Can zoning objectives be applied flexibly?

SAT has confirmed that a development proposal can be approved even where it is inconsistent with the objectives of the relevant scheme zone – particularly where the proposed use is supported by objectives elsewhere in the planning framework. 

Balancing the conflicting considerations for and against a development proposal is perhaps the most difficult part of planning decision making. Decision-makers in this State are tasked with assigning weight to the numerous matters which are required to be taken into account under clause 67 of Schedule 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (Deemed Provisions). The difficulty is, however, that the weight to be given to each clause 67 consideration is not prescribed, and the decision-maker must ultimately decide which matters should take precedence over others.

Senior Member Willey of the State Administrative Tribunal (SAT) assumed this task in the recent decision of Brikmakers (A Division of BGC (Australia) Pty Ltd) and City of Swan [2021] WASAT 66 (Brikmakers). Brikmakers involved an appeal of the City of Swan’s (City) decision to refuse the applicant’s proposed extractive industry and consequential filling on Lots 5 and 6 Great Northern Highway, Upper Swan (Land). The Land is zoned ‘Landscape’ under the City’s Local Planning Scheme No. 17 (LPS17) and the proposed use, being an ‘A’ use, is capable of approval in that zone subject to advertising and the City exercising discretion.

The City’s primary reasons for refusal were that the proposal was unsatisfactory from a noise, dust and visual amenity perspective, and critically, that the proposal was inconsistent with the Land’s ‘Landscape’ zoning.

In reviewing the matter, the SAT concurred that the extractive industry proposal would indeed have adverse impacts on amenity (particularly visual amenity) and is not consistent with the objectives of the Landscape Zone - which focus on protecting the landscape qualities of the locality. Notwithstanding that, the SAT considered that the Land’s identification as a resource extraction area under ‘State Planning Policy 2.4 - Basic Raw Materials’ (SPP 2.4) should be given significant weight as this indicates that, despite being contradictory to the zoning objectives, the Land is appropriate for the proposed use.

On that basis and applying the principles of ‘orderly and proper planning’, the SAT, allowed the application for review.

Lavan comment

The decision in Brikmakers is useful in identifying the opportunities for pragmatic planning decisions when the merits support it. In particular, the decision confirms that:

A development is not required to meet all, or indeed any, of the objectives of a zone in order to be approved; and

The treatment of a site in the State’s planning framework, including State Planning Policies, is to be given a significant amount of weight in determining whether a proposal is appropriate in a given locality.

If you are in the process of applying for approval for a proposal that is not consistent with the objectives in the relevant local planning scheme, but is consistent with a wider policy position, we would love to hear from you. Please do not hesitate to contact one the experienced members of Lavan’s Planning and Environment Team.

Disclaimer – the information contained in this publication does not constitute legal advice and should not be relied upon as such. You should seek legal advice in relation to any particular matter you may have before relying or acting on this information. The Lavan team are here to assist.