It has been clarified that a Council can change its mind whilst there is a WA State Administrative Tribunal (SAT) review underway. SAT has stated that when a local government is reconsidering a decision pursuant to section 31 of the State Administrative Tribunal Act 2004 (WA) then the local government has the power to consider a motion to revoke a decision if the notice of determination has not yet been given to the Applicant.

The facts

In the case of Richardson and City of Swan [2022] WASAT 17, the facts were as follows.

On 11 August 2021, Council granted a conditional development approval, which varied an earlier development approval.

The Applicant was unhappy with the conditions and filed a review in SAT on 1 September 2021.

The City of Swan was invited by SAT to reconsider its decision “on or before 28 February 2022”.

On 2 February 2022, the City of Swan varied its decision in a way that was acceptable to the Applicant.

Shortly after that decision (it appears that it might have been on 2 February 2022 but after the Council meeting, and importantly before 28 February 2022) a Councillor gave to the CEO of the City of Swan a notice of motion under section 5.25(1)(e) of the Local Government Act 1995 (WA) and regulation 10 of the Local Government (Administration) Regulations 1996 (WA), to revoke the reconsideration decision made by Council on 2 February 2022 and remake it in a manner consistent with the decision of 11 August 2021.

At the time the notice to revoke was received by the CEO a "Notice of determination on application for development approval" had not yet been issued by the City of Swan.

The revocation motion was scheduled to be debated at a Special Council meeting on 28 February 2022. This was, of course, within the timeframe set by SAT being “on or before 28 February 2022”.

Although not entirely clear when, at some point, the Applicant become aware of the decision made on 2 February 2022 and the revocation motion. It appears that might have occurred when the Applicant’s solicitors were notified of the revocation motion.

The outcome

SAT found that:

  • The section 31 reconsideration order had not expired (it was due by or on 28 February 2022).
  • That a decision in relation to the issuing of a development approval required (due to clause 70 of the deemed provisions, which set out a two-stage process, firstly the determination of the application and secondly the notification of the decision) a notification of the decision to be communicated by a person authorised to do so before it became final and that this had not occurred in this case.
  • A revocation notice is expressly allowed for in the Local Government Act 1995 (WA).
  • A communication which notified the Applicant of a decision at the same time as notifying the Applicant of a revocation motion meant that the Applicant could not be said to have relied upon the decision.

SAT refused the Applicant’s application for a declaration and held that the City of Swan was free to consider the notice of motion to revoke the motion at its February meeting.


What does all this mean?

When Councils are reconsidering a decision under section 31 of the State Administrative Tribunal Act 2004 (WA), if the timeframe for reconsidering the decision has not run out and the applicant has not been notified of the decision, a revocation motion is still within the Council’s ability to consider.

Further information / assistance regarding the issues raised in this article is available from the author, Anne Wood, Partner or your usual contact at Moray & Agnew.