Money-Street

I would like to thank all of those who have congratulated Glen McLeod Legal on its 8th Anniversary.

This is a time to be grateful to our clients, contacts and well-wishers. I am grateful for the loyalty of our staff and the support they receive from their families. We are grateful for how the business has performed in this unique year. No-one planned for COVID-19 and we had to play by ear how we responded. We managed during March, April and May and the business kept going without reduced working hours or enforced leave. We are pleased that, with the end of the Financial year behind us, the trend seems to be positive as far as work-flow is concerned.

In the first part of the Financial year, we were delighted to celebrate the admissions to practice of Lea Hiltenkamp and Chelsea White.

I am also very grateful for the support of our more senior lawyers Connor Fisher and Jess Hamdorf, as well as our Administrative Team, two excellent Practice Managers, Janine Upson and Bridget Thorpe, who job share, with the reliable support of Secretary Brooke Plummer.

We are also grateful to have had with us for most of this year, three capable part time law clerks, Emiko Watanabe, Thomas King and Daniel Morey. They are studying law at University but fortunately find the time during their busy week to work with us.

We are fortunate to live in Australia and in WA, in particular, where we have had no community transmission of COVID-19 for some time. The Country and State are blessed to have the resources to support in large measure the economy following the initial shock of these difficult times. At the same time, we do not assume that the COVID-19 pandemic is fully behind us.

The team at GML is ready to meet the challenges, among other things, by adhering to the firm values, in particular team work and client focus (there is a full statement of our values here). We can look forward to a successful 2020/2021 and wish our clients, friends and supporters likewise.

Best wishes,

Glen McLeod

planning-and-development-bill

Far reaching changes, including both procedural changes to the way planning law is administered and practical changes that will be of continuing relevance to developers, were introduced by the Planning and Development Amendment Act 2020 (WA) (Act). The Act received royal assent on 7 July 2020 and will amend the Planning and Development Act 2005 (WA) (PD Act).

Our previous blog article provided an overview of the Act as introduced in the Legislative Assembly. This article summarises the key changes to the Act as passed through both houses of State Parliament.

Definition of ‘significant development’

The new Part 17 of the PD Act creates a different approvals process for ‘significant developments.’ Under the Act, ‘significant developments’ may be referred directly to the Western Australian Planning Commission (WAPC) for determination.

The definition of ‘significant development’ has been amended to:

  • Development that has an estimated cost of $20 million or more in the metropolitan region; or
  • Development that has an estimated cost of $5 million or more outside of the metropolitan region.

This is a significantly wider definition than originally proposed, and in particular opens avenues for regional developments. However, we note that this definition relates only to development and does not contemplate strategic planning instruments, such as structure plans, activity centre plans or local development plans.

Default substantial commencement period reduced

The default period for substantially commencing ‘significant developments’ has been redefined to a period of 24 months from the date of approval. This is a reduction from 48 months as proposed in the original version of the Bill. This means development will need to commence earlier than previously anticipated or else approval will lapse. The WAPC still has the power to impose a longer or shorter substantial commencement period.

WAPC must undertake public consultation

The changes to the wording now strengthen the requirement for public consultation as part of the new ‘significant development’ approval pathway. Where previously public consultation was worded as discretionary, it is now a required part of the approval process.

The WAPC may also do ‘anything else’ it deems appropriate to ‘obtain a document, information, an opinion or any other contribution from any person or body’.

The Act now requires the WAPC to consult with the Department of Water and Environmental Regulation if the land is classified as contaminated and thereby subject to a Memorial under the Contaminated Sites Act 2003 (WA). While removing the express requirement to consult with the Environmental Protection Authority, the Act now expressly states ‘for the avoidance of doubt’ that the Environmental Protection Act 1986 (WA) prevails in the case of conflict.

Conclusion

Stricter guidelines on the process the WAPC must undergo to approve developments is a concession to the effectiveness of the Act as a ‘red-tape’ cutting measure. However, this balances the shorter substantial commencement period and wider significant development definition. The PD Act should now see more developments taking advantage of Part 17, and with that a greater transparency and certainty in decision making.

road-work-ahead

Roads, rail and other infrastructure are seen as one route out of the COVID-19 economic languor. There is talk of ‘fast tracking’ projects. Some have been on the drawing board for a long time. Now there is a sense of urgency; to get on with it.

