Whether you realise it or not, every local planning scheme in Western Australia was amended earlier this month. That is because the new “deemed provisions” under the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (Regulations) came into force.
As a consequence of section 257B of the Planning and Development Act 2005 (WA), the deemed provisions in Schedule 2 of the Regulations are now taken to be built into every local planning scheme in the State. To the extent that a local planning scheme is inconsistent with the deemed provisions, the deemed provisions are taken to prevail. Every new local planning scheme that is adopted moving into the future will need to expressly incorporate the deemed provisions, but until then, existing local planning schemes will need to be read together with the deemed provisions in Schedule 2 of the Regulations.
So that does this all mean for developers, landowners and planning authorities?
For the foreseeable future, one cannot simply rely on the text contained within a local planning scheme. That is because the text of existing local planning schemes may be indirectly amended, varied or displaced entirely by the deemed provisions. Simply reading a local planning scheme in isolation may paint an inaccurate picture as to the actual planning framework.
In practice, this will necessitate a two stage approach to interpreting provisions of a local planning scheme:
Some interesting examples of how the deemed provisions have effectively amended local planning schemes are as follows:
It goes without saying that if there is any uncertainty as to the effect of the deemed provisions on particular content within a local planning scheme, legal advice should be sought as to the correct interpretation.
If you have any questions in relation to the deemed provisions or any aspect of the Regulations, do not hesitate to contact Craig Wallace or Alex McGlue.