SAT rules on the mechanics of adopting structure plans

The State Administrative Tribunal (SAT) has handed down its 170-page judgment in the case of Two Rocks Investments Pty Ltd and Western Australian Planning Commission1, following some 10 hearing days.

This complex matter was largely about the practical application of State Planning Policy 2.6 – State Coastal Planning Policy and involved detailed expert evidence in areas including town planning and environmental science.  The most useful aspect of the decision, however, may be the commentary that the SAT has provided regarding the mechanics of adopting structure plans.

A structure plan is a plan for the coordination of future subdivision and zoning of an area of land.  In the most basic terms, a structure plan illustrates the proposed future layout of vacant or undeveloped land, once fully developed.  A decision-maker must give due regard to a structure plan in determining a development application or a subdivision application.

The subject land in this matter was located to the north of Two Rocks on the outer fringes of the Perth metropolitan area and had an area exceeding 800 hectares.  The landowner had prepared a structure plan for the land for a proposed future urban development.  In assessing the structure plan, the Western Australian Planning Commission (WAPC) did not adopt the version of the structure plan as proposed by the landowner, but rather required various modifications to be made, before the structure plan could be resubmitted for approval.  The landowner sought review of some of those required modifications before the SAT.

The most significant required modifications the subject of the SAT proceeding required the landowner to amend the structure plan to remove proposed urban land use in those coastal parts of the subject land that are anticipated to be exposed to rising sea levels and coastal processes over the next 100 years.  The expert evidence before the SAT was to the effect that over the next 100 years, the peak water levels are expected to move landward up to 171 metres into the subject land.  In this respect, the SAT was required to assess the proposed structure plan in the context of climate change issues.

Although the application for review was upheld in part, the SAT for the most part supported those modifications to the structure plan that had been required by the WAPC at first instance.  The decision of the SAT was to impose a different set of required modifications to the structure plan, which have to be made by the landowner before the structure plan can be resubmitted to the WAPC for approval.  Importantly, the SAT supported the notion that the structure plan should incorporate a significant buffer for future sea level rises.  The SAT also dismissed the potential for interim uses, which may have considerable impact on a number of coastal developments in future. 

In publishing its reasons, the SAT also canvassed a number of legal issues concerning the mechanics of adopting structure plans, which are discussed below.

First, the SAT has confirmed that modifications required to a structure plan by the WAPC may be the subject of review proceedings.  There had previously been some doubt on this point, because the relevant right of review, in clause 25 of the “deemed provisions” in Schedule 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (Deemed Provisions), only refers to review proceedings being brought in SAT in relation to a decision of the WAPC “not to approve the structure plan”.  As the SAT remarked in its reasons, a decision to require modifications to a structure plan is effectively a decision not to approve the version of a structure plan put forward by a landowner.

Second, the SAT has confirmed that, in the usual course, a structure plan may only be prepared in respect of land for which a local planning scheme contemplates a structure plan being prepared, such as an urban development zone.  In this case, the proposed structure plan had contemplated some urban development over an area of land that was reserved for “parks and recreation” under the Metropolitan Region Scheme.  The SAT ruled that by reference to clause 15 of the Deemed Provisions, this particular portion of the land was not an area for which there is any statutory power for a structure plan to be prepared.

Third, the SAT ruled that in determining the application for review, its jurisdiction extended to making an order that the structure plan as approved be valid for a period greater than the standard 10-year period.  Clause 28 of the Deemed Provisions states that a structure plan is ordinarily valid for a period of 10 years, but this same provision contemplates that some different period may be imposed by the WAPC.  The SAT reasoned, by reference to the various powers in its governing legislation, that it could require the WAPC to approve the modified structure plan for a period of greater than 10 years, despite the fact that the primary subject matter of the review proceeding was the required modifications to the structure plan.

If you have any questions in relation to this SAT decision or in relation to legal issues that arise regarding the preparation of structure plans generally, please contact Lavan.