Photograph of Lea Hiltenkamp

We are pleased to announce that Lea Hiltenkamp is a finalist in the Lawyers Weekly 30 Under 30 Awards 2021 in the Native Title, Planning and Environment category.

As a finalist, Lea has been recognised amongst the finest young lawyers across Australia. The Lawyers Weekly 30 Under 30 recognises and rewards the young rising stars within the legal industry aged 30 and under who excel in their chosen field, displaying key leadership qualities such as dedication, professionalism and eagerness to grow both themselves and their firm.

Modern Houses

On 31 March 2021, Connor Fisher, Chelsea White and Lea Hiltenkamp of this firm attended the ‘Design Matters: Medium Density Symposium’ hosted by the Association of Consulting Architects Australia and Open House Perth. The symposium focussed on the proposed Medium Density Code (Code) which will form part of State Planning Policy 7.1 – Residential Design Codes (Volume 1).

Modern Houses

Medium Density Symposium

We have previously summarised the changes proposed by the Code here.

Hosted at the new Boola Bardip WA Museum it was an animated evening at which we heard from architects, developers and landscape architects about the proposed Medium Density Code. The panel sessions offered insight from panellists about the benefits of the code, such as creating more liveable and sustainable homes, whilst also noting areas in which the Code could go further.

It also offered reflections on how the more aspirational aspects of the Code could be balanced with the interests of developers and financiers who noted concerns about the viability of this type of development on the urban fringe.

As was noted throughout the symposium, the Code is open for public consultation until 16 April 2021. If you are interested in making a submission on the Code and require assistance please contact us at admin@glenmcleodlegal.com or (08) 6460 5179.

Doyles Guide 2021 banner

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.

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

The full Doyles Guide listings can be accessed at the links below:

Leading Planning & Environment Law Firms – Western Australia, 2021

Leading Planning & Environment Lawyers – Western Australia, 2021

People standing on volleyball court

The Law Society of Western Australia’s Young Lawyers Committee hosted the annual mixed beach volleyball tournament on Friday, 19 March 2021. It was a beautiful evening to hit the courts and enjoy a fun competition, with 12 teams vying for first place. Lea Hiltenkamp, Chelsea White and Emiko Watanabe of Glen McLeod Legal joined the team Justice Served, which included lawyers from the State Solicitor’s Office, Torrens Legal, Butcher Paull and Calder and the Law Society of Western Australia. We look forward to participating again next year!

The team Justice Served wearing an all black uniform on the beach volleyball court with a beautiful dusky sky behind.

On 18 March 2021, Glen presented at the Legalwise Property Law Roundup seminar, which was held in person and via webinar. The seminar program covered topics about native title compensation claims and the validity of land grants and agreements, commercial leasing issues during COVID-19 and dispute resolution between landlords and tenants, strata title by-laws and property tax.

Glen presented an overview of the various changes in planning and environmental law over the last 12 months, including:

  • cases in the courts and the State Administrative Tribunal;
  • changes in planning law to implement the Action Plan for Planning Reform and COVID-19 emergency provisions;
  • Environmental Protection Act 1986 (WA) amendments; and
  • the devolution of Commonwealth environmental approvals functions to states under the proposed amendments to the Environment Protection and Biodiversity Conservation Act 1999 (Cth).

If you have a question about the above topics, please feel free to contact us at admin@glenmcleodlegal.com.

Better late than never – on Thursday morning Chelsea White and Lea Hiltenkamp were welcomed to the profession at the Law Society of Western Australia’s breakfast event. Over 200 recently admitted lawyers were addressed by Law Society president Jocelyn Boujos, Young Lawyers Committee chair Chris Burch and keynote speaker Judge MacLean.

The presenters explained that young lawyers should remember that we are here to assist clients and members of the community from all walks of life, the importance of collegiality in the profession and the need to actively work on maintaining good mental health. Judge MacLean conveyed some very useful tips for young advocates, many of which were to the laughter of the crowd.

Image of a paper house on grass

In our previous blog articles, we have discussed the implementation of temporary exemptions from some of the requirements of local planning schemes and major planning reforms that amended the Planning and Development Act 2005 (WA) (PD Act).

The Planning Regulation Amendment Regulations 2020 were gazetted on 18 December 2020 to support the major reforms of the PD Act and introduce amendments to the Planning and Development (Local Planning Schemes) Regulations 2015 (LPS Regulations). Stage 1 of the LPS Regulations amendments became operational on 15 February 2021 and this blog article will focus on these amendments.

