COVID-19: WA Minister acts swiftly to provide exemptions to planning requirements

Within a week of introducing extraordinary powers to respond to the impacts of COVID-19, the Western Australian Minister for Planning has issued a notice exempting a broad range of planning requirements under local planning schemes. 

The exemptions remove a number of regulatory constraints in an effort to support businesses in adapting to the health and economic impacts of COVID-19. While these measures will provide some relief, the exemptions are temporary in nature and are subject to conditions.

On 4 April 2020, the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) were amended to allow the Minister for Planning to grant exemptions to ‘planning requirements’ in response to the State of Emergency which came into effect on 16 March 2020 in relation to COVID-19.

The Minister has acted swiftly to exercise these new powers and granted a suite of temporary exemptions as set out in a notice signed on 8 April 2020 (Notice). While a broad range of exemptions have been granted, and the terms and conditions of the Notice run to 10 pages, three key areas can be identified:

1. Exemptions which facilitate approved projects to be put ‘on hold’;
   
   
2. Exemptions dealing with the cash-flow impacts of existing development approvals; and
   
   
3. Exemptions to reduce ‘red tape’ to ensure that existing developments can be ‘repurposed’ and that potential development is supported in responding to the impacts of COVID-19.

Exemptions which allow projects to be put ‘on hold’

The Notice provides for an extension to the deadline to substantially commence development. In this regard, development applications decided on, or before, the date upon which the State of Emergency declaration ceases to have effect are exempt from the requirement to substantially commence development (typically, two years). 

For those development approvals, a new deadline for substantial commencement is substituted, being the original deadline plus a further two years. This extension will give developers some relief as it will avoid the need for further development approvals if the impact of COVID-19 means projects need to be delayed for a longer period currently permitted by the existing approval.

Exemptions dealing with cash flow issues

The Notice exempts:

• the requirement to provide car parking facilities for non-residential development, provided the parking shortfall is no more than 10 bays; and
  
  
• the requirement under an existing development approval to make ‘cash-in-lieu’ payments relating to a shortfall of parking for non-residential developments.

Importantly, these exemptions only defer existing obligations. Once the exemption expires, proponents must provide the required parking facilities or make the cash-in-lieu payment (as applicable).

Exemptions to reduce ‘red tape’ 

Most significantly, the following land uses and associated temporary works are now exempt from the requirement to obtain development approval subject to various specified conditions which must be satisfied in order for the exemption to apply:

1. Medical or health-related activities which respond to the COVID-19 pandemic;
   
   
2. Shops, restaurants / cafes; convenience stores (excluding those selling petroleum products); consulting rooms and offices;
   
   
3. Industry (as well as ‘Industry-Light’), trade supplies, warehouse / storage and transport depots;
   
   
4. Home businesses and home occupations;
   
   
5. Commercial vehicle parking; and
   
   
6. Temporary workers’ accommodation.

The Notice also exempts the requirement to obtain approval to change existing approved signage and for approved hotel, tavern, restaurant / café or other similar venue to prepare food for consumption on or off the premises.

In relation to new development applications, local governments will not be required to make documents available for public inspection at their offices provided that the documents are published on the local government website. This will assist insofar as social distancing measures limit local government services.

Not forever

The exemptions provided by the Notice will continue in force until 1 May 2023, unless otherwise stated in the Notice. In particular, the majority of exemptions will expire 90 days after the date upon which the State of Emergency Declaration ceases to have effect, or is revoked. Upon the relevant expiry deadline:

• any development undertaken in reliance of the exemption must cease unless otherwise approved; and
• where compliance with a planning requirement is otherwise deferred by virtue of an exemption, performance must occur.

The Minister’s swift action in granting this suite of exemptions accords with her request for local governments to promote development and for local businesses to be afforded every opportunity of support to withstand the economic headwinds ahead.

While the Notice may benefit developers, its usefulness will depend upon the extent to which any relief can be factored into existing contractual commitments, commercial necessity and the matrix of other approvals which may still be required.

Importantly, the available exemptions only extend to applicable planning requirements under a local planning scheme, and do not extend to approvals necessary under building, health, environment and other legislation. They are also subject to detailed conditions which must be satisfied before the exemption is available. 

Therefore, before relying upon the Notice, careful consideration should be given as to whether the particular circumstances in question fall within the terms of the exemption so as to avoid any breach of applicable legislation which could incur significant penalties.