Planning and development controls

Contributed by Jean-Pierre Clement and Golnar Nabizadeh and current to 1 September 2005

The most visible planning and development controls are those administered by local governments. This is through local planning schemes (known as district or town planning schemes), building controls and related health and environment local laws.

In addition to local planning schemes, there are a number of other planning mechanisms that can be used to regulate developments, particularly in sensitive locations or areas experiencing significant development pressure, including:

• subdivision controls;
• special development areas (such as East Perth, Midland, Hope Valley etc);
• region planning schemes (Perth metropolitan area, Peel and (proposed) Greater Bunbury);
• statements of planning policy.

At the time of writing the Planning and Development Bill 2004 (the “Planning Bill”) was before State Parliament. This Bill is expected to come into force in 2005, and will replace a number of Acts including the Town Planning and Development Act 1928 (WA), which has regulated land use for many years.

The text in this section reflects the content of the Town Planning and Development Act 1928 with references to provisions of the new Bill where there are significant changes proposed.

LOCAL PLANNING SCHEMES

What are “local planning schemes”?

Local planning schemes are planning laws created by local governments under the Town Planning and Development Act (“TPDA”). They are referred to as either town or district planning schemes but are proposed to be renamed “local planning schemes” under the new Planning Bill.

Local planning schemes control developments within a part or whole of a local government district, and more than one scheme can apply to the same area (TPDA s.6).

The content of local planning schemes dictates the processes by which most developments are implemented within a local government area. They therefore provide an important opportunity to protect local amenity and the environment.

What do local planning schemes control?

Local planning schemes are primarily directed at controlling land use and development within a particular area. The term “development” varies from scheme to scheme, but generally means the development and use of any land and includes building activities and the carrying out of earthworks (TPDA s.2).

Matters which a local planning scheme can deal with include:

• making provision for roads and streets;
• the protection of the natural beauty of an area; and
• the preservation of trees and places of cultural heritage significance.

A person undertaking a “development” within an area covered by a local planning scheme will normally be required to obtain development approval. This allows the local government an opportunity to assess the proposal, and determine whether it is acceptable having regard to things such as the amenity of the locality, other land uses and environmental considerations. The process for seeking development approval is discussed below.

How are local planning schemes made and amended?

The process of making and amending local planning schemes provides a number of opportunities for public input. The steps are as follows:

1. Decision to develop or amend a local planning scheme: the decision to make or amend a local planning scheme is made by the local government. This is done by a resolution to that effect being passed by the council of the local government. Members of the public may request a local government to make changes to a local planning scheme (TPDA s.7).

2. Referral to Western Australian Planning Commission: a copy of the proposed scheme or scheme amendment must be referred to the Planning Commission for comment within 28 days of the decision of the local government. The Commission considers the proposal, and provides comments and advice to the local government. This includes giving approval to advertise the decision to prepare a planning scheme.

3. Referral to Environmental Protection Authority: a proposal to create or amend a local planning scheme must be referred to the Environmental Protection Authority (EPA) for assessment (TPDA s.7A1). The EPA may advise the local government that the scheme does not need to be assessed,

and may give advice and make recommendations to the local government on the environmental issues raised by the scheme. Alternatively, the EPA can require that a formal environmental impact assessment of the scheme be conducted (see further below under ‘Environmental Impact Assessment’). Following this process, the EPA may recommend that conditions be placed on the scheme to make it environmentally acceptable. Members of the public may make submissions on the EPA’s report, as well as appeal to the Minister for the Environment if the person is dissatisfied with the report’s recommendations.

4. Approval to advertise scheme: once the local government has prepared the necessary documents and the EPA has advised either that it is not assessing the scheme, or that the scheme has been assessed, the local government may seek approval from the Minister for Planning and Infrastructure for the proposal to be advertised (TPDA s.7(2)).

5. Advertising: where the Minister gives approval for the scheme to be advertised, the local government is required to advertise the proposal in a newspaper circulating in the district. The advertisement must describe the purpose of the scheme, state the times and places where it may be inspected, and specify a date by which submissions can be made (not less than three months).

6. Public submissions: any person may make a written submission on a proposed scheme. The local government must take into account any submissions received in compiling its report to the Minister (Town Planning Regulations 1967, reg.16).

7. Consideration by Minister: after considering the public submissions, the local government presents its final report to the Commission, which then presents it to the Minister. The Minister is not obliged to endorse the recommendations of a local government. The Minister may require further amendments to the local planning scheme. Such amendments may or may not require re-advertising.

