Planning and the Environment

Contributed by EdwardAndre and current to 27 July 2018

Penalties and enforcement

The Planning and Development Act 2005 (WA) (as amended) imposes significant penalties for non-compliance with the provisions of this act. For example, if a development is commenced without planning approval, it becomes an enforcement or compliance issue. Penalties differ depending on whether the applicant is a natural person or a corporation.For a natural person, the penalty is AUD$ 200,000.00, while for a corporation, the penalty is AUS$200,000x5. Thereafter, penalties are applied on a daily basis until the matter is resolved. A case worth reading is: PITASSI and CITY OF JOONDALUP [2011] WASAT 6

Part VIA Legal proceedings and penalties

The Environmental and Protection Act 1984 (WA) (as amended) outlines specific offences under the EP act. Broadly these are categorised into three tiers: tier 1, 2 and 3. Tier 1 are the most serious and tier 3 being the least serious. Tier 2 offences can be dealt with means of a modified penalty. Tier 3 offences can be dealt with by the issuance of infringement notices. No provision is made for Tier 1 offences to be dealt with by the prosecution process. Perhaps, this because Tier 1 offences cover serious environmental harm offences which may also crystallise into criminal offences. The act makes additional provisions for prosecutions and courts have more powers for pursuing this course of action.

Appeal matters

The Planning and Development Act 2005 (WA) (as amended), unlike the Environmental and Protection Act 1984 (WA) (as amended), has a very transparent appeal process, with appeals starting at the State Administrative Tribunal (SAT) with potential for legal matters ending up with the High Court of Australia for determination. Planning matters are generally considered by SAT, and this informal tribunal is governed by its own statute, being The State Administrative Tribunal Act 2004 (WA), as amended from time to time.

Appeals under Part VII of the Environmental and Protection Act 1984 (WA) (as amended)

With the exception of Part V, Division 2 appeals to any decisions made under the act are generally made to the Minister. The Minister may opt to dismiss the appeal, return the proposal for reconsideration to the organisation or to allow the appeal. The act ensures that some matters however cannot be appealed.

This part provides for an appeals convener, whose responsibility is to look into the circumstances of an appeal and if appropriate make recommendations to the minister about the appeal.

Appeals under the State Administrative Tribunal Act 2004 (WA)

An appeal to the State Administrative Tribunal (SAT) is an appeal de novo, meaning it is a fresh appeal in that previous arguments or reasons for refusing an appeal by a Local Government Authority or the Western Australian Planning Commission (WAPC), among others, are not considered as it is a fresh appeal to SAT

Appeals to SAT can be class 1 appeals. Class 1 appeal have a value of less than AUD$250,000.000, or one house on a single lot with a value of less than AUD$500,000.00 or subdivisions of a single lot of no more than three lots.

Class 2 appeal generally involve more serious planning applications and are of more or equal monetary value than class 1 appeals, and require more documents. Namely, witness statements. Rules of evidence don’t apply, when appeals are dealt with my SAT. However, if the matter involves serious environment harm or pollution to the environment, appeals to SAT are more likely to be persuasive if evidence is present to SAT based on scientific data. It is therefore pertinent to potential applications to endure that environmental harm and pollution, such as, emissions are supported by hard evidence over a six month period. Obviously, the time set aside for monitoring will depend on the gravity of the issue or planning matter before SAT.

Appeals to SAT must be made within “28 days of the date on which the original decision- maker gives notice of the decision” (https://www.sat.justice.wa.gov.au/_files/Info_Plan_Appl_Class_2.pdf ), seek an extension from SAT explaining the reasons for the delay.

SAT may call for a directions hearing for the purposes of agreeing upon preliminary issues to be resolved, and may later ask the applicant and respondent to resolve the matter through the mediation or compulsory conference process.

Lawyers can play an important role in guiding the mediation and compulsory conference process.

Development Assessment Panels

Development applications can be submitted to local councils; Western Australian Planning Commission and the Metropolitan Redevelopment Authority. Therefore, applications should ensure that the relevant forms are submitted to the appropriate agency at the correct time. Some Development Applications having a high monetary value are referred to Development Assessment Panels. A key case worth reading is: Nairn -v- Metro-Central Joint Development Assessment Panel [2016] WASC 56. Retrieved from http://www.austlii.edu.au/au/cases/wa/WASC/2016/56.html

In the context of Development Assessment Panels (DAPs), the following points are worthy of note.

