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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?