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).


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.

Thank you all for your continued support in 2020. We wish you a wonderful festive season.


Glen McLeod Legal welcomes its two newest team members, Emiko Watanabe and Janine Upson.

Emiko has a keen interest in planning, environmental and public law. She undertakes legal research in issues relating to development approvals, regulatory compliance and environmental approvals. Emiko assists with drafting advice and submissions in relation to development approvals or refusals, JDAP deputations, land use conflict and planning scheme amendments. She also assists in matters in the State Administrative Tribunal, including mediations.

Prior to studying law, Emiko graduated with a Bachelor of Arts in Sustainable Development and a Bachelor of Science in Energy Studies and has experience in sustainable urban development including green buildings, sustainable materials and energy efficiency.

Outside of work, Emiko enjoys photography, visiting contemporary art galleries and playing indoor beach volleyball.

Contact Emiko at emiko@glenmcleodlegal.com

Janine has over 13 years of legal administration experience having worked at top tier law firms as an executive assistant as well as small boutique firms as an office manager. Janine deals with all aspects of administration for Glen McLeod Legal, working closely with the lawyers for all their administrative needs.

Outside of work, Janine enjoys partaking in community musical theatre and spending time with her family.

Contact Janine at janine@glenmcleodlegal.com

This case was a matter on appeal from the Magistrates Court of Western Australia, deciding the issue of whether the clearing of vegetation was a development that required approval from the City of Kalamunda for the purposes of the Planning and Development Act 2005 (PD Act).


In late 2015, ACN 605 729 995 Pty Ltd (Company) purchased a lot in Wattle Grove (Property) adjacent to Hartfield Park, a Crown reserve. Mr and Mrs Savage are directors of the Company. Under s 33(1) of the Bush Fires Act 1954 (WA) (Bush Fires Act), a local government may give notice to an owner or occupier to create firebreaks to prevent a bush fire. For the 2015/16 period, the City of Kalamunda (City) issued a Firebreak and Fuel Load Notice (Notice), which required the owners to construct a three metre fire break around the Property and remove all living or dead trees from the area. The Notice required the Company to create firebreaks on or before 1 November 2015, or within 14 days of becoming an owner or occupier of land (if this was after 1 November 2015). The fire breaks were required to be maintained up to and including 31 March 2016.

In December 2015, after the signing of the contract of sale for the Property but before settlement, a severe bush fire burnt over two days in Hartfield Park and also burnt the rear of the Property including parts of the fence line. Firefighters knocked down trees on the Property in an effort to control the blaze.

Settlement occurred on 20 January 2016. Following the bush fire, and prior to 28 January 2016, Mr Savage took to creating firebreaks within the period set out in the Notice. Mr Savage placed the already fallen trees in piles and instructed workers to cause about 20 non-native trees to be cleared. City officers inspected the Property on 28 January 2016 and 12 February 2016.

The City charged the Company and Mr and Mrs Savage on two accounts under s 218 of the PD Act for carrying out clearing on the Property without obtaining prior development approval from the City as required under the City’s Local Planning Scheme No. 3. The first charge was for the clearing that was carried out after the bush fire. The second charge was for the clearing of specifically identified trees following a separate directions notice issued by the City on 14 February 2016 after the City’s officers attended the Property. The second charge was not a relevant matter on appeal.

The Magistrate dismissed the charges, concluding that the removal of the trees was not a ‘development’ for the purposes of the PD Act. Mr and Mrs Savage contended that there was no legal requirement to seek development approval, as clearing the trees was required under the Bush Fires Act. Therefore, s 31(1)(b) of the Criminal Code applied as a defence. Under that section, a person is not criminally liable for an act which is done ‘in obedience to the order of a competent authority to which the person is bound to obey’. The City appealed this decision to the Supreme Court of Western Australia.

Grounds of appeal

The four grounds of appeal were that the Magistrate had erred:

  1. in law in concluding that the removal of the trees was not ‘development’;
  2. in law in concluding that the burden lay with the prosecution to prove the health and condition of the cleared trees prior to the date of their removal;
  3. in fact or law or both in finding that all of the second accused’s actions were aspects of maintenance; and
  4. in fact in finding that the evidence of the third accused was entirely consistent with his emails to the City.

On the first ground, the Court held that there was no issue that clearing of established trees leading to significant permanent alteration of the land is an activity that may be ‘development’. The Court considered the key issue of whether the clearing in this instance constituted ‘development’ and did not agree with the City’s contention that because ‘development’ includes clearing of established trees over land, the charge was proved. The Court applied the principle from Claude Neon Ltd v City of Perth [1983] WAR 147 and considered ‘whether an activity was of such a degree as to constitute development’.[1] The Court accepted that clearing in compliance with the Notice led to a permanent alteration of the land. However, when regard was had to the circumstances, the clearing did not constitute ‘development’. Justice Curthoys did not see why Mr and Mrs Savage would be required to seek approval from the City to comply with the Notice and bring the Property into the standard required by the City, when a failure to comply may result in prosecution.