If a Development Application is estimated to cost more than or equal to AUD$20million, within the City of Perth Council area, then it must be referred to the relevant Development Assessment Panels (DAP’s) for determination.

If a Development Application is estimated to cost more than or equal to AUDS$10.0million, located outside the City of Perth Council area, then it must be referred to the relevant Development Assessment Panels (DAP’s) for determination.

Members of DAPs are guided by a Code of Conduct, and penalties apply for breaching the Code of Conduct.

Development Assessment Panels are the subject of subsidiary legislation. Therefore, rules are provided for guidance. See Part 13 and 11 A PADA.

Gifts

There are serious implications in situations where employees of government except prohibited gifts.

Town Planning Regulations

The planning system in Western Australia is guided by many pieces of subsidiary regulations. Examples are Planning & development (local planning schemes) regulations 2015, and Planning & Development & Development Assessment Panels) Order 2015 (WA), made by the Minister under section 171 C of the Planning and Development Act 2005 (WA).Retrieved from https://www.slp.wa.gov.au/gazette/gazette.nsf/searchgazette/884BF9772AF99DA348257EAE001080AC/$file/Gg132.pdf

Key planning issues arising from time to time

Samec and Andre (2018) have prepared a unit reader for students enrolled in Planning and Development Law at Edith Cowan University since 2008, in Western Australia. In this reader, Samec (2018) identifies a series of planning issues arising from stages of the planning approval process in regard to the provisions of Local Planning Schemes (LPS) and the R Codes:

• Owners’ consent
• Crown immunity
• Advertising planning application
• Amended Plans
• Amenity
• Ancillary use
• Use approval
• ‘P’ use refusal
• Restrictive Caveats
• Planning conditions
• Revocation
• Deemed refusal
• Substantial commencement
• Retrospective Approval

Planning conditions

Now, I will consider the issue of ‘planning conditions.” Briefly, two matters will be considered under the broad umbrella of planning conditions. These are the validity of planning conditions and ambulatory conditions.

Ambulatory conditions are invalid conditions. Meaning a condition cannot be approved by an agency such as the WAPC, subject to the approval of another agency. For example, if the Western Australian Planning Commission is considering a proposed plan of subdivision, then its own planning legislation requires that the WAPC make its own mind about the application before it. Therefore, the WAPC cannot approve a plan of subdivision into two or more lots subject, for example, to the approval of the Environmental Protection Authority or organisations such as Main Roads. An approval of this type makes it an ambulatory condition and is therefore invalid.

A planning authority such as the WAPC or a Local Authority or the Metropolitan Redevelopment Authority (MRA) has the power to impose planning conditions as it thinks fit’. This power however, is limited. For a planning condition to be acceptable in law, it must be valid and shall fairly and reasonably relate to the permitted development and / or the purpose for which it was granted. Generally, this is known as the planning purpose test. The other tests for establishing the validity of planning conditions are:

• The planning condition must be necessary
• Planning conditions must also be appropriate (for a planning purpose)
• Relevant to the approved development or subdivision
• Must be enforceable
• Precise and certain and
• Reasonable. An example of unreasonableness could be in the context of the Wednesbury unreasonableness. Otherwise known as the Newbury test.

“A standard of unreasonableness used in assessing an application for judicial review of a public authority's decision. A reasoning or decision is Wednesbury unreasonable (or irrational) if it is so unreasonable that no reasonable person acting reasonably could have made it (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; (1948) 1 KB 223). The test is a different (and stricter) test than merely showing that the decision was unreasonable”. Sourced from Thomson Reuters Practical Law.

A condition relating to the use of aircraft hangers as warehouses for 10 years, subject to the hangers being demolished was considered invalid, this was because the purpose was to restore the area instead of meeting planning needs arising from the change of use.

This example, shows that the concept of what is reasonable or not is subject to judicial review and is a matter which requires interpretation.

Section 151 of the Planning and Development Act 2005 (WA) also indicates that an applicant may request in writing that the Commission reconsider the conditions imposed.

