In recent years, a growing number of development permits have been annulled by the courts. This pattern has not gone unnoticed, prompting reflection among academics, developers, NGOs, policymakers, public authorities, and the media alike. What lies behind these judicial reversals?
A wide array of legal issues can lead to the revocation of a permit. However, one of the most common and recurrent grounds is the misapplication of planning policy. This type of legal flaw, though often overlooked during the initial stages of the permitting process, ultimately proves decisive when challenged before the Court of Appeal.
This is precisely the focus of this recent short publication introduced here, entitled Why Courts Are Revoking Development Permits. Rather than attempting to catalogue all possible errors of law, this study concentrates on a specific category: how incorrect interpretation or application of policy by the Environment and Planning Review Tribunal (EPRT) results in legal errors that justify annulment.
Using a hypothetical example, the publication identifies four key ways in which such errors typically arise:
- Misinterpretation of the policy or legal provision — where policy language is read too narrowly or broadly, without proper contextual or legal analysis.
- Application of an inapplicable policy — where policies designed for specific zones or contexts are erroneously extended to others.
- Ignoring mandatory legal provisions — such as failing to consider the need for prior clearance from heritage authorities.
- Reliance on policy without evidentiary support — where decisions are made absent factual justification, even if the policy is correctly identified.
The analysis also touches on the subtle yet important distinction between errors of law and matters of fact, drawing on instructive jurisprudence such as Pozzolanic Enterprises Pty Ltd [1993]. This distinction becomes particularly relevant in cases involving terms like “significant,” which require value judgments about impact and proportionality.
Ultimately, the study invites closer scrutiny of how planning policies are understood and applied. It also raises questions about the appropriate judicial remedy when policy is misapplied—whether outright annulment is always justified, or whether remittal to the Tribunal would sometimes be more appropriate. That question, however, is left for a separate contribution.
In the meantime, a public lecture on this topic will be delivered shortly in collaboration with the Faculty of Laws. Further details will be announced in due course.
