Team Glen McLeod Legal, left to right: Lea Hiltenkamp, Glen McLeod, Chelsea White, Gary the therapy dog and Emiko Watanabe in front of the bell tower at the Law Access Walk for Justice

This morning Glen McLeod, Lea Hiltenkamp, Chelsea White (with Gary the therapy dog) and Emiko Watanabe joined over 400 members of the legal profession walking in person and virtually around the state for the Law Access Walk for Justice on National Pro Bono Day as part of Law Week 2021. The event celebrates the pro bono contributions of the legal profession and raises funds for Law Access, the state’s pro bono referral service.

Law Access is a community legal service of last resort that co-ordinates individuals and community organisations seeking legal assistance to pro bono lawyers. The organisation assists some of the most vulnerable people in WA, who would otherwise be unable to obtain legal assistance. If you would like to make a donation to Law Access, you can click here to our team fundraising page.

 

Team Glen McLeod Legal, left to right: Lea Hiltenkamp, Glen McLeod, Chelsea White, Gary the therapy dog and Emiko Watanabe in front of the bell tower at the Law Access Walk for Justice

 

Law Week 2021 banner

The Law Society of WA’s Law Week is the Western Australian legal profession’s annual celebration of law and justice in the community and will run from 17 to 21 May 2021.

Glen McLeod Legal is pleased to be the sponsor of the Lawyer of the Year Award (more than 5 years’ experience).

The winner of the award will be announced at the Law Week Cocktail event on 21 May 2021. We hope to see you there.

To view the Law Week 2021 programme, click here.

Law Week 2021 banner

As development in the Perth and Peel regions continues to increase in order to support a growing population, there is the need for planning instruments to offer design guidance for areas intended to accommodate a large population and multiple land uses. These areas are defined as ‘precincts’ in State Planning Policy 7.2 – Precinct Design (SPP 7.2) gazetted earlier this year.

Precincts require a higher level planning and design focus due to their complexity and include activity centre, station precincts and urban corridors. SPP 7.2. became operational on 19 February 2021 and is intended to assist in the planning and design of these precincts. Detailed guidelines have been developed to provide support for the implementation of SPP 7.2 (Guidelines).

The gazettal of SPP 7.2 will necessitate future planning scheme amendments to allow new design standards and possibly new land zonings to be incorporated into the relevant scheme.

Integration of SPP 7.2 with existing planning framework

SPP 7.2 and the Guidelines apply to precincts throughout Western Australia and require regard to be had to State Planning Policy 7.0 – Design of the Built Environment (SPP 7.0), State Planning Policy 7.1 -Neighbourhood Design (SPP 7.1) and the Residential Design Codes (R-Codes).

Design guidance for precinct planning

Part 3 of the Guidelines contains six ‘precinct design elements’ which address the varying elements of good precinct design. The six elements are (a) urban ecology, (b) urban structure, (c) public realm, (d) movement, (e) land use and (f) built form.

When read in combination it is clear that the six precinct design elements have a number of common objectives.

First, there is a strong focus on sustainable urban development. This includes outcomes to maintain and strengthen green corridors and encourage climate-responsive building design to reduce energy demand across a precinct.

Secondly, there is a focus on promoting modes of transport other than cars. This is promoted through street and block layouts that support the provision of an active public transport network and which encourage walking and cycling. Interestingly, the Guidelines also require the design of a precinct to identify the existing and predicted proportions of transport methods (driving, public transport, walking and cycling) in order to plan for the future and to encourage the adoption of the preferred modes of transport for that precinct.

Thirdly, the Guidelines include numerous objectives which are intended to promote a sense of community and social cohesion. This includes designing public spaces which can be adapted for multiple uses and which can be altered over time as community needs change. There is also a requirement for the design of the public realm to consider and integrate cultural heritage, in particular Aboriginal history, knowledge and heritage, into the design of new precincts.

Implementation of SPP 7.2 and Guidelines

As noted above, the introduction of SPP 7.2 will require existing local planning schemes to be amendment to incorporate the new design standards and new land zonings. SPP 7.2 and the Guidelines will require development contribution plans to consider how the infrastructure necessary to meet the precinct objectives will be funded and implemented.

Local governments will also be required to review regularly precinct plans prepared under SPP 7.2 and the Guidelines to ensure that they are meeting their stated objectives and vision. The Guidelines suggest that this monitoring should occur against predetermined metrics, to ensure that the ability of a precinct to perform against the objectives and goals of the precinct can be measured.

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. Part 9A provisions apply to development in the Perth metropolitan region or Peel Region Scheme Area.

Stage 1 of the LPS Regulations and Deemed Provisions amendments

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.