In a decision with potentially far-reaching consequences, the State Administrative Tribunal (SAT) in Western Australian Shalom Group Inc and City of Joondalup [2023] WASAT 63 has ruled that development (in the Perth area) that is exempt from the need for development approval under a local planning scheme is not exempt from the need for development approval under the Metropolitan Region Scheme (MRS), save for in relation to single dwellings.
This effectively means that, with the exception of single dwellings that satisfy the deemed-to-comply requirements of the R-Codes, there is no type of development that is entirely exempt from the need for development approval, if carried out in the Perth area.
The matter that was before the SAT involved an application for an occupancy permit under the Building Act 2011 (WA), for an existing building that was proposed to be used as a “recovery accommodation facility”. A statutory pre-condition to the grant of an occupancy permit is that any approval required under the Planning and Development Act 2005 (WA), which includes development approvals, must already be in place. Subject to some exceptions, development in the Perth area requires development approval under both the relevant local planning scheme and the MRS. Whilst the proposed use in this matter was exempt from the need for development approval under the relevant local planning scheme, the local government refused the application for an occupancy permit, on the basis that it believed a development approval under the MRS was still required but had not been obtained. The proponent, on the other hand, was of the understanding that the development approval exemption at local level effectively carried through to the MRS at a regional level.
The SAT ruling on this issue was focussed primarily on clause 26 of the MRS, which essentially provides that, subject to some exceptions, a development approval that is granted under a local planning scheme with respect to zoned land is taken to also be a development approval granted under the MRS. The proponent argued that, for the purposes of clause 26 of the MRS, an exemption from the need for development approval should be taken as being the equivalent of a development approval having been granted. The SAT disagreed with this submission and found that an exemption is not the same as a grant of development approval. The SAT therefore concluded that whilst a given development may be exempt from the need for development approval under a local planning scheme, the development will still require development approval under the MRS (save for in relation to a single dwelling).
Notably, the SAT in its reasons did not provide any detailed analysis of clause 21 of the MRS (it is mentioned only in a single paragraph). Clause 21 of the MRS states that where any provision of a local planning scheme is at variance with any provision of Part III of the MRS (which deals with development approvals for zoned land), the provisions of the local planning scheme prevail. Bearing in mind that local planning schemes incorporate the standard exemptions in clause 61 of the “deemed provisions” in Schedule 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA), it would seem arguable that if a local planning scheme says that something is exempt development, but the MRS says that the same thing requires development approval, then the local planning scheme exemption prevails and MRS development approval would not be required on that basis. The SAT however disagreed with that argument and held that “this is not a case where there is a variance between two schemes”, because the position is instead that the local planning scheme “provides an exemption for a particular development in circumstances where the MRS does not”.
Absent an amendment to the MRS, a successful appeal of the SAT decision or a contrary ruling on the same legal issue by a superior court (all of which would take some time to happen, if they occur at all), local governments, proponents and planning consultants will now need to proceed on the understanding that development approval under the MRS is required for all development on privately-owned zoned land in Perth, save for in relation to single dwellings, even where the development is exempt from the need for development approval under a local planning scheme.
One example of where this SAT ruling will have significant consequences relates to changes of use involving permitted land uses. In particular, a change of use to a land use that is a permitted “P” use in a local planning scheme zoning table has traditionally been understood as being entirely exempt from the need for development approval. This scenario may apply to something as simple as existing premises in a town centre being converted from an office use to a shop use (or vice versa). Whilst such a change of use would still be exempt from the need for development approval under the local planning scheme (assuming the new use is a “P” use in the zoning table), as a consequence of the SAT decision, the proponent will now need to apply for and obtain MRS development approval before changing the use (and before obtaining an occupancy permit).
The same logic will apply to any other category of development that is ordinarily exempt from the need for development approval under a local planning scheme, including in relation to demolition works, internal building works and the erection of signs. Strictly speaking, as a consequence of the SAT decision, all such minor development will now require development approval under the MRS in order to lawfully proceed and prior to any occupancy permits (if required) being granted.
The SAT ruling in relation to the need for MRS development approval may also put the legal validity of some already authorised or implemented developments at risk. In particular, there are examples of developments that have some degree of opposition, but have nevertheless proceeded based upon exemptions from the need for development approval under a local planning scheme. Any occupancy permit granted under such circumstances would now be potentially liable to third-party challenge by way of judicial review in the Supreme Court, if an MRS development approval was strictly speaking required, but never obtained. It should be acknowledged though that Supreme Court judicial review has a limitation period of 6 months and certiorari (to quash a decision) is a discretionary remedy.
Whilst the position is not yet known, the consequences of this SAT ruling could potentially be the impetus for a long overdue overhaul of the MRS text, which is arguably outdated. Indeed, the MRS is described in the SAT decision as being “a product of its time”. For example, it may be appropriate for new clauses to be inserted into the MRS to explicitly say that any development that is exempt from the need for development approval under a local planning scheme is taken to also be exempt from the need for development approval under the MRS (this could potentially be expressed as having retroactive effect).
Please do not hesitate to contact us if you have any questions in relation to this SAT decision or in relation to development approval requirements generally.