8. Publication: if the Minister approves the scheme, it takes effect once it is published in the Government Gazette (Town Planning Regulations 1967, regs 21 to 23; Planning Bill, clause 87(4).

Copies of local planning schemes can be inspected at the local council office free of charge.

Local planning schemes within the Perth metropolitan area and the Peel region must be consistent with the Metropolitan Region Scheme and Peel Region Scheme respectively.

Where a local planning scheme is inconsistent with a region scheme, the region scheme will prevail to the extent of the inconsistency (Planning Bill, clauses 123 and 124).

The content of new or amended town planning schemes must also be consistent with the terms of the Model Scheme Text (“MST”). Under the MST, a scheme may include provision for special control areas. These areas set out particular provisions which may apply in addition to the zoning requirements (these are discussed further below under ‘Development approval’).

What happens where there is no local planning scheme in place?

If there is no local planning scheme applicable to land that is sought to be developed, Interim Development Orders (IDOs) may be made (TPDA s.7B) IDOs treat all proposed developments in a specified area as being at the discretion of the local government in its capacity as a planning authority. IDOs must be advertised, and will cease to have effect either when revoked, or when a local planning scheme comes into force. Failure to comply with an IDO is an offence, and is subject to a maximum penalty of $50,000.

If there is neither a local scheme nor IDO in place, then the only controls on developments within the area are building laws. While most local governments have local planning schemes, some local governments in country areas either do not have planning schemes, or if they do, the schemes only apply to land within towns and urban centres.

Compensation for injurious affection

A local government may be liable to pay compensation to any person whose land is “injuriously affected” by the making or amendment of a local planning scheme (TPDA s.11; Planning Bill, clause 173). Land is said to be injuriously affected by a scheme where:

• the land is reserved for a public purpose;
• the scheme permits the development of the land for no purpose other than a public purpose; or
• the scheme prohibits, wholly or partially, the continuation of any non-conforming use of that land. A non-conforming use means “a use of land which, though lawful immediately prior to the coming into operation of a town planning scheme, is not in conformity with any provision of [the new] scheme” (TPDA s.12(2a)).

The amount of compensation that is payable relates to the use of the land at the time it was affected, not the best possible use for that land.

REGION PLANNING SCHEMES

What is a “region planning scheme”?

A region planning scheme is a planning scheme that applies to a particular region, usually encompassing two or more local government districts. Region schemes are generally created in response to particular development pressures.

There are presently two region planning schemes in operation in Western Australia. One covers the Perth metropolitan area and the other applies in the Peel Region (that is, the City of Mandurah and the Shires of Murray and Waroona). Region schemes encompassing the Greater Bunbury Region and the Ningaloo Coast were being considered at the time of writing.

What matters can be the subject of a region planning scheme?

Region planning schemes deal with the same matters that can be dealt with under a local planning scheme (Western Australian Planning Commission Act 1985 (WA) s.18(1a)). This includes the power to provide for planning, re-planning or reconstructing the whole or any part of the particular region.

How do region planning schemes control developments?

Once approved, region planning schemes are legally binding (Western Australian Planning Commission Act s.18(1b)). Where a local planning scheme is inconsistent with a region scheme:

• the region scheme is to prevail over the local government scheme to the extent of that inconsistency; and
• the local government must (within 90 days of the region scheme coming into effect) resolve to prepare a new or amend its existing town planning scheme to make it consistent with the region scheme (Western Australian Planning Commission Act 1985, section 18(1bb) and (c)).

What is the process for creating or amending a region scheme?

METROPOLITAN REGION SCHEME

The Metropolitan Region Scheme (MRS) was originally created in 1959 as part of the Metropolitan Region Town Planning Scheme Act 1959 (WA). This is in contrast to other region schemes, which are created under the Western Australian Planning Commission Act 1985. Note that under the Planning Bill, it is proposed that the Metropolitan Region Town Planning Scheme Act 1959 be repealed. This will see the MRS and region schemes subject to the same regime.

The WA Planning Commission may submit to the Minister a proposal to amend the MRS. A detailed public notification and consultation process for proposed amendments is set out in s.33 of the Metropolitan Region Town Planning Scheme Act 1959 (WA), The amendments must be advertised for public comment, and the Commission must consider all submissions received on the proposed amendment, and give parties opportunity to put their case directly to the Commission or to a committee of the Commission. After considering submissions on the amendment, the Commission submits the amendment to the Minister.

Once the Minister is satisfied with the amendment, it is presented to the Governor for final approval. It is then published in the Gazette, and a copy is laid before each House of Parliament within six sitting days of the date of publication in the Gazette. Either House may disallow the amendment within 12 sitting days of the amendment being tabled. If the amendment is not disallowed, it takes effect.

