Introduction-Exemptions to Planning Requirements
We have previously noted some potential effects of COVID-19 on the State’s town planning laws.
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, 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. 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 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. 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.
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.
 Under clause 78H of Schedule 2 of the Planning and Development (Local Planning Schemes) Regulations 2015
 Made by the Minister for Emergency Services on 16 March 2020 under the Emergency Management Act 2005 (WA).
 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.
 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.’