Local Planning Policies – Friend or Foe?

Local Planning Policies (LPP) are a useful mechanism by which local governments can guide the exercise of discretion in decision making. In this sense, they can provide developers and landowners with greater certainty about how their proposal is likely to be assessed and comfort to decision makers as to the ambit of their discretion.

However, LPPs can be easily implemented with limited checks and balances and as a consequence, there is a growing concern around the prevalence of local governments using LPPs in a manner exceeding their intent.

Clause 4 of Schedule 2 to the Planning and Development (Local Planning Schemes) Regulations 2015 (Deemed Provisions), sets out the procedure for the implementation of LPPs and provides that LPPs generally only need to be advertised for submissions and adopted by the local government before they come into effect.  Relevantly, it is only in the context of a draft LPP being at variance with a State Planning Policy (SPP) that comment from the WAPC is required.

By comparison SPPs, prepared by the WAPC, and local planning scheme amendments prepared by local government, need to undergo rigorous assessment involving public consultation and be approved by the WAPC and gazetted by the Governor before coming into effect. Despite such procedural differences, both instruments have arguably the same standing in terms of the level of weight that is to be applied to them by a decision-maker. That is, by virtue of clause 67 of the Deemed Provisions requiring both instruments to be given ‘due regard’.

It follows that local governments in ‘adopting’ LPPs may take advantage of their ‘due regard’ status and as a consequence, influence the interpretation of a local planning scheme in a manner that may differ from the originally intended, and scrutinised, interpretation.

This concern is made more problematic due to the notion of ‘seriously entertained’ planning proposals. In the State Administrative Tribunal (SAT) decision of Nicholls and Western Australian Planning Commission1, the SAT found that a decision-maker is to apply weight to draft policies, including draft LPPs, where that draft policy is ‘seriously entertained’. In that decision, Judge Parry reasoned that a draft policy may be ‘seriously entertained’ where its approval is ‘certain’ and ‘imminent’. In respect of draft LPPs, the threshold for meeting such criteria is unclear, though it is safe to assume that the criteria is met if the LPP is simply advertised.  This means that draft LPPs may influence the interpretation of a planning scheme, without undergoing rigorous assessment and counter to the intention of the underlying planning framework.

A recent example of this potential consequence is found in the City of Nedlands in circumstances of LPPs being prepared for certain precincts recently rezoned for higher density developments along transport corridors.  The intent of the draft LPPs is to significantly decrease the allowable height under the gazetted SPP (7.0 and 7.3).  Whilst it is not clear at this stage what position the WAPC will adopt in relation to the draft LPPs, a degree of uncertainty will exist for both decision makers and developers as the whether or not the draft LPPs will be ‘seriously entertained’ and the subject of ‘due regard’ under the Deemed Provisions, if the LPPs are indeed advertised and adopted.

Lavan comment

LPPs are a helpful way of communicating how decision makers will assess a development proposal and what will be considered.

However, to ensure consistency with other planning instruments and to protect the interests of residents and businesses in any given local government area who are reliant upon the provisions of a local planning scheme, LPPs should be subject to a more stringent assessment process similar to that required for SPPs and planning scheme amendments.

Where the content of an LPP appears to exceed the intent of instrument, there may be an argument that it should be given limited weight in decision making.  The circumstances will however vary on the extent and nature of the variation from gazetted SPPs.

If you have been impacted by an LPP (whether draft or approved) and need assistance, we would like to hear from you. Please feel free to contact any member of our experienced 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.

[2005] WASAT 40