Minor amendments are not required to go through this detailed consultation process. Minor amendments must still be advertised for comment, but the closing date for submissions is only two months and there is no right to put the submission personally (Metropolitan Region Town Planning Scheme Act 1959 s.33A)

All amendments to the MRS must be referred to the EPA for an environmental impact assessment (Metropolitan Region Town Planning Scheme Act 1959, s.33E).

OTHER REGION SCHEMES

Under the Western Australian Planning Commission Act 1985, the WA Planning Commission (“the Commission”) may prepare a region planning scheme for the effective planning and coordination of land use and development for any part of the State outside the metropolitan region.

Region planning schemes are prepared by the Commission and approved by the Minister for Planning and Infrastructure. The steps the Commission must take before a region scheme becomes law are set out in section 18(1a) of the Act and are similar in nature to the process required for the MRS (see above). The Planning Bill adopts a similar process.

Regional planning control areas

If land subject to a region planning scheme is required for a certain purpose or use (for example, for parks and recreation or water catchments), the Commission may seek the approval of the Minister to declare that land to be a regional planning control area. A regional planning control area can apply for a period of up to five years. For example, the Peel Region Scheme introduces a control area to protect water catchments within the Peel region.

Regional interim development orders

Where the Commission has resolved to prepare a region scheme for an area, it may (with the approval of the Minister) issue a regional interim development order to control developments that might prejudicially affect the preparation of the scheme.

An example of such an order is the Ningaloo Coast Regional Interim Development Order 2004 which controls developments in parts of the Shires of Carnarvon and Exmouth pending the implementation of a region scheme.

SUBDIVISION OF LAND

What controls apply to subdivisions?

A subdivision of land occurs where a single lot is divided into two or more smaller lots, together with associated roads, reserves and public services.

Subdivision of land requires the approval of the Commission (TPDA s.20(1)). This is a two part approval process:

• first, the proponent lodges a plan of subdivision with the Commission; and
• if the plan is approved, the proponent has three years to meet any conditions placed on the approval before seeking final endorsement from the Commission. On receipt of this endorsement, the land is allowed to be divided into separate titles by the Registrar of Titles. If the final plan is not submitted within three years the process must be recommenced (TPDA s.20AA).

It is an offence to commence a subdivision without approval: maximum fine $50,000 (five times this amount for a body corporate) (TPDA s.10).

Is there public consultation on subdivision proposals?

Where the Commission believes that a subdivision proposal may affect the powers or functions of a local government or other authority, the Commission must refer the proposal to those bodies and invite their comment (TPDA s.24). However, the Commission is not bound by the submissions made by these authorities, nor is there a general requirement for public participation in the subdivision approval process.

Any person who is concerned that a subdivision is likely to have a significant impact on the environment can refer the proposal to the EPA for assessment (Environmental Protection Act 1986 (WA) s.38). The environmental impact assessment process is discussed in more detail below.

The Commission must also refer proposals affecting the Swan Valley planning area to the Swan Valley Planning Committee. The Commission is bound by the advice of the Committee unless it obtains the approval of the Minister (TPDA s.24A).

The Commission must also wait for advice from the Heritage Council of Western Australia before approving a subdivision which may affect land entered on the State Register of Heritage Places (TPDA s.20(4).

What must be taken into account before granting approval?

When considering a subdivision application, the Commission must have regard to all “relevant matters”. This includes things such as the provision of services to each lot, drainage of the land, the amount of public open space to be provided and any relevant town planning schemes, planning regulations or local laws. Note that while the Commission is required to take into account the terms of a local planning scheme, it is not bound by the scheme.

An exception to this is where the scheme has been assessed by the EPA and the Minister for the Environment has imposed environmental conditions. Under the new Planning Bill, it is proposed that the Commission should not give subdivision approval which conflicts with the provisions of a local planning scheme (Planning Bill, cl. 138).

Subdivision proposals are also exempt from the clearing permit system under the Environmental Protection Act 1986 (WA). This means that clearing native vegetation consistent with a subdivision approval will generally not require the approval of the Department of Environment.

What conditions can be placed on subdivisions?

The Commission has a broad discretion to impose conditions on subdivision approvals, including that part of the land be set aside for conservation, recreation, roads and waterways or that required works be carried out (TPDA s.22). Where works are carried out as part of implementing a subdivision approval (for example, the construction of roads), separate development approval is not usually required.

Non-compliance with a condition in a subdivision approval is an offence. The maximum penalty is a fine of $50,000 and a daily penalty of $5,000 (TPDA s.10).

