New planning regulations – development approval for an X use?

A lot of the upcoming amendments to the regulations are procedural in nature and will not have a major impact on how the Western Australian planning system currently works.  There are however a handful of significant changes to the regulations that planning professionals should be aware of before they come into force.

One noteworthy change is that the Deemed Provisions in Schedule 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regs) will now address the topics of zoning and land use permissibility, albeit only to a limited extent.  The Deemed Provisions are of course incorporated into every local planning scheme in Western Australia.  Accordingly, these changes will apply in every local government area.

Relevantly, the Deemed Provisions will now address the topic of non-conforming land uses.  In simple terms, a non-conforming land use is a land use that lawfully received development approval in the past, but due to subsequent changes in zoning, would be a prohibited land use now and incapable of receiving development approval if applied for today.  Generally, local planning schemes protect the continued operation of non-conforming land uses.

The new clause 67(1) of the Deemed Provisions will say that development approval cannot be granted on an application for a prohibited “X” use in a local planning scheme, unless the development relates to land that is being used for a non-conforming use and the proposed use of the land would be “less detrimental” than the non-conforming use.

This provision essentially says that if a given site is being used for some non-conforming land use, then development approval can be granted for some other “X” use in the local planning scheme, so long as that proposed use would be less detrimental than the existing use.  Notably, this provision is not confined to modifying or extending an existing non-conforming use and contemplates changes from one prohibited land use to another.

Given its application to every local government area in Western Australia, this new provision may give rise to significant development opportunities in respect of sites that are currently being used for non-conforming land uses.

By way of an example, a warehouse may have received development approval back when a given area was zoned “light industrial”, but the area has since become more urbanised and has been recently rezoned to “mixed use”.  It is possible that a land use such as “service station” could be a prohibited “X” use under that “mixed use” zoning.  Having said that, under the new clause 67(1) of the Deemed Provisions, development approval for a “service station” could lawfully be granted for the warehouse site, so long as it can be established that the “service station” land use would be “less detrimental”.

It is observed that the current model scheme text in Schedule 1 of the LPS Regs already provides for changes of use from non-conforming land uses to other prohibited land uses, but this provision does not apply automatically to all local planning schemes and appears to be more restrictive than what clause 67(1) of the Deemed Provisions will now allow, in that is also requires the new use to be “closer to the intended purpose of the zone”.

Please do not hesitate to contact us if you have any questions in relation to the upcoming amendments to the regulations.