Recent developments

The Department of Environment Regulation (DER) has recently released for public feedback two draft guidance statements relevant to the land development industry, namely:

• draft Guidance Statement on Setting Conditions; and
• draft Guidance Statement on Land Use Planning.

Draft Guidance Statement on Setting Conditions

The aim of this guidance statement is to provide clearer direction and detail about how the DER sets conditions on works approvals and licences issued under Part V of the Environmental Protection Act 1986 (WA) (EP Act).

The general power to impose conditions on a works approval or licence is set out in s 62 of the EP Act and the draft guidance statement provides further clarification of the manner in which conditions are imposed. In particular, the draft guidance statement provides that any such conditions are to be, in summary:

• Valid – necessary or convenient for the purposes of the EP Act, reasonably related to the proposed activities, not inconsistent with approval policies or standards and not contain secondary approvals or require the approval of a person without necessary power.
• Enforceable – clearly setting out the outcomes to be achieved and the evidence required to establish a breach of condition.
• Risk-based – proportionate to the level of risk that the activity poses to public health and the environment.
• Necessary and convenient – required or convenient to prevent or address pollution or environmental harm and/or necessary to meet the requirements of any relevant Environmental Protection Policy.
• Outcome-based – to include, where practical, emission limits on “indicator” or “surrogate” substances or parameters to represent groups of pollutants or to indirectly regulate emissions.
• Site-specific – taking into account the unique elements and requirements of each site.
• Documented and justified – all conditions detailed and justified in a decision document.

In addition, under the draft guidance statement:

• monitoring and reporting conditions are to be imposed on statutory instruments;
• new facilities will be expected to show that they perform to environmental standards requirements to be granted a works approval or licence but will not be subject to improvement conditions; and
• conditions imposed on works approvals and licences will not duplicate licensee requirements under the EP Act or other legislation.

Draft Guidance Statement on Land Use Planning

The aim of this guidance statement is to set out the DER’s roles and responsibilities in relation to land use planning and to address questions of primacy between planning decisions in relation to land use and the DER’s regulatory determinations.

Under the draft guidance statement:

• the DER will maintain membership of the Western Australian Planning Commission (WAPC) and perform an advocacy role with planning authorities to minimise and manage the risk of harm to public health or the environment;
• where planning proposals directly relate to matters regulated by the DER, planning authorities should rely on DER assessments and regulation rather than duplicating them; and
• the DER will only provide technical environmental advice to state and local government planning authorities on planning proposals under established memoranda of understanding or service level agreements or on request from the chief executive officer of the planning authority.

The DER will recognise that planning decisions on land use have primacy over its subsequent regulatory decisions.  In practice, the DER will:

• not make a regulatory determination on a matter until necessary planning approvals are granted;
• decline to make a regulatory determination on a matter where a planning decision prevents implementation of the application;
• assess applications under the EP Act concurrently with applications for planning approval but await relevant planning decisions before making a determination; and
• take the duration of planning approvals into account when determining the duration of works approvals, licences or permits granted under the EP Act.

The public comment periods for both draft guidance statements close on 2 March 2015.

Proposed Planning and Development (Local Planning Schemes) Regulations 2014

As we reported in November last year, the Minister for Planning, John Day, has released for discussion comment the proposed Planning and Development (Local Planning Schemes) Regulations 2014 (Regulations).  The public comment period for the draft Regulations closes on 30 January 2015.

The Regulations are intended to amend and replace the Town Planning Regulations 1967 (WA) and the associated Model Scheme Text in order to streamline the preparation and amendment of local planning schemes and to provide some consistency in their content.

Key changes in the Regulations include:

• a simpler process for preparing new local planning schemes;
• a risk-based amendment process for existing schemes;
• streamlining and standardisation of the structure plan approval process;
• extending the cases where development does not require planning approval;
• where possible, reducing the number of decision makers down to one decision maker (the WAPC or local government); and
• new provisions concerning development contribution schemes.

The proposed reforms outlined above represent a considerable step forward for the development industry and in particular how approvals are sought, assessed and issued. It is accordingly imperative that comments in relation to the proposed guidance statements and Regulations are carefully considered and, more importantly, made to the appropriate government department.

If you require any assistance in relation to the proposed reforms or indeed would like to understand potential implications for your land or proposed development, please feel free to contact a member of the Lavan Legal Planning and Environment Team.