DEVELOPMENT APPROVAL

When is approval required to commence a development?

Most local planning schemes use zoning to classify different types of land. The “zoning table” lists the zones and specifies what land uses can be carried out in the district. The following land use classifications are a typical example of the kind of controls that might apply:

• permitted use (“P” use) – means the use is permitted provided it complies with the relevant standards and requirements laid down in the local planning scheme and all conditions (if any) imposed by the local government in granting planning consent;
• discretionary use (“AA” use) – the local government has discretion to approve the development application;
• discretionary use subject to public consultation (“SA” use) – the local government has discretion to approve the development application subject to the proposal being open for public comment;
• incidental use (“IP” use) – approval only granted where the proposed use is incidental to the predominant use of the land; and
• prohibited use (“X” use) – use not permitted in that zone.

An example of how zoning operates

The Shire of Carnarvon’s Town Planning Scheme 10 establishes an intensive horticulture zone adjacent to the banks of the Gascoyne River. The purpose of this zone is to ensure productive land adjacent to the River is available for intensive horticultural activities (a major industry for the district). The zoning table states that “kennels” are a prohibited land use within the intensive horticulture zone, while a “hazardous industry” may be carried out in the zone with the approval of council after a public consultation process. As a result, an application for kennels cannot be processed by the Shire of Carnarvon, but a hazardous industry application may be approved, subject to the applicant meeting relevant assessment criteria.

RESERVED LAND

Local planning schemes may also identify reserved land. This is land set aside for parks and recreation, public purposes or communications. Generally, a person must not carry out any development on reserved land (including the erection of a boundary fence) without obtaining development approval.

EXEMPTIONS

The following types of development are normally exempt from the requirement for development approval under a local planning scheme:

• continuing a non-conforming use (that is, continuing a use that was lawful prior to the land being rezoned);
• erection of dividing fences;
• replacement, maintenance or repair by a government entity of equipment used to provide public services;
• maintenance or repair of any building where there are no structural works or changes to physical appearance;
• mining activities; and
• works associated with a subdivision approval.

What is the process for obtaining development approval?

A person wishing to undertake a development will need to lodge the appropriate application forms and plans with the relevant local government. Check with the local government to see what is required.

Are development applications required to be advertised?

The local planning scheme will describe the circumstances in which a development proposal is required to be advertised. This will usually be for developments that are likely to have a significant impact on the amenity of the area. Public notice may be given by a sign on the subject lot, direct correspondence with neighbouring landholders or a notice in a local paper.

Local governments also include details of most development applications in their meeting agendas. This provides a limited notice of development proposals that are being considered by the local government. Members of the public are entitled to attend local government council meetings and ask questions.

How are development applications assessed?

Development applications are usually assessed by a special planning committee of the local government. However, unless the planning committee has delegated authority to make a decision about the proposed development, that decision can only be made by the council of the local government. Those supporting or opposing a particular development often lobby councillors directly in order to gain their support.

What matters must the local government take into account?

A local planning scheme will typically set out those matters which a local government needs to take into account before determining a development application. Examples of the sort of things that a local government may be required to consider include:

• the effect the development will have on the environment;
• the preservation of the amenity of the area;
• submissions from persons or bodies invited to comment on the proposal;
• relevant policies or strategies made by the Western Australian Planning Commission; and
• any policy developed by the local government to guide planning decisions.

Failure to take into account a relevant consideration, or taking into account an irrelevant consideration, may lead to the decision of the local government being challenged in court.

See further ‘Judicial Review’ in CHALLENGING GOVERNMENT DECISIONS.

Environmental impact assessment

If the proposed development is likely to have a significant effect on the environment, a local government must refer it to the Environmental Protection Authority (EPA) for an environmental impact assessment (Environmental Protection Act 1986, s.38(5)). If the EPA decides to assess the proposal, the relevant local government is prevented from making a decision on the development application until the assessment process has concluded (s.42(1).

An exception to this is where the local planning scheme under which the application is made has been formally assessed by the EPA. In these cases, development proposals arising under such a scheme do not have to be referred to the EPA unless:

• the environmental issues raised by the proposal were not assessed during the assessment of the scheme; or
• the proposal does not comply with the scheme or the conditions to which the scheme is subject.

Heritage places

Special controls apply to places that have heritage value. For places entered onto the State Register of Heritage Places, development approval cannot be given by the local government without first receiving advice from the Heritage Council (Heritage of WA Act 1990 (WA) s.78.

In addition, local governments are required to maintain a municipal inventory list of local heritage places; developments affecting such places require special consideration during the decision-making process.

