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.