Planning Exemptions during COVID-19 commence

Key Issues:

• On 8 April 2020, the Western Australia (WA) Minister for Planning exercised the state of emergency powers under the Planning and Development (Local Planning Schemes) Regulations 2015 (LPS Regulations) and issued a Notice of Exemption to provide specific guidance to proponents and local government on a range of temporary exemptions in response to the COVID-19 pandemic.
• The exemptions remove barriers within the planning system to ensure a flexible and prompt response during the COVID-19 pandemic by supporting businesses, guaranteeing the provision of essential services and facilitating economic activity.
• The exemptions under the Notice of Exemption include:

1. A blanket exemption to all proponents required to ‘substantially commence’ development under development approvals within specific time limits, extending the original deadline for an additional two years;
2. Proponents for approvals for restaurants/cafes/hotels/taverns and similar uses are exempt from the requirements to obtain approval for food to be prepared for consumption off the premises (i.e. take away and/or home delivery); and
3. Local government is exempt from advertising and consulting time limits to prepare or amend a ‘change of use’ local planning policy in order to assist them in responding to the COVID-19 pandemic.

On 3 April 2020, the WA Minister for Planning announced amendments to the LPS Regulations whereby the WA Minister for Planning was authorised to temporarily override certain local planning scheme and development approval requirements in circumstances where a state of emergency had been declared. An article on the amendments to the LPS Regulations was published by HopgoodGanim Lawyers on 7 April 2020 and can be accessed here.

Exemptions to planning requirements in circumstances where a state of emergency has been declared 

On 8 April 2020, the Minister for Planning exercised the state of emergency powers under the LPS Regulations and issued a Notice of Exemption to provide specific guidance to both proponents and local government on a range of temporary exemptions under the LPS Regulations in response to the COVID-19 pandemic. The exemptions are intended to remove barriers within the planning system to ensure a flexible and prompt response during the COVID-19 pandemic by supporting businesses, guaranteeing the provision of essential services and facilitating economic activity. The Notice of Exemption includes the following temporary exemptions:

1. An exemption from the requirement to obtain development and works approvals associated with the following uses:

• medical or health related uses that are required in response to the COVID-19 pandemic;
• shops;
• restaurant/café;
• convenience store (excluding petrol stations);
• consulting rooms; 
• office;
• industry;
• industry light;
• trade supplies;
• warehouse/storage; 
• transport depot; 
• home business; and
• home occupation.

The above exemptions are not a blanket exemptions and are conditional on a variety of matters including the land use being located in a particular zone, the use not being prohibited under a local government scheme and in some instances where no permanent structures are to be constructed. Careful consideration must be given to whether a development or works approval falls within one of these exemptions. 

2. An exemption also applies in respect to the requirements to comply with a condition of a development approval associated with a restriction on the loading and unloading times for delivery of good and/or petroleum products. This exemption assists in maintaining a continuous supply of goods and fuel.
3. An exemption from the requirement for compliance with consulting and advertising time limits reduces the time required for the preparation or amendment of a ‘change of use’ local planning policy in order to assist local government in responding to the COVID-19 pandemic.
4. In respect to development applications, a blanket exemption applies to all proponents required to ‘substantially commence’ a development within a specified time, giving all proponents additional time; specifically, a development must be substantially commenced within the original deadline plus an additional two years. This exemption is intended to reduce the number of requests to local government for extensions to the term of a proponent’s existing development approval due to the COVID-19 pandemic. It also provides proponents time and flexibility to commence development without having to re-apply for approval in circumstances where delays in construction is inevitable as a result of labour and resource shortages due to the COVID-19 pandemic. 
5. In circumstances where development applications are required by a local government planning scheme to be referred to an external authority (for example, to a Development Assessment Panel) the local government is exempt from compliance with the advertising requirements and consultation time frame as required under the Deemed Provisions in schedule 2 of the LPS Regulations. The Exemption Notice provides local government with an additional 30 days for determining such development applications lodged on or after 1 March 2020. This exemption recognises the extraordinary workload and additional requirements experienced due to the COVID-19 pandemic.
6. Where premises are approved for use as a hotel, tavern, café, restaurant or other similar uses, the proponents are exempt from the requirements to obtain approval for food to be prepared for consumption off the premises. A condition of development approval may require a hotel, tavern, café, restaurant or other similar uses to only prepare and serve food at their premises; i.e. not permitting them to provide takeaway or home delivery, however, as a result of the social distancing measures due to the COVID-19 pandemic these uses are no longer permitted to serve food at their premises therefore this exemption allows these food and beverage businesses to continue to operate by providing takeaway and or home delivery services.