COVID-19: WA Minister for Planning empowered to grant a broad range of exemptions to planning requirements - Government Measures

COVID-19 represents a new and immediate human health and economic crisis which has highlighted the urgent need to relax planning requirements. In Western Australia, extraordinary powers have now been granted to the Minister for Planning to provide a broad range of exemptions to planning requirements. What remains to be seen is the types of exemptions that will be allowed, who this will benefit and whether, from an administrative perspective, these powers are agile enough to respond to the pace at which the impacts of COVID-19 evolve.

On 4 April 2020 the 'deemed provisions' in Schedule 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) were amended through the introduction of Part 10B. The amendment empowers the Minister for Planning to grant exemptions to planning requirements where a state of emergency declaration is in force under the Emergency Management Act 2005 (WA) (EM Act).¹ In Western Australia, a state of emergency was declared on 15 March 2020 in respect of the COVID-19 pandemic.

While Part 10B does not contain an exhaustive list of planning requirements, the following are specifically mentioned:

a requirement to obtain development approval;
a requirement under a condition of development approval;
a requirement relating to the permissibility of uses of land;
a requirement relating to works;
a provision having the effect that a non-conforming use of land is no longer permitted because of a discontinuance of that non-conforming use; or
a requirement in relation to consultation, advertisement, applications, time limits or forms.²

Notably, the exemptions can only relate to planning requirements imposed under local planning schemes. Accordingly, to the extent matters are regulated outside the scope of local planning schemes, such as subdivisions, they will not be amenable to a ministerial exemption. Finally, the exemption does not apply to environmental conditions imposed following an assessment carried out under the Environmental Protection Act 1986 (WA).³ In any event, to the extent that an exemption is granted, it will only remain in effect until either the state of emergency declaration ceases or up to five years from the date the notice is signed.⁴

Interestingly, the Minister may only grant a written exemption if the Minister considers that it is 'necessary to do so for the purpose of facilitating a response to, or recovery from, the emergency to which the state of emergency declaration relates' (here, COVID-19).⁵ This highlights considerations regarding the types of planning requirements which are 'necessary' to 'respond to' or 'recover from' COVID-19. Obvious examples may include the exemption from compliance with existing conditions of development approvals that restrict trading hours of essential businesses, such as supermarkets. Although in this context, we note that conditions which otherwise restrict shop delivery and refuse collection hours were relaxed by virtue of a notice issued under section 67 of the EM Act.

That being said, COVID-19 is both a health emergency and an economic emergency. This raises the question as to whether exemptions may be granted for economic stimulus reasons connected to commercial developments which will lead to economic recovery in Western Australia. On one argument, while broader exemptions for non-essential developments may not intuitively be viewed as a 'necessary' response to a declared health crisis, they may otherwise facilitate the 'recovery' from the economic impacts of COVID-19. To that end, the EM Act under which a state of emergency has been declared in response to COVID-19, specifically identifies the reconstruction and restoration of economic wellbeing as an aspect of emergency management.

Certainly, such an approach aligns with the Minister's comments to the Western Australian Local Government Association, where she stressed the current need for local governments to promote development and for local businesses to be afforded every opportunity of support to withstand the economic headwinds ahead. However, the exemption power under Part 10B can only be exercised by the Minister and not local governments. From an administrative perspective, local governments may be more agile to exercise such powers in a manner which appropriately reflects the issues they are facing on a day-to-day basis . In the meantime, local governments still have powers under the deemed provisions to exempt temporary works or land uses.⁶ Indeed, these local government powers may need to be called upon while we wait to see how broadly the Minister applies the exemption powers now available to her under Part 10B.

Footnotes

¹ Planning and Development (Local Planning Schemes) Regulations 2015 (WA) sch 2, cl 78H(1).
² Ibid cl 78H(3)(a)(i)–(vi).
³ Ibid cl 78H(3)(b).
⁴ Ibid cl 78J(2)(b).
⁵ Ibid cl 78H(2).
⁶ Ibid cls 61(1)(f) and 61(2)(d)

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