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.