutory authority, alter, vary, modify, revoke, withdraw or otherwise relevantly affect planning approval once it had been formally given.

The Tribunal observed that if the applicant had instead sought fresh planning approval for what it wanted to do (based upon the availability of multiple planning approvals), that is, an approval augmenting or extending development for which approval had already been granted, the outcome may well have been different.

The Tribunal acknowledged, at least as regards the pedestrian safety rail application, that this was a generally unsatisfactory outcome. The Tribunal cited the comments of a Judge in another planning case who had observed: 'I have reached this conclusion with no enthusiasm because it places a premium on form and penalises the substance of the matter'.

Aznavour v City of Mandurah [2002] WASCA 320; (2002) 124 LGERA 173

Bakker and City of Nedlands [2005] WASAT 106

Bretherton v Moonee Valley City Council [2000] VCAT 1151

Erny Pty Ltd v Maribyrnong City Council [2006] VCAT 195

Esther Investments Pty Ltd v Town of Mosman Park (1995) 15 SR (WA) 74

Plesa Pty Ltd and Western Australian Planning Commission [2010] WASAT 58

Price & Anor and Shire of Gingin [2008] WASAT 210

Rohrlach v City of Unley (2011) SAERDC 19

The Executor of the Estate of Haigh and Western Australian Planning Commission [2007] WASAT 303

Woollahra Municipal Council v Carr (1985) 62 LGRA 263

1 On 26 May 2010, Coventry Square WA Pty Ltd (applicant) received, as part of a wider shopping centre development proposal, planning approval to build a pre-cast concrete panel fence or wall along the entire north-western boundary of the Coventry Square Market redevelopment site on Walter Road West, located in Morley (subject land).

2 This original planning approval included a continuous pedestrian safety rail fence extending some 90 metres alongside the western half of the southern boundary of the subject land.

3 On 8 November 2011, the City of Bayswater (City or respondent) purported to vary the May 2010 approval: first, by fixing a completion date for the concrete boundary fence or wall of 1 March 2012; secondly, by expressly requiring a temporary Colorbond fence to be erected on the boundary of the site in the same location, pending the completion of the concrete fence or wall; and thirdly, by allowing the modification of the pedestrian safety railing into two sections.

4 The parties agreed that certain preliminary issues arose that required determination. These issues were:

1. Is planning approval now required under the City of Bayswater Town Planning Scheme No 23 (TPS 23 or Scheme) to remove a further portion of the existing safety rail fence?
2. Does the City have the power under the Scheme to vary the approval for the Coventry Square Market redevelopment granted on 26 May 2010, and varied on 8 November 2011, in circumstances where the redevelopment the subject of the approval has been carried out and the use commenced?
3. If the answers to the above issues are 'No', does the Tribunal have jurisdiction to review the respondent's decisions in relation to the fence application or the safety rail application?

5 The answers to these questions (and the reasons therefor) were delivered orally. What follows is taken from the transcript of those reasons and has been formally revised and edited for publication.

6 The parties have agreed upon certain facts and a chronology of events, which can be found at paragraphs 4 to 13 of the statement of preliminary issues and relevant facts, as follows:

1. On 26 May 2010, the respondent granted planning approval for the 'Coventrys [sic] Square [M]arket Redevelopment' at Lot 1, No. 243 - 253 Walter Road West, Morley (land), subject to 43 conditions (Approval), including condition 2 which provided:

'The development shall be carried out only in accordance with the terms of the application as approved herein, and any approved plan' (Condition 2)[.]

(a) A 2.4 m high masonry pier and pre-cast concrete panel fence along the entire north[-]western boundary of the property (Fence); and

(b) 'Pedestrian Safety Railing' extending approximately 90 metres along the western half of the southern boundary of the property (Safety Rail).

1. On 8 November 2011, at the request of the applicant, the respondent resolved to:

(a) [a]dd an additional condition to the Approval (Condition 45) which provided:

'A precast panel and concrete pier fence in accordance with the development approval dated 25 May 2010, and plans dated 8 April 2010 is to be constructed to the Lennon Street and [public accessway] lot boundary.