Imposing planning conditions in the context of planning instruments

The broad discipline of urban and regional planning, in short town planning is often made in the context of planning instruments. As alluded to earlier in the context of town planning, decisions about development and subdivision and redevelopment are not devoid of planning context, but are made in the context of a raft of planning instruments.

Planning instruments

Broadly, planning as a discipline has its own body of knowledge, theory and framework. As a whole, planning agencies, namely, the Department of Planning Lands and Heritage, Metropolitan Redevelopment Authority and Local governments such as the City of Swan produce their own statutory and non-statutory instruments. Because planning in Western Australian has at least over 100 years of history, it arguably has a broad body of historical documents and instruments to draw upon.

Non – statutory planning instruments

Some of the non-statutory planning instruments used to guide town planning in Western Australia are:

• Corridor Plan for the Perth Metropolitan Region
• Metroplan and Network City plan (the latter purports that the planning vision for Perth is community generated, on the basis that extensive dialogue with the community was pursued)
• Structure plans to guide growth along corridors within Perth Metropolitan Region such as the North –East Corridor which identified a range of Planning Issues and Growth Options released for public discussion and comment in October, 1991
• Various Regional Plans for Country Regions
• Perth and Peel @ 3.5million land use planning and infrastructure frameworks
• Planning Policies and lots of informal bulletins and guidelines.

The Western Australian Planning Commission, advised by the Department of Planning, Lands and Heritage plays a lead role in providing guidance and leadership for players in the planning and Development Industry. For example the WAPC under the Planning and Development (Local Planning Schemes) Regulations 2015 has prepared a document entitled “Structure Plan Framework” for the purposes of setting out “the manner and form in which a structure plan and activity centre plan is to be prepared, pursuant to section,part 4, clause 16 and section 2, part 5, clause 32 of the Local Planning Schemes Regulations 2015. https://www.planning.wa.gov.au/dop_pub_pdf/StructurePlanFramework.pdf

It is estimated that the Perth and Peel regions are estimated to grow to 3.5 million people by 2050. This significant increase in population will impose significant pressure on the regions natural environment and resources. The State Government’s Perth and Peel Green Growth Plan for 3.5 million (Green Growth Plan) is designed to meet this challenge and hopes to deliver two critical outcomes:

• Reducing red tape and streaming the commonwealth environmental approvals and State environmental approvals for the development; and
• Putting in place a plan for protection of our bushland, flora and fauna, rivers and wetlands that will protect our environment comprehensively, albeit based on a sound implementation plan.

The State government recently released “Perth and Peel @ 3.5million land use planning and infrastructure frameworks to accommodate 3.5 million people by 2050……. The frameworks defines the urban form for the next 30 years, limit unsustainable urban sprawl and encourage greater housing diversity to meet changing community needs. They provide guidance and certainty to State Government agencies, local government and the development sector.

The plans – for the Central, North-West, North-East and South Metropolitan Peel sub-regions - determine where new homes and jobs will be located; make best use of existing and proposed infrastructure; and protect important environmental assets.

They set the groundwork for the development of vibrant new communities, particularly around key transport links, including METRONET station precincts and activity centres, within a compact and connected city”. https://www.planning.wa.gov.au/10586.aspx

In a nutshell the Department of Planning, Lands & Heritage and the previous Department of Planning identified its priority strategies as providing strategic direction, promoting reform and innovation, facilitating collaboration, with a focus on people, good governance, appropriate systems and support. Related to these key priorities are six outcomes and a host of strategies.

Statutory planning instruments

The Western Australian Planning Commission, based on advice from the Department of Planning, Lands and Heritage, produces a number of statutory plans to ensure that its strategic vision for Western Australia can be implemented, namely;

• Region Planning Schemes such as the Metropolitan Region Scheme, Peel Region Scheme and the Greater Bunbury Region Scheme
• Interim and Regional Development Orders
• Local Planning Schemes, based on a planning strategy prepared for the local area.
• Statements of Planning Policy (SPP).
• Instruments and mechanisms for controlling, guiding and approving subdivision and development control.

Conclusion

Planning in Western Australia is a complex process, but reforms have been initiated recently to ensure that the government can deliver an environmentally, socially, economic and transparent sustainable land use framework for Western Australia.