A new Planning and Development Bill is now making its way through State Parliament. The Bill was described in its explanatory memorandum as both ‘an urgent response to the COVID-19 pandemic, as it relates to planning and development impacted by the greatest economic crisis since the Great Depression’ and the first tranche of a set of broader planning reforms.

The land for these projects has to come from somewhere. In Western Australia the Government doesn’t have to pay compensation before it enters onto private property and starts work on a project. This effectively means that the main takings statute, the Land Administration Act 1997, is ready made to complement the proposed fast tracking of the planning system. The compensation to the dispossessed landowners may take years to settle and be paid. Each case can become another story in a long history of stories about how the state behaves when private property is needed for a public work.

The film ‘The Castle’ has become a cultural touchstone in Australia for the property rights of the ordinary person in the street. It is a story of how tenacious ordinary folk prevailed in the face of stubborn bureaucrats wielding great power and of course, it is retold as a story based on fact, that had a happy ending.

We all know that in real life not all stories have a happy ending. Ordinary folk and businesses of all sizes find it hard to navigate the complex regulatory framework of compensation for the taking of their land for public works, such as roads, railways and other infrastructure. There are a number of reasons why this is commonly the case, including the power imbalance between the State and the land or business owner, particularly in regard to financial resources; lack of time; the mental stress of fighting the State for a long time; and the need to get on with life without the worry involved in a major argument with a monolithic adversary.

To be fair, I have no doubt after dealing with State bureaucrats in these matters for more than 40 years, that many of them have sound motivations in the way they do their job, which is principally to look after the interests of the State. That, in a sense, is for the benefit of everyone. The ‘public interest’ it is sometimes called. The problem is that perhaps too often in this process the rights of the landowner are not always respected and many people perceive that they have not been fairly dealt with by the system.

The ordinary landowner is often affronted by the exercise of State power to take their land, even where it is said to be for the ‘greater good’. ‘Why me?’ is the instinctive reaction. ‘I did not invite this action. This is very inconvenient and I want to be compensated properly’. This is despite the State following well used procedures designed to inculcate fairness into the system. Why the system may not always live up to expectations that it will be fair might be better left to those who understand the organisational psychology of state apparatus, which is somewhat beyond my expertise as a lawyer working in the area of governmental takings for public works.

Usually, the Government response to complaints about the takings process is that compensation is payable. It is just a question of assessing the compensation and we do our best to make it fair. ‘There’s the rub’ and a great source of trouble. The State’s idea of what is fair compensation and the expectation of the landowner can be vastly different. Assessing compensation has a number of moving parts and is complex. This is particularly so when the property is used for a business or is specially adapted for a particular use or has some unrealised potential that in time would have matured to the benefit of the owner, had it not been for the taking.

Often the ‘public interest’ and what the State can allegedly afford is used by it to justify trying to cut compensation to the quick. This, of course, is a one sided view. The reverse is that if the State can’t afford it, how can the ordinary home or business owner who is seeking compensation?

Negotiation with the State is an option and can bring about a sound result. Unfortunately, negotiation does not always end well for the landowner. The gap between what the State is prepared to offer and what the owner is prepared to accept can be too great and if it is significant in monetary terms, litigation may be a realistic option. When the response to a State offer is, in the words of the hero in ‘The Castle’, Darryl Kerrigan, ‘Tell him he’s dreamin’, it may be a case of ‘game on’. Darryl eventually went to Court to seek a just outcome and that is a course of action open to everyone in our society. In Western Australia, there are even two options: the State Administrative Tribunal or the Supreme Court.

A well advised landowner will know that litigation is what you do when all else fails. It takes time, can be expensive, stressful and exhausting. Sometimes part of the cost is recoverable but not always. Early payment of part of the compensation may be possible, which can help fund the case for the landowner. Make no mistake however, litigation is not for the faint-hearted.

Why then do people litigate to get fair compensation? It comes down to commercial reality and to some extent, justice. Pain is needed if there is to be a gain on both of these counts.

It is not always necessary to go all the way to a court hearing after proceedings have been started. You can negotiate a resolution anywhere along the way and the system encourages that through compulsory mediation, which in 80 to 90 per cent of cases in Western Australia, is successful or partially successful. ‘Success’ usually means some compromise but often the process is worthwhile.

Why are compensation cases so difficult? There is no simple answer, but it often comes down to differing views on how the land should be valued. Should it be on the basis of its current zoning or its potential zoning? The parties may differ on what is the highest and best use. Various experts, including town planners, engineers and environmental consultants may be needed to support the case and above all, the parties must have valuers acting as expert witnesses.

