SAT Ruling – What the Shalom House decision means for local planning schemes and approvals in WA

SAT Ruling – What the Shalom House decision means for local planning schemes and approvals in WA

The State Administrative Tribunal (the Tribunal) handed down a decision last month, which has major implications for local planning in Western Australia.

In the case of West Australian Shalom Inc. v City of Joondalup [2023] WASAT 63, (the Matter) questions were raised as to whether development approval was required under the Metropolitan Region Scheme (MRS), for proposals that do not require approval under their local planning scheme.

Here is a brief summary of the Matter, as well as more information from the Western Australian Planning Commission (WAPC) concerning issues of exemptions.

Facts of the case

The Matter dealt with an application for an occupancy permit under section 49 the Building Act 2011 (WA) (the Building Act). The permit was lodged by West Australian Shalom Inc. (the Applicant) and sought to permanently change the use of land owned in Craigie, Western Australia.

The Applicant sought to change the use of land from an aged care facility to what it termed as a ‘recovery accommodation facility’. The City of Joondalup (the Respondent) refused the occupancy permit, as they were not satisfied the Applicant met approval requirements under the Planning and Development Act 2005 (WA) (PD Act).

When reviewing the case, The Tribunal stated the Respondent believed approval under the Metropolitan Region Scheme (the MRS) was needed for a proposed change in use. Without this approval, the Respondent was not satisfied that Building Act requirements had been met.

The Applicant argued that no approval under the MRS was required, which meant the Respondent was incorrect in its decision to refuse the occupancy permit.

Key issue

The Tribunal and parties to the Matter agreed that a number of issues needed to be addressed within the case, including the critical question:

‘Where development approval is expressly not required for development under a local planning scheme (and specifically, under Sch 2, cl61 of the Planning and Development (local Planning Schemes) Regulations 2015 (WA) (Deemed Provisions), is this to be construed as being an approval given by the local authority for the purposes of cl 26(1) of the MRS?’

In response to this issue, the Tribunal said that no, being an exempt development is not the same, and does not have the same effect as an approved development.

Clarity for decision makers

In response to the Matter, the WAPC released a position statement (the Statement) to provide clarity around MRS exemptions.

“The Commission has considered the SAT decision and released this position statement to provide clarity to decision makers while the State Government progresses a number of proposed amendments to the MRS,” WAPC Chairman David Caddy said.

The Position Statement, titled Exemptions under local planning schemes and approvals under the Metropolitan Region Scheme, is designed to assist local government with deciding if development approval is needed under the MRS for proposals that do not need approval under local planning schemes.

Key points from the WAPC Position Statement

The intent of the Statement is to …provide greater clarity concerning the issue of exemptions under local planning schemes and approvals under the MRS.

Here are the key takeaways:

• The WAPC is aware of a potential anomaly involving minor developments that are exempt from development approval under a local planning scheme, but still require development approval under the MRS.
• This anomaly is due to the MRS text having no wholesale updates since its publication in 1963.
• A development approval granted under a local planning scheme is considered an approval under the MRS. However, an exemption from development approval is not considered to be an approval.
• The Statement goes onto clarify the different roles of region versus local planning schemes under the PD Act, as well as established planning law principles.
• All of these factors need to be considered when addressing whether development approval is needed under the MRS, where a proposal is exempt under its local planning scheme.
• Region planning schemes, including the MRS, provide a ‘general blue print’ and are intended to deal with issues of State or regional importance under the PD Act.
• Not every activity relating to land constitutes ‘development’ within the PD Act, and a degree of commonsense is required.
• With regard to regional issues of the MRS, the de minimis principle should be considered when determining if a proposal is a ‘development’ that requires approval.
• Head here for the full Statement.

Exemptions

The Statement applies to the WAPC, when it is in the position of decision maker, as well as other decision makers with delegated authority from the WAPC. The Statement is not relevant in matters where the MRS does not apply. This includes:

• The Peel Region Scheme
• The Greater Bunbury Region Scheme
• The Swan Valley Planning Scheme
• Improvement schemes
• Metropolitan redevelopment schemes
• Local planning schemes where there are no region schemes.

In cases where the MRS is not applicable, the Statement also does not apply to development applications made under clause 29 that are within an MRS reserve, within or abutting the Swan development control area or called-in to the WAPC under clause 32.

For more detailed information on exemptions please head here.

What’s next

The WAPC is currently drafting a revised version of the MRS text. The revision will address the Matter by taking a similar approach to the one adopted in the Peel and Greater Bunbury Region Schemes. This means development approval under the MRS will not be required unless the WAPC specifically directs it.

When revising the MRS text, WAPC will consider if transitional provisions are required to deal with use rights for minor developments exempt from approval under local planning schemes, which were not necessarily exempt from MRS approval requirements at the time of their commencement.

Caddy reiterated that decision makers should adopt a commonsense approach when considering proposals in the interim.

“Until the MRS amendments come into effect, I encourage local governments and decisionmakers to continue to use common sense when considering proposals and whether they meet the requirements for consideration under the MRS,” he said.

“If you have a question about a specific scenario, please contact the Department of Planning, Lands and Heritage.”

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