Protecting your planning rights in the days of coronavirus

In these times of lockdowns and closures due to COVID-19, it is inevitable that proposed developments and existing businesses will be significantly disrupted.

These disruptions could easily give rise to time delays, which may potentially put planning rights at risk, given that so much of the planning system in Western Australia depends upon time limits and periods of validity.

It is therefore critically important that landowners, developers, business operators and consultants be aware of these time constraints and take the appropriate actions now to protect their planning rights through this period of uncertainty.  A handful of important examples are outlined below.

SUBSTANTIAL COMMENCEMENT PERIODS

Most development approvals granted in Western Australia are valid for a period of only two years.  That means that if substantial commencement of the proposal is not achieved within two years of a development approval issuing, the development approval will expire.  In the current climate, it is doubtful whether many recently granted development approvals will be implemented within the standard substantial commencement period.

It may be tempting to proceed on the basis that a replacement development approval could be applied for in the future, but such an approach is inherently risky, as the applicable planning framework may change in the interim.

The better approach would be to apply now to extend the substantial commencement period of any development approvals, to something greater than two years.  It is considered that most such applications made now would have good prospects of being supported by the relevant decision-makers, because the current pandemic would represent a compelling justification for allowing an extension.

Similarly, subdivision approvals have a specific timeframe for clearances to be sought, and despite not being able to be extended, the need for "fresh" approvals issued on the basis of the same conditions and refreshing the implementation time frame should be considered.

NON-CONFORMING USE RIGHTS

Most local planning schemes in Western Australia protect the continued operation of land uses that have historically been granted development approval, but would no longer be capable of receiving development approval if applied for today, because of a rezoning or similar.  This concept is known as non-conforming use rights.

Importantly, most local planning schemes also say that non-conforming use rights expire if the use is discontinued for a period of 6 months or more.  If a non-conforming use right expires, then the land use in question would immediately become unlawful and there would be no prospect of obtaining a replacement development approval.

This represents a significant risk for any landowner carrying out a use that is no longer supported by a local planning scheme, as a prolonged shutdown due to the pandemic could conceivably see some businesses cease operation for 6 months or more.  Any such landowners who may face such a risk should take appropriate steps now to ensure that their non-conforming use rights are properly protected.

DEEMED REFUSALS

Due to the pandemic, it is quite possible that local governments and other decision-makers may struggle to determine development applications within the usual statutory timeframes.  It is important to bear in mind though that, despite these potential delays, the statutory timeframes, for the moment at least, remain unchanged.  This means that most development applications will still be required to be determined within 60 days (or 90 days if public advertising is required).

If a development application is not determined within the required statutory timeframe, it will be “deemed refused”, which means that the applicant will then have the right to commence an application for review in the State Administrative Tribunal.  Similar provisions apply in the case of subdivision approvals.

The ability to take a development application out of the hands of the assessing authority and into the hands of the Tribunal may be very useful in many cases, such as where the assessing authority does not yet support the proposal and an eventual refusal is likely.  In all cases, the Tribunal process can be useful in terms of ensuring timeliness, as the process and timetable will be set by the Tribunal (as opposed to the decision-maker), which could potentially result in a timely favourable determination upon a Tribunal ordered reconsideration.

Lavan’s Planning, Environment and Land Compensation remains open for business and fully operational during this challenging time.  Please do not hesitate to contact us should you require any guidance in relation to navigating this uncertain period in a manner that protects your planning rights.