Here are some tips. Get good legal advice early. Lawyers should advise on your legal rights and where other experts are needed, who you should engage and how they should be instructed. Do not settle on the basis of what a valuer advises, if they have been engaged by the taking authority. Also, it is generally better to pay a consultant on the basis of a fixed fee or hourly rates rather than a percentage of the amount that is recovered for you. Tempting as that may initially be as a deal, it is better to keep your interests and those of the adviser separate.

In the end, getting to a just outcome can come from negotiation and it is not always necessary to go to court. It is important, however, to be well advised from the beginning of any engagement with the state, when it is seeking to take your land for a public work.

Aerial view of construction site

Introduction

Major planning reforms were announced by the State Government in May 2020 with the stated intention of streamlining development and simplify the planning system. The proposed amendments are intended to result in immediate and substantial changes to the regulation of some aspects of land development in order to get significant ‘shovel ready’ projects underway and assist in the State’s economic recovery.

In this article we give an overview of the proposed new Part 17 of the Planning and Development Act 2005 (WA) (PD Act) and make some comment on these proposals, insofar as they relate to ‘significant developments’. Although the Planning and Development Amendment Bill 2020 (Bill) is divided into 17 parts, only one of them is particularly relevant to the streamlining of the planning system, that is Part 2 ‘Special provisions for COVID-19 pandemic’. That part will insert the new COVID measures as Parts 17 and 18 of the PD Act and have effect on the day after the Bill obtaining royal assent.

We note that while the proposals are aimed at the development process, other aspects of planning, such as subdivision and structure planning, are not addressed. The focus on development may assist to expedite the approval process for in-fill development involving construction, for example mixed use buildings. Major proposals involving subdivision and associated processes such as structure planning do not fit within the framework of the Bill. The Bill could be enhanced by expanding its range to include such proposals.

Faster development application process for ‘significant developments’

The new provisions are intended to be interim in nature and apply in the 18 months that follow assent. According to the Department of Planning, Lands and Heritage fact sheet on significant developments, a Special Matters Development Assessment Panel, which is provided for in Part 3 of the Bill, will be established and become the decision-maker for complex development proposals.

The changes establish the Western Australian Planning Commission (WAPC) as the interim decision-making authority for all ‘significant development’ in regard to which applications are made within the 18-month period (referred to as the ‘recovery period’) which starts on the day after assent. To be considered a significant development the proposal must have an estimated cost of at least $30 million and:

  • incorporate 100 or more residential dwellings, of a kind to which the R-codes apply; or
  • include a minimum of 20,000sqm lettable area of commercial floor space.

Developments must be substantially commenced within a period specified in the approval or if no time is specified, then within 48 months of the date of approval. Where development is not substantially commenced, the approval will lapse. The term ‘substantially commenced’ adopts the definition of that term in Schedule 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA). Unfortunately, that definition is tautological and an examination of what constitutes substantial commencement would need to be the subject of a separate article.

The primary matters the WAPC must consider when determining a development application are as follows:

  • the purpose and intent of any planning scheme that has effect in the locality to which the development application relates; and
  • the need to ensure the orderly and proper planning, and the preservation of amenity, of that locality;
  • the need to facilitate development in response to the economic effects of the COVID-19 pandemic; and
  • any relevant State planning policies and any other relevant policies of the WAPC.

In becoming the decision-making authority for significant developments, the WAPC’s power has been expanded significantly. For example, the proposed amendments to section 275 state that the WAPC is not bound or restricted by any ‘legal instrument’ that would otherwise apply in relation to the making, consideration or determination of the development application. Also, under the Bill the WAPC is not limited to considering planning matters when determining development applications. Examples of the legal instruments that will not bind the WAPC in its decision making include local planning schemes and by-laws. Therefore, the WAPC is not bound by zoning provisions, although in the case of residential development, it must have due regard to the Residential Design Codes (R-Codes).

However, the WAPC is prohibited from extending the period within which the development must be substantially commenced. The intention of this provision, according to the explanatory memorandum, is that a development approval granted in the recovery period is a ‘use-it-or-lose-it’ opportunity.

While the WAPC must determine the development application as soon as is reasonably practicable, there is no requirement to determine the application before the end of the recovery period.

