The outbreak of coronavirus, or COVID-19, has significantly disrupted every facet of life. Planning law has not been immune. Landowners and developers may find themselves hard-pressed to meet deadlines for the substantial commencement of a development approval within in the statutory two years[1] or the implementation of a subdivision approval within the statutory period of 3 or 4 years[2] (depending on the numbers of lots in the subdivisions) and meet deadlines associated with construction and development.  Are there options for parties to retain their approval when circumstances make it difficult to comply with the time limits?

The State Government is preparing to make amendments to the legislation governing the planning system as described later in this article. Until those amendments have been made it will be necessary to work within the existing legislative framework. In any event, the extent and degree of the State’s amendments are as yet unknown. We therefore give an overview of the existing law prior to examining the proposed State Government changes.

Development approval conditions related to time and ‘Substantial Commencement’

Development approvals are commonly subject to ‘substantial commencement’ conditions which require the work or development the subject of the approval to begin by the performance of some substantial part of that work or development in order for the development approval to be ‘activated’.

If a development is not substantially commenced within the specified time limit, the development approval will lapse. What is considered to be ‘substantial commencement’ has been the subject of judicial decisions and commentary. We are able to provide more detailed advice should you have concerns about whether your development has substantially commenced.

Schedule 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (Deemed Provisions), which apply to all local planning schemes, provides for development approvals to be amended in order to extend the period within which the development must be substantially commenced.[3] Such applications are required to comply with the standard form of application for a development.[4] However, there is scope for a local government to waive or vary this requirement if it is satisfied that the application relates to a minor amendment to the development approval.[5]

Whether local governments will permit a varied form of applications to extend the period for substantial commencement in light of COVID-19 remains to be seen.

Meeting subdivision time limits is more problematic, but is potentially possible, depending on the circumstances. If necessary, with the cooperation of the Western Australian Planning Commission, a new application may need to be made.

Notices and Offences Relating to Development

The Planning and Development Act 2005 (WA) (PD Act) provides an enforcement regime for development undertaken without approval. The responsible authority may give a landowner or party who undertook the development a written direction to remove the illegal development.[6] A written direction must not specify a time period which is less than 60 days, after the service of the written direction, within which the direction is to be complied with.[7]

It may be difficult to comply with a written direction at present, both in arranging for development to be removed and having sufficient funds to do, due to COVID-19 and the ‘two person per gathering’ restriction imposed by the Government.

The PD Act and the Planning and Development Regulations 2009 (WA) also provide that illegal development is an offence to which a monetary penalty applies.[8] Where a party incurs a monetary penalty for committing an offence under the PD Act the party is required to pay the penalty within 28 days of receiving the penalty notice.[9] However, there is scope under the PD Act for local governments to extend the period within which a penalty is required to be paid.[10] Similar issues arise under the enforcement regime provided for under the Building Act 2011 (WA) (Building Act).

If you have been served with a notice under the PD Act or Building Act and are concerned about your ability to comply with the notice due to the impacts of COVID-19 on your business, then it may be possible to obtain an extension for the time for compliance. Similarly, if COVID-19 has impacted on your financial capability to pay a penalty within the 28 days, it may be possible to extend this timeframe. If you would like further advice in relation to obtaining an extension, please let us know.

Government Initiatives in Western Australia

In Western Australia, an amendment to Schedule 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (Deemed Provisions) was published in the Government Gazette on 3 April 2020. The Amendment is the insertion of a new Part 10B to the Deemed Provisions, entitled ‘Exemptions from planning requirements for state of emergency’. The provisions allow the Minister for Planning, Lands and Heritage, by notice published in the Government Gazette, to exempt specific ‘planning requirements’, for the purposes of ‘facilitating response to, or recovery from’ an emergency declared under the Emergency Management Act 2005.

Those specific planning requirements are outlined in clause 78H(3), and include:

  • a requirement to obtain development approval;
  • a requirement to satisfy a condition of a development approval;
  • a requirement relating to land use permissibility; and
  • a requirement to consult or advertise, and in relation to time limits and forms required to be lodged.

To date, no notice has been published in the Government Gazette, however, given the current declaration by the State Government in response to COVID-19, it is expected that the powers in Part 10B will be invoked shortly.

Government Initiatives in New South Wales

The New South Wales State Government has taken the most extensive steps to change planning and local government law in order to assist in the response to the COVID-19 crisis. These measures are described below.

Development consent by Ministerial Order

Under the recently introduced Legislation Amendment (Emergency Measures) Act 2020 (Emergency Measures Act) the NSW Minister for Planning and Public Spaces is empowered to order development to proceed without planning approval requiring to be obtained if the development is necessary to protect public health, safety and welfare during the COVID-19 crisis. This is most likely to cover the development approval required for any new hospital or medical facilities which may be required as a result of COVID-19.

