This matter relates to an application under Section 80 of the Planning and Environment Act 1987 to review several conditions on planning permit no. WH/2015/1116 which allows the construction of a multi-storey apartment building on the subject land.
The matter was set down for a compulsory conference on 3 May 2017 before Member Cimino.
Before the compulsory conference, the applicant filed a request to withdraw the application for review. The request followed a decision taken by the Responsible Authority to issue an amended permit which purportedly corrected several of the conditions in dispute under Section 71 of the Planning and Environment Act 1987. Given the correction of several conditions, the applicant was prepared to withdraw the application.
Leave to withdraw the application was not given for two reasons.
Firstly, the conditions in dispute were the subject of a proceeding before the Tribunal. The granting of leave to withdraw an application effectively results in the confirmation of the decision made by the Responsible Authority, not the subsequent changes.
Secondly, while Section 71 of the Act provides the ability for the Responsible Authority to correct a permit that contains mistakes, the extent of this power is constrained. This section of the Act makes it clear that corrections include clerical mistakes, accidental slips or omissions and material miscalculations of figures or a mistake in the description of a person, thing or property.
On reviewing the 'corrections' to conditions made by the Responsible Authority, it is clear that they do not seek to remedy clerical mistakes or accidental slips. Rather, the 'corrections' have the effect of amending the requirements of the conditions. This is not to say that the modifications agreed to by the Responsible Authority are inappropriate from a merits viewpoint, but such changes should have been made through an application under Section 72 of the Act or by order of the Tribunal. In my view, the corrections to the permit are invalid and I will make a declaration to this effect.
There are three clear messages arising from this matter. Firstly, responsible authorities should not:
tamper with permits that are the subject of an application before the Tribunal.
Secondly, the purpose of Section 71 of the Act is to allow for clerical errors, mistakes, accidental slips etc to be corrected, not to change the requirements of conditions.
Thirdly, applicants should seek amendments to permits by way of an appropriate application, either to the Responsible Authority or the Tribunal.
At the compulsory conference before Member Cimino, the parties confirmed their agreement to the Tribunal making orders to implement the agreed changes to the conditions in dispute. They also acknowledged that the corrections to the permit are invalid and seek a declaration to that effect.
Accordingly, this order is made at the request of the parties and with their consent as an outcome of a compulsory conference.
The Tribunal regards the consent of the responsible authority to be a confirmation to the Tribunal that:
the responsible authority is of the opinion that the amended permit is appropriate having regard to the matters it is required to consider under section 60 of the Act, including the balanced application of the strategies and policies of the relevant planning scheme and is otherwise in conformity with the provisions of the planning scheme and the Planning and Environment Act 1987;
the proposed orders will not result in any change to the proposed use or development which would materially affect any person other than the parties to the proceeding.