Undetermined development applications made before the commencement of the recovery period may be approved under the Part 17 provisions, if the applicant gives notice to the Minister for Planning Lands and Heritage (Minister). If the Minister is satisfied that the application involves issues of State or regional importance and makes a recommendation to the Premier to that effect, the Premier may then refer the matter to the WAPC for determination.

An applicant’s right to a review in the State Administrative Tribunal (SAT) remains unchanged under the amendments. However, the significance of the WAPC’s interim powers appear to be reflected by the new requirement of the SAT to include at least one judicial member when reviewing the WAPC’s determination of a development application.

Avoiding conflict of approvals

A major amendment is a new conflict resolution process which applies where applicants require multiple approvals from various Government departments, agencies and decision-makers, and may have contradictory or inconsistent conditions imposed by various decision-makers. An example given in the explanatory memorandum accompanying the Bill would be the requirement to obtain a liquor licence.

In such cases, a decision-maker or applicant must not proceed unless a direction has been given by the Minister on how to do so. Once a direction has been given, a decision-maker or applicant must comply even if it would normally be unlawful or invalid.

Environmental considerations

Environmental legislation, in particular the Environmental Protection Act 1986 (WA) and Contaminated Sites Act 2003 (WA) applies to the determination of a development application under Part 17. However, conflicts may be resolved as mentioned earlier in this article.

Good design to be at the centre of planning and development in the future

The Second Reading speech indicates that the focus on good design is intended to address community concerns around development and upzoning of areas in a way which may not have always been complementary to the existing streetscape or amenity of the area. The focus on good design also purports to overcome issues in local governments, which have not implemented clear design guidelines, in order to achieve minimum design standards across all local government areas.

Conclusion

The provisions of Part 17 of the Bill provide for some unusual arrangements for accelerating the processing of development applications. However, the Bill does not address complex proposals that may involve a broader range of planning instruments, including subdivision and structure planning. It would be desirable to broaden the scope of the Bill so that the planning system can respond flexibly to the need for the early approval of ‘shovel ready’ developments that would benefit the State economically.

Construction truck on a pile of rubble

The ‘Review of the Waste Levy – Consultation Period’ and ‘Closing the Loop: Waste Reforms for a Circular Economy Consultation Paper’ were released together in February 2020. The Department of Water and Environmental Regulation is seeking submissions from key stakeholders on a variety of questions and issues relating to the waste industry. The submission period for both consultation papers has been extended to 15 July 2020. 

We have previously discussed the content of the Waste Levy paper and Closing the Loop paper.

Broadly speaking, the papers are focused on regulatory reform to address the indefinite stockpiling of waste or its redirection to regional landfills in order to avoid the waste levy.

The papers are both aimed at recovering more waste materials so that they can be injected back into the economy. However, while these reforms address instances of waste levy avoidance and may increase material available for recovery, there is little discussion or consideration of how the market can be incentivised to increase the uptake of recovered materials.

Looking forward

A target of the State’s Waste Strategy 2030 is to increase material recovery by 75%. How can material recovery be increased in Western Australia? Successful waste recovery results from a combination of policy and legislative measures, which include financial incentives. Some steps in the right direction in Western Australia include the waste levy, Main Roads sustainability policy[1] and various policies of regional councils.

 

The Victorian road authority, VicRoads, has prepared sustainable procurement guidelines to promote the uptake of recycled materials. Specifications for pavement materials and bituminous mix designs provide for the use of recycled materials in the construction and maintenance of the road network.[2] VicRoads has also prepared a business case to demonstrate the competitiveness of local recycled products in pavement construction and provides recommendations for local councils to procure local recycled products for pavement construction.[3]

 

In Wales, the Government implemented the Waste Infrastructure Procurement Programme in 2008 which guided local authorities through project development and procurement processes to achieve economies of scale for the treatment of waste. The programme ensured consistency across waste management by local authorities and provided for authorities to join together in waste management consortiums to attract more competitive tenders. This programme has reduced costs and ensured waste infrastructure met high standards for costs, efficiency and environmental impacts.[4]

 

The above-mentioned examples provide successful case studies where government policy has incentivised resource recovery.  For example, in 2016-17, Welsh local authorities only reached 25% of their annual landfill allowance.[5] In Victoria, approximately 80% of construction and demolition waste was recovered in 2017-2018, with material such as concrete being crushed into aggregate to be used in road subbase, drainage and landscaping.[6]

 

It is not a secret that successful waste recovery requires a combination of removing barriers, incentivising material recovery, influencing culture and increasing market demand for recycled materials. The reforms which are the subject of the consultation papers focus on capturing materials lost to landfill and discouraging indefinite stockpiling of materials. We look forward to seeing consultations on reforms relating to other elements in the waste recovery process, such as increasing market demand for recycled materials, in order to achieve Waste Strategy 2030 targets.