The fence is to be installed and completed by the [sic] 1 March 2012 to the satisfaction of the City of Bayswater. A temporary colorbond fence [is] to be installed in the intervening period.'; and

(b) [to] allow the modification of the Safety Rail by constructing the Safety Rail so that it comprised 'two (2) sections being "24 m" and "64 m" as shown on the amended plans.'

1. The applicant installed the temporary colorbond fence and constructed the Safety Rail in [two] sections in accordance with the respondent's resolution of 8 November 2011.
2. On 18 June 2012, the respondent received the Fence Application. While the Fence Application refers to a 1.8 m high fence, the fence the subject of the Fence Application is in fact 2.1 m in height. Accordingly, the Fence Application should be read as an application for approval for a '2.1 m High "Sandstone" Colorbond Fence'.
3. On 25 July 2012, the respondent refused the Fence Application for the following reasons:

'1. The previously approved precast panel and masonry pier fence is considered to be more appropriate that [sic] the colorbond fence in relation to the scale and nature of the development and the amenity of the area.

1. The colorbond fence is considered to unduly affect the amenity of the area.
2. The colorbond fence is considered to be inconsistent with the orderly and proper planning of the locality.
3. The precast panel and masonry pier fence forms an integral component of the development and is considered to be more consistent with the City's vision for the Morley city centre.'
4. On 26 June 2012, the respondent received the Safety Rail Application.
5. The Safety Rail Application was for approval to remove [two] fencing panels from the 24 m portion of the Safety Rail shown on the approved plans to create an additional opening measuring 3600 mm in that portion of the fence.
6. On 25 July 2012, the respondent refused the Safety Rail Application for the following reasons:

'1. The proposal is considered to unduly impact the pedestrian movement system as it would facilitate pedestrian movements across Walter Road West outside of the designated signalised crossings.

1. The proposal is considered to facilitate unsafe pedestrian movements at Walter Road West.
2. The proposal is considered to unduly affect the amenity of the area.
3. The proposal is considered to be inconsistent with the orderly and proper planning of the area.'
4. The applicant has subsequently applied to the Tribunal for review of the respondent's decisions to refuse both the Fence Application and the Safety Rail Application.

7 I observe that, rather curiously on the arguments advanced now by the City, such variations effected on 8 November 2011, at least most clearly as to variations 1 and 3 (see above), may not have been lawfully permissible. But that issue is not before the Tribunal, and the parties have treated these variations of November 2011 as valid planning approvals. I proceed upon the same assumption.

8 The temporary Colorbond fence has been constructed but the concrete fence or wall has not been constructed. Subsequently, the applicant sought in June 2012, in effect, to convert the temporary Colorbond fence into a permanent structure as a replacement for the concrete boundary fence. In July 2012, the respondent refused planning approval for the conversion of the fence from a temporary to a permanent replacement fence.

9 Importantly, in its June 2012 application for planning approval, the applicant expressly sought retrospective approval for the Colorbond fence: see the applicant's planner (Mr Webb's) letter accompanying the application to the City, dated 14 June 2012; see also, the officer's report and the Council's minutes of 24 July 2012, at 86.

10 As mentioned above, the safety rail component of the development was purportedly varied by the respondent in November 2011.

11 A further application in relation to the pedestrian safety rail was considered by the respondent in July 2012. The City's planning officer summarised, at 99 - 100 of the City's minutes of 24 July 2012, the November 2011 situation and the July 2012 proposed variations for the pedestrian safety rail as follows (emphasis added):

In October 2011, the applicant applied to amend the approval as granted by Council on 25 May 2010. Council at its Ordinary Meeting of 8 November 2011 approved a proposed amendment to the safety rail fence, to reduce the length of fence by providing an opening to accommodate emergency vehicle access to the property and the fire booster located on the front forecourt of the site. The fence opening also enabled additional pedestrian access to the forecourt area and bus stop while restricting pedestrians from crossing Walter Road West, away from the signalised crossing ...

The subject application seeks the city's approval to remove two (2) panels from the safety rail ... providing an additional opening of approximately 3.6 metres, onto Walter Road West. The opening is sought to provide further access to the two (2) western-most tenancies.

