The new Planning and Development Amendment Regulations 2015 (Regulations) were gazetted on 25 August 2015 and will come into effect on 19 October 2015.
The new Regulations will have the effect of reducing the status of structure plans to policy documents without having the statutory force and effect of the planning scheme under which the structure plan is adopted.
There is considerable uncertainty as to whether existing structure plans that had been approved prior to the date that the Regulations come into effect will have any continuing status to have the ‘force and effect’ of the parent planning scheme, and to authorise the approvals of development applications under that scheme. Such adopted structure plans had been the basis for development applications for uses authorised by the structure plan to be approved by the relevant planning body.
The deeming provisions of the new Regulations, however, will override any operational scheme provisions that seek to give a structure plan the force and effect of the parent planning scheme. After the new Regulations come into effect, any local government or other planning decision maker will have due regard to, but will not be bound by, the structure plan when deciding the application.
The position concerning structure plans that have been approved prior to the date of the new Regulations come into effect are particularly uncertain. The transitional provisions of the Regulations appear to give a structure plan continuing force and effect, so that a development application made (but not determined) under a local planning scheme before the commencement of the new Regulations may be dealt with as the scheme provisions as they previously stood (including the structure plan). The views of the Department of Planning (Department) however, are that the deemed provisions of the new Regulations will override any operational scheme provisions that seek to give the structure plan the ‘force and effect’ of the scheme (even where the existing structure plan or scheme was approved prior to the Regulations coming into effect).
If the interpretation by the Department is correct, any existing structure plan or proposed structure plan that comes into effect (whether prior to or after the date the new Regulations come into effect) will not have the statutory force and effect of a scheme, and will merely be one matter for consideration by the decision maker body in the exercise of its discretionary powers under the planning scheme
Furthermore, the Department is of the view that after the new Regulations take effect, where the structure plan provides for different land use permissibility for particular uses (that are different to or not permitted by the underlying planning scheme), the planning scheme provisions will prevail. Accordingly, in the view of the Department, if an approved structure plan identifies a particular use within a particular zone as “D”, and the planning scheme identifies it as “X” (that is, not permitted) then the use is not permitted, regardless of what is specified within the structure plan. For example, if the development application for development approval is for “Industrial” use within a structure plan area where the structure plan identifies “Industrial” use as permissible, but the underlying scheme zoning is rural, then the scheme provisions will apply and the use will not be permitted notwithstanding that it is specified as permissible within the structure plan.
The change of the status of structure plan to be affected by the new Regulations will have serious implications for land owners who have implemented structure plans or have sought to rely upon structure plan provisions as the framework for development approvals. The views of the Department are that the new Regulations will immediately reduce all structure plans to purely policy-type documents, and any structure plan being progressed or yet to be adopted will also only have status as policy-type documents. Any landowners seeking to develop land in accordance with an adopted structure plan (if there are any inconsistent provisions in the scheme), will now have to seek the consent of the local government to amend the relevant planning scheme.
The Western Australian Planning Commission (WAPC) has opened for public comment the Draft Liveable Neighbourhoods 2015 (Liveable Neighbourhoods) following its review. The policy is open for public comment until 13 November 2015, and a copy can be found here.
The policy guides the structure planning and subdivision for greenfield and large brownfield sites. Generally, the policy replaces the WAPC’s current development control policies. However, wherever such policies are inconsistent with Liveable Neighbourhoods, the latter will prevail unless the applicant establishes why it should or should not apply.
The changes introduced by the policy can be summarised as follows:
For a detailed summary of the changes, see the Background Information: Review of Liveable Neighbourhoods (2015), which can be found here.
The policy has made significant changes to road width requirements, the minimum dimensions of public open spaces, and the policy has also relayed a strong preference for the co-location of educational sites and public open spaces.
In July the Environmental Protection Authority (EPA) released its interim strategic advice to the Minister for Environment on the Western Australian Planning Commission’s (WAPC) “Perth and Peel @ 3.5 Million” report and draft planning frameworks for the Central, North-West, North-East and South Metropolitan Peel sub-regions.
The purpose of the advice is to:
The EPA makes 36 recommendations with respect to land, water management, air quality, the health and heritage of the population, the marine environment, urban, industrial and rural development, raw material extraction, infrastructure and ways to implement the EPA’s recommendation.
The EPA will provide final advice once the Strategic Assessment is complete.
If you have any questions or concerns in respect of these issues, please contact Craig Wallace or Brian McMurdo at Lavan Legal.
