January 2015 SUBMISSION ON PROPOSED PLANNING AND DEVELOPMENT (LOCAL PLANNING SCHEMES) REGULATIONS 2014
The Local Government Planners Association (LGPA) welcomes the opportunity to make a submission on the proposed Planning and Development (Local Planning Schemes) Regulations 2014 (the Regulations). As the principal planning association for local government planners in Western Australia, the Association (and the members it represents) is a key stakeholder potentially affected by the proposed Regulations.
The Association urges the Western Australian Planning Commission (WAPC) to consider the matters detailed below and undertake modifications to the draft Regulations to ensure the efficiencies being pursued through the ‘Planning Makes It Happen’ reform agenda are appropriately balanced with delivering a framework that focuses on proper and orderly planning outcomes.
The Association’s comments are summarised under the following broad headings with further detail outlined below:
- Local Planning Scheme Format
- Local Planning Scheme Reviews
- Amendments to Local Planning Schemes
- Structure Plans
- Local Development Plans
- Development for which Development Approval is not Required
- Developer Contributions
Local Planning Scheme Format (Schedule 1 and Schedule 2)
The Regulations separate Scheme text into two streams being ‘Schedule 1 – Model Provisions for Local Planning Schemes’ and ‘Schedule 2 – Deemed Provisions for Local Planning Schemes’.
The Association understands the ‘Deemed Provisions’ will replace relevant provisions in all local planning schemes upon gazettal of the Regulations, whilst the ‘Model Provisions’ will be introduced as Local Governments update local planning schemes.
Clarification is required on the format of future local planning schemes and whether the intent is to operate with two separate documents or if the Model and Deemed Provisions are to be integrated into a single document. It is essential that the Deemed Provisions are both visible and accessible so as to not complicate their understanding and application by having a number of documents to consult.
For example, the Model Provisions includes general and land use definitions as two separate lists at the end of Schedule 1, whilst the Deemed Provisions disperses definitions throughout the schedule as they apply to each relevant section.
In the interest of providing greater clarity and reducing the possibility for misinterpretation, definitions should be consolidated and located in a single point of reference. If the WAPC chooses to retain a set of general and land use definitions as model provision, separate to deemed definitions, at the very least the deemed definitions prescribed in Schedule 2 should be consolidated into a single list within the document.
- Clarify the intended format of local planning schemes.
- Consolidate definitions in a single point of reference.
Local Planning Scheme Reviews (Part 6, Division 1)
The proposed local planning scheme review provisions prescribes timeframes for local governments to review and report to the WAPC with a recommendation to retain, amend or replace their local planning scheme.
The Association notes that whilst timeframes are imposed on Local Governments, there are no timeframes attached to the WAPC’s consideration of Local Government reports on scheme reviews. The current scheme review/amendment process often experiences delays following Local Government adoption and referral to WAPC. For true efficiencies to be realised, all participants in the process must be accountable via prescribed timeframes.
In addition to the introduction of a timeframe for WAPC’s consideration of scheme review reports, the Association recommends the WAPC undertakes steps to ensure the relevant Department of Planning department be adequately resourced to adequately response to the significant increase in the number of scheme review reports that will require State Government review and decision making.
- Include a timeframe for WAPC’s consideration of a Local Government scheme review report.
- Increase Department of Planning resourcing to manage influx of scheme review reports.
Local Planning Scheme Amendments (Part 5, Division 1)
The Association supports the classification of local scheme amendments into basic, standard and complex streams, however further clarification is required around this process.
The draft Regulations require provisions to clarify which authority determines the applicable stream of a proposed local scheme amendment and the process in which this determination is made.
Further, whilst the draft Regulations provide some guidance through its definitions, additional criteria is required for deciding between basic, standard and complex scheme amendments.
- Introduce provisions to identify the determining authority of basic, standard and complex scheme amendments.
- Provide additional criteria for deciding between basic, standard and complex scheme amendments.
Structure Plans (Schedule 2, Part 4)
The draft Regulations empower the WAPC as the sole decision making authority with respect to all structure plans and provides the ability for the WAPC to determine a structure plan without the approval or advice of Local Government. It is important to note that most structure plans are prepared by third party proponents (i.e. private developers) and not local governments. As such, it is critical that Local Government remain involved in the assessment of structure plans so as to ensure local issues are properly considered and addressed through the structure planning process.
Clause 19 suggests that the WAPC may recover costs from Local Government that are incurred in obtaining additional technical information on structure plans. The Association believes this clause is misguided and fails to recognise the fact that the majority of structure plans are prepared by third party proponents (landowners, private developers etc) and not local governments. Additional scope should be included within the draft Regulations for WAPC to obtain additional information/technical advice (or recover costs) from a third party proponent, if relevant.
Local structure plans typically identify zones and reserves which are given statutory effect through a provision in a local planning scheme giving the details set out in a structure plan the full force and effect of the scheme. The draft Regulations do not include an equivalent provision and merely requires decision making to have due regard to details of a structure plan.
This creates issues for Local Governments in assessment of development proposals in that absolute certainty around zoning, density coding, and land use permissibility will be removed under the draft Regulations. This also creates issues for Local Governments in providing accurate information to landowners and rate payers.
It is hoped that the WAPC does not intend each structure plan be coupled with a scheme amendment to identify relevant zones and reserves, as this will result in an inefficient, unnecessary parallel process and undermines the specific purpose of structure planning.
Clause 20 provides a right of review for a ‘person’ where the WAPC refuses to approve or approves a structure plan subject to modifications, however this right of review is not extended to local
governments who prepare a structure plan pursuant to clause 14(2). In the interest of equity and ensuring Local Government retains an ability to review a decision made by WAPC, It is imperative that the same right of review extended to landowners under clause 20 is equally afforded to Local Government.