What conditions can be placed on a development approval?

A local government has broad discretion to place conditions on a development approval (TPDA s.8) This includes conditions to protect the environment and local amenity. Most approvals require the works to be undertaken within a set time (usually two years).

Is there a right of appeal against a local government decision?

A proponent may appeal to the State Administrative Tribunal (“the SAT”) against a local government decision to refuse a development approval or against the conditions imposed on an approval (TPDA s.8A). For information on the SAT’s processes and procedures, see CHALLENGING GOVERNMENT DECISIONS .

There is generally no right of appeal by third parties such as neighbours or conservation groups. However, a third party right of appeal may sometimes be provided for in a local planning scheme, although this is rare. A third party may also be allowed to be joined to an appeal being heard in the SAT. The SAT will consider the interest the third party has in the appeal, its involvement in the dispute and the contribution it may make to the settlement of the dispute before allowing it to be joined.

Direct appeals to the Minister have now been abolished, although the Minister retains the power (under s.70 of the TPDA) to “call-in” matters being considered by the SAT. This allows the Minister to direct the SAT to refer the appeal to the Minister for final determination.

The call-in power can be exercised where the Minister is of the view that the appeal raises issues of State or regional importance which would be best determined by the Minister. If the Minister does direct the SAT to refer an appeal, details of the direction must be published in the Government Gazette and laid before both Houses of Parliament. In determining an appeal, the Minister is not limited to taking into account planning considerations, but may have regard to any other matter affecting the public interest (TPDA s.71).

What is the penalty for not obtaining approval or breaching a condition?

If a development contravenes a local planning scheme, the local government may direct the owner to remove or alter the development, or to restore the land to its original condition (TPDA s.10).

Failure to comply with a direction from the local government is an offence, punishable by a maximum fine of $50,000 with a maximum daily penalty of $5,000. The local government may

also undertake the works itself and recover the cost from the offender (TPDA s.10).

Any person may commence action in the Magistrates Court for a breach of a local planning scheme or a condition imposed in respect of a development approval under that scheme (TPDA s.10AB). There is a limited time to instigate a prosecution. For a simple offence, that time limit is 12 months from the time the matter the subject of the complaint arises.

Are government authorities required to obtain development approval?

Government departments and local governments undertaking public works are generally not required to obtain approval for that work under a local planning scheme. Whether approval is required will depend on the zoning of the land and the activity proposed to be undertaken.

OTHER CONTROLS

Perth metropolitan region

Developments in the Perth metropolitan region are subject to the Metropolitan Region Scheme. While most development approvals under the Metropolitan Region Scheme have been delegated to local government, some have not. These developments require approval from the Western Australian Planning Commission.

The following types of developments are examples of those that require Commission approval:
• development of land reserved under the Metropolitan Region Scheme;
• developments partly within the Swan River Management Area;
• other developments that are not delegated to local government.

Peel region

The Peel region is the second region in Western Australia to have a regional planning scheme put in place. Under the Peel Region Scheme, developments affecting reserved land must be approved by the Commission. Developments impacting on water catchments must also be referred to the Department of Environment for advice.

Swan River management area

Developments to be constructed entirely within the Swan River management area as defined under the Swan River Trust Act 1988 (WA) require approval by the Minister for the Environment (s.55). Applications for approval are made to the Swan River Trust, which prepares a report to the Minister. For proposals that are partly within the management area, the approval of the Planning Commission is required. New legislation is proposed to replace the Swan River Trust Act, but has not as yet been introduced to Parliament.

Special planning legislation

Areas being redeveloped by the State Government may be subject to specific legislation. Examples include Subiaco, East Perth, Midland, Armadale and Hope Valley. These Acts generally place the area to be redeveloped under the control of a redevelopment authority, and require that all development proposals within the area are subject to the approval of the redevelopment authority. It is usual also for the legislation to state that local planning schemes and the Metropolitan Region Scheme cease to have effect in those areas.

Non-binding planning policies

The Department for Planning and Infrastructure and the WA Planning Commission prepare a range of non-binding policies relating to land use planning. These include statements of planning policy. While not binding, local governments and other decision-makers are required to take such policies into account before making a decision.

Clearing of native vegetation

A person proposing to clear native vegetation will require a permit from the Department of Environment unless the clearing is subject to a specific exemption. There are numerous exemptions, full details of which are available from the Department.

Failure to obtain a permit when required to do so is an offence, and the maximum penalty ranges from $250,000 for an individual to $500,000 for a body corporate (Environmental Protection Act 1986, s.51C).