This grant of development approval can still be subject to conditions and can suspend the application of regulatory instruments such as rules, regulations, by-laws made under any Act or Authority, other than the Environmental Planning and Assessment Act 1979 (NSW).

The exceptional and wide-ranging powers are available to the Minister in the six month period following the commencement date of the Emergency Measures Act.

Amendments to operating hours and vehicle movements for retail supply chain businesses

The NSW Minister for Planning and Public Spaces has also recently made an order, the State Environmental Planning Policy Amendment (COVID-19 Response) Order 2020, which provides for special provisions to amend the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008.

These special provisions have waived restrictions on operating hours for retail premises and home businesses which are commonly included as a condition of development approval. Further, these businesses are now not restricted in regard to frequency and movement of vehicles on the subject premises.

The purpose of these amendments is to ensure businesses, particularly supermarkets, can keep up with the unprecedented demand for certain products by allowing them to deliver supplies at all times. Importantly to note, the amendment provides that the special provisions are repealed as of 1 October 2020.

City of Perth Initiatives

The City of Perth has recently announced a ‘Relief and Rebound Plan’ which, among other things, provides for:

  • accelerated work programs for the redevelopment of Wellington Square, the East End Revitalisation and the Roe Street Redevelopment;
  • an express planning service for change of land use and development applications by small businesses; and
  • waiver of fees and charges associated with licencing fees and development and planning fees.

If you find yourself needing legal assistance in these unusual times, feel free to contact admin@glenmcleodlegal.com

The information contained in this article is of general nature. Nothing in this article is intended to constitute legal advice and it should not be relied upon as such.

[1] Planning and Development (Local Planning Schemes) Regulations 2015 (WA) schedule 2 cl 71.

[2] Planning and Development Act 2005 (WA) s 145.

[3] Planning and Development (Local Planning Schemes) Regulations 2015 (WA) schedule 2 cl 77(2).

[4] Planning and Development (Local Planning Schemes) Regulations 2015 (WA) schedule 2 cl 77(2) and Part 8.

[5] Planning and Development (Local Planning Schemes) Regulations 2015 (WA) schedule 2 cl 77(3).

[6] Planning and Development Act 2005 (WA) s 214.

[7] Planning and Development Act 2005 (WA) s 214.

[8] Planning and Development Act 2005 (WA) s 227 and Planning and Development Regulations 2009 (WA) r 42.

[9] Planning and Development Act 2005 (WA) s 228 – 229.

[10] Planning and Development Act 2005 (WA) s 230.

Heathrow-airport

Heathrow Airport in London is the second busiest airport in the world and the busiest in Europe. In 2018, the United Kingdom Government announced planned extensions to the airport in its Airports National Policy Statement: new runway capacity and infrastructure at airports in the South East of England (Policy Statement). The Policy Statement included the introduction of a third runway to accommodate extra air traffic. The Policy Statement was the subject of five claims for judicial review, three of which were appealed to the Court of Appeal.

In R (Friends of the Earth) v Secretary of State for Transport and Others [2020] EWCA Civ 214 the Court of Appeal held that the Government had not taken into account the Government’s commitments under the Paris Agreement on climate change as required by statute. Section 5(8) of the Planning Act 2008 (UK) specifically stated that National Policy Statements, ‘must (in particular) include an explanation of how the policy set out in the statement takes account of Government policy relating to the mitigation of, and adaptation to, climate change’ in the reasons for the policy. The Policy Statement had failed to account for this requirement. The Court, in a declaratory order, said that the Policy was unlawful and without legal effect in its current form. It stated the Secretary of State was to undertake a review of the Policy in accordance with the Court’s judgement.

What does this mean for Western Australia?

The decision is not binding authority in Western Australia. However, judgements of the Court of Appeal, where relevant, carry significant weight in Western Australia. Western Australia does not have a section that is comparable to the provision that was considered by the Court of Appeal in this case. However, it is notable that, although the Planning and Development Act 2005 (WA) does not specifically use the term ‘climate change’, one of the purposes of that Act as stated in s 3(1)(c) is to ‘promote the sustainable use and development of land in the state’. Arguably, this objective requires planning authorities to consider climate change matters. It is potentially arguable that failure to do so in particular circumstances may lead the authority into legal error, thereby potentially making the authority vulnerable to a challenge similar to that mounted in R (Friends of the Earth) v Secretary of State for Transport and Others [2020] EWCA Civ 214. We must emphasise that this is only a possibility, and much will depend upon the nature of the development and the applicable policy framework. One of the significant differences between Western Australia and England as legal jurisdictions is, of course, that Australia is a federation and Western Australia, unlike the United Kingdom, is not a direct party to a treaty.