Further, whilst the draft Regulations focus on process and associated timeframes of structure plans, it is important that these administrative matters are equally balanced with requirements that ensure useful structure plans that provide quality urban design are prepared and approved.
- Amend the draft Regulations to retain Local Government in the decision making process.
- Revise clause 19 to widen scope to include third party proponents.
- Amend the draft Regulations to empower structure plans, once endorsed, to have the same force and effect as a local planning scheme.
- Revise clause 20 to extend right of review to Local Government.
- Ensure the draft Regulations are paralleled with requirements to provide quality urban design outcomes in structure planning.
Local Development Plans (Schedule 2, Part 5)
The draft Regulations empower the Local Government as the determining authority for local development plans, yet clause 27 (1) requires a local development plan to be prepared in a manner and for approved by the Commission.
Local Development Plans (LDPs) are typically confined to localised matters and as such, the over involvement of the WAPC in such matters is not required. It would be more appropriate for a local development plan to be prepared in a manner and form approved by the Local Government (in lieu of the WAPC), particularly as the Local Government is the determining authority on such matters.
Clause 32 states that development approval is not required for development that is in accordance with an approved local development plan. It is important to note that whilst development may be in accordance with the built form standards set out in a local development plan, a discretionary decision (via a development approval) may still be required with respect to the land use. Whilst the intent of the provision may be to streamline development approvals, it should be approached with caution such that the provision does not inadvertently remove Local Government’s discretionary decision making ability on land use.
- Amend the draft Regulations to require local development plans being prepared in a manner and form approved by the Local Government (in lieu of the WAPC).
- Amend the draft Regulations to retain Local Government’s discretionary decision making powers on land use (via a development approval).
Development for which Development Approval is not Required (Schedule 2, Part 6)
Clause 36(1)(d) exempts single dwellings (and other ancillary structures associated with single dwellings) from requiring development approval where the proposal accords with the deemed-to-comply provisions of R-Codes. By extension, this clause therefore requires development approval for single dwellings that do not accord with the deemed-to-comply provision of the R-Codes and are seeking a design principle based assessment.
The Association supports the intent behind the provision to improve efficiencies in the planning system and note that some local planning schemes currently require development approval for ‘compliant’ single dwellings. We note however, that some existing Schemes, (for example, the City of Swan Local Planning Scheme No. 17 (LPS 17) and City of Wanneroo District Planning Scheme No. 2 (DPS 2)), exempt single dwellings from requiring development approval, even when a design principle based assessment is sought. In both instances, the City of Swan and City of Wanneroo exercise discretion through the design principle assessment as part of the Building Permit application. This flexibility currently operates effectively and efficiently and the proposed deemed provision has the potential to introduce an unnecessary layer in the Local Government approval process.
Clause 36(2) states that despite the various proposals exempt from development approval under clause 36(1), development approval may still be required for certain works carried out in a bushfire prone area. Clarity is required on both the type of works and instances in which a development approval is required under this clause as the provision as currently drafted may lead to inconsistent and misapplication of the provision.
- Amend clause 36(1)(d) to exempt single dwellings (and their ancillary structures) from development approval (including deemed-to-comply and design principle assessed single dwellings), subject to a discretionary decision being exercise as part of a subsequent process (ie. Building Permit) in the event of deemed-to-comply provisions not being met.
- Clarify the types of works and under which circumstances a development approval is required for development within a bushfire prone area.
Developer Contributions (Schedule 2, Part 10)
The Association notes that the review of State Planning Policy 3.6 (SPP 3.6) is being undertaken concurrently with the progression of the draft Regulations and that the outcomes of the SPP review will be incorporated in the final version of the Regulations. This being the case, it is critical that any proposed amendments to SPP 3.6 are released for public comment and their integration into the draft Regulations be clearly articulated before the Regulations are gazetted.
Part 10 does not acknowledge existing Development Contribution Plans (DCP). It is essential that the draft Regulations allow for the continued implementation of existing DCPs that have been operating successfully for some time as it will provide certainty for existing participants and avoid unnecessary replication of process.
Further, it is impractical to require Local Governments under clause 55(2) to provide all landowners with a copy of a DCP report. This clause should be amended to require the Local Government to make the DCP report available for viewing (online and/or at Council offices).
Clause 57 outlines a valuation process that the Association believes will be very difficult and costly to administer and may actually result in higher cost contributions. It may be more appropriate to use a panel of valuers to determine land values for inclusion in a DCP to ensure land values are equitable for all landowners throughout a DCP area.
The events under which a cost contribution is to be paid (clause 58) does not include all types of applications such as subdivision clearance requests, building permits or the culmination of the DCP’s validity. Accordingly, the scope of clause 58 should be widened to ensure all applicable events are covered for the earliest payment of a DCP cost contribution.
- Ensure public consultation is undertaken on modifications to SPP 3.6 and the implication on the draft Regulations.
- Incorporate a provision in the draft Regulations that allows for the continuation of existing Development Contribution Plans.
- Amend clause 55 to require Local Governments to make a copy of a Development Contribution Plan available for viewing (in lieu of providing a copy to each landowner).
- Review the process outlined in clause 57 by which valuation of land is undertaken.
- Increase the scope of events in which a cost contribution is payable under clause 58.
The LGPA appreciates the opportunity to review and provide comment on the proposed Planning and Development (Local Planning Scheme) Regulations and would welcome the opportunity to meet and discuss further.
Local Government Planners Association