In addition, Justice Curthoys clarified that the intention of a property owner to carry out development does not need to be established when considering the finding of an activity as ‘development’. The trial judge considered the existence of this intention as ‘developmental ideation’. For example, the trial judge considered that if there had been a plan to make a car park which required the removal of trees then the removal of trees for the car park would be development. Justice Curthoys did not accept that ‘developmental ideation’ needed to be established. His Honour held that there is nothing in the PD Act that suggests that a person’s intention is a relevant matter to determine what constitutes ‘development’. The relevant test is an objective test ‘having regard to what has happened to the land’.[2]

On the second ground, the Court outlined there were two requirements under the Notice – the first relating to creating firebreaks on the boundary and the second relating to creating other firebreaks and removal of specified flammable material on the Property. The City had no issue that the Notice provided lawful authority to create firebreaks on the boundary and therefore raised a defence by the Company and Mr and Mrs Savage under s 31(1)(b) of the Criminal Code. As a result, the burden of proof was on the City to prove that the trees cleared outside the boundary did not fall within the obligations under the Notice for creating other firebreaks and removing flammable material.

During the bush fire, the firefighters had pushed over a number of big trees for the purpose of firefighting. If there had been any permanent alteration as a result, this activity was undertaken by the firefighters and not Mr and Mrs Savage. In this instance, the Court found that Mr Savage undertaking the activity of placing the already pushed over trees into piles did not constitute ‘development’ as it was not Mr and Mrs Savage who had initially cleared the trees. His Honour found that it was not possible to conclude whether the degree of clearing by Mr and Mrs Savage constituted ‘development’ as the City did not prove which trees were cleared by Mr and Mrs Savage in compliance with the Notice and which trees were cleared by the firefighters.

On the third ground, the City relied on evidence related to the clearing carried out after 14 February 2016 (Mr and Mrs Savage’s second charge) and submitted that Mr Savage’s actions constituted development rather than maintenance of the Property. Justice Curthoys considered that Mr and Mrs Savage had been acquitted of the second charge and any evidence in relation to the second charge was irrelevant in this appeal. The question in issue was whether the clearing carried out after the bush fire (Mr and Mrs Savage’s first charge) was lawful, not the distinction between maintenance and development. His Honour held that the onus was on the City to establish that the clearing was undertaken without lawful authority.

On the fourth ground, the issue was regarding evidence. The City submitted that Mr Savage’s evidence at trial regarding the number of trees cleared was inconsistent with an email he wrote to the City and this cast doubt over Mr Savage’s credibility, accuracy and reasonableness. His Honour noted that for an appellate court to challenge the findings of fact in a trial, it must be shown that the trial judge failed to use or had acted on evidence which was inconsistent with the facts incontrovertibly established by the evidence or was glaringly improbable. His Honour held that nothing contained in Mr Savage’s email was inconsistent with the facts or glaringly improbable.

The Court held that the City failed on all four grounds and the appeal was dismissed.


Development in planning law is now a well-understood concept, which is legally constituted by either changing a use or carrying out physical alternations to land. In assessing whether or not a particular action or activity constitutes development, the Court will take into account matters of fact and degree.

In this case, while the Court accepted that the clearing of trees to create firebreaks led to the physical alternation of the land, when considering the circumstances, the Court concluded that clearing undertaken to comply with the Notice did not constitute ‘development’. Two matters were considered that led to this conclusion.

First, a relevant matter of fact considered by the Court was that the Notice issued by the City created a statutory obligation for the Company and Mr and Mrs Savage to bring the Property up to the standard required by the City for the purpose of creating firebreaks. Therefore, a notice by a local government authority that creates a statutory obligation to be complied with is a relevant fact to be considered in the assessment of whether an activity constitutes development that requires approval by that same local government authority.

Second, a relevant matter of degree considered by the Court was that the City had not proved whether the clearing of the trees in question had been undertaken by Mr and Mrs Savage or the firefighters. In order to assess the degree of clearing that constitutes development, a person must be found to have carried out the activity resulting in physical alteration of land. Where this cannot be found, it is unlikely that such an activity would be of a degree that would constitute development. In particular, where clearing had already occurred, the moving of trees that had been cleared by another person would not constitute development.

[1] [57].

[2] [64].

Team photo of the team Policy Makers with Chelsea White, Daniel Morey and Emiko Watanabe of Glen McLeod Legal with teammates from Torrens Legal, Solomon Brothers and the Law Society of WA

The Law Society of Western Australia’s Young Lawyers Committee hosted the annual mixed netball competition on Friday, 20 November 2020. The event saw 12 teams in friendly competition for the top spot and prize. Chelsea White, Daniel Morey and Emiko Watanabe of Glen McLeod Legal joined the team Policy Makers, which included lawyers from Torrens Legal, Solomon Brothers and the Law Society of Western Australia. The team was proud to make it into the semi-final round and come equal third. The netball competition was a great way to spend a Friday evening!