State of Emergency planning changes
In the event that the Western Australian Government declares a State of Emergency, the Minister for Planning can apply exemptions against local planning schemes.
What does Clause 78H do? When can clause 78H be used and how long does a Notice last?
A new clause of the Deemed Provisions (Schedule 2 of the Planning and Development (Local Planning Schemes) Regulations, 2015) came into effect on 3 April 2020 in response to the current State of Emergency resulting from the COVID-19 pandemic (the Pandemic).
The new regulations provide the Minister for Planning with the ability to issue a notice (the Notice) to temporarily exempt planning requirements of local planning schemes, if such an exemption is considered necessary to respond to a State of Emergency, or to assist with the recovery. The exemptions must address issues within the planning framework that inhibit the response to, and recovery from, the emergency. This Notice can apply to the entire State or only a part either through the local government boundary or suburb locality.
The legislation has also been drafted to account for future natural disasters as well as the Pandemic. For example, the regulations would permit the Minister to issue planning exemptions over a part of the State that has been impacted seriously by a bushfire, cyclone or flood.
Why was this new clause necessary?
This clause can only be issued when a State of Emergency is declared under the Emergency Management Act 2005 and temporary exemptions from certain planning requirements are considered necessary to respond to, or assist with the recovery from, an emergency.
However, while a Notice can only be issued by the Minister during a State of Emergency, it can be in place for up to five years. The five-year maximum is intended to assist with the recovery phase, although at this stage, the Notice provides an end date of 1 May 2023.
As discussed in further detail below, any exemption provided under this clause is only a temporary exemption.
What happens when a Notice is no longer necessary?
The Pandemic has highlighted three major issues with Western Australia’s planning system:
- an immediate crisis response can be inhibited when existing conditions of development approvals either prohibit or constrain actions that are in the State or national interest (for example, the delivery of goods to supermarkets if loading and unloading is restricted to certain hours of the day)
- existing businesses can be prevented from responding to sudden changes in circumstances (for example, a restaurant which can now only serve takeaway food may be in breach of the development approval)
- local governments may be constrained in responding rapidly to a crisis, and not sufficiently supported by the State in terms of a central coordinated response (for example, having to advertise planning applications physically from a council building).
These issues affect the ability for businesses and local governments to adapt easily in crisis situations.
Measures to stimulate the economy and make it as easy as possible for businesses to continue to operate, and commence operating, are also important during the recovery phase. Greater flexibility, greater speed, and greater State Government coordination may be required for the planning and development system to respond to the Pandemic and future States of Emergency.
Clause 78H provides this flexibility, speed and coordination.
What scheme requirements can a Notice exempt?
Given the very fast nature of change and uncertainty surrounding the Pandemic, it is impossible to forecast when the State of Emergency will finish, and when any necessary recovery phase might also conclude.
As an in-built safeguard, the Minister must revoke the Notice if considered no longer necessary to respond to or recover from the emergency.
Similarly, because of the dynamic changing nature of the Pandemic and other potential future disasters, the Minister also retains power to amend a notice.
How is the Notice structured?
Clause 78H allows for a Notice to temporarily exempt the following planning requirements:
- a requirement to obtain development approval
- a requirement under a condition of approval
- a requirement relating to the permissibility of uses
- a requirement relating to works
- a provision that a non-conforming use is no longer permitted because of a discontinuance of that use
- a requirement in relation to consultation, advertisement of applications, time limits or forms.
A notice may exempt one or more of the above requirements, and in doing so temporarily suppresses those aspects of the planning framework identified in the notice.
Are local governments and proponents bound by the exemptions in the Notice?
The Notice includes exemptions and corresponding conditions for those exemptions. There are also interpretation and guidance notes.
What happens after the exemptions in the Notice expire?
No, the exemptions are discretionary. There is no obligation for a local government or proponent to use an exemption if they do not wish to do so. However, the discretion only applies to the ‘party’ specified in the exemption. That is, if the exemption specifies that it applies to the proponent, then only the proponent has discretion to decide whether or not to use the exemption. Likewise, if the exemption specifies that it applies to the local government, then only the local government has the discretion to decide whether or not to use the exemption.
If a local government or proponent wish to rely upon an exemption, all relevant conditions must be complied with.
The Notice refers to temporary works, what does this mean?
Exemption provided through a Notice issued under clause 78H are temporary. This Notice cannot provide a permanent exemption from a planning requirement under a scheme.
Once an exemption expires, the existing planning framework requirements, including existing conditions of approval, will apply. That means without a new or amended development approval:
- any exempt condition of approval will be reinstated
- any uses that were exempt from planning approval requirements under the Notice will need to seek approval through the appropriate processes if no similar exemption applies under the existing planning framework
- any requirements that were exempt from applying, such as cash in lieu or the provision of car bays are not permanently waived
- any temporary works associated with any exemption will need to be removed.
For this reason, many of the conditions set out in the Notice have a 90-day transitional period from the end of the State of Emergency to the end of the exemption. This period gives time for a proponent who wishes to continue the particular use or regularise any particular work to obtain new or amended development approval.
An application for approval can be submitted and determined at any point while the exemption is in place if it is intended that the activity continues beyond the Notice period.
Is any new use or work carried out under a Notice exemption afforded a non-conforming use right when the exemption ends?
Any reference to temporary works in the Notice refers to a temporary structure or building that is able to be removed at the end of the Notice period.
The intent is that at the end of the exemption period covered by the Notice, any structure or building will need to be removed without new or amended planning approval, otherwise it will constitute unlawful development. This means, for example, a traditional bricks-and-mortar building on a concrete pad could not be covered by the Notice, as it could not easily be removed at the end of the exemption period.
As no new non-conforming use rights are afforded for any use or work arising out of the exemption, the effect would be an illegal building that could not be removed without great cost to the landowner. The Notice is framed in such a way as to avoid this.
The Notice uses land use and zoning terminology from the model provisions - what if a local planning scheme terminology differs?
No. The effect of clause 78J(5) is to prevent any non-conforming use resulting from the Notice during the exemption period.
The effect of the exemptions under the Notice are temporary. For example, if a landowner changes the use of a business without new development approval, by relying on the exemption under this Notice, this ends when the exemption ends. The landowner will have no non-conforming use right to continue with that new use, nor will the landowner be entitled to any injurious affection claim for being directed to stop the new use.
As outlined above, for similar reasons only temporary works are permitted under the exemptions. Any structure or building erected under the Notice of Exemptions will have to be removed when the exemption ends, unless new or amended development approval is achieved.
Which development approvals does the exemption for substantial commencement timeframes apply to?
The intent of the Notice is to apply to all or as many local governments as possible. However, it is also acknowledged that across some 137 different local governments, not all schemes use the exact same terminology. To address that, the Notice is intended to apply flexibly and as broadly as possible and to this end, adopts terminology set out in the Model Provisions of the LPS Regulations.
For example, in many cases a reference to a “centre” zone in the Notice would be intended to cover “local centres”, “district centres”,” neighbourhood centres” and other similar terminology. It is useful to compare the objectives of the zone described in the Notice and set out in the Model Provisions with the objectives of the zone however it is described in a particular local planning scheme. A similar approach should be used when examining uses.
The exemption only applies to current development approvals under a Local Planning Scheme. Development approvals under other schemes (region or improvement) or that have expired are not subject to this exemption. This is because the exemption is issued under the Planning and Development (Local Planning Schemes) Regulations, 2015 and specifically refers to an ‘approved development application’. An expired approval is not considered to be ‘approved’ as the approval has expired. Any expired approvals will need to follow the usual processes for seeking an extension of time