[1]https://www.mainroads.wa.gov.au/AboutMainRoads/AboutUs/Sustainability/Pages/Sustainability.aspx

[2] https://www.vicroads.vic.gov.au/planning-and-projects/environment/resources-and-recycling

[3] https://www.sustainability.vic.gov.au/Government/Waste-and-resource-recovery/Recycled-materials-in-pavement

[4] https://www.infrastructurevictoria.com.au/wp-content/uploads/2019/10/International-and-Australian-comparisons-Alphabeta-September-2019-FINAL-REPORT.pdf; https://ec.europa.eu/environment/gpp/pdf/news_alert/Issue54_Case_Study111_Wales_Waste_Infrastructure.pdf

[5] https://www.infrastructurevictoria.com.au/wp-content/uploads/2019/10/International-and-Australian-comparisons-Alphabeta-September-2019-FINAL-REPORT.pdf

[6] https://www.infrastructurevictoria.com.au/wp-content/uploads/2019/10/Victorian-Waste-Flows-Blue-Environment-October-2019-FINAL-REPORT.pdf

notifications-on-title-views

As Perth’s population grows, there is an increasing need for higher density residential developments and urban infill, especially in inner-city urban areas. Prospective property buyers may not be aware that future developments in the surrounding area may prevent, restrict or reduce the views they currently enjoy. To avoid unnecessary conflicts in the future, it is possible for buyers to be notified, in particular circumstances, of potential future impacts on their views, by way of a notification on title.

This blog article provides additional commentary on notifications on title. We have previously commented on notifications on title related to odours and transport noise in a blog article and in a case summary on Presiding Member of the Metropolitan Central Joint Development Assessment Panel v 43 McGregor Road Pty Ltd [2018] WASC 98.

Imposition of a notification on title

Under section 70A of the Transfer of Land Act 1893 (WA) (TLA), a local government or a public authority has the power to impose a notification on title as a condition of development approval. Section 70A of the TLA provides that a local government can cause a notification on title to be lodged, where it considers it desirable that prospective proprietors of the land should be made aware of a factor affecting the use or enjoyment of the land or part of the land.

A notification on title can be imposed to make prospective residents aware of potential impacts on amenity that may not otherwise be obvious from a physical inspection of the land itself.[1] The phrase ‘a factor affecting the use or enjoyment’ can cover both present and future use or enjoyment of the land.[2] Impacts on views, like any other amenity impact, can fall within the scope of section 70A of the TLA.

Why is a notification on title useful?

A notification on title in relation to views may be useful for the following reasons:

  • Prospective buyers cannot understand the implications of planning frameworks. In particular, the planning framework for inner-city urban areas can be complicated and dynamic. Even a diligent property buyer may not be able to understand the extent and implications of continuously evolving planning frameworks. It may not be obvious to prospective buyers that future developments in the locality may impact their views.
  • Avoid unnecessary conflicts. The promotion of urban infill may increase the likelihood that multi-storey developments will continue being approved and constructed. If buyers are not adequately notified of the impacts these developments might have on views, disputes with neighbouring or nearby properties may be the result.

When is a notification on title related to views reasonable and necessary?

The State Administrative Tribunal’s recent decision in Edge Holdings No. 6 Pty Ltd and The Acting Presiding Member of the Metro Central Joint Development Assessment Panel [2020] WASAT 35 has provided guidance on when a notification on title is reasonably required to warn prospective purchasers of an impact on their views.

The Tribunal determined that on the particular facts and circumstances of that case that potential restriction or prevention of views from the development in the future was clear enough to prospective purchasers and that no notification on title was required.

The Tribunal gave the following guidance as to when a notification on title in relation to views may be appropriate:

  • when it is not obvious to prospective purchasers upon an inspection of the development that there is a property adjacent to it which, if developed, could potentially prevent or restrict views;
  • if the circumstances of the case are more unique than a situation where the view from a development toward a body of water is separated by a geographical or topographical feature; and
  • where the development is an ‘island’ site in that it is surrounded by roads and a large number of potential development sites, as opposed to just a singular row of potential development sites

The Tribunal took a similar view in relation to a notification title in relation to traffic. It stated that it would be obvious to prospective purchasers of apartments in the 29 level building in question, viewing the surrounding building context and reasonably anticipating redevelopment on nearby sites, that there is a potential for traffic and congestion to increase in the area. It was not a hidden characteristic which cannot be discovered from a physical inspection of the site.

