Planning

Contributed by EdwardAndre and current to 27 July 2018

Statutory background

The Planning & Development Act 2005 (WA) (PADA), as amended, and relevant case law will be referred to for the purposes of giving context for understanding the functioning and application of planning law in Western Australia.

From the title of the legislation it is evident that town planning in Western Australia covers two guiding goals. First, planning has a non - statutory function, and the second goal is largely statutory.

The non - statutory aspects of Town Planning are designed to provide a strategic vision for planning in Western Australia. These dimensions of planning cover the preparation of spatial plans, strategic plans, structure plans, planning guidelines, bulletins and planning strategies for local authority areas, regions and Western Australia.

Overview of urban and regional planning in Western Australia

Planning strategies are required to ensure that there is a broad framework for guiding land use distribution, and transportation network, in an orderly and proper manner. This framework is designed to: protect the environment, facilitate tourism and economic revitalisation albeit in a social and transparent government framework. Therefore a key purpose of planning is to promote sustainability, as well as ensuring that land use distribution, including infrastructure provision, is efficient and effective, as well as sustainable in a planning, subdivision, land use distribution and development context.

Development

Development means change of use, erecting a building, including change to topography and the act of demolishing a building (s.4(1)) of the Planning and Development Act 2005 (WA) - PADA). Depending on where the development is located, it may be referred to the Western Australian Planning commission for a decision. The Commission is a body with perpetual succession entrusted with certain functions and powers, such as, being responsible for the approval of subdivision and amalgamation of land, including any development on or abutting a reserve in a Region Planning Scheme (Part 2 of PADA).

Any land requiring subdivision or amalgamation must be referred to the Western Australian Planning Commission (WAPC) for determination, unless covered by an instrument of delegation. An example on this point is the Department of Communities and Housing. Many of the WAPC and Department of Planning, Lands and Heritage functions, such as those pertaining to development and subdivision, are delegated to the Department of Communities and Housing

Commencing development without planning approval is an offence and the fines are quite large.

A broad exception to this principle is land covered by the Metropolitan Redevelopment Authority (MRA), where the MRA is responsible for preparing its own Town Planning Scheme(s). An example is Elizabeth Quay, which is located as a prime place making waterfront project at the intersection of Riverside Drive between Barrack Street and William Street.

In Western Australia, planning schemes may take the form of Regional Planning Schemes, which form the basis for preparing Local Planning Schemes. Thus, Regional Planning Schemes are generally formulated to create a planning land use distribution framework for areas experiencing development pressure from high growth areas.

Areas not the subject of Regional Planning Schemes are guided by Local Planning Schemes or other planning schemes, such as, planning schemes prepared by the Metropolitan Redevelopment Authority.

Region Planning Scheme(s)

Western Australia has three Metropolitan Region Schemes covering the Perth Metropolitan Region and the South West Region of Western Australia, stretching generally south of Rockingham and to the South West of the Indian Ocean and slightly east of the Darling Scarp.

The three regional planning schemes areas are the Perth Metropolitan Region (MRS), Peel Region Scheme (PRS) and the Greater Bunbury Regional Planning Scheme (GBRPS). These three statutory planning schemes form the foundation for ensuring that all Local Planning Schemes within the regional planning schemes are consistent with the reserves, zones and bush forever overlays, delineated as such on the regional planning schemes.

These schemes show the broad land use distribution of reserves, zones and bush forever overlay. More detail is provided in Local Planning Schemes. Each local government in Western Australia is responsible for ensuring that development is consistent with the land use aspects of a Local Town Planning Scheme and Regional Planning Schemes.

Local Planning Schemes

Local Planning Schemes must be consistent with the relevant Regional Planning Schemes. All local planning schemes must be endorsed by the Western Australian Planning Commission. Local Planning Schemes consist of a Scheme Text and accompanying maps. These documents should be read together. Each planning scheme consists of a land use table. Simply, this table identifies which land use are permitted, non- permitted or are the subject of a discretionary decision making process by Elected Members of Council. However, Local Town Planning Schemes also contain other categories which are used as a land use management tool.

