Fast Bucks, Coorabell
There’s been some local public discussion about ‘precedent’ mainly in relation to the maximum permitted height of buildings. But also in relation to the number of cabins permitted on certain types of land.
Most of the discussion is based on an erroneous understanding of planning law for example: ‘if we allow this proposal to go ahead it will set a precedent.’
In reality what local council votes on, or the independent planning panel votes on, or, a commissioner of the court decides is called a ‘merit’ decision i.e. the outcome, is based on the particular merits of the particular proposal. Accordingly the outcome does not set any kind of legal precedent that can be applied to situations, even if they appear to be similar. Developers, of course, will suggest otherwise.
In relation to the former Woollies site in Byron, for example, they will say ‘oh well, Council allowed the height limit to be exceeded in the case of Mercato next door, so it must give us the same height’ in reality there is no ‘must’ about it, because each case is different.
The developer’s argument might carry moral weight – that they ought, on the basis of fairness, to be allowed a higher limit. But Council is not legally obliged to listen to that moaning – that developer could not appeal on such grounds alone.
All this is perfectly well understood by Council’s planners and lawyers, but as far as informing your elected councillors or the public about it you’d be waiting for ever. Public and elected offical ignorance is staff bliss.
The concept of the ‘legal precedent’ properly belongs to decisions made by judges when they have to rule on matters of law; we can’t have one judge interpreting a law one way and another judge deciding differently. To ensure consistency, the decision of the first judge called upon to rule on a matter becomes the precedent that binds subsequent judges. (judges in the High Court call them ‘authorities’ rather than precedents).
Anyway if you want to rattle developers you can play them at their own game by citing the independent planning commission’s recent rejection of the Bylong coal project, for the following reasons: ‘The project is not in the public interest because it is contrary to the principles of ecologically sustainable development – mainly intergenerational equity because the predicted economic benefits would accrue to the present generation but the long-term environmental, heritage, and agricultural costs will be borne by the future generations.’
Use this quote against developers as a ‘precedent’ and watch them splutter, fume, and rant! Which reminds me of what my own 13-year-old son said to me recently: ‘You’re gonna leave it to us to clean up the mess, aren’t you?’
Not for want of trying some.