Even at the Commonwealth level, there is a lack of express statutory requirement to consider climate change impacts in the exercise of planning powers. Two recently introduced bills are noted for completeness: the Environment Protection and Biodiversity Conservation Amendment (Climate Trigger) Bill 2020, introduced by the Greens; and the Climate Change (National Framework for Adaptation and Action) Bill 2020 introduced by Zali Steggal MP are potentially relevant, but as neither at this stage are sponsored by a major party they may have difficulty in achieving relevance.

The Court of Appeal’s judgement is also one part of an observable trend of judgements in which climate change features as a planning consideration. This is most obvious in the high-profile decision of Preston CJ in the New South Wales case of Gloucester Resources Ltd v Minister for Planning (2019) 234 LGERA 257. In that case, a new coal mine was rejected due to, amongst other reasons, its contribution to climate change.

On balance, it is possible that the judgement may be seen as one of a larger set of recent precedents that point to the prioritised position climate change has recently reached globally. Whether this will be taken up in Western Australia remains to be seen.

Glen-Legalwise-seminar

Glen had a busy start to the week.

On 16 March 2020 Glen presented at the Law Society of Western Australia’s intensive ‘From the Ground Up: Lawyers Involved in the Making of Cities’. The event focussed on how the state is managing the challenge of creating a liveable city as the urban area grows and brought together lawyers, planners, developers, project managers and government representatives. Glen presented on the topic ‘Protecting Residential Amenity in Vibrant Cities: Environmental Protection (Noise) Regulations 1997 and the proposed WAPC Special Entertainment Precincts Position Statement’.

On the following day the 17 March 2020 he presented at Legalwise’s ‘Property Law Roundup’ at the March 2020 Property Law Conference. The program included presentations on Strata Title, insolvency, selling and leasing property, and the latest property market updates. Glen presented on contemporary issues in planning law, including planning issues in urban infill, managing land use conflicts in urban areas, planning controls and private property, and developer contributions.

If you would like to have a copy of either paper which Glen presented or have a question about the above topics, please feel free to contact us at admin@glenmcleodlegal.com

Doyles-2020

Glen McLeod Legal is pleased to announce our recognition as a first tier planning and environment firm in Western Australia.

Glen McLeod, Principal of Glen McLeod Legal has also again been recognised as preeminent in environment and planning law.

Achieving this recognition is an honour for the firm and we look forward to continue building our close relationships with clients, consultants and peers in the profession in the years to come.

waste-levy-consultation
  1. As the face of waste management changes, the State Government will continue to identify both short- and long-term issues. The Review of the Waste Levy – Consultation Paper (Levy Consultation) is intended to provide a broad overview of the waste levy strategic decisions, and to canvas for insights into the future.
  2. The Levy Consultation seeks feedback on a number of issues including:

a) the extension of the waste levy to apply to regional areas in addition to metropolitan areas;

b) whether increasing the waste levy incentivises waste facilities to investigate recycling and diversion opportunities rather than landfilling the material; and

c) amending the waste levy in a way which balances the need to be responsible to changed circumstances and technology, whilst also giving waste managers a level of certainty around the levy to enable them to make strategic waste management decisions.

  1. The Levy Consultation suggests that a levy on waste generated in regional areas may provide a financial incentive that may result in increased recovery. Implicit in this is the suggestion that waste which is generated in regional areas is also processed, re-used and recycled in regional areas. The effect of this would be to reduce transport costs and to allow waste to be recovered and reused locally. However, in evaluating this option it is also necessary to consider whether this would be worthwhile as landfill volumes and recycling opportunities are relatively small in regional areas and additional levy revenue would be modest.
  2. Further, applying the levy to regional areas would address the Government’s concerns that some operators are avoiding payment of the waste levy by transporting waste from metropolitan areas to regional areas.
  3. In relation to the proposal to increase the waste levy fees, the Levy Consultation notes that this may not lead to an uptake of recycling and waste diversion opportunities, if these options are not financially attractive. Increasing the waste levy may therefore have unintended consequences, such as creating an incentive for stockpiling the waste or inappropriate disposal of the waste to avoid paying the levy. The Levy Consultation seeks feedback from waste facility operators on whether recycling and waste diversion opportunities would become more viable if the waste levy was applied in a different way.
  4. The Levy Consultation also requests feedback from waste facility operators how decisions about managing waste or related investments would be impacted if it was known how the waste levy would be varied into the future. The Levy Consultation notes the need to balance responsiveness to emerging knowledge about best practice waste management with the benefits of providing waste facility operators with confidence about future waste levy rates. Feedback is sought on how to achieve this balance.
  5. The consultation can be viewed here: https://www.dwer.wa.gov.au/consultation/waste-reform-consultation and submissions must be made by 15 May 2020.
  6. If you require assistance in making a submission on this consultation, please contact us at admin@glenmcleodlegal.com
Pile of cardboard

Waste management is a contentious but important subject. In particular, in recent times a tension has become apparent between the use of the waste levy on waste disposed of to landfill and the practice of stockpiling waste instead of burying it.