Stage 2 of the LPS Regulations amendments will become operational by 1 July 2021 and will introduce a new Part 9A of the Planning and Development (Local Planning Schemes) Regulations 2015 Schedule 2 (Deemed Provisions) in relation to car parking provisions in non-residential developments.

Stage 1 of the LPS Regulations and Deemed Provisions amendments

The changes to the LPS Regulations and Deemed Provisions are limited to the Perth metropolitan region or Peel Region Scheme Area. In summary, the key changes are:

  • amended definitions in the Deemed Provisions to introduce new definitions as well as align with the definitions set out in the State Planning Policy 7.3 – Residential Design Codes (R-Codes);
  • development approval exemptions for certain small residential and non-residential projects and for certain land uses in commercial, centre and mixed-use and light industrial zones;
  • changes in public consultation processes for structure plans and complex applications;
  • the introduction of ‘deemed-to-comply checks’ for single residential dwellings and related development proposals (e.g. patios and minor extensions to single dwellings);
  • additional processes for local governments undertaking assessment of development applications regarding additional information requests;
  • limiting extensions of time for complex development applications referred to other Government agencies and regulatory authorities;
  • the replacement of activity centre plans with precinct structure plans; and
  • requirements for the revocation or amendment of structure plans resulting from a scheme amendment.

New definitions in the Deemed Provisions

New terms have been added under clause 1 of the Deemed Provisions to refer to the meanings in the R-Codes for a range of terms including ancillary dwelling, building height, wall height, frontage, and grouped dwelling. Some terms have been specifically defined, including ‘complex application’, ‘maintenance and repair works’, ‘natural ground level’, ‘site works’ and ‘street setback area’. The importance of this is that these definitions will prevail over equivalent definitions in local planning schemes.

Of particular relevance are the model definitions for uses classes (D, A, P and X) as well as land use classifications (light industry, residential and commercial, centre or mixed use), which have also now been standardised and will prevail over analogous definitions in local planning schemes. This is to provide for greater consistency across local planning schemes. The model definitions can only be amended by exception and will require sufficient justification for the Western Australian Planning Commission to consider it.

Development approval exemptions for certain works

Clause 61 of the Deemed Provisions has been amended to clarify the types of works that may be exempt from development approval provided that the works satisfy all of the specified conditions. Residential works that do not require development approval, include:

  • the demolition, removal or installation of or alteration or additions to a single house, an outbuilding, an external fixture, a boundary wall or fence, a patio, a carport, a garage, a cubbyhouse, a flagpole, etc.;
  • the installation of a water tank or solar panels on the roof of a building;
  • maintenance and repair works; or
  • works that are urgently necessary for public safety, the maintenance of essential services or the protection of the environment.

Where an owner of a lot proposes to carry out works for the erection of, or alterations or additions to, a single dwelling, the owner can now apply to the local government for a deemed-to-comply check to seek written advice that the works are exempted from development approval. The local government must provide advice within 14 days after an application is made.

Conditions specifying deemed-to-comply requirements for development approval exemptions

The new clause 1B of the Deemed Provisions provides that a development is only taken to comply with the deemed-to-comply provisions of the R-Codes if the development complies with a provision within a local development plan, precinct structure plan or local planning policy. The same also applies if a development complies with a provision of a structure plan approved before 19 October 2015. This means that structure plans approved after this date cannot vary or replace the deemed-to-comply provisions in these circumstances.

Development approval exemptions for certain uses

The new clause 61(3) of the proposed Deemed Provisions also sets out a broader list of small projects for development in commercial, centre or mixed-use zones and the uses of land that are exempt from development approval including shops, restaurants and cafes, offices, consulting rooms and small bars. Various conditions are required to be satisfied for the exemption to apply to the use.

Information requests in the development approvals process

The Deemed Provisions now provide a process for local governments to make information requests after receiving an application for a development approval. The local government must advise in writing to an applicant within seven days that the application is accepted for assessment or that the applicant must amend the application or provide further information before it is accepted for assessment.

If no advice is given by the local government within seven days, then the application can be taken to be accepted for assessment on the eighth day.

After an application has been accepted, the local government may still make an information request. The request must give applicants at least 21 days to provide the information.