Each town planning scheme purports to be consistent with the Model Scheme Text (MST), however, the reality is that there are some differences in the written text provisions. Therefore, it is prudent to examine each scheme in detail or pay a lawyer or planner for this professional advice. Advice is provided by the Western Australian Planning Commission about a wide range of planning matters. For example, for the purposes of ensuring consistency, the WAPC provides model templates, such as, the Model Scheme Text and model town planning conditions. The latter provides the Department of Planning Lands and Heritage with a template for identifying the types of conditions which should be imposed on subdivision and Development Applications referred to the WAPC.

Town Planning is complex, dynamic and consists of abstract concepts such as sustainability, new urbanism, planning bulletins, guidelines, seriously entertained policies and formal Statements of Planning Policy (SPP).

State Planning Policies (SPPs)

State Planning Policies approved by the Governor are given considerable weight by the State Administrative Tribunal (SAT). Part three of the Planning and Development Act, (2005) WA, deals with planning policies. State Planning Policies are not intended to be applied inflexibly, but can be enforced. For example, in the case of Pitassi v City of Joondalup, a minor increase to the area of the top floor, contrary to the approved building plans, was deemed acceptable by the State Administrative Tribunal based on evidence prepared by the applicants Lawyers. Planning policy is intended to be applied flexibly, whilst planning legislation is arguably more rigid, and they are subject to the rules of statutory interpretation, the interpretation of cases, statute and judgments.

Thus whilst planning has its own body of law, it also overlaps with planning ideology such as new urbanism, planning theory and sustainability. It also alludes to some abstract concepts such as "planning policy", "compensation", and “betterment”. Planning, is a broad discipline having its foundations in humanities and is evolving to embrace some scientific concepts.

What is planning?

The Planning and Development Act 2005 (WA) reflects two important concepts. Planning and Development.

Planning is a reflection of human values and its purposes are reflected in s.31. Development means erecting a building, change of use, demolition and also a change to the topography of land. The Western Australian Planning Commission is responsible for coordinating planning in Western Australia and its role is outlined in Part two of PADA, and more specifically, its functions and powers are listed in s143. Additionally, the WAPC plays a monitoring role in ensuring that local planning schemes and the subject of regional planning schemes, reflect the intent and planning objectives set out in regional planning schemes, especially the broad zones and reserves identified in regional planning schemes. Opportunities exist for the WAPC to delegate some of its decision making powers to local government, and the Minister can also call in particular developments considered of regional significance. The Western Australian Planning Commission Website may identify areas of regional significance from the various planning strategy and spatial plans it prepares. It may also call in developments, which if approved, could work against the ideology of sustainability.

Sustainability

The concept of sustainability, whilst having a wide range of meanings and interpretations, is often given clarity by leading judgments and is defined in the cases across the hierarchy of courts. In Moore River Company Pty Ltd and Western Australian Planning Commission [2007] WASAT 98 provides a broad umbrella of considerations impacting on sustainability. The Commission’s reasons for refusing the subdivision application among others were as follows:

“The proposed development is contrary to the State Sustainability Strategy and proposed Statement of Planning Policy No. 3 – Sustainable Settlements as it:

• Does not promote an urban structure which integrates economic, social and environmental sustainability; and
• Does not maximise accessibility to jobs and services and provide diversity, choice and variety with high standards of urban design and amenity”.

Sustainability has been defined in a variety of contexts such as wind turbines and the environment. A case dealing with the former is APP Corporation Pty Ltd and City of Perth [2008] WASAT 291. A case dealing with the later is Squarcini & Milano Pty Ltd v SPC - WA SUP CT.This case identifies the environment as being a relevant planning consideration. However, the concept of the environment may take a different form depending on which legislation is being considered.