  1. Two consultation papers have just been released by the Department of Water and Environmental Regulation to address some of these issues
  • Closing the Loop: Waste Reforms for a Circular Economy Consultation Paper February 2020 (Waste Consultation); and
  • Review of the Waste Levy Consultation Paper (Levy Consultation).
  1. The Waste Consultation outlines a number of legislative reform proposals which the Government has pitched to improve waste management and promote a circular economy in Western Australia. These changes have the potential to affect the operators and licensees of licenced waste premises across the State.
  2. The Waste Consultation seeks feedback on a proposed amendment to the Environmental Protection Act 1986 (WA) (EP Act) to include objectives relating to waste avoidance and resource recovery. These changes have the potential to affect the granting of licences for waste premises and the setting of licence conditions under Part V of the EP Act.
  3. Waste stockpiling is identified as a critical issue in the waste industry and the consultation explores a number of options to disincentivise stockpiling. Options include the imposition of the waste levy on waste facility operators if waste is not removed from specified waste storage facilities within 12 months if it is not processed and it is not going to be sold or otherwise used. This option is presented alongside levy exemptions for waste used for construction or maintenance work carried out at licenced landfills.
  4. The Waste Consultation also proposes amending and amalgamating landfill and solid waste licencing categories. If implemented the proposed amalgamation and clarification of the existing five prescribed landfill categories under the Environmental Protection Regulation 1987 (WA) (EP Regulations), may result in changes to licencing of premises, licencing exclusions and the payment of the waste levy. Further, the proposed changes to the solid waste licencing categories would, amongst other things, affect the category licence required for the storage, re-use, treatment or sorting of solid waste.
  5. The Waste Consultation also explores numerous options aimed at supporting a circular economy, including using waste-derived materials in industry. It says that uncertainties in the current licencing and levying regimes may be contributing to a lack of waste-derived materials in the Western Australian market and notes that this issue is currently under separate consideration. We will provide a further update as details are released.
  6. Lastly, potential reforms considered in the consultation include amendments to the existing waste reporting scheme. These amendments would require waste facility operators to report on the weight, volume, origin and type of waste received at the waste facilities. The intention behind this reform is to allow more comprehensive waste data to be compiled and to assist decision-makers in shaping future waste initiatives.
  7. The Waste Consultation can be viewed here: https://www.dwer.wa.gov.au/consultation/waste-reform-consultation.

If you require assistance in making a submission on this consultation, please contact us at admin@glenmcleodlegal.com

Chelsea-white's-admission

Glen McLeod Legal is delighted to announce the admission of Chelsea White to the Supreme Court of Western Australia. Chelsea’s admission was moved by Glen McLeod on 7 February 2020.

Chelsea has been a valued part of the Glen McLeod Legal team since March 2017 and we look forward to watching her growth in the legal profession.

Justice Edelman

On 18 December 2019, Lea Hiltenkamp had the pleasure of welcoming the Hon Malcolm McCusker AC CVO QC and the Hon Justice Edelman of the High Court of Australia to the Piddington Society’s final event of the year. Malcolm Mccusker provides a very lighthearted reflection on how he first met Justice Edelman and his many achievements over the years. His Honour then took the stage and delivered a very insightful speech on the growing importance of written advocacy. His Honour pronounced his six commandments for improving written advocacy, which included writing clearly and succinctly, avoiding “purple prose” and setting a clear structure to the submission from the outset.

the-law-society-event

Glen McLeod Legal was delighted to again be a supporting sponsor of The Law Society of Western Australia’s End of Year Celebration on Thursday 5 December 2019 at the impressive Westin Hotel.

We are proud to attend and support this annual event as it provides an opportunity to engage with others in the profession and to celebrate with them another busy and eventful year.

Field with clouds

The State Government announced today that it will support carbon farming on pastoral lease land in Western Australia (WA). As readers of our blog will know Glen McLeod Legal hosted on 27 November 2019 a seminar titled  ‘The Potential of Carbon Farming in Western Australia – Opportunities and Challenges’, in collaboration with Murdoch University and the Harry Butler Institute.

The State Government’s support for carbon farming on pastoral land is seen as a major step in unlocking WA’s carbon sequestration potential and according to the Government’s announcement is expected to be an element of the State’s Climate Policy, planned for release in 2020.