Click here to read the full decision by the Tribunal.

[1] Presiding Member of the Metro Central JDAP v 43 McGregor Road Pty Ltd [2018] WASC 98 at [66].

[2] Presiding Member of the Metro Central JDAP v 43 McGregor Road Pty Ltd [2018] WASC 98 at [67].

greenhouse-gas-emisisons-guidelines

On 16 April 2020 the Environmental Protection Authority (EPA) of Western Australia released the Environmental Factor Guideline for Greenhouse Gas Emissions (Guideline). The Guideline is an updated version of the draft released in December 2019.

The EPA has identified environmental factors that may be impacted by an aspect of a proposal or scheme. The environmental factors assist with organising information for the purpose of environmental impact assessments. The Guideline is aimed at achieving the objective for the Greenhouse Gas Emissions factor, which is to reduce net greenhouse gas (GHG) emissions in order to minimise the risk of environmental harm associated with climate change.

The Guideline is consistent with the State Government Policy on GHG and Australia’s commitment to reduce GHG emissions by 26 to 28 per cent below 2005 levels by 2030 and the UNFCCC Paris Agreement, which states that net zero emissions will be required by 2050 in order to limit global warming below two degrees Celsius above pre-industrial levels.

The intent of the Guideline is to inform the development and assessment of a proposal where GHG emissions are identified as key environmental factor.

The types of proposals that the Guidelines apply to include, but are not limited to, the extraction, processing and refining of oil and gas, mining and processing of metallic and non-metallic minerals, waste to energy plants, infrastructure development and development that clears vegetation. The Guidelines will apply to both new proposals and expansions to existing projects.

GHG emissions from a proposal will be assessed where the proposal will exceed 100,000 tonnes of scope 1 emissions each year. Scope 1 GHG emission are the emissions released to the atmosphere as a direct result of an activity, for example those which are released by burning coal to produce electricity. However, the Guideline notes the EPA will also maintain a flexible approach to the assessment of proposals on a case-by-case basis.

How It Works

In carrying out its functions under the Environmental Protection Act 1986 (WA) and the Guidelines, the EPA may require a proponent to provide information for the environmental impact assessment (EIA) of a proposal in the following categories.

  1. Estimates of scope 1, 2 and 3 emissions (both annual and total) including the source, intensity and how the emissions are likely to change over the life of the proposal.
  2. Greenhouse Gas Management Plans that demonstrate how a proposal will contribute towards the aspiration of net zero emissions by 2050. Such plans should, as a minimum, show an intention to reduce scope 1 emissions, outline regular and long term targets that reflect the reduction in scope 1 emissions and demonstrate that all reasonable and practicable measures have been taken to avoid, reduce and offset scope 1 emissions over the lifetime of the proposal.
  3. Additional information which demonstrates that a proponent has taken reasonable and practicable measures to avoid, reduce and offset emissions. Such information may include how emissions have been avoided through adopting best practice design, what continuous improvements will be made in order to reduce emissions through the life of a project or how emissions will be offset.

Looking Forward

The Guideline provides for proponents to adopt more effective mitigation and adapted alternatives in the Greenhouse Gas Management Plans for proposals as they become available. It is clear that proponents should have an ongoing responsibility to ensure a project is operating in the most environmentally sensitive manner through continuous improvements which adopt best practice design and meets emission reduction targets set in the Greenhouse Gas Management Plan.

sign saying world is temporarily closed

Introduction-Exemptions to Planning Requirements

We have previously noted some potential effects of COVID-19 on the State’s town planning laws.[1]

Particular note was made of the need to assist the holders of planning approvals who may struggle in the current lockdown and dampened economic activity to comply with statutory time limits. There is also the question of what happens in the recovery period, post lockdown.

Underlying and connected to the regulatory issues are very real economic and financial factors, affected as they are by the big ‘C’ word-certainty. Regulatory certainty is essential, particularly for private sector developers, investors and financiers. If COVID-19 has hit their confidence, regulatory measures responding to the crisis should seek to create a regulatory risk environment which generates sufficient confidence for a modicum of investment in projects that will create work, fire up the economy and meet pent up demand in the medium to long term.

