Development in bushfire prone areas - SAT adopts flexible application of State Planning Policy 3.7

In the recent decision of Bunnings Group Limited and Presiding Member of the Metro North West Joint Development Assessment Panel1, in which Lavan acted for the Applicant, the State Administrative Tribunal (SAT) adopted a flexible application of State Planning Policy 3.7 – ‘Planning in Bushfire Prone Areas’ (SPP 3.7) to approve a proposal for development in an area with a Bushfire Attack Level Flame Zone (BAL-FZ) and 40 (BAL-40) rating.

The principal issue in the proceeding was whether the Applicant should be permitted to extend an existing warehouse into the area identified as BAL-FZ and BAL-40 given that SPP 3.7 contains a presumption against approval in such circumstances (which was the reason for the Respondent’s initial refusal of the proposed extension).

The SAT

in making its decision had regard to the merits of the proposal and concluded that it represented “exceptional circumstances” where strict, inflexible application of the policy would fall into the ambit of an error of law.

In particular, the SAT recognised that although part of the proposed extension falls into the BAL-FZ and BAL-40 area, the proposed extension was to be built to a far superior construction standard than the approved existing development on the site and represents a safer alternative.

Accordingly, the SAT found that the merits of the proposal justified a departure from the strict application of the presumption against development in SPP 3.7.

The SAT’s decision in this matter contradicts the historical approach adopted by decision makers whereby proposals are often refused as a result of a strict application of policy. Moreover, the decision formally highlights the limitations of SPP 3.7 specifically, which is targeted at residential development and fails to adequately cater for commercial development located in a metropolitan environment. This is particularly evident in circumstances where options for siting a commercial proposal are limited by the form of an existing development undertaken prior to the introduction of SPP 3.7.

It will be interesting to see whether the SAT’s decision will be the first of many to adopt a flexible application of policy in circumstances that cogent reasons exist to do so or will guide the State in the recently announced review of the bushfire policy framework.

If you have a development that requires a flexible application of policy and are unsure of how to progress, we would like to hear from you. In addition, if you have any questions in relation to any aspect of the development, please call a member of our experienced planning 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.
AUTHOR
Paul McQueen
General Counsel Partner
AUTHOR
Craig Wallace
Partner
AUTHOR
Alex McGlue
Special Counsel