An applicant may agree to or refuse the information request within seven days. If no response is given within seven days, the request is taken to be refused. However, the local government cannot refuse to determine the application merely because the applicant has refused the information request. If the applicant refuses an information request, the local government must still determine an application within 60 or 90 days.

Complex applications for land uses not specified in a zoning table

A complex application must be advertised for 28 days or for a longer period agreed in writing between the applicant and the local government. Notice of the proposed development must be given to owners and occupiers of every property within 200m of the proposed development (or any other owners and occupiers in the vicinity who are likely to be affected).

Changes to structure plans

The Deemed Provisions now specify that structure plans comprise of a precinct structure plan (formerly activity centre plan) or a standard structure plan. These amendments have been made in support of the State Planning Policy 7.2: Precinct Design.

However, any activity centre plan made before 19 February 2021 will still continue to be in force. An activity centre plan in the process of preparation or amendment before 19 February 2021, will be taken to be a step in the preparation or amendment of a precinct structure plan under Part 4 of the Deemed Provisions.

Revocation or amendment of a structure plan resulting from a scheme amendment

The LPS Regulations now clarify that where there is an amendment to a local planning scheme that affects the area to which a structure plan relates, the amendment must now include a statement regarding whether:

  • the approval of the structure plan is to be revoked; or
  • the structure plan is to be amended in accordance with the statement; or
  • the approval of the structure plan is not affected.

In such circumstances, the WAPC must revoke its approval or amend the structure plan in accordance with the relevant statement.

Other circumstances in which a structure plan may be revoked

In addition, the WAPC may revoke its approval of a structure plan if:

  • a new structure plan is approved in relation to the area to which the structure plan to be revoked relates; or
  • the WAPC considers that the plan has been implemented or is otherwise no longer required.

Where the owner of the land to which the structure plan relates has made an application to prepare a structure plan, the WAPC may revoke its approval of a structure plan if the applicant and the local government agree to the revocation.

Duration of approval

Under the new clause 28(4) of the Deemed Provisions, a structure plan that was approved before 19 October 2015 is taken to have been approved on that day, i.e. the approval in effect for 10 years will expire on 19 October 2025.

Submissions period for a proposed structure plan

The submissions period for a proposed structure plan has been amended to 42 days for anyone to make a submission, which provides a much longer period compared with the previous period of 14 to 28 days. The submissions period may be extended at the discretion of the WAPC.

View of Perth skyline on a sunny day with the river and suburbs in the foreground

Diversity of housing development in Perth and a wider range of housing choices is much needed in Perth. Urban sprawl, suburbs designed for cars and cookie cutter houses that do not offer a diverse housing choice is not sustainable in the long term.

To address this, the State government has released the draft Medium Density Residential Housing Code (Draft Code) for public comment. The Draft Code forms a part of the State government’s planning law reforms to assist with economic recovery from COVID-19 and will provide development controls for single houses and grouped dwellings in areas coded R30 and above and multiple dwellings in areas coded R30 to R60. The intention of the Draft Code is to encourage good design and to provide an alternative to conventional infill housing developments.

Interaction with State Planning Policies

The Draft Code will not affect the applicability of the 10 design principles in the State Planning Policy 7.0 – Design of the Built Environment to medium density housing. The Draft Code will form part of the State Planning Policy 7.3 Residential Design Codes Volume 1 (R-Codes), supported by the Medium Density Explanatory Guidelines and the Medium Density Housing Diversity Guide.

Because the R-Codes is a State planning policy made under Part 3 of the Planning and Development Act 2005 (WA), decision makers must have due regard to the R-Codes. This means that if the Draft Code is adopted, developers proposing a development in an area coded R30 to R60, ought to take the requirements of the Draft Code into account when preparing and submitting development applications.

Overview of the Draft Medium Density Code

The most common form of infill medium density in Perth is detached villa style grouped dwellings. This has resulted in houses that have a limited outlook to garden areas, no opportunities for solar access, views to blank walls, lack of cross ventilation and no street interface, which isolates rather than connects people.

The Draft Code focusses on four elements to encourage good design: the Land, the Garden, the Building and Neighbourliness.

The Land

The Draft Code specifies minimum and average site area requirements and three new site categories. Lots that are created by subdivision or amalgamation must comply with the site area requirements.