In response to the pandemic, the Minister for Planning Lands and Heritage (Minister) supported by the Western Australian Planning Commission (WAPC) and the Department of Planning Lands and Heritage (DPLH), has implemented temporary exemptions (Exemptions) from some of the requirements of local planning schemes (LPSs). The Exemptions came into force on 8 April 2020 and will expire on 1 May 2023.

In this article, we will examine the Exemptions with a view to finding out their likely effectiveness in assisting to keep time limited approvals alive and creating an effective risk environment for the generation of economic activity during the pandemic emergency and in the recovery phase.

The Exemptions were made by the Minister,[2] under a notice published on 11 April 2020 (Notice), the effect of which is to amend the deemed provisions that apply to all LPSs under Schedule 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (Deemed Provisions).

The Exemptions are only temporary in their operation and there is some uncertainty as to how problems during and post lockdown will be overcome. The main problems are the limited scope of the Exemptions and the uncertain period of their operation.

What is and is not exempted?

The Exemptions affect some LPS provisions, primarily those relating to:

  • development approvals for changing the use of buildings;
  • conditions of development approval;
  • non-conforming uses;
  • requirements relating to consultation and advertisement of development approvals; and
  • various others.

What is not exempted are region scheme development and subdivision applications, although see below in regard to the ‘COVID 19 Business Continuity Powers’ delegation to the three senior officers of the WAPC and the DPLH.

Development approvals to change the existing use of buildings will not be required where the new use is not prohibited by the LPS and it is consistent with the site’s zoning. These Exemptions apply to retail and commercial uses, industrial warehousing, trade supplies, transport depots, commercial vehicle parking, temporary workers accommodation, home businesses and occupations. Temporary works associated with the change of use are also permitted.

The above Exemptions are limited. In each case, the Exemption expires ninety days after the State of Emergency Declaration ceases to have effect.[3] This, of course, makes the period for which the Exemption is in force uncertain.  The time between the commencement of any exempt use and the Emergency Declaration ceasing is unclear. This might be particularly problematic for some uses, for example those that cannot be carried out until social distancing rules are relaxed, such as restaurants and cafés. We question whether these requirements may make it difficult to use the Exemptions for a bankable proposal. Further and importantly, on the expiry of the Exemption, the previous provisions of the LPS apply and if they require approval, then the developer must obtain a new, permanent approval. This is a further reason for uncertainty, which may make a proposal less bankable.

The conditions of development approval to which the Exemptions apply include those relating to loading and unloading, delivery of goods or petroleum products.

The Exemptions do not apply to time limits in development approvals, with the exception of ‘substantial commencement’ requirements, to which a further two years have been added. Again, if this exemption expires when the Emergency Declaration is lifted, the period of the exemption effectively has a substantial element of uncertainty. The ability to ‘stop the clock’ on other time limits in development approvals, such as those in conditions, is arguably a necessity and is unfortunately not covered. This is another element of uncertainty.

The potential annulment of a non-conforming use is suspended for the period of the Exemption. Normally, a non-conforming use is no longer valid if it has been discontinued for six months or more. This is a ‘stop the clock’ provision which applies for the duration of the Exemption.

The Exemption applies to the advertising of local planning policies, which may under the Deemed Provisions specify uses that do not require approval[4] and there will be a relaxation of many other of the requirements to advertise and consider public submissions, including structure plans and activity centre plans.

The Exemption also applies to car parking requirements, including cash in lieu payments. Various requirements relating to food produced by hotels, taverns, restaurants and cafés have also been relaxed. The same applies to various signage approvals.

None of the Exemptions apply to buildings listed under the Heritage of Western Australia Act 2018 (WA).

Expiry of Exemptions

As noted earlier, if the Exemption relates to obtaining a development approval, the Exemption will expire at the end of a ninety day grace period after the expiry of the State of Emergency. However, the time related Exemptions, such as those relating to non-confirming uses, or substantial commencement, expire immediately on the State of Emergency coming into effect.  According to the WAPC guidance, the Exemptions only ‘stop the clock’. Therefore, at the end of the emergency period, some time limits may expire soon after Exemption is no longer effective. If that is the case, developers may have insufficient time to comply with the time-line.

