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The Development Approval Process. UWA – EART4413 – Planning Law Week 9 22 April. Lecture overview. The requirement of approval Different approval bodies The approval process under MRS The approval process under an LPS Conditions. 1. Requirement of approval.

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The Development Approval Process

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The development approval process

The Development Approval Process

UWA – EART4413 – Planning Law

Week 9

22 April


Lecture overview

Lecture overview

  • The requirement of approval

  • Different approval bodies

  • The approval process under MRS

  • The approval process under an LPS

  • Conditions


1 requirement of approval

1. Requirement of approval

  • What requires development approval?

  • Section 162 of P&D Act

  • “Development” s.4 of P&D Act

  • Development approval is separate to:

    • Subdivision

    • Building licence

    • Other licences – extractive, environmental, health etc.


Requirement of approval

Requirement of approval

  • Any exceptions to rule?


2 approval bodies

2. Approval Bodies

  • Land falling within Scheme

  • Local Planning Scheme

    • Almost all land in state

  • Regional Scheme

    • In addition to LPS

  • Other approval bodies

    • Redevelopment Schemes (s.71 P&D Act)

    • Minister responsible for SCRM Act


3 approvals under mrs

3. Approvals under MRS

  • Clause 10 – general obligation

  • Clause 5 “responsible authority”

    • Different to “Commission”

    • Delegation under 16 of P&D Act

    • Clause 32 of MRS

    • Notice of resolution

      • Gov Gaz 19/12/2008 pp.5401-5457


3 approval under mrs cont

3. Approval under MRS (cont)

Current notice of delegation in Gov Gaz states all development on land zoned under MRS to be determined by LG except:

  • Land is subject to a resolution under cl.32

  • Land is a planning control area under s.112 of P&D Act

  • Land is within SCRM Act

  • LG is of opinion that the application is of state significance

  • Public works


3 approval under mrs cont1

3. Approval under MRS (cont)

  • Uses that must be referred to the WAPC under clause 32 of MRS

    • Development of Regional Significance

    • Development in Rural Zone

    • Poultry Farms

    • Development of Metropolitan Centres

  • Development in certain areas also referred to WAPC:

    • Stirling train station area; Kwinana Industrial area, etc.


3 approval under mrs cont2

3. Approval under MRS (cont)

Reserved land - PART II of MRS

  • Clause 13 - any reserved land

  • Clause 16 - land vested in public authority

  • Clause 18 - land not vested in authority

  • Clause19 - injurious affection


3 approval under mrs cont3

3. Approval under MRS (cont)

Zoned land – MRS PART III

  • Clause 24(1) approval of responsible authority required, subject to 24(2)

  • Clause 24(2) set out when approval not required under MRS:

    • Single dwelling or public works; and

    • Land is not subject to notice under clause 32

  • Clause 26 - approval under LPS is approval under MRS


3 approval under mrs cont4

3. Approval under MRS (cont)

Approval process – PART IV of MRS

  • Clause 28 – All MRS development applications to be submitted to local government

  • Clause 29 – LG to forward application to WAPC if:

    • Land is reserved or in the Swan DCA

    • Land is called in under cl.32


4 approval under lps

4.Approval under LPS

  • What is the difference between a local planning scheme (LPS) and development scheme?

  • Development schemes are now largely superseded by structure planning provisions in LPSs

  • What are the 4 mains types of development control used in LPSs

  • Incorporation of R Codes


4 approval under lps1

4.Approval under LPS

  • Requirement for approval in scheme (eg. MST cl.8.1)

  • Exempt development (MST 8.2 – note word ‘permitted’ can be confusing)

    • Interior works

    • Single dwelling

    • Home office

    • Fences (not retaining wall)


4 approval under lps cont

4.Approval under LPS (cont)

  • Formalities

    • Form (e.g. MST cl.9.1)

    • Plans (e.g. MST cl.9.2)

    • Fees (Part 7 of Planning and Development Regulations)


4 approval under lps cont1

4.Approval under LPS (cont)

  • What is the use applied for?

    • Check against uses in zoning table and definitions

    • Opinion may differ between LG and Applicant

    • May be more than one

  • What is the permissibility?

    • Check zoning table

    • Is there a discretion to refuse a ‘P’ use?

    • Is there a discretion to approve an ‘X’ use?


4 approval under lps cont2

4.Approval under LPS (cont)

Advertising

  • E.g. clause 9.4 of MST

  • Usually in case of a A (SA,AA) – (MST cl.4.3.2)

  • Also, ‘use not listed’ (MST 4.4.2(b))

  • Sometimes for ‘D’ or even ‘P’ use is there is community sensitivity


4 approval under lps cont3

4.Approval under LPS (cont)

Assessment

  • May be on going negotiations

  • 60 days to assess (MST 10.9.1)

  • Consultation with authorities (MST 10.1)

  • Matter to be considered (MST 10.2)

    • Provisions of scheme

    • Planning Policy (Local, State, Enviro)

    • OPP

    • Amenity of locality, compatibility

    • Submissions (residents/authorities)

    • Others…


4 approval under lps cont4

4.Approval under LPS (cont)

Determination

  • By Council or delegated officer (LG Act)

  • 3 possible outcomes (MST 10.3)

    • Approve without conditions

    • Approve with conditions

    • Refuse

  • 4th possibility? (MST 10.9)

  • Notification (MST 10.4)

  • Duration or approval (MST 10.5, 10.6)


4 approval under lps cont5

4.Approval under LPS (cont)

  • Can local government approve development on LPS reserve?


5 conditions

5.Conditions

  • Condition runs with land

  • Conditions must be imposed by same body who gave approve

    • i.e. Council can’t approve and then delegate to officers to impose conditions

  • Applicant can be prosecuted for non compliance (s.218 P&D Act)

  • Can be challenged by applicant in court or SAT


5 conditions continued

5. Conditions continued

Validity of conditions

  • A planning condition will be valid if

    • it has a planning purpose

    • it fairly and reasonably relates to the development

    • it is not so unreasonable that no reasonable planning authority could have imposed it; and

    • the condition is certain and final


5 conditions continued1

5. Conditions continued

  • What can local government do if conditions are not complied with or if approval is never sought?


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