12 Thus, the pedestrian safety rail was, as a consequence of the purported authority given by the City in its November 2011 decision, reduced in length by it being reformulated as two sections. This is described by Mr Webb in his letter to the City dated 25 June 2012, correctly, as a 'modified' condition of development. As I have already indicated, the question of the lawfulness of the use of the subject land for that purpose is not before the Tribunal. The Tribunal's jurisdiction is confined to the later attempt to make further access openings into the railing, namely, the proposed 'modification' by the 'remo[val] [of] two panels from the safety rail'.

13 Of course, unlike the case with the boundary fence or wall, no party has sought to characterise the pedestrian safety railing issue as one of retrospective approval.

Legal framework on retrospective approvals and construing development applications

14 The relevant principles to be applied, so far as retrospective approvals are concerned, are discussed in Aznavour v City of Mandurah [2002] WASCA 320; (2002) 124 LGERA 173 (Aznavour), per Miller J at 182 and per Roberts-Smith J at 185. These principles have been applied in this Tribunal in, for example, Bakker and City of Nedlands [2005] WASAT 106 (Bakker) and Price and Shire of Gingin [2008] WASAT 210 (Price).

15 Essentially, the following propositions emerge from those cases.

16 First, a planning authority, including this Tribunal, cannot, absent express legislative authority, alter, vary, modify, revoke, withdraw or otherwise relevantly affect planning approval when it has been formally given. Hence, earlier suggestions, sensible as they were, of an implied power to make minor variations (found, for example, in Esther Investments Pty Ltd v Town of Mosman Park (1995) 15 SR (WA) 74) must be taken to have been overruled by Aznavour.

17 There is, however, to be found a limited authority under the City of Bayswater Town Planning Scheme No 24 (TPS 24) permitting revocation or amendment of planning approval prior to the commencement of the use or development the subject of the planning approval: see cl 3.16.

18 Secondly, where the use or development of land has taken place contrary to, or at variance with, a planning approval, then s 164 of the Planning and Development Act 2005 (WA) (PD Act) and its Scheme equivalents - here, cl 3.15 of TPS 24 (a related planning instrument) - permit planning approval to be given, in effect validating, with retrospective effect, such development.

19 Thirdly, what an applicant seeks by way of planning approval is to be determined by the 'objective matrix of facts and circumstances that supply the context' to the application: see the discussion in Price, at [47]ff. In addition to the cases discussed in Price on this point, I refer to the recent comments of the Environment, Resources and Development Court of South Australia in Rohrlach v City of Unley [2011] SAERDC 19 (Rohrlach), a decision of his Honour Judge Costello. Relevantly, his Honour said, at [51]:

In my view, the outcome of a determination as to the true nature of an application, and hence the development, might be different depending upon the circumstances surrounding that application.

This is not to say that it is the applicant who determines the nature of the development but rather that the determination of the true nature of a development will often depend on the context in which the application is made.

20 In Bakker, the Tribunal found that a variation to an approval had been sought by the applicants and not retrospective approval. Consequently, because of the application of Aznavour, the application could not be entertained. Further, the Tribunal held that it did not have the power to re-characterise the application as one seeking, say, retrospective approval. In Price, the Tribunal found, in a quite complex factual scenario, that retrospective approval had been sought by the applicant and that the Tribunal had jurisdiction to entertain the review.

21 I accept, as the Price decision says at [39], that the fullest reading should be given to the powers given to a planning authority to permit retrospective approval of a development. Here, planning approval was given for a temporary Colorbond fence to be constructed. An expiry date of 1 March 2012 is indicated on a proper reading of the context of the approval. Clearly - and I think that this is also common ground - the fence has ceased to be temporary. The applicant wants that situation validated or rectified. In my view, the retrospective approval mechanisms under both the PD Act and TPS 24 are available for that purpose.

22 Thus, the Tribunal, as did the respondent originally, has or had the authority to entertain a retrospective approval application in respect of the Colorbond fence.