Local Planning Policies-Leaving Change to Local Governments

As mentioned earlier, it is possible under the Deemed Provisions for local governments to make local planning policies which may provide under clause 61(2)(e) of the Deemed Provisions, further exemptions from the requirement to obtain development approval. A draft policy for this purpose was published with the Notice relating to the Exemptions. The draft policy has no legal effect until adopted by a local government. One concern is noted: under the draft policy an exemption would require the consent of the local government. Where the application gives rise to a wide array of listed issues, under the draft policy, the local government may determine that the application as a normal development application.  This has the hallmark of a new approval process. That requirement plus other provisions of the draft policy lead us to question its effectiveness as a deregulatory measure.

Separately, at least one local government is taking steps to facilitate a quicker development process. The City of Gosnells resolved on 14 April 2020 to delegate to officers the power to grant extensions of time for substantial commencement, while noting that ‘where a proponent seeks an extension of time for a development that may be controversial, the application could still be referred back to Council for determination’.

Often it is only the controversial developments that are delayed. A developer could therefore be excused for harbouring a degree of uncertainty about the likely fate of a development application to the local government that is anything other than routine. Creative big projects of economic consequence would run the risk of being considered controversial, particularly in the face of well organised community opposition.

Region Planning Schemes

The Metropolitan Region Scheme (MRS) and any other regional schemes are not included in the purview of the Exemptions. The delegations from the WAPC applicable under those schemes still apply, which means that local governments will, under pre-existing instruments of delegation, remain responsible for MRS approvals. Region scheme applications will be decided in the usual way, generally by local governments unless dealt with under the delegated powers referred to below.

‘COVID 19 Business Continuity Powers’ delegation by the WAPC

On 19 March 2020 the WAPC resolved under section 16 of the Planning and Development Act 2005 (WA) (P&D Act) to delegate a wide range of powers to the Chairman of the WAPC, the Director-General and the Assistant Director-General of the DPLH. The scope of these powers is very wide and potentially includes the ability to grant any subdivision, structure plan, activity centre plan and local development plan approval[5]. Nevertheless, to change the time limits applicable to subdivision applications in the P&D Act would not be possible. It is conceivable that under the delegation, the subdivision and other processes under the P&D Act could be expedited. Therefore, time limits could be theoretically adjusted under an expedited new application for approval which is determined under the Delegation.

The Delegation expires at the end of the ‘Stand Down phase of the Western Australian Government Pandemic Plan’. As far as we can ascertain, there is no policy guidance on the exercise of the delegated powers and it is not clear that they were intended to be used for the purposes we have mentioned.

Conclusion

The Exemptions and the draft local government policy are of limited effectiveness from the relief of the regulatory constraints in these straightened times, because of their uncertain duration and that they give no permanent exemptions from any requirement of an LPS. They provide no exemption under the MRS or any other regional scheme. However, this could be ameliorated by the wide delegation to WAPC and DPLH senior officers referred to above. The uncertainties mentioned bring into question the effectiveness of the measures, in particular their bankability.

Local governments may contribute by the application of the Draft Policy, but it is to be hoped in an amended form that does not in effect create a new approvals regime, loaded with conditions that will be conducive to delay rather than the generation of an encouraging regulatory regime.

Delegating powers to officers may assist if they are encouraged and embrace the need of the hour rather than revert to what would once be considered a ‘normal’ mindset.

Some of the most obvious problems we have highlighted could be fixed relatively easily by making the Exemptions permanent or valid for a fixed period. A grace period is also needed at the end of the emergency, for Exemptions related to the expiry of time, similar to that applicable to developments, so that application could be made, for example, to extend the substantial commencement period.

While managing change in such a challenging environment is undoubtedly difficult, our regulatory culture will need to change, even if temporarily. Failure to do so will not reflect well on the those responsible for the system.


[1] https://www.glenmcleodlegal.com/covid-19-and-its-impact-on-town-planning-law/

[2] Under clause 78H of Schedule 2 of the Planning and Development (Local Planning Schemes) Regulations 2015

[3] Made by the Minister for Emergency Services on 16 March 2020 under the Emergency Management Act 2005 (WA).

[4] The exemption for the need to advertise local planning policies is only in relation to local planning policies relating to exemptions from the requirement to obtain approval to a change of use.

[5] Note that the powers under the delegation are subject to conditions which specify that ‘the powers and functions can only be exercised in circumstances where, due to factors relating to COVID-19, the existing framework through which matters are determined or processed, is hampered.’

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.