The site area requirements in the Draft Code remain unchanged for single houses and grouped dwellings in R30 to R60 coded areas. There are additional site requirements for multiple dwellings, for which the average site area per dwelling must be 115m2 in R40, 100m2 in R50 and 85m2 in R60.

The site area requirements are intended to encourage a diversity of housing types and provide incentives for developments with street frontage and sites suited to medium density such as larger sites, corner lots or sites with laneway access.

The Garden

While the requirements of the current R-Codes include landscaping, outdoor living areas and communal open space, the Draft Code requires a primary garden area for single houses and grouped dwellings and a private open space (an outdoor space or a balcony area) for multiple dwellings. The design of these areas and spaces should allow for solar access and natural ventilation.

The design of multiple dwellings will also need to consider sufficient deep soil areas for trees, similar to that required under State Planning Policy 7.3 Residential Design Codes Volume 2 – Apartments (R-Codes Volume 2).

Grouped and multiple dwellings will also have a minimum communal open space requirement depending on the development size, in particular for developments with 11 to 50 dwellings (at least 6m2 per dwelling) and more than 50 dwellings (at least 300m2 in total).

While stormwater management principles have minimal changes, water sensitive urban design mechanisms are emphasised within the design principles, rather than only in the explanatory guidelines. The Draft Code also specifies a new design principle that flooding risk is to be reduced to limit the impact of major rainfall events, a change that recognises the risk of potential future climate change impacts in Perth.

The Building

The ‘primary living space’ is the main habitable room of the dwelling and the focus of indoor activity. The new design principle intends that each dwelling has one designated ‘primary living space’ with a minimum internal dimension of 4m.

Universal design principles for medium density apply only to grouped and multiple dwellings and are slightly different from requirements for apartments in the R-Codes Volume 2. In the Draft Code, housing can be designed with the option of universal design or adaptable housing (or a combination). While universal design incorporates design features for disabled people or those with limited mobility, adaptable housing is design that allows for the future adaptation of a dwelling to accommodate changing needs.

For medium density developments under nine dwellings, the universal design requirements are minimal to provide dwellings at either Silver, Gold or Platinum level as defined under the Livable Housing Design Guidelines. For medium density developments with 10 or more dwellings, the requirements are the same as the R-Codes Volume 2 for apartments (minimum 20% of all dwellings at Silver or Gold level or minimum 5% of dwellings at Platinum level).

Neighbourliness

While Neighbourliness is a new name, the proposed design principles within this element include existing principles related to the built form (e.g. building height, bulk, scale and setbacks), character (e.g. streetscape and street setbacks) and community (solar access for adjoining sites and visual privacy).

The Draft Code introduces design requirements for communal streets, i.e. common property or a private street that provides joint access to two or more dwellings in a residential development that may include vehicle and pedestrian access and landscaping. Communal streets must be designed as shared spaces for pedestrian, cyclist and vehicle users.

 

Consultation of the draft documents is open until 16 April 2021 and available on the Department of Planning, Lands and Heritage website. If you require assistance with making a submission on the Draft Code, please contact us at (08) 6460 5179 or email us at admin@glenmcleodlegal.com.

Cover of the final report of the Independent Review of the EPBC Act

The final report of the Independent Review of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) was publicly released on 28 January 2021.

The final report is a comprehensive review of the EPBC Act and makes 38 recommendations for reform. The implementation pathway for the recommendations includes to:

  • create a provision to make the National Environmental Standards as regulations;
  • improve the durability of the settings for accreditation of other decision-makers;
  • provide comprehensive powers for effective compliance and enforcement, and ensure that the use of these powers is not subject to ministerial direction;
  • establish the position of Environment Assurance Commissioner with responsibility for strong oversight and audit of Commonwealth decision-making and accredited arrangements; and
  • establish the recommended committee structure.

The report is available in full here: https://epbcactreview.environment.gov.au/resources/final-report

Photo from The West featuring Jocelyne Boujos, Nicholas van Hattem, Lea Hiltenkamp and Jack Carroll standing in a board room in front of a wall of photos of past and current presidents of the Law Society of Western Australia.

Lea Hiltenkamp of Glen McLeod Legal, Junior Member of the Law Society of Western Australia 2021 Council and member of the Young Lawyers Committee, was interviewed in The West on the impact of COVID-19 and workplace changes in the legal profession.

Read the full article in the The West here.