23 Such an approach is also consistent, in my view, with the general statement of principle concerning the lodgement of multiple development applications which is mentioned in Rohrlach. There, at [47], his Honour said:

I accept the appellants' submissions that an applicant may seek multiple approvals for multiple developments on the same land and that regardless of there being multiple applications, a planning authority should not be diverted from turning its mind to what is proposed in, or in association with, each application.

24 Such retrospective approval, if granted, necessarily has in this case the effect of neutralising, at least practically, any prior inconsistent obligation to build precisely on the same site or space according to the original approval, as it has been 'overtaken' by another approval which has been authorised by statute. Cf Bretherton v Moonee Valley City Council [2000] VCAT 1151 at [78], cited with approval in Erny Pty Ltd v Maribyrnong City Council [2006] VCAT 195, '... inconsistent [approvals] cannot be relied on simultaneously'.

25 However, the consideration of the application will necessarily canvass, as if it is yet to be built, the respective merits of a Colorbond fence in competition with the (earlier) concrete wall or fence concept.

26 The pedestrian safety rail is a much more difficult issue.

27 First, I should say that the construction of the original pedestrian safety rail in the context that we are considering, or the two further iterations of the structure - once completed - all constitute, as the applicant properly concedes, the use or development of land requiring planning approval.

28 If the fence has or had been constructed without approval either as it presently appears or as it is now proposed to be constructed by the applicant, then, for the reasons already stated, retrospective approval could have been given to either such development.

29 There would be, of course, no practical utility in applying for either prospective or retrospective approval as to the first iteration, as it conforms to the November 2011 resolution of the City, which, in any case, is not a matter before the Tribunal.

30 The second iteration was expressly applied for, as I read it, as a variation (a 'modification') of the previously modified planning approval. As we have seen, if that characterisation - that is, a 'variation' - is upheld, then Aznavour leads to the inevitable conclusion that there is no jurisdiction for the decision-maker to approve the same.

31 The Tribunal favours, generally speaking, substance over form if that course is permitted: see, for example, Plesa Pty Ltd and Western Australian Planning Commission [2010] WASAT 58 at [49] - [52], and at [61]. This course, however, is not always possible: see, for example, The Executor of the Estate of Haigh and Western Australian Planning Commission [2007] WASAT 303 and, of course, Bakker.

32 Regrettably, in the case of the pedestrian safety rail, Aznavour must be applied, as the applicant has neither taken unilateral action on the second iteration that might attract a characterisation leading to retrospective approval, nor has the applicant sought fresh planning approval for what it seeks to do (or, as the applicant's counsel put it, an approval 'augment[ing] or extend[ing] development for which ... approval has already been granted' - a fresh application divorced from 'varying' what has been previously approved and constructed).

33 I very much regret that this conclusion has been reached. I am, with respect, in the same position as McHugh JA (as he then was) was in Woollahra Municipal Council v Carr (1985) 62 LGRA 263. There, his Honour said, at 269:

I have reached this conclusion with no enthusiasm because it places a premium on form and penalises the substance of the matter.

34 In my view, Aznavour requires in effect an inquiry into context which will point to either an applicant seeking an impermissible variation, as here and as also happened in Bakker, or retrospective approval, as happened in Price. Alternatively, it will be tolerably clear that the applicant has lodged a fresh application on the principle that, speaking generally, multiple planning approvals can attach to the same land.

35 Accordingly, subject to hearing from counsel, the questions ought to be answered together with effect as follows:

1. the Colorbond boundary fence can be the subject of a retrospective planning application that seeks to make that structure permanent, such application to be considered on its merits; and
2. there is no jurisdiction to review the current pedestrian safety rail application which on its proper characterisation seeks a variation of an original planning approval.

36 The matter should be adjourned to a directions hearing in due course.

37 For the reasons set out above, the orders of the Tribunal are:

1. The three preliminary issues reserved for consideration in the matters are answered en banc as follows:

(a) The temporary Colorbond boundary fence can be the subject of an application for retrospective planning approval that seeks to make that structure permanent, such application, on review, to be considered on its merits.

(b) There is no jurisdiction to review the current pedestrian safety rail application, being an application that seeks a variation of the original planning approval.

1. The matters are to be listed for directions at 9.15 am on 3 May 2013.

I certify that this and the preceding [37] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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