Home UpdatesThe Stage of Development is Important When Applying the Deemed Planning Provisions

The Stage of Development is Important When Applying the Deemed Planning Provisions


The Deemed Planning Provisions are new law, having come into effect in 2015. A new case, Baker Investments Pty Ltd and City of Vincent [2017] WASC 263 (Baker) provides guidance on which clause applies at different stages of development.

What effect do the Deemed Planning Provisions have?

The Planning and Development (Local Planning Schemes) Regulations 2015 came in to effect on 19 October 2015. These regulations contain deemed planning provisions which are deemed to be inserted into all Planning Schemes and apply to the extent of any inconsistencies. For detailed analysis of “inconsistency” in this context please see our previous article The R-Codes and the Deemed Provisions.

Does it matter whether a development approval has previously been granted?

Yes, it does!

In Baker His Honour Justice Le Miere held that clauses 60 and 61 do not apply to an application to amend a development approval already granted by the local government or to amend or delete any condition of the approval or any aspect of the development approval.

Why?

This is because of the statutory interpretation principle that says that a statute (or regulations) must be read as a whole.

When you look at the structure of the regulations the following becomes clear:

  • “Part 7 of the Deemed Provisions, which includes cls 60 ad 61, provides for development approval of the local government to commence or carry out any works on the land in the scheme area” Paragraph 44 of Baker.
  • Part 8 deals with applications for development approval. This part includes clause 65 which is about making an application for development approval for a development which has already been commenced or carried out.
  • Part 9 is how a local government should deal with development applications made to it.Part 9 includes cl 76 (review by SAT of a decision by a local government  on an application for development approval) and clause 77 which allows an owner to apply for an approval already granted to be amended or cancelled. Clause 77(2) specifically states that such an application is to be dealt with in accordance with Part 8 and “as if it were an application for development approval”.

It is because the structure of the regulations distinguishes between how to deal with;

  • Applications for development approval where there is no existing approval ( Part 7) and
  • Applications for development approval where there has already been a development approval granted (Part 9)

but requires both types of applications to be dealt with by Part 8, that it becomes clear that the Parliament intended for Part 7 to only apply to developments which had not already had a development approval granted.

In Baker a development approval was in place which required obscure glazing to be installed in a two storey apartment complex. Later, a screen wall was erected which created an acoustic and visual barrier. As a result, a variation of the development approval was sought permitting the removal of the glazing, but was rejected by the City. It was argued on appeal that the proposed development was of such a minor nature, complied with the deemed to comply provisions of the R-Codes and in any event was exempt from the need to obtain planning approval by virtue of the exceptions contained in Clause 61 of the Deemed Provisions.

It was held that as there was a development approval in place addressing glazing, the exemptions in clause 61 could not be applied.

“…it would be contrary to the planning purpose of cl 77 and the requirement to obtain and comply with the terms of the development approval if cl 61(1)(i) allowed individual aspects of a previously approved development to be amended without approval. To do so would allow the alteration of aspects of the approved development which, individually or cumulatively, were important to the exercise of discretion to approve, thereby undermining the basis for the initial approval. To do so would also create practical difficulties in enforcement, because the development as constructed would be different from the approved plans.”

What does this mean?

This means that the exemptions contained in clause 61 for which development approval is not required does not apply to developments with existing development approvals.

So even if what an owner is wanting to do would now be exempt from obtaining a development approval now (due to the operation of clause 60 and 61 combined of the Regulations) if there is a development approval already in place for the substantive development, then the proposed development is not exempt and an application to amend the substantive development under clause 77 will be required.

The information published in this paper is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.