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Sep 21, 2018

The recent decision of Member Eddy of the State Administrative Tribunal (SAT) in BGC (Australia) Pty Ltd (BGC) and The Presiding Member of the Metro East Joint Development Assessment Panel (JDAP) provides clarification on the application of a Local Planning Policy requiring the provision of public art either on-site or as a contribution towards public art.

In that case, BGC had lodged a Development Application for the addition of two (2) asphalt batching plants and the reconfiguration of material bin stores at a property used for existing industrial purposes.  The application was approved by the JDAP, however with a condition requiring the provision of public art on-site or as a financial contribution to the value of 1% of the estimated construction value.  The condition had been imposed in accordance with the City of Swan’s (City) Local Planning Policy – Provision of Public Art (Public Art Policy).

BGC had lodged a DAP Form 2 to remove the public art condition, however this was refused by JDAP and BGC sought review by the SAT of the refusal.

Hotchkin Hanly Lawyers acted for the Applicant, with Mr Nathan Stewart of Rowe Group as expert witness.  JDAP were represented by the State Solicitors Office.

The key matters considered by the SAT were:

  • Whether the condition was imposed for a proper planning purpose;
  • Whether the condition reasonably referred to the proposed development; and
  • Whether on its merits the imposition of the condition was the preferable planning outcome.

In relation to the first consideration, the SAT found that the Public Art Policy did not link the requirement to provide public art with a proper identification of how the development created the need for such art.  As a result, the SAT found that the application of the Public Art Policy had no proper planning purpose.

In relation to the second consideration, the JDAP submitted that the provision of public art would benefit the increased number of workers coming to and from the site.  However, the SAT found that even if the additional workers would have their amenity improved by the installation of public art, the value of that public art being 1% of the estimated construction value was based on an entirely arbitrary formula that did not fairly and reasonably relate to the development.  Therefore, the SAT was not satisfied that the condition reasonably related to the proposed development.

In relation to the third consideration, the SAT found that there was no connection between the proposed development and the need to provide public art or a contribution towards public art.  Therefore, the SAT formed the view that the preferable planning outcome was that the condition is deleted.

26/09/2018 *The West Australian published an article on the BGC v Metro East JDAP public art decision, read more.


Rowe Group Comment

This decision will likely have implications on most local authorities and how they apply their public art local planning policies.  As a result of this decision, developers are likely to closely consider if a public art condition imposed on a development is indeed reasonable and if they should apply to delete any condition requiring the provision of, or contribution towards, public art as part of their developments.

Furthermore, it may be possible for developers with existing developments that did provide public art or a contribution towards public art, to seek to be compensated or refunded for contributions that they have already made.

Please contact either Mr Greg Rowe or Mr Nathan Stewart if you have any comments or questions in relation to this case or for assistance on a development approval where you have a condition requiring the provision of or contribution towards public art.

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